PREMIER AUTOMOBILES LTD. vs K.S.PILLAI

THESE appeals have arisen out of the order dated 93.1993 of the State Commission, Maharashtra at Bombay allowing the complaint. M/s. Premier Automobiles Ltd., appellant in F.A. No. 132/93 was Opposite Party No. 3 before the State Commission. M/s. Guru Gobind Motors, appellant in F.A. No. 260/93 was the Opposite Party No.1 before the State Commission. By the impugned order the State Commission directed the Opposite Party No.1 to deliver to Complainant a new motor car as shown in advertisement Exhibit 1 for the price of Rs. 1,19,964/- already paid to Opposite Party No.1, that the Opposite Part No. 1 shall pay the interest accrued on Complainant''s loan of Rs. 1,06,284/-from the date of its grant, that the Opposite Party No.1 shall refund to Complainant Rs. 11,616/- towards excess recovery, that Opposite Party No. 2 (Citi Bank) shall refund to Complainant Rs. 4,264/-, that Opposite Party No. 3 shall make the motor car in question available to be delivered to the complainant through his authorised dealer in Bombay and that all the Opposite Parties shall pay to the Complainant Rs. 10,000/- towards compensation jointly and severally within 30 days from the receipt of the order failing which the amount shall carry interest at the rate of 18% per annum till realisation.

THE facts relevant for the purpose of the disposal of the two appeals lie in a narrow compass and may be noticed. The Complainant had booked a Premier Padmini Economy Model Car with M/s. Guru Gobind Motors (Opposite Party No.1) by paying Rs. 25,306/-on 1.1.1991 with the ex-showroom price of car 325/- and insurance cover premium of Rs. 3,993/- under their scheme advertised in the Times of India issue of 20th December, 1990. That included various easy finance options available to make full payment. The Complainant opted for Citi Bank loan (Opposite Party No. 2) and executed the requisite documents. Under these finance scheme, City Bank had agreed to advance a sum of Rs. 1,06,284/-which included Rs. 4,284/- towards loan originating costs. The loan together with interest thereon was to be repaid in 60 equated monthly instalment (EMI) of Rs. 2,818/-. The Citi Bank disbursed the loan of Rs. 1,02,000/-after adjusting Rs. 4,284/- towards loan originating cost and sent the cheque to Opposite Party No.1 who issued the receipt on 8.1.1991. It is the case of the Opposite Party No.1 that the Complainant was allotted by Opposite Party No.1 a Premier Padmini Economy Car which was rejected by the Complainant on 22.1.1991. Subsequently other vehicles were offered by Opposite Party No.1 to the Complainant who selected one of the cars which was registered in his name on 15.2.1991. Opposite Party No.1 by its letter dated 23rd February, 1991 informed the Complainant that the car would be ready for delivery on 25.2.1991 as requested by him. The vehilce was in fact offered but the Complainant refused to take the delivery.

THE Complainant asserted in his complaint that he went on 25.2.1991, as per programme of delivery of vehicle, there was colour difference in painting on rear side on left side and a dent in right side which on enquiry they told it was a minor accident occurred within the garrage while taking out predelivery inspection (PDI) and the same was attended to. The Complainant refused to take the delivery, of this car and has alleged malpractices of the Opposite Parties in the complaint as well as harassment, mental torture, physical hardship and deprivation of the vehicle. The State Commission has granted the reliefs noticed earlier.

THE appeal of M/s. Premier Automobiles Ltd. is entitled to succeed. The State Commission has not at all adverted to or considered the affidavit in reply filed on behalf of the Opposite Party No. 3. In the affidavit of Shri S.P. Dalvis working as Vice President Administration of Premier Automobiles Ltd., it was deposed therein that the relationship between Opposite Party No. 3 and its dealer is on principal to principal basis and | the dealer collects the payments from the customers and places a consolidated order along with a demand draft/cheque to the Opposite Party No. 3 and the cars are delivered to the dealer subject to availability of colour/model preference. The cars are supplied to the dealer in j accordance with the seniority of payments! received by the Opposite Party No. 3. The Opposite Party No. 3 does not know as to the ultimate receiver of the car and against which payment which car has been delivered. It is further deposed that the dealers are authorised to sell the cars at the price ruling at the time of delivery and this fact is clearly stated in the proforma invoice which clearly states that the prices are subject to change without notice and the price will be charged as ruling at time of; delivery. The Complainant has neither alleged nor established that the delivery was intentionally delayed in anticipation of the increase in price. It is not alleged by the Complainant that there is any manufacturing defect in the car. No service has been rendered to the Complainant by Opposite Party No. 3. The State Commission, in view of this position, had no factual foundation to come to the conclusion that Opposite Party No. 3 tried to foist on the Complainant an allegedly damaged car or recovered any excess price or there was any deficiency in service on the part of Opposite Part) No. 3. It is an admitted fact that Opposite Party No.1 issued advertisement in question, soliciting the prospective purchasers of the cars manufactured by Opposite Party No. 3. The Complainant in response approached Opposite Party No.1 who gave a loan awareness letter (Exhibit-B) which lays down all the charges payable in addition to the price of the car ex-showroom of Rs. 1,19,964/-. It is apposite to reproduce this letter in extenso: "Dear Customer, This is to provide you with information regarding the finance: Cost of Cars : Rs. 1,19,964/-. Amount financed : Rs. 1,02,000/- 85% loan L.O.C. Rs. 4,284/- For every Rs. 10,000/-Rs. 420 will be the LOC. Hence loan amount will be : Rs. 1,06,284/- E.M.I. : Rs. 2,818/- Loan Processing Charges : Rs. 2,475/- Customer''s Name : DR. KANAGASABA-PATHY SUNDARAM PILLAI"

