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Judgment
Dr. Sadhna Shanker, Member
This appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) assailing the Order dated 25.02.2019 passed by the State Consumer Disputes Redressal Commission, Delhi (hereinafter to be referred to as “State Commission”) whereby the complaint was dismissed.
Heard learned counsel for the appellant and the learned counsel for the respondent no. 3 and perused the record including the State Commission’s impugned Order dated 25.02.2019 and the memorandum of appeal.
None is present for the respondent no. 1 and 2 and hence, they are being proceeded against ex parte.
The brief facts of the case as narrated by the complainant are that on 30.08.2008 the complainant booked a Porsche 911 Carrera 4S Coupe car (hereinafter referred to as the ‘car’) through respondent no. 1 for a total consideration of Rs. 1,10,11,000/- including custom duty. It is alleged that at the time of booking the complainant paid an amount of Rs. 65,00,000/- to respondent no. 1. The complainant was in touch with the respondent no. 1 for delivery of the car but every time he was told that manufacturing of the car was under process. He further made the payment of Rs. 1,00,600/- on 15.09.2008 when the sale contract was executed between the complainant and the respondent no. 1. The complainant protested the inadequate delays caused in delivery of the car due to the acts of omission and commission of the respondents. It is alleged that the respondent no. 1 admitted the mistake and assured that the complainant would be compensated. It is further alleged that the respondent no. 1 kept providing all kinds of wrong information to the complainant regarding the production of the car and the complainant kept waiting for the car. On 13.03.2009 the complainant was informed that manufacturing of the car was still pending completion. Getting disturbed by the attitude of the respondent no. 1, the complainant sent an email to one Mr. George Wills, who informed the complainant that the production of the car had already completed on March 6, 2009. And this conclusively demonstrates that the respondents have always been misleading the complainant regarding the car. Thereafter, the respondent no. 1 issued a revised price of Rs. 1,13,73,000/- on April 27, 2009 without any reason. The complainant made the remaining payment of Rs. 47,66,400/- to the respondents on 27.04.2009 towards custom duty. It is alleged that the car was shipped for India on July 15, 2009 and arrived in India on July 20,2009, which is delivered on 22.08.2009 with almost one year delay while as per actual norms, car should be delivered within a period of 45 days from the date of booking. It is alleged that when the complainant received the High Sea Sale Invoice, the complainant was shocked to see that the actual price of the car is Rs. 42,41,193/- plus custom duty Rs. 47,18,674/- plus charges for freight forwarder are Rs. 44,120/-, amounting to Rs. 90,03,966/-. It is further alleged that the charges of Rs. 1,10,331/- levied by Messrs Sai Shipping Services Limited and interest of Rs. 31,027/- on Custom Duty is not the liability of the complainant as the above charges were levied due to above-said acts of negligence of the respondents. It is alleged that an amount of Rs.23,69,034/- was illegally collected by the respondents in excess from the complainant.
Feeling aggrieved, the complainant filed a complaint before the State Commission, with the following prayer:
a) direct the Respondent to pay Rs. 15,63,721.00 (approx..) [calculated @24% from August 27th, 2008 till August 21st, 2009] towards delay in deliver of the car to the Complainant;
b) direct the Respondent to pay Rs. 23,69,034/- towards excess amount collected towards total consideration of the car from the complainant, to the Complainant;
c) direct the Respondent to pay Rs. 9,35,000 (approx.), towards depreciation of the car from the date of completion of manufacturing the car i.e. March 6, 2009 till the date of delivery i.e. August 22, 2009 [calculated @25% per annum], to the Complainant;
d) direct the Respondents to pay a sum of Rs. 10,00,000 towards mental harassment and agony;
e) direct the Respondent pay interest @24% per annum from the date of filing of the present Complaint till the date of realization towards damages caused by the Complainant to the Respondent;
f) direct the Respondent to pay a sum of Rs. 1,50,000 on account of expenses, loss of opportunity;
g) pass/make such other appropriate orders and/or directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.
The respondents no. 1 and 2 have contested the complaint by filing reply stating that the complainant is not a consumer within the meaning of section 2(1)(d) of the Act, 1986. It is further stated that the respondent had not entered into any contract in respect of sale of the car with the complainant and the respondent no. 3 is not connected with the contract of sale dated 15.09.2008, therefore, the complaint deserves to be dismissed for misjoinder of parties. He further stated that the refund of excess amount and depreciation of the car is not a relief which can be considered and granted in a consumer complaint and the complaint is liable to be dismissed.
The State Commission, vide its order dated 25.02.2019, dismissed the complaint.
Aggrieved by the Order of the State Commission, the complainant has filed the present Appeal.
Learned counsel for the appellant has argued that the facts quoted by the State Commission in paras 2 onwards of the Order of the State Commission do not related to the instant case and the State Commission has not correctly appreciated the facts of the instant case.
It is apposite to quote para 2, 3, 4 and 5 of the Order of the State Commission, which reads as under;
The OPs failed, refused and neglected delivery of the car. Firstly they promised delivery of car on 25.02.09, then on 20.03.2009. The Ops called upon him to enter into a high seas sales agreement with the OP-2 which was not part of original sale contract.
Car was a non homologated car and all such cars can only be imported in individual name of the user, as per rules. Despite that OP-1 exported the car from Germany in the name of OP-2 and forced the complainant to enter into high sea sales agreement with the OP-2. On 17.04.09, he entered into high sea sales agreement with OP-2.
On 15.05.09, car was delivered to him. As per notification dated 24.02.09 of Central Excise, the custom duty got reduced to 106.76% but he was charged @114%, which was applicable at the time of booking. The OP refused to refund the excess amount of Rs. 1,76,275/-. The OP collected Rs. 13,44,391/- in excess in the price of car.
The OP provided illegal invoice styled as ‘Guarantee Invoice’ dated 05.06.09 for Rs. 12,17,964/- which was not permitted under the law or under the established practice. With an intention to force him to remain quite, the OPs were not releasing the bill of entry and TR-6 challan (receipt issued towards payment of the duty). The OPs have caused loss of Rs. 2,50,000/- approximately on account of interest @24% from 20.03.09 to 15.05.09 i.e. delay in delivery of car, Rs. 6,40,000/- approximately towards loss suffered due to loss in depreciation which the complainant could not avail in the financial year 2008-09. Ops are also liable to refund Rs. 13,44,391/- towards excess amount collected towards price of the car, including Rs. 1,76,275/- for excess amount collected towards custom duty. Complainant has claimed damages for mental agony and harassment to the tune of Rs. 5 lakh. Hence this complaint.”
From a perusal of the record, this Commission is of the opinion that the OPs never failed, refused and neglected delivery of the car. Also, from a perusal of the documents inasmuch as the sales of contract, email(s) exchanged between the parties, it is seen that the respondents have nowhere promised for delivery of the car on 25.02.2009 and 20.03.2009. The facts narrated in paras 3, 4 and 5 do not pertain to the appellant. Therefore, it appears that the State Commission has not appreciated the correct facts of the present case.
Therefore, in the interest of justice and after having objectively and impartially considered the nature of the dispute and the overall facts and circumstances as are being borne out by the record, it is deemed to be just and conscionable that the matter be remanded back to the State Commission to decide it afresh on the merits of the case, after affording opportunity of hearing to the parties.
Therefore, the Order dated 25.02.2019 of the State Commission is set aside and the matter is remanded back to the State Commission to decide it afresh on merits, within six months from the date of first hearing before the State Commission i.e. 19.07.2024.
The complainant and the respondents are advised to conduct their case with due diligence before the State Commission.
The parties are directed to appear before the State Commission on 19.07.2024.
The Registry is requested to send a copy each of this Order to the parties and to their learned counsel immediately. It is also requested to forthwith send a copy of this Order to the State Commission by the fastest mode available.