Andhra Pradesh

Nellore

CC/2/2017

Alwarusetty Chenchaiah, S/o. Chenchu Ramaiah - Complainant(s)

Versus

1. M/s. Lucky Automotives private Limited, Rep. by itsManager, Authorised Dealers for Nissan and Dat - Opp.Party(s)

Sode Nageswara Rao

27 Sep 2017

ORDER

Date of filing       :  22-12-2016

Date of Disposal :   27-09-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                            Wednesday, this the 27th day of  SEPTEMBER, 2017.

           Quorum: Sri Sk.Mohd.Ismail, M.A., LL.B.., President

                          Sri K.Umamaheswara Rao, M.A., B.L., Member

                          Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M, Member

                                                                             

CC No.2/2017

Alwarusetty Chenchaiah,

S/o.Chenchu Ramaiah,

Hindu, aged about  59 years,

Residing at H.No.24-559, Mulapet,

Nellore.                                                                            …  Complainant

 

    Vs.

 

1.M/s.Lucky Automotives Private Limited,

    Rep. by its Manager,

    Authorised Dealers for Nissan & Datsun Cars,

    NH 5, Chemudugunta Panchayat,

    Venkatachalam Mandal,

    Nellore.

 

2.  The Managing Director,

     Nissan Motors India Pvt.Ltd.,

     Corporate Office,

     5^th Floor, ASV Ramana Towers,

     52, Venkatanarayana Road,

     T Nagar,

     Chennai  - 600 017.                                                … Opposite parties

 

 

This matter coming on 26-09-2017 before us for final hearing in the presence of Sri Sode Nageswara Rao, Advocate for the complainant and Sri M.Sirish Kumar, Advocate for the opposite party No.1 and opposite party No.2 appeared as in-person and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                                                                  (By Sri Sk.Mohd.Ismail, M.A., LL.B.., President)

       

1.     The complainant filed this complaint against the opposite parties 1 and 2 under section 12 of Consumer Protection Act to direct the opposite parties        1 and 2  to refund Rs.5,000/- with interest @ 24% p.a., from the date of the receipt of the payment i.e., 28-05-2016 till the date of the receipt of the payment i.e., 28-05-2016 till the date of realization, to pay Rs.1,00,000/- towards damages for mental agony, financial loss and inconvenience caused due to deficiency of service , unfair trade practice and negligence and caused to the complainant to grant costs of Rs.3,000/-.

2.  The brief averments of the complaint are as follows:

      The complainant submits that the 1^st opposite party is the authorized dealer for Nissan & Datsun Cars, and 2^nd opposite party is the manufacturer and the opposite parties gave wide publicity about their Redi Go car of Datsun make and opposite party No.1 approached the complainant and boasted about the launching of the Redi Go car.  The complainant further submits that attracted by the advertisement in print and electronic media apart from inducement and boasting about the Redi Go Car by the executive of opposite parties, the complainant intended to purchase the said car.  The 1^st opposite party collected a refundable booking amount of Rs.5,000/- by cheque drawn on Axis Bank, Nellore towards advance booking amount for the said Datsun REdi Go car from the complainant under receipt dated 28-05-2016, so saying the said booking amount will be adjusted in the sale invoice amount or refund the same if booking is cancelled by the complainant.  After collecting the said refundable booking amount subsequently, the opposite party No.1 issued quotation/proforma invoice dated 23-06-2016.

3.      The complainant further also submits that the complainant on verifying the quotation/proforma invoice issued by the opposite party No.1 the complainant found that the opposite party No.1 is collecting Rs.6,900/- towards logistics charges, which the opposite parties are not supposed to collect and also insisted the complainant to take insurance policy for the vehicle to be purchased from opposite party No.1, by paying exorbitant amount of Rs.13,622/- as against the low premium being collected by the other Government owned insurance companies for the same value of the said vehicle.  Insistence to pay the said logistics charges and heavy insurance premium clearly goes to show their unfair trade practice and deficiency in service.  When the opposite parties asked gave evasive replies.  So, having aggrieved with the unethical and unfair trade practice of collecting logistic charges from the customers and also adopting adamant attitude of insisting the complainant to take insurance policy from opposite party No.1 itself with heavy and abnormal premium, for the car to be purchased, the complainant requested opposite party No.1 and 2 to cancel the booking and to refund booking amount of Rs.5000/- and also the complainant has lodged a protest to opposite party No.1 and opposite party No.2 by phone calls and as well as by emails.  The complainant also sent cancellation letter dated 01-08-2016 and email cancellation dated 06-08-2016 to opposite parties and the complainant  further submits that having lost confidence in the integrity of opposite party No.1, the complainant requested both opposite parties to refund the booking amount of Rs.5,000/- immediately.  Despite repeated requests in person and through phone calls and emails, opposite party No.1 and 2 did not choose to comply with the request of the complainant in refunding the said booking amount because of which the complainant suffered lot of mental agony, inconvenience, financial loss and lost faith in opposite parties and its organization for their unfair trade practice and deficiency in service and it is the legal and bounden duty of the opposite parties to refund the booking amount of Rs.5,000/- immediately as and when the complainant requested cancellation and to refund the same.  But, the opposite parties did not choose to refund the same so far and thus committed gross negligence, unfair trade practice and deficiency in service.  Due to that the complainant suffered lot of mental agony, financial loss, inconvenience.  So, vexed with their attitude, the complainant got issued legal notice to both the opposite parties on 11-11-2016 demanding them to refund the amount of Rs.5,000/- and to pay compensation.  Having received the same, both the opposite parties kept quite without any reply and did not choose to comply with the demand and thus committed gross negligence, unfair trade practice and deficiency in service.  So, the opposite parties are not only liable to refund the amount of Rs.5,000/- with interest, but also liable to pay damages. Thus, the opposite parties committed deficiency of service towards the complainant and submits to allow the complaint with costs.

 4.  The opposite party No.1 filed counter with the following averments:

       The opposite party No.1 submitted that this complainant intentionally filed the present case against the opposite party even though the opposite party to ready and willing to comply the illegal demand of the complainant.  The complainant did not produced receipt on which he is depending.  The opposite party several times requested the complainant to approach the company with proper receipt.  But, the complainant is the person who is postponing the same and taking time in order to produce receipt.  Now, also the opposite party is ready and willing to comply the demand of the complainant.  Several times the opposite party informed and intimated that they are ready to return the advance amount.  As per the company rules and norms the complainant has to produce the receipt, but the complainant did not complied the same and did not produce the receipt, but the complainant did not complied the same and did not produced advance receipt to the company and without producing the same, he intentionally for his wrongful gain did not produce the advance receipt.  Now also the company is ready to return the advance amount to the complainant on producing the advance receipt.  There is no any willful to sue such an illegal case against the company on the default of the complainant.  Only for his wrongful gain and to fulfill his illegal demand the complainant filed the present case.  On the other hand the complainant is well versed known legal person and accordingly he filed the present complaint as he is an advocate practicing in Nellore.

5.  On behalf of the complainant, chief affidavit of complainant is received as evidence affidavit of PW1 and Exs.A1 to A7 are marked.

6.  On behalf of the opposite parties 1 and 2,  chief affidavit of opposite parties 1 and 2 received as evidence affidavit of RW1 and RW2 and Exs.B1 to B3 are marked.

 

7.  On behalf of both parties, written arguments filed.

8.  Arguments on behalf of both parties heard.

9.  Perused the written arguments.

10.  Now, the points for consideration are:

    1) Whether the complaint filed by the complainant against

        the opposite parties 1 and 2 under section 12 of Consumer

        Protection Act, 1986 alleging deficiency of service against the opposite

        parties 1 and 2 is maintainable?

   2)  To what relief, the complainant is entitled?

 

11.  POINT NO.1  The learned counsel for the complainant submits by relying the evidence affidavit of PW1 and Exs.A1 to A7 that the complainant paid a sum of Rs.5,000/- towards the advance booking of car from the opposite party and after receiving all the proforma invoices, the complainant came to know that the opposite party No.1 is collecting Rs.6,900/- towards logistic charges and sum of Rs.13,622/-  towards the insurance policy, which is exorbitant and hence the opposite parties 1 and 2 acted unfair trade practice, since  the complainant cancelled the agreement and inspite of issuing of notice, as the opposite parties 1 and 2 failed to pay the advance amount of Rs.5,000/-, the complainant filed this complaint against the opposite parties 1 and 2 claiming refund of Rs.5,000/-, compensation of Rs.1,00,000/- and costs of the complaint and he further submitted by relying upon a decision reported in

            M/s.Swamy Auto Mobiles Pvt. Ltd.,  (Genus Motors)

            through its Director, Industrial Area, Phase-1 ,

            Chandigarh  Vs. 1)  Ajmeer Sing, S/o.Dyal Singh,

            #1194, sector-79, Tehsil & District SAS Nagar, Mohali,

             2) Volksvagon group sales India (P) Ltd., Maker Mixity   

            Level 4,3 North Avenue, Bandrakurla complex,

            Bandra(East) Mumbai – 400051 (India) through its

            Managing Director, Dated 10-08-2011 on the file of

            Union territory, Chandigarh.

 

         that  the complainant is entitled for compensation of Rs.1,00,000/- and costs and submits to allow the complaint with costs.

   

12.       On the other hand, the learned counsel for the opposite parties submits that by relying upon Ex.B3 that the complainant was informed about the vehicle but there is no response from the complainant, since he submits that as there is no deficiency of service on the part of opposite parties  and he submits for the dismissal of the complaint against the opposite parties 1 and 2 with costs.   

13.     In view of the arguments submitted by the learned counsels for the both parties and considering the facts of the case, it is an admitted fact that the complainant paid a sum of Rs.5,000/- to the opposite parties for purchase of Datsun Redi Go car and  during the course of the enquiry, the opposite party deposited the said amount in the District Forum, Nellore  on 19-09-2017.  The complainant paid a sum of Rs.5,000/- towards the advance of the booking of car as required by him. As, it is only agreement between the complainant and the opposite parties for purchase of car as stated by the complainant, we of the opinion that there is no  sale transaction, there is no consumer relationship between both parties    In

              M.N.Narasimha Reddy Vs.M.D., Maruti Udyog Ltd.

              and others 1991 2 CPJ 346 (NC)

     Wherein the Hon’ble National Commission held that the definition of Consumer contemplates the pre-existence of completed transaction of sale and purchase and the person who has merely entered into an agreement for purchase of goods will not fall within the scope of the definition of consumer.  

                                             In

                  Oscar Motors Pvt.Ltd., Vs. Paadip  Rathor

                  delivered in IV (2016) CPJ 47 (Tri)

 

           Wherein the Hon’ble State Commission held that booking of car – non delivery of vehicle – alleged deficiency in service and the complainant made agreement to purchase a car on deposit  of Rs.50,000/-  is booking money  and definition - Consumer contemplates, Pre-existence of pleaded transaction of sale and purchase and person who has merely entered an agreement for purchase of car not fall within  ambit of definition of  Consumer- Complainant not consumer.

 

 14.   Following the above decisions, we are of the opinion that as the complainant who merely entered into an agreement for purchase of car  is not falls  within the definition of Consumer and when the complainant is not a consumer of opposite parties it cannot be possible to say that the opposite parties  acted in deficiency of service  towards complainant.   By relying upon

 upon the above decision and the discussion made above,  we are of the opinion that the complaint filed by the complainant against the opposite parties 1 and 2 is not maintainable and the same has to be dismissed.  In view of the above said discussion, we answered this point against the complainant in favour of the opposite parties 1 and 2.

14. POINT NO.2:  In view of our answering on point No.1 against the complainant and in favour of the opposite parties 1 and 2, we are of the opinion that the complaint filed by the complainant has liable to be dismissed.

        In the result, the complaint is dismissed but in the circumstances no costs.

         However, as the opposite parties 1 and 2 deposited Rs.5,000/- in District Forum, Nellore, the complainant is at liberty to withdraw the same after filing of cheque petition as per rules.

         With this observation, this complaint is dismissed.

             Dictated to the Stenographer, transcribed by her and corrected and pronounced by us in the Open Forum this the 27th day of,  SEPTEMBER,              2017.    

  Sd/-                                   Sd/-                                             Sd/-  

        MEMBER                         MEMBER                                    PRESIDENT

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

25-04-2017

:

Alwarusetty Chechaiah, S/o.Chenchu Ramaiah, Hindu, aged about 59 years, residing at H.No.24-559, Mulapet, Nellore.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1	11-08-2017	:	Shaik Riyazuddin, S/o.Moinuddin, Muslim, aged about 40 years, working as Manager in M/s.Lucky Auto Motives (P) LTd., Authorised Dealer for Nissan & Datsun Cars, N.H.5 Road, Chemudugunta, Venkatachalam mandal, SPSR Nellore District.
RW2	22-08-2017		Arani Praveen Kumar, S/o.Prabhakar, Hindu, aged about 30 years, resident of Door No.9/293, Rathamanu street, Kapadipalem, Nellore, working as Sales Executive in M/s.Lucky Auto Motives Pvt.Ltd., Authorised Dealer for Nissan & Dutsun Cars, N.H.5 Road, Chemudugunta, Venkatachalam mandal, SPSR Nellore District.

                                                                        

 

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	28-05-2016	:	Booking receipt for Rs.5,000/- issued by the opposite party No.1 in favour of the complainant.
Ex.A2	23-06-2016	:	Quotation/proforma invoice issued by opposite party No.1 in favour of the complainant.
Ex.A3	01-08-2016	:	Office copy of cancellation of REDI GO booking letter.
Ex.A4	06-08-2016	:	Office copy of E.mail cancellation of REDI GO booking letter.
Ex.A5	11-11-2016	:	Copy of legal notice got issued by the complainant to the opposite parties 1 and 2 along with regd.post receipts (two in nos.).
Ex.A6	-	:	Postal acknowledgements (2)
Ex.A7	20-10-2016	:	Copy of Eenadu paper news item.

 

EXHIBITS MARKED FOR OPPOSITE PARTY:                         

 

Ex.B1	02-08-2016	:	Copy of communication mail sent from Opposite party No.2  to Opposite party No.1
Ex.B2	10-09-2016	:	Copy of Communication mail sent from Opposite party No.2 to opposite party No.1.
Ex.B3	-		Copy of list of itemized calls.

       

                                                                           Id/-

                                                                      PRESIDENT

 

 

Copies to:

 

1. Sri Sode Nageswara Rao, Advocate, Old D.No.26/42, New D.No.23-1-912, Beside flour Mill, Rajagari Street Centre, Near Alenkar Centre, Mulapet, Nellore.
2. M.Sirish Kumar, Advocate, Nellore.

 

    3)  The Managing Director, Nissan Motors India Pvt.Ltd.,

         Corporate Office, 5^th Floor, ASV Ramana Towers, 52, Venkatanarayana

         Road, T Nagar, Chennai  - 600 017.                                    

 

 

Date when order copies were issued: