By Smt. Bindu. R, President:
This complaint is filed by Febin Thankachan, Nellikunnel Veedu, Kolavayal, Muttil Post, Vythiri Taluk under section 35 of the Consumer Protection Act against Kachery Motors, MP 28, 1B, 1C, Near Amrid, Kainatty, Kalpetta North Post, Vythiri Taluk alleging deficiency of service and unfair trade practice against Opposite Party. The Complainant states that fascinated by the advertisement of the Opposite Party, the Complainant who is an agriculturist had booked a gray colour Honda Activa 6 GDX Scooter on 31.01.2022 on payment of Rs.20,000/- as advance. Complainant states that the Opposite Party informed the Complainant that the on road price of the scooter is Rs.99,000/- and the Complainant signed on some papers given by the Opposite Party. Complainant further states that the Opposite Party gave assurance that deduction will be given at the time of payment of the amount. Complainant states that since the full amount required for purchasing the vehicle was not with the Complainant, as per advice of the Opposite party, the Complainant availed a loan from Muthoot Capital for Rs.40,321/- and according to the Complainant, necessary documents were given signed by the Complainant for the loan. Opposite Party had issued receipt for payment of advance amount of Rs.20,000/- and informed the Complainant that the balance amount apart from the loan amount is to be paid on getting the loan amount. Complainant states that, on 08.02.2022 Opposite Party informed Complainant to pay the balance amount and the Complainant paid Rs.38,600/- and obtained receipt for the same. It is assured by the Opposite Party that the scooter will be delivered on 10.02.2022 and for availing cashless service it was adviced that the insurance is to be taken through the Opposite Party and hence the same was also agreed and taken by the Complainant. Complainant further states that on 10.02.2022, Opposite Party had delivered the scooter with registration No.KL12N 8507 registered in the name of the Complainant along with relevant papers. When the Complainant asked about the offered discount, Opposite Party gave back Rs.1,000/- as discount. Thus according to the Complainant he purchased the scooter on 10.02.2022 by paying Rs.98,900/-. Complainant states that when he had received the RC book via post it was revealed that the scooter is of the make of 2021 and not of 2022. According to the Complainant, since he has booked a new vehicle in 2022, by paying the full amount, the Opposite Party is duty bound to deliver a 2022 model vehicle and it is not informed by the Opposite Party that the vehicle is of 2021 make. Complainant states that after accepting the value of a new vehicle, delivering an old vehicle is nothing but deficiency of service and unfair trade practice from the part of the Opposite Party. It is stated by the Complainant that it is revealed from the RC book that the vehicle is registered in the name of the Complainant on 01.02.2022 ie on the very next day of payment advance of Rs.20,000/- to the Opposite Party. When further records were verified, it was seen that the date given in the bill for purchase of accessories is dated 02.02.2022 and the vehicle is seen insured on 01.02.2022 ie 9 days prior to the date of delivery of the vehicle and thus the Complainant states that, an additional burden of paying the insurance amount for 9 days is given to the Complainant, which is a clear case of deficiency of service. More over an amount of Rs.1,400/- is also levied without mentioning the heads for the payment in excess which is an unfair trade practice from the side of the Opposite party and hence the Complainant approached this Commission praying for issuing a direction to the Opposite Party to replace the vehicle with a 2022 model vehicle and register the same in the name of the Complainant at the expense of the Opposite Party along with other reliefs.
2. Upon notice, the Opposite Party appeared but not filed version in time and hence Opposite Parties set exparte on 17.05.2022 later it is seen that IA 284/2022 to set aside the exparte order is allowed on payment of costs as per order dated 03.09.2022 and the version filed by the Opposite Party is accepted. In the version, the Opposite Party denied the allegations in the complaint. It is admitted by the Opposite Party that they have obtained the signed papers from the Complainant for the purpose of temporary registration only. It is contented by the Opposite Party that the advertisements were given by the Company and the answering Opposite Party is not responsible for the assurances if any given by the company. It is also contented that the complaint is bad for non joinder of parties and the manufacturer company is a necessary party to the proceedings. The booking of the vehicle and the payment of the advance amount of Rs.20,000/- are admitted by the Opposite Party. According to Opposite Party, the on road price of the vehicle is informed to the Complainant and for all the payments bills were also issued to the Complainant. The assurance given by the Opposite Party regarding discount etc are denied by them. According to the Opposite Party the loan was availed from Muthoot Finance by the Complainant himself and not through the Opposite Party as alleged. According to the Opposite Party, the delivery of the vehicle can be effected only after taking insurance of the vehicle and hence the same was done by the Opposite Party. It is contented by the Opposite Party that the Complainant had not insisted for 2022 make vehicle and the Complainant had collected details directly from the officials of the company and hence the present petition is only to harass the Opposite Party. It is also stated by the Opposite Party that the allegation regarding the registration of the vehicle without the knowledge of the Complainant etc are false and it is stated that only after taking insurance for the vehicle, the same can be registered in the name of the Complainant. The allegation of unfair trade practice and deficiency of service on the part of the Opposite Party is denied and prayed for dismissal of the complaint with costs.
3. The evidence in this case consists of oral evidence of PW1 and Exts.A1 to A10 marked from the side of the Complainant and oral evidence of OPW1 from the side of the Opposite Party.
4. The following are the points to be considered in this case.
1. Whether the Complainant has established his case on merits?
2. Whether the Complainant is entitled to get the relief as prayed for?
3. The amount of compensation and costs to be awarded.
5. The Commission had made a thorough probe into the contents on the basis of the evidence and documents produced by either sides. It is the case of the Complainant that the vehicle delivered to the Complainant by the Opposite Party is of 2021 make though the purchase was made on 31.01.2022 and also the vehicle is seen insured 9 days prior to the date of delivery and thus additional burden of paying insurance for 9 days is also given to the Complainant and hence there is deficiency of service and unfair trade practice from the side of the Opposite Party and prays for dismissal of the complaint with costs.
6. The model of the vehicle is not shown in the invoice or in the insurance. The fact was recognised by the Complainant only on getting delivery of the vehicle on 10.02.2022. The Complainant says that since the tax and insurance of the vehicle were remitted on a prior date the Complainant incurred financial loss and the Opposite Party is liable to compensate the loss. It is also the case of the Complainant that an excess amount of Rs.1,400/- under the head other charges is received from the Complainant.
7. The Complainant had produced Ext.A1, the booking form dated 31.01.2022 Ext.A2 receipt for payment of Rs.20,000/- dated 31.01.2022, Ext.A3 is the receipt for payment of Rs.38,600/- dated 08.02.2022, Ext.A4 is the Ledger account from 31.01.2022 to 10.02.2022 with respect to Rs.99,900/-, Ext.A5 is the Tax Invoice dated 02.02.2022 for Rs.6,537/-, Ext.A6 is the Tax Invoice for Rs.1,294/-, Ext.A7 is the copy of receipt regarding payment of tax to Motor Vehicle Department. Ext.A8 is the copy of Tax Licence for 01.02.2022 to 31.12.2036, Ext.A9 is the copy of Tax Invoice for Rs.76,392/- and Ext.A10 is the copy of policy certificate for the period 01.02.2022 to 31.01.2023. On cross examination PW1 admitted that the year of making of the vehicle was noted by the Complainant only after delivery of the vehicle and he was not aware that the discount of Rs.1,000/- was given for the change of the make of the vehicle. In the complaint, it is stated that “hne-bn Ipdhv Bh-i-y-s¸« ]cm-Xn-¡m-c-t\mSv sam¯w hne \ÂIp¶ kabw Ipd¨v Xcm-sa¶pw FXr-I£n hmKvZm\w sNbvXn-cp¶p”. Hence it is to be presumed that the offer of discount is given on the request and not voluntarily offered by the Opposite Party. There is no other evidence apart from the statement of the Complainant with respect to the receipt of Rs.1,400/- towards other charges as per Ext.A4. During cross examination of the OPW1 it is deposed that he does not know under what head the said amount is charged. It is also deposed by OPW1 that as per the request of the Complainant the loan was arranged and the delivery was effected only after receiving the entire amount. It is stated by the Opposite Party that the vehicle reached the show room in December 2021. It is also deposed by the Opposite Party that the factory is in Pune and it will take 3-5 days for vehicles to reach the showroom after placing the order. It is in evidence that the Complainant had booked the vehicle on 31.01.2022 and the vehicle was delivered after 08.02.2022 as per statements of the OPW1 it is revealed that the orders are placed after getting the booking of the vehicle and the vehicles are reaching the show room only after 3-5 days. The Opposite Party is duty bound to inform the customers that the available vehicle is of 2021 make which has not been done by the Opposite Party in this case. On the other hand it is in evidence that even prior to completing the full payment by the Complainant, the other procedures like registration, insurance etc were done by the Opposite Party. Even though the prayer of the Complainant is to take back the vehicle delivered and to provide a 2022 model vehicle by the Opposite Party, taking into account the period of time consumed, the said relief has not been considered by this Commission.
8. Over all consideration of the evidence reveals that there is deficiency of service and unfair trade practice from the side of the Opposite Party and hence point No.1 is found in favour of the Complainant.
9. Since point No.1 is found in favour of the Complainant, the Commission passed the following orders.
1) The Opposite Party is directed to pay an amount of Rs.30,000/- (Rupees
Thirty thousand only) towards sale of the 2021 model vehicle instead of
2022 model vehicle, misleading the Complainant along with interest at
the rate of 9% from 10.02.2022 to the Complainant.
2) The Opposite Party is directed to pay an amount of Rs.25,000/- (Rupees
Twenty Five thousand only) towards compensation.
3) The Opposite Party is also directed to pay Rs.5,000/- (Rupees Five
thousand only) towards cost of the proceedings.
10. Need less to say that the above said order is to be complied by the Opposite Party within one month of receipt of this order other wise the Opposite Party is liable to pay 8% interest to the amounts awarded except that of cost from the date of order till be date of realisation.
Hence C C is partly allowed.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 18th day of August 2023.
Date of filing:19.03.2022.
PRESIDENT : Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
APPENDIX.
Witness for the Complainant:
PW1. Febin. Complainant.
Witness for the Opposite Party:
OPW1. Ranju. Service Manager, Kachery Honda.
Exhibits for the Complainant:
A1. Booking Form. dt:31.01.2022.
A2. Receipt. dt:31.01.2022.
A3. Receipt. dt:08.02.2022.
A4. Ledger Account.
A5. Tax Invoice (Page 2) dt:02.02.2022.
A6. Tax Invoice. dt:02.02.2022.
A7. Receipt. dt:01.02.2022.
A8. Copy of Tax Licence.
A9. Copy of Tax Invoice.
A10. Copy of Motor Two- Wheelers Policy Bundled- Schedule cum
Certificate of insurance.
Exhibits for the Opposite Party:
Nil.
PRESIDENT : Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
