IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 13th Day of January 2020
Present: - Sri.E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, BSc,LL.B, Member
Sri.Stanly Harold, B.A,LLB, Member
CC No.287/16
Yousuf kunju : Complainant
Yajas Manzil
Memana,Ochira P.O
Kollam-690526.
[By Adv.G.Sivasankara Pillai]
V/s
- Branch Manager : Opposite parties
M/s T.V.Sundaram Ayyankar&Sons Ltd.
Musaliyar Buildings, Randamkutti
Kilikolloor P.O
Kollam-691004.
[By Adv.Sabor Alexander]
- M/s Mahendra &Mahendra Ltd.
Gateway Building, Appolo Bandar
Mumbai-400039.
[By Adv.Saji Mathew, Denu Joseph, Neethu Reghukumar&
Adv.Sreeraj.R]
FAIR ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act.
The averments in the complaint in short are as follows:-
The complainant fixed his daughter’s marriage to be conducted on 30.10.2016 and he decided to gift a brand new Scorpio vehicle to his daughter in connection with her marriage. Accordingly he approached the 1st opposite party and booked a Scorpio S4 model, 8 seated white coloured car by paying an advance
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of Rs.50,000/-. At the time of receiving the advance and booking the car the 1st opposite party assured that the booked vehicle would be delivered prior to 27.10.2016. At the time of booking the 1st opposite party informed the complainant that the cost of the vehicle would be Rs.10,38,070/- if the booking was prior to 30.09.2016 and also assured that he would get the benefit of a scheme were by he would get Rs.19,000/- as discount of the price of the vehicle. As per the terms of the booking the complainant is expected to pay the balance amount of Rs.9,69,070/- after deducting the advance and discount as stated above. But the 1st opposite party demanded to remit Rs.9,74,226/- and the complainant was constrained to remit the same through RTGS from Dhanalaxmi Bank, Karunagappally Branch, to the 1st opposite party’s account.
But in spite of remitting a larger amount the opposite party has not delivered the vehicle until 27.10.2016. On 26.10.2016 the opposite parties contacted the complainant and informed that the vehicle is ready for delivery and balance amount of Rs.53,333/- was to be remitted before delivery. Finally Rs.10,77,559/- was remitted by the complainant in total for which receipt was also issued by 1st opposite party which was produced by the complainant before RTO, Karunagappally and an amount of Rs.1,10,056/- as road tax along with Rs.28,469/- insurance was remitted and receipts were produced to 1st opposite party. However after verifying these receipt the 1st opposite party on 28.10.2016 at 8 pm delivered a Scorpio S4 Plus 8 seater vehicle red colour at the complainant’s residence. This was not the vehicle which was booked by the complainant. The opposite parties have cheated the complainant in this way. As the vehicle was delivered on the eve of the complainant’s daughter’s marriage, he was forced to accept the red colour vehicle instead of the white colour vehicle. The non delivery of the booked vehicle, collecting excess amount and delivery of another model vehicle without
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complainant’s consent amounts to unfair trade practice and deficiency in service on the part of the opposite parties. The complainant was therefore forced to file this complaint for redressal of his grievance.
In response to the notice opposite parties No.1&2 appeared and resisted the case by filing separate versions. Both opposite parties would admit the following facts. The complainant booked a Scorpio S4 model 8 seater white colour vehicle and paid an advance of Rs.50,000/- on 30.09.2016. All other allegation in the complaint are denied by the opposite parties. According to then the averments that the vehicle was booked in connection with the marriage of his daughter was not disclosed to the 1st opposite party and while booking the vehicle the 1st opposite party had not agreed to deliver the vehicle before 27.10.2016. Only the expected date of delivery is mentioned in Order taking form. The column relating to tentative delivery week, date are not filled up in the form. Hence there was no commitment on the part of the 1st opposite party regarding the delivery of the vehicle before 27.10.2016.
It is further contented that at the time of booking the vehicle, cost of the vehicle was Rs.10,38,070/-. The 1st opposite party had specifically informed the complainant that the price of the vehicle is that price prevailing on the date of delivery. The complainant never offered any discount of Rs.19,000/- if the car was booked on or before 30.09.2016. The manufacturer had given a discount on all their vehicle and therefore the complainant is also eligible for the discount. An amount of Rs.16000/-+ VAT totaling Rs.19,000/- as discount was given to the complainant. The complainant was fully aware that any increase in price of vehicle would affect him also while taking delivery of the vehicle. As there was a price revision on 01.10.2016 the complainant was liable to pay the revised price
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even though he had booked on 30.09.2016. An additional amount of Rs.5156/- was collected from the complainant due to the increase in the price of the vehicle.
