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PETITIONER: M/S.VIKAS MOTORS LTD.

       Vs.

RESPONDENT: DR.P.K. JAIN

DATE OF JUDGMENT:       24/08/1999

BENCH: R.P.Sethi, Saghir Ahmad

JUDGMENT:

SETHI,J.

     The  respondent  booked  a  Maruti  AC  Car  with  the appellant  on  7.5.1990 on Priority No.805-C-80197.  He  was intimated  on 1.8.1990 that his car was matured for  payment deposit  and  delivery.   Full  amount   was  paid  by   the respondent  on 6.8.1990.  He was, however, charged an  extra amount  of  Rs.9,232/- at the time of the delivery  of  car. Feeling  aggrieved  by  the  action  of  the  appellant  the respondent  filed  a complaint before the District  Consumer Disputes  Redressal Commission, Hisar (hereinafter  referred to  as "the District Forum) with a prayer for refund of  the extra  amount  paid by him.  The District Forum allowed  the claim  of  the complainant vide order dated 18.9.1991.   The appellant’s  appeal  before  the   State  Consumer  Disputes Redressal  Commission,  Haryana at  Chandigarh  (hereinafter referred  to  as  "the State Commission") was  dismissed  on 10.1.1992  and the revision petition filed by the  appellant before  the National Consumer Disputes Redressal Commission, New   Delhi  (hereinafter  referred  to  as  "the   National Commission")  was also dismissed on 10.4.1992.  The  present appeal  has been filed mainly on the grounds of jurisdiction and  there  being  no  liability   of  the  appellant  after escalation  of prices by the manufacturers of the car.   The objection regarding jurisdiction was decided by the District Forum  vide its order dated 26th July, 1991 against which no appeal  or  revision  was filed by the  appellant  and  that apparently   appears   to   have    become   final.    After participating  in  the proceedings and being satisfied  with the  verdict regarding jurisdiction, it is too late for  the appellant  to  urge, at this stage, that the District  Forum had  no territorial jurisdiction to entertain the  complaint and   pass   orders  under   the  Consumer  Protection   Act (hereinafter  referred  to as "the Act").  The appellant  is estopped  from  raising  the plea of  jurisdiction  at  this stage,  on  the ground that he cannot be permitted  to  both approbate  and reprobate after submitting and acquiescing to the  territorial jurisdiction of the District Forum.  It  is also  not  disputed  that the respondent had  paid  and  the appellant  had  received  an amount of  Rs.35,000/-  towards booking of one CA 805-C-80197 Maruti Car.  He was, later on, intimated by the appellant vide letter Annexure A that:

     "We are pleased to inform you that based on intimation received  from  Maruti  Udyog Limited, all  customer  orders placed with us till COD have matured for payment deposit and

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delivery.  Your FDR deposited with us on (date of deposit of FDR).

     Delivery of vehicle will be made according to the date of  receipt of full payment.  You are, therefore,  requested to  deposit full payment with us, as early as possible.   In the  normal course, your vehicle is expected to be delivered immediately  on  receipt of your payment.  However,  due  to unforeseen  circumstances, the delivery may get delayed by a few days."

     It is also conceded that as desired the balance amount was  paid  by the appellant on 6.8.1990 but the vehicle  was not delivered to him till 25.8.1990.  There being no failure on  the  part of the respondent to perform his part  of  the contract,  the appellant was not justified in demanding  the excess  amount  of  Rs.9,232/-  from  him.   The  submission regarding cut-off date for delivery of vehicle, as mentioned in a letter of Maruti Udyog Limited dated 5.7.1990, does not in  any way advance or strengthen the case of the  appellant because  it did not cast any obligation upon the  respondent to  ascertain its contents and pay the extra amount  despite deposit  of the full amount within the time prescribed  and, admittedly, before the escalation of price by way of rise in excise  duty.   The  appellant, if aggrieved, can  have  his grievance  redressed  against the manufacturer but  can  not force  the respondent to pay the extra amount after  receipt of  the full and final payment as price of the car which was agreed  to be delivered to him immediately after the receipt of  the  full amount.  It is not disputed that the  cut  off date  in the instant case was 6.8.90, admittedly before  the rise  of the prices of the Maruti Cars.  The District  Forum was,  therefore,  justified  in directing the  appellant  to refund  the extra amount to the complainant within the  time specified  in  its  order.    The  State  Commission,  after referring to the facts of the case, rightly concluded:

     "It is then a matter of record that in compliance with the  above, the respondent paid the balance price on the 6th of   August,   1990  and   completed  the  other   requisite formalities,  as  well.  Far from giving the respondent  the delivery  of  the  car  forthwith against  full  payment  as promised,  it was not till nearly a month thereafter that on the  3rd of September, 1990 that the same was offered to him conditional  on  his paying the further amount  of  enhanced price.  The appellant’s negligence is thus writ large on the face of the record in the context of the complainant’s clear assertions  that despite telephonic and personal  reminders, the  needful  was not done by the appellants.  On their  own showing   and  assurance  the  car   was  to  be   delivered immediately  on  receipt  of the full payment and  the  only qualifying  clause was, if some unforeseen circumstance  may happen  to  delay the delivery and that also was not  to  be extended  beyond  a  few  days.  In  the  present  case  the appellants even in their counter-version did not even allege that  there  was  any   unforeseen  circumstance  which  had prevented  them  from making delivery of the car which  they were  bound  to do.  This apart not an iota of evidence  was led  on  their behalf to show any unforeseen or  extenuating circumstance  for  a  delay  of   nearly  one  month.   Even otherwise  because the ground of unforeseen circumstance was not  taken in the pleadings, no evidence could be allowed to be  led  on the point.  In any case the  appellants  neither placed  any  evidence  by way of affidavit  nor  any  proven

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conclusive  documents  to  indicate   that  any   unforeseen circumstance  of  vis-major  had  occurred  to  prevent  the delivery.  Inevitably it must be held in these circumstances that  the  appellants  had  acted   contrary  to  their  own assurance  and the terms of the agreement and  unjustifiably with-held  the  delivery.  Obviously the consumer cannot  be made  to  pay for their default if during this  unauthorised delay,  the  price  of  the vehicle had gone  up.   Had  the appellants  conformed  to both the letter and spirit of  the agreement  between the parties, no such situation would have arisen.   On  the  established case there is  thus  a  clear deficiency  of service for which they have been rightly held responsible  by  the District Forum.  We find not the  least reason to take a view contrary thereto."

     We  do  not find any substance in the appeal which  is accordingly  dismissed  but under the circumstances  without any order as to costs.