0BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 14TH of JANUARY 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.166/2010
(Admitted on 05.06.2010)
Mrs.Latha H.,
Wo. Haridas Attavar,
Aged about 47 years,
RA. Babugudda Main Road,
Mangalore. …….. COMPLAINANT
(Advocate for the Complainant: Smt. Manjula).
VERSUS
1. NANO Product Group,
Tata Motors,
Passenger Car Business Unit,
5th Floor, One Forbes,
Dr.V.B. Gandhi Marg, Mumbai,
Rep. by its Managing Director.
(Opposite Party No.1: Exparte)
2. Auto Matrix,
Bejai, Mangalore – 4,
Rep. by its Sales Manager. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.2: Sri.Anantha Krishna Udupa)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, she was attracted by the advertisement and also the mileage of the NANO LX-BS Car made by the Opposite Parties, the Complainant visited the showroom at Mangalore i.e., Opposite Party No.2 and submitted an application for booking of the TATA NANO Car to the Opposite Party No.1 and also applied for loan for the purpose of purchase of the above said vehicle through ICICI bank Limited Mangalore. On 23.04.2009 the Complainant submitted the application for booking of the car by paying a sum of Rs.4,099/- and thereafter the ICICI bank had provided a credit facility of Rs.1,40,000/- to fund the booking amount for NANO Car with minimum interest. After booking, the Complainant’s application was accepted by the Opposite Party No.1 and had sent an allotment letter dated 23.06.2009 and promised her that her NANO shall be delivered between October-December 2009 through the Opposite Party No.2. After the allotment, the Complainant had contacted ICICI Bank who is the financier bank had taken booking loan but the said financier refused to convert the booking loan into NANO auto Loan. Therefore, the Complainant had closed the booking loan amount by paying Rs.1,40,000/- and obtained fresh loan from State Bank of India. The Complainant waited for the delivery of the car till December 2009 but the Opposite Parties have failed to deliver the car within December 2009 and she has been disappointed and cancelled the booking on 07.01.2010. The Opposite Party No.1 refunded a sum of Rs.1,40,000/- to the Complainant vide cheque No.112885 dated 01.02.2010 and immediately on receipt of the cheque the Complainant closed the loan outstanding with the State Bank of India. Because of the delay and lapse on the part of the Opposite Parties, the Complainant had to pay interest on the above said loan amount of Rs.1,40,000/-. Thereafter, the Complainant issued a notice to the Opposite Parties by calling upon to pay the damages but the Opposite Parties failed to comply the demand made therein. Hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay a sum of Rs.9,932.25 being the loss suffered by the Complainant along with interest at 18% p.a. from 07.01.2010 till the date of payment and also claimed Rs.50,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 despite of serving notice neither appeared nor contested the case till this date. Hence, we have proceeded exparte as against the Opposite Party No.1. The acknowledgement placed before the FORA marked as court document No.1.
That the Opposite Party No.2 appeared through their counsel filed version, admitted that the Complainant visited the showroom of this Opposite Party to enquire about the car, the representatives of this Opposite Party had only explained the features of the TATA NANO Car in response to the queries of the Complainant and had at no point of time persuaded the Complainant to purchase the car or apply for allotment of the car. This Opposite Party is not having any knowledge with regard to the credit facility of Rs.1,40,000/- being given by the ICICI Bank for funding the booking amount for NANO Car with minimum interest. This Opposite Party had not made any assurances to the Complainant with regard to the delivery of the NANO Car within October 2009 or December 2009. The enquiry was made by the Complainant directly with the Opposite Party No.1. This Opposite Party is not at all responsible for any alleged inconvenience, mental agony or loss suffered by the Complainant and contended that there is no deficiency as far as this Opposite Party is concerned and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Smt.Latha H (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 to C10 were marked for the Complainant as listed in the annexure. One Sri.T.Pradeep Mayya (RW1), General Manager (Accounts and Administration) of the Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him. Opposite Party No.2 produced two (2) documents as listed in the annexure. Both parties produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative,
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, the grievances of the Complainant is that, attracted by the advertisement and publicities with regard to the mileage of the NANO LX-BS Car manufactured by the 1st Opposite Party, Complainant had approached the 2nd Opposite Party who is the dealer. On representation of the 2nd Opposite Party, Complainant submitted an application for booking of the TATA NANO Car on 23.04.2009 by paying Rs.4,099/- and also availed credit facility of Rs.1,40,000/- with the ICICI Bank. Thereafter, the Complainant’s application was accepted by the Opposite Party No.1 and sent an allotment letter dated 23.06.2009 stating that, the TATA NANO Car shall be delivered between October – December 2009 through Opposite Party No.2 but the Opposite Party not delivered the car till December 2009. Despite of contacting regularly the Opposite Parties not delivered the car and on 07.01.2010 applied for cancellation of the booking and the Opposite Party accepted the same and refunded a sum of Rs.1,40,000/- to the Complainant by way of cheque dated 01.02.2010. It is stated that, because of the non-delivery of the car the Complainant made to pay interest to the loan amount and thereby Complainant has suffered loss other than the inconvenience and mental agony. Hence she came up with this complaint seeking damages.
The Opposite Party No.1 who is the manufacturer of the NANO Car placed exparte in this case. Opposite Party No.2 appeared through their counsel and contended that there is no lapse on the part of the Opposite Party No.2. The delivery of the car was assured by the Opposite Party No.1 hence they are not liable for any deficiency and compensation as claimed by the Complainant.
The Complainant filed oral evidence by way of affidavit and produced Ex C1 to C10. Opposite Party No.2 also filed oral evidence by way of affidavit and produced two (2) documents.
On perusal of the oral as well as documentary evidence on record, we find that, the Complainant produced Ex C1 to C10, wherein, the allotment letter i.e., Ex C4 dated 23.06.2009 the Opposite Parties promised to deliver the vehicle between October – December 2009. And also it is admitted by both the parties that, since they have not delivered the Car as assured by them the Complainant on 07.01.2010 cancelled the booking and the Opposite Party No.1 accepted the cancellation and refunded the booking amount of Rs.1,40,000/- to the Complainant vide cheque No.112885 dated 01.02.2010 in this case. Further we have observed that, the Complainant initially availed the loan with the ICICI Bank and thereafter obtained a fresh loan from the State Bank of India as per Ex C6. The above fact is not denied by the Opposite Parties and payment of the amount of Rs.1,40,000/- also not denied by the Opposite Parties. Admittedly, the Complainant availed the above amount through the State Bank of India and she had to pay interest on the above said amount. Further the Opposite Party No.1 being a manufacturer of the Car should not have received the amount of Rs.1,40,000/- in advance i.e., before delivering the car in question. The Opposite Party has got no right to receive the entire price of the car in advance. And we have further noticed that, the Opposite Party No.1 through their allotment letter promised that the vehicle will be delivered to the Complainant between October – December 2009 but the Opposite Party No.1 failed to deliver the car as promised by them and thereby the Complainant cancelled the booking. It could be seen on record that, the Opposite Party No.1 refunded the booking amount of Rs.1,40,000/- but not paid any interest on the above said amount. Because of the lapse on the part of the Opposite Party No.1, the Complainant had to pay interest on the loan amount other than inconvenience and mental agony.
It is admitted that, Opposite Party No.2 is a dealer, the Opposite Party No.2 had not made any assurance to the Complainant with regard to the delivery of the NANO Car within October 2009 or December 2009. Hence, there is no deficiency on the part of the Opposite Party No.2.
In view of the above discussion, we hold that, Opposite Party No.1 who is the manufacturer received the entire amount in advance from the Complainant and later not delivered the Car as per their allotment letter i.e., Ex C4 amounts to deficiency in service.
As far as compensation is concerned, admittedly, the Complainant availed a loan initially with the ICICI Bank and thereafter with the State Bank of India and paid the interest from the date of loan till the date of payment. In the instant case, the Complainant paid Rs.1,40,000/- to the Opposite Party No.1 and the booking amount i.e. Rs.1,40,000/- refunded vide cheque No.112885 dated 01.02.2010 without any interest on the said amount. Because of the deficiency on the part of the Opposite Party No.1, the Complainant suffered financial loss by paying interest to the bank and also inconvenience. Hence the Opposite Party No.1 is hereby directed to pay Rs.10,000/- as compensation for the inconvenience and mental agony caused to the Complainant and also pay Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
There is no deficiency on the part of the Opposite Party No.2, hence complaint against Opposite Party No.2 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is partly allowed. Opposite Party No.1 is hereby directed to pay Rs.10,000/- (Rupees ten thousand only) to the Complainant as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party No.1 is hereby directed to pay interest at the rate of 10% p.a. on the total amount from the date of failure till the date of payment.
Complaint against Opposite Party No.2 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 10 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 14th day of January 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Smt.Latha H – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 23.03.2004: Application form for TATA NANO Booking (Xerox).
Ex C2 – : Acknowledgement form (Xerox).
Ex C3 – : Letter by Opposite Party No.1 (Original).
Ex C4 – 23.06.2009: Allotment letter (Xerox).
Ex C5 – 01.07.2009: Confirmation of allotment from AICICI Bank (Xerox).
Ex C6 – 16.07.2009: Processing of application of Nano Car Loan – SBI, Mangalore (Xerox).
Ex C7 – 12.10.2009: Letter issued by the Complainant to the Opposite Party No.1.
Ex C8 – 07.01.2010: Acknowledgement receipt for cancellation of booking (Original).
Ex C9 – 05.02.2010: No due certificate – SBI, Mangalore.
Ex C10 – 05.03.2010: Copy of the Lawyer’s notice issued to the Opposite Party No.1 and 2 along with postal receipts and postal acknowledgements.
Doc. No.1: Statement of account issued by State Bank of India, Mangalore pertaining to the Complainant from 01.04.2009 to 06.02.2010.
Witnesses examined on behalf of the Opposite Party No.2:
RW1 – Sri.T.Pradeep Mayya, General Manager (Accounts and Administration) of the Opposite Party No.2.
Documents produced on behalf of the Opposite Party No.2:
Doc. No.1: 01.01.2009: Promotion letter cum appointment letter.
Doc. No.2: 14.07.2010: Authorization letter.
Dated:14.01.2011 PRESIDENT
