1.Omkar Vaagans by its Managing Director V/S N.Babu Ganesh - Consumer Court Case

Tamil Nadu

Thiruvallur

CC/13/2015

N.Babu Ganesh - Complainant(s)

Versus

1.Omkar Vaagans by its Managing Director - Opp.Party(s)

Party in Person

08 Sep 2015

ORDER

Date of Filling : 02.02.2015

Date of Disposal: 08.09.2015

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR

PRESENT: THIRU. S.PANDIAN, B.Sc., L.L.M., … PRESIDENT

TMT. S.SUJATHA,B.Sc., … MEMBER-I

CC.13/2015

Tuesday, the 8^th day of September 2015

N.Babu Ganesh

3450, Block F2,

MIG, 6^th Block,TNHB,

Avadi, Chennai- 54. …Complainant

Omkar Vaagans by its Managing Director,

(Authorized Dealer for Mahindra Two Sheelers)

No.298, CTH Road, Avadi, Chennai-54.

Zonal Business Manager,

Mahindra Two Wheelers Pvt. Ltd.,

No.95, Celebraty Building,

3^rd Floor, “T”Block, 3^rd Avenue,

Anna Nagar, Chennai 600 040. …Opposite Parties

….

This Complaint is coming upon before us finally on 03.09.2015 in

the presence Thiru.A.R.Poovannan, Advocate on the side of the complainant and the opposite parties having been set exparte and upon hearing arguments on the side of the complainant and perused the documents and evidence, this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of the Consumer Protection Act 1986, to direct the opposite parties to refund the cost of Rs.1,570/- with interest at the rate of 24% per annum from 28.08.2014 to till repayment and to pay a sum of Rs.25,000/- each for deficiency in service, unfair trade practice, complete the registration of the motorbike and caused mental agony and pain by the opposite parties respectively with cost of Rs.15,000/-.

The averments of the complaint are as follows:

1. The complainant on assurance quality product and service given

by 1^st opposite party, believing the same and after confirmation of exchange offer of Rs.7,000/- for his old motorbike Mahindra Centurio N-1. While booking complainant was informed by 1^st opposite party’s Manager Mr. Anand that total cost of motorbike was Rs.45,451/- exclusive of accessories, registration, Insurance and other charges, in all amounting to Rs.52,950/-. The complainant was to make an initial payment of Rs.16,664/-. The complainant was assured by this Manager that they will arrange finance for remaining balance cost of motorbike through one Capital First ltd.,

2. Believing this, the complainant on 02.08.2014 paid Rs.2,000/-.

On 18.08.2014, the complaint gave his old motorbike TN 20 Q 0101 for exchange price of Rs.7,000/- in which payment and exchange were duly acknowledged. The complaint was told to pay the balance cost Rs.9,000/- out of initial payment of Rs.16,664/- after completion of loan installments on 02.08.2014.

3. The 1^st opposite partys Manager after 5 days telephonically informed the complainant that the loan through Capital First Ltd. Could not be done. On his suggestion loan arrangement was made with Sri Ram City Finance and complainant was asked to pay balance cost. Accordingly on 18.08.2014 complainant paid Rs.7,664/- by cheque No.798505 drawn on SBI Avadi Branch and the requested delivery date was agreed by 1^st opposite party. On 28.08.2014 information given by 1^st opposite party, the complainant went to take delivery. The complainant was totally shocked to hear 1^st opposite party’s bombshell that Ex-showroom price for motorbike “Mahindra Centurio” N-1 was increased to Rs.46,893/- from 07.08.2014 onwards. The complainant was asked to pay an additional cost Rs.1,570/-.

4. The complainant was not informed of such price rise anytime, by 1^st opposite party, hence complainant refused to pay as per their demand, so vehicle delivery was not given. On 28.08.2014 at 8.00 p.m. 1^st opposite party’s personnel came home colleted a cheque for Rs.1,570/- towards balance, from the complainant.

5. On 31.08.2014 complainant’s internet verification about Ex-showroom price increase for motorbike “Mahindra Centurio” N-1 showed cost as Rs.45,101/- only.

6. The complainants request for refund of Rs.1,570/- collected excessively on 28.08.2014, 1^st opposite party rudely refused to comply. In spite of a complainants letter dt.18.9.2014 to 1^st opposite party, despite receiving in the 1^st opposite party failed to reply or respond.

7. The complainant was saddened by the inordinate delay in getting motorbike registration done, despite payment made, which agony and pain has to be duly compensated as well. The opposite party had committed unfair trade practice by collecting excess when there was no increase in Ex-showroom price for “Mahindra Centurio” N-1 even as on 31.08.2014. Hence this complaint.

8. In respect of sufficient of time and opportunity given to both the opposite parties, but they do not choose to appear before this Forum and therefore they were set exparte. Even though the opposite parties remained exparte, this Forum warms to dispose this complaint purely on merits.

9. On the side of the complainant, proof affidavit is filed as his evidence and in order to prove the complaint Exhibit A1 to A8 are marked.

At this juncture, the vital point for determination before this Forum is

1. Whether there is any unfair trade practice and deficiency in service on the side of eh opposite parties?

2. Whether the complainant is entitled for any relief as prayed for in the complaint.

10. Point 1: Regarding this point, the case of the complainant is that

for purchasing the motorbike Mahindra Centurio N1 on exchange of his old motorbike No.TN 20 Q 0101. The opposite parties collected Rs.1,750/- more than the Ex-showroom price and on refund by the complainant. The 1^st opposite party refuse to repay the said amount and also fail to register the said new vehicle as promised by the 1^st opposite party and thereby caused inordinate delay and therefore the opposite parties have committed the unfair trade practice and deficiency in service.

11. At the outset, this Forum wants to enlighten that even the opposite parties remained exparte, the foremost duty of the complainant to prove the complaint with relevant and acceptable evidence, then only this Forum can decide the just decision of this case.

12. At this juncture, this Forum has to consider as to whether the complainant has proved the allegations made in the complaint with cogent and constant evidence. First of all, in respect of the unfair trade practice of the 1^st opposite party by collecting the excess amount of the Ex-showroom price as to be taken in to account.

13. In this regard, on careful perusal of the proof affidavit of the complainant, it is stated that on 02.08.2014, while the complainant was booking the motorbike Mahindra Centurio N-1 on that day he was informed by the 1^st opposite party that the total cost was Rs.52,950/- including the cost of the vehicle, accessories, registration, Insurance and other charges and thereby the complainant pay Rs.2,000/- on 02.08.2014 and on 08.08.2014, he handed over his old motorbike No.TN 20 Q 0101for exchange price of Rs.7,000/- and on completion of loan arrangement.

14. The complainant has paid Rs.7,664/- by means of cheque

bearing no.798507 and the 1^st opposite party was agreed to take delivery date as 28.08.2014. The said Proforma Invoice is marked as Exhibit A1, the receipt voucher dated 02.08.2014 for Rs.2,000/-, the receipt voucher dated 18.08.2014 for Rs.7,664/- are marked as Exhibit A2 and A3 respectively.

15. It is further seen from evidence that on 28.08.2014, the complainant when for taking the delivered of the vehicle, he was informed by the 1^st opposite party that the cost of the vehicle was increased Rs.46,893/- from 07.08.2014 in spite of Rs.45451/- and therefore he was asked to pay an additional cost of Rs.1,570/- and in this connection, the 1^st opposite party’s personnel collected the cheque for Rs.1,570/- which is marked as Exhibit A4. The said vehicle was delivered on 28.08.2014, itself for which the delivery receipt is marked as Exhibit A5. Thereafter on 31.08.2014, the complainant verify the Ex-showroom price increase of motorbike Mahindra Centurio N1, through internet. It was seen that no increase in the cost of the said vehicle till 31.08.2014 and the internet particulars download printing copy is marked as Exhibit A6.

16. It is further stated in the proof affidavit of the complainant it is brought to the knowledge of the complainant that the 1^st opposite party has collected excess of Rs.1,570/- on 28.08.2014 and therefore he wrote a letter dated 18.09.2014 for refund of the said amount and also for early registration of the new vehicle, which is marked as Exhibit A7 and for that the proof of delivery is marked as Exhibit A8.

17. Such being the position, this Forum has to see whether the documents relied on the side of the complainant are relevant to the facts of the complaint. First of all on seeing the Exhibit A1, through naked eye it is only the Proforma Invoice, in which the price of the Mahindra Centurio N-1 Motorbike on road price is mentioned as Rs.52,950/- and including the accessories total amount mentioned as Rs.53,500/-. It is further noticed from the Exhibit A1, that the price quoted above are subject to change without notice and thus ruling on the day of delivery will be applicable from this condition. So, it is crystal clear that the cost of the said vehicle will be only on the day of delivery. In such circumstances as per Exhibit A5, the vehicle was delivered on 28.08.2015 and the same was acknowledged by the complainant himself, from this Exhibit A5, it is clearly revealed the fact that he has received the documents viz. the vehicle Invoice, the accessories, bills, Insurance policy, Free service coupon book with Guarantee card, Battery Guarantee card and tool kit. If it is so, the complainant is certainly in possession of the purchase Invoice of the vehicle and the accessories bills, but the same are not at all produced before this Forum in order to prove the actual cost price of the vehicle paid by the complainant on 28.08.2014, which the date of delivery of the vehicle. If it is produced only, the actual amount was paid by the complainant can be ascertained.

18. More over, as per the condition note in Exhibit A1, the price will be subject to change on the day of delivery will be applicable. Not only that the alleged excess price was collected by the opposite party for what purpose and circumstances have to be ascertained only on the production of the purchase Invoice of the vehicle as well as other documents. But the complainant failed to do so.

19. At this point of time, it is pertinent to note that there is no date

mentioned in the Exhibit A6. Therefore the said document cannot be taken as relevant document for the purpose to show that the price of the vehicle has not been increased till 31.08.2014 averred by the complainant. For the foregoing among other facts, it is crystal clear that the complainant has not at all produced any relevant document to show that the 1^st opposite party has received the excess amount of Rs.1,570/- towards cost of the vehicle and thereby the complainant failed to prove the same. Therefore, the complainant has not proved the allegation about the unfair trade practice committed by the opposite parties.

20. Next point to the decided by this Forum is, as to whether the 1^st opposite party has purposely delayed the registration of the new vehicle as alleged the complaint. Regarding this, there is no document produced. In respect of Exhibit A7, the letter, it is pertinent to say that the vehicle was purchased on 28.08.2014 and the proof affidavit filed before this Forum on 28.07.2015, it is certainly that the vehicle would have been registered some time earlier. If it is so, what hindrance to the complainant to produce the R.C. Book, before this Forum in order to prove the delay if any committed by the 1^st opposite party and in fact the same has not been explained by the complainant before this Forum. Therefore, the deficiency in service on the part of the 1^st opposite party has also not been proved by the complainant by means of consistent evidence.

21. At this juncture, mere not replied by the opposite parties to Exhibit A6, is not sufficient to say that the allegations made in the complaint are all accepted by the opposite party. In fact, the said allegations ought to have been proved by the complainant, which is settled position of law.

22. In light of the above facts and circumstances of the case, it goes without saying that the complainant has not moved this Forum with clean hands and thereby this Forum can easily to hold without any hesitation that the complainant has not proved the allegations made in the complaint against the opposite parties. Thus the Point No-1 is answered accordingly.

23. Point 2: In view of the conclusion arrived in point No-1, this complainant is not entitled for any relief as prayed in the complaint. Thus the point no.2 is answered accordingly.

In the result, this complaint is dismissed. No costs.

Dictated by the president to the steno-typist, transcribed and computerized by her, correctly by the President and pronounced by us in the open Forum on this 8^th September 2015.

Sd/- Sd/-

MEMBER I PRESIDENT

List of Documents filed by the complainant

Ex.A1/Dt.02.08.2014: Xerox copy of the Proforma Invoice given by the 1^st