CITY Bank finance is 85%. Thus a sum of Rs. 17,964/- towards 15% had to be paid towards the price besides Rs. 3,992/- towards insurance premium, Rs. 825/- registration charges for R.T.O., Rs. 50/- hypothecation charges to R.T.O. and Rs. 2,475/- towards loan processing charges. This is the break up of the figure of Rs. 25,306/- which is the initial payment made by the complainant on 1.1.1991. The Complainant signed the loan awareness letter and he made the exact payment of Rs. 25,306/- on the strength of which it is reasonable to infer that the Complainant was fully aware of the total cost that had to be brone by him on the purchase of the

THE Complainant has alleged that Op-arty No. 1 recommended City Bank loan only and was asked to sign printed unattested agreements, specimen signatures forms and certain other forms in blank as pre-requisite for Citi Bank loan. The Complainant filed along with the complaint photo copies of those loan documents (Exhibit 3). It is not the normal course of human conduct that persons would sign documents in blank. A perusal of the photocopies reveal that the blanks are duly filled in with the initials of the Complainant. The amount which the Citi Bank has agreed to lend to the Complainant, is recorded in all these documents as Rs. 1,06,284/-. There is positive evidence in the affidavit of Shri Sachin Jog, Assistant Manager of Opposite Party No. 2 that the documents are completed in all respects, checking is made whether the applicant satisfies the criteria laid down by the Bank and then the agreements are executed by the Bank. The charge made by the Complainant is denied in the affidavit. The Complainant admits in his complaint itself, that he got a letter from City Bank (Annexure Exhibit 4) stating that they have disbursed the loan of Rs. 1,06,284/- but when he contacted Opposite Party No. 1 he was told that Opposite Party No. 1 got Rs. 1,02,000/-only and Rs. 4,284/-is debited by Citi Bank as loan originating cost. Opposite Party No. 1 issued the receipt (Exhibit 5) on 8.1.1991 for Rs. 1,02,000/- received by them. The Complainant has not placed on record any written demand made against Citi Bank as to why and how did they charge Rs. 4,284/- as loan originating cost. The affidavit of Shri Yogesh that the Complainant was furnished by Opposite Party No. 2 letters and explanation with regard to the loan originating cost and had thereafter executed a letter agreeing to pay such loan originating cost and by way of instalments along with the loan for the purchase of car. The State Commission seriously erred in coming to the conclusion that the Bank was deficient in service inasmuch as Rs. 4,284/-was not paid to Opposite Party No. 1. The sum of Rs. 4,284/-was loan originating cost agreed to be paid by the Complainant in writing to the Bank for processing of the loan and its payment and repayment by instalments. As already noticed the Complainant paid a sum of Rs. 25,306/- on 1.1.1991 arid the amount of Rs. 1,02,000/- was paid by Opposite Party No. 2 to Opposite Party No. 1 towards the price of the car registration and hypothecation charges, insurance premium and loan processing charges. The ex-showroom price remained the same as Rs. 1,19,964/-. The price of the car did not escalate during the relevant period. The finding of the State Commission that a sum of Rs. 11,616/- was charged in excess of the agreed price is ill-founded. It bears repetition that it represents: 1. R.T.O. charges : Rs. 825/- 2. Hypothecation charges (RTO) : Rs. 50/- 3. Insurance premium : Rs. 3,992/- 4. Loan Originating Cost : Rs. 4,284/- 5. Loan processing charges : Rs. 2,475/- Rs. 11,626/-

THE sum of Rs. 825/-plus Rs. 50/-plus Rs. 3,992/- (actual amount paid Rs. 4,063/-) has been paid by Opposite Party No. 1 for and on behalf of the Complainant who is bound to pay these for which purpose the amount was deposited by him on 1.1.1991 with the Opposite Party No. 1. We hold that the loan originating cost paid to the Opposite Party No. 2 and the loan processing charges paid to Opposite Party No. 1 have been levied with the agreement of the Complainant who is bound by the stipulations and cannot allege deficiency in service in this regard.

THE finding of the State Commission that there is deficiency in service on the part of the Opposite Party Nos. 1 and 3 inasmuch as they tried to foist on the Complainant the damaged car is contrary to material on record and is perverse. The earliest letter annexed by the Complainant with his complaint is 20.2.1991 (Exhibit 10). It makes reference: "1. Advertisement by M/s. Guru Gobind Motors. 2. Receipt No. 1414 of 1.1.91. 3. Receipt No. 2276 of 1.1.91 4. Citi Bank Loan under No. 86-030-18033. 5. Premier Padmini Car having Chasis No. 555506 and Engine No. 130810. 6. Insurance Certificate No. 121300/341/ 03730/31/91/0424. 7. Car Registration No. MH-01-A-9084."

The photocopy of the certificate of registration is annexed with counter of Opposite Party No. l. It is manifest that the Complainant had already taken the inspection of the vehicle and wanted delivery on 25.2.1991. Opposite Party No. l had written on 23rd February, 1991 in response to the said letter dated 20th February, 1991 that the vehicle would ready for delivery on 25.2.1991. It also gives 1 details of the payment received and the debit the account of the Complainant as follows: "For your booking we have received f lowing amounts: 1. Receipt No. 1414 dated 1.1.91 Rs. 16,500 2. Receipt No. 2276 dated 1.1.91 Rs. 8,806 3. Receipt No. 2311 dated 8.1.91 Rs.1,02,000 Rs. 1,27,306

We have debited your account as follows: 1. Towards the cost of the car Rs. 1,19,964 2. R.T.O. Registration, etc. Rs. 875, 3. Loan Processing charges Rs. 2,475, 4. Cheque No. 736428 issued to Oriental Insurance Company Rs. 4,063/ Total Rs. 1,27,375/ The letter of 25th February, 1991 reads a follows: " As per your reply I came to take deliver) of the vehicle on 25.2.91 at 4.30 p.m whereas you have spoiled the painting of the vehicle under the guise of repairing the accidental dents and scratches caused by you and your people deliberately, after we had selected the car. You have asked me to wait so that you will make my loss good by giving a new vehicle. ease note I will make additional claim for further delay and damages."

IT is pertinent to note that this letter has been received under protest by Opposite Party No.1. The Complainant followed it by registered letter dated 28th February, 1991 to Opposite Party No.1. Again in this letter it is stated, inter alia, that "apart from this you have made damage to the vehicle and repair the same with poor workmanship causing spoilt paint" for which he claimed Rs. 35,000/- as damages to the vehicle. Similar allegation is repeated in the letter dated 2.3.1991 to Opposite Party No. 3 Opposite Party No. 1 sent a telegram on 6.3.1991 (Exhibit-16) calling upon the Complainant to take delivery of the car. The Complainant acknowledged the telegram in his letter dated 7.3.1991. Opposite Party No. 1 finally wrote a letter dated 25th March, 1991 stating that the reasons for not taking delivery ''are unfounded as also denying that the car met with any alleged accident or any repair was done. There are other letters dated 5.4.91, 12.4.91 and 25.4.1991 from the Complainant on record but these only make a vague averment of damage to the vehicle. The complaint dated 25.4.91 filed before the State Commission contains the averment that "there was a colour difference in painting on rear door on the left side and a dent in right side, on enquiry they told that it was a minor accident occurred within the garrage while taking out for predelivery inspection and the same was attended to". We have referred to the documents on the record only with a view to show the extent of allegations made by the Complainant about the alleged damage to the car.

AN inspection was carried out during the pendency of the complaint before the State Commission, by M/s. Bachia and Co., Automobile Engineers, Surveryors and Valuers, Bombay. Notice of the inspection by the said Surveyor was sent to the Complainant who chose not to be present for this inspection. The said Surveyors, gave on 7.10.1991 the report which was filed with the State Commission along with the affidavit of Opposite Party No. 1. It certifies that there is no defect or damage to the car or to the condition of body or of the colour. It is manifest that the condition of the car was new and not damaged at all. Great emphasis is laid by the Complainant on the letter dated 27.2.1991 addressed by Opposite Party Nos. 1 to No. 3, This letter reads as follows: "Sub: Booking for P.P. Economy Car of Dr. K.S.Pillai. Dear Sir, This is to confirm that we have received Rs. 1,19,964 from Dr. K.S.Pillai being the prevailing Ex-Showroom price of P.P. Economy Car towards the booking of the same. This letter is issued as per the request of Dr. K.S.Pillai".

THIS letter nowhere contains any admission of Opposite Party No.1 that the car registered in the name of the Complainant was damaged or Opposite Party No.1 requested Opposite Party No. 3 to deliver a new vehicle to the Complainant. Once the car has been registered in the name of the Complainant on 15th February, 1991, it is highly improbable that the Opposite Party No.1 or Opposite Party No. 3 would deliver another car in lieu as is being contended by the Complainant before this Commission. The contents of the letter do not make any such commitment or any recommendation of Opposite Party No.1 to Opposite Party No. 3. The Complainant is himself to blame in not taking the delivery of the car on 25th February, 1991 when it was duly offered to him, on the alleged ground that the car was damaged which is not at all established on the record. There is no defect or damage to the car or to the condition of body or of the colour as is reported by the Surveyors-M/s. Bachia and Co. We see no reason not to rely on that report.

IN the result both the appeals are allowed and the impugned order of the State Commission dated 9.3.1993 is set aside. The complaint is dismissed leaving the parties to bear their own costs throughout. The dismissal of the complaint will, however, not stand in the way of the Complainant to take the delivery of the car registered in his name, subject to the claims of Opposite Party No.1, if any.