Tamil Nadu

StateCommission

CC/105/2013

M. MOHAIDEEN - Complainant(s)

Versus

ABRA MOTORS PVT. LTD., GENERAL MANAGER - Opp.Party(s)

DEENADAYALAN

04 Feb 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

PRESENT :  HON’BLE THIRU JUSTICE R.REGUPATHI                PRESIDENT  

                    THIRU.J.JAYARAM                                                     JUDICIAL MEMBER

                    TMT.P.BAKIYAVATHI                                                 MEMBER

 

C.C.NO.105/2013

DATED THIS THE 4^th DAY OF FEBRUARY 2015

                                                                            

Date of filing : 30.08.2013

                                                                                    Date of order : 04.02.2015

M.Mohaideen,

No.127A, Bricklin Road,

Block No.7, Flat No.7092,

TVH Limbini Square,                                                       ..Complainant

Purasawakkam,

Chennai 600 007.

                             -vs-

 

1.  M/s.ABRA Motors Pvt.Ltd.,    

    (Presently named as Volkswagen-Chennai

    Rep. by its General Manager (F & A)

    No.808, Anna Salai, G.R.Complex,

    Nandhanam, Chennai 600035.

 

2. M/s.Volkswagen Group Sales India Pvt.Ltd,

    Rep. by its General Manager (F & A)                            ..Opposite parties

    No.3, North Avenue, Level IV,

    Maker Maxity, Bandra,

    Kurla Complex, Bandra (East),

    Mumbai 400 051.

   

Counsel for Complainant             :         M/s. Deenadayalan

Counsel for 1^st Opposite Party     :          M/s. Nandini Ram

2^nd Opposite party                               Called absent

J. JAYARAM, JUDICIAL MEMBER

This case coming before us for final hearing on 25.11.2014 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following Order:

 

          2.       The case of the complainant is as follows:

                    The complainant booked a VENTO car High Line (M.T.) on 25.10.2010 with the 1^st opposite party and paid an advance of Rs.75,000/- and the 1^st opposite party assured the complainant that the car would be delivered within 5 months from the date of booking.  But till date the 1^st opposite party has not delivered the car inspite of repeated demands.  Therefore he issued legal notice to the 1^st opposite party on 11.8.2011 and after a delay of 10 months, on 12.6.2012 the 1^st opposite party sent a reply for which the complainant issued a rejoinder on 25.06.2012.  Due to the careless attitude of the 1^st opposite party in not delivering the VENTO car to the complainant in time it has caused heavy loss, damage and mental agony to the complainant.  The 1^st opposite party did not deliver the car and so he was constrained to book a Vento Car (High line M.T. Black Colour) with TVS Volkswagen Dealer, Chennai on 25.4.2012 and took delivery of the car on 5.5.2012 at the escalated cost of Rs.12,45,000/- and also got special registration number TN 01 AT 2525 on paying further sum of Rs.45,000/- and as such he has spent a total sum of Rs.12,90,000/-.  If the 1^st opposite party had delivered the above car in time as desired by the complainant and as assured by the opposite party the cost of the car was Rs.10,56,652/- only.  The failure to deliver the car by the 1^st opposite party amounts to deficiency in service on the part of the opposite parties.  Hence the complaint praying for direction to the 1^st opposite party to return the sum of Rs.75,000/- being the advance amount paid to the 1^st opposite party with interest at the rate of 24% per annum from the date of payment i.e., 25.10.2010 till the date  of realization and to pay a sum of Rs.2,00,000/- being the escalated amount paid by

 

the complainant to buy from TVS Volkswagen Dealer, Chennai with interest at 24% per annum from May 2010 to till date of realization and to pay further sum of Rs.10,00,000/- for mental agony suffered by the complainant and to pay a sum of Rs.10,00,000/- towards the damages suffered and a further amount of Rs.2,25,000/- being the monetary loss due to non-delivery of the car in time.

3.       The 2^nd opposite party did not appear before this commission and so he was called absent and set exparte on 20.02.2014.

4.       The 1^st opposite party filed version stating as follows:

          The complainant booked a car specifying black colour as first choice and white as second choice, on payment of a token advance of Rs.75,000/- on 25.10.2010 and at the time of booking it was informed to the complainant as per condition No.15 of the Sales Contract Form dated 25.10.2010 that the manufacturer / Dealer were not liable for delay in delivering the car due to contingencies arising from causes beyond their control.  A black colour car as specified by the complainant was received during August 2011, from the manufacturer and it was communicated to the complainant over telephone.  The complainant visited the 1^st opposite party showroom and demanded heavy discounts on the plea that the delivery of the car had been delayed.  As per condition No.5 of the Sales Contract Form, the car should be taken delivery within 3 days of intimation.  But the complainant was not in a position to take delivery of the car.  Further the 1^st opposite party informed the complainant that they were ready to refund the entire advance amount of Rs.75,000/- without invoking any penal clause and that the complainant was at liberty to cancel the booking.  Further the complainant neither took delivery of the

 

car nor responded to the 1^st opposite party’s offer.  There is no deficiency in service on their part.

5.      Proof affidavits were filed by both sides, and Ex.A1 to A11 were filed and marked on the side of the complainant; and Ex. B1 to B3 were filed and marked on the side of the opposite parties.

6.     The points for consideration are:

1.     Whether there is any deficiency of service on the part of the opposite parties in not delivering the car to the complainant as alleged in the complaint?

2.     Whether the complainant is entitled to get compensation from the opposite parties?

3.     To what relief the complainant is entitled?

7.     POINT NOS.1 & 2 :  Admittedly the complainant booked a car with the 1^st opposite party paying a sum of Rs.75,000/- as advance on condition that the car would be delivered to the complainant within 5 months from the date of booking and admittedly the car was not delivered to the complainant by the 1^st opposite party within the stipulated period of 5 months, as a result of which the complainant was constrained to buy a car elsewhere.  The failure to deliver the car to the complainant even beyond the agreed period of 5 months amounts to deficiency of service on the part of the opposite parties.

 

8.     It is contended by the 1^st opposite party that as per condition No.15 of the Sales Contract Form the manufacturer / Dealer were not liable for delays in delivering the car due to contingencies arising from causes beyond their control. No such contingency is on record and there is no evidence in this regard and such a plea of the 1^st opposite party is untenable.  It is further contended by the 1^st opposite party that the car black in colour as desired by the complainant was received by them from the manufacturer during August 2011 and even after intimating this to the complainant and requiring him to take delivery of the car within 3 days, the complainant did not come forward to take delivery of the car.  There are no materials to establish that the car was received by the dealer/ 1^st opposite party during August 2011 and that due intimation was given to the complainant and that the complainant failed to take delivery within 3 days. 

9.       It is pertinent to note that the 1^st opposite party has expressed their willingness to refund the advance amount of Rs.75,000/- received from the complainant.

10.     Considering the entire materials on record we hold that there is deficiency of service on the part of the opposite parties in not delivering the car in time and we hold that the complainant is entitled to get compensation from the 1^st opposite party and the points are answered accordingly.

11.     POINT NO.3 :  The complainant is entitled to refund of the advance amount paid by him and compensation for mental agony and we feel that a sum of Rs.50,000/- would be reasonable compensation for the mental agony and he is entitled to get costs of Rs.5000/- and this point is answered accordingly.

 

12.               In the result, the complaint is partly allowed : directing the opposite parties jointly and severally to refund the advance amount of Rs.75,000/- (Rupees Seventy Five Thousand only) received from the complainant with interest at the rate of 12% per annum from the date of receipt of advance amount i.e., 25.10.2010 till realization and

                    to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) as compensation for mental agony and

                    to pay costs of Rs.5000/- (Rupees Five thousand only).

          Time for compliance : 2 months from the date of receipt of copy of this order.

 

P.BAKIYAVATHI                     J.JAYARAM                          R.REGUPATHI

     MEMBER                           (J) MEMBER                            PRESIDENT

 

 

 LIST OF DOCUMENTS FILED BY THE COMPLAINANT :

 

Sl.No.	Date	Descriptions
Ex.A1	25.10.2010	Copy of Booking receipt of car
Ex.A2	25.10.2010	Copy of Sale Contract Form
Ex.A3	15.02.2011	Copy of Ford Figo-Delivery note
Ex.A4	27.04.2011	Copy of R.C.-do-Name transfer with insurance copy
Ex.A5	23.11.2010	Copy of Confirmation of colour
Ex.A6	22.01.2011	Copy of Letter sent by the 2nd opposite party to the complainant with cover
Ex.A7	11.08.2011	Copy of Legal notice sent by the complainant to the 1st opposite party
Ex.A8	12.06.2012	Copy of Reply served on the counsel for the complaint from the 1st opposite party
Ex.A9	25.06.2012	Copy of Rejoinder legal notice to the 1st opposite party
Ex.A10	14.07.2012	Copy of Reply from the 1st opposite party to the rejoinder
Ex.A11	06.06.2013	Copy of Medical bills for the treatment taken by the complainant (21sheets) etc.

 

LIST OF DOCUMENTS FILED BY THE 1^st OPPOSITE PARTY :

 

 

Sl.No.	Date	Descriptions
Ex.B1	25.10.2010	Copy of Sales Contract Form
Ex.B2	12.06.2012	Copy of Reply notice
Ex.B3	14.07.2012	Copy of Reply to rejoinder

 

P.BAKIYAVATHI                    J.JAYARAM                           R.REGUPATHI

    MEMBER                           (J) MEMBER                            PRESIDENT