MUNSHI LAL OM PRAKASH vs DELHI AUTOMOBILES LTD.

BRIEF facts of the case are that the firm M/s. Munshi Lal Om Prakash, through its partner S. Singhal booked PAL Peugeot, manufactured by opposite party No. 2 through their authorised dealer, M/s. Delhi Automobiles Ltd. opposite party No. 1, on 5.10.1995 by depositing Rs. 25,000/-. The opposite party No. 1 issued receipt regarding payment of the amount as well as Priority Card. The dealer wrote to the complainant that the booking order was likely to mature shortly and accordingly the complainant deposited the balance amount of Rs. 4,23,012.22 by cheque on 24.6.1996. The car was not delivered. The complainant awaited for more than eight weeks which was indicated as the normal delivery period. The complainant wrote a number of letters asking for refund of the amount followed by a legal notice dated 23.10.1996 and another notice dated 3.3.1997 but they failed to elicit any reply and accordingly the complainant filed the present complaint on 25.4.1997 claiming Rs. 7,13,000/-.

OPPOSITE party No. 1, in its written statement took a preliminary objection that the complainant was not covered under the definition of consumer. Booking of the car and payment of the price, averred by the complainant were admitted. With regard to the booking order, it was stated that the complainant had deposited the amount by means of a draft in favour of opposite party No. 2, which was accordingly sent to the manufacturer. It was admitted that the balance price after adjusting the aforesaid 25,000/- Rupees was received by opposite party No. 1 and it was liable to refund the amount alongwith 9% interest which is payable by the manufacturer on booking amount. It was further stated that because of the liquidity crunch, the opposite party No. 1 was not in a position to refund the amount and it was ready and willing to refund the amount alongwith 9% interest by monthly instalments of Rs. 1.00 lac each. It was denied that the complainant was entitled to claim interest @ 21 % or any other compensation. Opposite party No. 2, manufacturer also took the preliminary objection of the complainant being not a consumer. It was admitted that booking amount of Rs. 25,000/-had been received by it but the manufacturer failed to receive the price of the car said to have been deposited by the complainant with the dealer. In the absence of any order from the dealer and payment of the price, the manufacturers did not deliver the car to the dealer. It was further stated that the inter se relationship between the manufacturer and dealer were on principal to principal basis and not as principal and agent. With regard to the delivery period, it was stated that no representation was made with regard to the period of delivery and any representation made in this behalf by the dealer was not binding on the manufacturer. It was further stated that because of the labour problem during the months of August-November, 1996, there was delay in the manufacture of the car. The manufacturer expressed willingness to refund Rs. 25,000/- received from the complainant through opposite party No. 2.

The complainant filed rejoinder to both the above written statements.

MR. S. Singhal, partner of the complainant firm filed his own affidavit alongwith the copy of the relevant documents. MR. S.K. Soni, AGM, filed affidavit by way of evidence of behalf of the opposite party No. 2. No evidence was filed on behalf of opposite party No. 1. We have heard the parties and have carefully gone through the records.

THE preliminary objections raised by both the opposite parties need not discussed by us in detail. We had occasion to examine the question in depth in M/s. Shipani Automobiles Ltd. v. Tej Bahadur Jain, A-57/97 decided on 28.8.1997=II (1998) CPJ 77. For the reasons discussed therein, we hold that the complainant is covered by the definition of consumer as defined in Consumer Protection Act. There is no denying the fact that the booking amount was received by opposite party No. 2 through opposite party No. 1 and the balance price was received by opposite party No. 1. The complainant has placed on record copies of various letters written by it to both the opposite parties. In letter dated 3.4.1996, the complainant enquired as to the possible date of delivery of the car. On the letter dated 10.7.1996, an endorsement was made on behalf of opposite party No. 1 that the car would be delivered in 6/8 weeks. In the letter dated 19.9.1996, the complainant called upon the opposite parties either to deliver the car or to refund the money with interest. This request was repeated in subsequent letters dated 8.10.1996,3.1.1997,15.1.1997,7.2.1997 Part from the two Legal Notices dated 23.1.1996 and 3.3.1997. As stated, the opposite parties failed to refund the amount. The only plea raised by opposite party No. 1 is that it was unable to refund the amount because of the liquidity crunch. Evidently the amount had been received from the complainant on account of the price of the car and the opposite party No. 1 had no justification not to send the amount to the manufacturer but to divert the same for other purposes, as appears to have happened. The facts brought on record and which are not disputed disclose gross deficiency in service on the part of both the opposite parties. It is all the more serious on the part of the opposite party No. 1, who having received the price of the car way back on 24.6.1996 has failed to refund the same and is now offering repayment with interest @ 9% and that too in instalments. There is no justification for accepting either of the requests. For the foregoing reasons, the complaint is allowed, the opposite party No. 2 shall refund the amount of Rs. 25,000/- in additions to interest etc. as stated hereunder :

IN terms of the contract of booking, the amount of Rs. 25,000/- will carry 9% interest from 5.10.1995 to 19.9.1996 when the complainant called upon the opposite party to refund the amount. After the period of 19.9.1996 till date of payment the amount of Rs. 25,000/- shall carry interest @ 18% per year. Opposite party No. 2 shall also pay costs quantified as Rs. 1,000/-.

OPPOSITE party No. 1 (Dealer) shall refund the amount of Rs. 4,23,012.22 alongwith 18% interest thereon and Rs. 2,000/- as costs and compensation within 4 weeks of the receipt of a copy of this order failing which it will be open to the complainant to invoke jurisdiction of the Commission under Section 27. A copy of the order be conveyed to the parties. Complaint allowed with costs.