Tamil Nadu

South Chennai

CC/323/2018

B Santhosh - Complainant(s)

Versus

IMB Yamaha Authorised.Signatory - Opp.Party(s)

S. Murugavel

21 Jul 2022

ORDER

Date of Complaint Filed : 27.07.2018

Date of Reservation      : 04.07.2022

Date of Order               : 21.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                 :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,          : MEMBER II

 

CONSUMER COMPLAINT No. 323/2018

THURSDAY, THE 21^st DAY OF JULY 2022

Mr.B.Santhosh,

S/o. Balakrishnan,

No.37, Karpagambal Nagar,

Mylapore, Chennai – 600 004.                                                                                                                                              ... Complainant                               

 

..Vs..

The Authorised Signatory,

JMB Yamaha,

Jain MotoBike Pvt. Limited,

No.2, Sivasailam Street,

Off. Habibulla Road,

T.Nagar, Chennai -600 017.                                                                                                                                             ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. S. Murugavel

Counsel for the Opposite Party       : M/s. Sunil Sudhakar Shanker

 

        On perusal of records and after having heard the oral arguments of the Complainant and having treated the written arguments of the Opposite Party as oral arguments of the Opposite Party, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to return the Yamaha YRZ R3 Model Bike to the Complainant and to pay a sum of Rs.5,00,000/- towards mental agony and hardship suffered by the Complainant and to pay a sum of Rs.10,000/- for the defect in service by the Opposite Party towards the Complainant, along with cost.

2.     The averments of Complaint in brief are as follows:-

                The Complainant states that he had approached the Opposite Party to buy a Yamaha Bike YZF R3 Model and the Opposite Party after discussion has given quotation for the above bike for Rs.3,66,538/. The Complainant has agreed for that price and paid the same in following manner i.e., on 05.09.2015 he paid Rs.10,000/- and on 10.09.2015 he paid Rs.1,90,000/- by way of Cheque bearing No.552323 and another payment on 29.01.2009 he paid Rs.1,66,538/-. So, he has paid entire sale price of Rs.3,66,538/- to the Opposite Party. The Complainant submits that the Opposite Party after realization of entire sale amount of Rs.3,66,538/- from the Complainant covered under the above three cheques payment had delivered the Yamaha vehicle YZF R3 Model bearing Chassis No.ME1RH1018F0001223, Engine No.H402E0012307 without registering the same with concerned RTO. The Complainant states that since it is very difficult for him to ride a unregistered vehicle on the road he continuously pressurized the Opposite Party to get the vehicle registered with concerned RTO. After hectic efforts finally on 07.11.2015 the Opposite Party representative by name T. Isaki Raja, (Cell No.9841755992) taken the above vehicle for break test checking and repairing due to an accident but to his shock and surprise the Opposite Party has not returned the above vehicle to the Complainant. The Complainant on several occasions approached the Opposite Party and requested to return the vehicle to him. All his efforts became fruitless. The Opposite Party not only failed to return the vehicle but also cheated him to the tune of Rs.3,66,538/-. Though the Complainant has paid Rs.3,66,538/- to Opposite Party, he is languishing lot without two wheeler and he has spent more than Rs.2,00,000/- for his travel all along. Since the Opposite Party has not responded for his request to return the vehicle for which he has already paid entire sale amount, without any other option on 31.05.2018 sent legal notice to the Opposite Party to return the vehicle and pay compensation of Rs.5,00,000/- to him for the mental agony and loss due to the action of Opposite Party. The Opposite Party has received the legal notice on 01.06.2018 but neither returned the vehicle nor gave reply. The Opposite Party's failure to return the bike to the Complainant after receipt of entire sale price amounts to deficiency of service. It has caused grave mental agony and lot of stress to the Complainant. Hence the complaint.

