RAS MOTORS vs ADITYA JAIN

THE appellant M/s Ras Motors, which was NonApplicant No. 1 in the original complaint filed by the respondent Shri Aditya Jain, has preferred this appeal being aggrieved by the impugned orders directing the appellant M/s Ras Motors (authorised dealer of M/s Hero Honda Ltd., New Delhi) and the second Non-Applicant i.e., the manufacturers M/s Honda Motors Ltd., New Delhi, to supply CD-100 Hero Honda Sleek Motor Cycle to the complainant/respondent Aditya Jain against the old price quoted, and further to give compensation of Rs. 2,000/- for the unreasonable delay in the delivery of the vehicle on failing to deliver vehicle the above said Non-Applicants would refund the entire amount deposited together with interest @ 18% p.a., besides the compensation of Rs. 2,000/- above said, and also the entire costs of the complaint case and the execution together with pleaders fees (though those have not been quantified), failing which the Non-Applicants will face consequences embodies in Section 27 of the Consumers Protection Act, for bravity called COPRA..

IT is not in dispute that the appellant M/s Ras Motors are authorised dealers of M/s Hero Honda Ltd., New Delhi. On 2.8.1989 the complainant/respondent Aditya Jain booked an order for one CD-100 Motor Cycle and paid an advance of Rs. 1,500/- against the said booking (Receipt Ex. D. 1). Subsequently, vide Ex. P. 2 dt. 21.10.1989 , the complainant received priority intimation letter. Thereafter, on 8.8.1990 the complainant was informed that the booking has matured and the complainant was also asked to deposit money within thirty days to maintain priority of delivery which would be on the basis of first-cum-firstserved. The complainant on 18.8.1990 deposited a further sum of Rs. 22,960/- (Ex. P.4 Payment Receipt). On 22.10.1990 the complainant filed an application before the District Forum making the above averments and stated that at the time of booking, the dealer had "assured" the delivery of the vehicle within a duration of one year, irrespective of the priority secured on the basis of draw determined by "Pseudo Random Number Generation Technique" because they were booking only 150-CD-100 Model Hero Honda Sleek; that the complainant''s priority was allocated at 47 and the dealer could have delivered the vehicle within one year of booking as per assurance. However, after expiry of one year from the date of booking (2.8.1989), the complainant was asked vide Ex. P.3 dt. 8.8.1990 to deposit the balance amount against the costs within thirty days which he did. The complainant alleged that the Non-Applicants have violated the assurance given by them to deliver the Motor-Cycle within one year of booking, thus, they have extended the period from one year to 14 months and even after 27.9.1990 they kept on assuring that the vehicle will be delivered within a day or two, and subsequently assured that they will deliver the vehicle during Gwalior-Fair to avail 50% M.P.S.T. benefit, and in case, they fail to deliver before the end of Gwalior-Fair they will give rebate of that amount of S.T. also; that despite the fact that 15 months have elapsed (as against 12 months assured) the vehicle has not been delivered, hence the relief prayed are: that the vehicle may be delivered at the earliest, that, the vehicle be billed at the rate prevailing on the date of booking i.e., 2.8.1989, interest on amount of Rs. 24,460/- deposited with the Non-Applicants be awarded @ 18% p.a., that the dealer and the manufacturer should be penalised for giving wrong assurances and misguiding the customer; expenses and costs.

The notices were sent to the appellant dealer as also the other Non-Applicant-Manufacturer by Registered Post. The case was fixed for appearance of the parties on 22.11.1990, as per order-sheet dt. 22.10.1990. However, it was taken up an advance date i.e. 6.11.1990. It was then recorded, that as the President of the Forum would not be able to be present on 2.11.1990, hence the case is refixed on 30.11.1990. It was further recorded in the order-sheet signed by the President and two Members, that in the parties appear on 22.11.1990 their presence be noted and they be informed of the re-fixed date i.e., 30.11.1990. On 30.11.1990 the complainant appeared, but none of the Non-Applicants was present. The Forum proceeded ex-parte, and on 4.12.1990, the complainant examined himself and the impugned orders were passed by the Forum giving the directions stated as before.

THE learned counsel Shri Upadhyaya for the appellant and the respondent Shri Aditya Jain, who appeared in person argued. Record of the Forum perused. THE preliminary objection has been raised that according to terms and conditions regarding the booking, Clause 22 reads as follows: "Clause 22 In case of any dispute the same will be subject to the jurisdiction of the Courts of DELHI only". and therefore, it is contended that learned Forum had no jurisdiction to entertain the complaint/dispute. For reasons which would be given hereafter, we are inclined to remand the case. But since the preliminary objection raises an interesting point of law, it would be worthwhile to deal with it briefly. To avoid delay we are giving a finding on the objection Section 11 of COPRA deals with the jurisdiction of the District Forum. Sub-Section (1) relates to pecuniary jurisdiction, whereas sub-Section (2) deals with territorial jurisdiction. The booking of the vehicle was at Gwalior, where the "dealer" carries on business". The part payment of Rs. 1,500/- and subsequent payment of Rs. 22,960/- was made at Gwalior to the dealer (Payment Receipt ex. P.4). The vehicle was to be delivered at Gwalior. Therefore, the cause of action "wholly or in part", as per Section 11(2)(c) arose at Gwalior. The vehicle seems to have been manufactured at Delhi, but the terms and conditions excluding the jurisdiction of the Court at Gwalior, seems to be falling within the mischief of Section 23 of the Contract Act. The object of Consumer Protection Act is to provide a speedy and inexpensive remedy to a consumer in respect of a consumer dispute. The provisions are enacted for the benefit of class of persons, namely, the consumers. The consumers have been conferred a right, and in the instant case, his right to seek relief before the Forum, and enforcement of the above terms and conditions about jurisdiction at Delhi alone would destroy the said right. Clause 22, supra, would be virtually on infringements of the law under Consumer Protection Act. The enforcement of such term would defeat the object behind Section 11 of COPRA. It is open to the Court in such cases to consider the balance of convenience, interest of justice and attending circumstances when it decides the question of jurisdiction in the light of relevant clause in the Agreement between the parties, choosing one of the several Courts of Forums available to them. The balance of convenience for a consumer as in this case to fight out his dispute only in Delhi, is something which cannot be accepted in the interest of justice. Therefore, we are of the view that question of jurisdiction that Delhi Court alone as per Agreement has jurisdiction would be hit under the provisions of Section 23 as well as Section 28 of the Contract Act being against public policy and being oppressive to a consumer and would defeat specific provision of Section 11 of the Special beneficial Act i.e., COPRA. (Refer the ratio laid down in A.I.R. 1974 S.C. 1924, Murlidhar v. State of U.P.). Accordingly, we find that the objection about the jurisdiction is unsustainable.

SECONDLY, it is urged that the learned Forum in the last para has given a finding that the dealer on 8.8.1990 informed the complainant that the booking has matured and asked to deposit the balance which was also deposited, yet the vehicle was not delivered in the next two months which clearly indicates that the delivery was delayed in order to engage from the price hike which is unfair trade practice by the dealer. This finding is based only on the basis of acknowledgement-slip (Ex. D.1), priority-intimation (Ex. P.2), maturity-intimation (Ex. P.3), and payment-receipt (Ex. .P.4). It is stressed before us that the complainant did not place before the Forum, material terms and conditions of booking and this in suppression of material fact and the Learned Forum was mislead to give finding it has given. The complainant during the hearing stated that he has filled up the application-form required for booking which i.e., the original would be obviously with the dealer or manufacturer. On the other hand, Annexure A-1 shows that it is an application duly signed by Aditya Jain, and it also records that the terms and conditions printed overhead have been carefully read and he agrees to abide by them: -Term No. 2 recites: "that neither the dealer nor Hero Honda Motors Ltd., shall be responsible for the failure or the delay in the performance or its obligations hereunder by reasons of Force Majeur including but not limited to the industrial dispute, riot, drought, fire, flood, war, shortage of labour, power, fuel, material and transportation, regulation or order of any Govt, or its agencies, or any other institution". -Term No. 11 recites: "that advance together with interest shall be adjusted against the sale amount at the time of delivery", -Term No. 13 recites: "no interest will be paid in case of cancellation within 12 months of booking conversion date", -Term No. 14 relates to: "procedure of allotment", -Term No. 19 recites: "actual terms of sale, product specification, price, brand name Govt, taxes and duties etc., as prevailing at the time of delivery will be applicable". On the basis of these material terms and conditions it is urged that since they have been suppressed by the complainant, the Learned Forums was mislead in giving the findings stated before. As a corollary it is urged that the time was not the essence of the contract between the parties, and therefore, no question of drawing an inference of "unfair trade practice" arises. Similarly, it is urged that in Sept. 1990 there were internal disturbances and funds arising due to Ram Janmabhoomi, Babri Maszid, Mandal Commission, and Northern part was particularly affected where Hero Honda factory is situated. Delay in delivery is due to Force Majeur. The expression Force Majaur is not a more French origin of the Latin Vis Majour It is undoubtedly a term of wider import. Strikes, breakdown of machinery which though normally not included in Vis Majeur, ait included in Force Majeur. These expressions have been elaborately explained in Consumer Trust Society, Calcutta v. The Chairman & Managing Director, Bank of Baroda, Original Petition No. 2 of 1988, decided on 18.5.1989 by National Commission. Thus, it has to be proved that this delay was caused by the negligence of the opposite party, if time is held to be an ESSENCE of the contract.

