IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA, Dated this the 16th day of August, 2010. Present : Sri. Jacob Stephen (President). Smt. C. Lathika Bhai (Member) N. Premkumar (Member) C.C.No.68/08 (Filed on 26.06.2008)Between: Syamala Somanathan, Thanninilkkunnathil Kizhakkethil, Karakkadu.P.O., Kotta Muri, Mulakkuzha Village. (By Adv. R. Gopikrishnan) ..... Complainant And: 1. Kulathumkal Motors, Toll Junction, Chakkai-Kazhakuttom, Anayara.P.O., Thiruvananthapuram – 695 029, Rep. by its Manager. 2. Kulathunkal Motors, Soorya Building, Thazhevettipuram, Opp. Police Station, Pathanamthitta.P.O., Rep. by its Manager. (By Adv. Sam Koshy & Nair Ajay Krishnan) 3. Abraham Baby, Tholuparampil House, Mathoor.P.O., Pathanamthitta. (By Adv. Saran. D. Panicker) ..... Opposite parties. O R D E R Sri. N. Premkumar (Member): Complainant filed this complaint for getting a relief from the Forum. 2. Fact of the case in brief is as follows: Complainant purchased a ‘TATA SPACIO GOLD PLUS’ vehicle from the 1st opposite party and the register number of the said vehicle is KL-30/4479. Complainant earns her livelihood from the said vehicle. At the time of the purchase of the said vehicle complainant paid Rs.5,48,000/- to the 1st opposite party. The 3rd opposite party is the agent of the opposite parties. It is through the 3rd opposite party, complainant made the booking of the vehicle with the 2nd opposite party. 3. The complainant availed financial assistance of Rs.2,88,000/- from the TATA finance for the purchase of the vehicle and that was arranged by the 3rd opposite party. All the money transactions with the opposite parties 1 and 2 were done by the 3rd opposite party, their authorised agent. After the purchase of the vehicle the complainant came to know that the actual price of the vehicle was only Rs.5,11,630/- and the opposite parties excessively collected an amount of Rs.36,370/- from her. Then immediately the complainant contacted the opposite parties and requested them to return the excess amount of Rs.36,370/- already paid to the opposite parties. The issuance of the said bill is unjust, unfair and illegal and the same is an unfair trade practice of the opposite parties. 4. The collection of the excess amount contrary to the actual price amounts to unfair trade practice of the opposite parties. The non-return of the excess amount even after many requests is a clear deficiency in service of the opposite parties. The opposite parties above said acts cause much mental agony and suffering and distress to the complainant. Hence this complaint for getting the excess amount with interest compensation and cost. 5. Opposite parties entered appearance and filed version. 1st and 2nd opposite parties filed joint version stating that in the order form which clearly informed that the Ex-show room price of the vehicle is Rs.5,45,370/-, which the complainant has signed in acceptance there of. But when the first invoice was given there was a typographical mistake wherein the amount was shown as Rs.5,11,630/- which was immediately realised and the mistake was corrected and new invoice with the actual figure of Rs.5,45,370/- was drawn and payment effected. It is for this amount that the sales tax remittance of Rs. 60,041.10 has been made. 6. The Ex show room price of the vehicle is Rs.5,45,370/- and not Rs.5,11,630/-. Opposite parties denied the claim for Rs.36,370/-. The opposite parties are not liable to pay any compensation to the complainant. The complainant has no cause of action and this complaint has been filed as a test case to reap wrongful gain from the opposite parties. The relief claimed by the complainant is false and unsustainable. The reliefs claimed are false and unsustainable in law. The contention in the complaint is false and frivolous solely to abuse the process of this Forum and to harass the opposite parties with the ulterior motives best known to the complainant. Therefore opposite parties 1 and 2 canvassed for the dismissal of the complaint with cost. 7. 3rd opposite party filed separate version stating that complaint is not maintainable either in law or on fact. According to 3rd opposite party the complaint is bad for mis-joinder and non-joinder of parties. 3rd opposite party is not concerned with the matters alleged in the complaint. The 1st and 2nd opposite parties have maintained a grudge with the 3rd opposite party and this complaint is filed collusive with the complainant. The vehicle mentioned in the complaint is financed by 1st and 2nd opposite parties. The financier, ‘TATA Finance’ is not made a party in the complaint. Moreover this complaint has no cause of action and 3rd opposite party is not liable for any of the claim of the complaint. For the said reason, 3rd opposite party canvassed for the dismissal of the complaint with cost. 8. From the above pleadings, following points are raised for consideration. (1) Whether the complaint is maintainable before the Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Reliefs & Costs? 9. Evidence of the complaint consists of the proof affidavit filed by the complainant along with certain documents. She was examined as PW1 and the documents produced were marked as Ext.A1 to A6. Evidence of opposite parties consists of the proof affidavit filed by the 2nd opposite party. After the closure of evidence, both parties were heard. 10. Point Nos.1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents. She was examined as PW1 and the documents produced were marked as Exts.A1 to A6. Ext.A1 is the order form issued by the 1st opposite party. Ext.A2 is the invoice issued on 1.9.07 by 1st opposite party. Ext.A3 is the copy of D.D of Rs.2,33,900/- issued to 1st opposite party by the complainant. Ext.A4 is the 1st insurance policy certificate of complainant’s vehicle. Ext.A5 is the copy of insurance proposal of the insurance policy. Ext.A6 is the recently issued invoice of Rs.5,40,370/- issued by 1st opposite party. 11. In order to prove the opposite parties contention, 2nd opposite party filed proof affidavit. Apart from proof affidavit opposite parties has not adduced any oral or documentary evidence. 12. On the basis of the contention and averments of the parties, we have perused the entire materials on record. There is no dispute regarding the purchase of the vehicle. According to the complainant, she paid Rs.5,48,000/-, even though the actual price of the vehicle is only Rs.5,11,630/-. Opposite parties 1 and 2 illegally collected an excess amount of Rs.36,370/- from her. According to opposite parties 1 and 2 the price of the vehicle is Rs.5,45,370/- and not Rs.5,11,630/-. Thereby they denied the claim of Rs.36,370/- as raised by the complainant. According to opposite parties 1 and 2 a typographical mistake at the time of issuing the 1st invoice, which was shown as an amount of Rs.5,11,630/-. They immediately realised the mistake and corrected the same by issuing another invoice for Rs.5,45,370/-. The complainant paid the said amount also. 13. On a perusal of Ext.A2, it is learned that 1st opposite party has issued invoice on 1.9.07 stating the price of the vehicle as Rs.5,11,630/-. Chassis Number and Engine Number are also shown in 2nd column of Ext.A2. The figures of gross value, discount, net amount and tax are also shown in it. Moreover a declaration complying with KVAT Act 2003 is also incorporated in Ext.A2. But according to opposite parties 1 and 2, Ext.A2 has issued by mistake. The actual figure is Rs.5,45,370/- as stated in Ext.A6. In Ext.A6 on top part date is seen as 1st September, 2007 and bottom part for Kulathunkal Motors 2007-08. In comparing with Ext.A2, declaration in Ext.A6 is not in a proper form. Engine number and chassis number are not properly indicated in Ext.A6. It is not seen any column for gross value, total, net amount, grand total invoice amount etc. The last portion of Ext.A6 states that it is a computer generated invoice. All the particulars show doubt about the genuineness of Ext.A6. Therefore it cannot be ruled out that it is not a fabricated one. 14. On a perusal of Ext.A4 and A5, it is learnt that insured declared value for the vehicle is Rs.5,12,750/-. The value stated in Ext.A4 and A5 is compatible with Ext.A2. Therefore it is presumed that insured declared value is fixed based on invoice amount of Ext.A2 and not based on Ext.A6. From the overall fact and circumstances of the case, we are of the view that Ext.A6 is an after thought and issued later, after issuing Ext.A2, for justifying their mistake. 15. Complainant’s claim is that she paid Rs.5,48,000/- as price of the vehicle even though the actual price as per Ext.A2 is only Rs.5,11,630/-. But failed to produce any material to prove the said excess amount she had paid. 1st and 2nd opposite parties contention in their version is that complainant paid only Rs.5,45,370/-. But as per Ext.A6, the price of the vehicle is stated as Rs.5,40,370/- Oposite parties have not adduced any material to clarify the difference. In this circumstance, we rely on the admitted amount of Rs.5,45,370/- as the price of the vehicle paid by the complainant. Therefore excess amount paid by the complainant is calculated by the deducting Ext.A2 amount from Rs.5,45,370/- which is as follows: Rs. 5,45,370/- – Rs. 5,11,630/- = Rs. 33,740/- ========== 16. In this case, opposite parties have not adduced any evidence either to prove their contention or to disprove the complainant’s case. They failed to produce price chart of the vehicle during the relevant period along with Ext.A6 to prove the actual price. All this shows that there is lack of transparency in their dealings. It is not just and fair on opposite parties 1 and 2 to issue Ext.A6. It only proves their illegal and malafide act. If it be accepted, it will certainly lead to a wrong message to the society. Exerting higher price than the actual price of the vehicle is a clear unfair trade practice and hence the complaint is maintainable before the Forum. Opposite parties 1 and 2 are liable to return the excess amount with cost. It is found that 3rd opposite party is only an agent of opposite parties 1 and 2 and he is found not liable to the complaint. Since interest is allowed no separate compensation is allowable. 17. In the result, complaint is allowed, thereby complainant is allowed to realise Rs.33,740/- (Rupees Thirty Three Thousand Seven hundred and forty only) with 8% interest from the date of purchase of the vehicle till this date with a cost of Rs.1,000/- (Rupees One Thousand only) from opposite parties 1 and 2. The amount so awarded is to be paid to the complainant within one month from the date of receipt of this order, failing which the whole amount will follow 10% interest from this date, till the realisation of the whole amount. Declared in the open Forum on this the 16th day of August, 2010. (Sd/-) N. Premkumar, (Member) Sri. Jacob Stephen (President) : (Sd/-) Smt. C. Lathika Bhai (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Syamala Somanadhan Exhibits marked on the side of the complainant: A1 : Order form issued by the 1st opposite party to the complainant. A2 : Photocopy of the tax invoice dated 1.9.07 issued by 1st opposite party to the complainant. A3 : Photocopy of D.D for Rs.2,33,900/- dated 30.08.2007issued by the complainant to the 1st opposite party. A4 : Commercial vehicle package policy of complainant’s vehicle. A5 : Copy of Insurance Proposal Form A6 : Copy of Tax Invoice dated 1.9.2007 for Rs.5,40,370/- issued by 1st opposite party to the complainant. Witness examined on the side of the opposite parties: Nil. Exhibits marked on the side of the opposite parties: Nil. (By Order) Senior Superintendent Copy to:- (1) Syamala Somanathan, Thanninilkkunnathil Kizhakkethil, Karakkadu.P.O., Kotta Muri, Mulakkuzha Village. (2) The Manager, Kulathumkal Motors, Toll Junction, Chakkai- Kazhakuttom, Anayara.P.O., Thiruvananthapuram – 695 029. (3) The Manager, Kulathumkal Motors, Soorya Building, Thazhevettipuram, Opp. Police Station, Pathanamthitta.P.O. (4) Abraham Baby, Tholuparampil House, Mathoor.P.O., Pathanamthitta. (5) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
