BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD                                        :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 170/2009 Filed on 07.07.2009

Dated : 15.10.2013

Complainant:

K.G. Natarajan, Retired Professor, Mayooram, T.C 3/2151, LIC Lane, Pattom, Thiruvananthapuram.

                             (By adv. S. Reghukumar)

Opposite parties:

1.     Hyundai  Motor India Ltd., South Regional Office, N.P. 54, Developed Plot, Ekkadithangal Thiru-vika Industrial Estate, Chennai- 600 032.

2.     Popular Motor Private Limited, Near Karamana Bridge, Neeramankara, Kaimanam P.O, Thiruvananthapuram-40.

(By adv. R. Balakrishnan Nair for 2^nd O.P)

This C.C having been heard on 21.08.2013, the Forum on 15.10.2013 delivered the following:

ORDER

SMT. LIJU B. NAIR: MEMBER

          Facts of the complaint is as follows:  Complainant had purchased a new Santro GLS car from the 2^nd opposite party on 21.11.2007 by exchanging his old Maruti Zen car bearing KL-05 K 6086.  The said exchange was done by the complainant through the Exchange Bonus Scheme offered by the 2^nd opposite party.  The 2^nd opposite party offered Rs. 15,000/- as exchange bonus and the same was confirmed in the exchange bonus eligibility letter issued by the 2^nd opposite party.  The complainant transferred his old vehicle Maruti Zen car through the sales executive by name Mr. Sreejith of the 2^nd opposite party.  At the time of transfer of the said old car the complainant handed over the original R.C. Book and other important documents to him and he agreed that he will take the photocopy of the entire R.C Book as well as the transfer page after the transfer, for the purpose of claiming exchange bonus.  The said Sreejith also said to the complainant that as and when complainant get the R.C Book from the authority of the new Santro car the complainant shall inform the same to Mr. Sreejith and then he will come and collect the copy of the R.C Book of the new car and shall submit to the 1^st opposite party to process the exchange bonus eligible to the complainant.  Accordingly the complainant contacted the said Sreejith on 14.12.2007 and on the very next day he came and collected the copy of the R.C Book of the new Santro car.  At that time he assured that, the complainant will get the exchange bonus within one month.  Thereafter whenever the complainant contacted the said Sreejith over phone, he used to give only excuses.  Every time he assured that the complainant will get the exchange bonus soon.  This scenario continued till May 2008 and in the middle of the said month the complainant had to go abroad and introduced his nephew Mr. Vinod to Mr. Sreejith for the purpose of collecting exchange bonus.  The complainant’s nephew contacted the said Sreejith several times but nothing materialized and hence the complainant’s nephew tried to contact the sales manager of the 2^nd opposite party.  But Mr. Sreejith did not allow the complainant’s nephew to do so but assured that all the pending exchange bonus claims will be cleared in lot before Onam festival i.e; September 2008.  Even after the Onam festival the exchange bonus was not cleared and hence complainant’s nephew met the Sales Manager of 2^nd opposite party and after hearing the complainant’s nephew he called Mr. Sreejith and heard his version also.  Thereafter the said Manager assured to the complainant’s nephew that he will solve the problem within two weeks.  Despite the lapse of the said period nothing has materialized.  In the month of October 2008 the complainant come back and thereafter complainant directly contacted the manager of the 2^nd opposite party and he said that he had already contacted the Regional Manager of the 1^st opposite party and communicated the complaint and also assured that the problem will be solved within 10 to 15 days.  Despite lapse of the said period also nothing materialized and hence the complainant sent an e-mail on 23.11.2008 to the 1^st opposite party and received a reply from 1^st opposite party asking the complainant to send the chassis number of the new car.  Immediately on 24.11.2008 complainant sent the chassis number thereafter there was no response from both opposite parties.  On 17.04.2009 complainant issued lawyer’s notice to the opposite parties.  Despite the receipt of the same, opposite parties neither replied nor effected the payment till today. 

          On being served, opposite parties entered appearance.  2^nd opposite party filed version contending as follows:  for the promotion of sales, the manufacturers-M/s Hyundai Motor India Ltd. gives some offers to some selected products/brands some sort of incentives like exchange bonus, corporate bonus etc. on the condition that the purchasers should duly submit the duly filled and signed applications prescribed for the same duly supported by the necessary proofs required so as to claim such bonus, as a refund from the manufacturers.  For claiming the exchange bonus, the purchaser should have a motor car in his ownership, possession and use with the registration in his favour for a minimum period of six months, and the said old car is sold and transferred within 30 days just before the date of purchase of the new car or within 105 days from the date of purchase of the new car, and the sale and transfer of the old car is not to any person of blood relation, and the said exchange bonus claim application duly filled and signed with full proofs are to be submitted to the dealers or to the manufacturers strictly within 120 days from the date of purchase of the new car.  The details of the proofs required are specifically stated in the terms and conditions for eligibility of claims attached with the bonus application forms.  The exchange bonus is given not as per the provisions of any Act or Rule, but as an incentive offered by the manufacturer to promote their sales and the same is purely a discretion of the manufacturers to some selected models.  Corporate bonus is also another offer given by the manufacturers to the purchasers for the promotion of sales to the persons who are employees of Government, Quasi-Government organizations, corporations, banks etc. for which also necessary proofs and salary certificates are to be filed within the specified period within 75 days from the date of purchase of the new vehicle.  All the above said bonuses, incentives, concessions etc. are given from the funds of manufacturers with a view to boost up the sales of selected models and the same is given as an incentive solely at the discretion of the manufacturers.  The acceptance and the validity and veracity of the proofs submitted are to be decided by and at the discretion of the manufacturers.  The decision of the manufacturers in such applications are final.  The offer of exchange bonus and corporate bonus from the manufacturer was subject to the terms and conditions attached with the application form for the respective bonuses.  The sale of the old car was negotiated and effected by the complainant himself to a person of his choice.  The representative of the 2^nd opposite party had no role in that transaction.  As per the records(proofs) produced by the complainant to claim the exchange bonus, the complainant has not given the all (full) pages of the registration book of the old car which he sold.  The averment that the complainant handed over the registration book of the old car to the representative of the 2^nd opposite party is not correct.  Though this mistake was brought to the notice of the complainant then and there, he has not rectified the same by producing the copies of all the pages of the R.C Book within the specified period fixed for producing the same.  (Within 120 days from the date of purchase of the new vehicle.  That is on or before 21.03.2008.  The photostat copies of all the pages of the registration book of the old car after effecting the transfer in that book is not produced by the complainant within the specified period, as required in the application form for exchange bonus.  The averment that the same is produced to the representative of the 2^nd opposite party is not correct.  The manufacturer rejected the exchange bonus due to the sole reason that all the Photostat copies of all the pages of the registration book of the old car is not produced.  It is correct that the complainant was abroad and that was the period after the expiry of the last date of furnishing such proofs as required for exchange bonus.  The averment that the complainant’s nephew pursued the matter is also not correct, the alleged period is out of time for claiming any such exchange bonus.  The alleged assurances from the sales manager is also not correct.  After all the efforts of the representatives of the 2^nd opposite party to collect the copies of the remaining pages of the old car from the relatives of the complainant were in vain.  The exchange bonus and corporate bonus are offered by the manufacturers from their funds as per their policy and norms.  After the return of the complainant from abroad, he contacted the 2^nd opposite party and discussed the issue and the 2^nd opposite party informed the complainant that his claim for exchange bonus was not allowed by the manufacturers due to the reason that the complainant failed to furnish the required proof in support of his claim within the specified period.  There is no willful lapses or omission or deficiency of service or unfair trade practice from the opposite parties in this case.  The complainant has not complied with the terms and conditions for claiming the exchange bonus. 

          Points raised for trial are:-

(i)              Whether the complainant furnished the documents in time for claiming exchange bonus?

(ii)           Is there any deficiency in service on the part of the opposite party?

(iii)        Is he eligible for any reliefs as prayed for?

Complainant filed affidavit along with documents which were marked as Ext.P1 to P7.  2^nd opposite party filed affidavit along with a document Ext. D1.  Complainant was examined as PW1 and 2^nd opposite party’s sales manager was examined as DW1. 1^st opposite party was set exparte. 

Points (i) to (iii):- This is a complaint regarding non-payment of exchange bonus offered by the manufacturer as a mode of sales promotion.  He alleges that he purchased the said car by exchanging his old Maruti Zen car under an exchange scheme offered by the 2^nd opposite party.  Rs. 15,000/- was the exchange bonus offered.  The complainant revolves round one Mr. Sreejith, sales executive of the 2^nd opposite party.  Complainant’s case is that he transferred his old car through this Sreejith and that all the original records including the R.C Book is given to him for claiming exchange bonus.  Opposite party replied to this by stating that as per the terms and conditions for exchange bonus “It is the definite and clear case of the 2^nd opposite party that for getting the exchange bonus, a purchaser should have a motor car in his ownership, possession and use with registration in his favour for a minimum period of six months, and the said old car is sold and transferred within 30 days just before the date of purchase of the new car or within 105 days from the date of purchase of the new car and sale and transfer of the old car is not to any person of blood relation and the said exchange bonus claim application duly filled and signed with full proofs are to be submitted to the dealers or to the manufacturers strictly within 120 days from the date of purchase of the new car”.  The terms and conditions for eligibility of claims are attached with the bonus application forms which is made known to each customer.  So, only if a customer/purchaser adheres to the guidelines made out in the said terms and conditions he will become entitled to claim exchange bonus.  The decision of manufacturer in such cases are final.  The 2^nd opposite party states that the sale of the old car was negotiated and effected by the complainant himself to a person of his choice and the 2^nd opposite party had no role in it.  Within 120 days from the date of purchase of the new vehicle, i.e.; on or before 21.03.2008, the complainant never gave all the documents required to make him entitled to the bonus.  Besides, the manufacturer rejected the exchange bonus due to the reason that all the Photostat copies of all the pages of the R.C Book of the old car was not produced by the complainant.  The efforts of the representatives to collect the copies of required documents to help the purchaser also did not bear fruits due to the negligence and careless attitude of the complainant.  The exchange bonus was denied due to the fact that the complainant failed to adhere to the guidelines drawn out in the terms and conditions for claiming exchange bonus. 

Perused the documents and heard the arguments put forward by both sides.  Here the only question to decide is whether the complainant complied the formalities for claiming exchange bonus within 120 days of purchase of the new car.  If it is found in favour of the complainant then we have to find out is there any deficiency in service on the part of the opposite parties.  Complainant produced 7 documents to substantiate his claim.  Most of them are letters and e-mails with copy of receipts and acknowledgements.  On going through all these documents, there is not a single line regarding when the papers for claiming exchange bonus is submitted.  All the letters and e-mails of complainants were regarding non-payment of exchange bonus.  As far as the case of the complainant is concerned, documents will speak to prove the truth.  On going through the documents, we are not able to find a conclusion as to when the papers claiming exchange bonus is submitted.  So complainant failed miserably to prove his allegations.  Moreover complainant alleges all blames for non-submission of documents on one Sreejith, sales executive of 2^nd opposite party.  Complainant in his argument raised the question ‘why the opposite party failed to examine the said Sreejith to prove the case’.  But here, we have to put in mind that it was the complainant who raised such a contention.  So it was the bounden duty of the complainant to summon him to the witness box.  If he failed or hesitate to appear, then adverse inference will be there against him.  But here Sreejith was not summoned as a witness by both sides.  It was the complainant who came before us with a prayer.  So it was his duty to adduce all possible evidence to establish his case.  In this question, complainant produced a decision LIII MLJ 392 Sardar Gurbaksh Singh Vs. Gurdial Singh and Another in which it is held as “It is the bounden duty of a party personally knowing all the circumstances of the case, to give evidence on his behalf and to submit to cross examination”.   But the facts which paved the way for such a decision is entirely different from the one which is filed before this Consumer Forum.  So that decision is not applicable here.  So going with all the facts and circumstances of the case, there is nothing in evidence to show that complainant complied the formalities for exchange bonus within 120 days of purchase of the new car.  So the first issue is decided against the complainant.  Since the decision of the first issue is not favouring the complainant, all other issues are not considered. 

In the result, complaint is dismissed. 

   A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. 

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of October 2013.

                                                                   Sd/-

LIJU B. NAIR                : MEMBER

                                                                   Sd/-

G. SIVAPRASAD                   : PRESIDENT

Sd/-

R. SATHI                       : MEMBER

jb

C.C. No. 170/2009

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - K.G. Natarajan

 II      COMPLAINANT’S DOCUMENTS:

          P1     - Copy of letter dated 22.11.2007 issued to complainant by 2^nd O.P

          P2     - Copy of advocate notice dated 15.04.2009 issued to opposite parties.

          P3     - Copy of postal receipts

          P4(a) - Acknowledgement card

          P4(b) - Acknowledgement card

P5     - Copy of e-mail dated 23.11.2008

P 5(a)          - Copy of e-mail dated 24.11.2008

          P6     - E-mail dated 01.12.2008 issued by complainant to opposite parties.

          P7     - E-mail dated 08.05.2009 issued by Sales Manager, Popular Hyundai,   

                      Tvpm.  

III      OPPOSITE PARTY’S WITNESS:

          DW1 - Vinod G. Varrier

 IV     OPPOSITE PARTY’S DOCUMENTS:

          D1     - Copy of terms and conditions for eligibility of claims issued by

                      Popular Hyundai.

                                                                                                      Sd/-

PRESIDENT

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