Dhanlaxmi Bank had given a loan to the complainant for an amount of Rs.9,74,226/- which was transferred to the 1st opposite party’s account through RTGS on 17.10.2016 vide UTR No.DLXBR5201601700500249 and the said Dhanlaxmi Bank had intimated the 1st opposite party to note the hypothecation in their favor in the RC Book and insurance cover note of the vehicle. After understanding the terms and conditions enumerated in the Order Booking Form the complainant accepted the same and signed the booking form. The customers expected date of delivery was on 27.10.2016 and accordingly the vehicle was delivered. RC particulars of the vehicle was temporarily registered on 28.10.2016.
The opposite party intimated the complainant to remit an additional amount of Rs.53,333/- is false. The 1st opposite party received only Rs.43,200/- in addition vide receipt No.KLM 17 RT5004448 dated 26.10.2016 which was remitted by the would be son-in-law of the complainant for the new chosen vehicle. As the complainant had opted for a vehicle with additional features, red in colour the cost of that vehicle was Rs.10,77,559/- including VAT and tax at source.
The allegation of the complainant that the opposite parties have pressurized the complainant to purchase Scorpio S4 Plus Red Colour vehicle is denied. As the complainant declined to take delivery of the booked vehicle up on the choice of the would be son-in-law who was impressed by the Scorpio S4 Plus with additional features, the cost of the vehicle was increased to Rs.10,77,559/-. Further he had to pay road tax Rs.1,10,056/- at the RTO and Rs.28469/- for the insurance. There is no element of cheating, unfair trade practice and deficiency in service on the part of the 1st opposite party. If the complainant was not satisfied with the dealing of
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the 1st opposite party he could have refused delivery and put it in writing on the Order Taking Form. The reliefs claimed by the complainant are unsustainable and outside the ambit of the warranty conditions. The complainant is not entitled to get compensation as claimed nor entitled to get back the additional amount collected and the 1st opposite party is not liable to refund Rs.58,489/- to the complainant for no fault of theirs. The 1st opposite party is also not liable to pay compensation or costs of the complainant. The 1st opposite party further pray to dismiss the complaint with their costs.
The 2nd opposite party in its written version would contend that the complaint is not maintainable either in law or on facts. The complaint is bad for non-joinder and mis-joinder of necessary parties. The present complaint is filed without any bonafides and only on an experimental basis without any sustainable cause of action against the 2nd opposite party. The 2nd opposite party further contend that the 1st opposite party is only a branch manager of the 2nd opposite party. The dealers used to place bulk orders for vehicles and 2nd opposite party used to supply vehicles in large numbers to the dealers. The 2nd opposite party does not know about the ultimate buyer of the vehicle at the time of sale by the dealer. 2nd opposite party never had any transactions with the complainant and therefore there is no privity of contract between the complainant and the 2nd opposite part. The liability if any of the condition as set out in the warranty policy/owner’s manual. Admittedly the complainant is not having a case that the vehicle is having any inherent manufacturing defect. Therefore the complaint as against the 2nd opposite party is liable to be dismissed in limine.
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The points that arise for consideration are:-
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties No.1&2 as alleged?
- Whether the complainant is entitled to get refunded the additional amount collected and also entitled to get compensation as claimed?
- Reliefs and costs.
Evidence on the side of the complainant consists of the oral evidence of PW1&Ext.P1 to P8 series and P9. Evidence on the side of the opposite parties consists of oral evidence of DW1&Ext.D1 to D5 documents. The learned counsel appearing for the complainant, opposite party No.1&2 have filed separate notes of argument. Heard both sides.
