K. Haridasan                                                   ... Appellant
Vs.
M/s M.O. Hasan Kuthoos Maricar Pvt. Ltd.        ... Respondent

                                       ORDER

  V.Balakrishna Eradi, J.

         This appeal has been filed by the complainant in case No.4 of 1989 on the file of the state Commission, Pondicherry against the order dated July 5, 1990 passed by the State Commission.

         Neither the appellant nor the respondent was present at the time when the appeal came up for hearing.  After having carefully perused the records we have come to the conclusion that this appeal has to be allowed in part.

         The facts of the case lie in a brief compass.  An advertisement had appeared in the malayalam news paper "Malayala  Manorama" dated January 17,1989 wherein the respondent M/s M.O.Hasan Kuthoos Maricar Ltd., Pondicherry had offered early delivery of Ambassador Diesel cars at a price of Rs.1,24,500/- each.  In pursuance of the said advertisement the complainant, who was then an unemployed motor driving licence holder  was desirous of acquiring a car for the purpose of earning his livelihood by operating it as a taxi, remitted the amount of Rs.1,24,500/- at the company's office at Mahe on January 31,1989 and he received the agreement letter evidenced by Ex.A-2 wherein he was assured that the vehicle would be delivered to him not later than March 31,1989.  Default was, however,committed by the respondent in honouring this assurance regarding delivery. Repeated visits made by the complainant to the office of the respondent at Mahe did not yeild any results.  Subsequently, on April 27,1989, the complainant received a telegram from the respondent intimating him that the delivery of the vehicle could be given only in the third week of May,1989.  However, delivery was not made even within the said period and hence the complainant again repeatedly called at the office of the respondent at Mahe and also sent a registered letter dated May 10,1989 demanding delivery of the car within five days of the receipt of the same. Ultimately, in July, 1989 a telegram was received by the complainant from the head office of the respondent company stating that the vehicle was ready for delivery to him in the Pondicherry office of the company.  But when the Complainant went to Pondicherry to take delivery of the car he was informed that there had been an increase in the price of the vehicle and that he should pay Rs.11,663/- more in order to get delivery of the vehicle and if he was not agreeable to pay the enhanced price he could take back his advance.  Being left with no other option the complainant paid the additional amount of Rs.11.663/- also and took delivery of the car on July 17,1989 after his having been made to sign another agreement which mentioned the enhanced price of the car.

         The appellant thereafter filed the complaint petition before the state Commission, Pondicherry setting out the aforesaid facts and seeking to recover back from the respondent company the sum of Rs.11,663/- collected from him by way of enhanced price of the vehicle together with interest at 12 per cent on the amount of Rs.1,24,500/- which he had deposited with the company as price of the car, for the period from 1.2.1989 to 16.7.89.  In addition the complainant also sought to recover from the respondent a sum of Rs.5250/- representing his loss of earnings during the period from 1.4 1989 to 15.7.1989 as well as a further sum of Rs.10,000/- by way of compensate for mental agony and distress.

         In defence to the petition the opposite party contended that no assurance was ever given by it concerning the date of the delivery of the car and since the complainant had taken delivery of the vehicle with all accessories on July 17, 1989 after voluntarily paying the enhanced price it was not open to him to claim the refund of any portion of the price paid for the vehicle nor recovery of any amount by way of interest or damages under any head of account.

         After examining the documentary evidence relating to the transaction;the State Commission came to the categorical finding that the respondent company had undertaken to supply to the complainant a diesel Ambassador car at the price Rs.1,24,500/- within six weeks from the date on which the cost of the vehicle was fully remitted.  It was further found that the complainant had paid the full cost of the car on January 1,1989 but default was committed by the respondent in making delivery as promised under the agreement and hence the respondent was clearly guilty of violation of the contract. On the question of the entitlement of the complainant to recover back from the respondent the enhanced price collected from him the state Commission took the view that since the complainant had entered into a fresh agreement mentioning the revised price at the time when he took delivery he was not legally entitled to claim a refund of the excess amount paid by way of an enhanced price.  However, the State Commission held that the complainant is entitled to be paid interest at 12 percent on the amount of Rs. 1,24,500/- for the period from 1.2.1989 to 16.7.1989 but while directing such payment of interest the State Commission has however directed that since a reduction of price to the extent of Rs.5000/- had been given to the complainant by the respondent, the said sum should be deducted from the amount of interest payable by the respondent and hence the complainant would be finally entitled only to the balance of Rs.2,000/- by way of interest.  The claims for compensation put forward by the complainant under the head  of "loss of earnings and mental harassment and agony" were summarily disallowed by the State Commission.

         Aggrieved by the said order passed by the State Commission the complainant has come up with this appeal with the prayer that the order passed by the State Commission should be modified by allowing to him the full amount of interest as well as compensation as claimed in the complaint petition under both the heads mentoned above.

         After having given our careful consideration to all aspects of the case we are of opinion that the State Commission was not justified in directing that the amount of Rs.5,000/- purported to have been allowed to the complainant by the respondent by way of reduction in price should be deducted from the interest awarded on the sum of Rs.1,24.500/- for the period from 1.2.1989 to 16.7.1989.  It is clearly seen from the document produced as Ex-3 that even under the original arrangement a deduction of Rs.4,740/- was offered to all persons who booked their orders and paid the full price on or before January 31,1989 and that it was after such deduction that the amount to be deposited by way of price by the complainant was specified at Rs.1,24,500/-.  The complainant was clearly entitled to be granted similar deduction while computing the price after it was enhanced. Hence there was absolutely no justification for giving credit to the respondent for the sum of Rs.5,000/- while quantifying the amount payable by the respondent as interest that had accrued due on the sum of Rs.1,24,599/- from 1.2.1989 to 16.7.1989.  The direction contained in the order of the State Commission for the deduction of Rs.5.000/- be set aside and we hold that the appellant is entitled to recover from the respondent full amount of Rs.7,000/- by way of interest on Rs.1,24,500/- for the period from 1.2.1989 to 16.7.1989.

         The averment of the petitioner that at the time when he placed the order for the car he was an unemployed youth possessing a driving licence and that his purpose in ordering for the car was to secure a means of livelihood by operating the vehicle for hire remains uncontradicted.  Under Ex.A-3, the respondent had categorically assured the complaint that he would be given delivery of the vehicle within six weeks of the date of payment of the price (31st January,1989).  Since the vehicle was delivered only on July 17,1989 after a delay of several months, it is self evident that the complainant must have been put to considerable loss on account of his having to remain unemployed during the said period. Such being the case, we are of the view that the State Commission should have awarded reasonable compensation to the complainant for his loss of earnings during the  said period.  Having regard to all the facts and circumstances we considered that it would be just and fair to fix the compensation payable to the complainant under this head at Rs.2500/-.  We direct that the said amount shall be paid by the respondent to the complainant as compensation for loss of earnings.

         The documents on record also indicate that the complainant had to make a number of visits to the respondent's branch office at Mahe besides making several written representations to the said branch office as well as to the head office of the respondent company. Ultimately, the delivery of the vehicles was effected at Pondicherry which is at a distance of  700 Kms. from Mahe.  On account of the delay in getting delivery of the vehicle and by reason of the complainant having been put to the necessity of writting several letters and making many visits to the office of the respondent company at Mahe, the complainant must have been put to a great deal of mental agony and distress.  It is to be remembered that a large amount which the complainant had borrowed from the bank was lying with the respondent company and there was no certainly as to when the vehicle would be delivered to him.  Hence we find that there is substance in the claim put forward by the complainant for the grant of compensation for the mental agony and distress caused to him,though the quantum of compensation claimed by him, namely, Rs.10,000/- cannot be regarded as reasonable .The State Commission has not given any valid reason for disallowing compensation to the complainant under this head.  Having taken into account all the facts and circumstances of the case we consider that it would be reasonable to allow a compensation of Rs.3000/- to the complainant for the mental agony and distress suffered by him due to the negligence of the respondent and we direct that the said amount also shall be paid to the complainant by the respondent.

         In the result,we allow this appeal in part and modify the order of the state Commission by allowing to the complainant a total compensation of Rs.12,500/- under the three heads mentioned above. This amount shall be paid by the respondent to the complainant within one month from the date of the receipt of a copy of this order.  The parties will bear their respective costs in this.

                                                                                               Top