By. Sri. Jose. V. Thannikode, President:
The complaint is filed under section 12 of Consumer Protection Act against the opposite parties to get interest for the amount received by the opposite parties and compensation and cost due to the non delivery of the vehicle in time.
2. Brief of the complaint:- The complainant was in searching of a new modern vehicle. The 1st opposite party knowing the same has regularly contacted the complainant over telephone and on 02.07.2013 the 1st opposite party approached the complainant at his residence at Kalpetta and prompted the complainant to purchase "Ecosport" which is a new model vehicle of the Ford company and being prompted by the 1st opposite party the complainant has booked the said vehicle "Ford Ecosport" by paying a sum of Rs.50,000/- as advance to the opposite party on 02.07.2013 through your agent Mr. Arun at Kalpetta. While making such booking, the 2nd opposite party has promised the complainant that the desired coloured vehicle will be delivered to the complainant within four months from 02-07-2013. The 4th opposite party, who is the sales head of the 2nd opposite party has also assured the same when the complainant has contacted him over telephone. While so on 02-08-2013 the 4th opposite party has contacted the complainant over telephone and told the complainant that the vehicle will be delivered on the eve of Id-ul-fither, i.e. on or before 09-08-2013, if the complainant pays the entire vehicle price by DD. The 1st opposite party also came to the residence of the complainant and who also repeated the same promise and the 4th opposite party has sent Account Number of opposite party through a message to the mobile phone of the complainant to transfer the amount into the account of the 2nd opposite party through RTGS/NEFT. Being prompted by the promise of the 1st and 4th opposite party, the complainant has paid the entire balance amount of Rs. 10, 11,970/- on 03-08-2013 itself.
3. Thereafter, when the complainant has verified the order booking form, quotation/proforma invoice etc., which was supplied by the 1st opposite party subsequently, the complainant has noticed that the 2nd opposite party has charged Rs.35,362/- as insurance premium for the vehicle. It was also noticed by the complainant that the opposite parties have charged Rs.4,600/- towards FCK and Rs. 10,000/- towards handling and logistics charge (as stated in proforma invoice)NTDC (as stated in order booking form) and Rs.7,680/- towards accessories (as stated in proforma invoice) /UD & TC (as stated in order booking form) and Rs.9, 15,989/- as ex-showroom price, Rs.73,379/- as road tax etc., for the vehicle. Being felt some anomaly the complainant has made some enquiry with other insurance companies from where he got the information that the insurance premium will be only Rs. 16,300/- for bumber to bumber full cover insurance for the vehicle and the complainant has realized that the opposite parties have obtained more than twice of the amount actually required for the full cover insurance of the vehicle. When the complainant has pointed out the irregularity and expressed his intention to take insurance policy from the insurance companies offering less premium, the 1st opposite party has threatened the complainant that the delivery of the vehicle will be delayed and the delivery will be given only with the insurance policy as prescribed by the 2nd opposite party at the prescribed premium in the order booking form dated 02-07-2013. The complainant states that there is unfair trade practice on the part of the opposite parties by compelling the complainant to take insurance policy at the option of the dealers of the vehicle at the premium as prescribed at the whims and fancies of the dealers with unholy tie-up with the specified insurance company at the option of the dealer. The complainant further states that the opposite parties have also collected Rs.14,990/- towards extended warranty only due to the compulsion of the opposite party No.1. It is submitted by the complainant that he has already decided not to have any extended warranty and hence he is entitled to get refund the said amount. All the above charges are baseless and the opposite parties unnecessarily charging exorbitant amount from the complainant by baptizing the same under different head since the Ford Ecosport is a new vehicle manufactured by reputed company like 1st opposite party. Under such different heads the opposite parties have collected Rs.51,702/- from the complainant and if the propaganda of the opposite party that the booking of the vehicle is covered 50000 numbers is correct, the total amount obtained by the opposite parties by cheating the customers will amount to Rs.258,51,00,000/-(i.e. Rs.51,702 x Rs.50,000/-). Hence there is gross deficiency of service and unfair trade practice on the part of the opposite parties.
