IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 15th day of December, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No. 138/2012 (Filed on 27.08.2012)
Between:
Podiyamma,
Parampil Puthen Veedu,
Manampuzha.P.O.,
Kadampanadu Village,
Adoor Taluk.
(By Adv. P.M. Mamachan) …. Complainant
And:
Dealer,
Bharath Motors,
(Mahindra & Mahindra),
Thazhevettippuram,
Pathanamthitta.P.O.
(By Adv. B. Gopakumar) …. Opposite party
O R D E R
Smt. K.P. Padmasree (Member):
Complainant filed this complaint against the opposite party for getting a relief from the Forum.
2. Facts of the case in brief is as follows: On 01.09.2010 complainant had purchased a Mahendra Alpha Autorikshaw from the opposite party. As per the bill the price of the autorikshaw is ` 1,24,000. But opposite party had collected an amount of ` 1,74,390 from the complainant under various heads. On 02.09.2010 complainant paid ` 13,100 to the opposite party. An old autorikshaw of the complainant was sold through the opposite party on the basis of their exchange offer and they received ` 19,000 on that account. Moreover opposite party arranged finance for the vehicle for ` 1,42,290. Altogether, including the finance, opposite party’s collected ` 1,74,390. Other expenses like insurance, tax, registration etc. is also paid by the complainant.
3. Even though the cost of the vehicle is only ` 1,24,000, opposite party collected a total amount of ` 1,74,390 as cost of the vehicle and thereby the opposite party collected an excess amount of ` 32,100 from the complainant.
4. Complainant approached the opposite party so many times for getting back the excess amount collected from her. Finally on 28.10.2010 complainant send legal notice to the opposite party. But the opposite party had not turned up. According to the complainant, the act of the opposite party is unfair trade practice for which they are liable to the complainant. Hence this complaint for getting the excess amount of ` 32,100 collected from the complainant with 12% interest along with cost of ` 5,000 and compensation of ` 15,000.
5. Opposite party entered appearance and filed their version with the following contentions.
6. According to the opposite party, the complaint is having the defect of non-joinder of necessary parties. The allegation that the opposite party received ` 1,74,390 from the complainant as the prize of the autorikshaw is false. The price of the autorikshaw purchased by the complainant is paid by the finance company by way of loan. Besides the price amount the complainant is bound to pay the insurance, tax and registration fees etc. The allegation of exchange of old autorikshaw through the officials of opposite party and the alleged collection of excess amount are also false.
7. Opposite party admit that they received an advocate notice 2 years back. Then the officials of the customer care centre of the opposite party contacted the complainant and explained the actual facts and she was satisfied with the explanations. Filing of this complaint after 2 years after convincing the facts itself shows the vagueness of the complaint. There is no unfair trade practice on the part of the opposite party. The statement of account stated in the complaint are not supported with valid document and hence denied. Hence opposite party prays for the dismissal of the complaint with their cost.
8. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
9. The evidence of this complaint consists of the oral testimony of PW1, DW1, Exts.A1 to A8 and Exts.B1 to B5. After closure of evidence, both sides were heard.
10. The Point:- Complainant’s case is that on 01.09.2010 she purchased an Alpha Passenger autorikshaw from the opposite party. As per the bill, the price of the vehicle is ` 1,24,000. But opposite party collected ` 1,74,390 under various heads and thereby opposite party received an excess amount of ` 32,100. It is an unfair trade practice and opposite party is liable to the complainant.
11. In order to prove the complainant’s case, complainant filed proof affidavit along with 8 documents. On the basis of the proof affidavit complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A8. Ext.A1 is the photocopy of registration certificate of the autorikshaw. Ext.A2 is the application dated 05.11.2012 of the complainant and its reply from Joint R.T.O, Adoor dated 05.11.2012. Ext.A3 is the carbon copy of the sale agreement dated 01.08.2010 regarding the sale of the old vehicle. Ext.A4 is the advertisement of Bharath Motors. Ext.A5 is the copy of the loan repayment schedule of Mahindra & Mahindra. Ext.A6 is the receipt date 02.09.2010 for ` 13,100 issued by Bharath Motors. Ext.A7 is the cash receipt dated 06.09.2010 for ` 7,360 issued from Mahindra Finance. Ext.A8 is the copy of legal notice dated 28.10.2010 issued by complainant to the opposite party.
12. On the other hand, the contention of the opposite party is that the actual price of the autorikshaw is ` 1,23,966. Besides the said amount the complainant is bound to pay the other expenses such as tax, insurance, registration and accessories etc. which comes to ` 33,975. In this case, the said expenses were met by the opposite party and hence the complainant is liable to pay a total amount of ` 1,57,945. But opposite party received ` 1,40,000 from the finance company and an amount of ` 13,100 from the complainant. Thus opposite party had received a total amount of ` 1,53,100 whereas they are entitled to get ` 1,57,945 which includes the cost of the vehicle and other expenses. The sale of the old vehicle is an independent transaction between the complainant and an outsider and the price of the old vehicle is not received by the opposite party. In the transaction between the complainant and opposite party, opposite party is entitled to get ` 1,57,945 whereas the complainant has paid only ` 1,52,100. So in the said transaction complainant is liable to pay ` 4,845 more to the opposite party. This complaint is filed by the complainant only for avoiding the said payment and this complaint was filed when opposite party demanded the balance payment with the above contentions. Opposite party argued for dismissing the complaint as they are not liable to any unfair trade practice alleged by the complainant.
13. In order to prove the case of the opposite party, the sales manager of opposite party filed proof affidavit and he was examined as DW1 and documents produced were marked as Exts.B1 to B5. Ext.B1 is the retail invoice dated 01.09.2010 in respect of autorikshaw issued by the opposite party in the name of the complainant. Ext.B2 is the retail invoice dated 01.09.2010 in respect of the sale of accessories. Ext.B3 is the insurance certificate of the vehicle. Ext.B4 is the photocopy of the fare meter register kept by the opposite party showing the supply of fare meter to the complainant. Ext.B5 is the photocopy of Ext.A7.
14. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that parties have no dispute about the sale and purchase of autorikshaw. The only dispute is with regard to the alleged excess payment of ` 31,100 to the opposite party by the complainant. According to the complainant opposite party collected an excess amount of ` 31,100 from the complainant over and above the actual amount entitled to them. But according to the opposite parties they have not received any excess amount as alleged by the complainant and on the other hand the opposite party is entitled to get an amount of ` 4,845 more from the complainant.
15. On a perusal of Ext.A5, A6 and A7 it is evident that opposite party received ` 1,62,759 from the complainant. As per the statement of account given in the proof affidavit (Para 8) of the opposite party the total amount entitled to the opposite party is ` 1,57,945. As per Para 9 of the said proof affidavit opposite party stated that they have received only ` 1,57,945. If that be so the claim of the opposite party that they are entitled to get further amount of ` 4,845 from the complainant is baseless, as they have got the entire amount entitled to them. As per Ext.A5 payment schedule the loan amount is ` 1,42,299. So the contention of the opposite party that they have received only ` 1,40,000 from the finance company is not sustainable. At the same time, the complainant has not adduced any cogent evidence to show that the price of the old autorikshaw is received by the opposite party and the registration expenses and other expenses are met by the complainant. So the contention based on the said allegations is also not sustainable.
16. Moreover, the statement of accounts given by the complainant and the opposite party are not correct and it shows inaccuracy and vagueness. The said inaccuracy and vagueness may be due to the willful suppression of certain real facts from both sides. Therefore, we are not inclined to accept the contention of both parties as such.
17. However based on our independent calculations and in the light of opposite party’s admission in para 9 of the proof affidavit of the opposite party, it is found that opposite party is entitled to get only ` 1,57,945 whereas the complainant had paid ` 1,62,759 as per Ext.A5, A6 and A7. Therefore, we find that opposite party had collected an excess amount of ` 4,814 from the complainant (` 1,62,759 – 1,57,945 = ` 4,814) which is an unfair trade practice from the part of the opposite party and the opposite party is liable to the complainant. The further demand of ` 4,845 by the opposite party is not supported with any evidence. Hence this complaint can be allowed partly.
18. In the result, this complaint is allowed partly, thereby the opposite party is directed to return ` 4,814 (Rupees Four thousand eight hundred and fourteen only) with 10% interest per annum from the date of filing of this complaint till this date along with cost of ` 1,000 (Rupees One thousand only) and compensation of ` 2,500 (Rupees Two thousand five hundred only) within 15 days from the receipt of this order, failing which the complainant is entitled to get the whole amount with 12% interest per annum from today till the realization of the whole amount.
Declared in the Open Forum on this the 15th day of December, 2012.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Podiyamma
Exhibits marked on the side of the complainant:
A1 : Photocopy of registration certificate of the
autorikshaw.
A2 : Application dated 05.11.2012 of the complainant and
its reply dated 05.11.2012 from Joint RTO, Adoor.
to Regional Transport Officer, Adoor.
A3 : Sale agreement dated 01.08.2010 of the old vehicle.
A4 : Advertisement of Bharath Motors.
A5 : Photocopy of the loan repayment schedule dated
11.01.2012 of Mahindra & Mahindra Financial
Services Ltd..
A6 : Receipt dated 02.09.2010 for ` 13,100 issued by
Bharath Motors in the name of the complainant.
A7 : Cash receipt dated 06.09.2010 for ` 7,360 from
Mahindra Finance in the name of the complainant.
A8 : Copy of legal notice dated 28.10.2010 issued by
complainant’s counsel to the opposite party.
Witness examined on the side of the opposite party:
DW1 : Anoop Fernandez
Exhibits marked on the side of the opposite party:
B1 : Retail invoice dated 01.09.2010 for ` 1,23,966 issued
by the opposite party in the name of the complainant.
B2 : Retail invoice dated 01.09.2010 for ` 16,034 in respect
of the sale of accessories.
B3 : Insurance certificate of the vehicle.
B4 : Photocopy of the fare meter register copy.
B5 : Photocopy of Ext.A7.`
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Podiyamma, Parampil Puthen Veedu,
Manampuzha.P.O., Kadampanadu Village,
Adoor Taluk.
(2) Dealer, Bharath Motors, (Mahindra & Mahindra),
Thazhevettippuram, Pathanamthitta.P.O.
(3) The Stock File.