THE dealer and manufacturer were noticed by regd. post and they could have properly raised all those contentions in their reply. Ordinarily, we could not have interfered with the findings in exparte proceedings if they are occasioned by the fault of the opposite party. But in the instant case, the complainant did not place the terms and conditions contained in the application-form for booking which forms the contract. THE Learned Forum also did not quest on about any material terms and satisfied itself on an bare and bold statement that the dealer had given oral "assurance" that the vehicle would be delivered within a year. Besides this, there is another circumstance which persuades us to take a serious infirmity in the proceedings on the basis of which Forum proceeded exparte. In order-sheet dt. 6.11.1990 it is stated that as the President would be unable to attend the sitting the case is re-fixed for 30.11.1990 (refer para 4 Supra). Those parties were initially noticed to appear on 22.11.1990, particularly one of the opposite party was from Delhi and the change of date should have been informed by regd. post A.D. THEre is no order-sheet dt. 22.11.1990. THE sitings of the Forum are part-time and it is also doubtful whether any authorised official sits in the office. THEre is no note-sheet recorded by such official marking the presence or absence of parties. THE impugned order passed is against opposite party at Delhi also and he should have been properly informed. THE exparte orders passed on the refixed date i.e., 13.11.90 without an order sheet of 22.11.1990 do not appear proper. All these circumstance have caused miscarriage of justice. 12. We further find that the impugned orders are also vulnerable so far as damages are concerned. In the application the complainant has not written a word claiming compensation or any basis therefor. THE statement is also silent. How this amount of Rs. 2,000/- as damages has been quantified remains unknown. THE National Forum has laid down time and again that the award of compensation by the Forums have to be made only on well recognised principles. It has to be quantified on a rational basis on consideration of materials produced before the Forum showing the extent of injury suffered and the manner in which and the extant to which monetary loss has been caused thereby to the complainant (refer Commercial Officer, Office of the Telecom D.M. Patna v. Bihar State Warehousing Corporation reported in [I (1991) CPJ 42 (NC)] and Bharat Tractors v. Shri Ramchandra Pande, Appeal 1 of 1989, decided by National Commission on 15.5.1989 reported in I (1991) CPJ 14 (NC). THE compensation of Rs. 2,000/- awarded, therefore, does not seem to be justified and appears to be arbitrary. 12. THE Forum decided the case on 4.12.1990. Vide letter dt. 15.12.1990 an offer was made to the complainant that as a special case the opposite parties are prepared to deliver him the vehicle at the old rate, though they would incur a loss of Rs. 920/- . We are not sure whether this offer would be accepted to the complainant who resides at Gwalior. THE dealer who has preferred this appeal also resides at Gwalior. 13. In view of the above discussion, this appeal is allowed. THE impugned orders passed by the Learned Forum, Gwalior, dt. 4.12.1990 containing the directions already mentioned in para 1 supra are got aside. THE case is remanded to the District Forum, Gwalior, with a direction that all the three parties involved be intimated by regd. post. A.D. to enable the opposite parties to file their replies to the complaint, and on replies if so filed, the Learned Forum may decide the important issue whether the time was essence of the contract, that whether the plea of Force Majeur, if raised by the opposite parties is sustainable; that since the opposite parties have made an offer to deliver the vehicle as per letter dt. 15.12.1990 the option is with the complainant to accept or reject it or to claim refund of the total amount deposited with such interest as he may be entitled under the circumstances. We are sure that as the complainant and the dealer reside at Gwalior, the decision of this case would be expedited. THE parties shall bear their own costs of this appeal. 14. This order passed in appeal shall be communicated to all the three parties by Regd. Post A.D. free of charge. Appeal allowed.