IMPORT ANT POINTWhen the opp. party booked an order for delivery of a car after taking full price amount of the car and failed to deliver it within the promised period, it was a deficiency in service.

C.G. Sethulekshmi, Member - The complainant in this case had placed an order with the opposite party who is a dealer of Ambassador Cars. The case of the complainant was that in the month of June 1990 the opposite party informed the complainant that if full price 'of the car was given, it could deliver the car within a period of 10 to 12 weeks. Accordingly the complainant obtained a loan from the Nedungadi Bank Ltd. Kalpathy Branch, Palghat and sent a Demand Draft for an amount of Rs.1,58,400/- towards the full cost of the car to the opposite party through the Nedungadi Bank on 20.7.1990. The D.D. was received by the opposite party and for that a receipt dated 23.7.1990 was also issued by them. The allegation of the complainant was that the opposite party did not supply the car as promised. As the opposite party did not care to deliver the car, the complainant approached the Nedungadi Bank and the Bank through its lawyer issued a lawyer notice dated 13.2.1991 to the opposite party. Subsequently the complainant himself also sent a notice on 21.3 .1991. There was no response from the opposite party.

2. Meanwhile the Bank started debiting the loan account of the complainant with interest and as such, at the time of issuing notice, the complainant had paid a sum of Rs.16,000/- towards the loan account. It was also contended by the complainant that as the bank had debited the complainant with 18% interest, the complainant is entitled to get this from the opposite party. The loan amount was sent to the opposite party through demand draft towards the price of the car and it was received by them and the amount was completely used and enjoyed by the opposite party without delivering the car and therefore the opposite party is liable to pay compensation: According to him he had mental agony due to the non delivery of the car after the payment of full cost of the vehicle.

3. As there was no response from the opposite party the complainant filed the complaint to redress his grievance. The claim of the complainant was for an order to direct the opposite party to refund Rs.1,58,400/- the amount which was already paid towards the full cost of the car with '18% interest and to pay a compensation of Rs.5,000/- for mental agony suffered.

4. The complainant appeared before us through his counsel. The opposite party filed its version but did not made any appearance. The complainant produced oral as well as documentary evidences to prove his case. The complainant himself and the clerical staff Sri. Santhosh Kumar of Nedungadi Bank, Kalpathy Branch were examined in chief but were not cross-examined as there was no appearance of the opposite party. Five documents were produced and were marked as Exbts. P1 to P5(a).

5. The only contention raised by the opposite party in its version was that as the vehicle was booked, under tourist taxi quota, the purchase of the vehicle was intended for commercial purpose and therefore the complainant is not a consumer as defined in S. 2(1 )d(i) of the Consumer Protection Act

6. But this contention did not impress us much. We are convinced that the complainant is a dealer in Ambassador Cars. The opposite party books orders for Ambassador cars, receives the advance or full price, places orders with the manufacturers and gets the vehicle and delivers them to the customers for whom the opposite party is dealing. These functions of the opposite party constitute a service for hire. From the evidence we' are convinced that the complainant had hired the service of the opposite party for the booking and supply of an Ambassador Diesel car and had paid the full cost of the vehicle to the opposite party. Exbt. P1 is the letter dated 26.6.1990 by the opposite party contains an assurance that the opposite party will render the best service at all times to the persons intending to purchase the vehicles through them. Hence the complainant is a consumer as defined in S. 2(1)(d)(ii) of the I Consumer Protection Act and therefore is en