FAIRDEAL MARWAR GARAGES PVT. LTD. , D.S.SARMA vs NATIONAL CENTRE FOR HUMAN SETTLEMENTS And ENVIRONMENTS , FAIRDEAL MARWAR GARAGES PVT. LTD.

FIRST Appeal No. 203 of 1995 is by M/s. Fairdeal Marwar Garages, Bhopal, 1st opposite party before the State Commission against National Centre for Human Settlements and Environment on behalf of Shri D.S. Sharma, the complainant before the State Commission and M/s. Maruti Udyog Ltd. FIRST Appeal No. 256 /95 is by D.S. Sharma, on whose behalf the complaint was filed by National Centre for Human Settlements and Environments. These two appeals are directed against the Order dated 6.2.95 passed by the Madhya Pradesh State Commission at Bhopal allowing the complaint and granting reliefs. The parties are being referred to as they were before State Commission.

THE facts as found by the State Commission are these. THE opposite party No. 1 is an authorised dealer at Bhopal of the opposite party No. 2 which was also manufacturing Maruti 800 Handicapped Control Car-TRD model. THE complainant by making an initial deposit of Rs. 10,000/- made a booking for handicapped control car. THE booking was accepted by the opposite party No. 1 by its letter dated 19.7.91 of Maruti 800 Handicapped Control Car of model TRD, delivery ex-factory Gurgaon with a total cost of Rs. 1,33,178.81. THE cost of the said car was, however, revised and proforma invoice dated 6.9.91 for Rs. 1,69,609.81 was issued by the opposite party No. 1. THE complainant had already deposited Rs. 10,000/- at the time of booking and made the balance payment of Rs. 1,59,609.81 by demand draft dated 24.12.91 favouring opposite party No. 2 payable at Delhi. THE first opposite party obtained the delivery of the said car at Gurgaon from the second opposite party and invoiced it in the name of the complainant showing the price as Rs. 1,70,886.73 and after adjusting Rs. 1,69,609.81 already paid to opposite party No. 2, indicated the balance of Rs. 1,276.32 and called upon the complainant to get the car insured so that it could be brought to Bhopal for delivery to the complainant. THE complainant, Shri D.S. Sharma obtained from United India Insurance Company Ltd., insurance cover for Rs. 1,61,000/- for the said car effective from 28.4.92 (5.15. p.m.) till 27. 4. 93 in his name. The said car was being brought by an employee of the first opposite party from Gurgaon to Bhopal vide Indore and it met with an accident en route on 26.7.92. There was some correspondence between the parties to which reference is unnecessary. Ultithately the first opposite party wrote a letter dated 8.1.93 to the following effect : ''Please refer to our earlier communication vide our reference No. FMG/IND/92-93/ 1996 dated 17.11.92. 1. As a special case Maruti Udyog Ltd. have agreed to assemble a new vehicle for you and will give you the same at current existing prices. This will be subject to the following : (a) Present vehicle will be repaired under your insurance and will be sold to new customer. (b) Your will have no lien on the present vehicle and interest will be paid to you till the date of billing of your earlier vehicle from Maruti Udyog Ltd. 2 Your existing vehicle can be repaired under your insurance policy and vehicle can be made fully road-worthy as confirmed by New India Sr. Surveyor, Regional Manager of Maruti Udyog Ltd., Regional Service Representative of Maruti Udyog Ltd., who are the most competent technical persons in the matter. 3. Refund of payment to you alongwith the interest till the date of billing. We are sending herewith this letter by registered A/D to you since we find you have been keeping mum on our letter. We would humbly submit to you to please clear options which you want out of the above-mentioned. Thanking You".

The complainant did not exercise any of the options and ultithately filed the complaint through National Centre for Human Settlements and Environments, a voluntary Consumer Association registered under the MP Societies Registration Act, 1973.

