Maruti Udyog Limited vs DINESH CHAND THAPAK

MARUTI Udyog Limited (MUL) has filed this appeal aggrieved of the order dated 17.11.1999 passed in Case No. 64/99 by the District Consumer Disputes Redressal Forum, Jabalpur (for short the ''District Forum'').

BRIEF facts giving rise to this appeal are thus : MUL while celebrating its 15th anniversary in November-December, 1998 authorised its dealers to present a 15 gms. Tanishq gold coin as gift to its customers on the sale of Maruti cars during November-December, 1998. The respondent No. 2, the authorised dealer at Jabalpur published an advertisement in the newspapers on the celebration of 15th anniversary, purchase a Maruti vehicle and get a 15 gms. 24 carat Tanishq gold coin, the offer was available only upto 31st December, 1998. The respondent No. 1 on 21.12.1998 deposited Rs. 1,91,575.35 paise, the full price with the respondent for the purchase of a Maruti 800 standard car. The respondent No. 2 agreed to deliver the car as per the turn in the seniority list at the time of booking of the car, i.e. on 21.12.1998. MUL restructured the price of their products with effect from 1st January, 1999, whereby the price of Maruti 800 standard was reduced by Rs. 25,000/-. According to MUL on restructure of the price the benefit of the gold coin was extended only to Maruti 800 EX, on the booking made upto 31.12.1998 and not on Maruti 800 standard. The respondent No. 2 vide invoice No. 13318 delivered Maruti 800 standard and issued a sale certificate dated 7.1.1999 to respondent No. 1. The respondent No. 1 while taking the delivery did not make any demand for the gold coin nor delivery was taken under protest. The respondent No. 1 thereafter filed a complaint before the District Forum alleging deficiency in service and unfair trade practice and of cheating as the gold coin at the time of delivery was not given to him under the gift scheme, therefore, claimed gold coin or its value Rs. 8,000/- with its interest at the rate of 18% and for mental pain and inconvenience Rs. 14,000/- as compensation. The complaint was resisted by MUL and the respondent No. 2. The District Forum framed 5 points for determination and after appreciation of evidence on record held that the gift scheme was under a sale promotion scheme and that the gold coin or its equivalent value of Rs. 7,000/- was to be given as gift with the car at the time of the delivery of the car, which having not been given, the MUL has cheated the respondent No. 1. The respondent No. 1 was a consumer and was entitled to get the gold coin as a gift as he deposited the full price of the car during the period when the gift scheme was applicable. The scheme does not say that gold coin will be given only to those to whom the car is delivered on or before 31.12.1998. The gift scheme was advertised by MUL to increase the sale of Maruti cars which was lowered down due to high competition in the market of sale of small cars like Hundai, Matize and Tata Indica. The booking of the Tata Indica was quite high, as it was cheaper in the price, therefore, the scheme was advertised. The District Forum further observed that MUL apprehending the adverse effect on the sale of Maruti 800, reduced the price of the Maruti 800 Ltd. and of other models so as to attract the prospective customers. Not giving the gift at the time of the delivery of the car was an act of cheating amounted to unfair trade practice under Section 2(1)(r)(ix) of the Consumer Protection Act, 1986 (for short the ''Act''), therefore, ordered the MUL either to give 15 gms., 24 carat Tanishq gold coin or to pay Rs. 7,000/- the value of the gold coin with interest thereon at the rate of 18% p.a. from 8.1.1999 with compensation of Rs. 5,000/- for mental pain and inconvenience.

Respondent No. 1 submitted that the appeal presented on 11.2.2000 against the order dated 17.11.1999 is barred by time, therefore, it be dismissed.

MR. B.V. Bhargava, learned Counsel for the appellant submitted that in fact certified copy of the order was not supplied to the appellant as required by Sub-rule (10) of Rule 4 of the M.P. Consumer Protection Rules, 1987 which lays down that orders of the District Forum shall be signed and dated by the Members of the District Forun constituting the Bench and shall be communicated to the parties free of charge. The certified copy was delivered to the respondent No. 2 on 13.12.1999, who in turn sent that certified copy with letter dated 14.1.2000 to the appellant for compliance which was received on 18.1.2000. On receipt of the said certified copy, the appellant came to know of the order, filed the appeal accompanied with the certified copy supplied to the respondent No. 2, therefore, the appeal is not barred by time. In any case, the appellant has filed an application to condone delay supported by the affidavit stating therein the reasons, therefore, if there is any delay it be condoned. Having gone through the record of the case, we find that certified copy of the order was not communicated to MUL. In the circumstances, as the order was passed against the MUL, the MUL filed the appeal on receipt of the certified copy communicated to the respondent No. 2 the appeal is within time. Besides, the MUL has made out a sufficient cause to condone delay in filing the appeal, therefore, even if, there was delay the same is condoned.

ON merits : The order of the District Forum was challenged as without jurisdiction as the gold coin was available only on the sale of Maruti car 800 Std. upto 31.12.1998, which was not the part of the price of the car. ON restructure of the price of various models, gold coin scheme was not applicable on Maruti 800 Std. but on Maruti 800 EX. and on other cars. Moreover, on restructure of the prices of the car, the price of Maruti 800 Std. was reduced to Rs. 25,000/- of which the respondent No. 1 got the benefit and accepted the delivery of the car without any claim or protest therefore, he was estopped to make a complaint. The District Forum has made out a case beyond the pleading and has gone stray by observing that in the market due to the launching of the other small cars, i.e. Hundai, Matize and Tata Indica, in particular Tata Indica of which the booking was more than the car manufactured and price of those cars was also less in comparison to the price of the Maruti models, therefore, to allure and attract the customers and to promote and increase the sale of the Maruti vehicles, the gift scheme was advertised. This was not the case pleaded of which the appellant had no opportunity to meet. In the circumstances when the complainant got benefit of Rs. 25,000/- due to restructure of the price of the car the complainant did not suffer any loss, hence the complainant was not entitled for any comepnsation. Besides, the District Forum had no jurisdiction to direct to give gold coin or its value with interest and compensation for the alleged unfair trade practice as the relief in terms of Section 14(1)(f) of the Act could only be granted. Counsel cited a decision of the Supreme Court in H.M.M. Ltd. v. Director General, Monopolies and Restrictive Trade Practices Commission, VI (1998) SLT 621=1998 (2) CCC 1 (NS), and a decision of Delhi State Consumer Disputes Redressal Commission in CIII (1997) CPJ 132=1998 (1) CCC 240 (DS). Having heard learned Counsel for the appellant and the respondent No. 1 and on reappraisal of evidence, we are of the view that not giving the gold coin at the time of the delivery of the car was a case of deficiency in service also, as expression "unfair trade practice" used in Section 2(1)(r) of the Act, applies not merely to the sale or supply of any goods but also to the provision of any service. See the decision of the National Commission in case of Mantora Oil Products (P) Ltd. v. The Oriental Insurance Co. Ltd., I (1991) CPJ 323 (NC). Admittedly the respondent No. 1 was a consumer as defined under Section 2(1)(d) of the Act, who on deposit of the full price was entitled to delivery of the car with the gold coin in terms of the advertised gift scheme, which was not given to him. This was deficiency in service as defined under Section 2(1)(g) of the Act.

THE Delhi State Consumer Disputes Redressal Commission in case of Byford v. S.S. Shrivastava, II (1992) CPJ 853, considered the question where a contest of booking and purchasing of Premier Padmini on specified date(s), draw would be drawn and the persons who were successful drawers, would be entitled to two free tickets from New Delhi to New York and back. In pursuance of the advertisement the complainant purchased a Premier Padmini car and entered the contest. On draw, the complainant was found successful, but, the tickets, were not given to him, hence he filed the complaint. THE Delhi State Commission referred to definitions of the complaint under Section 2(1)(c), deficiency in 2(1)(g), and service under Section 2(1)(o) of the Act and observed in paras 5, 6 and 7 thus : "5. THE first contention of the learned Counsel for the appellant is that Shri S.S. Shrivastava is not a complainant as defined in the Act and, therefore, he cannot file a complaint against the appellant. We have duly considered the arguments. THE word "service" has been defined in Section 2(1)(o) of the Consumer Protection Act which reads as follows : ''"Service" means service of any description which is made available to potential user and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.'' From the language used in the definition it is evident that it is not an exhaustive definition as it says that "service" means the service of any description which is made available to "potential users". In the Shorter Oxford English Dictionary 3rd edition various meanings have been assigned to the word "service". Some of the meanings assigned are "the action of serving, helping or benefiting; conduct tending to the welfare or advantage of another, (b) an act of helping or benefiting.''

THE act of supplying two tickets to the complainant to go to New York and back amount to act of helping or benefiting him in consideration of his participating in the draw. If the Company had not offered the benefit, the claimant and some of the customers would not have booked the car with them. Thus the Company was rendering service to the complainant and others when they promised to give two returned tickets from New Delhi to New York to them in consideration of purchasing a car by them. 7. THE next question to be determined is, whether the present petition falls within the definition of the word ''complaint''. THE word ''complaint'' has been defined in Section 2(1)(c) of the Act. It reads as follows : '' "complaint" means any allegation in writing made by a complainant that : (i) and (ii) xxx xxx xxx (iii) the services mentioned in the complaint suffer from deficiency in any respect; (iv) xxx xxx xxx'' THE word "deficiency" has again been defined in Clause 2(1)(g) of the Act as follows : '' "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service." '' It is evident from the above definitions, that the complaint should contain the allegations regarding deficiency in service. In the present case the act of not supplying the tickets to the complainant by the opposite party amounts to deficiency in service. THEse allegations are contained in the present petition. Thus it is a complaint as defined in the Act."

THE present case though is not the case of contest, but of the advertised gift scheme to promote the sale and to attract the prospective buyers of Maruti cars, who booked the cars by payment of full price by 31.12.1998 who were entitled to gold coin with the car. Giving of gold coin to such customers was the part of the service at the time of delivery of the car, which was not given to the respondent No. 1 and thus a case of deficiency in service and not of the unfair trade practice has been made out. It is submitted that the District Forum erred in holding the case of unfair trade practice beyond the case pleaded for which no relief could have been granted more than as provided in Section 14(1)(f) of the Act. It is not necessary for us to consider the contention that in a complaint of unfair trade practice the relief under Section 14(1)(f) of suitable compensation cannot be granted as there is no provision in Section 14 of the Act like Section 12B of the M.R.T.P. Act and the relief could be granted only as provided under Section 14(1)(f) of the Act that is "to discontinue the unfair trade practice or the restrictive trade practice or not to repeat it". In other words the Clause (f) of Section 14(1) of the Act authorises the District Forum only to pass "cease and desist orders" that mens that practice shall be discontinued forthwith but shall also not be repeated in future as held by Delhi State Commission in New Era Education Society (supra), in view of the decision of the National Commission in case of Mantora Oil Products (P) Ltd. v. The Oriental Insurance Company (supra), wherein the National Commission had held that Section 2(1)(r) of the Act applies merely not to the sale or supply of any goods but also to the provision of any service. The deficiency in service having been found established in not giving the gold coin or its value, the respondent No. 1 was entitled for the same.

However, the respondent would not be entitled to any compensation as he has not suffered any loss for alleged unfair trade practice or deficiency in service as unfair trade practice must cause loss or injury to the consumer as held by Supreme Court in H.M.M. Ltd. (supra). On the other hand the respondent No. 1 was benefited by reduction in the price of Rs. 25,000/-. 14.Before parting with this case, we feel it proper to observe that the District Forum while considering the point No. 3 for determination with an erroneous approach observed that as there was a competition of sale of small cars like Hudai, Matize and Tata Indica as a consequence of that sale of Maruti car had gone down, hence to promote sales the gifts scheme was advertised. The finding so recorded is beyond the pleadings based on surmises and conjectures without any material on reord. It is well, settled that an order of Court should not be prejudicial to any one while administering justice. Any observation which harms the reputation or career of a party should not be made without any material on record and without giving an opportunity of hearing to the affected party. 15. In view of the above, we direct the appellant to give gold coin of 15 gms. 24 carat Tanishq gold or its equivalent value of Rs. 7,000/- within a period of two months from the date of receipt of certified copy of this order failing which the amount of Rs. 7,000/- shall carry interest at the rate of 15% p.a. from the date of this order. 16. In the result, the appeal is partly allowed, the order of the District Forum shall stand modified as indicated hereinabove. However, in the circumstances of the case, we direct MUL to bear the costs of the proceedings throughout which are fixed at Rs. 1,500/-. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the case. Appeal partly allowed.