Point No.1&2
For avoiding repetition of discussion of materials these 2 points are considered together. PW1 is the complainant himself. He has filed affidavit in lieu of chief examination by re-iterating the averments in the complaint and he proved Ext.P1 to P7 documents. Ext.P1 is the Car booking form(Order Taking Form) dated 30.09.2016. Ext.P2 is the communication issued by Dhanlaxmi Bank in favor of the 2nd opposite party. Ext.P3 is the retail invoice issued by the 2nd opposite party in favor of the complainant while effecting sale of the vehicle in the name of the complainant. Ext.P4 is the Form TR5 C issued by the Motor Vehicle Department while registering the car involved in the case of the complainant. Ext.P5 is the temporary certificate of registration issued by the RTO, Kollam in respect of the vehicle involved in this case. Ext.P6 is the policy cum certificate in insurance issued by New India Assurance Company Ltd. In respect of the vehicle in the name of the complainant. Ext.P7 is the marriage invitation card evidencing that the marriage of the complainant’s daughter was fixed to be conducted
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on 30.10.2016. The oral evidence of PW1 coupled with Ext.P7 marriage invitation card it is clear that the marriage of the complainant’s daughter was fixed to be conducted on 30.10.2016 and the complainant has decided to gift a brand new Scorpio S4 Plus 8 seater white colour vehicle as marriage gift to his daughter. It is also clear from the oral evidence of PW1 that he approached the 1st opposite party who is the dealer of the above vehicle at Kollam and informed the officials of the 1st opposite party about his intention. Thereupon the 1st opposite party promised the complainant that if he books the vehicle by giving Rs.50,000/- as advance on or before 30.09.2016 the company will give a discount of Rs.19,000/- and also deliver the vehicle prior to the marriage. By believing the above representation the complainant booked the above vehicle on 30.09.2016 (one month prior to the date of marriage) by paying Rs.50,000/- as advance. According to PW1 at the time of booking the car 1st opposite party made the complainant to believe that the total value of the above vehicle is Rs.10,38,070/- and the complainant need to pay the balance of Rs.9,69,070/- after deducting the advance of Rs.50,000/- and discount of Rs.19,000/- and also informed that the complainant is liable to pay any price revision made by the 2nd opposite party. On the basis of the above information passed by the 1st opposite party the complainant booked the car as per Ext.P1 Order Taking Form. It is also clear from Ext.P3 invoice and Ext.P2 letter issued by the bank that the 1st opposite party on 17.10.2016 demanded and realized Rs.9,74,226/- instead of 9,69,070/- as revised price of Scorpio S4 Plus 8 seater vehicle which is clear. It is also clear from the oral evidence of PW1 that though the complainant has paid more amount than the price offered at the time of booking the vehicle the opposite parties have not delivered the vehicle till 27.10.2016 on which date the 2nd opposite party agreed to deliver the vehicle on condition to pay Rs.53333/- more than the agreed price.
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According to PW1 on 26.10.2016 the 2nd opposite party has intimated the complainant that the vehicle is ready and he has to pay Rs.53333/- more. Accordingly he paid the amount of Rs.53333/- more to the 1st opposite party and obtained Ext.P3 receipt evidencing that he had paid Rs.10,77,559/-. It is also clear from Ext.P4 to P6 documents that on the basis of P3 receipt the complainant paid tax Rs.1,10,056/- vide P4 receipt and obtained R5 temporary registration and also paid Rs.28469/- as insurance premium vide P6 certificate.
It is clear from Ext.P1 and Ext.D5 copies of order taking form and Ext.P8 the original book let of order taking form issued by the 1st opposite party that the complainant booked Scorpio S4 model, 8 seated white coloured car worth Rs.10,38,070/- on 30.09.2016 and also paid an advance of Rs.50,000/-. It is clear from the available materials that the complainant had booked the vehicle on the assurance of the 1st opposite party that they would deliver the vehicle prior to 27.10.2016. Ext.P1, P8 (a) & Ext.D5 documents it is clearly stated that the customers expected date of delivery was 27.10.2016. The oral evidence of DW1 also would corroborated the above version of the complainant that if the vehicle could not be delivered they would not collect the order. In view of Ext.P7 marriage invitation card also in view of the oral evidence of PW1 that the vehicle was booked for the purpose of giving it as a marriage gift to his daughter. Though the 1st opposite party would deny the purpose of booking the vehicle and the colour of the vehicle booked. DW1 would admit that IÃ-ym-W-¯nsâ Xte¶v hml\w aXn-sb¶v hmZn ]d-ª-Xp-sIm-mWv A¶v hml\w \ÂIn-b-Xv.
The above admission itself would indicate that the 1st opposite party was having sufficient knowledge regarding the purpose for which the vehicle was booked by the complainant.
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It is also clear from the available evidence that after deducting the advance amount of Rs.9,69,070/- alone was due to the 1st opposite party as the balance price of the Scorpio S4 model, 8 seated white coloured car. But the 1st opposite party has issued Ext.P9 invoice demanding Rs.9,74,226/-. It is also clear from Ext.P2 RTGS statement that the complainant on 17.10.2016 has remitted through Dhanlaxmi Bank, Karunagappally Branch to the account of the opposite party an amount of Rs.9,74,226/-. However admittedly the vehicle was delivered on 24.10.2016. It is also clear from the available materials that on 26.10.2018 opposite parties demanded to pay an amount of Rs.53,333/- more by the complainant. Accordingly he remitted the amount then and there and thereby the opposite party have received a total amount of Rs.10,77,559/- as on 26.10.2016. Ext.P4 receipt would indicate that the complainant has remitted Rs.1,10,056/- as road tax on 27.10.2016 and as per Ext.P6 he remitted Rs.28469/- as insurance premium.
It is also brought out in evidence that during the night of 28.10.2019 the 2nd opposite party delivered Scorpio S4+model red coloured 7 seater vehicle at complainant’s residence which was not booked by the complainant. According to PW1 since the vehicle was delivered to the complainant at his residence at the previous night of the marriage function complainant was having no other alternative and hence he accepted the red colour 7 seater vehicle. It is also brought out in evidence that the complainant has received the vehicle not the one booked for giving as gift to his daughter in connection with her marriage and he came to know just before the marriage function that the vehicle delivered was not the vehicle booked. He has sustained much mental agony.
It is true that the 1st opposite party would content in paragraph 11 of the version that the complainant had voluntarily opted to purchase the red colour
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Scorpio S4+model 7 seater vehicle instead of the earlier booked Scorpio S4 8 seater vehicle which was ready for delivery on 26.10.2016. But there is nothing on record to indicate that the complainant or any of his representative had opted for any change in the vehicle booked. There is no endorsement in Ext.P1, P8 A & Ext.D5 that complainant had opted any change. Usually if a change in the vehicle booked is made it should be endorsed in Ext.P1 and P5 documents for which there are specific columns. The change of models of the vehicle has to be endorsed in the specific column with date and the expected date of delivery of the change of vehicle. But no such endorsement has been stated in the above 3 documents. Instead the engine number and chasis number has been seen written Ext.D5 documents but no signature of the complainant has been obtained as evidence to prove that he has authenticated the change. In view of the materials available on record it is cristal clear that the complainant has not opted to change Scorpio S4 8 seater vehicle to S4 7 seater nor opted to change the colour of the vehicle.
Admittedly the opposite parties have received Rs.58479/- as additional amount towards the value of the S4+7 seater vehicle without making any demand or option by the complainant. In view of the materials discussed above it is clear that the opposite parties have not delivered the booked vehicle in time that they have collected excess amount than the actual price shown in Ext.P1 invoice for the vehicle booked. That the opposite parties have delivered another model vehicle without the consent of the complainant during the just previous night of the marriage and the complainant has received the same under protest. The above act of the opposite parties would definitely amounts to deficiency in service and unfair trade practice.
It is also clear from the available materials that as he was not received the vehicle booked which was promised to be gifted to his daughter and he could not
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keep the promise to his daughter, her husband and in laws and thereby he sustained much mental agony for which he is entitled to get compensation from the opposite parties. It is also clear from the available materials that the opposite parties have also collected an excess amount of Rs.58489/- being the price of the changed model without demanding the same by the complainant. Therefore the complainant is entitled to get back the amount. In the circumstance we are inclined to allow the complaint. The points answered accordingly.
Opposite parties No1&2 are directed to return the excess amount of Rs.58489/- collected from the complainant with interest @ 9% p.a from the date of receipt of the above amount from the complainant.
The opposite parties No.1&2 are further directed to pay Rs.50,000/- being compensation with interest @ 9% p.a from the date of complaint till realization. They are also directed to pay Rs.10,000/- as costs of the proceedings.
Opposite parties No.1&2 are directed to pay Rs.108489/- (Rs.58489/-+Rs.50000/-) with interest as ordered above within 45 days from the date of receipt of a copy of this order failing which the complainant is at liberty to recover the above amount with 12% interest from the date of order till realization jointly and severally from the opposite parties and also from their assets along with the costs Rs.10,000/- as ordered above.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 13th day of January 2020.
E.M.Muhammed Ibrahim:
S.Sandhya Rani:
Stanly Harold:
Forwarded/by Order
Senior Superintendent
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INDEX
Witnesses examined for the complainant:-
PW1:- Yousaf kunju
Documents marked for the complainant:-
Ext.P1:- Copy of order taking form
Ext.P2 :- Copy of communication issued by Dhanlaxmi Bank
Ext.P3:- Copy of retail invoice issued by the 2nd opposite party
Ext.P4:- Copy of Form TR5 C issued by the Motor Vehicle Department.
Ext.P5:- Copy of temporary certificate of registration issued by the RTO, Kollam.
Ext.P6:- Copy of policy schedule cum certificate of insurance
Ext.P7:- Wedding card
Ext.P8&P8(a):- Booking docket
Ext.P9:- Copy of quotation
Witnesses examined for the opposite party:-
DW1:-Ullas.K.B
Documents marked for the opposite party:-
Ext.D1:-Receipt for Rs.50,000/-
Ext.D2:-Receipt for Rs.974226/-
Ext.D3:- Receipt for Rs.43,200/-
Ext.D4:-Receipt for Rs.10,135/-
Ext.D5:-Order taking form.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