4. The opposite parties have not cared to issue the priority number of the booking of the vehicle. Though the complainant has already intimated the opposite parties that if the chosen colour i.e chill metallic is not available he is otherwise satisfied with white or silver colour for which also there was no response from the opposite parties. The opposite parties have delayed the delivery of the vehicle only because the complainant has questioned the deficiency of service and unfair trade practice practiced by the opposite parties. Being so the complainant has received another sales invoice from the opposite parties in which the sale price is shown 9,57,515/- which is having a difference of Rs.41,526/- from the sale price at the booking time. The complainant being compelled by the opposite parties paid the enhanced sale price and finally the vehicle is delivered to the complainant on 25.10.2013. The opposite party has adjusted the insurance premium amount and extended warranty cost with the enhanced sale price of the vehicle. The cause of action for the above complaint is arose within the local jurisdiction of this Honorable Forum. Since the booking, cash transaction and delivery of the vehicle is done at Kalpetta. Hence complainant filed this complaint to direct the opposite party to pay interest at the rate of 18% from 02.07.2013 for the whole amount and to return the amount of Rs.1,06,478/-, which is collected on various heads and to pay cost and compensation.
5. Notice was served to opposite parties on 28.01.2014 and opposite party No.1, 2 and 4 filed version but opposite party No.3 not appeared and not filed version. Hence opposite party No.3 is set ex-parte.
6. In the version, opposite party No.1 stated that complainant booked the EcoSport (Mini sport utility vehicle) with Chill Metalic colour on 03.07.2013. Due to the non-availability of the vehicle with the second opposite party the complainant was asked to wait for a minimum period of four months. In the meanwhile complainant requested to provide the account number of the second opposite party to transfer some amount for his convenience towards the purchase price. There was no offer to supply him the required vehicle before Id-ul-Fither and such an offer was not possible as well because of the fact that the vehicle required was a brand new one with booking from various corners/agencies across India. So the vehicle could be delivered as per the order of allotment from the third opposite party only. Things being so, the second opposite party had received the lawyer notice dated 19.08.2013 setting forth false claims and unfounded allegations. It was replied with true set of facts and a clarification that if the complainant was not satisfied with the situation, the booking need not be retained further. Even after the same, the complainant retained the booking and got the vehicle delivered by making the payments as per the terms of the opposite parties on 25.10.2013. Later he filed a private complaint before the Hon'ble CJM court Kalpetta and it was sent to police for investigation. The investigation was dropped by the police as there was no offence made out. Later this complaint is filed without any sustainable grounds. The first opposite party is not the sales executive officer of the 2nd opposite party. The allegations in paragraph 4 of the complaint are not fully correct and hence denied. Actually the complainant himself had approached the 2nd opposite party expressing his desire to purchase Ford Ecosport and he himself had booked the vehicle by advancing Rs.50,000/- at the office of the 2nd opposite party at Calicut. The allegation that the 1st opposite party approached the complainant at his residence at Kalpetta and prompted the complainant to purchase the 'Ecosport' is false and hence denied. The further allegation that at the time booking the 2nd opposite party promised to the complainant that the desired coloured vehicle within 4 months from 2.7.2013 is false and hence denied. There was no such assurance either by 1st, 2nd or 3rd opposite parties. The contrary statement in respect of the 4th opposite party also is false and hence denied.
