SUNDARAM MOTORS vs K. KULANDAIVELU

THESE two appeals arise out of the order of the District Consumer Disputes Redressal Forum, Madras, dated 9.9.93 in O.P. No. 91/93. The Opposite Party No. 2 is the Appellant in A.P. No. 669/93 and the Opposite Party No. 1 is the Appellant in A.P. No. 41/94.

THE Complainant has booked a Car with the Second Opposite Party for the supply of Premier 118 NE Car on 12.6.85 by payment of initial deposit of Rs. 11,000/-. THE Car was not delivered for nearly 7 years and consequently, he directed the Opposite Party to cancel the order on 3.8.92. This complaint was filed by the Complainant for deficiency of service. THE Opposite Parties contested the claim and during the pendency of the complaint, the amount was refunded by Demand Draft on 21.1.93. The District Forum held that there was deficiency of service and ordered the payment of interest on the sum of Rs. 11000/- at 24% p.a., compensation in the sum of Rs. 50,000/- and costs of Rs. 300/-. It is this order that is challenged in these appeals by the Opposite Parties.

The Appellants have raised, a preliminary objection to the maintainability of the ground that the Complainant is not a consumer. They relied upon the decision of the National Commission in "M/s. Maruti Udyog Limited v. Mrs. Bhuvana Viswanathan & Others" II (1993) CPJ 172 (NC), which went up an appeal from the judgment of this Commission in O.P. No. 157/ 91. There in that case M/s. Annamalai Bus Transport Limited has received an initial deposit of Rs. 25,000/- from the Complainant in December, 1989 for the supply of Maruti 1000 C.C. Car. There was no written commitment regarding the date of delivery. The Car was not delivered even after the date of payment. This Commission after considering the contentions of the parties came to the conclusion that the delivery of the Car was a service to be rendered by the Dealer and the delay in delivery constituted deficiency of service and an unfair trade practice within the meaning of Section 35A(1)(ii) of the M.R.T.P. Act. The National Commission rejected the conclusion of this Forum and has observed as follows : "We have no doubt that this is a case of sale of goods simpliciter and it does not involve rendering of any service for consideration, there was no hiring of service. In the result, both the appeals succeed."

IN the light of the aforesaid decision of the National Commission, which is binding on us, we have necessarily to hold that this complaint alleging deficiency of service on the part of the Opposite Parties for the delay in delivery of the Car for over 7 years does not fall within the ambit of the Consumer Protection Act. IN the words of the National Commission this is a sale of goods simpliciter and not service within the meaning of Section 2(1)(o) of the Consumer Protection Act. The delay in delivery of this Commission for over 7 years is certainly actionable, but the remedy of the Complainant is to lodge a complaint in the Competent Court of Civil Jurisdiction. The Complainant is not a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act in view of the conclusion of the National Commission that there was no service in the delay in delivery of the Car. In the result, both these appeals are allowed and the complaint is dismissed. No costs. Appeals allowed.