KISHORI SHYAM GUPTA vs ALFA AUTOMOBILES

INITIALLY, the complainant filed a complaint dated 6.9.89 for the award of compensation amounting to Rs. 2,08,800/-. Thereafter, the complainant submitted particulars justifying the claim for Rs. 2 lacs. An amended complaint was submitted on 20.12.89. We shall only notice the facts as stated in the amended complaint. The complainant is a permanent resident of Bharatpur who does the business in the name of M/s. Kishori Shyam Brajesh Kumar at Bharatpur in T.V., Refrigerators, Sewing machine etc. Opposite party no. 2 is Maruti Udyog Ltd. is a Public Company having its registered office in Delhi. Maruti cars, Omni van etc. are manufactured at Gurgaon. Opposite party No. 1 is its authorised dealer. The complainant is said to have deposited quotation price of Rs. 98,185/- with opposite party no. 1 on 8.8.89 for which receipt No. 456 was given. The amount was paid by draft. The complainant wanted to purchase Maruti van model Omni Cream Colour. Opposite party No. 1 did not deliver the vehicle despite taking full price. It had assured the complainant to deliver it on 9.8.89 after insurance and registration. The vehicle was not delivered on 9.8.89 and was told that it will deliver in a day or two. The assurance of delivery given was according to the complainant false. It is said that on 9.8.89 when the complainant requested opposite party No. 1 for delivery of the van he was told that price had been increased by Rs. 7,000/- and only after payment of Rs. 7,000/- the van will be delivered. The members of the family of the complainant awaited the arrival of the car and when the complainant went empty handed they were very much frustrated. The complainant got a shock and on account of that his hand was involved in the pedestal fan as a result of which. Bain Hath Ki Unguli ka Poruba Kat Kar girgaya. The complainant on account of unbearable pain became unconscious and was confined to bed upto 24.8.89. As a result of that the complainant could not got the order for about 500 sewing machines and kadai machines. The machines were to be supplied to the village Development Programme at Alwar and Dholpur. Soon after recovery of illness the complainant went and met opposite party no. 1 on 25.8.89 and told opposite party no. 1 to deliver the contracted Omni Van and upto the delivery of the van to pay interest @ 18% p.a. on the amount which remained in deposit with it. On that the Sales Manager of opposite party no. 1 after threatening, told him that after depositing additional amount Rs. 7,290/- Omni Van would be delivered. It was submitted that the complainant was in urgent need for Omni van for business as well as for his family. He paid Rs. 7290/- and thereafter on 28.8.89 the vehicle was delivered to the complainant without two carpets.

IT is said that opposite party no. 1 cheated him by realising Rs. 7290.00 and the body of it is below warranty. The opposite parties have adopted unfair trade practice and, therefore, the complainant is entitled to recover a sum of Rs. 5,10,510.00 from the opposite parties joindy or severally. The details of the amounts are as under: The amended complaint is dated 20/12/1989. Separate versions of the case were filed on behalf of the opposite parties. IT was denied that opposite parties have given quotation for Rs. 98,185.00 and that no agreement was made for the supply of the vehicle immediately. The complainant was in need of an Omini van. The complainant was asked to fill in pro-forma invoice. The complainant paid a sum of Rs. 98,185.00 on 8/8/1989 and the amount was .- deposited and there upon receipt no. 456 was issued. It was stated that opposite party no. 1 has accepted the price that was prevalent on Aug. 8, 1989 and that the price was to be recovered according to the price prevalent at the time of the delivery of the vehicle. It was denied that opposite party no. 1 told the complainant that on Aug. 9,1989 insurance and registration will be done and assurance for delivery was given. It was pleaded that the complainant is the resident of Bharatpur and so the registration of the vehicle after purchase was to be done in the office of the Transport Officer, Bharatpur. It was stated that at the time of accepting the amount on Aug. 8, 1989 opposite party no. 1 clarified to the complainant that it will take about 3 to 4 weeks in effecting delivery. The complainant himself gave an undertaking to opposite party no. 1 in writing. Opposite party no. 1 has paid interest according to rules on the amount deposited by the complainant. It was submitted that Maruti Udyog Ltd. increased the price of Maruti Omni from 18/8/1989. The complainant did not meet Opposite party no. 1 on 19/8/1989 and no request was made for giving delivery on 19/8/1989. The opposite parties did not inform the complainant about the increase of Rs. 7,000/- of cost. The claim for compensation was denied. Facts relating to the loan and the recovery were denied. It was submitted that opposite party no. 1 did not realise Rs. 7,290.00 by cheating the complainant. The defects pointed out were denied. Under the additional pleas it was stated that the complaint is not maintainable under Sec. 13 of the Consumer Protection Act, 1986 ("the Act" herein) and the averments made in the complaint do not constitute a consumer dispute and, therefore, the State Commission has no jurisdiction to decide it. A plea was taken that Maruti Omni vehicle was purchased for commercial purpose and, therefore, the complainant is not a consumer as envisaged by Sec. 2(1)(d)(i) of the Act. It was submitted that the charge of unfair trade practice has been levelled to prejudice the Commission and that unfair trade practice as defined in Sec. 2(1)(r) is not applicable so far as opposite party no. 1 is concerned. Monopoly Restrictive Trade Practices Act, 1969, Chapter 3 Part A is applicable to opposite party no. 2 and as opposite party no. 1 has acted on behalf of opposite party no. 2 the complaint is not maintainable.

