ADOLFO FIGUEIREDO vs TARCAR AUTOMOBILES PVT. LTD.

THE appellant is the complainant in a complaint bearing No. 163/98 filed by him before the District Forum, North Goa, which was dismissed by impugned order dated 4.10.1999. It was his case that he had paid to the respondents, towards deposit, a sum of Rs. 15,000/- as booking amount for the purchase of a Mahindra "Armada" vehicle which was supposed to be delivered to him in June, 1995. THE vehicle was actually delivered by the respondent in time and the appellant was made to pay its full price at the time of its delivery. Further, the respondent failed to refund the advance money of Rs. 15,000/- inspite of letters written by the appellant. After many reminders the respondents sent a cheque of Rs. 7,500/- on 11.9.1996 alongwith a voucher of the same date, purportedly the refund 50% of the deposit. THEreafter, another cheque dated 1.10.1996 of Rs. 7,500/- was sent to the appellant towards full and final refund of the deposit amount alongwith a voucher of the same date. Since the respondents had not paid interest on the deposit amount the appellant refused to accept the payment and returned back the cheques alongwith the vouchers. THErefore, he filed a complaint seeking for a direction to the respondents to pay him the principal amount of Rs. 15,000/- alongwith interest at the rate of 12% per annum from 1.6.1995 till full and final payment of the said amount on the ground that the respondents had wrongfully retained the money with them. THE respondents denied their liability and inspite of the appellant having led his evidence and produced documents, the Forum refused to grant him the relief on the ground that the transaction between the parties did not fall under the purview of the Consumer Protection Act, 1986 (hereinafter called "the Act").

WE have gone through the records and considered the submissions of learned Counsel for both the parties. WE have also perused the impugned order and, in our view, the grievances of appellant appear to be sound and well conceived. Indeed, the record shows that the booking amount made by the appellant for the purchase of Mahindra "Armada" vehicle was paid by him to the respondents vide receipt, dated 1.6.1995. The said amount was towards the advance payment of the price and supposed to be adjusted at the time of the payment of the full price of the vehicle when supplied. Similarly, both Proforma Invoice and the Credit Bill in respect of the price of the vehicle were raised by the respondents as well and we find that both were prepared for the full price of the vehicle by the said respondents without making the required adjustment of the booking amount already paid. It is not in dispute that the appellant effected the payment of Bill to the respondents inspite of the advance payment having not been adjusted. Being so, it was in the fitness of things that the respondents should have immediately cause to refund the amount received from the appellant towards the booking of the vehicle which had already been fully paid. The contention of the respondents that they were only a forwarding Agency on behalf of M/s. Mahindra and Mahindra and all the payments were sent to them since they were not in a position to encash the concerned Demand Drafts is impermissible. Once the Bills were raised by the respondents it was its bounden duty to arrange that the amount demanded from the appellant towards the payment of the cost of the vehicle should have been shown in the bill taking into consideration the advance booking payment already made. Thus the failure on the part of the respondents in effecting the adjustment of the booking amount makes it liable to account for that amount which was supposed to be adjusted in the Credit Bill prepared by the respondents. This much appears to have been acknowldged by the respondents when the repayment of the said booking amount was offered to the appellant in two instalments of Rs. 7,500/- each without caring for the interest due and was rightly refused to be accepted by the appellant under the principle of unjust enrichment. In this regard, the respondents'' submission that the payment was offered out of mere courtesy and helping spirit in order to avoid inconvenience to the customers is absolutely unconvincing and we are not inclined to entertain it as valid argument worth to be considered. On the other hand, the contention that the respondents are not at all connected with M/s. Mahindra and Mahindra since more than one year prior to the filing of the complaint does not seem to be relevant once its liability towards the refund of the booking amount, which was unduly missed to be properly adjusted at the time of the raising of the Credit Bill towards the full payment of the vehicle supplied to the appellant, on behalf of M/s. Mahindra and Mahindra, has been held by us as sufficiently established either in law or on the basis of the evidence on record.

So far the liability of the respondents, even as an Agent of M/s. Mahindra and Mahindra, we must also add that when both the cheques of Rs. 7,500/- each were sought to be tendered to the appellant in September and October, 1996, the respondents were very well acting as an Agent of M/s. Mahindra and Mahindra. Therefore, the respondents'' claim that when the complaint was filed by the appellant they had ceased to be its Agent was not substantiated on record by any cogent and conclusive evidence, namely, with regard to date of the termination of the Agency. But even assuming that the respondents are no more an Agent of M/s. Mahindra and Mahindra, its liability towards the refund of the booking amount, with the accrued interest thereon would subsist in respect of the appellant as a third party in terms of Section 208 of the Indian Contract Act, bearing in mind that admittedly the appellant came to know about the alleged termination only when the respondents filed its reply to the complaint lodged by the appellant before the Forum. Further reliance placed by the learned Forum on the decision of the National Commission reported in (1999) CPJ 91 does not seem also to be attracted in the instant case in which there was a complete transaction of sale effected by the respondents jointly with or on behalf of M/s. Mahindra and Mahindra and the vehicle was actually delivered to the appellant by the said respondents, againt the payment of the full price, consequent upon a Credit Bill prepared or raised by the same respondents without making the necessary deduction of the advance booking amount actually paid by the appellant also in the respondents'' hands. The real issue which becomes relevant at this stage is whether, at the time of the receipt of the price of the vehicle, the respondents were or not bound to adjust the amount of advance received from the appellant towards booking of the said vehicle. It is exactly this failure that amounts to deficiency in service which renders it liable to repay the same amount with interest.

IN this view of the matter, the appeal is bound to succeed and is hereby allowed. The order of the District Forum, dated 4.10.1999, is quashed and set aside. The respondents are directed to refund to the appellant the amount of Rs. 15,000/-, within 30 days, with interest @ 12% per annum from 6.6.1995, which is the date of the receipt of the full price of the vehicle till its realisation, failing which the said interest should be calculated at the rate of 18% per annum till its actual payment. Order accordingly. Appeal allowed.