3.  Written Version filed by the Opposite Party in brief is as follows:-

        The Opposite Party while admitting the payment of Rs.366,538/- as mentioned in para 3 of the complaint, clarifies that the same was towards the booking payment of the Vehicle YZFR3 and the same was mentioned in the Invoice V151507 issued to the Complainant. The said invoice clearly mentions the booking date as 24.09.2015 and also various amounts were paid as consideration for the above mentioned vehicle, on various dates as hereunder:

a. Receipt No. TN15390 dated 03.09.2015, Rs.10,000/- paid by cash

b. Receipt No TN15 406 dated 10.09.2015 Rs.1,90,000/- paid by cheque

c. Receipt No TN 15 445 dated 25.09.2015 Rs.1,66,505/- paid by cash

The Complainant has suppressed the fact that he was in a great hurry to take delivery of the said vehicle and undertook the said vehicle at his own risk, despite being told that it was illegal to use the vehicle without registration.  The Opposite Party states that the Complainant had taken the delivery of vehicle on 28.09.2015, without registration on his own volition, by making an endorsement on the Delivery Note stating: "I AM TAKING DELIVERY OF THE ABOVE MENTIONED MOTORCYCLE ON MY OWN RISK WITHOUT REGISTRATION. Again the Complainant has suppressed the fact that, it was the Complainant who met with an accident, after taking delivery of the un-registered vehicle and it was the Complainant who requested the Opposite Party to retrieve and repair the damaged vehicle. The Complainant agreed to bear the costs of the damages to the vehicle and relying on such assurances, the Opposite Party proceeded to spend Rs.1,51,076/- towards the repair costs and labour charges. The vehicle was repaired and made ready on 14.02.2017. While the Complainant mentions the date of the cause of action arose on 05.09.2015, when the first payment of the vehicle was made. On this single ground this Complaint needs to be struck down as the same is barred by limitation of 2 years. The Complainant has also suppressed the fact that the Opposite Party had issued a legal notice dated 31.07.2018 asking the Complainant to take delivery, which was not answered by the Complainant. The said notice had clearly indicated that the Opposite Party was incurring costs in providing space for the parking of the vehicle and asked the Complainant to take delivery of the vehicle, failing which costs and interest would be imposed on the Complainant. The Complainant has also acknowledged the same vide A D card dated 02.08.2018. The Opposite Party further stated that the vehicle was ready and the Complainant may take delivery at any day, after paying the costs and charges mentioned above to the Opposite Party. The claims of the Complainant are unsubstantiated and untenable as they have not been backed by any evidence of such payments. Further it was the accident caused by the Complainant that had deprived him of the said vehicle and not caused by the Opposite Party. Hence prayed to dismiss the complaint.

4.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-8  were marked.   

The Opposite Party had filed his Proof Affidavit and Written Arguments. On the side of Opposite Party Ex-B.1 to Ex.B-5 were marked.

5.     Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:-

The undisputed facts are that the Complainant had purchased a Yamaha Bike Model No: YZF R3 having bearing Chassis No.ME1RH1018F0001223, Engine No.H402E0012307 for Rs.3,66,538/- from the Opposite Party on payment of Rs.3,66,538/-, as found in Exs.A-1 to A-3, the details of payments made by the Complainant to the Opposite Party are given herebelow:

On 05.09.2015 a sum of Rs.10,000/- by cash,

On 10.09.2015 a sum of Rs 1,90,000/- by way of cheque bearing No.552323,

On 21.09.2015 a sum of Rs.1,66,538/-through RTGS.

On receipt of payments the Opposite Party had issued Invoice dated 24.09.2015 for Rs.3,30,778/-. It is not in dispute that the Complainant had taken delivery of vehicle on 28.09.2015.

The Complainant had taken delivery of the vehicle without registration and had met with an accident. The contention of the Complainant was that on 07.11.2015 the Opposite Party had taken the vehicle for repair and has not returned the vehicle to the Complainant.

The contention of the Opposite Party was that the Complainant had taken delivery of the unregistered vehicle by making an endorsement that he is taking delivery on his own risk as found in Ex.B-2. Having met with an accident the Complainant agreed to bear the cost of repair costs and labour charges which amounted to Rs.1,51,076/- The vehicle was made ready for delivery on 14.02.2017 as per Ex.B-3 and requested the Complainant to take delivery but the Complainant failed to take delivery of the vehicle.

It is seen that the Complainant had paid the entire amount of vehicle on 21.09.2015, for which the Opposite Party has issued Invoice dated 24.09.2015 for Rs.3,30,778/- as against the total payment of Rs.3,66,538/-. From Ex.B-2, under the Payment Schedule it could be seen that a sum of Rs.27,585/- has been paid by the Complainant towards Registration and Tax and Rs.3188/- towards insurance. Having collected money separately for Registration and insurance it is the bounden duty of the Opposite Party to carry out Registration of the Vehicle. Though payment was made on 21.09.2015, delivery was taken by the Complainant only on 28.09.2015. Hence the contention of the Opposite Party that the Complainant was in a hurry to take delivery and he took the vehicle at his own risk without registration could not be sustained. Moreover, Ex.A-8 is the detail given by the Transport Department to the Petitioner stating that the Registration approval for model Yamaha YZFR3 in Tamil Nadu was given on 12.10.2015. However, the Opposite Party had sold the said model of the vehicle to the Complainant even before getting proper approval to ply the vehicle.

As per Ex.A-5, the Opposite Party had taken the vehicle on 07.11.2015. But the vehicle was made ready according to the Opposite Party on 14.02.2017 which is after a period of 16 months after taking the vehicle for repair. The Complainant had issued a legal notice dated 31.05.2018, Ex.A-6 calling upon the Opposite Party to register the vehicle and hand over the vehicle to the Complainant along with compensation, which was received by the Opposite Party, with no reply. Subsequently on 31.07.2018, the Opposite Party had issued notice to the Complainant to take delivery of the Vehicle on payment of repair charges of Rs.1,51,076/- which is after filing of this Complaint.

The act of the Opposite Party in not carrying of Registration of vehicle in time after receiving Registration charges, having sold a model Yamaha YZFR3 to the Complainant on 24.09.2015 for which Registration approval in Tamil Nadu was given only on 12.10.2015, the undue delay in carrying out repairs of the vehicle after taking it from the Complainant as early as 07.11.2015 and alleging that it was made ready on 14.02.2017 and intimating to take delivery only on 31.07.2018, after filing of this complaint amounts to deficiency of service. Hence we are of the considered view that the Opposite Party had committed deficiency of service.

Point No.2 and 3:-

As discussed and decided above that the Opposite Party has committed deficiency in service, considering the mental agony suffered by the Complainant after spending a huge sum of amount for the purchase of the vehicle and not in a position to use the vehicle for so many years, which vehicle is still in the custody of the Opposite Party, this Commission is of the considered view that the Opposite Party be directed to return the vehicle in road worthy condition and the Opposite Party is liable to pay a sum of Rs.2,00,000/- towards mental agony and hardship caused to the Complainant along with cost of Rs.3,000/-.

In the result, the complaint is allowed in part. The Opposite Party is directed to return the Yamaha YRZ R3 Model Bike to the Complainant in road worthy condition, to pay a sum of Rs.2,00,000/- (Rupees Two Lakh Only) towards mental agony and hardship suffered by the Complainant along with cost of Rs.3,000/- (Rupees Three Thousand Only) to the Complainant, within 8 weeks from the date of this Order, failing which, the Complainant is entitled to recover the above amounts together with interest at the rate of 6% per annum from the date of the order till the date of realization.

In the result the complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on  21^st of July 2022.  

 

 

S. NANDAGOPALAN                                                                      T.R. SIVAKUMHAR                                                               B.JIJAA

         MEMBER II                                                                                     MEMBER I                                                                  PRESIDENT

 List of documents filed on the side of the Complainant:-

 

Ex.A1	05.09.2015	Receipt issued by Opposite Party
Ex.A2	10.09.2015	Receipt issued by Opposite Party
Ex.A3	21.09.2015	Proof for amount transfer
Ex.A4	24.09.2015	Invoice
Ex.A5	07.11.2015	Acknowledgement by T.Isaki Raja
Ex.A6	31.05.2015	Legal notice sent to Opposite Party
Ex.A7	01.06.2018	Acknowledgement card
Ex.A8	21.03.2019	Copy of Transport Department letter

 

List of documents filed on the side of the Opposite Party:-

 

Ex.B1	24.09.2015	Invoice bill
Ex.B2	25.09.2015	Delivery note
Ex.B3	Job card bill	31.12.2016
Ex.B4	31.07.2018	Notice to Complainant
Ex.B5	02.08.2018	Acknowledgement card

 

 

 

 

S. NANDAGOPALAN                                                                     T.R. SIVAKUMHAR                                                          B.JIJAA

         MEMBER II                                                                                   MEMBER I                                                              PRESIDENT