P.K.RAMESHAN vs M.O.HASSAN KUTHOOS MARICAR LTD.

THE No. 1 is the Principal in this case. THE has got an Advocate. Neither the party nor the Advocate was present in the last hearing and in this hearing. However, the party has filed a counter.

THE Opposte Party No. 2 submits that he is not concerned in any mnner with the transaction, that he should not have been arrayed as a party and prayed for costs from the complainant. The complainant even though alleged that the first Opposite Party was the agent of the second Opposite Party, has not substantiated the same. The Opposite Party No. 2 denies it and the first Opposite Party has not made any statement in this regard. From the correspon dence between the parties it is found that the second Opposite Party has never been in the picture, has not given any undertaking nor stood as surety in any transaction. Therefore, the complainant ought not have arrayed the Opposite Party No. 2 as a party in this case and therefore, the learned Counsel for the second Opposite Party is right in claiming costs which we shall fix later.

As far as the facts of the complaint are concerned, they are summarily as follows:- The complainant accepted a proforma invoice for an Ambassador Car at Rs. 1,79,000/- and availed a loan from the Federal Bank Limited, Kalakam and placed order with a demand draft for the amount of Rs. 1,79,000/- on 16.11.90 for an Ambassador Diesel Car. Even though the Opposite Party No.1 earlier stated that the supply will be made within a period of six to eight weeks, it prayed for extention of time of six to eight weeks again. The complainant finding that the Opposite Party No. 1 was resorting to dilatory tactics cancelled the booking by letter dated 21.4.91. The financing bank also issued a letter requesting the first Opposite Party to refund the money in view of the cancellation of the order. The Opposite Party No.1 issued a letter on 4.6.91 stating that they were prepared to refund the money, but they failed to do so. Aggrieved by the course of conduct of the Opposite Party No. 1, the complainant approached the Commission with the following prayers:- (a) directing the opposite parties jointly and severally to pay a sum of Rs. 5,51,203/- (Rupees five lakhs fifty one thousand two hundred and three only) to the complainant; and (b) directing the opposite parties to pay the cost of this proceeding;

THE Opposite Party No.1 in his counter contended that the complainant was not a consumer in as much as he has not purchased a car, and also for the reason that the intended purchase was for commercial purpose. His further contention was that the complaint was barred by limitation. However, the Opposite Party stated that he was ready to refund the amount remitted by the complainant with interest at 12% p.a. THEre is nothing to show that so far the amount has been remitted either to the complainant or to the Federal Bank which has directly approached the Opposite Party to that effect. We shall now deal with the objections raised by the Opposite Party No. 1. It is true that the complainant did not effectively obtain a car from the Opposite Party No. 1. But he has placed an order for the same and paid the amount thereof. By these facts he has become a consumer within the meaning of the Consumer Protection Act. Till all the consequences arising out of these acts are settled he remains a consumer. For the reason that he cancelled the order he has not ceased to be a consumer, because the Opposite Party has not yet refunded the money paid in advance for the car, till that payment is not made the complainant remains a consumer and, therefore, entitled to approach this Commission. Therefore, we cannot accept the contention raised by the Opposite Party that the Complainant is not a consumer.

THE second contention is that the purchase of the car is for commercial purpose, since it is intended to be used as a taxi. It is true that the complainant has stated that he intends to use the car as a taxi, but the same time he has stated that it was under the self-employment scheme; he further stated that he was going to drive the car. As per the Explanation added to Section 2 (1) (d) (ii), Commercial Purpose does not include use of the consumer goods by any person exclusively for the purpose of earning his livelihood by means of self-employment. THE case of the complainant is fully covered by this explanation and therefore, the purchase is not for commercial purpose and the complainant is a consumer. The third contention is that the claim is hit by limitation. It is true that as per Section 24-A the normal period of limitation is one year. The same Section contains a provision for condonation of delay by the Commission. Limitation is based on a presumption of payment; when it is admitted that the amount has not been paid there is no room for limitation. In this case the Opposite Party admits that the amount has not been paid. Further, the claim is one for refund of money and for that purpose the complainant has unequivocally stated that he has been making repeated demands till the year 1993 with the sincere hope that he will be repaid, since the Opposite Party has accepted to repay. These allegations are not contradicted by the Opposite Party No. 1. Under the circumstances, it cannot be said that the claim has become stale or barred by limitation. Even admitting there is any limitation, we condone it for the reasons expounded above. As far as the relief to be afforded to the Complainant is concerned, once the complainant has cancelled his order he is certainly entitled to the refund of the money. He is also entitled to the interest from the date of cancelation upto the date of full payment. In this connection it is worth referring to the letter dated 23.1.91 issued by the Federal Bank of India Limited which runs as follows:- "Mr. P.K. Rameshan has requested for cancellation of the booking due to the long delay in giving delivery of the vehicle and its cost escalation since the date of payment. We, therefore, request you to cancel the booking and refund the amount immediately. In this connection, please note that the remittance of Rs. 1,79,000/- was made to you on 16.11.90 under debit to the loan account of Mr. P.K. Rameshan, for which he is chargeable with interest @ 18.5% p.a. plus penal interest @ 2% Please arrange to make good this amount also. Kindly treat the matter as very urgent. Please also acknowledge receipt of this letter by returning the duplicate of this letter duly marking your acknowledgment."

The reply letter by the Opposite Party No.l is dated 4th June, 1991. It reads as follows:- "This has reference to your personal visit of date regarding cancellation of Diesel Ambassador Car booked by you on 22-111990. In this context we have to inform you that since our Managing Director and Executive Director are not in station we were not able to return the amount to you immediately. We will be returning the amount directly to your bankers under intimation to you no sooner our Managing Director or Executive Director arrives here by the 3rd week of June. In the meantime we request you to kindly bear delay and excuse us fop-the inconveniences caused to you in this regard."

The letter dated 23.1.91 of the Bank was followed by another letter from the Bank dated 20.8.91 in which the Bank has expressed its surprise that the amount was not yet refunded and has brought to the notice of the Opposite Party No. 1 that the complainant is liable to pay interest as applicable on non-priority advances viz. 22% p.a. with effect from 1.7.91 plus a penal interst of 2.5% p.a. We do not find any reason for the delay in payment by the Opposite Party. Even though in the counter the Opposite Party No. 1 has stated that they were ready to refund the amount with interest at 12% they have not done so either by depositing the amount to the Court or by paying the amount directly to the Federal Bank which paid the amount directly to them and the amount remains still unpaid. They have not pleaded in any manner that they are not liable to pay interest at the rate charged by the Bank. On the other side, the Complainant who wanted to purchase a car for selfemployment becomes liable for interest from the date of loan, and is getting ruined. It is just and normal that the entire interest levied by the Bank is repaid by the Opposite Party No.1.

IN the result, the complaint is allowed as follows:- (a) The First Opposite Party is directed to refund the amount of Rs. 1,79,900/- paid towards the delivery of an Ambassador Diesel Car with interest at the rate of 18.5% p.a. plus penal interest at 2% p.a. from 21.4.91 to30.6.91 and 22% p.a. plus penal interest at 2.5.% p.a. from 1.7.91 till the date of full payment. (b) the complainant is directed to pay the second Opposite Party Rs. 500/- by way of costs and (c) the first Opposite Party is directed to pay costs of Rs. 500/- to the complainant.

Complaint allowed with costs.