Maruti Udyog Ltd vs GEETA MOHAN DERASARI

THESE two appeals arise out of judgment and order dated August 12/ 1994 passed by the District Consumer Disputes Redressal Forum/ Vadodara [District Forum for short] allowing complaint being Complaint No. 557 of 1991 and directing the appellants to refund Rs. 45,848.11 together with interest @ 12% and cost of Rs. 2,000/to respondent No. 1 in Appeal No. 168 of 1994 and respondent in Appeal No. 4 of 1996 who was complainant in the said complaint [respondent for short].

FACTS leading these appeals are as under. Respondent booked Maruti Car Standard white with M/s. Cargo Motors (Guj.) Limited, appellant in Appeal No. 4 of 1996 and respondent No. 2 in Appeal No. 168 of 1994 [Cargo for short] on February 4, 1991 by depositing Rs 1,13,335.11/The appellant in Appeal No. 168, 4 is manufacturer of Maruti car and it was joined as opponent No. 2 in the complaint [appellant for short]. At the time of booking the car depositing money as aforesaid, respondent signed booking form in which terms and conditions of booking and approximate delivery period were stated. The approximate period of delivery stated was 5.5. months and it was stated that delivery of the vehicle would depend upon the seniority of respondent in the priority list. The car was delivered to the respondent on August 4,1991. In the meantime, price of the car had gone up mainly on account of levy of additional excise duty and therefore, the respondent was required to pay additional sum of Rs. 44,572.27. The respondent alleging unfair trade practice and deficiency in service on the part of the appellant and Cargo filed the aforesaid complaint seeking refund of the amount of Rs. 44,572.27/together with interest and cost from the appellant and Cargo. The respondent''s complaint was resisted by the appellant and Cargo. They denied the allegations of unfair trade practice and submitted that the respondent had agreed to pay the price prevailing at the time of delivery of the car and the respondent had not paid anything more than the price prevailing at the time of delivery of the car. The allegation of unfair trade practice and deficiency in service were also denied by the appellant and Cargo.

The District Forum by its impugned judgment and order held that the appellant and Cargo were guilty of adopting unfair trade practice and deficiency in service and therefore, they were liable to refund Rs. 45,848.11 together with 12% interest and cost of Rs. 2,000/-to the respondent. Feeling aggrieved by the decision of the District Forum, the appellant and Cargo have preferred these appeals.

IT is not disputed that in the order form signed by the respondent it is stated that the respondent had to pay price of the car/vehicle which would be prevailing on the date of the delivery. The District Forum has held that the order form is a unilateral document which is not on stamp paper and, therefore, it would not amount to contract. We are unable to appreciate this reasoning of the District Forum. The order form is admittedly signed by the respondent at the time of booking the car and she deposited money as aforesaid. The deposit was to carry interest of 12% till the time the car was delivered. The appellant and Cargo accepted this order form and deposit and ultimately delivered the car in August 1991 as aforesaid. There was thus clearly a bilateral contract between the parties and it is not stated by the District Forum under which provision of law, the order form was required to be on a stamp paper. The agreement relating to sale of goods is exempted from payment of stamp duty under Article 5, Schedule I of Stamp Act, 1899. The terms of contract were binding on the respondent and as stated above, he had agreed to pay the price prevailing at the time of delivery of the car. IT is not the case of the respondent that the price of the car which was recovered from him was not the price prevailing at the time of delivery of the car. The next question which is required to be considered is whether there was any unfair trade practice adopted by the appellant and Cargd. Besides referring to the definition of Unfair Trade Practice in Section 2(1)(r) of the Consumer Protection Act and Section 36A of the Monopolies and Restrictive Trade Practices Act, the District Forum has not given any reason as to why it came to the conclusion that unfair trade practice was adopted by the appellant and Cargo. There is no evidence on record to prove that car was delivered to any person out of turn. It is true that persons booking cars were required to state the colour of the car and cars were delivered according to the availability of the cars of the choice of colour given. The seniority list of the persons booking the car was maintained on the basis of the deposits made by them. However, the choice of colour was kept in mil-id in making delivery of the cars. The appellant or cargo had not given any assurance or undertaking about delivery of car on the basis of colour choice. It was decided by the appellant to deliver the car according to the seniority of the deposits made if the person booking the car did not insist upon the colour of its choice. We fail to see why such direction or instruction could not have been issued by the appellant to its dealers. What was important was the priority according to the deposit of money and booking. Again, as pointed above there was no assurance or agreement by the appellant or Cargo that the cars will be delivered strictly according to the colour choice made by the persons booking the car. It might be that because the date for budget was nearing, decision was taken to deliver car according to the date of the deposit if the person booking the car was willing to accept car of the colour other than his choice. However/ for that reason it could not be concluded that unfair trade practice was adopted. It is not the case of the respondent that it was to favour certain persons that the policy was changed by the appellant. Uniform policy for delivery of the car was adopted all over the country and such a policy could not have been adopted only to favour few persons. In view of this policy decision it might be that persons who had not given choice of white colour were delivered car of white colour. It is however not the case of the respondent that persons to whom delivery of the car of white colour was made had booked car or made deposit after the respondent had booked her car. In other words, the cars were delivered according to the seniority or priority list. There was, therefore, no unfair trade practice adopted by the appellant in making delivery of the cars.

THERE is also no question of deficiency in service on the part of the appellant and Cargo. The contract was for sale of goods namely car. The period of delivery was approximately mentioned to be 5.5 months subject to what is stated above. Time was not the essence of the contract. The respondent had not hired services of the appellant and Cargo for consideration. THEREfore, there is no question of deficiency in service on their part. As already observed above, there is also no unfair trade practice adopted by them. the price rise was mainly due to levy of additional excise duty. It is not alleged or proved that the excise duty which was recovered from the respondent was not levied or that such excise duty was not paid by the appellant to the Excise Authorities. We are unable to understand as to how the appellant and Cargo could be blamed for the levy of additional excise duty before the delivery of the car. When the contract clearly stated that the respondent was liable to pay the price prevailing at the time of delivery of the car/ the appellant and Cargo could not be made liable to refund additional price which they had recovered. It was urged on behalf of the respondent that date of manufacture of the car was June 29, 1991 and therefore there was no liability on the appellant to pay additional excise duty on the car because the additional excise duty was levied in July, 1991. It is not the case of the respondent in her complaint that the appellant was liable to refund additional excise duty because no such duty was payable or paid. It is for the first time at this appellate stage that the above argument is advanced. There is nothing on record to show that additional excise duty recovered by the appellant was not payable. In any case there is no evidence to prove that the additional excise duty recovered from the respondent was not paid by the appellant. The appellant had recovered additional excise duty which was recovered from it. It was submitted that since the appellant had failed to produce the relevant records relating to manufacture of car adverse inference should be drawn against it and it should be held liable to refund the amount as claimed by the respondent. We are unable to accept this submission. List of seniority containing the relevant details has been produced by the appellant. The appellant was not called upon to produce any particular record relating to manufacture and payment of excise, duty. There was also vague allegation without any basis about the price of the component parts used in the car. On the basis of such vague allegation, the appellant could not have been called upon to produce accounts and records relating to the purchase of component parts which were used in the manufacturing of the car. Considering all the facts and circumstances of the case, we are not inclined to draw any adverse inference against the appellant and Cargo. In the light of above discussion, we are of the view that the District Forum was not justified in ordering refund of the amount as claimed by the respondent. The complainant had failed to make out a case for refund.

IN the result, both these appeals are allowed and the impugned judgment and order of the District Forum are set aside. The respondent''s complaint shall stand dismissed. The respondent i.e., the original complainant in the complaint is directed to pay to the appellant and Cargo Rs. 1,000/- each by way of cost. Appeals allowed.