PREM CABLES vs DELHI AUTOMOBILES LTD.

THE complainant, M/s. Prem Cables, through its sole proprietor Shri Prem Prakash, has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (''the Act''), averring therein that Delhi Automobiles Limited (for short opposite party No. 1), is an authorised agent of PAL Peugeot Limited (for short opposite party No. 2), and is dealing with supply and sale of cars, manufactured by opposite party No. 2. It is stated that the complainant had booked a car Make-PAL PEUGEOT 309 in May, 1996 with opposite party No. 1 and had deposited booking amount of Rs. 25,000/- with opposite party No. 1. It is stated that thereafter the complainant further paid a sum of Rs. 2,000/- to opposite party No. 2 by means of a demand draft dated 22.6.1996 payable at Punjab National Bank, Bombay.

IT is further stated that the complainant subsequently applied for loan facility for the purpose of purchasing the car from opposite party No. 1. IT is stated that on the above request of the complainant, Countrywide Consumer Financial Service Limited (hereinafter referred to as ''the Financier''), sanctioned a loan of Rs. 3,80,000/- after the complainant had executed a Hire Purchase Agreement dated 8.6.1996 with the Financier. IT is stated that the above amount of loan sanctioned by the Financier was to be repaid by the complainant to the Financier in 36 equal monthly instalments together with interest and a sum of Rs. 200/- with every instalment. It is stated that the loan amount of Rs. 3,80,000/-, sanctioned by the Financier was disbursed on 10.6.1996 vide a Cheque No. 145183, dated 10.6.1996, drawn by the Financier on Indian Overseas Bank, R.K. Puram, New Delhi in favour of opposite party No. 1. It is stated that opposite party No. 1 after duly receiving the said amount of Rs. 3,80,000/- issued a receipt, bearing No. 007667, dated 14.6.1996 in favour of the complainant. It is stated that the complainant by way of security for the repayment of the amount of loan deposited a sum of Rs. 95,000/- with the Financier on 10.6.1996. It is stated that at the time of booking the car and also at the time of depositing the above said amount of Rs. 3,80,000/-, opposite party No. 1 had assured the complainant that the car, booked by the complainant, shall be delivered to the complainant very shortly. It is stated that when the car, booked by the complainant, was not delivered, the complainant wrote a registered letter dated 17.10.1996 calling upon opposite party No. 1 to inform the complainant about the position of the delivery of the said vehicle. The above said letter was followed by a reminder dated 2.1.1997 but no reply was received from the end of opposite party No. 1 to the abovesaid communications. It is stated that in terms of the agreement executed between the complainant and the Financier, the complainant continued to repay the amount of loan in monthly instalments on due dates. It is stated that on coming to know of an advertisement, the complainant wrote a letter dated 3.1.1997 to opposite party No. 2 and in reply opposite party No. 2 informed the complainant that there was no booking of the car in question in the name of the complainant. It is stated that on learning the above fact, the complainant approached opposite party No. 1 and opposite party No. 2 requesting them to either deliver the vehicle in question or to return the amount paid by the complainant to them but every time the complainant was assured that the said vehicle would be delivered at the earliest.

It is stated that after several reminders and repeated requests, opposite party No. 1 finally agreed to return the amount of Rs. 3,80,000/- and issued a cheque for the said amount to the complainant vide Cheque No. 998443, dated 10.3.1997, drawn on ANZ Grindlays Bank Limited, Connaught Place, New Delhi towards part payment of the amount paid by the complainant to opposite party No. 1. It is stated that opposite party No. 1 while issuing the cheque in question had assured the complainant that the complainant would be paid interest, equivalent to the interest paid by the complainant to the Financier on the loan amount. It is stated that the above mentioned cheque issued by opposite party No. 1, when presented was dishonoured. It is stated that after the receipt of dishonoured cheque from his Banker, the complainant got issued a legal notice under Section 138 of the Negotiable Instruments Act to opposite party No. 1. It is stated that the complainant also wrote a letter dated 2.7.1997 to opposite party No. 2 asking opposite party No. 2 to take strong action against opposite party No. 1 for the breach of agreement. It is stated that opposite party Nos. 1 and 2 have failed to deliver the car or to return the amount deposited by the complainant with them with interest. Alleging deficiency in service and unfair trade practice on the part of the opposite parties, it is prayed by the complainant in the present complaint- (i) that the opposite parties be directed to pay to the complainant a sum of Rs. 3,80,000/- as principal amount and a further sum of Rs. 90,013/- on account of interest from 21.6.1996 to 21.1.1998 and a sum of Rs. 5,600/- as overdue interest on the arrears of instalments, total amounting to Rs. 4,75,613/-; (ii) that the opposite parties be directed to pay to the complainant pendente lite and future interest and overdue interest accruing and chargeable as per the terms and conditions of the finance agreement entered into with the Financier; (iii) that the opposite parties be directed to pay to the complainant a sum of Rs. 27,000/- as purchase price of allotment letter and transfer charges paid along with interest of Rs. 11,281/- at the rate of 25 percent per annum from 30.5.1996 till the date of filing the present complaint and pendente lite and future interest at the rate of 25 percent per annum till the date of realization; (iv) that the opposite parties be directed to pay to the complainant a sum of Rs. 50,000/- for damages suffered by the complainant on account of mental agony and harassment; and (v) that the opposite parties be directed to pay to the complainant the costs of the present proceedings.

