KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 904/2015
JUDGMENT DATED:06.09.2018
(Against the order in C.C. 321/2012 of CDRF, Thiruvananthapuram)
PRESENT :
HON’BLE JUSTICE S.S. SATHEESACHANDRAN : PRESIDENT
SRI. T.S.P MOOSATH : JUDICIAL MEMBER
SRI. RANJIT. R : MEMBER
APPELLANT:
The Manager, Hilton Hyundai, T.C. No. 36/58 (6), NH Bypass Road, Eanchakkal, Thiruvananthapuram.
(By Adv. K.G. Mohandas Pai)
Vs.
RESPONDENT:
Kumari Malathy Subhadrayamma Raji, Gopi Vijayan, Nemom P.O, Thiruvananthapuram.
(By Adv. B. Vijayakumar)
JUDGMENT
HON’BLE JUSTICE S.S. SATHEESACHANDRAN : PRESIDENT
Opposite party in C.C 321/2012 on the file of Consumer Disputes Redressal Forum, Thiruvananthapuram has filed this appeal challenging the Order of the Forum directing to pay Rs. 20,000/- as compensation with cost of Rs. 5,000/- to the complainant.
2. Short facts necessary for disposal of the appeal can be summed up as follows.
3. Complainant purchased a Hyundai i10 car for an amount of Rs. 6,45,307/- from the opposite party. Full payment was made on 14.03.2012 and, according to the complainant, delivery was agreed to be effected after additional fittings the next day. However there was delay in delivery of the vehicle and it was delivered only on 13.04.2012. Long after the delivery on 13.04.2012 opposite party sent a communication Ext. P4 to the complainant demanding additional sum of Rs. 19,665/- as the sum incurred on variation of excise tax for the vehicle. Complainant paid that amount by Ext. P5 cheque. Complainant was forced to pay such excess payment claimed towards variation of excise tax since there was default on the part of the opposite party in delivering the vehicle as promised within the month of March 2012 was her case imputing deficiency in service, to claim compensation. Resisting the claim opposite party filed version contending that the demand after delivery of the vehicle was made on account of variation in excise tax. Complainant voluntarily paid that amount without any demand and complaint filed imputing deficiency in service stating that the vehicle was agreed to be delivered the next day has no merit, according to the opposite party. The liability to compensate the claim was challenged and disputed by the opposite party.
4. Evidence in the case consisted of testimony of complainant as PW1 and Exts. P1 to P10 on her side, and Exts. D1 to D4 on the side of the opposite party. Appreciating the materials produced the Forum below held that the case of the complainant that there was promise to deliver the vehicle the next day, and there was delay was not acceptable. But since the opposite party had failed to collect tax as per the existing rules the demand made for collection of tax from the complainant after delivery of the vehicle, according to the lower forum, would amount to deficiency in service and in that view the forum below directed it to pay compensation and cost to the complainant as indicated above.
5. We heard the counsel of both sides and perused the records.
6. The learned counsel for the appellant submitted that the demand made was only on account of variation of excise tax and when such demand was made without any protest it was voluntarily paid by the compliant. When that be the case, complaint filed much later stating that there was promise to deliver the vehicle the next day and there was delay in its delivery, to claim compensation from the opposite party was not proper and correct. There was no deficiency in service on the part of opposite party when the demand related to the excise tax collected, is the submission of the counsel. Learned counsel relied on the decision of Supreme Court in ‘Ravinder Raj Vs. Competent Motor Co. Pvt. Ltd.& anr. II (2011) CPJ 1(SC)’ to contend that when there is increase in price of the vehicle the purchaser has to meet the price change. Learned counsel appearing for the complainant/respondent submitted that opposite party has not placed any material to show that demand was made towards variation of excise tax. No scrap of paper was produced before the Forum to show that Ext. D4 relied by opposite party to claim excess amount was published in the gazette only on 28th July. The learned counsel submitted with reference to Ext. D4 that in the case of vehicle purchased by the complainant, which was priced above Rs. 5,00,000/- the tax payable was 8% and if it was case of demand towards change of excise tax that should have been furnished to the complainant or at least produced before the Forum.
7. Perusing the records and submissions made by the counsel on both sides we find that this was a case where complainant had paid whatever sum demanded by the opposite party after delivery of the vehicle without any protest. Notice was issued questioning the demand made more than one month after making payment. As rightly found by the lower forum complainant has not established her case that there was a promise to deliver the vehicle the next day after payment of the full price. By reason of mistake or justifiable reason the amount collected from the purchaser was less than the actual amount the seller can lawfully demand for payment of the balance amount. Though Ext. D4 is dated 28.07.2012 commencement of its operation is from 1st April 2012. The vehicle was delivered only after 1st April and, evidently, there was enhancement in the excise duty payable over that product from the previous financial year. However, as rightly contended by the learned counsel for complainant, opposite party failed to produce any material before the Forum what is the total amount payable towards excise and what was the amount collected earlier from the complainant. When that be the case, the demand made unsupported by data or details for such demand even accepting that there was reason for demanding excess payment would amount to deficiency in service. In that view of the matter we uphold the finding of the lower forum but for different reasons to hold that there was deficiency in service on the part of opposite party.
8. Having regard to the totality of facts and circumstances presented in the case and that the complainant had voluntarily paid the amount on demand by opposite party, we are of the view that it would be just and reasonable to award compensation of Rs. 12,000/- and cost of Rs. 900/-. Order of the lower forum is modified accordingly.
9. Compensation and cost awarded to the complainant as modified, is allowed to be realized from the sum deposited by the opposite party for entertaining its appeal, on filing application.
10. Appeal is partly allowed, and both sides are directed to suffer their cost.
JUSTICE S.S. SATHEESACHANDRAN : PRESIDENT
T.S.P MOOSATH : JUDICIAL MEMBER
RANJIT. R : MEMBER
