Andhra Pradesh

Visakhapatnam-II

CC/156/2012

J. Chandra Mouli - Complainant(s)

Versus

Mahavir Auto Authorized dealers for Skoda AutoIndia Private Limited - Opp.Party(s)

D.V.V.R. Pratap

10 Feb 2015

ORDER

Reg.of the Complaint:18-05-2012

                                                                                                                                    Date of Order:10-02-2015 BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDHA RAO, M.A., L.L.B.,

       President

2.Sri C.V.N. RAO, M.A., B.L.,

                                             Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

                                            

 

TUESDAY, THE 10^TH DAY OF FEBRUARY, 2015

CONSUMER CASE NO.156/2012

 

BETWEEN:

SRI J.CHANDRA MOULI S/O LATE SRI J.SURYA NARAYANA,

HINDU, AGED 41 YEARS, R/O D.NO.57-27-45/2,

SRIRAM NAGAR, INDUSTRIAL ESTATE POINT,

VISAKHAPATNAM-7.

                                                                                             …COMPLAINANT

A N D:

1.MAHAVIR AUTO AUTHORISED DEALERS OF

SKODA AUTO INDIA PVT. LTD., REP. BY ITS GENERAL MANAGER,

AUTHORISED PERSON D.NO.38-22-158-20,

INDSTRIAL ESTATE, MARRIPALEM,

VISAKHAPATNAM-7.

2.M/S MAHAVIR AUTO DIAGNOSTICS LTD.,

REP. BY ITS MANAGING DIRECTOR,

RAJBHAVAN ROAD, HYDERABAD.

 

                                                                                      …OPPOSITE PARTIES

 

This case coming on 19-01-2015 for final hearing before this Forum in the presence of Sri.D.V.V.R.PRATAP, Advocates for the Complainant and of  Sri A.P.VENU GOPAL RAO, Advocate for the Opposite Party, and having stood over till this day for consideration, the Forum made the following:

 

O  R  D  E  R

(As per the Honourable President on behalf of the Bench)

1.       The Complainant filed the present complaint against the Opposite Parties, directing them to deliver Fabia Ambiente 1.2 MPI Car Silver Colour by receiving the balance consideration amount after deducting Rs.90,000/- as discount to the said vehicle, failing to pay, compensation of Rs.1,00,000/-, Rs.5,00,000/- towards damages, Rs.86,301/- towards penal interest and Rs.10,000/- towards costs.

2.       The case of the compliant in brief is that he approached the OPs to purchase Fabia Ambiente 1.2 MPI Car Silver Colour and on negotiations, the OPs have given offer of Rs.90,000/- as discount and he has accepted the offer made by the 1^st OP and accordingly booked the vehicle by paying Rs.50,000/- by way of a cheque bearing No.157905 drawn on SBI Branch Office, Project office Branch, Visakhapatnam Steel plant Branch on 17-12-2011 and the OP had issued a Purchase Order mentioned the Ex showroom price at Rs.5,08,627/-  and also acknowledged the receipt of advance amount of Rs.50,000/-. That as per the purchase order dated 17-12-2011 of OP No.1, has agreed to deliver the Car on or before 29-12-2011 but has not delivered the same till the date of complaint. That when he approached OP1, he has failed to deliver the car in spite of repeated reminders and finally, he got issued a letter dated 2-2-2012 from the authorized person of the OP along with a fabricated purchase order. In the said purchase Order, an amount  of Rs.5,08,627/-  were changed to Rs.5,13,162/- apart from the make of the Car also being changed to Fabia Ambition plus 1.2 MPI  from Fabia Ambiente 1.2 MPI  and the date of purchase order also changed from 17-12-2011 to 19-12-2011.

3.       Though the OP agreed to deliver the car by 3-2-2012 which is within offer period and the expected offer period will be on 10-02-2012 and that the authorized person also assured the complainant that he would deliver the same car for the same offer as stated above. Ex showroom price i.e., fabricated purchase order price instead of Original Purchase Order price which was clearly mentioned in the Letter dated 2-2-2012 that the purchase order which was issued to him was not with his consent. That thereafter also though he was represented and willing to pay the balance consideration, the OPs have not taken steps to deliver the car till date. Hence this complaint.

4.       The case of the OPs denying the material averments admitted that they have received a sum of Rs.50,000/- towards booking of Fabia Ambiente 1.2 MPI Car Silver Colour for which a valid receipt on 20-12-2011, acknowledging the cheque issued by the complainant towards advance booking amount. Though the said booking amount received by the OP herein,  which is subject to realization of the cheque amount. The production of the vehicle Fabia Ambiente 1.2 MPI Car Silver Colour was stopped even by September 2011 by the manufacture. The issuance of a discount of Rs.90,000/- to the complainant is denied. That the letter dated 02-02-2011 together with fabricated purchase order was denied and the complaint was called upon to produce the same by reply dated 24-04-2012. That the terms of the sale was subject to the terms and conditions of the availability of the vehicle cost of the vehicle as on the date of availability and availability of the colour and hence the complainant cannot attribute any malafides to the OPs. They also denied that due to lack of knowledge about the arrangement of the loan by the complainant in December, 2011. It is further submitted that the complaint had been insisting for an estimation of Rs.90,000/- which was not acceptable as the vehicle intended to be purchased by the complainant was having higher features. As the complainant was refusing to take delivery of the car, they could not deliver the same. The contents of the complainant were denied by the proper reply legal notice.  They finally stated that expressing their readiness and willingness to deliver the car of the choice of the complainant for the price as on the date of the delivery of the car or in the alternative the complainant is at liberty to take his amount of Rs.50,000/- together with interest as per RBI norms.

5.       To prove the case on behalf of the complainant, he filed his evidence affidavit and got marked Exhibits A1 to A13. On the other hand, on behalf of the OP-1, he filed his evidence affidavit and got marked Exhibits B1 to B3.

6.       Exhibit A1 is the Original Purchase Order of the OP1, dated 17-12-2011, Exhibit A2 is the Photostat copy of letter issued by the 1^st OP authorized person in the name of the complainant dated 02-02-2012, Exhibit A3 is the Photostat copy of Fabricated purchase order dated 19-12-2011, Exhibit A4 is the Photostat copy of Loan balance sheet of the complainant of March, 2012, Exhibit A5 is the Photostat copies of Pay slips of the complainant for January 2012 to March, 2012, Exhibit A6 is the Office Copy of the Legal Notice got issued by the complainant dated 21-03-2012, Exhibit A7 is the original postal receipts dated 21-03-2012, Exhibit A8 is the original postal receipts dated 21-03-2012, Exhibit A9 is the original postal receipts dated 21-03-2012, Exhibit A10 is the Acknowledgement from 1^st OP, Exhibit A11 is the Acknowledgement from OP2, dated 26-03-2012, Exhibit A12 is the Acknowledgement dated 26-03-2012  and Exhibit A13 is the Reply Legal Notice got issued by the 2^nd OP dated 24-04-2012.

7.       Exhibit B1 is the copy of Receipt for Rs.50,000/- bearing no.275 dated 20-12-2011, Exhibit B2 is the copy of Letter from the Manufacture dated 21-08-2012 and Exhibit A3 is the copy of Proforma Invoice dated 20-02-2014.

8.       Both parties filed their respective written arguments.

9.       Heard arguments of the Complainant. Treated as heard the OPs.

10.     Now the point for determination to be determined in this case is;

Whether there is any deficiency of service on the part of the OPs and the Complainant is entitled to any reliefs asked for?