On being noticed the opposite parties filed their respective versions before the State Commission. The stand of the second opposite party was that it had received the price of the car from the complainant through the first opposite party and had delivered the car to the first opposite party against ''C Form at Gurgaon on 31st March, 1992, that the said car was sold by the first opposite party to the complainant by invoicing it on the same day and the complainant had thus become the owner of the vehicle on 31st March, 1992 and the property in the goods passed to him. The first opposite party maintained that it had given three options to the complainant but the complainant did not exercise his right to agree to any of those options and thus there is no negligence on the part of the first opposite party in rendering service to the complainant. The State Commission considered three questions for decision namely : (i) Whether the property in the vehicle passed to the Consumer at Gurgaon on 30.3.92 ? (ii) Whether the opposite parties have adopted any unfair trade practice or whether there has been any deficiency in service on the part of the opposite parties ? (iii) Whether the consumer is entitled to any relief under the Act.

THE State Commission came to the conclusion that the complainant had become owner of the car when it was delivered by the second opposite party to the first opposite party at Gurgaon and the property in the goods had passed to the complainant at Gurgaon. It is also found that the second opposite party having delivered the vehicle to the first opposite party on behalf of the complainant at Gurgaon, could not be held liable for non-delivery or any deficiency in service as urged on behalf of the complainant. So far as the claim of the complainant against the first opposite party is concerned it was found that the first opposite party had agreed to deliver the car to the complainant at Bhopal and that the first opposite party had obtained the delivery of the car at Gurgaon on 30.3.92 from 2nd opposite party and was holding it on behalf of the consumer as a bailee for delivery to the consumer at Bhopal. It was also found that a balance of Rs. 1,276.92 had been shown to be payable by the complainant to the first opposite party for effecting delivery of the car at showroom of the first opposite party at Bhopal and thus there was hiring of service for consideration of the first opposite party. It is also found that there is deficiency in service on the part of the first opposite party and the consumer would be entitled to obtain relief under the Act. THE State Commission then granted the following relief : "Respondent No. 1 shall within 2 months from the date of the communication of this order get the accidented car repaired at its cost in a workshop run by respondent No. 2, so as to render the said car suitable for the purpose for which it was designed, in perfect road-worthy condition, in case the said car is capable of being so repaired and respondent No. 1 shall thereafter deliver the said car to the consumer alongwith a certificate from respondent No. 2 that the car has been repaired satisfactorily and is fit for being used for the purpose for which it was designed and is in perfect roadworthy condition and a certificate of fitness from the prescribed authority at Bhopal under Section 56 of the Motor Vehicles Act, 1988. Respondent No. 1 shall also pay to the consumer compensation at the rate of Rs. 2,500/- p.m. from 10.5.92 till the date of delivery alongwith costs which we assess at Rs. 5,000/-. In case respondent No. 1 is unable to obtain certificate of fitness from respondent No. 2 and the prescribed authority at Bhopal under Section 56 of the Motor Vehicles Act and deliver the repaired car to the consumer within 2 months from the date of communication of this order, respondent No. 1 shall within 3 months from the date of the communication of this order pay to the consumer the sum of Rs. 1,69,609.81 along with interest thereon @ 18% p.a. from 24.12.1991 till the date of payment and costs amounting to Rs. 5,000/- provided the consumer furnishes a written undertaking to respondent No. 1 attested by a notary that the consumer would have no title to or right or interest in the accidented vehicle and the respondent No. 1 would be at liberty to dispose it of in any manner it likes and that the accidented car is not subject to any charge and is free from any encumbrance alongwith a certificate to that effect from the New India Assurance Company Ltd. with whom the car was hypothecated as mentioned in the policy of Insurance Annexure 6".

We have heard the learned Counsel for the parties in the two appeals and have also gone through the record. The first contention of the Counsel for the first opposite party is based on the finding of fact recorded by the State Commission that the property in goods passed to the complainant at Gurgaon on 30.3.92 when delivery was taken by opposite party No. 1 on behalf of the complainant from opposite party No. 2 and the complainant taking out on 28.4.92 an insurance policy as owner of the said car. The submission is that the first opposite party was only trying to help the complainant in delivery of the said car at Bhopal and there was no hiring of service for consideration. This has only to be stated to be rejected. It was the case of the complainant that as per terms of contract evidenced by the printed application form of the opposite party No. 2 duly filled in by the complainant and handed over to opposite party No. 1, the place of delivery of the car was to be at Bhopal and not Gurgaon. This material document though in possession of the opposite parties was not produced rather withheld justifying an adverse inference. In the invoice dated 30.3.92 made out by the first opposite party, a balance of Rs. 1,276.92 has been shown to be payable by the complainant to the first opposite party for effecting the delivery of the car at the showroom of first opposite party at Bhopal. It is one of the conditions of booking universally known that Maruti Udyog Ltd. makes the delivery only through their authorised dealers at the place/ city of booking. The second opposite party does not permit delivery of vehicles in a city different to that in which original delivey was sought. The complainant had sought delivery of the vehicle at Bhopal by booking through first opposite party which is an authorised dealer of the second opposite party at Bhopal. The State Commission relied on the decision of this Commission in P.S.N. Rao v. M/s. Venire Carriers and Ors., III (1992) CPJ 23 (NC) and rightly came to the conclusion that the first opposite party was in position of bailee who had undertaken to transport the vehicle from Gurgaon to Bhopal and to effect delivery of the vehicle to the complainant at Bhopal and it had met with an accident on way to Bhopal, there was deficiency in service on the part of the first opposite party in failure to deliver the car to the complainant at Bhopal.

THE next submission of the first opposite party is that the complainant avoided to sort out the matters despite three options given in the said letter dated 8.1.93. It is urged that had the complainant exercised any of the options at the earliest opportunity, then the matter would have been settled and that failure of the complainant to settle the matter, did not justify an adverse order against first opposite party by the State Commission which has passed the impugned order in consonance with those three options. THE submission is that there is no justification for compensation at the rate of Rs. 2,500/- per month from 10.5.92 as ordered by the State Commission against the first opposite party. THE complainant in the cross appeal seeks a direction against the second opposite party to supply a new car Maruti 800 TRD at Hyderabad where the complainant has been transferred from Bhopal in 1994 without any extra costs and also a compensation of Rs. 2 lakhs for mental torture, harasssment, loss of longevity and loss of enjoyment of the car besides the costs of Rs. 60,000/-. No relief can be granted against second opposite party to supply a new Maruti Car 800 HC TRD. Second opposite party had manufactured the car and delivered it to the first opposite party (its dealer). It is case of sale of goods simplicitor and no hiring of service of second opposite party for consideration. The car when delivered to the first opposite party did not suffer from any manufacturing or other defects. The relief of repair of accidented vehicle contingent upon so many conditions is not a practical relief to the complainant. The State Commission had directed that the car should be repaired and made fit for being used for the purpose for which it was desired in a perfect road-worthy condition and a certificate of fitness from the prescribed authority at Bhopal be obtained. There are so many ifs and buts in this relief which we are not inclined to uphold. We are inclined to maintain the last part of the relief. We direct the first opposite party to pay to the complainant a sum of Rs. 1,69,609.81 alongwith interest thereon at the rate of 18%, per annum from 24.12.91 till the date of payment and costs assessed by the State Commission at Rs. 5,000/- provided the complainant furnishes written undertaking to the first opposite party attested by Notary Public that the complainant would have no right, title or interest in the said accidental vehicle and that the first opposite party would be at liberty to dispose of it in any manner it likes. The complainant would also furnish an undertaking that the accidented car is not subject to any charge and is free from any encumbrance alongwith a certificate to that effect from the New India Assurance Company Ltd. with whom the car was hypothecated that the charge had been released. Payment of interest at the rate of 18% per annum, in our opinion, is sufficient compensation for the mental agony and inconvenience of the complainant. In the result, First Appeal No. 203/95 is partly allowed and the order of the State Commission is modified to the extent detailed above. First Appeal No. 246/95 is dismissed. The parties shall bear their own costs for the two appeals. The order should be complied with within two months from the date of receipt of the order. F.A. No. 203/95 partly allowed. F.A. No. 246/95 dismissed. ______________