IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Dated this the 25^th day of February, 2023

                  Present: Sri.Manulal.V.S, President

                                Smt.Bindhu.R, Member

                                    Sri.K.M.Anto, Member

                             CC No. 240/2021 (Filed on 18/10/2021)

Complainant                           :         Mr.Shyam N.S

                                                          S/o Sasiyappan,                                                   

Nainadaparambil House

 Manjoor P.O- 686603

 Kothanalloor Village,

Manjoor Kara, Manjoor Panchyat

 Kottayam

                                                             (By Adv.Gokul K.S)

                                                          Vs

Opposite parties                      : 1.     Proprietor

                                                          George Maijo Industries Pvt Ltd

                                                          Yamaha KMC XIV/221-A and B

                                                          Carackattu Buildings

                                                          Manippuzha, Nattakom, Kottayam

                                                          (By Adv.Bobby John K.A)

                                                2.       Proprietor, Neon Yamaha

                                                          Parolikkel Junction,

                                                          M.C.Road, Ettumannoor ,

                                                          Kottayam.

                                      O R D E R

Smt.Bindhu.R,  Member

The complaint is filed under section 35 of the Consumer Protection Act 2019.

The complainant’s case in brief is that the had purchased a motor cycle named Yamaha FZFI Blue 2021 V3 new model on 27-04-2021 from the second opposite party by advancing Rs.35,000/- vide receipt voucher no.4587 and got delivery of the vehicle on 01-07-2021 to his residence. Due to covid pandemic situation the complainant was not required to visit the office of the 1^st opposite party.   He was informed that all paper works were being done and he got delivery on the promised date.   Only after delivery he noticed that the vehicle was not of the same model which was booked by him.  Upon enquiry about the true facts, the opposite parties did not answer to him.   So he had to take the vehicle to a workshop and there he realized that the delivered vehicle was manufactured in the year 2020.  Thereafter upon repeated demands, the 1^st opposite party handed over the papers related to the vehicle to the complainant.  The month and year of manufacture was recorded as 2020 in the papers whereas in the insurance policy it was recorded as 2021.  Though the complainant did not sign any of the papers with the 1^st opposite party, the application for registration was signed by somebody else. The complainant approached both the opposite parties for clarification but both of them were befooling him by saying lame excuses and putting the responsibility to each other. The vehicle is hypothecated with ICICI Bank and is insured with Cholamandalam General Insurance. The complainant paid an amount of Rs.1,08,500/- in total.

Upon notice the 1^st opposite party appeared and filed version whereas the 2^nd   opposite party did not turn up to file version and hence set exparte.

In their version the 1^st opposite party contended that the complainant had never contacted them for the delivery of the vehicle and they have not delivered any vehicle to the complainant. The 1^st opposite party is an authorised dealer but the status of the 2^nd opposite party is not known to the 1^st opposite party.  The vehicle was delivered by the 2^nd opposite party.  No communication was done between the complainant and the 1^st opposite party.  The allegation that the year of manufacturing of the vehicle was 2020 is false.  The 1^st opposite party is the main dealer of the company and the company would send the vehicles to the 1^st opposite party for distributing to the sub dealers like 2^nd opposite party as per their requirement. The vehicle under dispute was given to the 2^nd opposite party and the complainant booked the same after satisfied with the same. The 1^st opposite party generated the invoice and form 20 as per the billing order form and KYC of the complainant sent by the 2^nd opposite party and emailed the same to the 2^nd opposite party.  The 2^nd opposite party got the signature of the complainant and took insurance and the 1^st opposite party took registration of the vehicle. Till the registration the complainant had not raised any complaint. The 1^st opposite party has done all the processing for the 2^nd opposite party and they had no contact with the complainant.  So there is no deficiency of service on the part of the 1^st opposite party.  The 1^st opposite party is an unnecessary party to the complaint.

The complainant has adduced evidence as PW1 and Exhibits A1 to A3 were marked from the side of the complainant. The appearing opposite party no.1 has not adduced any evidence.

On the basis of the pleadings and evidence, we frame the following points:

1. Whether the complainant has succeeded in establishing the deficiency of service or unfair trade practice on the part of the opposite parties?
2. If so what are the reliefs to be granted to the complainant?

Point no 1 and 2

The case of the complainant is that he had booked a new Yamaha FZFI blue 2021 V3 bike with the 2^nd opposite party but the 2^nd opposite party delivered a 2020 model Yamaha bike which is an unfair trade practice on the part of the opposite parties. The 1^st opposite party only appeared and defended that they were not a party to the deal but they only supplied vehicles to the 2^nd opposite party who was their sub dealer.  The contention of the first opposite party is that the complainant had booked the vehicle after being convinced.

On a detailed perusal of the facts and evidence on record, we see that the complainant had booked the vehicle in April, 2021 and got delivery in July 2021. First of all, we cannot presume that a person who intends to buy a new vehicle would ask for an old model vehicle. Even if the dealer gives such an offer, it would be accompanied with certain gifts or offers such as discounts etc. Further, the dealer would ensure the consent of the customer in writing that he is purchasing the old model vehicle at his own free will. This is the usual practise done by the vehicle dealers.

Here, the 1^st opposite party has not even contented in their version that the complainant had accepted their offers and gave his consent to take the old model vehicle, in writing. No evidence has been produced before us to prove that the complainant has previous knowledge about the make of the vehicle which was an year back edition.

Exhibit A1 is the receipt issued by the 2^nd opposite party for the receipt of Rs.35,000/- for the booking of FCIB Blue.  The 2^nd opposite party has received the payment from the complainant and the balance payment was made by the hypothecating agency. So undoubtedly the complainant is the consumer of the 2^nd opposite party. By receiving this payment for the booking of the vehicle the 2^nd opposite party is bound to deliver the same vehicle which was intended to purchase by the consumer. So we infer that as far as there is no contrary evidence before us to prove that the consumer had opted for the year back edition of the vehicle, the 2^nd opposite party has been proved to be deficient in their service by delivering the old model vehicle to the complainant. Moreover, in Exhibit A1, which is issued by the 2^nd opposite party against the payment of the advance amount of Rs.35,000/- , no details of the vehicle is seen recorded. This receipt is the only document to prove the details of booking of the vehicle but it is seen that the 2^nd opposite party has not put the details of the vehicle in this document. This is considered as an unfair trade practise. The laymen consumers are being deceived by the automobile dealers by these deceptive tactics.

The 1^st opposite party in its version has contented that they had no direct transactions between the complainant and so they are not at all liable for whatever had happened. But while going through the version of the 1^st opposite party we can see that they have stated that they did not even know the 2^nd opposite party. But subsequently they have stated that the 1^st opposite party is the authorised dealer of Yamaha two wheeler vehicles for Kottayam district and there are so many other sub dealership in Kottayam district and the 2^nd opposite party is like one.  As and when vehicles reach the 1^st opposite party, by issuing stock transfer, the 1^st opposite party transfers required number of vehicles to the 2^nd opposite party.  The 1^st opposite party generated the invoice and form 20 upon receipt of duly filled billing order and KYC documents from 2^nd opposite party.  Insurance was taken by the 2^nd opposite party and submitted to the 1^st opposite party and registration was taken by the 1^st opposite party. Everything was done by the 1^st opposite party as per the request of the 2^nd opposite party. From all these contentions of the 1^st opposite party we understand that the 2^nd opposite party is an authorised agent of the 1^st opposite party and hence for all the actions of the 2^nd opposite party the 1^st opposite party also is liable.

The complainant has deposed as PW1 and though in cross examination he was asked about the role of the 1^st opposite party in the deal when he deposed that all the papers were given by the 1^st opposite party which is correlated with the contentions of the 1^st opposite party in its version. So it is evident that the 1^st opposite party had the knowledge about the make and model of the vehicle. The 1^st opposite party could have checked whether the 2^nd opposite party had taken the booking for the year back edition and if so whether the consent of the complainant was obtained. Being an authorised dealer of the Yamaha company, the 1^st opposite party ought to have shown more diligence in providing accurate service to the consumers.  We see that they have made grave dereliction in dispensing proper service to the customers and are liable to compensate the customer being part of the unfair trade practice done by the 2^nd opposite party.

A customer who wish to purchase a new vehicle if given with an old model, would be affected badly. Moreover, at the time of resale and all he would have to suffer great loss. The purchaser of an year back vehicle would have to suffer financially and hence the companies usually offer discounts and other things to compensate the loss and get the consent of the customer. The complainant had paid Rs.1,08,500/- towards the total price of the vehicle. The opposite party has not raised any contention regarding the actual price. So we find that the complainant had great mental agony and sufferings due to the unfair trade practice and deficiency in service of the opposite parties.

The impugned vehicle is of 2020 model and the complainant purchased the same in 2021.  As of now 2 years have elapsed and hence we find that no purpose will be served if we allow the prayer for replacing the vehicle by a 2021 model.  But the complainant is entitled for compensation for mental agony and hardships.  The opposite parties are liable to compensate the complainant.  

Considering the nature and circumstances of the case, we allow the complaint.

1. The opposite parties are directed to give Rs.1,50,000/- to the complainant as compensation for the mental agony and sufferings in order to meet the ends of justice.
2. The opposite parties are directed to give Rs.10,000/- as litigation cost.

 The opposite parties are directed to comply the order jointly and severally within 30 days from the date of receipt of the copy of this order failing which the award amount shall carry an interest @ 9% till realisation.

                                       Pronounced in the open Commission on this the 25^th day of February, 2023.

          Smt.Bindhu.R,  Member        sd/- 

          Sri.Manulal.V.S, President    sd/-

          Sri.K.M.Anto, Member         sd/-

Appendix

Exhibits marked from the side of the complainant

A1-    Copy of the receipt voucher dated 27.04.2021

A2-    Copy of the Certificate of registration

A4-    Copy of the lawyers notice dated 28.06.2021

Sworn statement from the side of the complainant

PW1- Shyam N.S, Nainadapparambil, Manjoor P.O

                                                          By order

                                                                  sd/-

                                                 Assistant Registrar