M/s Maruti Udyog Ltd.                             .... Appellant
Vs
Dr. Bhavna Chunnubhai Shah & Ors.         .... Respondents

BEFORE :

Hon'ble Mr. Justice V. Balakrishna Eradi, President
Hon'ble Mr. Justice B.S. Yadav, Member
Hon'ble Mr. Justice S.S. Chadha, Member
Dr. (Mrs.) R. Thamarajakshi, Member

S.S. CHADHA, J. Member

This appeal, F.A. 576/92 and cross appeal, F.A. 589/92 have arisen out of the order dated 21st September, 1992 allowing the complaint and directing the appellant Rs. 44,831.83 with interest @ 18% p.a. from 13/12/1991 till the amount is realised besides Rs. 10,000/- as damages and Rs. 1,000/- as costs. This order will dispose off both the appeals.

The facts lie in a narrow compass and may be stated. Complainant no. 1 is a lady anesthetist and desired to purchase a car specially designed and recommended for handicapped persons. She made a booking deposit of Rs. 10,000/- on or about 9/7/1990 by bank draft payable to M/s Maruti Udyog Ltd., appellant, at Gurgaon and was allotted no. 0101-H-02398. Cargo Motors (Guj) Ltd., the dealer, sent on 28/9/1990 the allotment card to the complainant no.1 and asked her to get in touch with the dealer in regard to the procedure for making balance payment. The dealer in his letter dated 12/10/1990 gave the details of the Maruti Handicapped Control car model TRD as follows: "Sub: Maruti Handicapped Control car- Model TRD

Ref: Your allotment no. 0101-H-2398

With reference to the above booking, we give below the details.

Ex-Stock Yard price : Rs. 1,24,777.83 (plus transportation, insurance, R.T.O.)
Mode of payment : Demand Draft in favour of Maruti Udyog Ltd. payable at Gurgaon.
Colours : White/ blue/ cairo dust / red
Delivery period : 6 to 8 weeks after making full payment.
You may kindly note that the price prevailing at the time of delivery will be applicable."

The complainant no. 1 obtained hire purchase loan from the Gujarat Lease Financing Ltd. and a sum of Rs. 1,14,777.83 was deposited with the said dealer on 5th March, 1991 and was ultimately received by the appellant on 20/3/1991. The appellant by its letter dated 12/6/1991 informed the complainant that the supply of the car would be delayed as the Company was not able to import certain components essential to the manufacture of automatic transmission cars. The appellant increased the price of the car by Rs. 44,831.98 w.e.f. 25/7/1991 due to hike in excise duty as well as the impact of Rupee devaluation. As the car was not delivered the complainant filed the complaint alleging negligence and deficiency in service. The complainant during the pendency of the complaint paid the said amount and was delivered the car. There is no dispute on these facts.

The complaint was amended after the delivery of the car. The State Commission framed the following questions for its consideration:

(1) Whether the Opposite Party is entitled to claim extra price over the contracted price of Rs. 1,24,777.83, which was agred upon by the Opposite Party while acceepting the order?

(2) This complaint is in respect of handicapped control car and therefore, the quotation was a firm quotation in which the opposite party has in terms agreed to deliver the handicapped controlled car within 6 to 8 weeks from the date of full payment.

The main submission of the learned counsel for the appellant is that there was no commitment from the appellant or its dealer as to the period of delivery though a tentative period of 6 to 8 weeks was given, but, the time of delivery of vehicle was not the essence of the contract. It is urged that the State Commission did not correctly appreciate the terms and conditions of booking as well as the terms and conditions of sale offered in the said letter dated 12th October 1990. The price prevailing at the time of delivery was agreed, urges the counsel, to be paid, so the complainant must held to his bargain. The contention is that vehicle was delivered as per seniority of the complainant in terms of the date of receipt of payment and there was no car. The State Commission framed the following questions for its consideration:

(1) Whether the Opposite Party is entitled to claim extra price over the contracted price of Rs. 1,24,777.83, which was agred upon by the Opposite Party while acceepting the order?

(2) This complaint is in respect of handicapped control car and therefore, the quotation was a firm quotation in which the opposite party has in terms agreed to deliver the handicapped controlled car within 6 to 8 weeks from the date of full payment.

The main submission of the learned counsel for the appellant is that there was no commitment from the appellant or its dealer as to the period of delivery though a tentative period of 6 to 8 weeks was given, but, the time of delivery of vehicle was not the essence of the contract. It is urged that the State Commission did not correctly appreciate the terms and conditions of booking as well as the terms and conditions of sale offered in the said letter dated 12th October 1990. The price prevailing at the time of delivery was agreed, urges the counsel, to be paid, so the complainant must held to his bargain. The contention is that vehicle was delivered as per seniority of the complainant in terms of the date of receipt of payment and there was no controlled car is allottedand and the dealer by its letter dated 28/9/1990 called upon the complainant no.1 to get in touch with them in regard to the procedure for making the balance payment against the above booking. The appellant accepted the initiaal deposit of Rs. 10,000/- and were made fully aware that the requirement was for the handicapped controlled car. The dealer in its letter dated 12th October ,1990 (reproduced above) gave the quotation and specifically noted that it was "Maruti handicapped controlled car - Model TDR" and gave the delivery period as 6 to 8 weeks after making full payments. The Gujarat Lease Financing Ltd. wrote a letter dated 5/3/1991 to the appellant disclosing that the complainant is acquiring a Maruti Handicapped controlled car costing Rs. 1,24,777.83 undere the hire-purchase account and wanted certain formalities to be completed. The payment of balance of Rs. 1,14,777.83 was made on 5/3/1991 to the appellant which payment was admittedly received by the appellant on 20th March, 1991.

During the pendency of the complaint, the complainant no.1 made an application for production of documents and prayed for a direction to the appellant. The application dated 12th May, 1992 specifies the following documents:

"1. Production Register describing the details of handicapped car manufactured after 5th March 1991.

2. Sales Register showing details of sale of handicapped controlled car manufactured after March, 1992 (which should be 1991).

3. Register showing receipts and payments for handicapped controlled car during January, 1991 to December, 1991.

4. Register showing import of various parts of the handicapped controlled car.

5. R.B.I. Notificatio for temporary closure scheme of spare parts."

The application came up for hearing before the State Commission. Mr. Shah, advocate appearing for the appellant stated that the Company had nothing to hide and the Company will produce documents prayed for. The State Commission directed the appellants to produce documents or xerox copies thereof within four weeks from the date of the order, i.e., 12/5/1992. On 26th June, 1992, the State Commission recalled that as per the order dated 12th May, 1992, the documents were not produced by the other side and one more chance was given to the opposite parties. The documents were not produced even on the next date of hearing when arguments commenced and the case was argued. At the trial before the State Commission, the appellant did not produce though called upon any restriction alleged to have been laid down by the Reserve Bank of India to the import of certain components in the manufacture of automatic transmission cars. These restrictions are now being produced along with the grounds of appeal contained in the newsflash dated 6.6.1991. Other documents directed to be produced are still being withheld.

If the appellant was not in possession of certain components essential to the manufacture of automatic transmission car and it was made aware of it when the initial deposit of Rs. 10,000/- was made, then the appellant and its dealer should have indicated so when the letter dated 12th October, 1990 was issued. A firm offer was made that the delivery period is 6 to 8 weeks after making full payment of Model-TRD. It is reasonable to infer that the appellant had the necessary components. The complainant no.1 had called upon the appel-lant to produce the register showing import of various parts of handicapped controlled car. This would have revealed whether the essential components for manufacture of handicapped cars were already in possession of the appellants. This vital document has been withheld though offered to be produced. The balance payment was given on 5th March, 1991. The appellants have withheld whether there was any other person who had earlier booked the handicapped controlled car and had made the full payment and what was the priority of complainant no.1. They have not produced the sales register showing the details of sale of handicapped controlled cars manufactured after 5th March, 1991. As all these documents have been withheld, we are justified in drawing an adverse inference against the appellants, that if produced those documents would have gone against them.

The Reserve Bank of India restrictions, even if we allow the production of newsflash dated 6.6.1991 at this stage, cannot be relied upon to support alleged plea that the delivery schedule was delayed because of non-availability of certain imported parts. The appellants has failed to establish that they were not already in possession of the essential components or there was any temporary restriction by Reserve Bank of India for import of components before the agreed date of delivery, i.e., 8 weeks from 5/3/1991 or even from 20th March, 1991. The increase in the price of the4 car is admittedly w.e.f. 25.7.1991. The appellant and its dealer accepted the responsibility to deliver the car within 6 to 8 weeks from 5th March, 1991 when full payment was made by the complainant no.1. If the appellant was not in possession of the components to manufacture the handicappede controlled car, and to give the delivery within 6 to 8 weeks then it was reasonable to accept that the appellants would inform the complainant. Neither the car was delivered within the period of 8 weeks nor any explanation was given to complainant no.1 as to why there is delay in the delivery of the promised car. The State Commission was thus right in coming to the conclusion that the appellant has failed to deliver the car as promised. The Company had demanded Rs. 44,831.83 which had been paid by the complainant no.1 under protest and, therefore she is entitled to the refund of this amount. The complainant is a handicapped person and had borrowed the money M/s Gujarat Loan Financing Ltd. at an interest of 20%. Taking all these facts into consideration the State Commission rightly allowed interest at the rate of 18%. The assessment of quantum of the damages of Rs. 10,000/- is fully justified in the facts and circumstances of the case to compensate for the pain and suffering of complainant no.1. We do not find any reasonable basis to enhance the quantum with the result F.A. no. 589/92 fails and is dismissed.

For the above reasons the F.A. no. 576/92 fails and is, therefore, dismissed with costs against the appellants in F.A. No. 576 of 1992 to be paid to the complainant no.1.   The costs are assessed at Rs. 1,000/-.