BALDEVBHAI M. PATEL vs MAHESANA AGRO AUTO MACHINERY

COMPLAINANT No. 1 (COMPLAINANT for short) booked a car known as Premier Padmini 137D with opponent, a dealer in car and deposited Rs. 15,000/- by demand draft on November 13, 1991. The opponent, on realisation of the demand draft issued priority card in respect of the car booked by the complainant. On May 27, 1992, the opponent informed the complainant to the effect that the car which he had booked was available for delivery and called upon him to pay the balance of Rs. 1,62,336/- together with documents as mentioned therein. This letter, though it was dated May 27, 1992 was received by the complainant in August 1992. On receipt of the letter, the complainant paid the balance of Rs. 1,62,336/- by demand draft together with necessary documents on August 29, 1992. Premier Automobiles Limited delivered the car to the opponent on March 20,1993. The opponent called upon the complainant to take delivery of the car on total payment of Rs. 1,95,520/- and storage and handling charges of Rs. 2,537/-. According to the complainant, he was liable to pay only Rs. 1,77,336/- and not Rs. 1,95,520/- as demanded by the opponent for the price of the car. He had already paid total amount of Rs. 1,77,336/- as stated above and, therefore, mere was no question of paying any additional amount towards price of the car as demanded by the opponent. The complainant was also not liable to pay storage and handling charges of Rs. 2,537/- as there was no delay on his part in taking delivery of the car. However, in order not to delay the delivery of the car, the complainant paid Rs. 20,741 /to the opponent under protest by letter dated May 20,1993. On payment of the said amount of Rs. 20,741/- which represented difference in price and storage and handling charges, the car was delivered to the complainant.

THE grievance of the complainant is that he was not liable to pay increased price of the car as he had promptly paid the total price of the car on August 29,1992 on receipt of the communication from the opponent. It was the opponent who delayed the payment of the total price made by the complainant to Premier Automobiles Limited and it was on account of such delay on the part of the opponent that the complainant became liable to pay increased price of the car. It is further contended that the opponent had wrongly charged Rs. 2,537/- for storage and handling charges of the car. On the above facts it is urged that the opponent is guilty of deficiency in service and unfair trade practice. THE complainant has, therefore, claimed the following amounts from the opponent. (a) Interest of Rs. 2,250/- at 18% p.a. on deposit of Rs. 15,000/-; (b) Interest of Rs. 19,000/- on Rs. 1,77,632/- illegally utilised by opponent from September 3,1992; (c) Rs. 17,888/- representing difference in price; (d) Rs. 2,537/- wrongly recovered by way of storage and handling charges; (c) Rs. 24,000/- far loss of income for 8 months @ Rs. 3,000/- per month; (d) Exemplary damages of Rs. 20,000/-; (e) Rs. 25,000/- damages for harassment and tension; and (h) Rs. 5,000/- by way of cost.

The defence of the opponent is as follows. 3.1 The demand draft of Rs. 1,62,336/- sent by the complainant was received by them on September 2,1992. They had credited the said amount in Bank of Baroda, Kurla Branch on the next day i.e. September 3,1992 and that the said amount was forwarded to Premier Auto-mobiles Limited on 2nd/3rd day thereafter There was, therefore, no delay on their part in forwarding the price of the car to Premier Automobiles Limited. Premier Automobiles delivered the car at Bombay on March 20,1993 and they in turn delivered it to the complainant on March 29,1993. Delivery of the car could not be given earlier than March 29,1993 because time was taken in complete check up of the car and other legal formalities. Premier Automobiles Limited had raised the price of the car before its delivery and whatever price which was recovered from the complainant was paid to Premier Automobiles Limited. Therefore, there is no question of paying difference in price to the complainant According to the opponent they were not responsible for the delay in delivery of the car to the complainant. It is, therefore, contended that the complainant is not entitled to claim any amount from the opponent and that the complaint is liable to be dismissed.

There is no dispute that the complainant had booked the car by depositing Rs. 15,000/- on November 13,1991. It is also not disputed that the balance of price of Rs. 1,62,336/- was paid by the complainant on August 29,1992 on receipt of the opponent''s letter dated May 27, 1992. The demand draft sent by the complainant to the opponent was presented for clearance on September 2, 1992. After the payment of the full price by the complainant , the car was not delivered to him and, therefore, he made enquiries at the office of the opponent. The complainant was told that he had not paid the balance of the price and , therefore, no delivery of the car could be made. The complainant told the opponent that he had already paid the balance of Rs. 1,62,336/- but the opponent did not believe the statement unless evidence was produced in support thereof. The opponent also refused to verify the payment from their books of accounts. The complainant obtained xerox copy of delivery of letter to the opponent by which demand draft was sent to them. Inspire of this copy of the delivery of the letter, the opponent was not willing to verify their books of accounts to ascertain the payment made by the complainant. The complainant had, therefore, to approach his banker and with the assistance of the banker he was able to collect the details of the presentation of the demand draft for payment on September 2,1992 by the opponent. The complainant produced banker''s certificate to prove that the demand draft sent by him was presented for realisation of September 2, 1992. It was only thereafter that the opponent verified his books of accounts and confirmed the payment of balance of price of Rs. 1,62,366/- by the complainant and issued receipt No. 1918 dated March 16,1993. It is only after verification as stated above that the opponent paid the amount to Premier Automobiles Limited and on receipt of the full price, Premier Automobiles Limited delivered the car to the opponent. The above statements made by the complainant are not controverted by the opponent and, therefore, there is no reason to disbelieve him. Premier Automobiles Limited delivered the car to the opponent on March 20, 1993 and the opponent in turn delivered it to the complainant on March 29,1993, after recovering the increased price and storage and handling charges as stated above. There is therefore, no doubt that the opponent had delayed payment of full price to Premier Automobiles Limited and it is only on account of this delay on their part that the car was delivered by Premier Automobiles Limited on March 20,1993 after the price of the car was increased. The opponent should have verified from their books of accounts whether payment as stated by the complainant was made to them and should not have insisted upon the complainant producing proof for payment. The date on which the demand draft was despatched was stated by the complainant and, therefore, it could not have been difficult for the opponent to verify from their books whether such payment as stated by the complainant had been made The fact that the receipt for the demand draft of Rs. 1,62,336/- was passed on March 16,1992 supports the statement made by the complainant.

IN the light of above discussion, we hold that the opponent is guilty of deficiency in service and unfair trade practice and is, therefore, liable to pay interest @ 15% p.a. on the amount of Rs. 1,77,336/- from September 2, 1992 to March 16,1993 for wrongly retaining the said amount and not paying it to Premier Automobiles Limited. The opponent is also liable to pay Rs. 18,184/- being the difference in price of the car. The complainant was liable to pay total price of Rs. 1,77,336/- and not Rs. 1,95,520/- as later on demanded by the opponent. The opponent is, therefore, liable to pay an amount of Rs. 18,184/-. So far as storage and handling charges of Rs. 2,537/- are concerned, there is nothing on record to show as to for what period this amount was charged. It is quite probable that these charges were recovered for storage and handling of the car between March 20 and March 29, 1993. The learned Advocate for the complainant submitted that the said charges must have been recovered for storage and han-dling of the car from September 19, 1992. There is, however, no evidence to support this statement. IN our opinion, therefore, the opponent is not liable to pay back the said amount of Rs. 2,537/-. We also do not see any justification to award Rs. 24,000/- for loss of income and Rs. 20,000/- as exemplary damages as prayed for by the complainant. The complainant has prayed for interest on deposit of Rs. 15,000/- from November 18, 1991 to August 28, 1992. There does not seem to be any justification in claiming this interest. The complainant has not produced any agreement with the opponent which would justify such claim of interest. It would appear that the total price of Rs. 1,77,336/- would take care of interest on Rs. 15,000/- even if such interest is recoverable. IN other words, interest, if any, payable on Rs. 15,000/- would get adjusted towards the said price of the car. In the result, we direct the opponent to pay (1) interest @ 15% P.A. on Rs. 1,77,336/- from September 1,1992 to March 16,1993; and (2) Rs. 18,184/-, the difference in price of the car together with cost of this complaint which is quantified at Rs. 2,000/-. The opponent is directed to comply with this order within one month from the date of receipt of the order. Complaint allowed with costs.