AJAY H.KANTHARIA vs CAR MART PVT. LTD.

THE complainant, Dr. Ajay H. Kantharia, Cardiologist, in charge of Intensive Care Unit at Dr. Bacha''s Nursing Home, situated at Maharshi Karve Road, Marine Lines, Mumbai-20 has filed this complaint, against the dealer of the vehicle known as ''Tempo Traveller Ambulance'' and the manufacturer M/s. Bajaj Tempo Ltd. for recovery of compensation of Rs. 8,18,860/- on account of the delay in the delivery of the said Ambulance van. THE delay caused lot of loss of business to the complainant who had a plan to start Mobile Intensive Care Unit for the patients having cardiac problems and had also desired to meet the emergencies at the house of the patients who cannot travel to Dr. Bacha''s Nursing Home. THE few facts which are relevant are that the complainant approached the opposite party No. 1 Car Mart Ltd. on 23rd February, 1996 and secured quotation for the said Tempo Traveller Ambulance Vehicle and he was given the proforma quotation for Rs. 4,45,670/-, the same is dated 23.2.1996. Now, as per that quotation, this amount does not include the registration and insurance and the delivery was expected within 10 to 12 weeks. However, the other conditions stipulated that the payment should be made 100%. With this quotation, the complainant gave the cheque for Rs. 50,000/- on 28.2.1996 and the complainant was given to understand that the vehicle would be delivered within about 10 to 12 weeks which worked out in the month of May, 1996. However, according to the complainant, the opposite party, by letter in the month of May, 1996, demanded further amount of Rs. 50,000/- on the ground that the price of the vehicle had gone up. Meanwhile, the complainant had entered into the hire purchase agreement for loan with Alpic Finance Ltd. and made the full payment of Rs. 4,45,670/- to the opposite party No. 1 on 23.4.1996. It is stated that the initial payment of Rs. 50,000/- was to be adjusted towards the price. Surprisingly, it is further stated that at that time, the said Ambulance was not on regular production line and this was within the knowledge of the opposite party No. 1. Despite this, the opposite party No. 1 accepted the full price of the vehicle and was, therefore, he was duty bound to honour the period given in the quotation, viz. 10 to 12 weeks.

THE opposite party No. 1 by letter dated 2.5.1996 called upon the complainant to pay the increase in the price of the tempo traveller. By another letter dated 10.7.1996, the opposite party undertook the delivery of the vehicle by 10.7.1996. According to the complainant, this was a secret surprise which was disclosed later because on 10.7.1996, the vehicle was not in production and that the opposite party No. 1 was misleading the complainant. THEreafter, the opposite party demanded the increase in excise duty, to the tune of Rs. 93,917/- because of the provision made in the annual budget of the Union Government. THEre was increase in excise duty which required to complainant to pay the additional amount of Rs. 93,917/-. In this regard, the complainant has vehemently contended that had the vehicle been given in time, the increase in excise duty would not have been imposed on him. In spite of this, the vehicle was never delivered to the complainant, till the end of August, 1996. On the other hand, the complainant suffered another shock when he received yet another letter dated 6.9.1996 from opposite party No. 1 directing him to pay all the balance of Rs. 1,07,009.50 and this was totally uncalled for such price quotation was not at all mandatory by the opposite party No. 1. THE complainant has further stated that he had correspondence with the opposite party 2 and opposite party 2 indicated that the opposite party 1 had been aware that such ambulance van was not on regular production line and that the manufacture of such vehicle was undertaken by opposite party No. 1 as and when demand was made. This was, therefore, indicative of the fact that the time schedule of the delivery was not at all fixed. Despite this opposite party 1 committed the above mistake by calling upon the complainant to deposit the amount and also by calling upon the complainant to pay the additional amount. THE complainant has further contended that in spite of all this he expected the vehicle to be delivered soon, but the vehicle was never delivered. Meanwhile in anticipation of complainant, he interviewed the doctors, nurses to help him in the project which he had undertaken and they were to attend the patients, who had cardiac problems at their residence. He also made arrangements to purchase various medical equipments and sophisticated machine, so as to meet the requirement of emergencies arising out of cardiac problems. THE complainant had however, lastly stated that he was totally disappointed in the non-delivery of the vehicle. He had to pursue to matter with the opposite party 1 on repeated occasions and lastly, on 1.1.1997, he was delivered the vehicle. He has, therefore, stated that he suffered mental agony, mental harassment, interest on the amount with opposite party No. 1 for delay and he also suffered loss of business. He had to pay additional amount of Rs. 10,000/-. He had also incurred expenses on the medical equipments to the tune of Rs. 37,653/- and his final loss on account of preventing from starting another project of Rs. 2 lakhs. In all, therefore, the complainant has claimed Rs. 8,18,860/- from the opposite parties. According to him, for this delay manufacturer was equally responsible and, therefore, both the opposite parties are liable to make compensation under the above heads. The opposite party No. 1, Car Mart Ltd. in its extensive written version has raised preliminary point that the complainant is not a consumer, as the acquisition of vehicle is for commercial purpose. In various other hospitals they do not possess such vehicle and the attempt on the part of the complaint to acquire such vehicle was the commercial activity. It was a profit-making activity and, therefore, complainant could not be called as consumer. The Consumer Forum, therefore, should not entertain such complaint. It is requested that the State Commission should dismiss the complaint. The opposite party 1 has also raised several other questions and its main contention is that the complainant did not pay the price as and when demanded and, therefore, that caused delay in the delivery. It is also stated that the complainant was given quotation of Rs. 4,45,670/- but in the month of April of that year, the price of vehicle rose by about 15,000/-. Further in the month of July, on account of the rise in the excise duty, the price of the said ambulance raised from Rs. 5,30,849/- to 6,12,177/-. This was on account of the steep rise in the excise duty. It is stated that till all the payment was made, the vehicle could not be booked. The delivery period was about 3 to 4 months and if the complainant chose to make payment late, he has to thank himself for the late delivery. It is, therefore, stated that for all the grievances, the complainant himself is responsible.

