IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 18th day of April, 2023.
Filed on : 24.11.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. C.K.Lekhamma BA. LLB (Member)
In
CC/No.302/2022
between
Complainant:- Opposite parties:-
Sri. Jayachandran.S 1. Mahindra Good Vehicle Regional Office Kanakasree Regional Office, 34/1128,
Kokkothamangalam.P.O Balakrishna Menon Road
Cherthala, Edappally, Kochin-24
Alappuzha-688527 Rep.by its authorised signatory
(Adv. Sajila.S) 2. Meridian Moto,
A Unit of Intrepid Works Pvt. Ltd
Arattuvazhi.P.O,
Alappuzha-688007
Rep.by its authorised signatory
(Adv. Jayan .C. Das)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 35 of the Consumer Protection Act, 2019
1. Material averments briefly discussed are as follows:-
Complainant approached the 2nd opposite party for purchasing a vehicle manufactured by the 1st opposite party M/s Mahindra & Mahindra. 2nd opposite party informed that there is an offer of Rs. 50,000/- if the vehicle is booked before Deepavali. Accordingly on 22/10/2022 complainant booked a Jeeto CNG Goods vehicle by paying an amount of Rs. 3000/-. On 31/10/2022 Rs. 4,75,000/- was transferred to the account of 2nd opposite party from Canara bank which was availed as loan and there after Rs. 36,000/- was paid by Google pay. Thus a total amount of Rs. 5,14,000/- was paid to the 2nd opposite party. However the vehicle was not delivered on 1st of November or 2nd of November and on enquiry with 2nd opposite party it was informed that there was some defect in the manufacturing of the vehicle and so they are unable to register the vehicle. Complainant is eking his livelihood by distributing icecream after installing a freezer in the vehicle. Since he could not conduct the business for 20 days he sustained huge loss and he was unable to repay the loan amount. Thus he sustained a loss of Rs. 50,000/-. Hence the complaint is filed for realizing an amount of Rs. 5,14,000/- along with interest @ of 12 %, Rs. 50,000/- as compensation and Rs. 5000/- as cost.
2. 1st opposite party filed a version mainly contenting as follows:-
This opposite party is a manufacturer and sells motor vehicles to its dealers who are having Motor Trade Licence from the State Motor Vehicle Department. The Transaction between this opposite party and the 2nd opposite party is on principle to principle basis. There is no direct involvement between this opposite party and the complainant. There is no privity of contract between them. There is no cause of action against this opposite party. This complaint is filed against this opposite party without any bonafides.
3. The dealer had CNG-400 vehicle in stock during the mentioned period and the vehicle was allotted to the complainant. The delay in delivery of the vehicle is only due to the issues in Trade Certificate of the dealer and not with any manufacturing issue. The dealer got trade certificate by 12th November 2022 and informed the customer of the same but customer opted for the cancellation of booking. It is informed by the dealer that they had invoiced the vehicle on 31st October itself to the complainant.
4. There is no unfair trade practice or deficiency of service on the part of this opposite party. This opposite party is not at all involved in the booking process or sales to end customers by its dealers. This opposite party is not accountable for the transactions of the dealers since they are not agents of the manufacturer. The averment that the dealer had informed the complainant that the vehicle could not be registered since there is something wrong in the manufacturing of the vehicle is incorrect. Complainant is not entitled to any relief from this opposite party since there is no deficiency in service. Hence the complaint may be dismissed with compensatory cost.
5. 2nd opposite party filed a version mainly contenting as follows:-
Complainant had booked a vehicle through this opposite party. When the complainant booked the vehicle the TCR(Temporary Registration Certificate) of this opposite party had expired on 26/10/2022 and an application was made before the Regional Transport Office to renew the same. However it will take 25 days time for renewal and complainant was informed that vehicle could be delivered only after 15/11/2022 and he agreed for the same. Thereafter on 22/10/2022 complainant booked the vehicle by paying an amount of Rs. 3000/- . The vehicle was booked immediately for receiving the offer of Rs. 50,000/-.
6. The vehicle could not be delivered in time due to the delay in obtaining TCR. On 20/11/2022 TCR was received and when it was informed to the complainant he denied to take delivery and cancelled the booking. On 12/12/2022 as per the request of complainant Rs. 4,75,000/- was returned to his account. This opposite party is ready to return Rs. 39,000/- but it was not done since there was no reply from the complainant. This opposite party is ready to return the said amount. The allegation that the delay occurred due to the manufacturing defect of the vehicle is false. The booking was taken after informing the complainant about the expiry of TCR. There is no deficiency of service and hence the complaint may be dismissed.
7. On the above pleadings following points were raised for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties as alleged?
2. Whether the complainant is entitled to realize an amount of Rs.5,14,000/- along with interest from the opposite parties as prayed for.?
3. Whether the complainant is entitled to realize an amount of Rs. 50,000/- as compensation from the opposite parties as prayed for?
4. Reliefs and costs.?
8. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A7 from the part of complainant and the oral evidence of RW1 from the side of 1st opposite party. 2nd opposite party had not adduced any evidence either oral or documentary.
9. Point No. 1 to 3:-
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 toA7. It is stated in the affidavit that after the filing of the complaint 2nd opposite party had returned an amount of Rs. 4,75,000/-.
10. RW1is the Customer Care Manager of the 1st opposite party. He filed an affidavit in tune with the version.
11. As per Ext.A1 vehicle order taking form dtd. 22/10/2022 PW1, the complainant booked Jeeto CNG 400 goods vehicle with the 2nd opposite party by paying an advance of Rs. 3000/-. 1st opposite party is the manufacturer of the vehicle. According to PW1 since there was a deepavali offer there was a reduction of Rs. 50,000/- in price. Thereafter an amount of Rs. 4,75,000/- was transferred into the account of the 2nd opposite party on 31/10/2022 which was availed as a loan from Canara Bank. On 31/10/2022 an amount of Rs. 36,000/- was transferred to the account of the 2nd opposite party by google pay. Thus 2nd opposite party received a total amount of Rs. 5,14,000/-. Now the case of PW1 is that as promised by the 2nd opposite party the vehicle was not delivered in time, on a contention that there was some manufacturing defect and so he cancelled the booking. Inspite of cancellation the amount collected by the 2nd opposite party was not returned and hence the complaint is filed for realizing an amount of Rs. 5,14,000/- along with interest and Rs. 50,000/- as compensation on account of deficiency of service. 1st opposite party filed a version contenting that there is no privity of contract between complainant and them. 2nd opposite party is a dealer appointed by them. The relationship between them and the 2nd opposite party is that of principle to principle basis. They had no direct dealing with the consumers and so there is no privity of contract between them. It was contended that there was a delay in renewing the motor trade licence of 2nd opposite party and hence only a normal delay was occurred. When the vehicle was kept ready complainant cancelled the booking. However there is no deficiency of service from their part. 2nd opposite party filed a version admitting the booking on 22/10/2022 by paying an amount of Rs. 3000/-. According to them their trade certificate expired on 26/10/2022 and so a delay occurred to renew the same. It was informed to PW1 that the vehicle will be delivered only after 15/11/2022 and accepting the offer of Rs. 50,000/-, PW1 booked the vehicle. They admitted receipt of Rs. 4,75,000/- and Rs. 39,000/-. When the vehicle was kept ready for delivery PW1 cancelled the booking and so there is no deficiency of service from their part. It was also contented that on 12/12/2022 Rs. 4,75,000/- was credited into the account of complainant and they are ready to repay the balance amount of Rs. 39,000/-. Complainant got examined as Pw1 and marked Ext.A1 to A7. The Customer Care Manager of the 1st opposite party was examined as RW1. It is noticed that though 2nd opposite party filed a version they did not participate in the trial either by cross examining complainant or by adducing any evidence. As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”
12. The learned counsel appearing for the 1st opposite party pointed out that as per various judicial pronouncements, now it is well settled that the relation between manufacturer and dealer is principle to principle basis and so they are not liable. Admittedly there is no privity of contract between complainant and 1st opposite party. 1st opposite party who is the manufacturer appoints dealers and the customers are booking vehicle through the dealers. Only if it is proved that there is a manufacturing defect for the vehicle the role of the 1st opposite party will arise. Here in this case since the vehicle was not delivered there is no question of any manufacturing defect. Though the learned counsel appearing for the complainant pointed out that 1st opposite party is vicariously liable such a contention is untenable on account of the judicial pronouncements.
