BHAWANI PRASAD MISRA vs CHAIRMAN-CUM-MANAGING DIRECTOR MARUTI UDYOG LTD.

COMPLAINANT has made a grievance of deficiency in service in not refunding the amount received in advance for supply of a vehicle in spite of cancellation of the order by complainant.

CASE of complainant is that he intended to purchase a Maruti Omni Ambulance vehicle and approached the Calcutta office, of opposite party No. 1 for a proforma invoice possibly to obtain a bank loan by producing the same. On 27.6.91, the officer-incharge of sales in Calcutta office gave a proforma invoice wherein it was mentioned that the vehicle can be delivered within four to six weeks from the date of receiving the payment 100 per cent in advance. Since opposite party No. 4 was the authorised dealer of opposite party No. 1, 100 percent amount was paid on 3.7.1991 as per the proforma. Since opposite party No. 4 wanted a further sum of Rs. 5,560/- , the same was also paid to opposite party No. 4. Waiting till 12.8.91 when the complainant did not receive any intimation, he addressed a letter pointing out the promise made out in the proforma invoice that the vehicle would be supplied with four to six weeks from that date He did not receive any reply till 29.8.1991. Accordingly, that day he intimated all the opposite parties that he cancelled the order for the vehicle. On receipt of the same immediately Calcutta office of opposite party No. 1 rose from slumber on 5th September, 1991 and intimated that the vehicle would be ready for delivery tentatively during first week of October, 1991 and accordingly, requested to re-consider the decision of cancellation. On receipt of this letter, complainant intimated on 13.9.1991 that there is no question of re-consideration and the intimation of cancellation stands confirmed and the amount deposited by him may be refunded within seven days from the date of receipt of the letter. When the amount was not received, the complainant addressed another letter on 3.12.1991 that the amount not having been refunded if they would not be refunded with upto-date interest within seven days of receipt of that letter, he would be compelled to file a case in the Consumer Forum and in that event opposite parties would be liable for all costs and penal interest at the rate of 22 per cent per annum. Before prior to it, opposite party No. 4 replied on 29.11.1991 referring to a letter dated 11.11.1991 that the vehicle is ready for delivery and he may take delivery of the same. On 7.12.1991 on receipt of this letter complainant intimated that he had not received any letter dated 11.11.1991 and the order having already been cancelled, there is no question of taking delivery of the vehicle. Although earlier it was stated that they had not given any assurance to supply the vehicle within four to six weeks on cent per cent deposit, on 10.12.1991 Calcutta office of opposite party No. 1 intimated that the assurance given is a normal feature which is tentative but it takes time to supply the vehicle. Complainant replied to the said letter that the whole amount paid may be deposited with 18 per cent interest up-to- date. When no amount was sent, this complaint has been filed on 23.1.1992. Opposite, party Nos. 1 to 3 have stated their case, claiming that complainant is not a consumer. On facts also they have disputed their liability although the facts asserted are not disputed. A decision of the. National Commission in First Appeal No. 67 of 1990 (R.N. Narasimha Reddy v. Managing Director, Maruti Udyog Ltd. & Ors.) decided on 20.12.1990 has been relied upon in support of their non-liability. Opposite party No. 4 has appeared along with opposite party Nos. 1 to 3 through Mr. Y. Das, Advocate, and has adopted the case of opposite party Nos. 1 to 3.

Until delivery of the goods as per the agreement, a person is not a consumer of the goods. It is all that has been stated by the National Commission in the aforesaid decision. The principle laid down in the said decision has no application to this case since, the complainant in the said case had not cancelled the order demanding refund of the amount and this grievance was not non-refund of the amount paid.

IT is now settled by the National Commission and various State Commissions including this Commission that non-refund of advance to get priority in supply of vehicle, is a deficiency in service. Therefore, we have no hesitation to come to the conclusion that complainant is a consumer of service of refunding the amount, which was advanced, on cancellation of the order for a vehicle although having not been supplied with a vehicle he is not a consumer in respect of the vehicle itself. It is urged by Mr. Y. Das that there is no contract that an order once placed cannot be cancelled. Therefore, in absence of specific agreement that the order can be cancelled before the same is worked out, complainant is not entitled to refund. Until an order is performed, a person has got always a right to cancel the same. If by cancellation of the order there is a breach of contract, opposite parties would have claimed damages for the suffering on account of cancellation of the order. No case has been made out to that effect before us. On the materials available, we are satisfied that although the delivery period of the vehicle was stated to be four to six weeks, which sight be tentative, the vehicle ought to have been made available for delivery near about that period. From the correspondence we see that a vehicle which was promised to be supplied within four to six weeks by which the complainant was tempted to borrow money from the Bank at the rate of 18 per cent an interest per annum and paid the 100 per cent value to get the vehicle early, has not been supplied within the period promised. Much after the period when the order was cancelled, he is being told that on account of the nature of the vehicle it would not be possible before 12 weeks to supply the same. There cannot be a graver unfair trade practice than this. While attracting customers and depriving them of funds which are borrowed from Banks on payment of interest at the rate of 18 per cent per araium, by assuring that the vehicle would be supplied within four to six weeks to remain silent until the order is cancelled, is a high type of commercial discourtesy. If it was not possible on the part of opposite party No. 1, its Calcutta office or any other office could have intimated the complainant that they were arranging to supply the vehicle and the complainant should bear with them for some time. Only after getting, the letter of cancellation they rise to the occasion to intimate for re-consideration of the question of cancellation. This is a deficiency in service which is not expected of a Government company as opposite party No. 1 is Possibly on account of monopoly of Maruti vehicles, it has felt that the consumers can be behaved as its officers would like. We hope that the administration of the company would be streamlined to behave properly with consumers in future.

IN absence of specific contract that orders once placed cannot be cancelled and in absence of any case made out before us that opposite party No. 1 has spent any amount for taking steps to comply with the order, we are inclined to hold that complainant is entitled to compensation for the deficiency in service to be rendered by O.P. Nos. 1 to 3. Since complainant has cancelled the order on 13.9.1991, we are inclined to direct opposite parties 1 to 3 that complainant should be compensated for being deprived of the amount of Rs. 1,25,122.04 paise at the rate of 18 per cent interest per annum from 15.9.1991 since the letter of cancellation was issued on 14.9.1991 to courier service which might have been received on 15.9.1991. Complainant is fair enough to bring it to our notice that the amount with interest at 12 per cent has been paid deducting the income tax of Rs. 940/- paid in the month of February, 1992 after receipt of the notice from this Commission. IN such circumstances, we direct that the balance 6 per cent interest from 13.9.1991 till end of January, 1992 shall be paid to the complainant by opposite parties 1 to 3 for which they are made jointly and severally liable. INcome tax is to be deducted by a person who pays the amount towards income of the other. Refund of the amount Which is on getting the amount as bank loan as has been intimated in various letters, cannot be treated to be income. Accordingly, deduction of Rs. 940/- towards income tax appears to be non-application of mind. Complainant is entitled to refund of this amount of Rs. 940/- also along with 6 per cent interest which is to be paid to him. Complainant has paid Rs. 5,560/- to opposite party No. 4. No case has been made out by opposite party No. 4 why he should not refund the said amount. Accordingly, we direct that the entire amount shall be refunded to the complainant with interest at the rate of 18 per cent interest per annum from the date of deposit till the date of payment. Complainant is a resident of Anugul town within the district of Dhankanal in Orissa. He has borrowed the amount from a Bank at Anugul. Accordingly, the amount should be paid in shape of crossed bank draft payable to Andhra Bank, Anugul. The charges for the draft shall be borne by the respective opposite parties. With the aforesaid directions, the complaint is allowed. Complaint allowed.