IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 28th day of November, 2018
Filed on 14. 09. 2015
Present
1. Sri.E.M. Muhammed Ibrahim , BA,LLM (President)
2. Smt. Sheela Jacob .B.com, LLB(Member)
in
CC/No.273/2015
Between
Complainant:- Opposite parties:-
Smt. Mary Abraham 1. Hercules Automobiles
Lalaparambil House, International (p) Ltd ,
M.O Ward, Alappuzha Rept. By its Manager, A.C.Road
(by Adv. Babu Joseph) SD College,Kalarcode,
Sanathanapuram.P.o
Alappuzha 688003
(by Adv.C.Parameswaran)
2. Additional 2nd Op
Maruti Suzuki India,
Represented by its Managing
Director, Plot No.1,
Nelson Mandela Road, Vasanth
Kunj, New Delhi.
ORDER
SRI.E.M. MUHAMMED IBRAHIM.B.A.LLM (PRESIDENT)
This case is based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.
1.The averment in the complainant, in short are as follows:-
Complainant was having intention to purchase a vehicle and by knowing that fact the 1st opposite party approached the complainant with an invoice showing the price of the Maruti Wagnor Lxi of the year 2014 model. It was during the month of December 2014 the 1st opposite party also assured the complainant that if the vehicle was booked during the year 2014 itself the complainant would get a 2015 model vehicle at the price of 2014 model by believing the above representation of the 1st opposite party the complainant on 31/12/2014 booked one Wagnor LXi car by paying R. 53,000/-with the of the 1st opposite party. The complainant on 24/3/15 paid Rs. 4,56,623/- being the balance price amount also . The vehicle was delivered on 15/4/2015. The registration of the vehicle was done by the 1st opposite party. However on verification of the RC particulars the complainant came to know that the vehicle delivered was 2014 model instead of 2015 as promised. There after the complainant requested on several occasions to replace the vehicle with 2015 model. There was no response from the 1st opposite party. Hence complainant caused to issue a lawyers notice which was received by the 1st opposite party. But they did not comply with the notice nor sent any reply. According to the complainant the 1st opposite party misrepresented the complainant and caused to sell 2014 model vehicle instead of 2015 vehicle, which amounts to unfair trade practice on the side of the opposite parties. Hence the complainant.
2. The 1st opposite party resisted the complainant by raising many fold contentions. According to the opposite party the complainant approached the opposite parties on 31/12/2014 with an intention to purchase Wagnor Lxi car which was readily available at the showroom of the opposite party. The year of manufacturer of the Wagon R Lxi car then available was 2014. The complainant had paid Rs. 3000/- and booked one Wagnor car and informed that she would come back as and when she managed to get finance through SBI. On 23/3/2015 the complainant again approached the opposite party along with necessary funds and the purchased of the vehicle on that day the vehicle in issue was delivered to the complainant to her absolute satisfaction. It is further contented that it was a year end sale. Hence the opposite party had given a concession of Rs. 33,185/-. According to the opposite party the complainant was fully aware of the year of manufacturer of the car at the time of booking itself. Contention to the fact that she came to know about model upon the receipt of the registration certificate is totally false. Complainant inspected to vehicle thoroughly before the delivery and she was fully aware of the year of manufacture of the vehicle at the time of purchasing the same. It is further contented that the application for registration of the vehicle purchased by the complainant was filled up her and she had duly filled the year of manufacture as 2014. According to the complainant the opposite party entered into an unconditional contract with the complainant on 31/12/14 whereby the complainant had agreed to purchase the vehicle manufactured during the year 2014. The present dispute is pure and simple contract of sale and same is governed by Sale Of Goods Act. The contention of the complainant is that opposite party had delivered 2014 vehicle instead of 2015 vehicle for the price of 2014. Which is only an afterthought and baseless. Sec 20 of the sale of Goods are applicable in this transaction. There is no deficiency in service on the part of the opposite party in the matter as opposite party has full filled contractual obligation in its letter and spirit. Complainant has not paid the amount for the extended warranty with the opposite party. Hence she is not entitled to get extended warranty also. Opposite party further prays to dismissed the complaint with its costs.
3. Subsequently Maruti Suzuki India (Pvt) Ltd has been impleaded the 2nd opposite party. In the response to the notice, the 2nd opposite party appeared and resisted the complaint by filing a detailed version raising the following contentions.
4. Complaint is not maintainable. As far as the additional 2nd opposite party is concerned there is no cause of action. There is no privity of contract between complainant and additional 2nd opposite party. The complainant is not a consumer of the Additional 2nd opposite party. The present complaint is bad for mis joinder parties. The additional 2nd opposite party never used to sell the vehicle directly to customer. It was sold through the authorized dealer and the complainant is having no direct connection with Additional 2nd opposite party. Hence the additional 2nd opposite party is not liable to answer any of the act or omission on the part of the 1st opposite party. The additional 2nd opposite party is not committed any deficiency in service or unfair trade practice. The relief sought for by the complainant falls outside ambit of clause (a) to (i) under Section 14(1) of the Consumer Protection Act. The complainant has neither paid any amount to 2nd opposite party nor purchased the vehicle or obtained extended warranty from the additional 2nd opposite party. The complainant is not entitled to seek delivery of 2015 vehicle instead of 2014 model and issuance of extended warranty policy from Opposite party No.2. There is no mis representation and deficiency in service on the part of the Additional 2nd opposite party. There is no cause of action against the additional 2nd opposite party. This Forum has no jurisdiction entertain and try the present complaint against opposite party No. 2. The complainant is not entitled to get an extended warranty policy with compensation etc as claimed.
5. In view of the above pleadings the following points arise for consideration :-
1. Whether there is any deficiency in service on the side of any of the opposite parties?
2. Whether the complainant is entitled to get the relief sought for in the complaint?
3. Relief and Cost?
6. Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.A1 to A11 documents. The respondent No. 1 and 2 have not adduced any evidence either oral or documentary
7. Both sides have filed notes of argument. But both of them have not turned up nor advanced any oral argument though sufficient opportunity was granted for the same.
8. Points No. 1 to 2:-
For avoiding repetition of discussion of materials these 2 points are considered together. The specific allegation of the complainant is that she booked the vehicle of the year 2014 from the opposite party. On the assurance given by the opposite party that if the vehicle is booked for the year 2014. The complainant would get 2015 model vehicle on the price of 2014 but the vehicle delivered on 15/4/2015 was of 2014 model and thereby there is deficiency in service on the part of the opposite party and hence the complainant is either entitled to get 2014 model vehicle replaced by 2015 model or she is entitled to get its price. In view of the above materials available on record including Ext.A2 document we find no merit in the above case of the complainant. PW1 is the son and Power of Attorney holder of the complainant. The oral evidence of the witness would show that though the mother of the complainant is owner of the registered vehicle, he was involved in the deal and he booked the car in the name of his mother during the year 2014. He would further admit that he paid the advance on 31/12/2014 that cash was not readily available with the complainant and has to availe bank loan and that is why the complainant happened delivery of the vehicle on 15/4/15. However PW1 would admit that while booking the vehicle on 31/12/2014 he has seen the vehicle which was booked and that opposite party has given 3 months time to arrange balance price. As per Ext.A2 document on road price of the vehicle was 4,26,869/- but an offer Rs.30,000/- was given as the sale is an yearend sale as content by the opposite party. In view of the above consumer offer defense the contention that the concession of Rs. 30,000/- was given since the sale was an year end sale stands proved. Furthermore even according to the PW1 at the time when he booked the vehicle on 31/12/2014, he had seen the vehicle and intent to be purchased. There is no chance of seen 2015 make vehicle on 31/12/2014 on which date he booked the car. In the circumstances there is no chance of getting 2015 make vehicle to the complainant, even though he taken delivery of the vehicle by arranging bank loan within 3 months from the date of booking the vehicle. In view of the materials available on record it is clear that the complainant has instant to purchase 2014 model vehicle for which he has given an offer of Rs.30,000/- After taking delivery of the vehicle at a belated date arranging bank loan the complainant is not expected to get 2015 model vehicle against her booking.
9. The learned counsel for the opposite party has argued that by virtue of section 20 of the Sale of Goods Act if specific good in a deliverable states were agreed to the sold unconditionally, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of the payment of price or time of delivery of goods or both is postponed. Even according to the PW1 he has booked the vehicle after seeing the same that the vehicle was booked during the year 2014 itself. It is clear that booking the vehicle an unconditional contract for the sale of the car seeing and verified by PW1 which was in a deliverable state passed to the buyer immediately at the time of concluding contract by paying booking advance amount. It is true that the vehicle was delivered after paying the full price by obtaining bank loan. In the circumstances complainant is not expected to 2015 model vehicle. The further case of the complainant is that opposite party had obtained an amount of Rs. 5483 from the complainant for the purpose of issuing extended warranty policy. But the opposite party has not issued the same to the complainant. The respondent has totally denied having received any amount towards extended warranty. In the circumstances the complainant is expected to produce in documentary evidence to prove her claim. But there is no reliable convincing material before this forum to hold that complainant has paid any amount towards the opposite party for issuing extended warranty. It is pertinent to note that PW1 would admit that he has having receipt evidence in the payment of extended warranty. But he has not produced the same. The non production of the receipt claimed to be available with the complainant itself would falsifies the case of the complainant and probabulise the contention of the opposite party that no such amount has been paid as claimed by the complainant. In the circumstances the Forum is entitled to persume under section 114(g) of the Indian evidence Act to the effect that if the complainant was having any such documentary evidence she would have produced the same before the Forum and due to the non-production of the same it is to be presumed that the complainant was having no such document with her.
10. It is true that complainant has caused to issue Ext.A3 lawyer notice which was served on the opposite party, but the opposite party is sent any replay. Non sending replay itself would not make the complainant’s case true especially in the light of the oral evidence of PW1 who is none other than the son and the Power of Attorney of the original complainant and person who is involved in the deal coupled with Ext.A2 document which would improbabilse the case of the complainant and the probablise the case of the opposite party.
11. On evaluating of entire materials available on record we have no hesitation to hold that the complainant has not proved that there is deficiency in service on the part of the opposite party and hence the complainant is not entitled to get any relief prayed for in the complaint. The points answered accordingly against the complainant.
12. Point.No.3
In the result the complaint stands dismissed.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 28th day of December, 2018.
Sd/- Sri.E.M. Muhammed Ibrahim (President)
Sd/-Smt. Sheela Jacob (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Cherian Abraham(Witness)
Ext.A1 - Power of Attorney
Ext.A2 - Quotation Receipt
Ext.A3 - Lawyers Notice dtd. 4/6/2015.
Ext.A4 - Postal Receipt.
Ext.A5 - Acknowledgement Card.
Ext.A6 - Receipt dtd. 31/12/2014.
Ext.A7 - Receipt dtd. 12/2/2015
Ext.A8 - Receipt dtd. 24/3/2015
Ext.A9 - Receipt dtd. 24/3/2015.
Ext.A10 - Receipt dtd. 31/12/2014.
Ext.A11 - Full & Final Statement.
Evidence of the opposite parties:- Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
