Dev Raj, Member:
1. This appeal is directed against the order dated 07.03.2014, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that the complainant booked a Honda City car model SMT, Colour Tafeta White, after paying Rs.2 Lacs vide cheque No.255573 dated 30.5.2011, receipt whereof is Annexure C-4, and sales contract dated 29.5.2011, Annexure C-1, was signed. It was stated that certain discounts/additional benefits were offered, as part of the deal, for the purchase of the said vehicle. It was further stated that the total amount payable for the car was settled at Rs.8,40,000/-, including paint protection coating, a body cover and two cushions as additional benefits, while a built-in CD Player was to be provided with the STM model as standard accessories. It was further stated that upon insistence of the Sales Executive, the complainant handed over a post dated cheque No.679116 dated 6.6.2011 in the sum of Rs.6 Lacs to one Mr. Sandeep on 31.5.2011, who tried to convince him (complainant) that, in case, the benefits aforesaid, had to be passed on to him (complainant) he had to show the payment of the balance amount by 31.05.2011 and the delivery of the car would be made on or around 10.6.2011. It was further stated that the aforesaid cheque dated 6.6.2011 was not presented in time for the reasons best known to Opposite Party No.2, and when contacted by the complainant, the Sales Executive namely Sh. Rohit Kohli failed to take the calls.
3. It was further stated that it was informed by some other Sales Executive, that Sh. Rohit Kohli had left the job and, as such, the cheque handed over to him by the complainant was not presented in time. It was further stated that as a consequence, the complainant was informed that there would be a delay in delivery of the booked vehicle till the said cheque was traced and encashed. The said cheque was finally traced and encashed on 9.6.2011. It was further stated that the car was delivered to the complainant on 9.6.2011, after paying the balance amount of Rs.40,000.00, which was also duly got insured with TATA-AIG Insurance on 9.6.2011 itself. It was further stated that it was noticed that the entire billing of the said vehicle was dated 31.05.2011, due to which, the complainant faced problem in getting the same insured in the first place. It was further stated that it was surprising that the entire delivery papers and billing of the car were prepared on a date when even the total amount of the car had not been paid.
4. It was further stated that none of the additional benefits, promised at the time of booking the car, were provided by Opposite Party No.2. It was further stated that Opposite Party No.2, even refused to provide the CD Player saying that it was not part of the standard fitment of car. It was further stated that having paid the entire amount of Rs.8,40,000/- towards the price of the car, the complainant, under compelling circumstances, had to take the delivery of car. It was further stated that feeling cheated by the Company, the complainant sent a written communication dated 15.11.2011, Annexure C-8, to the Opposite Parties, which did not yield any response. It was further stated that on hearing nothing for one year, the complainant wrote another letter dated 5.10.2012, Annexure C-9, as a result whereof, he was asked to visit the office of Opposite Party No.2. It was further stated that the complainant visited the office of Opposite Party No.2 on 26.10.2012, and paint protection coating to the vehicle was done, whereas, the Sales Head of Opposite Party No.2 refused to provide the promised CD Player, which could only be provided on payment.
5. It was further stated that the Opposite Parties failed to provide all the additional benefits and the promised standard fitments with the vehicle. It was further stated that faced with irredeemable position, the complainant served notice dated 8.11.2012 upon the Opposite Parties, Annexure C-11. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties to fulfill the remaining contractual obligations viz. fitment of CD Player; refund Rs.60,000/- being the depreciable cost of the car, pay Rs.2,50,000/- as compensation for physical harassment and mental agony besides cost of litigation.
6. Opposite Party No.1, in its written statement stated that it had changed its name from Honda Siel Cars India Pvt. Ltd. to Honda Cars India Ltd. w.e.f. 6.9.2012, Annexure R-1, and is a leading manufacturer of premium cars in India. It was further stated that the Company was established in 1995, with a commitment to provide Hondas latest passenger car models and technologies, to the customers in India. The Company is a subsidiary of Honda Motor Co. Ltd., Japan. It was further stated that the complaint is an afterthought and was filed with an ulterior motive to harass and defame Opposite Party No.1. It was further stated that the complainant had suppressed material facts and had come to the Forum with unclean hands. It was further stated that it (Opposite Party No.1) being the manufacturer, shares a principal to principal relationship with the dealer and could not be held liable for any acts or omissions on behalf of the latter. It was further stated that, even otherwise, the terms and conditions were binding upon the complainant. It was further stated that Opposite Party No.1 was neither deficient, in rendering service nor did it indulge into unfair trade practice. The remaining averments, made in the complaint, were denied.
7. Opposite Party No.2, in its written statement, took up certain preliminary objections, to the effect, that the complainant did not fall within the ambit of the Act; that the District Forum had no jurisdiction to entertain and decide the complaint; that the complaint consisted of disputed questions of facts, which could only be adjudicated upon by the Civil Court; and that the complaint was not maintainable as the Sales Executive, namely, Rohit Kohli and Pramil Anand were not impleaded as the Opposite Parties. On merits, it was stated that since as per Annexure C-1, the promised date of delivery of the vehicle was 31.05.2011 and, accordingly, the sale certificate was prepared on 31.5.2011. The complainant took the delivery of car on 9.6.2011 after submitting the balance payment to the answering Opposite Party. It was further stated that once the complainant himself agreed to take the delivery of vehicle on 9.6.2011 and not on the contractual date, the complaint filed on 29.1.2013 was with the sole purpose to get undue benefit and advantage of the situation. It was further stated that the complainant was given Corporate discount by the dealer and, accordingly, tax invoice was prepared on 31.5.2011, Annexure R-2/1, which the complainant duly signed and a temporary registration number, Annexure R-2/2, was issued on the same day. It was further stated that looking at the credentials of the complainant, who is an Additional Advocate General, Haryana, Additional Public Prosecutor, U.T., Chandigarh and Standing Counsel for Income Tax, Opposite Party No.2 issued the Invoice dated 31.5.2011, because he wanted to avail the benefits and Corporate discount, which were available on or before 31.5.2011, but due to financial difficulties, he did not take the delivery on 31.5.2011. It was further stated that the complainant on 31.5.2011, even signed the Delivery Note-cum-Gate Pass, Annexure R-2/3. It was further stated that in Annexure C-2, the complainant had himself stated that he would be taking the delivery of the vehicle on 10.6.2011, after paying the balance amount and, therefore, the question of delay in delivery of the vehicle did not arise.
8. It was further stated that Annexure C-3, on the basis of which, the complainant alleged that CD Player was promised to be provided, was not admissible, as neither the said document was signed by any authorized representative of Opposite Party No.2 nor the same was on the Companys letter head. It was further stated that the documents, Annexures C-8 and C-9 dated 15.11.2011 and 5.10.2012, did not have any postal receipt and acknowledgement, wherefrom it could be substantiated that the complainant was actually aggrieved by the services provided by Opposite Party No.2. It was further stated that the complainant had himself signed the pre-delivery inspection of the vehicle vide booklet No.181086 dated 31.5.2011, wherein he had checked the vehicle to his entire satisfaction. It was further stated that the whole purpose of filing the letters dated 15.11.2011 (Annexure C-8) and dated 5.10.2012 (Annexure C-9) seemed to be to fill up the lacunae of the gap between the purchase of the vehicle and the filing of the complaint.
9. It was further stated that as per Job Card, Annexure C-10, the complainant visited the premises on 26.10.2012 for regular service of the vehicle, and, accordingly, signed the job satisfaction note and did not show any kind of protest. It was further stated that Para No.2 of the complaint revealed that the complainant himself wanted to take the delivery of vehicle on 10.6.2011, as he was not able to furnish the balance amount on the contracted date. The allegation that the vehicle remained without insurance, for ten days, was specifically denied. It was further stated that the Insurance was done on 9.6.2011, and the vehicle was also taken out of the showroom on 9.6.2011. It was further stated that although the Sale Certificate was issued on 31.5.2011, at the insistence of the complainant, yet since in the first instance, the balance payment was not made and secondly there was no Insurance, the vehicle kept lying in the workshop. It was further stated that there was no written or oral agreement with the complainant regarding the provision of CD Player to him by Opposite Party No.2. It was further stated that Opposite Party No.2 was neither deficient, in rendering service nor did it indulge into unfair trade practice. The remaining averments, made in the complaint, were denied
10. The complainant filed two separate replications, wherein, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written statements of Opposite Parties No.1 and 2.
11. The Parties led evidence, in support of their case.
12. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated in the opening para of the instant order.
13. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
14. We have heard the appellant in person, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
15. The appellant/complainant, submitted that the sales agent of Opposite Party No.2, had assured him that a built-in CD Player would come as a part of the standard fitments with the car and, in addition, also promised cash discount and two Honda cushions for the said car, a body cover and paint protection coating. He further submitted that the sales contract dated 29.05.2011 is Annexure C-1 with the complaint. It was further submitted that the benefits promised were not provided, at the time of delivery of the car on 9.6.2011 and the paint protection coating was provided free of charge by Opposite Party No.2 on 26.10.2012 after he served a legal notice. It was further submitted that though the full and final payment of the car was received by the respondents/Opposite Parties on 9.6.2011, the Sale Certificate of the same bore the date 31.05.2011. It was further submitted that, as per Annexure C-3, which was given by the sales agent of Opposite Party No.2, in his own hand, Model S would come with a music C.D. Player, height adjustment seat, body colour door handles and music controls on steering. It was further submitted that all the standard fitments as aforesaid were provided with the car except the music CD Player. It was further submitted that as per the terms and conditions of the sales contract dated 29.5.2011, Annexures C-1 and R-2/6, œVehicle would only be delivered (subject to production by the manufacturer) upon receipt of payment in full¦¦? It was further submitted that the price of the car, in question, was drastically reduced a day after the delivery of the same by the respondents/Opposite Parties. It was further submitted that the order of the District Forum being totally against the facts, evidence, and law is illegal, unjust, unfair, arbitrary and liable to be set aside.
16. After giving our thoughtful consideration, to the submissions, made by the appellant/complainant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. It is clearly evident that as per the sales contract dated 29.5.2011, Annexure C-1, which bears the signatures of the appellant/complainant and Mr. Rohit Kohli , representative of the respondents/Opposite Parties, the tentative date of delivery was 31 May 2011. Letter dated 31.5.2011, Annexure C-2, is the communication addressed by the appellant/complainant to the Branch Manager, Prestige Honda, Lally Automobiles Pvt. Ltd., Opposite Party No.2, wherein referring to the sales contract dated 29.5.2011, he in the 2nd Para, wrote, œThat I shall make the balance payment of the said car, the delivery of which I shall take on or around 10.06.2011, either by way of demand draft/cheque/cash.? It was also mentioned in the aforesaid letter that, in case, the payment was to be made by cheque, the appellant/complainant, proposed to hand over the cheques of the balance payment 3-4 days in advance of the proposed date of taking delivery of the said car. Thus, apparently, it was, on account of the fact, that after executing the sales contract, Annexure C-1, the appellant/complainant decided to take the delivery of car around 10.6.2011. Thus, the actual delivery of car on 9.6.2011, as per the Delivery Note-cum-Gate Pass (Annexure R-2/3) was in the aforesaid circumstances. Moreover, looking at the credentials of the complainant, the respondents/Opposite Parties, issued Invoice dated 31.5.2011, as the appellant/complainant wanted to avail of the benefits and corporate discount, which were available on or before 31.5.2011, but due to the financial difficulties, he did not take the delivery on 31.5.2011. Thus, we find force in the plea of the respondents/Opposite Parties, that the complainant himself agreed to take the delivery of vehicle on 9.6.2011, and not on the promised date viz. 31.5.2011. The District Forum was, thus, right in holding that if there was any dissatisfaction or discrepancy, in the date of invoice, and the date of delivery, the complainant could refuse to take delivery of the vehicle or record his protest, which he did not do so.
17. As regards the contention of the appellant/complainant that he was promised music C.D. Player, height adjustment seat, body colour door handles and music controls on steering, we have carefully perused Annexures C-1 and C-3. While Annexure C-1 is duly signed by the appellant/complainant and the representative of the Opposite Parties, Annexure C-3 is undated and the same has not been signed by anybody. In the sales contract, Annexure C-1, there is a column œWere you committed anything else by our Sales Consultant?? Against the said column, Column No has been ticked.
18. Sh. Manoj Kaushal, General Manager/Sales of Opposite Party No.2, while answering Question No.44 of the interrogatories, served upon him, by the appellant/complainant, made it clear that the additional benefits are offered as per the sales contract. Had anything else been promised to be provided, the Column Yes would have been ticked and detailes thereof would have been mentioned in the Column If yes details:___. Thus, as per the sales contract, there is force in the contention of the Opposite Parties, that the music C.D. Player, as alleged, was never assured. Even otherwise, the Sales Executive of Opposite Party No.2, who, as per the appellant/complainant, had assured the accessories, was not impleaded as a party to the lis and, therefore, any alleged verbal assurance made by a Sales Executive could not be binding on Opposite Party No.2.
19. As regards paint coating, Opposite Party No.2, in Para 5 of the preliminary objections of its written statement, stated that as per Annexure C-10 i.e. Job Card Invoice, the complainant visited its premises on 26.10.2012 for regular service of the vehicle and, accordingly signed the job satisfaction note. A bare perusal of Annexure C-10, shows that upper body 1+2 3M coating paint protection was done on the vehicle and the complainant duly signed the satisfaction note. While answering to Questions No.56 and 57 of the interrogatories, Sh. Manoj Kaushal, General Manager/Sales, stated that nothing was charged for point protection coating from the customer, as being a goodwill gesture and not as additional benefit. Also as per the own admission of the appellant/complainant, this paint protection coating was provided to him free of charge, which showed that the same was done, as a goodwill gesture by the respondents/Opposite Parties, otherwise, the appellant/complainant was required to pay an amount of Rs.3,600/- for the same, as per Annexure C-10.
20. In this view of the matter, there was no deficiency in rendering service or indulgence into unfair trade practice, on the part of the respondents/Opposite Parties and the District Forum rightly dismissed the complaint.
21. No other point, was urged, by the appellant in person.
22. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
23. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
24. Certified copies of this order, be sent to the parties, free of charge.
25. The file be consigned to Record Room, after completion.