13. Admittedly 2nd opposite party had received an amount of Rs. 5,14,000/- from the complainant out of which Rs.4,75,000/- was returned. Though the complaint was filed for realizing Rs.5,14,000/-, in the chief affidavit PW1 admitted that after filing the complaint they have received an amount of Rs. 4,75,000/- and the balance is only Rs. 39,000/-. In the version filed by the 2nd opposite party they contended that they are ready to repay the said amount since there was no reply from the complainant, it was not done. In the chief affidavit PW1 is claiming an amount of Rs. 7,906/- as processing charges and Rs. 6728/- as interest on the basis of Ext.A7 letter issued by the Canara Bank which granted the loan. However from the complaint it is noticed that the claim is only Rs. 5,14,000/- along with interest out of which Rs. 4,75,000/- was already returned. So the balance amount is only Rs. 39,000/-. Though in the chief affidavit PW1 is claiming service charges and interest there is no pleading for the same in the complaint. As held by the
Hon’ble Supreme Court in Syam Narayan Prasad. Vs. Krishna Prasad (2018) 7 SCC 646]
“Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings.”
14. Since there is no pleading regarding processing charges and interest, as held by the Hon’ble Supreme Court no relief can be granted with respect to the same.
15. PW1 is claiming an amount of Rs. 50,000/- on account of deficiency of service since delay occurred in delivering the vehicle. As per Ext.A1 it is seen that the vehicle was booked on 22/10/2022. Expected delivery time is not mentioned, in Ext.A1. According to PW1 the vehicle was not delivered on 1st or 2nd of November. During cross examination it was put to PW1 that on 12/11/2022 it was informed that the vehicle was kept ready for delivery. However it was denied. Admittedly PW1 cancelled the booking and so the sale was not materialized. The complaint is seen filed on 24/11/2022. Ext.A1 vehicle order taking form is dtd. 22/10/2022. Within one month ie, on 24/11/2022 the complaint is seen filed. According to opposite parties the delay occurred on account of cancellation of trade certificate and some time was taken for renewing the same. As stated earlier in Ext.A1 vehicle order taking form expected delivery time is not mentioned and so as a matter of fact when a vehicle is booked certain time will be required to get the same from the manufacturer. Here according to RW1 the vehicle was kept ready on 12/11/2022 but complainant was not ready to take delivery and cancelled the booking . Ext.A5 is a letter issued by the complainant to the 2nd opposite party. In the letter it is stated that on 3/11/2022 he called the sales executive of 2nd opposite party and cancelled the booking. So it can be seen that within 12 days of booking complainant cancelled the same and so there cannot be any deficiency of service from the part of 2nd opposite party enabling the complainant to get compensation. However since 2nd opposite party admitted that they are ready to repay the balance amount of Rs. 39,000/- an order can be passed directing them to pay the same along with interest. These points are found accordingly.
16. Point No.4:-
In the result complaint is allowed in part.
a) Complainant is allowed to realize an amount of Rs. 39,000/- along with interest @ of 9% per annum from the date of complaint ie, on 24/11/2022 till realization from the 2nd opposite party.
b) Complaint against 1st opposite party is dismissed.
c) Complainant is allowed to realize an amount of Rs. 2000/- as cost from the 2nd opposite party.
The order shall be complied within one month from the date of the receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 18th day of April, 2023.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Sri.Jayachandran.S (Complainant)
Ext.A1 - Copy of Vehicle Order Taking Form
Ext.A2 - Copy of Letter dtd. 3/11/2022
Ext.A3 - Copy of Bank details
Ext.A4 - Copy of Transaction details
Ext.A5 - Copy of Letter dtd. 28/11/2022
Ext.A6 - AD cards
Ext.A7 - Letter dtd. 15/12/2022
Evidence of the opposite parties:
RW1 - N. Srinivasan( OP Manager, Customer Care)
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:
