T.M.GEORGE vs M.O.HASAN KUTHOOS MARICAR LTD.

THIS is a complaint filed under Section 17 of the Consumer Protection Act seeking to recover Rs. 3 lakhs from the Opp. Party.

THE complainant was not employed and as a source of livelihood, he wanted to operate a Tourist Taxi. THE Opp. Party intimated him by a letter dated 27.8.81 that if he arranged payment of Rs. 2,09,610/- for private use and Rs. 2,11,600/-, for taxi purpose, delivery could be arranged of car within 4 to 6 weeks. THE complainant wrote to the Opp. Party on 31.8.91 regarding feasibility of delivering the vehicle and a reply was sent to the complainant enquiring whether the mode of payment is by cash or Demand Draft. THE Opp. Party demanded that the payment should be made immediately to arrange supply of car. Again on 5.9.91 the Opp. Party sent another communication directing the complainant to arrange the payment. Accordingly the complainant sent a Demand Draft to the Opp. Party through the State Bank of India, Pallippad Branch, Alappuzha on 28.9.91 for the amount. After the receipt of the amount the Opp. Party did not take any action to deliver the vehicle and the complainant sent a telegram to which a reply was sent by the Opp. Party stating that the anticipated consignments of diesel cars were not received. THE complainant alleged that the diesel Ambassador Car fetched good margin during those days and the agencies/dealers used to sell the same accepting margin and ignoring the priority in booking the same after making full payment of the car. THE complainant waited for a considerable long period and finding no action was taken for delivery, the complainant again wrote to the Opp. Party on 12.6.1992 stating thatif the Opp. Party was unable to perform their part of promise, the amount may be returned to him. Accordingly the Opp. Party sent a cheque bearing No. 691174 dated 16.7.92 along with letter dated 30.6.92 to the State Bank of Travancore, Pallippad Branch for Rs. 2,32,685/- drawn on the Syndicate Bank, Madras-34. On presentation the cheque was returned without encashment. THE reason shown is "Insufficient Funds". It is in those circumstances the complainant filed this O.P. seeking recovery of the amount paid together with interest and compensation. A version was filed by the Opp. Party stating that the Commission has no jurisdiction since the complainant is not a consumer. It was further averred that this is an agreement for purchase of goods and it does not fall within the purview of the Consumer Protection Act. The payment of amount made by the complainant and the issue of check by the Opp. Party by way of return of the amount together with the interest and the dishonour of the cheque were not disputed.

The complainant was examined as PW 1 and he spoke in terms of allegations contained in the complaint. There was no serious cross-examination. It was suggested that the complainant did not issue notice after dishonour of the cheque. Exbts. E1 to E 5 were marked. The following points arise for consideration: (1) Whether there is deficiency in service on the part of the complainant ? (2) Whether the complainant is entitled to any relief? (3) The order at the cost.

BROAD facts have not been disputed. The complainant sent a demand draft for Rs. 2,09,610/-to the Opp. Party on 28.9.1991. By a letter dated 5th September, 1991 the Opp. Party promised that the delivery period would be 4 to 6 weeks'' time from the date of receipt of full cost of the car. However till now the car was not delivered. Exbt. P6 is the Photo copy of the cheque issued by the opposite party which was dishonoured. It was amply proved that the complainant sent an amount of Rs. 2,09,610/- on 27.8.1991 towards the full price of the diesel Ambassador Car and though the Opp. Party promised to deliver the car within 4 to 6 weeks from the date of receipt of the full price, he did not deliver the car and he also did not pay back the amount. We therefore hold that there is deficiency in service on the part of the Opp. Party in not delivering the vehicle. It is contended in the version that there is only an agreement for sale and the complainant is not a Consumer. We are unable to agree with the contention. Complaint has been defined in Section 2(c) as any allegation in writing made by a complaint that- (i) an unfair trade practice or a restrictive trade practice has been adopted by any trader. (ii) the goods bought by him or agreed to be bought by him suffer from one or more defects. (iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect. (4 to 6 omitted).

so even an agreement to purchase or an agreement to hire service or avail of service would attract the provisions of Consumer Protection Act, 1993. In the circumstances we do not find any merit in the contention.

THE next question to be considered is what is the order to be passed. THE complainant is entitled to get refund of the amount of Rs. 2,09,610/- paid by the complainant. THE amount was paid by the complainant on 27.8.91. THE complainant is therefore entitled to interest on the amount paid by him. THE Opp. Party issued cheque for the amount together with interest, but cheque was dishonoured. In the circumstances, the complainant is entitled to interest at the rate of 12% per annum from 27.8.91 till the payment. THE complainant is also entitled to his costs which we fix at Rs. 1,000/-. THEse amounts will be paid within a period of one month from today. Ordered accordingly. _______________