SRI. SAJEESH.K.P    : MEMBER

    The complainant  filed this complaint  under Sec.35 of the Consumer Protection Act 2019,  seeking direction against the  OP to  Rs.1,00,000/- amount including advance payment, compensation and cost.

Complaint in brief :-

   According to complaint, the complainant had paid Rs.5000/- to OP on 4/11/2022 for booking TVSIQUVB ST new model and that the said  vehicle has worth Rs.1,33,000/-.  After 5 months the OP informed  the complainant that, the booked vehicle will not be available in the market, and cancel the booking and that the OP is ready to  refund the booking amount.  And on 27/6/2023, complainant cancelled  the booking, and the OP informed that the booking  amount  would be credited in the account of complainant.  After that  the complainant contacted OP  several  time but the  amount  has not been credited in complainant’s account.  Hence the complainant suffered hardship and hence this complaint.

               After filing the complaint, commission sent notice  to OP. The OP entered appearance before the commission and filed their version accordingly. 

Version of  OP in brief:

    The  OP denies the entire allegation except those specifically admitted. The OP denied the entire averment including the booking of vehicle  by paying  Rs.5000/- by complainant  and the OP contended that OP has no consumer-seller relation  with the complainant and hence  the complaint is not maintainable.  Furthermore, the OP contended that being a complainant not a consumer of OP, they are not liable to  any deficiency in service and hence the complaint is liable to be dismissed  along with cost of  OP.

         Due to the rival contentions raised by the OP to the litigation, the commission decided to cast the issues  accordingly.

1. Whether there is any deficiency in service from the side of  OP?
2. Whether there is any  compensation  &  cost to the complainant?

       In order to answer the issues, the commission called evidence from both parties. The  complainant produced documents which is marked as Exts.A1 to A3.   Ext.A1 is the  booking receipt dtd.4/11/2022, Ext.A2 is the  letter sent by OP to  TVS Motor  Company Ltd and  Ext.A3 is the e-mail reply from TVS Motor  Company Ltd.  The complainant adduced evidence  through proof  affidavit and examined as PW1 and not cross examined by OP.  OP has not adduced any evidence.

        Let us  have a clear glance into the  evidence produced before the commission to answer the issues raised.  For the sake of  convenience  both issues are clubbed together.

   As the OP denied the booking as well as the transactions made by  the complainant to  TVS IQUBE ST New Model vehicle, the commission looked into the documentary evidence by the complainant which is marked as Ext.A1.  The Ext.A1 shows the transaction of Rs.5000/- to TVS Motor Company Ltd shows that the complainant made part payment for the vehicle.  But, here  the OP raised the  contention that they had no contract between  complainant as the consideration moved to  TVS Motor Company, which was not arrayed as party to the case and hence they raised question of maintainability issue which was dismissed by the commission stating that it will consider during the evidence  time.  Here the OP has not cross-examined  the PW1  nor raised the contention of non-joinder of necessary party.  Ext.A2  shown that the complainant is cancelling his order  and intended to get back the advance amount and the Ext.A3 shows that the demand of advance amount paid by the complainant is acknowledged  by TVS Motors and intimated that the paid amount will be  repaired within 5-7 business days. According to the complaint, complainant approached OP showroom to book the vehicle as stated which was merely denied by the OP, but not produced any substantial evidence to disprove the contention raised by the OP.  The OP not used the chance to cross examine the PW1  to break the velocity  of evidence of PW1.  Hence , the commission came into a conclusion that the complainant had approached the OP to book the vehicle and paid Rs.5000/- as advance payment and thereafter the booking was cancelled by OP and the complainant not received the advance amount and hence  the OP is liable to the deficiency in service as they failed to fulfill the contract and hence  the complainant is entitled to get the advance amount as paid and also compensation.

           In the result complaint is allowed in part, the opposite party is  directed to  pay Rs.5,000/- , the advance amount paid by the complainant and  also pay Rs. 7,000/- as compensation  for mental agony and hardship Rs.3,000/- as  cost of litigation to the complainant  within 30 days of receipt of this order.  In default  the amount of Rs. 5,000/- carries  interest @9% per annum from the date of order  till realization . Failing which complainant is at liberty to file execution application against  the  opposite party as per the provisions of Consumer Protection Act 2019.

Exts:

A1-Copy of booking receipt

A2- Copy of letter

A3- Copy of e-mail reply

PW1-Kalathil Yousef-complainant

Sd/                                                   Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                       /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR