CC No.1964.2014

Filed on 22.11.2014

Disposed on.25.10.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 25^th DAY OF OCTOBER 2017

CONSUMER COMPLAINT NO.1964/2014

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                         V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 22.11.2014 U/s 12 of the Consumer Protection Act, 1986 and praying to pay Rs.2,92,548/- at the time of purchasing the said vehicle, to pay compensation of Rs.20,000/- towards travelling and boarding expenses, to pay Rs.10,000/- towards the pecuniary loss, to pay sum of Rs.2,00,000/- as damages for mental agony and other reliefs.
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Complainant has purchased Innova 2.5V(E4) Package:X, 8 Seater of Silver Mica Metallic Colour, from the Opposite Parties under Invoice No.INV130000842 dt.17.10.2013 and Order No.ORD130000899 order dt.23.09.2013, for sum of Rs.18,05,163/-, which includes price Ex-showroom, Tax and other charges like, Road Tax, Insurance, basic accessories and registration charges.  The Complainant has paid the above said amount of Rs.18,05,163/- to the Opposite Party Company as follows;

1. Rs.5,00,000/- through Demand Draft bearing No.611471, dt.21.08.2013, drawn on Canara Bank, Hiriyur-572143.
2. Rs.5,05,163/- through Demand Draft bearing No.611472, dt.21.08.2013 drawn on Canara Bank, Hiriyur-572143 and
3. Iii) Rs.8,00,000/- by way of cash on 19.08.2013 and have issued receipt bearing No.1782 acknowledge of having received the said amount. 

3. After receiving the said amount of Rs.18,05,163/- from the Complainant, the Opposite Party No.1 has delivered the above said vehicle Innova 2.5V(E4):Package:X, 8 Seater of Silver Mica Metallic Colour, on 24.10.2013 without registration.  At the time of delivery the 1^st Opposite Party promised to the Complainant that, within 15 days he is going to register the vehicle in the name of Complainant. After the said period of 15 days as promised by the Opposite Party No.1, the Complainant has approached the Opposite Parties on many times and requested them for registration of the said vehicle but one or the other reasons the 1^st Opposite Party is go on postponing the registration of the vehicle.   Due to the Opposite Parties negligence and failure to register the above said vehicle in to the Complainant’s name, caused Mental agony, physical strain, damages and pecuniary loss to the Complainant. Even after collecting entire amount of Rs.18,05,163/- which includes price, Tax and other charges like, Road Tax, Insurance, basic accessories and registration charges, by the Opposite Parties, they failed to registered the vehicle in to the Complainant’s name.  The Complainant has got registered the above said vehicle by spending Rs.2,86,815/- and in total the Complainant has spent more than Rs.3,00,000/- from his pocket towards registration of the said vehicle.   The Complainant got issued a Legal Notice to the Opposite Parties through his counsel on 24.01.2014 through R.P.A.D.  The said notice was duly served on the Opposite Parties.  The Opposite Party No.1 called the Complainant on his mobile and told that, after consulting the 2^nd Opposite Party, he is going to return the amount of Rs.2,92,548/-, which they have collected from the Complainant at the time of purchasing the said vehicle, with a promise to registered the said vehicle in the name of the Complainant.  The Complainant waited all these days, with a hope that, the Opposite Parties will return the amount of Rs.2,92,548/- and other expenses incurred by him for the above said registration.  The Opposite Parties makes a false and misleading representation concerning the need for service as promised by them and further failed to return the above said amount to the Complainant as promised by them.   The act of the Opposite Parties in making a false representation by misleading the Complainant with concerning the need for service cause, mental agony.  Hence, this complaint. 

4. In response to the notice, the Opposite Parties put their appearance through their counsel and filed their version.  In the version pleaded that the normal accepted practice for purchase of a vehicle from the Opposite Parties representing M/s.Viva Toyota is to have a formal booking and Opposite Parties issuing a formal receipt for the payments received whether in cash or Demand Draft.  Such booking form and receipt issued by the Opposite Party will contain all the details of customer including customer ID, details of the payment, type of vehicle, colour of vehicle etc.  The Opposite Parties issue such receipts in its letter head with all the details of the customer and the details of payments received.   The Complainant had approached the Opposite Party No.2 on 17.07.2013 and expressed his desire to purchase Innova Car and also said that he has approached Canara Bank for a loan in that connection.  The Complainant in order to get a loan from Canara Bank, had requested the Opposite Party to issue a dummy receipt for Rs.8,00,000/- to be used as supporting document to get loan from the Bank.  The Opposite Party believing Complainant’s words and with a bonafide intention of marketing the vehicle, thought fit to accept Complainant’s request and issued a dummy receipt without factually receiving amount.  The Opposite Party No.2 has not issued the formal receipt in regular format as being issued in all the business transactions and the receipt of Opposite Party No.2 had given was only dummy receipt and can never be accepted or acted upon as a lawful receipt.  It is not understandable to the Opposite Party No.1 & 2 as to how the Complainant received the receipt without any details.  The Complainant did not insist on formal receipt and did not make any formal booking of vehicle as factually he did not hand over cash to Opposite Party No.2.  This itself indicate that it is a concocted story by the Complainant.  The records maintained by the Opposite Party No.1 & 2 do not reflect any cash received from the Complainant for the purpose of purchase of a vehicle from the Opposite Party.  The Complainant had approached the Opposite Party No.2 and obtained the pro-forma Invoice dt.17.07.2013 for Toyota make Innova Vehicle as per the invoice i.e., the price of the vehicle was Rs.16,05,163/-.   As a matter of fact the Complainant did deposit two Demand Drafts, namely (1) DD No.611471 and DD No.61142 both dt.21.08.2013 for an amount of Rs.5,00,000/- and Rs.5,05,163/- respectively issued by Canara Bank, Hiriyur Branch.  In the circumstances, according to the Opposite Party No.1 & 2 a formal booking was done only on 21.08.2013 in the light of payment of Rs.10,05,163/- by way of two demand drafts as stated above.  The payment of Rs.8,00,000/- alleged to have been paid by the Complainant by way of cash is factually and legally not acceptable to the Opposite Party No.1 & 2.   The Complainant had actually given two Demand Drafts both dt.21.08.2013 for a total amount of Rs.10,05,163/-.  The Complainant had not paid anything over and above the said Rs.10,05,163/-.  The Complainant promised that he would pay the balance amount towards the cost of vehicle and further said that he would pay the road tax etc.  The Complainant requested to deliver the vehicle with temporary registration only.  The Opposite Parties believed the customer and delivered the vehicle.  The Opposite Party Company have a system of depositing the cheques and cash received from customers on the bookings made by them.  Such cheques and cash received by the Opposite Party Company is deposited next day in their bank account, at HDFC Bank.  The Bank Statement reflects Rs.1,00,000/- deposited on 19.08.2013, received from 2 customers and Rs.3,10,000/- deposited on 20.08.2013, received from 3 customers in the Account No.01402560001209 and Rs.6,81,000/- deposited on 21.08.2013 received from 6 customers in A/c.No.01408520000012 @ HDFC Bank.   Further the General Ledger showing the receipts and expenditures maintained by Opposite Party Company do not reflect receipt of Rs.8,00,000/- on 19.08.2013.  The Invoice value of Innova the Complainant had booked is Rs.16,05,163/- and the Opposite Party fail to understand how the Complainant had deposited Rs.18,05,163/- which is 2 Lakhs more than the Invoice amount.  The Complainant is silent on this and it shows the whole thing is a concocted story to gain wrongfully.   It is false to say that the Opposite Party received Rs.18,05,163/- from the Complainant and the Opposite Parties never promised the Complainant that they will register the vehicle in the name of the Complainant.   It is false to say that the Complainant approached the Opposite Party and requested for registration of the vehicle.  In fact there is no communication either oral or written from the Complainant requesting for registration.  There is no negligence on the part of the Opposite Party and the Opposite Party is not responsible for the Complainant’s mental agony, physical strain.  Hence prays to dismiss the complaint.

5. The Complainant, Sri.Mahesh D.S, filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Parties, the affidavit of one Sri.T.K.Gajendran has been filed.   Heard the arguments of both parties.

6.      The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency of service and unfair trade practice by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

7.     Our findings on the above points are:-

                POINT (1):-  Affirmative

POINT (2):-  As per the final Order

REASONS

8. POINT NO.1:- It is the case of the Complainant, on 17.10.2013 the Complainant has purchased Innova 2.5V(E4) Package:X, 8 Seater of Silver Mica Metallic Colour, from the Opposite Parties under Invoice No.INV130000842 dt.17.10.2013 and Order No.ORD130000899 order dt.23.09.2013, for a sum of Rs.18,05,163/-, which includes price Ex-showroom, Tax and other charges like, Road Tax, Insurance, basic accessories and registration charges.  The Complainant has paid the above said amount of Rs.18,05,163/- to the Opposite Party Company as follows;

1. Rs.5,00,000/- through Demand Draft bearing No.611471, dt.21.08.2013, drawn on Canara Bank, Hiriyur-572143.
2. Rs.5,05,163/- through Demand Draft bearing No.611472, dt.21.08.2013 drawn on Canara Bank, Hiriyur-572143 and
3. Rs.8,00,000/- by way of cash on 19.08.2013 and have issued receipt bearing No.1782 acknowledge of having received the said amount. 

9. The Opposite Parties in their version have not denied about the purchase of Innova 2.5V(E4) Package:X, 8 Seater of Silver Mica Metallic Colour, from the Opposite Parties, but they denied that the Complainant paid a sum of Rs.18,05,163/-.  On the other hand, according to the Opposite Parties, the Complainant paid only Rs.10,05,163/- through two Demand Drafts.  It is on the burden of the Complainant to establish the same.  In order to substantiate this contention of the Complainant, the Complainant in his sworn testimony, he has reiterated the same and produced the Pro-forma Invoice.  As looking into this document, it is dt.17.07.2013 issued by the Opposite Party No.2.  By looking into this Invoice, it clear that the price of the Toyota Innova is Rs.14,64,674/- which includes Road Tax Rs.2,82,384/-, Insurance Rs.47,941/-, Basic Accessories Rs.3,650/- for total sum of Rs.18,05,163/- and produced the copy of the two DDs bearing No.611471 dt.21.08.2013 for a sum of Rs.5,00,000/- and bearing No.611472 dt.21.08.2013 for a sum of Rs.5,05,163/- and also receipt issued by the Opposite Party No.2 dt.19.08.2013 under receipt No.1782 received Rs.8,00,000/- from the Complainant on account of the Toyota Innova purchased.  This evidence of the Complainant has not been challenged by the Opposite Parties.  Eventhough the Opposite Parties in their version denied that they have not received a sum of Rs.8,00,000/- by way of cash.  If the Opposite Parties have not received the cash of Rs.8,00,000/- from the Complainant why they issued the receipt infavour of the Complainant for receiving a sum of Rs.8,00,000/-and without receiving the full amount of Rs.18,05,163/- why the Opposite Parties delivered the vehicle infavour of the Complainant.

10.  The defence of the Opposite Parties is that the Complainant in order to get a loan from Canara Bank, had requested the Opposite Party to issue a dummy receipt for Rs.8,00,000/- to be used as supporting document to get loan from the Bank.  The Opposite Party believing Complainant’s words and with a bonafide intention of marketing the vehicle, thought fit to accept Complainant’s request and issued a dummy receipt.  But in support of this defence, the Opposite Parties except the interested version of Sri.T.K.Gajendran have not adduced any supporting evidence.  On the other hand, even the Opposite Parties have issued Dummy receipt in favour of the Complainant, on the request of the Complainant to get loan from the Canara Bank without full payment of Rs.18,05,163/- i.e., price of the Toyota Innova why the Opposite Parties are delivered the vehicle infavour of the Complainant.  Thereby, it is not proper to accept the defence taken by the Opposite Parties and further more as the defence taken by the Opposite Parties.  The Opposite Parties have a system of depositing the cheques and cash received from customers on the booking made by them.  Such cheques and cash received by the Opposite Party Company is deposited next day in their Bank Account, at HDFC Bank.  The Bank Statement reflects the amount.  The General Ledger showing the receipts and expenditures maintained by the Opposite Party Company do not reflect receipt of Rs.8,00,000/- on 19.08.2013.   Even to this fact, the Opposite Parties have not led any evidence to substantiate their defence.  In the event of Opposite Parties have not received Rs.8,00,000/- from the Complainant.  To substantiate this, the Opposite Parties ought to have produced the General Ledger maintained by them or their Statement Account of Account No.01408520000012 at HDFC Bank.  But the Opposite Parties have not produced any such evidence, thereby it is not proper to accept the defence taken by the Opposite Parties that they have not received Rs.8,00,000/- by way of cash from the Complainant and the Complainant has paid only Rs.10,05,163/-.  On the other hand, to substantiate this, the Complainant has produced the relevant evidence.  Therefore, it is proper to accept the contention of the Complainant that the Complainant purchased Toyota Innova 2.5V(E4) Package:X, 8 Seater of Silver Mica Metallic Colour, from the Opposite Parties under Invoice No.INV130000842 dt.17.10.2013 and Order No.ORD130000899 order dt.23.09.2013, by paying a sum of Rs.18,05,163/- i.e., through Demand Draft paid Rs.10,05,163/- and remaining amount of Rs.8,00,000/- by way of cash on 19.08.2013 under a valid receipt No.1782.

11. It is further case of the Complainant, the Opposite Party No.1 delivered the said vehicle Innova 2.5V(E4):Package:X, 8 Seater of Silver Mica Metallic Colour, on 24.10.2013 without registration.  At the time of delivery, the 1^st Opposite Party promised to the Complainant that, within 15 days he is going to register the vehicle in the name of Complainant. After the said period of 15 days as promised by the Opposite Party, the Complainant has approached the Opposite Parties on many times and requested them for registration of the said vehicle but one or the other reasons the 1^st Opposite Party is go on postponing the registration of the vehicle.   Even after collecting entire amount of Rs.18,05,163/-. The Opposite Parties have failed to register the vehicle in the name of the Complainant’s.  The Complainant has got registered the above said vehicle by spending Rs.2,86,815/-.  Even this fact is also denied by the Opposite Parties in their version. 

12. To substantiate this fact, the Complainant in his sworn testimony, he has reiterated the same and produced the Invoice.  As looking into this Invoice. It is very clear that the value of the vehicle is sum of Rs.18,05,163/-including price, other taxes like Insurance, Road Tax and others.  But the Opposite Parties have failed to register the vehicle in the name of the Complainant as promised by the them at the time of selling the vehicle infavour of the Complainant, eventhough they have received total sum of Rs.18,05,163/-.  On the other hand, in order to get register in the name of the Complainant.  The Complainant ought to have spent sum of Rs.2,86,815/-.  This is very clear, as looking into the copy of the Demand Drafts i.e., in the name of the R.T.O. Office Bangalore TR No.A.1233 KA-05/TR issued on 24.10.2013.  From this evidence, it is crystal clear that the Complainant himself got registered the car in his name by spending a sum of Rs.2,86,815/- but the Opposite Parties failed to get it register in the name of the Complainant as promised by them, thereby it is amounts to unfair trade practice adopted by the Opposite Parties and also amounts to deficiency of service.  Eventhough the Complainant made several requests and demand to get it register the vehicle, but the Opposite Parties failed to get it register the vehicle in the name of the Complainant, it caused mental agony to the Complainant.  Eventhough the Complainant had paid the entire total sum of Rs.18,05,163/-, thereby the Complainant is entitled for compensation for causing mental agony.  Hence, this point is held in the Affirmative. 

13.  POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is allowed holding that there is deficiency of service by the Opposite Parties.

The Opposite Parties are directed to refund a sum of Rs.2,86,815/- towards registration charges and further directed to pay a sum of Rs.50,000/- as compensation for causing mental agony.

The Opposite Parties are also liable to pay a sum of Rs.5,000/- as cost. 

The Opposite Parties are directed to pay the aforesaid amount within 30 days from the date of receipt of this Order.   Failing which the aforesaid amount will carry interest at 18% p.a. from the date of order, till the date of payment. 

Supply free copy of this order to both the parties. 

   (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 25^th day of October 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Mahesh D.S, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of Performa Invoice dt.17.07.2013,
2. Copy of Demand Draft for sum of Rs.5,05,163/- dt.21.08.2013
3. Copy of Demand Draft for sum of Rs.5,00,000/- dt.21.08.2013
4. Copy of the receipt dt.19.08.2013
5. Sale Certificates dt.24.10.2013
6. Copy of the Demand Draft dt.30.01.2014
7. Copy of the Road Tax issued by Transport Authority.
8. Copy of Legal Notice dt.24.01.2014
9. Copy of R.P.A.D Receipts
10. Copy of the R.P.A.D. Acknowledgements.    

Witness examined on behalf of the Opposite Parties:

1. Sri.T.K.Gajendran, Representing of the Opposite Parties by way of affidavit.

List of documents filed by the Opposite Party:

-NIL-

       MEMBER                                                       PRESIDENT