7. The amount was paid in full by the complainant with a view to compel the 2nd opposite party to cause delivery of the vehicle to him by giving priority by ignoring the order of booking. The allegation that the 4th opposite party contacted the complainant over phone to say that he would be delivered with the vehicle on the eve of Id-Ul-Fither if the complainant paid the full price by DD, is false and hence denied. The complainant was not contacted with any of such offer either by first opposite party or by the 4th one. The further allegations that the first opposite party had visited the residence of the complainant to repeat the said promise and has sent a message to the complainant to transfer the amount are false and hence denied. The complainant wanted to know the account of the 2nd opposite party so as to enable him to avoid a travel with money to Calicut and he had represented to the 1st Opposite party that it would be helpful for him to transfer money to the account of the 2nd opposite party and it was not possible for him to keep the money for a long period due to some personal reasons best known to him. Therefore as it is being done in the case of other customers the account number was forwarded to the complainant. There was no such promise to prompt the complainant to pay the entire amount on 03.08.2013 as alleged by the complainant. The allegation that the complainant had advanced the entire amount under the promise of the 1st and 4th opposite parties, is not correct and hence denied. The allegations in the paragraph 6 of the complaint are not fully correct and hence denied. The complainant had made all the payments which are mentioned in the said paragraph after due deliberation and by understanding the requirements thereof. The statement of the complainant that he had noticed the adjustments of amounts towards various heads mentioned in the said paragraph of the complaint only subsequent to the payment of the entire price on 3.8.2013 is false and hence denied. The further allegations that he had contacted with another insurance company and from which he had understood that the premium would be only Rs. 16,300/- and when he had expressed his desire to change the insurance company he was threatened with the delaying of delivery of the vehicle are false allegations and hence denied. The insurance company was fixed at the option of the complainant himself and the insurance company suggested by the 2nd opposite party was one of the Government Controlled Insurance Company. There is no unfair trade practice and there was compulsion as alleged by the complainant in respect of the insurance policy. There is no unholy tie up with the insurance company and the 2nd opposite party. The allegations in paragraph 7 of the complaint are false and hence denied. The availing of the extended warranty by paying Rs. 14,990/- by the complainant was done at his option and none of the opposite parties herein had any say thereto. The contra allegations made by the complainant to the effect that he had expressed his unwillingness to avail of extended warranty and it was availed of only due to the compulsion of the 1st opposite party are false allegations and hence denied. Likewise, the allegation that all the above charges baseless and the further allegation that the opposite parties were unnecessarily charging are false and hence denied. The further allegation regarding the collection of Rs. 51,702/- is not clear in its meaning and whatever it may be, no amount has been collected from the complainant without specifying the requirement and against the will of the complainant on the reason that the 'Ecosport' is a new product. Further 'Ecosport' is not being manufactured by the 1st opposite party. The calculation given in the paragraph 7 of the complaint is without any basis and the said calculation has nothing to do with the collection of the amount by the opposite parties with previous notice as to the facility to which the collection was required. Further the facilities were with fixed charges and are availed of at the option of the customer only. The allegation that there is gross deficiency of service and unfair trade practice on the part of the opposite parties is not correct and hence denied.
8. The allegations in the paragraph 8 of the complaint are false and hence denied. The allegation that the opposite parties have not cared to issue the priority number of the booking of the vehicle is not correct and hence denied. The statement that the complaint had intimated the opposite parties that he would be satisfied with white or silver colour if the chill metallic was not available, is not correct and hence denied. The opposite parties have not caused anything deliberately or otherwise to delay the delivery of the vehicle for any reason as alleged by the complainant. The allegations in the 9th paragraph of the complaint are not fully correct and hence denied. The complainant was bound to pay the price of the vehicle as on the date of delivery and it was agreement as per the booking made by him. The price variation may be due to various reasons which are out of the control of the opposite parties. The vehicle was delivered only in the order of availability of the vehicle from the manufacturer-the 3rd opposite party. As per the reply notice he was given option for either to keep the booking alive ought to get back the amount that was paid by him by canceling the booking. However he was pleased to purchase the vehicle by keeping the booking alive till he got the car delivered on 25.10.2013. The appropriation of sums towards the insurance premium and for extended warranty caused with the enhanced sale price of the vehicle was done only as per contact and in accordance with law. There is no cause of action for this complaint either within the jurisdiction of this Honorable Forum or anywhere else as alleged in paragraph 10 of the complaint. The complainant would not and has not suffer/red any loss or harm due any of the acts of the opposite parties. The complainant is not entitled to get any of the reliefs prayed for and the claims are made without any factual or legal basis thereto. These opposite parties are not liable for any of the claims made in the complaint. The reply notice, issued by the 2nd opposite party, which is produced before the Forum would reveal the real reasons behind the complaint and the complainant attempting to harass the opposite parties by filing a complaint at Wayanad. From the contact of the complainant itself even after getting the message from the reply notice, by purchasing the Ecosport as per the booking made by him itself makes the complaint a complaint without any cause of action. The opposite parties 1, 2 and 4 are entitled for compensatory costs from the complainant due to his abuse of process of law and this form by filing this perilous and vexatious complaint without any cause. Therefore it is most humbly submitted that the complaint may be dismissed with compensatory costs to the opposite party No.1, 2 and 4.
