IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the    29^th  Day of  July  2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.121/2017

Satheesh K.Rajan                                        :         Complainant

S/o K.Rajan

Residing at Ushus

Kottakkakom Nagar, Kollam.

[By Adv.Siju.S]

Vs

1. Indus Motors Co. Pvt. Ltd.,               :         Opposite parties

Cordeal Towers

Near St.Mary’s School

Kesavadasapuram Road

Pattom, Trivandrum-4.

2. The Manager

Indus Motors

Sarathy Junction

Karicode, Kollam.

[By Adv.C.R.Suresh Kumar]

FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

                This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows:-

          The 1^st opposite party is the authorized dealer of Vitara Breeza Zdi Motor Car and the 2^nd opposite party is the Manager of the 1^st opposite party at Kollam Branch.  The opposite parties offered to sell a brand new Vitara Breeza Zdi Motor Car to the complainant for a total ex-show room price of Rs.9,03,954/- .  The complainant booked the said car by paying Rs.21,000/- on 15.02.2017 from out of the total value of the vehicle and obtained a booking order from the opposite parties.  The 2^nd opposite party on behalf of the 1^st opposite party also issued invoice to the complainant for enabling him to raise finance for the purchase of vehicle and the opposite parties promised to deliver the vehicle within 40 days from booking date ie, on or before 27.03.2017.  Believing the words of the opposite parties, complainant arranged vehicle loan of Rs.6,00,000/- and it was disbursed to opposite party’s  account on 21.02.2017.  But the opposite parties  for the reasons best known to him did not deliver the vehicle in the agreed period on receipt of the balance sale consideration.  Though they were bound under the terms of agreement to deliver the vehicle forthwith on receipt of the balance sale consideration in full and the complainant intimated his readiness and willingness to pay the balance sale consideration in full,  the opposite parties reciled  from their words and thereby committed a flagrant breach of contract for sale.  Complainant on many occasions sent mails to the opposite parties and expressed his difficulties and demanded to deliver the vehicle on 27.03.2017 and also informed the opposite parties that if they cannot deliver the vehicle on or before 27.03.2017 refund the amount back to the complainant’s bank so as to avoid him to pay the interest to the bank.   But the opposite parties did not deliver the vehicle nor even responding the demand made by the complainant.

          The complainant who is a business man used to travel Eranakulam and Thiruvananthapuram twice or thrice in a week.  Because of the non delivery of the vehicle complainant suffered much hardships and forced to avail taxi services for his business trip which created an additional financial burden and mental agony to the complainant.  On 17.04.2017 the complainant issued a registered notice to the opposite parties demanding to deliver the vehicle within 7 days of the receipt of notice.  Opposite parties accepted the notice but not even cared to respond it.  Hence with no other option complainant issued another notice dated 03.05.2017 and intimated  the opposite parties that he cancelled his booking order dated 15.02.2017 and requested them to repay the amount of Rs.6,25,000/- with interest and cost.  The opposite parties received the notice and sent a reply stating untenable contentions.  The conduct of the opposite parties clearly shows their unfair trade practice and deficiency in service which resulted in heavy loss and damages to the complainant.  Hence the complaint.

          The 1^st and 2^nd opposite filed a joint version raising the following contentions.  The complaint is not maintainable either in law or on facts.  However the opposite parties would admit that the complaint has booked Vitara Brezza Zdi car at the 2^nd opposite party show room.  But they have not made any promise that the vehicle will be delivered on 27.03.2017.  The complainant  does not reveal the kind of business which necessitated him to travel by this car  only which was not delivered to him.  Notice of complainant was replied on 05.05.2017 with details of the matter under dispute.  The complainant has paid only Rs.6,21,000/- but claimed Rs.6,25,000/-.   The complainant did not disclose when he booked the vehicle of  that particular brand  which has a waiting period 21-24 weeks, which was well known to him as he had already approached Sarathy Motors and Popular Automobiles who sought a period of waiting of above 24 weeks before approaching the opposite parties.  The opposite parties did not offer or promise him anything regarding finance, whereas he was managing a finance at his level as he has some issues or liability with some other banks.  As a regular practice in my client’s office who also deals with loans, no loans are disbursed until the availability of the vehicle is confirmed.  The booking status was frequently intimated the complainant through  E-mail on 21.03.2017, 28.03.2017 and 15.04.2017 and so on.  While receiving such intimation he issued a legal notice on 17.04.2017 only for a bargain.  The complainant had not made the manufacturer of the vehicle or the corporate office a party in this case, hence the complaint is bad for non jointer of  parties.  The manufacture only fixed the period of delivery on the production of this vehicle.  These opposite parties are only sales and service agents of the company manufacturing the cars.  There is no deficiency in service or unfair trade practice as alleged.  The opposite  parties where ready to return the funds also.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite parties No.1and 2?
2. Whether the complainant is entitled to get Rs.6,25,000/- along with interest @ 12% p.a from the opposite parties No.1&2?
3. Whether the complainant is entitled to get compensation and costs as prayed for?
4. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1&Ext.A1 toA4,A5 series and A6 documents.The opposite parties No.1&2 have not adduced any evidence either oral or documentary,though sufficient opportunity was granted.Both sides have not filed any notes of argument nor adduced any oral argument.

Point No.1&2

          For avoiding repetition of discussion of materials these 2 points are considered together.  The following are the admitted rather proved facts in this case.  The 1^st opposite party is the authorized dealer of the above vehicle and the 2^nd opposite party is the Manager of the 1^st opposite party at Kollam branch.  The complainant has booked one Vitara Breeza Zdi Motor Car on 15.02.2017 at the 2^nd opposite party showroom.  Ext.A1 is the order booking/commitment check list issued by the 2^nd opposite party to the complainant.  Before booking the car as per Ext.A1 document the opposite parties assured that the vehicle will be delivered within 30-40 days of the date of booking.  On the basis of that undertaking the complainant applied for a loan and the bank has sanctioned a loan of  Rs.6,00,000/- in favour of the complainant.  On 21.02.2017 the bank has transferred the amount to the account of the 2^nd opposite party.  That the complainant has intended to purchase the vehicle for his personal use.  It is stated in Ext.A1 order booking/commitment check list that tentative waiting period is 40 days from the date of booking.  In view of the pleadings and evidence tendered by PW1 and also in view of the admission of opposite parties in their written version that the opposite parties No.1&2 could not deliver the vehicle within 40 days.  It is also brought out in evidence that the complainant was ready and willing to pay the balance consideration amount at the time of  delivering the vehicle.  That even after the elapse of  40 days from the date of booking the  opposite parties were not willing to receive the balance consideration and deliver the vehicle.

          The specific contention of the opposite party in their written version is that though the complainant would claim Rs.6,25,000/- actually Rs.6,21,000/- alone has been paid.  The specific case of the complainant  in their complaint as well as in the proof affidavit would indicate that on 15.02.2021 the complainant has booked the car by paying Rs.21,000/-  vide Ext.A1 booking order and thereafter the bank has transferred the vehicle loan of Rs.6,00,000/- to the account of the 1^st opposite party on 21.02.2017 ie, within 6 days of booking the vehicle.  No other amount is seen paid by the complainant to the 1^st or 2^nd opposite party.  In short the amount paid by way of booking charge and transfer from the bank altogether is Rs.21,000+6,00,000=6,21,000/- and not Rs.6,25,000/- as contented by the opposite parties.

  Even according to the opposite parties they have not delivered the vehicle within 40 days as agreed in Ext.A1 document nor delivered the vehicle thereafter.  In the circumstances the 1^st opposite  party is bound to return the amount of Rs.6,21,000/- to the complainant along with bank interest.  It is seen from Ext.A4 notice that the complainant has caused to sent lawyer notice demanding to return the amount received by way of booking charge and transfer from bank as the opposite party has  reciled from their words and also committed fragrant violation of  the terms of agreement stated in Ext.A1 booking order.

          The opposite parties would content in the written version that the vehicle is having waiting period of 24 weeks is normally required for delivery of the vehicle.  However the complainant insisted to get the vehicle within 40 days and as the manufacturing company has failed to forward the vehicle from their yard they could not deliver the vehicle to the complainant as agreed.  The contention of  the opposite party is that  they have informed the complainant that 24 weeks time is required for delivery of the vehicle appears to be incorrect on the basis of the endorsement in column No.2 of Ext.A1 document wherein it is stated that the vehicle will be delivered in 40 days.  In the circumstances the above contention has no leg to stand at all. 

Another contention of the opposite party in their written version is that  as the complainant could not raise the balance amount in time and paid the same to the opposite party No.1&2 they failed to deliver the vehicle.  In the light of the ExtA2 and A3 documents it is crystal clear that the complainant has offered to pay the balance amount if the 2^nd opposite party is ready to deliver the vehicle.  This fact is crystal clear from Ext.A3 copy  of e-mail communication sent to the opposite party.  According to the opposite parties the booking status was intimated to the complainant through e-mail on 21.03.2017,28.03.2017 ,15.04.2017 and on 17.04.2017.  But the complainant has not shown the patience to wait till the vehicle was delivered from the 1^st opposite party who is the manufacturer.   Therefore there is no deficiency in service or any unfair trade practice on the part of the opposite parties No.1&2.  We find no merit in the above contention.  In the light of the oral evidence of PW1, Ext.A2&A3 e-mail communication and Ext.A4  lawyer notice, we find no merit in the above contention also.  It is contented in the joint written version filed by opposite party No.1&2 that as the manufacturer is not made a party to the proceedings the complaint is not maintainable.  But this is not a case where there is any allegation of manufacturing defect or any other defect to the vehicle.  In this case Ext.A1 contract was entered into between 2^nd opposite party who is the Branch Manager of 1^st opposite party by agreeing that the vehicle will be supplied within 40 days.  But admittedly they could not supply the vehicle as agreed.  Hence the liability of opposite party No.1&2 cannot be ignored as the manufacturer is not in the party array.

However in paragraph 5 of the affidavit it is stated that after filing the complaint the opposite parties have paid the amount claimed in A relief and later the complainant purchase the vehicle by paying the amount and therefore early fees not pressed.  But insisting to get 3 months interest for the above amount and also insist for getting B&C relief.  The above statement sworn in the proof affidavit remains un challenged.  Therefore it is stated as A relief not pressed.  However there is delay of 3 months in paying the amount and settling the matter. The complainant would claim Rs.15,000/- as interest for the above amount during the period of 3 months.  Hence we are inclined to allow the same.

As the opposite parties have failed to deliver the vehicle by receiving the balance amount as stated in Ext.A1 Order booking agreement, there is every chance of causing mental agony to the complainant as alleged in the complaint and in the proof affidavit.  Therefore the complainant is entitled to get compensation.  However the matter has been settled subsequently by paying the amount already deposited we are inclined to grant only a nominal compensation to the tune of Rs.10,000/-.  The complainant is also entitled to get Rs.5000/- towards costs of the proceedings.  The points answered accordingly .

In the result complaint stands allowed in part.

1. Directing the opposite party to pay Rs.15,000/- as interest for the delayed payment of the booking amount and the amount transferred from the loan account of the complainant.
2. The opposite parties are directed to pay Rs.10,000/- as compensation and Rs.5,000/- as costs of the proceedings.

Opposite parties are directed to pay the above amount within 45 days failing which the complainant is entitled to recover the same from opposite party No.1&2 along with interest @ 9% p.a except for costs.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the    29^th   day of  July 2022.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Satheesh

Documents marked for the  complainant

Ext A1:       Customer docket.

Ext A2:       e-mail communication(Letter of apology)

Ext.A3:       e-mail communication dated 28.03.2017.

Ext.A4:       Lawyer notice

Ext.A5 series :Postal receipts and copy of lawyer notice.

Ext.A6        : Copy of loan statement.

Witnesses Examined for the opposite party:-Nil

Documents marked for the opposite party:-Nil

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent