T.V. SUNDRAM IYENGAR And SONS LTD. vs MALATHI MADHAVAN

THE second opposite party in O.P. No. 65/1998 on the file of the Consumer Disputes Redressal Forum, Kasaragod is the appellant. THE complainant approached the District Forum with a grievance that on payment of Rs. 25,000/- he booked a Peugeot 309 GL Petrol car with the opposite parties in October, 1995 as per Ext. P4 letter of the opposite party dated 6.1.1997 that the car would be likely to be delivered by the second fortnight of February, 1997. She paid the full price of the car, but the car was delivered only on 29.7.1997. THErefore, she claimed that she is entitled to interest for the said amount from 27.2.1997 to 26.7.1997. She has also a grievance that on account of the said delay she had to pay increased price of Rs. 10,800/-. She claimed that she availed a loan of Rs. 2,00,000/- from Canara Bank, Kasaragod agreeing to pay interest at 14% for three months and thereafter 19.75% for two months. THE liability to pay enhanced interest Rs. 1,916.67 also was on account of the said delay in delivery of the car consequently she wanted the aforesaid amounts to be reimbursed for which she prayed for a direction to the opposite parties. In the version by the second opposite party it claimed that there was no undertaking or promise that the vehicle would be delivered in the month of February. THE complainant delayed in giving her choice of colour inspite of request made by the opposite parties and the complainant is liable to pay the price of the car as on the date of delivery. In such circumstance there was no deficiency of service, consequently they wanted dismissal of the complaint. Before the District Forum on behalf of the complainant P.W. 1 was examined and D.W. 1 was examined on the side of the opposite party. Complainant produced Exts. P1 to P6. On a consideration of the said material District Forum found deficiency of service and, therefore, made a direction to the opposite party to pay interest on the amount paid by the complainant at 15% for the period from 27.2.1997 to 26.7.1997, to return the increased price Rs. 10,800/- along with Rs. 1,916.67 as differential interest which she had to pay to the Canara Bank, and to pay Rs. 2,000/- as compensation and costs Rs. 300/-. It is the said direction that is under challenge at the hands of the appellant.

LEARNED Counsel for the appellant maintained that so long as there is no case or evidence on the side of the complainant to the effect that the opposite parties has overlooked priority by allotting car to another who was junior to the complainant in the matter of booking the complainant was not eligible for the return of the difference in the price, the complainant is not entitled to payment of any amount towards interest as there was no agreement for payment of interest on the amount so paid. LEARNED Counsel made reliance on the decision of the National Commission in I (1997) CPJ 88 (NC), Premier Automobiles Ltd. v. Santhosh Kanhayalal Jain & Anr., as well as the decisions of this Commission in Appeal Nos. 364/1998 and A. 848/1998 in support of the aforesaid submission. The learned Counsel also relied on the decision of the National Commission in I (2001) CPJ 28 (NC), Mehasana Agro Auto Machinery (P) Ltd. v. Baldevbhai M. Patel. It is pointed out by the learned Counsel that the complainant was bound to pay the price of the car as on the date of delivery which is reinforced by the clause in Ext. P3. When such is the position according to the learned Counsel since even according to the complainant there was no instance of overlooking any priority in the delivery of the car, the claim made by the complainant for return of excess of price or for payment of interest for the period of delay cannot be entertained. On the other hand the learned Counsel for the respondent sought to support the decision of the District Forum urging that the first opposite party has not contested the matter and as per Ext. P4 the manufacturer has agreed to deliver the car within a fortnight of February, 1997 provided the complainant remits the hole purchase price and accordingly the complainant having remitted the whole purchase price they should have complied with what is stated in Ext. P4. It is seen the delivery of the car was only on 29.7.1997 which according to the Counsel was in violation of the said statement in Ext. P4; therefore, opposite parties were liable to account for the excess amount which the complainant had to pay because of the delay. In other words according to him but for the delay in the delivery of the car the complainant would not have been required to pay the excess price. In the said context the learned Counsel made reliance on the decision of the Supreme Court in (1995) 3 SCC 581, Mohinder Pratap Dass v. Modern Automobiles & Anr. LEARNED Counsel pointed out that the interest awarded by the District Forum for the price remitted by the complainant for the period from 29.2.1997 till 26.7.1997 cannot be called in question because the interest so awarded is only for the period of delay in the delivery of the car. And according to him had the delivery of the car been made as is stated in Ext. P4, the complainant could have enjoyed the use of the said car which was prevented till 26.7.1997 because of the delay in the delivery. Therefore, he is entitled to the interest on the said amount during which period the amount was lying with the opposite parties. The two questions that thus would arise for consideration are whether the complainant is entitled to the return of the excess purchase price and the other is whether the complainant is entitled to the interest now awarded along with compensation of Rs. 2,000/-. As regards to the first question as has already been noticed the learned Counsel for the appellant made particular stress in the decision of the National Commission in Santhosh''s case (supra). The learned Counsel also stressed, relying on the said decision this Commission in A. 364/1998 and A. 848/1998 held that unless there is overlooking of priority by which a person who is junior to the complainant in the priority list was favoured with allotment of the car, before the allotment to the complainant, the complainant will not be eligible for refund of the excess price. On the other hand, learned Counsel for the respondent relied on Mohinder Pratap Dass''s case (supra), to urge that failure to deliver the car on payment of the whole price of the car would confer the complainant with the right to the return of the increased price of the car. We may point out that, Mohinder Pratap Dass''s case cannot have application to the facts of this case because neither is there a case nor evidence to show that there is intentional withholding of the delivery of the car by the opposite parties. Failure to deliver the car as represented need not be occasioned always on account of intentional withholding, it could occur on account of other reasons also. The decision of the Supreme Court deals with a case where there was intentional withholding of the delivery of the car; as has been noticed there is no such case for the complainant like that. Ext. P3 dated 29.1.1997 among other things states that the price prevailing at the time of delivery alone will be applicable. Admittedly after this communication alone the complainant remitted the full price. Apart from the same in para 7 of the decision in I (2001) CPJ 28, the National Commission states "It is settled law that the price which is prevalent on the date of the delivery of the car has to be paid by the buyer". In view of the settled law as stated above, the respondent cannot urge, since Ext. P4 there is no such clause complainant was not bound to pay the price prevailing on the date of delivery. Having regard to the aforesaid legal position it has to be held that the complainant was not eligible for the return of the excess price of Rs. 10,800/-.

Now coming to the question of liability to pay interest on the price paid by the complainant for the period from 27.2.1997 to 26.9.1997, whereas the learned Counsel for the appellant would maintain on the basis of the aforesaid decision of the National Commission in Santhosh''s case (supra), as well as the decision of this Commission in A. 364/1998 and A. 848/1998 the complainant cannot claim any interest whatsoever. On the other hand learned Counsel for the respondent as is noticed would support not only the award of interest for the said period but also the amount towards differential interest of Rs. 1,916.67. The thrust of argument of the learned Counsel for the appellant is, there is no agreement to pay interest on the purchase price paid by the complainant. That being the position there could be no obligation to pay such interest. It is also urged that once there is no liability to return the excess price there cannot be any deficiency in service consequently no award of interest could also be made. As a matter of fact as per Ext. P4 the opposite party informed the complainant that the car would be ready for delivery in the fornight of February, 1997. Pursuant to which as a matter of fact the complainant remitted the whole purchase price also. The car was delivered only after 5 months. This claim has to be looked at in the said backdrop also. It is true there is no agreement to pay interest. But in the decision of the National Commission in I (2001) CPJ 28 (NC), the National Commission upheld the direction to pay interest. There as has been noticed, though the National Commission held that since there was no overlooking of priority the complainant is not eligible for the return of the excess price, the National Commission upheld the award of interest for the period of delay. This decision was rendered by the National Commission on 25.1.2001 after the decision of the National Commission in I (1997) CPJ 88 (NC), as well as the decisions of this Commission relied on. Since the later decision of the National Commission in the aforesaid circumstance upheld the direction to pay interest, judicial discipline requires us to follow the said pronouncement. When such is the position the direction to pay interest on the purchase price for the period 29.2.1997 to 26.7.1997 cannot be said to be in any way faulty. But we are not inclined to uphold the direction to pay interest on differential interest of Rs. 1,916.67 or the direction to pay compensation of Rs. 2,000/- as in the context of the facts there was no overlooking of priority such payments towards compensation and differential interest cannot be upheld. The learned Counsel also challenged the award of interest at the rate of 15%. As has been noticed during the aforesaid period 27.2.1997 to 26.9.1997 the complainant could not enjoy use of the car; at the same time whole purchase price of the car was lying with the opposite party which would normally generate interest. Therefore, the award of interest at 15% cannot be said to be inconsistent or against the facts and circumstances of the case.

THUS the appeal should succeed with respect the direction to refund Rs. 10,800/-, Rs. 2,000/- towards compensation and Rs. 1,916.67 towards differential interest. The direction to pay the aforesaid amount is set aside. The direction to pay interest at 15% on Rs. 5,14,880/- for the period from 27.2.1997 till 26.7.1997 as well as the direction to pay costs do not call for any interference. The appeal is allowed in part as indicated above. In this appeal the parties are directed to suffer their costs. Appeal partly allowed.