11.     As seen from record, it an admitted fact that the complainant booked a car and the OP received advance amount of Rs.50,000/- subject to the realization of the cheque, the receipt dated 20-07-2011. There is no mention of any discount being given to the complainant for the purchase order. The same seems to be only oral and does not substantiate by any documentary proof. It is also evident as seen from record that the vehicle Fabia Ambiente is not available as the manufacturer of the said vehicle was stopped by September, 2011. Thus, it is clear  the entire case of the complainant is revolving around Exhibit A2 and A3 which are the original purchase letter dated 17-12-2011. Exhibit A1 letter issued by an authorized representative of the OP1 alleged fabricated photocopy of the purchase Order is Exhibit A3. 

12.     Now, I would like to deal with Exhibit A1 to A3. Exhibit A1 clearly and categorically goes to show that the complainant herein paid an advance amount of Rs.50,000/- through cheque bearing No.157905 drawn on SBI, for booking car model No. Fabia Ambiente 1.2 MPI Car Silver Colour for an amount of Rs.5,08,627/-  dated 17-12-2011 which was duly signed by the complainant and the authorized signatory  of the OP. A Price List with effect from 19-11-2011 in respect of SKODA CAR is enclosed. By drawing our attention to Ex A1, the Learned Counsel for the complainant submitted that the OPs has given a discount of Rs.90,000/- for purchasing the afore said car. But, admittedly there is no mention of any discount being given to the complainant in the said purchase order. Further, exhibit A2 letter clearly reveals that the discount of Rs.90,000/- has given by OP, at the time of Exhibit A1 purchase order.  Therefore, it is to be held that Exhibit A2 Letter dated 02-02-2012 said to have addressed by the Team Leader of OPs to the complainant herein with reference to purchase order vide reference no.275 dated 17-12-2011. Exhibit A2 discloses that the OP offered Rs.90,000/- as discount and expressed non availability of stock and that they will return back the advance amount etc., but the OP denied execution of Exhibit A2.

13.     To prove Exhibit A2, the complainant relied upon his evidence affidavit and legal notice Exhibit A6.  Exhibit A6 bears stamp as Mahaveer Auto diagnosis private limited, Visakhapatnam. Before dealing with Exhibit A2 and A3, it is relevant for me to deal with Exhibit B1 to B3. Exhibit B1 is no other than the purchase order dated 17-12-2011 (Exhibit A1) Exhibit B2 is the letter dated 21-08-2012 wherein it is noted in the Sub:- as discontinuation of Fabia Ambiente 1.2 MPI Car  from September, 2011. This letter is addressed to whomsoever it may concern by OP that “this has to certify that the production of the Fabia Ambiente 1.2 MPI Car has been stopped by SKODA Auto Indian Private Limited from September, 2011 and this vehicle have been replaced by FABIA AMBITION 1.2 MPI PLUS. Thus, it is clear that as seen from Exhibit B2, the vehicle booked under Exhibit A1 by the complainant was stopped by the Manufacture even in the month of September, 2011. If that be so, we do not understand how the OPs gave purchase order vide Exhibit A1 in favour of the complainant after receiving advance thereon. On a careful perusal of Exhibit B1 and A1 we are of the definite opinion that there is a clear unfair trade practice on the part of the OPs.

14.     Now, I would like to deal with Exhibit A2, which clearly goes to show the vehicle vide Exhibit A1 was not available as it was stopped by Manufacturer of OP but the Authorized Representative of the OP addressed a letter to the complainant about the non availability of  the stock without informing about stopping of manufacturing of the said vehicle. Knowing pretty well about the stopping of the vehicle, OPs addressed a letter to the complainant also comes under the purview of unfair trade practice. Coming to the Proof of Exhibit A2, we are convinced with the averments of evidence affidavit of complainant in the back ground of Exhibit B2. By drawing our attention to Exhibit B3, the learned counsel for the OP contended the delivery of the car would be always subject to the availability  of the stock as on the date of delivery of the specifications, colour, model, variants procedures are subject to change at the discretion of the manufactures. If that be so, we do not understand,  on having knowledge about availability of vehicle  as it was stopped by manufactures why the OPs have executed Exhibit A1 in favour of the complainant.  This go to show in order to escape from the clutches of law, the OPs came forward with such a plea, as an afterthought. The record further shows in spite of issuance of notice by the complainant. Record shows,  the complainant paid advance amount of Rs.50,000/- on 17-12-2011,  which is in the hands of OPs, therefore, the OPs are liable to return back the amount to the complaint with interest from 17-12-2011.

15.     Whether the Complainant is entitled for compensation of Rs.1,00,000/- is to be considered.   It appears as seen from the evidence of the Complainant that the Complainant was compelled to approach the Opposite Party and therefore experienced a lot of physical strain besides mental agony and financial loss.   It is a un-dispute fact that the Opposite Party did not refund the amount subscribed by the Complainant.   Naturally that made have put the Complainant to suffer some mental agony besides physical stress and strain.   In this view of the matter, we sincerely feel that it is a fit case to award compensation as  claimed by the complainant.  Having regard to all these facts and circumstances, we are of the considered opinion, award of compensation of 1,00,000/- would better serve the ends of justice.   We therefore, proposed to award compensation of Rs.1,00,000 /-,  in the circumstances of the case on hand. Accordingly this point is answered.

16.     Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation.  The Complainant ought not have to approach this Forum had his claim for delivery of the booked vehicle or reliefs sought for have been honored by the Opposite Parties within a reasonable time and in view of the matter, the Complainant’s claim for costs deserves to be allowed.   In our considered and unanimous opinion, awarding a sum of Rs.5,000/- as costs would appropriate and reasonable.   Accordingly costs are awarded.

17.     In the light of our discussion, referred supra, the complainant is entitled to receive Rs.50,000/- together with subsequent interest @ 12% p.a., from 17-12-2011 till the date of realization, a compensation of Rs.1,00,000/- and costs of Rs.5,000/-.

18.     In the result, this complaint is allowed in part, directing the Opposite parties  to pay an amount of Rs.50,000/- (Rupees Fifty Thousand Only) together with subsequent interest @ 12% p.a., from 17-12-2011 till the date of realization, a compensation of Rs.1,00,000/- (Rupees One Lakh only) and costs of Rs.5,000/- (Rupees five thousand only) to the Complainant. Time for Compliance, one month from the date of this order.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 10^th day of February, 2015.

 

   Sd/-                                             Sd/-                                      Sd/-

LADY MEMBER                       MALE MEMBER                       PRESIDENT        

 

 

APPENDIX OF EVIDENCE

  For the Complainant:-

Exhibits	Date	Description	Remarks
A 1	17-12-2011	Purchase Order of the OP1	Photostat copy
A2	02-02-2012	Letter issued by the 1st OP Authorized person in the name of the complainant	Original
A3	19-12-2011	Fabricated Purchase Order	Photostat copy
A4	March 2012	Loan balance sheet of the complainant	Photostat copy
A5	January, 2012 to March, 2012	Payslips of the complainant	Photostat copies
A6	21-03-2012	Legal Notice got issued by the complainant	Office copy
A7	21-03-2012	Postal Receipts	Original
A8	21-03-2012	Postal Receipts	Original
A9	21-03-2012	Postal Receipts	Original
A10	26-03-2012	Acknowledgement	Original
A11	26-03-2012	Acknowledgement	Original
A12	26-03-2012	Acknowledgement	Original
A13	24-04-2012	Reply Legal Notice got issued by the 2nd OP	Original

 

For the Opposite Parties:-  

Exhibits	Date	Description	Remarks
B1	20-12-2011	Receipt for Rs.50,000/- bearing no.275	Photocopy
B2	21-08-2012	Letter from the Manufacturer	Photocopy
B3	20-02-2014	Proforma Invoice	Photocopy

 

   Sd/-                                            Sd/-                                       Sd/-

LADY MEMBER                       MALE MEMBER                       PRESIDENT