A notice of the complaint filed by the complainant was issued to the opposite parties by registered post. The registered envelop, containing the notice and a copy of the complaint, despatched by the Registry of this Commission, has not been received back undelivered and, therefore, the service of the notice on the opposite parties has been presumed by this Commission in terms of provisions contained in Order V Rule 19A of the Code of Civil Procedure, 1908 vide order dated 28.9.1998. Thereafter, this Commission, as a measure of abundant caution, directed on 30.9.1999 that a default notice be issued to the opposite parties. On 10.3.2000, Mr. Ajay Kumar, appeared as proxy for the Counsel for the opposite parties and thereafter on 13.11.2000 one Mr. Ashwani Kumar entered appearance for opposite parties. As the opposite parties, neither cared to appear thereafter nor filed any written version, the opposite parties were directed to be proceeded ex parte in the present proceedings by this Commission vide order dated 2.7.2001. The complainant, in support of its case, has adduced evidence by means of affidavit and has filed the affidavit of Shri Prem Prakash, proprietor of the complainant.

WE have heard the learned Counsel for the complainant at length and have also carefully gone through the documents/material on record including the contents of the affidavit dated 29.1.2002, filed by Shri Prem Prakash, proprietor of the complainant in support of the case of the complainant. On the basis of material on record, more particularly, the facts disclosed by Shri Prem Prakash in his affidavit dated 29.1.2002 and the accompanying documents, it is apparent that the complainant had booked a car in May, 1996 Make-Pal Peugeot 309 and had paid booking amount of Rs. 25,000/- to opposite party No. 1 and a sum of Rs. 2,000/- as transfer charges to opposite party No. 2. It is also not in dispute that the complainant applied for loan facility with M/s. Countrywide Consumer Financial Service Limited somewhere in the month of May, 1996 for the purchase of the abovesaid car from opposite party No. 1. It is also not in dispute that the Financier M/s. Countrywide Consumer Financial Service Limited sanctioned a loan of Rs. 3,80,000/- which was to be repaid in 36 equal monthly instalments together with interest as per the terms and conditions contained in the Hire Purchase Agreement dated 8.6.1996 executed between the complainant and the Financier. It is also not in dispute that the loan amount of Rs. 3,80,000/- was released by the Financier on 10.6.1996 vide Cheque No. 145183, dated 10.6.1996, drawn on Indian Overseas Bank, R.K. Puram, New Delhi in favour of opposite party No. 1. It is also not in dispute that opposite party No. 1 after receiving the above amount of Rs. 3,80,000/- issued a receipt bearing No. 007667, dated 14.6.1996 to the complainant. It is also not in dispute that the complainant had deposited a sum of Rs. 95,000/- with the Financier as security for the repayment of loan on 10.6.1996. On the basis of material on record, it is also not in dispute that at the time of booking and also at the time of depositing the abovesaid amount of Rs. 3,80,000/-, the complainant was assured that the car would be delivered to the complainant shortly. It is also not in dispute that neither the car in question has been delivered to the complainant so far either by opposite party No. 1 or by opposite party No. 2 nor the amount deposited by the complainant has been returned to him and the cheque issued by opposite party No. 1 dated 10.3.1997 for Rs. 3,80,000/- drawn on ANZ Grindlays Bank Limited, Connaught Place, New Delhi towards part payment has also been dishonoured by the Banker on presentation. The above facts, as disclosed in affidavit dated 29.1.2002 by Shri Prem Prakash, sole proprietor of the complainant, have gone on record unrebutted and unchallenged which we see no reason to disbelieve. In view of the position explained above, we have no hesitation in holding that opposite party Nos. 1 and 2, in the given facts, are guilty of deficiency in service and it is directed that an amount of Rs. 27,000/- deposited earlier and the amount of Rs. 3,80,000/- paid subsequently by the complainant through the Financier on 10.6.1996 (total amount Rs. 4,07,000/-) be paid by the opposite parties jointly and severally to the complainant together with interest at the rate of 12 percent per annum from the date of deposit till actual payment. Since we have granted interest to the complainant on the amount deposited by him with the opposite parties, we are not awarding any compensation. The opposite parties shall also jointly and severally pay to the complainant a further sum of Rs. 5,000/- towards the cost of the present proceedings. It is further directed that the amount in terms of the above order be paid by the opposite parties jointly and severally to the complainant within 45 days from the date of receipt of this order, failing which, the same shall carry interest at the rate of 15 percent per annum from the date of order till actual payment. Complaint allowed.