9. The complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A7 is marked, from the side of opposite party not adduced any oral evidence. Ext.A1 is the Retail Sales order booking form dated 02.07.2013. Wherein it is seen an advance of Rs.50,000/- is given and in the place of delivery date it is seen vacant and in the terms and conditions, 5th term is that "Price prevailing at the time of invoicing will be applicable". Ext.A2 is the Quotation/Proforma Invoice dated 02.07.2013 therein also the same condition of Ext.A1 is proposed. Ext.A3 is the Bank Receipt Voucher which shows that the opposite party received the full amount on 03.08.2013 from the complainant. Ext.A4 is the Insurance calculation work sheet. Ext.A5 is the lawyer notice, receipt and acknowledgment card in which it is stated as stated in the complaint. Ext.A6 is the reply to Ext.A5 wherein it is stated as stated in the version and further stated that "It is true that your client had made a booking as made mentioned in paragraph 1 of your lawyer notice. The statement in the 2nd paragraph of your lawyer notice is incorrect to a certain extent. My client never agreed for the delivery of the car within 4 months. what was represented by my client is that it would take a minimum of 4 months time for delivery of the car from the date of booking". Ext.A7 is the Bank account statement of the complainant which shows that on 02.08.2013 an amount of Rs.10,11,970/- is transferred to No.03272553850.
10. On perusal of the complaint, version, affidavit, documents and depositions we framed the following issues for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties?
2. Relief and Cost.
11. Point No.1:- In the complaint itself the complainant admitted that the expected delivery of the vehicle is only within four months from the date of booking. No document is produced by complainant to the effect that the vehicle will be delivered on the eve of id-ul-fither or on or before 09.08.2013. Hence we opine that without a written request from the opposite party remitting the full amount to the opposite party may be to pressurize the opposite party for an early delivery of the vehicle. In case of insurance premium and FCK UD and TC, the opposite party has given a clear reply to the lawyer notice that "to get back the insurance amount in respect of insurance, FCK, UD and TC and extented warranty without any interest at the earliest at your clients cost and risks from the opposite parties office at which he had booked". On the question of enhanced price, in Ext.A1 and A2 clearly mentioned that the price prevailing at the time of invoicing will be applicable. Hence we opine that no service deficiency and unfair trade practice is made out from the side of opposite parties. Hence the Point No.1 is found accordingly.
12. Point No.2:- Since the Point No.1 is found against the complainant, no question of relief and cost.
In the result, the complaint is dismissed, no order as to cost and compensation.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 28th day of February 2015.
Date of Filing:08.01.2014.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Muhammed Riyas. Complainant.
Witness for the Opposite Parties:-
Nil.
Exhibits for the complainant:
A1. Copy of Retail Sales Order Booking Form. dt:02.07.2013
A2. Quotation/Performa Invoice. dt:02.07.2013.
A3. Bank Receipt Voucher. dt:03.08.2013.
A4. Insurance premium calculation work sheet.
A5(Series). Lawyer Notice, Postal Receipt and Acknowledgment card.
A6. Reply Notice. dt:26.08.2013.
A7. Bank Account Statement.
Exhibits for the opposite parties:-
Nil.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
