IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 24th day of September, 2020
Filed on 19. 05. 2017
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. C.K.Lekhamma. BA. LLB(Member)
In
CC/No. 131/2017
Between
Complainant:- Opposite parties:-
Sri. Jayakumar@ Ajaykumar 1. General Manager(Sales)
S/o Govinda Kartha Maruti Udyog Ltd.
Vandanam Glits Palam Gurgaon Road
Pallippuram.P.O Gurgaon-122-015
Cherthala
(Adv.P.T.Chandralekha) 2. General Manager
M/s Popular Vehicles &Service Pvt. Ltd., Kuttukaran Centre Mamangalam, Kochi-25
3. M/s Popular Vehicles &Serivce
Pvt. Ltd., Muttam Service
Co –operative Bank, Cherthala.
(Adv.Jayan.C.Das for OP2and 3)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act.1986
Complainant’s case briefly stated are as follows:-
On 3/6/2016 the complainant booked a Martui OMNI CARGO with the 3rd opposite party and paid Rs.3000/- as booking amount. As a token of booking the complainant was given the customer docket bearing no.EKM-8953 duly signed by the authorized signatory of the 3rd opposite party. The 2nd and 3rd opposite parties assured and promised that delivery will be affected within 7 days. On 10/6/2016 complainant was required to pay an amount of Rs.37,000/- towards the payment and the complainant issued a cheque bearing no.787476 drawn from Punjab National Bank for the said amount.
While so complainant received information that Maruti Udyog Ltd. has stopped the production of OMNI CARGO and on enquiry with 3rd opposite party there was no clear answer. Hence the complainant was forced to instruct his bank to stop payment of the cheque and requested 3rd opposite party on 14/6/2016 not to present the cheque. On 16/6/2016 the cheque was returned dishonoured. Thereafter though the complainant approached 3rd opposite party several times with balance payment there was no proper response. As per their request the matter was taken up with the consumer complaints team. But it was not resolved.
Complainant has not received any information about delivery of the vehicle. The intention of the 3rd opposite party was to achieve their booking target. They purposefully collected the amount fully aware that delivery of the vehicle is not possible. Hence complainant demanded the opposite party to return Rs.3000/- as booking amount and pay an amount of Rs. 1,00,000/- as compensation and Rs.2000/- as cost of notice. Hence the complaint for realizing the amount.
2. 1st opposite party filed written statement through its Deputy Manager (Legal) mainly contenting as follows:-
This opposite party is neither necessary nor Performa party in the complaint and hence the complaint is bad for mis-jointer of parties. The dealership is an independent entity and its own MOA and carryout business on their own invoice and sales certificate. This opposite party does not sell its products to any individual under its invoice or sales certificate. The relationship between this opposite party and dealers is that of principal to principal basis.
This complaint is filed with false and frivolous allegations. This opposite party is only responsible for providing warranty services during the warranty period that is two years or forty thousand kilometers from the date of sale. Complainant is not a consumer of this opposite party and hence the complaint may be dismissed with cost.
3. 2nd and 3rd opposite parties filed a version mainly contenting as follows:-
The complaint is not maintainable. There was no deficiency of service on the part of these opposite parties. The contention of the complainant is that the production of OMNI CARGO was stopped at the time of request is false. There was one vehicle in stock and it was blocked for the complainant. There was delay by the complainant to arrange vehicle finance for the balance amount. Since the production was stopped it was informed that complainant is not interested to take delivery of vehicle. There was no deficiency of service on the part of these opposite parties. However they are ready to return Rs.3000/- which was collected as advance. Hence the complaint may be dismissed with cost.
4. On the above pleadings following points arise for consideration:-
1. Whether there was deficiency in service on the part of the
opposite parties two and three?
2. Whether the complainant is entitled to realize an amount of
Rs.3000/- being the booking amount from the opposite parties
No. 2 and 3 as alleged?
3. Whether the complainant is entitled to realize an amount of
Rs.1,00,000/-as compensation from opposite parties ?
4. Whether the complainant is entitled to realize Rs.2000/- as cost
of the Advocate notice from the opposite parties?
5. Reliefs and cost?
5. Evidence in this case consists of the oral evidence of PW1 and PW2 and Ext.A1 to A7 from the side of the complainant and the oral evidence of RW1 and Ext.B1 and B2 from the side of the opposite parties.
6. Point no.1 to 4:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A5.
PW2 is the customer relationship manager of opposite party No.2. She stated that complainant had contacted her over phone and she could not remember the date. On 3/6/2016 complainant had booked a Maruti OMNI CARGO by paying an amount of Rs.3000/-. Since full payment was not received the vehicle was sold to somebody else. She admitted the audio conversation and the contents is marked as Ext.A7. She is not aware whether the complainant had full amount with him.
RW1 is the SPC Head of the 3rd opposite party. He filed an affidavit in tune with the version. Ext.B1 and B2 were marked by consent.
The case of PW1, complainant is that on 3/6/2016 he booked Maruti Omni cargo with the 3rd opposite party by paying an amount of Rs.3000/- as booking amount. It was informed that delivery will be affected within 7 days. On 10/6/2016 as per the request of the 3rd opposite party he gave an amount of Rs.37,000/- as cheque. However he came to know that Maruti udyog ltd has stopped the production of Omni cargo vehicle and so after requesting the 3rd opposite party not to present the cheque, he gave a stop memo to the bank. The grievance of the complainant is that though at the time of booking he was promised delivery of the vehicle within 7 days it was not complied. More over though the production of the vehicle was stopped without informing the same to the complainant they received the booking amount and also requested him to gave an amount of Rs. 37000/-. Though PW1 approached the 3rd opposite party for delivery of the vehicle with balance payment there was no response and hence the complaint was filed for realizing an amount of Rs.3000/- which was the advance amount along with Rs.1,00,000/- as compensation and Rs.2000/- as cost of notice. The case was resisted by 1st opposite party by filing a version contenting that they are not responsible for the act done by their dealers. The relationship between 1st opposite party and the dealers are principal to principal basis. They are responsible only if there is manufacturing defect for the vehicle and if there is any violation of warranty. 2nd and 3rd opposite party filed a joint version contenting that they received an amount of Rs.3000/- as booking amount from the complainant. Though the production was stopped they were having vehicles in their custody and that is why they accepted the booking amount. Though they were ready to give the vehicle which was available with them since the production was stopped, complainant was not interested in purchasing the vehicle. They contended that they are ready to return the advance amount collected from PW1.
Complainant got examined as PW1 and marked Ext.A1 to A7. One witness was examined as PW2. The SPC head of the 3rd opposite party was examined as RW1 and two invoices dtd.10/6/2016 and 15/6/2016 were marked as Ext.B1 and B2 respectively.
The fact that PW1 booked the vehicle on 3/6/2016 by paying an amount of Rs.3000/- as advance is admitted. According to PW1 they assured delivery within 7 days. However PW1 contented that vehicle was not available with the opposite parties and that is why they were unable to supply the vehicle as promised. Per contra the contention of the opposite parties 1 and 2 is that though the production was stopped Omni cargo vehicle were available with them and PW1 was not interested to purchase the same. So the question to be decided is to who was at fault. PW1 contended that he was having sufficient cash with them to purchase the vehicle whereas according to opposite party 2 and 3 he wanted to arrange finance to purchase the vehicle and so the delay occurred. To prove that sufficient money was available PW1 is relying upon Ext.A3 statement of account of Punjab National Bank. Ext.B1 and B2 are two invoices dtd.10/6/2010 and 15/6/2010 by which Omni cargo was sold by 3rd opposite party. In Ext.B1 invoice the ex-showroom price is Rs.2,39,445/- and Ext.B2 ex-showroom price is Rs. 2,17,445/-. Admittedly PW1 has paid only an amount of Rs. 3000/- at the time of booking. As