IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 10thday of August, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
C C No. 109/2020 (filed on 14-08-2020)
Petitioner : Stephen Mathai,
Verukdapanal House,
Uzhavoor East P.O.
Kottayam.
(Adv. Francis Thomas)
Vs.
Opposite Parties : 1. Mahindra & Mahindra,
Automotive Division,
AFS Mahinra Tower,
3rd Floor, Kurli Road,
Kandivali (East)
Mumbai – 400101.
Rep. by its General Manager.
2. Alyson Automotive Pvt. Ltd.
13/373 & 374 Ambattukavu,
Thaikkattukara P.O.
Ernakulam – 683106.
Rep. by its Managing Director.
3. Shabeer Ahammed,
Managing Director,
Alyson Automotive Pvt. Ltd.
13/373 & 374 Ambattukavu,
Thaikkattukara P.O.
Ernakulam – 683106.
(Opposite parties 2 and 3 are deleted
as per Order memo dtd.08-06-22)
4. Alison,
S/o. Muhammadali,
Perumbadi House,
S.R. Fuel Station,
Orumanayoor P.O.
Thrissur.
O R D E R
Sri. Manulal V.S. President
Briefly stated, averments made in the complainant’s case, are that the complainant, had drawn demand draft dated 18-6-19 of Rs.7,00,000/- in favour of Alyson Automotive Pvt Ltd, an authorized dealer of Mahindra and Mahindra, for the purchase of Mahindra Pick up 4x4 vehicle. In addition to that the complainant directly paid Rs.42,000/- to Alyson Automotive Pvt Ltd. The complainant could not get the delivery of the said vehicle. It was further submitted that the opposite parties arranged a loan of Rs.6,00,000/- as per scheme from the Canara Bank, Uzhavoor Branch and the said DD was issued to the second opposite party Alyson Automotive Pvt Ltd inclusive of said loan amount. The third and fourth opposite parties assured that the vehicle is with them for delivery and insisted the demand draft in favour of the second opposite party instead of first opposite party. But the said vehicle was not delivered to the complainant as promised by them. On 25-01-2019, issued a cheque of 7,06,500/- in favour of complainant, as refund of the deposited amount. It was submitted by the complainant that the said cheque was bounced and not honoured by the Bank. At that time they issued another cheque for an amount of Rs.7,39,716/- dated 20-11-19 drawn on HDFC Bank, Palakkadu Branch . On presentation the same was also dishourned. It is averred in the complaint that the non delivery of the vehicle within one month and taking the DD in favour of the second opposite party is unfair trade practice and deficiency in service on the part of the opposite parties for which the opposite parties are liable to compensate the complaint. It is submitted in the complaint that the employees of the first opposite party were also present during the transaction.
Finally, compelled by the situation, the complainant filed this complaint against the opposite parties for deficiency in service by the non-delivery of the vehicle and the refund of the deposited money with interest 12% per annum and
compensation of Rs.50,000/- for mental harassment and Rs.2000/- as litigation cost.
Though the notice was duly served to the opposite parties 1 and 4 they failed to appear before the commission and to file version. Hence opposite parties one and four are set ex-party. The complainant filed a memo on 8-6-22 to delete the second and third opposite parties from the party array. Second and third opposite parties are deleted from the party array as per the order in memo dated 8-6-22.
Complainant filed proof affidavit and marked exhibit A1.
On evaluation of complaint and evidence on record, we would like to consider the following points.
- Whether the complainant has succeeded to prove the unfair trade practice and deficiency in service on the part of the opposite parties and entitled for any reliefs?
In the present case, we find that the complainant had deposited exhibit A1 demand draft of Rs.7,00,000/- in favour of the dealer, of Alyson Automotive Pvt Ltd, who is an authorized dealer of Mahindra and Mahindra, for the purchase of Mahindra Pick up 4x4 vehicle. It is also a fact that the authorized dealer of the first opposite party failed to provide the vehicle to the complainant and then issued a cheque as the refund amount on 25-01-2019 to the complainant. It is the fact that said cheque of the dealer issued in favour of the complainant could not be credited in the account of the complainant due to insufficient amount in the account of the dealer and subsequently, the amount of the purchaser remained due to be paid by the dealer.
Now the main point of consideration is as to whether the deposited amount of the purchaser is to be refunded by the manufacturer or by the dealer.
It is true that both, the manufacturer and its dealer are the necessary party to the sale of a particular product. In case of any manufacturing defect alleged to the product, the dealer cannot evade his responsibility. Similarly, if product is booked through its dealer and is not provided or delayed, the Company cannot evade its responsibility. But any person alleging the fact must establish the same by leading cogent evidence.
In the circumstance, having examined the material including evidence on the record, we do not find any documentary evidence to show that the first and fourth opposite parties are involved in the transaction of amount paid by complainant.
More over neither in the complaint nor in proof affidavit the complainant did not disclose the relationship between the complainant and the fourth opposite party and the role of the fourth opposite party in the business of the second opposite party. Bouncing of the cheque and non-appearance of the fourth opposite party through out the proceedings of the complaint itself would go to show the malafide intention of the dealer and fourth opposite party, which is not in accordance to the provision of the Consumer Protection Act.
So, it would not be prudent to hold a party liable, who was not involved in the transaction. Keeping in view the above stated observation, we are of the view that the complainant failed to prove his case with cogent evidence and liable to be dismissed. Hence the complaint is dismissed.
Pronounced in the Open Commission on this the 10th day of August, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of DD for Rs.18-06-2019.
Exhibits marked from the side of opposite party
Nil
By order
Assistant Registrar