The Maruti Udyog Ltd., opposite party no. 2 submitted a separate version of the case on 18.4.90. It raised preliminary objections to the effect that no consumer dispute is involved in the case. The complainant has raised a dispute in regard to the true and correct terms and conditions of the contract of sale or a breach thereof and to determine the true and correct terms of the contract, it was submitted that the proper action is for filing a civil suit in a Court of competent jurisdiction. For the reasons mentioned in para 3 of the preliminary objections, the complainant is estopped from raising a dispute in regard to increase in price after acting upon the terms of the contract and that there is no cause of action against opposite party no. 2. A certified copy of the order dated 16.1.86 decided by the Delhi High Court was submitted to show that in a writ petition filed by Shri O.P. Chopra, it was ruled that no writ shall lie on a question of contract relating to sale and purchase of an automobile vehicle. A plea of commercial purpose was taken. On merits it was stated that the sales policy of the opposite parties is to deliver vehicles based on the sequence of payments received by the dealer which in this case of the complainant is opposite party no. 1. It was stated that the prices of the vehicles were increased by opposite party no. 2 w.e.f. 18.8.89 and that the vehicle invoiced to the complainant was on the increased price, which he was required to pay in terms of the contract. The allegation regarding the defects in the vehicle and warranty service of opposite party no. 2 of poor quality and that opposite parties no. 1 and 2 are indulging in unfair trade practice being totally wrong were denied. Claim for compensation was denied. It was submitted that the complaint was frivoleous and vexatious and it being without any substance should be dismissed with exemplary costs and also on the grounds of preliminary objections.

IT appears from the order sheet dated 16.5.90 that the learned Counsel for the complainant submitted an application for production of the relevant records from the opposite parties. No reply was submitted to the application and arguments on the application were heard on 10.7.90. An order was made on 11.7.90 against opposite party no. 1 directing it to produce on or before the next date of the record relating to: 1. Number of Maruti vans in stock for delivery to the customers colourwise on 7.8.89. 2. Number of Maruti vans colourwise received by opposite party no. 1 for delivery to the customers from 8.8.89 to 17.8.89. 3. List of the persons to whom Maruti vans colourwise which were delivered from 8.8.89 to 17.8.89 and 4. The number of Maruti vans colourwise in stock on 18.8.89. On 7.8.90 the complainant submitted an application purporting to be under rule 10 of the Consumer Protection Rules, 1987. It was prayed in the application that the record regarding the two vehicles mentioned in the application may be summoned from opposite party no. 2 and also to show as to where the aforesaid two vehicles remained after final inspection alongwith the procedure of delivery etc. An application was filed on behalf of the complainant on 16.5.90 with a prayer that the record mentioned in it which is kept by both the opposite parties in the ordinary course of business may be summoned and they may be directed to produce the relevant record as mentioned in it. That application was contested by the opposite parties. The opposite parties, however, did not file any reply. Arguments were heard on 10.7.90. Thereafter the State Commission passed an order on 11.7.90 against opposite party no. 1 with a direction to produce on or before the next date the record mentioned in the order. Record was brought by the opposite parties on 7.8.90. They were directed to file attested copies of the record in pursuance of the order dated 11.7,90 and also give their copies to the learned Counsel for the complainant.

AFTER considering the complaint, the reply thereto and the application filed on 16.5.90 and the order dated 11.7.90 which was passed against opposite party no. 1 for the production of the record mentioned in it on or before the next date which was complied with, the prayer for direction against opposite party no. 2 was disallowed. No direction was issued on that application. An application was submitted under Sec. 26 of the Act on behalf of the opposite parties. It was recorded in the order sheet dated 18.9.90 that no order as prayed for by, the opposite parties in the application can be passed at that stage. The application was dismissed. The opposite parties thereafter submitted an application under Sec. 151 Cr.P.C. read with Sees. 13 and 14 of the Act and rule 10 of the Consumer Protection (Central) Rules, 1987. The complainant submitted his affidavit dated 22.8.90 in support of the complaint. Permission to cross examine the complaint on his affidavit was granted on 18.9.90. Learned Counsel for the opposite parties filed the attested copies of the documents in pursuance of the order passed by the State Commission. It may be stated that two affidavits one of the complainant and Shri Sumnesh Kumar were filed by the complainant. An application for interrogatories was filed by the learned Counsel for the complainant. One application submitted by the complainant was under order XI, rule 2 Cr. P.C. read with Sees. 13 and 14 of the Act praying that the opposite parties may be directed to answer the interrogatories attached to the application. Permission for the interrogatories against opposite party no. 1 was declined. Opposite party no. 2 was directed to answer on oath the interrogatories attached to the application. It was clearfied as is evident from the order sheet that the enquiry on the amended complaint in which Rs. 5,10,510/- have been claimed is being conducted to remove the misunderstanding in the minds of the learned Counsel for the opposite parties. Affidavit in reply to interrogatories was submitted. An application was filed by the learned Counsel for the complainant for cross-examination of the deponents of the opposite parties. Permission was accorded to the complainant''s Counsel for the cross examination of the deponents of the affidavits of the opposite parties. Mr. Kishori Shyam Gupta, complainant was cross examined on his affidavit. Mr. Sumnesh Kumar Gupta was also cross examined on his affidavit. It appears that on 2.5.91 an application under R.10 of the Consumer Protection Rules, 1987 alongwith photostat copies of the documents was presented by Mr. O.R Garg, learned Counsel for the complainant. An order was passed on 16.9.91 that the affidavits of the opposite parties will not be read as evidence as the deponents were not produced for cross examination. It may be stated that against that order, the opposite parties went in revision before the National Commission and as appears from the proceedings dated 4.2.92 that the learned Counsel for the opposite parties informed the State Commission that the revision filed by the opposite parties before the National Commission has been rejected in limine. The complainant has filed his affidavit and also that of Shri Sumnesh Kumar Gupta. Mr. B.S. Bhargava filed affidavit in reply to the interrogatories filed by the complainant.

WE heard Mr. O.R Garg, learned Counsel for the complainant and Mr. P.A.S. Rao and Mr. Sandeep Arora learned Counsel for the opposite parties and considered the record. Mr. O.P. Garg, learned Counsel for the complainant has raised the following contentions : 1. that after recovery of the full price on 8.8.89 the opposite parties could not defer delivery; 2. that even if they could defer delivery, the opposite parties could not charge increased price; 3. that the price has been increased by opposite party no. 2 to earn more profits which is not justified; 4. that retention of the vehicle was malafide; 5. that the opposite parties resorted to unfair trade practice; and 6. that amount as claimed should be awarded.

MR. P.A.S. Rao and MR. Sandeep Arora learned Counsel for the opposite parties refuted the contentions raised on behalf of the complainant. They also urged that on the basis of the objections taken in the version of the case, the complaint should be dismissed. We propose to deal with contentions no. 1 2,3,4 and 5 together as they are interconnected. The grievance made by the complainant is that he had to pay increased price Rs. 7,290/- after he had deposited the payment of Rs. 98,125/- with the dealer on 8.8.91. The vehicle was delivered to the complainant on 28.8.89. The forwarding letter dated 8.89 sent by the complainant to opposite party no. l amongst others contains the following recitals : "Allot No : Fresh OMNI Model : 1989 OMNI Colour : Cream I very clearly understand that 1. As informed by you, the vehicle against this application is expected to be delivered to me in 2 to 3 weeks. The delivery time indicated above is subject to normal production of HUL and availability of the vehicle of the colour choice as planned. 2. The price rates and taxes etc. may change without notice and I agree to pay the price, rates and taxes etc. which are ruling at the time of invoicing and delivery. This is a basic term accepted by us. 3. Interest @ 12% p.a. is payable to me on the above advance payment beyond 7 days for the period my payment is with-held. 4. M/s. Alfa Automobiles have explained to me that a vehicle cannot be delivered unless it is registered and insured. 5.1 would like Temp, registration to be done through Alfa Automobiles and 6.1 would like Insurance to be done through Alfa Automobiles...."

The receipt dated 8.8.89 which was issued to the complainant, inter alia, mentions : "Receipt No : 456 Date 08.08.89 Model : Omni Colour Cream Allotment No. Fresh ... Condition : 1. The payment is accepted as per the current prices, and is subject to change without notice. Difference due any change in prices, taxes, duties and other levies, whatsoever, shall have to be paid by the customer before taking delivery of his vehicle. 2. Please produce this receipt at the time of taking delivery".

Allotment No. was 11-V-80671. Cost of the vehicle inclusive of temporary registration fee Rs. 200/- was Rs. 105415.00. Invoice is dated 25.8.89.

According to opposite party no. 2 the price of Maruti range of vehicle was increased with the approval of the Board of Directors of the Company w.e.f. 18.8.89 mainly due to increase in inputs costs. The price was raised after securing approval of the Central Excise Authorities. As there was increase in the price, the complainant was asked to pay differential amount of Rs. 7290/-. This amount includes sales tax on the increase.

THE vehicle which was delivered to the complainant had chassis no. 57-91-In 810963 and Engine No. FBB 424544. Invoice of Maruti Udyog (photo stat) is on record, which contains, inter alia, the engine and chassis number of the vehicle delivered to the complainant. Temporary certificate or Registration has been placed on record. It is dated 23.8.89. Gate Pass 14998 dated 23.8.89 shows that the vehicle was removed from the Factory Warehouse on that day. Vehicle receipt register has also been produced. This shows that vehicle was not received by opposite party no. 1 till 24.8.89. Extracts from the Minutes of the Meeting of the Board of Directors of Maruti Udyog Ltd. dated 18.8.89 have been placed on record. The relevant extract is as under "Item-5 Review of Company''s profitability 1989-90 The Board noted the likely effect of certain post budgetary developments on the projected profit for 1989-90. Keeping in mind the increase in the input costs and other cost of operations as also the need for generating sufficient internal resources for future growth of the company, the Board decided that price of Maruti car and Omni be increased to generate to MUL a net additional income of Rs. 4000 per car/Omni and Rs. 2000 for Maruti 800 Deluxe w.e.f. 18.8.89 i.e. vehicles despatched from the factory from 18.8.89".

Shri B.S. Bhargava, Company Secretary of Maruti Udyog in reply to the interrogatories raised by the complainant has amongst others stated as under : "Q. No. 1 What is the procedure which is being adopted by your company after the final inspection of vehicle till the delivery of the same to the dealer for the customer? Ans. After final inspection of the vehicle, vehicles are transferred to the Vehicle Despatch Department for being parked in an earmarked place in the factory of the answering respondent. The vehicles are despatched to dealers or the stockyard of Maruti after completion of formalities of deposit of Central Excise duty and raising of invoice or stock transfer memo as the case may be and issue of GP-1. At times arranging a lot of the vehicles for despatch to" the dealer in one truck/trailor as per assorted colour choice and model of vehicles takes time. Actual transportation time between the Gurgaon factory and dealers premises depends upon distance. This time may increase in case there is any hold up for valid reason. On receipt of the vehicles the dealer arranges PDI (Pre Delivery Inspection) of the vehicles in its workshop where the requisite facilities are available. The dealer sends an intimation to the customer about the availability of the vehicle giving him reasonable time to collect the vehicle after paying dues like local sales tax, octroi, registration and insurance charges, handling charges etc. The vehicle is invoiced by the dealer at the price ruling on the date of invoice. If the customer wants the dealer to arrange for the insurance of the vehicle as well as registration, the dealer undertakes the responsibility on behalf of the customer, which takes one to three days time normally, Q. No. 2 When Maruti Omni van cream colour bearing chassis no. 810963 and Engine no. 424544 was released by your company for delivery to the dealer or the customer? Ans. The Omni, in question, was despatched by this answering respondent from its factory at Gurgaon to its dealer at Jaipur on 23.8.89. Q. No. 3 Why the aforesaid vehicle could not be delivered to the complainant till 28di August, 1989 after the release of the same from your company? Ans. The Omni was invoiced by MUL to the dealer on 23rd August, 1989. The complainant deposited difference in price of vehicle on 28th August, 1989 and therefore the delivery of the vehicle was made on 28th August, 1989".

From the above documentary evidence and reply to the interrogatories it is clear that the price of Maruti range of vehicle was increased with the approval of the Board of Directors of the Company w.e.f. 18.8.89. As a result of the increase in the price the complainant was asked to pay differential amount of Rs. 7290/-. This included sales tax on the increase. This was in terms of the contract of sale which were duly accepted by the complainant viz that the price applicable on the date of delivery would be payable. Thus no excess price was charged from the complainant The complainant chose to pay increased price of his own accord and collected the vehicle. There is justification for the submissions made on behalf of the opposite parties that the complainant is estopped from raising a dispute in regard to the increase in price after having accepted the terms of the contract and acting upon them. Shri Kishori Shyam Gupta (complainant) has given affidavit in support of the complaint. He was cross-examined on his affidavit. He has admitted that he did not object to the increased price in writing and that he did not protest against the increased price to opposite party no. 2.

THE forwarding letter and the receipt make it abundantly clear that the complainant agreed to pay the price ruling at the time of invoicing and delivery. Condition no. 1 of the receipt also shows that Rs. 98,125/- were accepted on 8.8.89 as per current price and it was subject to change without notice and difference due to change will have to be paid by the customer before taking delivery of the vehicle. THE price of the vehicle was increased with effect from 18.8.89 as per resolution and they were applicable throughout the country. THE complainant paid the increased price in terms of the contract. No excess price was charged from him. THE opposite parties have not charged any price in excess of the price fixed or under any law for the time being in force. Entries from Payment and Delivery Register show that at S.No. 136, the name of the complainant finds mention. Entries are datewise according to sequence, dates, DLR Invoice 50589 dated 25.8.80 is of CRM. It contains chassis and Engine numbers also. The vehicle Receipt register shows that the vehicle was not received from 7.8.89 to 24.8.89. The temporary certificate of which contains, inter alia, Engine and Chassis numbers of the vehicle is dated 23.8.89 Gate Pass dated 23.8.89 shows that the vehicle was removed on 23.8.89. The affidavit of the complainant in the face of these documents cannot be believed. The complainant was required to pay the price of the vehicle prevailing on the date of delivery and he paid that too of his own volition. The complainant has alleged that the opposite parties have adopted unfair trade practice. "Unfair trade practice" has been defined in Sec. 2(1)(r) of the Act The expression has been given the same meaning as in Sec. 36-A of the Monopolies and Restructive Trade Practices Act, 1969. There are certain exclusions in the definition. Unfair Trade Practice means trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, a trader adopts one or more of the practices enumerated in Sec. 36-A of the MRTP Act, 1969 and thereby causes loss or injury to the consumers of the goods and services, whether by eliminating or restricting competition or otherwise. Having considered the practice mentioned in Sec. 36-A that in the circumstances adverted above charging of increased price does not constitute unfair trade practice.

THE opposite parties made delivery on 28.8.89 after the payment of the increased price. THEre was no retention of the vehicle. In the circumstances the charge of malafide is wrong.

FROM the discussion made hereinabove it follows that contentions no. 1 to 5 raised by the learned Counsel for the complainant are devoid of force and they are accordingly rejected. Now, we take up the question of compensation. The complainant has claimed Rs. 5,10,510/- as compensation. Out of this amount a sum of Rs. 4,00,000/- has been claimed by him for an injury in one of the fingers and mental and physical tension caused to him by the opposite parties. The averments are contained in paras 7 and 9 of the amended complaint The complainant and*his son Sumnesh Kumar have given affidavits in support of these averments. Photostat copies of prescription etc. have also been produced. Under Sec. 14(1)(d) of the Act compensation can be awarded to a consumer for any loss or injury suffered by him due to the negligence of the opposite party. It is of the essence of this provision that the loss or injury for which compensation is to be adjudged and awarded should be found to have been caused by the negligence of the opposite party. The compensation to be awarded has to be quantified on a rational basis on a consideration of the material produced before the redressal agencies. As held by us, there was no negligence on the part of the opposite parties in delivering the vehicle on increased price, we agree with the submission made on behalf of the opposite parties that it is unimaginable that the complainant or his son or the members of the family became frustrated and had mental torture merely on account of the fact that there has been an increase in the price which the complainant would have to pay for buying the vehicle. Even if there was any mental tension, the complainant himself is responsible for it. It may be observed that the complainant has inflated the claim for compensation as he is not required to pay Court fee on it. The complainant is not entitled to any compensation.

In view of the aforesaid findings we do not consider it necessary to deal with some minor points raised on behalf of the opposite parties by their learned Counsel Mr. P.A.S. Rao and Mr. Sandeep Arora.

THE grievances raised by the complainant are not well founded. THE complainant has failed to substantiate his claim so as to entitle him to any relief. The complaint shall stand dismissed. The complainant shall pay Rs. 1,000/- as costs which shall be shared equally by opposite parties no. 1 and 2. Complaint dismissed with costs.