per Ext.A3 Statement of Account the maximum amount available with him is Rs.1,57,392.28 /- on 16/6/2016. So it is crystal clear that PW1 was not having sufficient amount with him to purchase the vehicle. PW1 has produced Ext.A6 to prove that he purchased the same type of vehicle from M/s Indus Motors company (P) Ltd.. Booking date is 18/6/2016. Along with Ext.A6 order booking check list Certificate of Registration is also available. From the Certificate of Registration it is seen that the vehicle was hypothecated with M/s Kotak Mahindra Prime ltd, Palarivattom, Cochin. So it is pellucid that PW1 was not having sufficient amount to purchase the vehicle and that is why he availed loan and purchased another vehicle as per Ext.A6. As discussed earlier in Ext.A3 Statement of Account the maximum amount available was only about Rs.1,57,000/- were as the price of the vehicle was about Rs.2,40,000/-. The contention of PW1 that Omni cargo vehicles were not available with the opposite parties No. 2 and 3 appears to be not correct since as per Ext.B1 they sold an Omni cargo vehicle on 10/6/2016 and another on 15/6/2016. It is to be remembered that PW1 booked the vehicle on 3/6/2016 and opposite parties assured that delivery will be affected within one week. Accordingly they requested PW1 to pay an amount of Rs.37,000/- on 10/6/2016. Though PW1 issued the cheque on 10/6/2016 for Rs. 37,000/- he issued stop memo to the bank and hence the cheque was dishonoured on presentation. In the light of the above discussion it is crystal clear that the contention of PW1 that he approached the 3rd opposite party with the balance payment on several occasions appears to be not correct. In the circumstances it is to be presumed that PW1 did not take delivery of the vehicle since he was not having sufficient amount to pay the balance. By producing Ext.B1 and B2 the case of PW1 that opposite parties 2 and 3 were not having vehicles was negatived. In the version which was filed on 10/8/2017 opposite party 2 and 3 admitted that they are ready to return Rs.3000/- which was collected as advance. However PW1 is claiming an amount of Rs.1,00,000/- as compensation and Rs.2000/- as cost of lawyers notice. It is for PW1 to prove that he sustained damage or loss which entitles him to receive compensation from the opposite party. As discussed earlier the evidence on records shows that PW1 was not having sufficient balance to purchase the vehicle by paying cash. Ext.A6 shows that he purchased another vehicle by availing loan from M/s Kotak Mahindra Prime ltd. By producing Ext.B1 and B2 invoices opposite parties No.2 and 3 proved that they were having two Omni cargo vehicles and since PW1 was not having sufficient amount to purchase the vehicle they sold them to 3rd parties. In the said circumstances it can be safely concluded that PW1 has not sustained any damage or loss from the hands of opposite party No. 2 and 3 which entitles him to claim compensation. PW1 failed to prove that there was deficiency of service on the part of the opposite party No.2 and 3and on the contrary he could not purchase the vehicle for want of sufficient amount. In said circumstances PW1 is not entitled for compensation. However he is entitled to receive Rs.3000/- which was given to opposite party No.2 and 3 as booking amount. As stated earlier in the version itself opposite party No.2 and 3 have admitted that they are ready to return the advance amount of Rs.3000/-. These points are found accordingly.
7. Point No.5
In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs.3000/- from
opposite parties No. 2 and 3.
B) Both parties are directed to bear respective costs.
The order shall be complied within one month from the date of copy of the receipt of this order.
Dictated to the Confidential Assistant, transcribed by him correct by me and pronounced in open Commission on this the 24th day of September, 2020.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - G.Jayakumar(complainant)
PW2 - Neetha(Witness)
Ext.A1 - Copy of Notice dtd.26-8-2016
Ext.A2 - Copy of Commitment check list
Ext.A3 - Statement of Accounts
Ext.A4 - Copy of Omni vehicle production stopped report.
Ext.A5 - Postal receipt
Ext.A6 - Copy of Commitment check list
Ext.A7 - True copy of audio copy.
Evidence of the opposite parties:-
RW1 - Vimal.P(Witness)
Ext.B1 - Invoice dtd.10/6/2016
Ext.B2 - Invoice dtd.15/6/2016
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
