K.SWAMINATHAN-Appeallant vs GOUNDER AND COMPANY

THE appeal is directed against the order dated 30.12.1996 in O.P. No. 278/95 on the file of the District Consumer Disputes Redressal Forum, Coimbatore.

THE appellant is the complainant while the respondent is the opposite party. The short facts leading to the filing of this appeal, may in brevity be stated for understanding the crux of issue arising for consideration in this action.

The opposite party is the authorised dealer or agent for Coimbatore District for Tata Sumo cars manufactured by M/s. Tata Engineering and Locomotive Company Ltd., Bombay.The complainant booked on 30.11.1994 a Sumo car with the opposite party after making the initial payment of Rs. 20,000/- by way of advance. The price of the Sumo car at the time of booking was Rs. 3,19,345/-. On payment of the initial deposit of Rs. 20,000/-, a priority Registration Number namely TN512 was given to the complainant.

THE complainant, it appears, did not effect payment of the balance of price. Consequently, the opposite party, dealer issued a letter on 9.6.1995 informing the complainant that if the balance amount was not paid within two weeks, the complainant would lose the priority. THEreafter, the complainant paid the balance amount of Rs. 2,99,345/- on 12.7.1995. THE complainant paid the balance amount through his financier Apple Credit Corporation. On 19.9.1995, the said financier wrote a letter to the opposite party dealer requesting him not to deliver the vehicle without a delivery order emanting from the financier. This aspect of the matter was informed by the opposite party to the complainant on 16.2.1995 only after receiving the consignment of the car from the manufacturer. The complainant was also informed by the opposite party dealer that the escalated price of Rs. 11,295/- was required to be paid by him at the time of taking delivery of the car.

THE complainant questioned the price escalation by way of a reply which Clicited a rejoinder. The complainant however paid the escalated price and took delivery of the car on 26.12.1995 without protest whatever. The complainant would claim that the demand for escalated price is not at all justified and that apart the car had been to him even after the receipt of the entirety of the price in a delayed fashion. These sort of acts on the part of the opposite party dealer would tantamount to deficiency in service.

THE opposite party in pith and substance would contend that there was no deficiency in service at all on their part and the complaint is liable to be dismissed.

THE Forum below after taking into consideration the materials placed on record, recorded a finding that there was no deficiency in service on the part of the opposite party and ultimately dismissed the complaint without costs. Aggrieved by the order as above, the appellant/complainant resorted to the present action by engaging a Counsel of his choice namely learned Counsel M/s. K. Sridhar and A. Bobblie.

On service of process, the respondent/opposite party entered appearance through a Counsel of their choice namely learned Counsel Mr. T. Ramalingam, Mr. Omprakash and Munusamy.

WHEN the matter came up for hearing before us today, learned Counsel appearing for the appellant/complainant were absent and no representation was made on their behalf. The fact that the said learned Counsel were absent does not mean that we cannot dispose of the appeal on merits, of course on perusal of the materials placed on record and after hearing the arguments of learned Counsel appearing for the respondent/opposite party. That is exactly what have done in this case. Even at the outset, we may point out that there are absolutely no merits in the appeal and the same deserves to be dismissed. It is the contention of the appellant/complainant as getting revealed from the materials placed on record that asking of escalated price of the delivery of the car to be effected by the opposite party and delayed delivery of the car subsequently to the receipt of the entirety of the amount of consideration would tantamount to deficiency in service on their part. To such a contention, we cannot affix our seal of approval on the facts and in the circumstances of the case. Ex. A1 is the invoice issued at the time of booking of the car. Even in the invoice so issued, it has been specifically stated by the manufacturer that the price of the car to be deliverd shall be fixed at the rate at the time of delivery and the person like the complainant booking the car must have to pay their price prevailing at the time of delivery. This apart, this sort of a question has come up for consideration before the National Commission in the case of M/s. Modern Automobiles v. Dr. Hari Mohan Swami, 1993 I CPR Page 181. In the said case, what the National Commission observed in paragraph 5 therein as relevant and it reads as under : "5. We have heard both the parties and have come to the opinion that the present appeal is liable to be accepted. The first grievance of the complainant is that escalated price of Maruti Car had been charged from him. The manufacturer has given reasons about the escalation in the price of the car. Even if for arguments sake we hold that the complainant has been unreasonably charged escalated price for the Maruti Car, even then he is not entitled to any refund, because no complaint about such excess price can be filed under the Act. In the case titled The Manager, Milk Chilling Centre v. Mahaboobnagar Citizen Council, this Commission had remarked :

''As per the definition of the expression ''complaint'' incorporated in Clause (c) of Section 2(1) of the Act, a complaint regarding the price at which an article has been sold can be maintained under the Act only if a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods. No reference has been made by the State Commission to any law in force in the State of Andhra Pradesh fixing the price at which the different varieties of milk are to be sold, nor has our attention been drawn to any provision of law in force in Andhra Pradesh fixing the price of different varieties of milk. Admittedly, there was no mention of the price on the sachets containing the milk sold to the customers in Mahaboobnagar. The State Commission itself has mentioned that this was so because of the exemption granted from the Operation of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. When there has not been any fixing of the price of an article by law nor a display of the price on the package containing the goods or on the goods themselves, the Act does not contemplate any complaint being instituted in respect of the price charged for the article on the ground that the price charged for the article is excessive. In the absence of any law requiring an article to be sold at or below a particular price fixed thereunder and when there is no declaration of price on the packet containing the goods or on the goods themselves, the Act does not contemplate that a Redressal Forum constituted under its provisions should undertake an investigation of the reasonableness of the price fixation made by a manufacturer, producer or dealer.''

The above observations clearly apply to the present case. Under Sub-clause (iv) of Section 2(1) (c) of the Act, a complaint can be filed only if the trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on goods or any package containing goods. The price of the Maruti Car has not been fixed by or under any law nor any price is displayed on the car. Therefore, the complainant in the present case cannot complain that the dealer has charged Rs. 7,729.64 more from him."

THE said decision is applicable in all fours of the facts of the instant case. If there is any little bit of delay in effecting the delivery of the cars even subsequent to the receipt of the entirety of the price of the car, such a delay the National Commision would say would not tantamount to deficiency in service while vide M/s. Maruthi Udyog Ltd. v. Mrs. Bhuvana Viswanathan, II (1993) CPJ 172 (NC)=1993 (1) CPR Page 152. This decision is also applicable in all fours to the facts of the instant case.

FROM what has been stated above, it is crystal clear that the order of the Forum below in dismissing the complaint holding that there was no deficiency in service on the part of the opposite party on the facts and in the circumstances of the case cannot at all be stated to be not sustainable in law.

IN fine, the appeal fails and the same is dismissed. We however make no order as to costs. Appeal dismissed.