D.O.F. 10.11.2010

                                          D.O.O. 06.09.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri.K.Gopalan                :         President

                                      Smt. K.P.Preethakumari:         Member

Smt.M.D.Jessy               :        Member

Dated this the 6^th day of September, 2011.

C.C.No.264/2010

N.P. Padmanabhan,

‘Padmanabha Nidhi’

Muringodi, P.O. Muringodi                                  :  Complainant

Kannur 670 671

1.  KVR Dream Vehicles Pvt. Ltd.,

     P.O. Kizhunna, Thottada, Kannur

     670 007

(Rep. by Adv. T.P. Sabu)                                       :  Opposite Parties

2.  Tata Motor Finance Ltd.,

     South Bazar, Kannur – 2.

(Rep. by Adv. A.K. Sajith Kumar)

O R D E R

Sri. K. Gopalan, President.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay an amount of              ` 26,480 as compensation.

          The case of the complainant in brief is as follows :  Complainant booked Tata Nano car from the kannur booking centre on 25.04.09.  Since he was not good in English it was one of the employees of the Tata office filled up the form.  He book a yellow A/c car.  Thereafter he was called over telephone many times.  They have asked him to come over to their office with ` 14,532 and a D.D. of ` 2,999.  Accordingly he went to office and gave the amount and DD.  They gave him a receipt.  When he asked them for what purpose it was and they told him that the payment is in connection with the loan of the car.  He did not ask for loan and didn’t signed any document in connection with the loan.  After expressing protest he told him to reduce the amount from the total value of the car.  Many times made enquiry in the office but they did not positively responded.  The complainant never asked for car loan.  Though from Peravoor he came to Kannur office many times and also called over phone, he did not get a favourable answer.  When he told them to reduce the amount from the price of the car they assured to inform him after making enquiry with head office.  On March, 2010 complainant received letter informing that the vehicle is available.  Thereafter he was called from KVR Dreams Vehicle, Kannur.  He went there and he was shown a Nano car and told that was the car allotted to him.  He did not take the car since the colour of the car was not of his option which was agreed upon.  When he protest they told him that arrangements would be made by contacting the company.  But they did not inform anything afterwards.  Whenever the office was contacted they gave different phone numbers and asked to contact them.  None of the call was not properly answered.  Hence this complaint.

          Pursuant to this notice opposite parties made appearance and filed version denying the allegations and averments of the complainant.  1^st opposite party filed version separately, the brief facts of which are as follows : This opposite party has no direct dealing with the complainant.  Complainant approached Tata Motor Finance Ltd for availing finance to purchase the car.  This opposite party provided the car to the complainant as per the details stated in the invoice given by the Tata Motor Finance.  This opposite party has no knowledge about the colour he opted except when complainant was shown the vehicle.  This opposite party has already informed that they will provide the same colour if the complainant is ready to wait for 2 to 4 months.  Complainant was not ready to wait further so that he went away scolding this opposite party.  Even then this opposite party is ready to provide the specific colour placed by the complainant.  The complainant has not sustained any damages or mental agony hence not entitled for any compensation.  He is not entitled for any remedy.  Hence to dismiss the complaint.

          2^nd opposite party filed version separately, the brief content of which is as follows :  The complainant himself approached this opposite party for booking of Tata Nano Car.  Complainant fully agreeing upon the terms and conditions, made application for the booking of the car.  In the application the complainant has opted for finance of booking amount of   ` 1,40,000 for a summer blue Nano car.  The complainant has applied the said booking through the finance and the booking amount of             ` 1,40,000 was paid by the financier on behalf of the complainant.  The complainant has applied the said booking through the finance and the booking amount of ` 1,40,000 was paid by the financier on behalf of the complainant.  The complainant has paid ` 2,999 as the booking amount of the said car.  This amount was non-refundable and the same was communicated at the time of booking itself.  It has also mentioned in the form.  Complainant is not entitled to any compensation from this opposite party.   There is no merit in the complaint.  Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.     Whether there is any deficiency on the part of opposite party?

2.     Whether the complainant is entitled for the remedy as prayed in the complaint?

3.     Relief and cost.

The evidence consists of PW1, Ext.A1 to A7, B1 and B2.  Opposite parties have no oral evidence.

Issues 1 to 3

          The case of the complainant is that he booked a yellow Tata Nano car from the Tata Nano car booking centre on 25.04.2009.  The application form was filled by an employee in the said office.  Later on information he paid ` 14,532 and a DD for ` 2999 also given, and they gave him a receipt of payment in connection with loan.  He never asked for loan.  When he asked them to reduce the amount from the total price of the car they assured him that they would inform after making enquiry from the Head office.  On March 20^th he received an information that the vehicle is available.  As per the call from the KVR Dream vehicles, kannur, he went there but he was shown a Nano car, which the colour was not of his option.  Complainant was not ready to take that one and hence they told that arrangements would be made after contacting the company.  But they did not responded thereafter, even if, complainant made several attempt. 1^st opposite party took the contention that they have no direct dealings with the complainant.  They provided car to complainant as per the details stated in the invoice given by the Tata Motor Finance.  1^st opposite party has no knowledge about the colour he opted.  But they are ready to deliver the same colour car if the complainant is ready to wait for 4-5 months.  Complainant was not ready to wait further and went away scolding them.  Even now they are ready to provide the car with specific colour placed by the complainant.  2^nd opposite party contended that complainant booked the car fully knowing the terms and conditions.  In the application the complainant has opted for finance of booking amount of ` 1,20,000 for a summer blue Nano Car.

          Complainant adduced evidence by way of affidavit in line with the pleadings.  He was also produced Ext.A1 to A7 to substantiate his evidence.  Ext.A6 is the receipt issued by Tata Capital Ltd. For ` 14,532 and Ext.A5 is the photocopy of the DD for ` 2,999 issued in favour of Tata Capital Ltd.  Ext.A3 shows issuance of a DD for an amount of         ` 3,847 in favour of Tata Capital Ltd.  Ext.A1 is the counterfoil of ` 3847.  The above three receipts show that complainant has paid ` 21,375 to 2^nd opposite party.  Complainant was cross examined elaborately by 1^st and 2^nd opposite parties.  Complainant deposed in cross examination by 1^st opposite party that “1^st opposite party Fsâ hml\w F¶p ]dªv Imdv ImWn¨p X¶n-cp-¶p. Rm\m-h-i-y-s¸« If-d-Ãm-¯-Xp-sIm­v hml\w FSp-¡msX t]mhp-I-bm-Wp-­m-b-Xv.”  He has also deposed that he met the M.D. as directed and he promised that the car opted by the complainant would be made available within two months.  He has also deposed that “Fs¶ ImWn¨ Imdnsâ IfÀ summer blue Bbn-cp-¶p.  aª IfÀ Imdpw AhnsS D­m-bn-cp-¶p.”

Complainant admitted his signature in Ext.A4. But Ext.A4 does not make clear anything material to the case.  It is not even made clear the purpose for which it is produced. It is difficult to understand what the document is.  For another question asked by 2^nd opposite party in his cross complainant deposed that “F\n¡p th­n 2^nd opposite party ` 1,40,000 1^st opposite party¡v AS-¨n-«p­v F¶p ]d-ªm F\n-¡-dn-bn-Ã.” The specific case of the complainant is that he has not applied for the loan. Complainant has deposed in answer to a question  by 1^st opposite party that “hml-\-¯n\p th­n-bp-ff ]Ww 2^nd opposite party, 1^st opposite party¡v sImSp-¯n-cpt¶m F¶ Imcyw F\n-¡-dn-bn-Ã.”  So the case of the complainant is quite clear that he has not made any application for loan. Hence the burden shifts upon the opposite parties to prove that complainant has applied for loan and thereby 2^nd opposite party has paid the amount to 1^st opposite party.  Opposite parties has not adduced sufficient evidence this aspect.  Opposite parties produced Ext.B1 to prove that application would reveal that complainant has applied for loan.      Except Ext.B1 nor Ext.B2 there is no other document produced or oral evidence adduced on the side of the opposite parties to substantiate these contentions mainly on the issue of loan and the colour of the car opted by the complaint.

          2^nd opposite party contended in the version that “The complainant upon fully agreeing the terms and conditions of the said financial arrangement made an application for the booking of the said car”.  Neither Ext.B1 nor Ext.B2 produced by the 2^nd opposite party make clear that complainant has applied for such a loan contended by opposite parties.  The documents itself can not be considered as genuine.  It is not even attested properly.  Ext.B2 is claimed to be the relevant document.  At least this document could have been shown to the complainant in  box and get the signature admitted by him.  This photocopy also has not properly attested.  Even it cannot be seen, which date it has been signed whereas, it has seen on the left side bottom, a signature dated second day of April, 2000 which shows it is a concocted document.  It has to be taken into account that Ext.B1 and B2 documents are only the evidence on the part of opposite parties to substantiate the contentions of opposite parties and to disprove the allegation of complainant.  Both these documents cannot be accepted in any angle, especially for the reason that the 2^nd opposite party who is the custodian of the original document did not produce the original itself before the Forum.  Opposite party is bound to say who is the custodian of original document and what prevented the opposite party from producing the original before the Forum.  This itself is an evidence to hold that there is unfair trade practice on the part of opposite parties.  There is no reason to disbelieve the complainant.  Opposite party did not taken any initiative to prove that the complainant had applied for loan and he had booked not for the yellow car but for summer blue.

          In the light of the above discussion we hold that there is deficiency in service on the part of opposite parties.  The receipts Ext.A1, A3, A5 and A6 proves that the complainant has paid 2^nd opposite party  ` 3849+ ` 2999+ ` 14532 = ` 21,380.  The mental agony of the complainant also cannot be ignored.  Apart from the amount ` 21,380 paid by the complainant he is also entitled for an amount of ` 2,500 as compensation for the mental agony.  Complainant is also entitled for        ` 500 as cost of this proceedings.  Thus the issues No.1 to 3 answered in favour of complainant and order passed accordingly.

          In the result, complaint is allowed directing the opposite parties to pay an amount of ` 24,380 (Twenty Four Thousand Three Hundred and Eighty only) to complainant within one month from the date of receipt of this order failing which complainant is entitled for interest @ 12% per annum from the date of filing the complaint on 10.11.2010.  In case 1^st opposite party is paid the amount he is entitled to recover the amount from 2^nd opposite party.  Complainant is at liberty to execute the order after the expiry of 30 days as per the provisions of Consumer Protection Act.

                       Sd/-                            Sd/-                       Sd/-

          President                      Member                 Member

APPENDIX

Exhibits for the Complainant

A1.  Counter foil of D.D.

A2.  Photo charge

A3.  Photocopy of D.D. for ` 3849.

A4.  Booking Forum

A5.  D.D.No.048101 for  ` 2,999.

A6.  Receipt

A7.  first information sheet.

Exhibits for the opposite party

B1.  Application form dated 27.04.2009.

B2.  Application form – Nano Booking Loan.

Witness examined for the complainant

PW1.  Complainant

Witness examined for the opposite party

Nil

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT