ISHVARBHAI PRABHUBHAI BEJANWALA vs Bajaj Auto Ltd.

THE appellant is the original complainant who had paid full amount for the purchase of rickshaw but the respondent did not deliver the rickshaw to him and, therefore, he had prayed for the delivery of rickshaw and damages @ Rs. 100/- per month and interest @ 18% on the amount paid. THE complaint having been dismissed with cost, the complainant has filed this appeal. THE short facts inter-alia are as under:

THE complainant who is a rickshaw driver was in need of an autorickshaw for his livelihood. THE respondent No. 1 (original opponent No. 1) is the manufacturer of autorickshaw while respondent No. 2 (original opponent No. 2) is the authorised dealer of the rickshaw. THE opponent No. 1 by publishing an advertisement invited the proposals for booking the rickshaw. Reading the said advertisement in the newspaper, the complainant submitted his form duly filled in with the deposit of Rs. 500/- to the opponents on 22.7.88. THEreafter the opponent No. 1 by draw system prepared the priority list for effecting the delivery of the rickshaw. THE applicant was assigned serial No. 75 for the purpose of priority and delivery and he was informed accordingly by a card. THE complainant thereafter received intimation letter dated 13.2.89 calling upon him to make the payment of the rickshaw and Insurance as well as registration fees as per intimation letter. He was required to pay Rs. 25,686/- the value of the rickshaw, Rs. 1175/- insurance and registration fees and deducting the deposit amount he was required to pay Rs. 25,111/-. THEreafter the complainant went to Navsari from Surat on 20.3.89 and paid the amount by two cheques - one for Rs. 25,000/- and another for Rs. 1285/- which were handed over to the respondent No. 2 for and on behalf of the respondent No. 1. THE respondent No. 2 then asked the complainant to select the rickshaw out of many lying there. THE complainant selected the rickshaw, chassis number of which was 169 and engine number 306187. After the selection was made by the complainant, the respondent No. 2 dealer prepared the receipt bearing serial number 346 and complainant was advised to take the delivery of the rickshaw on March 24, 1989. THE complainant went to take the delivery on 24.3.89 to the respondent No. 2 dealer. However, according to the complainant the respondent No. 2 neglected to deliver the same under one or another pretext as and when the complainant approached for taking the delivery of the vehicle. THE complainant was unable to understand as to what was the intention of the respondent in not delivering the rickshaw which was selected, ready and lying in the godown of the respondent No. 2. No reply was given. Having no other option, the complainant gave a notice dated 21.4.89 to the respondent which was served upon him on 24.4.89. Even then none of the respondents paid any attention and, therefore, the complainant had to file the complaint. The respondent No. 1 had filed a written version on March 19, 90 wherein he had admitted the receipt of Rs. 500/-as deposit and assigning 75 as priority number. The intimation was also given to take delivery on payment and he was advised to approach the respondent No. 2 within 14 days from the receipt of the intimation letter and was advised to pay the amount by draft. The complainant did not approach within the time given of 14 days. However, he approached the respondent No. 2 and urged to effect the delivery. Instead of tendering the demand draft, he tendered two cheques -one of Rs. 25,000/- and another for Rs. 1385/-. The respondent No. 1 had further stated that he was not certain whether the cheque should be accepted. The respondent No. 1 did not agree to accept the cheque but ultimately it was accepted on humanitarian ground by the respondent No. 2 though it was contrary to the normal procedure and on realisation of the cheque the delivery was to be effected. Before the cheque could be accepted, there was hike in the price of the rickshaws from 1.3.89 because of the cost of production going high. The company increased the price of the rickshaw in the month of April that too after 20.4.89. According to respondent the amounts have been realised after April 20,89 and by that time the prices of the rickshaws have been increased and, therefore, the complainant was asked to pay the difference between the price which was increased to Rs. 37,000/-. The complainant did not accept the proposal and demanded that the delivery of the rickshaw should be effected at the contractual rate. That the same being not in consistent with the agreement entered into between the parties, it was not delivered. It was further stated that the company would be ready to deliver the rickshaw at the prevailing rates and the delivery was not effected on account of the conduct of the complainant. The company therefore urged to dismiss the complaint. The respondent No. 2 has also filed a written version on 28.11.89 which is also in consonance with the written statement filed by the company.

Initially, the complaint was lodged with the District Forum at Surat, since the Forum at Valsad was not established. After the establishment of the District Forum at Valsad the complaint was transferred to it. The District Forum which heard the complaint had come to the conclusion that the complainant was required to make the payment and take the delivery within 14 days. In this case, the complainant went to take the delivery and that too he did not make the payment by demand draft and the order was treated as cancelled. The realisation of cheque was delayed on account of strike in the bank and as a matter of fact, this amount appears to have been credited on 6.4.89 and according to the District Forum, the respondents were not bound to effect the delivery after 6.4.89 since there was hike in the prices of rickshaws. The argument of the Advocate for the complainant that once the full payment was accepted by the company/ dealer, it was not open to them to claim the difference of the amount if by the time for one or other reasons there was hike in the price of the vehicle. This argument appears to have been accepted by the District Forum. The District Forum has also relied upon the judgment in the case of K.L. Jain v. M/s Alfa Automobiles (II (1991) CPJ 221) (Rajasthan State Consumer Disputes Redressal Commission) wherein it is laid down that the manufacturer and dealer were entitled to receive the increased price even if the customer has paid full amount. The District Forum however held that the Forum can grant those reliefs which fall within the ambit of Sec. 14 of the Consumer Protection Act and it was not possible for the District Forum to direct the respondents to deliver the vehicle at a particular rate. With the aforesaid reasoning, the District Forum has dismissed the complaint allowing cost of Rs. 200/- to the respondents.

THE following points arise for our consideration. (i) What is the effect of late payment made by the complainant? (ii) Whether the respondent can raise this objection after having accepted the amount? (iii) What is the effect of not making the payment by draft when the cheques have been accepted and realised by the respondent? (iv) Whether the rickshaw was assigned and appropriated by the complainant? (v) That when the rickshaw was ready for delivery, can the respondent demand additional amount when not only the cheques were accepted but also realised by the respondents and manufacturers/dealers had not to pay any excise duty or any other compulsory payment?

We are extremely pained and surprised to read the judgment of the District Forum which has not applied its mind and has not granted the protection to a poor rickshaw driver who might have collected the money by taking loan and kept that money for number of years with the respondents. We are also pained to see that the District Forum has not even passed any order for returning the money with interest which the District Forum could have passed. To our opinion, this is a clear case of exploitation and harassment by the powerful and giant manufacturers of the persons of poorest strata of society. In this case, there is no dispute that the full payment has been made. It is true that the complainant rickshawalla was directed to make the payment within 15 days but this date is not sacrosanct and the respondent had a right to waive the same. It is also true that the payment was not made by draft but by cheque but that too the respondents had a right to waive the same either expressly or by conduct. Both the grounds raised by the respondents are totally bad in eye of law. The respondents not only accepted the cheques but have allotted the rickshaw bearing particular chassis and engine numbers and sent the cheques for realisation totally concludes rights of the parties. If the cheques had been dishonoured, different consideration would have been prevailed. But in the instant case the cheques were realised and after realisation of the cheques, according to our opinion, the respondents were bound to deliver the rickshaw to the complainant.

IT is evident that the complainant has made full payment by cheque on or about 20.3.89 and the complainant was advised to take the delivery on 24.3.89 but the same was not delivered since the dealer might have waited for the cheques to be accepted. For that the complainant may not be able to take objection. The delivery can be said to have been effected when the particular rickshaw was chosen by the complainant. The respondent had a right to refuse payment by cheque but once he having accepted the payment by cheque, unless the cheque is dishonoured, he cannot raise an objection that the payment is not made by draft. The payment by cheque is also a valid payment if the same is accepted by the opponent In this case, the cheques were accepted by the respondents and the complainant was permitted to select the rickshaw. The rickshaw was also selected and chassis and engine numbers were given to the complainant and in this way the goods had been appropriated and /or earmarked for the complainant and, therefore, no question can rise even if there is a subsequent change in price. The contract, to our opinion is completely concluded, the goods earmarked and assigned and payment received and only question remained was realisation of the cheques and physical delivery of the rickshaw to the complainant. The learned District Forum has committed an error in relying upon the judgment of Rajasthan State Consumer Disputes Redressal Commission quoted above which was a case entirely different where the order was placed for Maruti Car and before the car could be sent for delivery there was increase in excise duty which was beyond the control of the manufacturer and, therefore, by the time when the car was to be delivered, the manufacturer had to pay the excise duty and, therefore, he can recover the said amount of excess excise duty by increasing the price to that effect. This is a case of unascertained goods not ready for delivery or selected. In this case it is relevant to cite the observations of Honourable Supreme Court in the case of Lucknow Development Authority v. M.K. Gupta wherein the Honourable Supreme Court has interpreted the provisions of the Consumer Protection Act, its object, meaning and duty of the Court while construing the provisions of such an act and has observed that the primary duty of the while construing the Court provisions of said Act is to adopt a constructive approach and should not be contrary to the attempted object of the enactment. Now, in order to understand the purpose and objects of the legislature it shall be necessary to reproduce certain observations of the Honour''able Supreme Court. After considering the scheme, the Court observed that: "It appears appropriate to ascertain the purpose of the Act, the objective it seeks to achieve and the nature of social purpose it seeks to promote as it shall facilitate in comprehending the issue involved and assist in construing various provisions of the Act effectively. To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, "to provide for the protection of the interest of consumers''. Use of the word "protection'' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that the preamble cannot control otherwise plain meaning of a provision."

"In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, "a network of rackets'' or a society in which, "producers have secured power'' to "rob the rest'' xxxxx. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot. A scrutiny of various definitions such as "consumer'', "service'', "trader'', "unfair trade practice'' indicates that legislature has attempted to widen the reach of the Act. Each of these definitions are in two parts, one, explanatory and the other expandatory. The explanatory or the main part itself uses expressions of wide amplitude indicating clearly its wide sweeper then its ambit is widened to such things which otherwise would have been beyond its natural import."

SO far as potential consumer is concerned, the Supreme Court has in terms stated that "a person who applied for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression "service of any description''."

IN the light of the abovesaid observation of the Supreme Court, it cannot be disputed that the complainant was a consumer as well as potential consumer who had already paid full amount and was entitled for the delivery of the rickshaw which has been selected by him, same was earmarked and chassis and engine numbers of the same were already written in the receipt bearing serial number 346. If the cheques are realised, he automatically becomes the owner of the rickshaw. Since the cheque was not realised, the seller can retain the goods and wait for the realisation of the cheque but as soon as the cheque is realised, the unascertain goods viz. the rickshaw is said to have been appropriated and the buyer becomes the owner of the rickshaw and has a right to take the delivery of the said ricks haw and subsequent change in the price has no relevance. In any view of the matter, the dealer was the agent of the manufacturer. The rickshaw for the person whose priority number was 75 was sent to the dealer by the manufacturer for delivery and the dealer having been accepted the price by cheque cannot demand increase of price even if there is an increase by the manufacturer because the contract was complete and it has not been shown by the seller that the said rickshaw was not available or that the manufacturer has demanded excess price for said rickshaw. We are, therefore, of the opinion that the action of the respondents is clearly an unfair trade practice falling within the meaning of Section 2(1)(r) of the Consumer Protection Act. Giving assurance to the consumer and recovering full price, giving receipt of a particular chassis and engine numbers and thereafter not to deliver the goods which has been assigned to the customer and demanding higher price and retaining the rickshaw if the same is not paid, to our opinion is clearly an adoption of unfair method or unfair or deceptive practice which squarely falls within the definition of unfair trade practice and also deficiency in service to which the respondents are guilty. We are constrained to say that a poor man who is plying the rickshaw by himself has been deprived of his livelihood. He must be paying high interest on loan and must have suffered tremendously. Therefore, he is also entitled to compensation for pain and suffering and inconvenience. In such cases a direct evidence to estimate the pain and suffering and inconvenience is not possible.

In this respect the observations of Honourable National Commission in the case of Ashok Kumar Singh v. Hero Cycles Ltd. & Anr. (1993 (2) CPR 304) are required to be followed which read as under: "In these circumstances there was no justification for denying to the complainant the relief of compensation for the inconvenience caused to him by reason of his having been deprived of the use of the bicycle for which he had paid the price. The reason stated by the State Commission that the complainant has not adduced any detailed evidence furnishing particulars of the nature of inconvenience caused to him does not appeal us as correct or sound. The Forums constituted under the Act have to take a realistic and pragmatic view of matters coming before them and where it is manifest that real inconvenience has been caused to the complainant by reason of the goods supplied to him by the opposite party being defective in material respects, it is duty of the Forum to determine what would be the reasonable compensation payable in respect of such inconvenience. It is not just and fair to insist that the complainant should perform the impossible task of furnishing particulars in regard to the nature of inconvenience suffered by him."

In the instant case, the pain and suffering of the complainant is apparent as stated above. He is, therefore, entitled not only to the delivery of the rickshaw but also for the inconvenience caused to him which has also affected his livelihood for so long a time. We are, therefore, of the opinion that the respondents may either deliver a new rickshaw or the price of the new rickshaw by way of damages on account of their negligence to deliver the rickshaw and for following unfair trade practice. The complainant had been deprived of the use of the rickshaw and, therefore, he is entitled to interest over the amount already paid by him @ 18% p.a. and damages for pain and suffering and loss of his business which we estimate at Rs. 15,000/-. This is a case in which the consumer agency should award penal damages but since the learned Advocate appearing for the respondents has stated that the respondents are prepared to deliver the rickshaw at the current price giving deduction of the amount already paid, we do not pass any further order but hope that the respondents will deliver the rickshaw instead of paying the price of a new rickshaw prevailing today. ORDER The appeal is allowed. The order of the District Forum is set aside. The respondents are directed either to pay the price prevailing today of the rickshaw similar to the rickshaw sold to the complainant or a new rickshaw of the same type sold to the complainant and pay interest @ 18% p.a. over the amount recovered by the dealer from the date of recovery till the date of payment. The respondents will pay the compensation of Rs. 15,000/- and cost of this appeal which we quantify at Rs. 1000/-. Pronounced on this 31st day of January, 1994. Appeal allowed. ______________