NEW INDIA ASSURANCE CO LTD vs Jaiswal Plastic Tubes Ltd

APPEAL against the order dated 28.12.93.

AFTER hearing the learned Counsel for the parties and after going through the order and through the appeal, we may first notice the facts. On 11.10.91 after booking a Maruti Car with the appellant the respondent deposited a sum of Rs. 1,87,274.92 and the Car was in fact delivered on 7th May, 1992 on payment of an additional amount of Rs.

,033.94 AS the price of the Maruti Car had been by then increASed. The grievance of the complainant is that the appellant could not have charged this additional amount and that interest at the rate of 12% on the deposited amount wAS due to him from 11.10.91 till 7th of May, 1992 when the delivery wAS made and that instead of adjusting the entire amount of interest due to him only a sum of Rs. 4,033.84 wAS adjusted. According to the complainant the interest due to him at the stipulated rates hAS been calculated at Rs. 12,806.52 4. Now only defence in this cASe is that the complainant despite a telegram to take the delivery failed to take the delivery in time and there - fore the complainant is entitled to interest only at the rate of 12% per annum from the date of booking till the date of intimation of delivery. The fact that the telegram wAS sent to the respondent by the appellant hAS been controverted by the respondent. The complaint is mainly bASed on the documentary evidence though the complainant hAS also appeared to support his cASe. The appellant hAS also examined one V.K. Arora, Sales manager.

NOW the Divisional Forum on consideration of the respective contentions came to the conclusion that the complainant (respondent) had to pay the enhanced price as there was no contract between the parties that the vehicle will be delivered by a particular date and the contract between the parties clearly reveals that he had to pay the price that was in vogue at the time of delivery. In this state of things, we are of the view that the Divisional Forum has rightly held that the complainant is not entitled to refund of the enhanced price. Otherwise it is well established that the price in vogue at the time of delivery is the price that is to be paid unless there is a specific contract between the parties that the vehicle will be delivered by a particular date and if by that there is no price increase, the consumer would be required to pay that price. Now the Divisional Forum declined to accept the stand of the opposite party that the interest at the rate of 12% will be allowed only from the date of deposit till the date of first intimation less by 7 days. We may note that this stand was taken by the appellant before the DF by reference to domestic rules of the Maruti Udyog Ltd. and the Divisional Forum opined that the rule was not placed before it. This situation continued till date. We also find ourselves in agreement with the observations of the DF that even if such a rule were in existence the same cannot be acted upon for the reason that it is unreasonable. We would like to add that apart from such a rule being unreasonable it is both unilateral and unconsciensnable. No party to a contract can carve out a unilateral rule like this ignoring the interests of the adversary and thereby appropriating all the benefits for itself. It will be noticed that the money paid in advance by the complainant remained with the appellant and it had been invested by it. It is for this reason that the interest is being allowed. If the appellant has earned from the deposits made by the respondents it is highly immoral to retain the same. The least that can be said is that the adjudicatory Forums cannot be a party to such a precedent. Since there is an agreement between the parties the interest at the rate of 12% will be paid on the deposit made till the date of delivery we find nothing wrong with the order passed by the DF and we confirm the same and direct that the interest to the complainant on the amount de - posited is due to him from 11.10.91 to 7.5.92.

ANOTHER aspect of the case is in respect of payment of compensation. This matter relates back to 1991 and even after 7th of May, 1992 till date the appellant has unreasonably withheld the amount due to the complainant and earned by him by way of interest. Unmoved with the constant demands the appellant is the person who has forced him to approach us. He has been now contesting this case since 9th of June, 1992 and at no stage it has dawned upon the appellant to meet the just claim of the respondent. This certainly has caused loss to the complainant and has resulted in mental distress and inconvenience. The compensation of Rs. 1,000/ -allowec in the circumstances of this case is a token one The sufferings of the complainant in fact cannot be measured in terms of money. They are enormous. We, therefore, find no reason to interfere with the order allowing a sum of Rs. 1,000/ - as compensation and instead direct that the appellant shall pay a further sum of Rs. 500/ - to the respondents as costs of this appeal. We direct that the entire amounts thus awarded by the DF and also by us shall be paid to the respondent within 2 weeks time from the date of this order failing which the complainant shall be entitled to interest at the rate of 25% on the amounts awarded by the Divisional Forum from the date of its order till the date of final realisation. We, there - fore, dismiss this appeal and direct that a certified copy of the order be given free of cost to the parties who shall collect it within a week from to day.