The opposite party No. 2 on the other hand, has briefly contended that it is the manufacturer of the vehicle and it has dealing principal to principal with the dealer Car Mart Ltd. There was no privity of contract between the complainant and the opposite party 2 and there was no question of paying any compensation to the complainant on account of late delivery. It is further stated that the opposite party had paid the final amount in the month of June, 1996 and that the order was registered on 14.6.1996. The delivery period was 14 to 16 weeks and therefore, due delivery was at the end of October, 1996. Apart from that there was frequent power cut to the factory and this delayed the production. Apart from that the ambulance was not on the regular production schedule. The production of ambulance vehicles was made as and when the order were placed by the various dealers. In that light, the vehicle delivered in the month of December, 1996. The failure did not lie at the door of the manufacturer and the complainant has to thank himself and he cannot look to opposite party 2 for any compensation. In that light, the complaint deserve to be dismissed.

NOW, in this case, the documents on record form the vital part of the consideration of the claim of the complainant. In the first instance, we may examine as to whether the dispute raised by the complainant comes within the purview of the Consumer Forum. We find that the complainant is a practising Cardiologist. His desire to make available the Intensive Care Unit facilities to the patients who have cardiac problem and who cannot take any physical strain to travel to Dr. Bacha''s Nursing Home. If that be so, we feel that the activity undertaken by the complainant can by no means seems to be a commercial activity. The opposite parties have not been able to satisfy that the complainant has undertaken a profit-making activity. On the other hand, the purchase of ambulance was for the benevolent motive. The vehicle was to contain the Intensive Care Unit and other sophisticated medical equipments which can meet any emergency of any patient suffering from the cardiac problems. It was, therefore, with that desire that the complainant undertook this task. We do not have any evidence from the opposite parties that the complainant has been making notable profits. There are no documents, showing that the large income tax has been recovered from the complainant. Mere purchasing the ambulance for Dr. Bacha''s Nursing Home cannot mean by any amount of reasoning construe as commercial activity undertaken by the complainant. Dr. Bacha''s Nursing Home is the hospital, where the complainant has been working. He has to work there and his desire was to spread up the activities of the Intensive Care Unit to various localities in Mumbai. This activity, we are not prepared to brand as ''commercial activities''. The say of the opposite party that this has been a commercial activity is not supportable. This is the service, complainant desired to render to the patients. The main idea was just humanity and nothing beyond that. Hence, if the opposite parties desires to prove that the complainant undertook commercial activity, it could have gone to the Income-tax Department to ascertain as how much amount was paid by way of Income-tax by the complainant. Apart from that it also remains the fact that the Ambulance bears the mark of Dr. Bacha''s Nursing Home, though the vehicle was purchased by the complainant himself. The complainant is a Cardiologist and, therefore, we are not prepared to say that he indulged in commercial activity. Ultimately, the commercial activity has symptom of profit-making. There is no such symptom available in this case. We are, therefore, unable to conclude that this is a commercial activity which persuade us not to consider the complaint at all. All the same, we are rather inclined to hold that this is a benevolent activity that the complainant desired to undertake and that was in the shape of purchasing the ambulance, carrying sophisticated equipment and that giving door to door service to the cardiac patients. We are, therefore, inclined to hold that the claim of complainant is sustainable. Before proceeding with the claim against the Car Mart Pvt. Ltd., we may here briefly observe that the opposite party No. 2, who is the manufacturer, cannot be held liable for this claim. In the first instance, the opposite party No. 2 has come with a clear case that it has principal to principal transactions with opposite party No. 1. This fact has not been denied by opposite party No. 1. If that be so, the relationship between the complainant and opposite party No. 2 does not become that of consumer and the supplier. There was no privity of contract established between the complainant and the opposite party No. 2. The claim of complainant against opposite party 2 is in fact not sustainable. The complainant entered into correspondence with opposite party No. 2 in order to ascertain the reasons which delayed the delivery and we find from the correspondence on record that opposite party 2 had clearly given to understand to complainant that this vehicle was not on a regular production line. The said vehicle was manufactured as and when demanded by the dealers. But till then, this vehicle was never manufactured on regular production line. With this background, we are unable to uphold quotation of opposite party 1 that the delivery period of 10 to 12 weeks as mentioned in the quotation dated 23.2.1992. We find that it is a misrepresentation on the part of the opposite party 1 in this regard. All the same, we feel that for the delivery of the vehicle by end of December, 1996, opposite party 2 cannot be held responsible. As indicated, the relationship between opposite party Nos. 1 and 2 is principal to principal and not agent and principal. In written reply, opposite party No. 1 does not dispute this fact.

WE will start with the letter dated 5.3.1997 by opposite party 2, the manufacturer to the complainant. In that letter, it is clearly stated that the price of the vehicle was raised by Rs. 15,000/- w.e.f. 19.4.1996, when the Tempo Traveller Ambulance was not in production. The supply of vehicle was as per booking order sequence of the dealers and that on account of large demand, the time schedule could not be maintained. WE further emphasise that the excise duties of the budget rose from 10 to 40% w.e.f. 21.7.1996. The date 21.7.1996 is relevant, in view of the fact that the same is clear but the same should not be claimed by opposite party No. 1. It is however, stated in the letter that there were frequent power cuts and that is why the delivery schedule could not be maintained. WE, therefore, turn to the important letter by opposite party No. 1 to the complainant and that letter is dated 2.5.1996, and another letter dated 26.6.1996. In the letter dated 2.5.1996 it is stated that there is increase in the price of Tempo Traveller Ambulance and that the initial amount of Rs. 50,000/- would be adjusted towards the price. The said letter is by opposite party 1 to the complainant. The another letter, which is dated 26.6.1996, in that letter, it is stated that the opposite party No. 1 had contacted opposite party 2 manufacturer and opposite party 2 assured that the vehicle would soon be supplied. The opposite party 1 undertook to deliver the vehicle on 10.7.1996 and this was because the vehicle was not in regular production line. It is stated that the manufacturer asked the opposite party 1 to contact on 28.6.1996 for confirmation of the delivery. Now, this letter clearly shows undertaking on the part of opposite party 1 to supply the vehicle on 10.7.1996. This date is immaterial because of the fact that the union levy was imposed on 21.7.1996. WE believe that the letter dated 26.6.1996 of opposite party No. 1 clearly established that the opposite party 1 would supply the vehicle by 10.7.1996. This was after the repeated requests by the complainants to secure the vehicle expeditiously. WE believe that this date becomes the date showing that the time was essence of the contract. WE arrive at this conclusion because this was after the heavy correspondence between the parties. There was repeated demand by the complainant for delivery of the vehicle. The dealer took lot of time to deliver the vehicle. As a matter of fact, when the production of this vehicle was not the regular feature of the factory, it was totally improper on the part of the Car Mart Pvt. Ltd. who have given the period of 10 to 12 weeks. Apart from that this letter concluded the binding contract between the complainant and the opposite party 1 that the vehicle would be delivered by 10.7.1996. This letter should not be construed in any other manner. Therefore, there was positive undertaking on the part of opposite party No. 1 to deliver the vehicle by 10.7.1996. The fact is that the vehicle is delivered on 1st January, 1997 and this is not disputed. WE will here observe that the case law cited by the opposite party No. 1 is not applicable in view of the specific undertaking that the vehicle would be delivered by 10.7.1996. The case law cited by the opposite party No. 1 relates to the different facts and not the facts which are appearing in this case. WE therefore, do not wish to go through that case law. Apart from that there is one view of the Gujarat State Commission that if the opposite party/dealer delay payment to the manufacturer, the delay was accountable and that the compensation should be paid by the dealer. This is in the case of Creported in 1994 (3) Consumer Protection Reporter 253. Here, we are very clear that although the amount was paid by the end of April, 1996, opposite party 1 sent the order to opposite party 2 on 14.6.1996. There is a clear delay of 2 months and there was, therefore, deficiency on the part of opposite party No. 1 in performing that part of the contract. The complainant is entitled to compensation. The complainant had to pay Rs. 1,07,009.50 by way of increase in duty and difference in price. This was on account of the failure on the part of the opposite party 1 to book the order in time and to have failed to deliver the vehicle on 10.7.1996. The complainant is entitled to the refund of the amount. The complainant suffered the loss of interest for the period of 6 months on Rs. 4,50,000/-. Even if it is upto 11 to 12% it comes to Rs. 25,000/-. The complainant could not undertake door to door service to the patients having cardiac problems and we quantify this as loss of business for a period of 6 months at Rs. 50,000/-. We further hold that the complainant must have undergone a sort of humiliation for having failed to undertake an innovative attempt of going to the door step of the patient and on that account for mental agony and trauma, we quantify the amount of compensation of Rs. 30,000/-. We, therefore, feel that the complainant is in all entitled to round figure of Rs. 2,10,000/- for compensation. We, therefore, pass the following order. Order

THE complainant do recover Rs. 2,10,000/- with 15% interest from the date of complaint till the payment + cost of Rs. 10,000/- from the opposite party No. 1. THE claim against the opposite party No. 2 is dismissed. Accordingly we dispose off the Complaint No. 137/97 in the above terms. Complaint allowed with costs.