IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 24th day of August, 2020
Filed on 09.11.2017
Present
1. Sri.S.Santhosh Kumar.BSc. LLB(President)
2. Smt. C.K.Lekhamma. BA.LLB(Member)
In
CC/No.301/2017
Between
Complainant:- Opposite parties:-
Sri.Rajeshkumar.B 1. Hercules Automobiles INTL(P) Ltd
Sreevalsam Authorized Maruti Dealer
Neerkkunnam Sanathanapuram.P.O.
Vandanam.P.O AC Road, Kalarcode,Alappuzha Alappuzha. Pin-688005
(Party in Person ) 2. Maruti Udyog Ltd
Nelson Mandela Road
Vasant Kunj, New Delhi
Pin-110070
(Adv.Jayan.C.Das)
3. Jimmy Jose
DH(Sales)
Hercules Automobiles
Sanathanapuram, Kalarcode
Alappuzha
4. Nandakumar
Team Leader
Hercules Automobiles, Kalarcode
Alappuzha
(Adv. C.Parameswaran for OP 1,3&4)
O R D E R
SMT. C.K.LEKHAMMA(MEMBER)
The complaint filed u/s 12 of the Consumer Protection Act.1986.
The following facts have prompted this complaint.
The complainant decided to purchase a Maruti Vagon R VXI Silver colour car and approached the 1st opposite party. As per the assurance of 4th opposite party complainant booked the vehicle on 29/9/2017 with opposite parties by paying Rs.3000/- as advance and they assured to deliver the vehicle soon and direct him to arrange money. Accordingly in the column “waiting period” in order booking mentioned the remark ‘NIL.’ Believing the opposite parties, complainant transferred Rs. 3,64,250/-(Rupees Three lakh sixty four thousand two fifty) to the 1st opposite party though his finance company ‘Kotak Mahindra’ on 6/10/2017 itself. Thereafter he approached the opposite parties for remitting the remaining balance of Rs.1,20,000/- and they assured to deliver the vehicle within 10th October 2017 and advised him to remit balance amount on the day of delivery.
The complainant needs the vehicle soon since due to the illness of his brother, he has to take him to the medical college hospital daily for physiotherapy. But till date the vehicle was not delivered as promised by opposite parties. Complainant approached them several times, but they ignored him.
The complainant is paying interest for the vehicle loan amount from the date of payment and also paid Rs. 8247/- towards EMI. It was paid due to fraudulent acts from the opposite parties. Complainant sustained financial loss, mental agony and pain due to the acts of opposite parties. Thus the complainant seeks direction to get Rs. 50,000/-(Fifty thousand) from the opposite parties for the mental agony and other financial loss. And also seeks direction to deliver the vehicle.
2. Version of opposite parties 1,3 & 4 as follows:-
According to them there is no negligence or deficiency of service on the part of them. It is true that the complainant had booked a Maruti Vagon R VXI car with the opposite parties by paying a booking amount of Rs.3000/-(Three thousand). The delivery of the car was depending upon the seniority of the complainant in terms of the date of deposit and in terms of the availability of the car and had never assured the complainant that the vehicle would be delivered within 30 days. The vehicle will cost Rs. 5,16,032/-(Five lakh sixteen thousand and thirty two) as its on the road price. It is covenanted that approximate delivery period given on the order booking form is only indicative and vehicle delivery will be subject to availability of the vehicle. The allegation that the fourth respondent made the complainant to believe that the vehicle booked is already in transit from the company and the dealer and the petitioner has to make a payment and believing the words of the third and fourth respondents the payment was effected as etc are false. Opposite parties have never assured the complainant that the vehicle will be delivered to the complainant immediately. The vehicle in question was delivered to the complainant and the complainant had taken delivery of the vehicle without any protest. The relief sought for in the complainant has become in fructuous. There is no contract between the parties that the amount paid in advance will not carry interest. The complainant had taken delivery of the vehicle in full satisfaction and the instant complaint is only an afterthought. There is no deficiency of service as alleged and the complainant is not entitled to any reliefs.
3. The contention of 2nd opposite party is as follows:-
Complaint is without any cause of action against the 2nd opposite party. The liability of 2nd opposite party being the manufacturer of the vehicle is limited to provide warranty benefits as per clause 3 of the warranty policy as set out in the Owner’s Manual and Service Booklet. The complaint is not maintainable as against the 2nd opposite party in any manner. There is no deficiency in service or unfair trade practice, neglect or default on the part of 2nd opposite party. They have no responsibility for any wrongful act done by the 1st opposite party or other opposite parties. The relationship between the 2nd opposite party and that of other opposite parties is principal to principal basis. This opposite party’s liability is limited to the warranty conditions provided in the Owners Manuel. The complainant failed to place any material on record in support of his case for alleged deficiency in service from the part of this opposite party. Complainant is not consumer of this 2nd opposite party. It is true that the complainant booked a car with the other opposite parties. The complainant is not a consumer of 2nd opposite party. The booking contract is between the complainant and other opposite parties. There is no privity of contract between the complainant and 2nd opposite party. The relief sought by the complainant fall outside the ambit of clause (a) to (i) u/s 14(1) of the act. This opposite party neither received any consideration from the complainant not took the order booking from the complainant. Hence this opposite party is not responsible for any wrongful act done by the other opposite parties. Therefore, complaint is liable to be dismissed with cost being meritless, false and erroneous as against this opposite party.
4. The points arose for our determinations are:-
(i) Whether the complainant is entitled to get an order for delivery of the vehicle?
(ii) Whether the complaint is maintainable against 2nd opposite party?
(iii) Whether the complainant is entitled to receive interest for Rs. 3,64,250/-
(iv) Whether the complainant is entitled to get compensation for mental agony and financial loss?
(v) Reliefs and costs?
Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to Ext.A3 were marked on the side of complainant and the evidence of RW1 on the side of opposite party Ext.B1 and B2 marked on their side. Heard both sides.
5. Point No.1
The complainant booked the vehicle as per Ext.A1 on 29/9/2017. In his complaint before the Forum seeks direction to the opposite parties to deliver the vehicle at the earliest. In his proof affidavit as well as during the cross examination, PW1, the complainant admitted that he received the vehicle. Hence this relief has become in fructuous.
6. PointNo.2:
The 2nd opposite party, the manufacturer contended that there is no privity of contract between complainant and 2nd opposite party, further contented that as per the provision of dealership agreement entered between 2nd opposite party and 1st opposite party is the relationship of principal to principal. The customer is booking the vehicle with the dealer after paying necessary amount and 2nd opposite party has nothing to do with the booking. To prove their contentions they relied upon the order of National Consumer Disputes Redressal Commission dated 4/5/2009 in Revision Petition No.6749/2004(Maruti Udyog Limited Vs. Nagendar Prasad Sinha of another) in the said order it was so held that the relationship between the dealer and the company is that of principal to principal basis and company is not liable for any default committed by the dealer. In view of the above order 2nd opposite party is not liable to pay compensation and even the complaint is not maintainable against them. This point is found against the complainant.
7. Point No. 3 and 4:-
For avoiding repetition and discussion of materials these points are considered together. The case of complainant is that he booked a Maruti Vagon R VXI Silver Colour car on 29/9/2017 as per Ext.A1 document with the 1st opposite party. He paid Rs.3000/- as advance and opposite party had promised that the vehicle will be delivered soon. Accordingly complainant arranged finance from ‘Kotak Mahindra’ on 6/10/2017 and amount was transferred to 1st opposite party. Thereafter opposite party was avoiding the complainant and delayed the delivery. According to the complainant he had collected the amount of Rs. 3,64,250/-(Rupees Three lakh sixty four thousand two fifty only) from the finance company for which he had paid interest. Moreover this entire period complainant was using paid taxi car for the unavoidable journey to hospital. For which he paid huge amount for taxi charges. Hence this complaint is filed for realizing amounts on various heads. Opposite parties 1,3 &4 filed version contenting that there was no promise to deliver the vehicle within a short period. According to them the delay occurred due to the reason that there was several booking and the 2nd opposite party manufacturer is distributing the vehicle on priority basis. According to them complainant had taken delivery of the vehicle in full satisfaction so he cannot file such a complaint. The 1st opposite party is the dealer, 3rd opposite party is the Sales Manager of 1st opposite party and 4th opposite party is the team leader of 1st opposite party.
The complainant got examined as PW1 and Ext.A1 to A3 were marked. The sale Manager of the 2nd opposite party got examined as RW1 Ext.B1 and B2 marked.
No dispute with regard to the booking of car and the payment of advance amount. It is evidenced from Ext.A1 order booking/ commitment checklist. The main allegation of the complaint is that at the time of executing Ext.A1 Agreement the opposite parties informed the complainant that the vehicle is ready for delivery and the complainant should arrange loan at the earliest. Therefore they did not mention any particular date or period of delivery in Ext.A1, instead of that the they fill the word “NIL” towards both columns Tentative waiting period and Tentative delivery date. Ext.A1 reveals the said statement is correct. Accordingly on 6/10/2017 complainant arranged loan with M/s Kotak Mahindra for Rs. 3,64,250(Three lakh sixty four thousand two hundred and fifty) and disbursed said amount through his finance company to 1st opposite party. The complainant is also ready and willing to give remaining balance amount Rs. 1,20,000/- (Rupees One lakh twenty thousand ) at any time. But opposite party did not deliver the vehicle till the complaint. Due to the laches of opposite parties complainant constraint to remit EMI amount of Rs. 8247/-(Eight thousand two hundred and forty seven) on 5/11/2017 to the finance company. Ext.A3 is the evidence of said transaction; the opposite parties averred that vehicle’s delivery is subject to availability of vehicles by manufacturers. Dealership will not be responsible for any delay in delivery of vehicle due to unforseen circumstances. In view of the above contention, if the vehicle is not ready for delivery opposite parties ought to have been given tentative period or time of delivery of vehicle. But they did not do so; therefore we are constraint to believe the complainant, that at any time opposite parties are ready to give the vehicle. Moreover they have no case that the complainant was not ready to give the remaining balance amount to them. As per the available evidence we are of the view that the opposite parties are purposefully delaying delivery of vehicle. According to the complainant due to the delay he happened to remit Rs. 8247/- as EMI to the finance company. In the aforementioned discussions we found that opposite parties committed deficiency in service due to the said act of opposite parties’ complainant suffers financial loss. Hence we found that 1st opposite party is liable to pay interest. Therefore the complainant is entitled to get interest for Rs. 3,64,250/-(Three lakh sixty four thousand two hundred and fifty) the period start from 6/10/2017, the date of remittance, on the amount to 9/11/2017, date of complaint. According to the complainant due to the negligence of opposite parties he constraint to call taxi for his unavoidable personal use for that he paid Rs. 13,200/-. Ext.A2 is the receipt to that effect. But he has miserably failed to prove the veracity of said document since the person who issued the same was not examined. Thus we are not considering Ext.A2 receipt.
Moreover, the complainant is entitled to get costs of the proceedings from the 1st opposite party since the opposite parties dragged the complainant in to an unnecessary litigation.
8. Point No.5
We allow the complaint in part and direct as follows:-
1. The 1st opposite party is directed to pay interest at the rate
of 12% per annum for Rs. 3,64,250/- (Rupees Three lakh
sixty four thousand two hundred and fifty) from 6/10/2017
to 9/11/2017.
2. The 1st opposite party is also directed to pay cost of
Rs.2000/- (Rupees Two thousand only) to the complaint.
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 corrected by me and pronounced in open Commission on this the 24th day of August , 2020.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri. S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Rajeshkumar.B(Complainant)
Ext.A1 - Order booking check list.
Ext.A2 - Tourist Taxi receipt
Ext.A3 - Copy of Pass book.
Evidence of the opposite parties:-
RW1 - Praveen Sugunan(Witness)
Ext.B1 - Photo copy of Warranty Clauses
Ext.B2 - Photo copy of Dealership Agreement
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
