DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  24^th day of April, 2023 

Present      :   Sri. Vinay Menon V., President

                  :  Smt. Vidya A., Member                        

                  :  Sri. Krishnankutty N.K., Member                                Date of Filing: 27/08/2019  

                         CC/217/2019

Muhammed Aneesh,

S/o. Shamsudheen,

Thathathethil Veedu,

Varod, Ottapalam

Rep. by Power of Attorney Holder

Shamsudheen, Thathathethil Veedu,

Varod, Ottapalam                                                -                       Complainant

       (By Adv. K. R. Santhoshkumar)

                                                                                                Vs

1. BMW India Pvt.Ltd.

2^nd Floor, Oberoi Centre,

Building No.11, DLF Cyber City,

Phase II, Gurugram – 122 002

Haryana.

2. The Manager,

Platino Classic Motors India Pvt. Ltd.,

Vandipetta, Nadakkavu P.O.,

Kozhikkode – 11.

3. The CEO,

Platino Classic Motors India Pvt. Ltd.,

 NH 47 Byepass Road,

Marad P.O., Cochin  – 682 304.                                 -          Opposite parties

            (O.P.1 by Adv. T. Saju Abraham

               O.P.2 & 3 by Adv. V. Krishna Menon)

O R D E R

By  Sri. Vinay Menon V., President

1. Quintessential dispute, sieving irrelevant pleadings, would crystallize to the legality of the O.P. 2 retaining 80% of the advance consideration amount of Rs. 2,00,000/-, upon cancellation of booking.
2. Undisputed pleadings are that the complainant booked a pre-used BMW car by paying an advance part consideration of Rs. 2,00,000/-. As the complainant was dissatisfied with the car, he did not buy the car. The 2^nd O.P. dealer refused to return the advance sale consideration stating that as per the booking agreement, they get to keep 80% of advance booking amount in the event of cancellation. This portion of the complaint is not disputed. The sole dispute pertains to legality of the retention clause in the pre-cast agreement. 
3. The complainant also raise an allegation that the 1^st O.P. manufacturer is liable and responsible for this unlawful enrichment by the O.P.s 2 and 3 as they are agents of 1^st O.P. and the complainant approached the O.P. 2 based on the good will generated by the 1^st O.P. This pleading is hotly contested by the 1^st O.P.
4. The following issues arise for consideration:

1. Whether the clause of retention is valid in the eye of law?
2. In the facts and circumstances of the case, whether the 1^st O.P. is liable and responsible for the conduct of the 2^nd and 3^rd O.P.s?
3. Whether there is any deficiency in service or unfair trade practice on the part of O.P.s?

IV.        Whether the complainant is entitled to any reliefs sought for?

V.         Any other Reliefs?

5. (i)     Power of Attorney of the Complainant filed proof affidavit. Exts. A1 to A6 were marked.

(ii)    Opposite party 1 filed proof affidavit and marked Exts.B1 to B3.  O.P.s 2 and 3 did not adduce any evidence

Issue No. I 

6.         As already stated supra, the dispute crystallizes to the legality of cancellation charges of 80% of the booking amount paid. Ext. A1 is the Retail Sales Order Booking Form. Ext. A1 is an adhesion contract, pre-fabricated in nature. Basically it’s a Take-it-or-leave-it deal. The disputed clause is clause 7 in Ext. A1. Said clause is reproduced:

“7.        Cancellation charges will be 80% of booking Amount and All Refund Will be Through Account Payee Cheque Only.”

7.         Cost of the vehicle is Rs. 43,00,000/-. On-road price comes to Rs. 55,31,846/-. It is from out of this consideration that Rs. 2,00,000/- is paid as Booking Amount. Subsequent to payment of this amount, the customer gets to check the vehicle. Once having been satisfied of the performance/condition of the vehicle, the customer pays the balance consideration and receives ownership of the car. This is the usual process. Up until payment of the balance consideration, ownership is vested with the 2^nd O.P.

                                    In other words, the 2^nd opposite party offers the car for sale. In order to confirm the bonafides of the purchaser, an Earnest Money Deposit is made.  Thereafter it is upto the complainant to accept the offer or repudiate the offer upon verification of the car. Here the complainant chose to repudiate the offer, having been dissatisfied by the year of manufacture of the car.

Thereafter, the opposite party 2 chose to retain 80% of the booking amount, in terms of clause 7 of Ext. A1, which comes to Rs. 1,60,000/-.

8.         It is admitted that the complainant has affixed his signature to Ext. A1 agreement. Opposite parties 2 and 3 content that by affixing the signature, the complainant had agreed, acceded and consented to the opposite party retaining 80% of the booking amount. This argument of the O.P.s would have been valid, had the ground upon which the repudiation of offer was some patent or express or tangible damage to the car which the complainant had prior notice or knowledge of, wherein sale is based on As-Is-Where-Is condition.   But herein we have a situation where the car is in good condition. But, repudiation was made on the ground that the year of manufacturing was one year earlier, which is a reasonable and valid reason for repudiation of an offer. Such a complaint is not patent and can be verified only upon a careful perusal of the documents pertaining to the car.

9.         Thus we can see that clause 7 cannot be used in One-size-fits-all manner. Further, the opposite party fails to elucidate the ratio behind retention of 80%, which is a substantial amount, adding upto Rs. 1,60,000/-.   O.P.2 has no case that the vehicle was damaged or that O.P.2 had to incur some amount for exhibiting the car to the complainant or that by showing the car to the complainant, O.P. 2 had to suffer losses, warranting compensation.

We find that, in the absence of any logical ground or sound basis, adherence to clause 7 is only a colourable exercise of an unfair trade practice leading to unjust enrichment on the part of O.P.s 2 and 3.

10.       We therefore hold that retention of 80% of booking amount tantamount to unfair trade practice.

            Issue No.II

11.       Counsel for the complainant argued vehemently that since the complainant went to purchase the car enamored by the good will generated by the brand name of 1^st opposite party, they are also liable and responsible for the deficiency in service on the part of the 2^nd and 3^rd opposite parties. We fail to understand the logic behind this argument. When the 2^nd O.P. is selling a pre-owned car after making a contract of their own, with absolutely no connection whatsoever with the 1^st opposite party, the 1^st O.P. cannot be attributed with any liability or responsibility. Hence this contention is only liable to be dismissed.

We find no deficiency in service on the part of the 1^st O.P.

Issue No. III

12.       In view of the conclusion in Issue no. I, we hold that there is unfair trade practice on the part of the 2^nd and 3^rd O.P.s.   

Issue Nos. IV & V

13.       Resultantly, we hold as herein below:

1.         There is no deficiency in service or unfair trade practice on the part of the 1^st opposite party.

2.         Opposite party 2 is directed to return Rs. 2,00,000/- paid by the complainant/or Rs. 1,60,000/-, if balance 20% is already returned .

3.         Complainant is entitled to interest at the rate of 10% on the amount retained by the 2^nd O.P. from 13/08/2018 till date of repayment.

4.         The complainant is entitled to a compensation of  Rs. 1,00,000/- for unfair trade practice.

5.         The complainant is entitled to a cost of Rs. 50,000/-.

6.         Opposite parties 2 and 3 are directed to comply with the above stated amounts within 45 days from the date of receipt of a copy of this Order, failing which the opposite parties 2 and 3 shall pay a solatium of Rs.500/- per month or part thereof till the date of final payment.  

                  Pronounced in open court on this the 24^th day of April, 2023.    

                                                                                           Sd/-

                                                                                                Vinay Menon V

                                                      President

                                                             Sd/-

   Vidya.A

                       Member        

         Sd/-                                                       Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant :

Ext. A1 – Original Sales order booking form dated 10/8/18

Ext.A2 – Copy of receipt dated 30/08/2018

Ext.A3 – Copy of bank statement

Ext.A4 – Copy of lawyers notice dated 9/10/2018

Ext.A5 – Copy of communication dated 13/11/18

Ext.A6 – Copy of complaint dated 25/2/2019 before SI of police, Ottapalam

 Exhibits marked on the side of the opposite party: 

Ext.B1 – Original letter of authorisation

Ext.B2 – Copy of dealer agreement between Ops   

Ext.B3 – Copy of BMW dealer agreement    

Court Exhibit:  Nil

Third party documents:  Nil

Witness examined on the side of the complainant: Nil

Witness examined on the side of the opposite party:  Nil

Court Witness: Nil

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.