ANBROS MOTORS PVT. LTD. vs PUSHPA DHANWANT SINGH

THIS is an appeal against the order dated 3.11.2003 of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter, for short, referred to as District Forum-II) in Complaint Case No. 90 of 2001, Dr. (Mrs.) Pushpa Dhanwant Singh v. The Fiat India Automobiles and Others.

CASE of the complainant is that she purchased a Fiat Uno Diesel-5-Solid White car Engine No. PAU2254015 Chassis No. PAU011873 vide invoice No. 72 dated 27.1.1999 from M/s. Ambros Motors Private Ltd., Industrial Area, Phase-I, Chandigarh (O.P.-2). She paid a total amount of Rs. 4,55,720.85. The grouse of the complainant is that she was charged Rs. 59,134.85 in excess of the price of the car on that date as published in Annexure C-8. Terming this excess charging as deficiency in service, she has prayed for refund of Rs. 59,134.85 along with interest @ 18% p.a. from 27.1.1999 i.e., date of delivery of the car and also interest @ 18% p.a. on Rs. 4,36,731/- from the date, this amount was credited in the account of O.P. till the date of delivery i.e., on 27.1.1999. She also sought Rs. 1 lac as compensation costs and Rs. 5,500/- as costs of litigation. The O.P.''s case on the other hand is that the complainant had in fact bought a Car Uno (AC diesel) on 19.10.1998 against priority No. 6/013168 and for which she had paid Rs. 4,00,000/- through a post-dated cheque on 19.10.1998. However, as she was desirous of purchasing a diesel car with power steering she paid Rs. 36,731/- on 18.12.1998 and requested for a Uno Diesel Car with power steering in lieu of the car delivered to her on 19.10.1998. She took the delivery of the replacement car from O.P. No. 2 on 10.12.1998. She took the invoice and sale letter of this car without any date on it on the pretext of getting the car registered in 1999 with D.T.O., Patiala. It has been averred that the price of this car charged from the complainant was Rs. 4,55,720.85 and it was the actual sale price of the car on that date and hence there has been no overcharging of price from the complainant.

Learned District Forum-II in their analysis of the case took into account the invoice C-2, Sale Certificate C-7, Pollution Standard Certificate C-5 and Temporary Registration Certificate C-6, all of which bear the date of sale as 27.1.1999. It also perused Annexure R-1 i.e., invoice, R-2 i.e., delivery slip for a car on 19.10.1998 bearing Engine No. PAU2241188 and Chassis No. PAU 10132 and extract of the stock register. It, however, observed that R-2 pertained to a different car and that extract of stock register was not admissible as evidence. It also did not agree with the pleading of the O.P. No. 2 that the space for date on the invoice and sale certificate, etc. was left blank at the request of the complainant. It on the other hand observed that if at all such a thing was done then the O.P. is privy to such malpractice and hence cannot be allowed to challenge the same.

GOING primarily by the evidence in the shape of Invoice, Sale Certificate, Pollution Standard Certificate and Temporary Registration Certificate all dated 27.1.1999, the learned District Forum held the date of the sale of the car to be 27.1.1999 and also held its price to be Rs. 3,96,586/- based on Annexure C-8 and affidavit of the complainant. It resultantly held that charging excess amount of Rs. 59,134.85 by O.P. No. 2 is a deficiency in service and it directed O.P. No. 2 to refund this excess amount of Rs. 59,134.85 to the complainant with interest @ 6% p.a. from 27.1.1999 till payment along with costs quantified as Rs. 1,000/-. Aggrieved by this order O.P. No. 2 has filed this appeal. The appeal was taken on board and record of the complaint case was summoned from District Forum-II and notices were sent to the respondents. Mr. C.S. Pasricha, Advocate appeared on behalf of the appellant whereas Mr. Vivek Suri, Advocate appeared for respondent No. 1 and Ms. Prerna Mehta, Advocate for respondent No. 2.

MR. C.S. Pasricha, Advocate, first submitted that the complaint is beyond the jurisdiction of the Consumer Court and to support this he cited third foot-note of the order of Hon''ble National Commission in Maruti Udyog Limited v. Kodaikkanal Township and Others, I (1993) CPJ 80 (NC)=1993 (1) CON.LT 531 (NC), which inter alia states, "Even if the dealer has charged allegedly excess price the complaint is not maintainable under the Act". He further submitted that the car was sold at the price paid by O.P. No. 2 to O.P. No. 1 as has been confirmed by the affidavit of MR. M.B. Desai on behalf of O.P. No. 1. His next submission was that the complaint is barred by limitation as is clear from Para 11 of the complaint and the same was proceeded with without even on application from the complainant for condonation of delay. He then reiterated that the car was first delivered on 19.10.1998 and later changed on 10.12.1998. As per the Counsel the contract was completed on 19.10.1998 when the first vehicle was paid for and delivered. He denied that the vehicle was delivered on 27.1.1999. Mr. Vivek Suri, Advocate for the respondent No. 1 referred to para 8 of the impugned order wherein the question of limitation has been dealt with at length. He submitted that the complaint has been filed within the period of limitation. He further cited para 9 of the order wherein the learned District Forum has dealt with the issue of excess charging. His final submission was that there is no document on record to show that the car was sold on 19.10.1998 whereas all the documents indicate the sale of the car was effected on 27.1.1999 by which date the price of the car had been reduced by Rs. 59,134.85 p. From the pleadings of the learned Counsels and the evidence on record the case falls in a narrow compass i.e., what price was relevant/prevalent on the date of sale of the car and what price was charged? and secondly, what was the exact date of sale and delivery of the car? Before discussing the merits of the case, we would like to address two preliminary objections raised by the learned Counsel for the appellant. First is regarding complaint being barred by limitation. This aspect has been dealt in detail by the learned District Forum in Para 8 of the impugned order. The learned District Forum has rightly held that while calculating the period for limitation the time period spent in litigation at Patiala was to be excluded. This period is from 4.2.1998 till 13.10.1999 i.e., a period of over eight months. Even if for argument sake the date of sale of car is accepted to be 19.12.1998, the period taken to file complaint in District Forum-II is only two years two months and eight days. Once the period of eight months is excluded from this the complaint clearly falls within the period of limitation and the bar does not apply. We are, therefore, one with the view of the learned District Forum that the complaint is not barred by limitation.

REGARDING the second objections concerning the maintainability of the complainant, it is pertinent to mention that this plea was never taken before the learned District Forum and this is no stage of the litigation to raise the objection. Also the case cited i.e., Maruti Udyog Limited v. Kodaikkanal Township and Others, (supra) is distinguishable from the case in hand. Here the issue really is the correct date of sale of the car and the relevant price on that date to be charged. This objection is hence repelled.

DETAILED perusal of the evidence on record as well as the submission made by the learned Counsel for the appellant do not bring out any evidence of sale/delivery of any car on 18.12.1998 or 19.12.1998. All documents i.e., Invoice, Sale Certificate, Pollution Standard Certificate and Temporary Registration Certificate bear the date of the sale/delivery of the car as 27.1.1999. In spite of all this evidence it cannot lie in the mouth of the O.P. to say that the car was first sold on 18.12.1998 and then replaced with car with power steering on 19.12.1998. We are left with no doubt that the car was sold and delivered on 27.1.199. It is also on record that the price of the car on this date was Rs. 3,96,586/- as per Annexure C-8 and this has not been controverted by the O.P. In view of this evidence on record O.P. No. 2 was to charge this price for the car whereas it has charged the price relevant on some earlier date in December, 1998. This, to our mind, is clearly unfair trade practice and deficiency in service. We are of the considered view that the appeal has no merit as the appellant did not charge the complainant price for the car relevant on 27.1.1998 i.e., the date of sale. Resultantly, the appeal is dismissed and the impugned order is upheld, as it needs no interference. Copies of this order be sent to the parties free of charges. Appeal dismissed.