IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 7th day of October 2009 CC/147/2008 M.P.Sayed, MadalandakathPuthiypurayil, Safoora Manzil, Chengalai.P.O., Complainant Taliparamba taluk. (Rep. by Adv.A.K.Santhosh) Manger, K.T.C.Auto Mobile Private Ltd., K.A.307 A, III,Kannothumchal, Opposite party P.O.Chovva, Kannur 6. (Rep.by M.K.Associates) 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 the complainant an amount of Rs.25, 750/- and to pay cost of this proceedings. The brief facts of the case of complainant are as follows: Complainant purchased a new car from the opposite party. At the time of purchase opposite party assured a reduction of Rs.12,500/- towards the insurance premium along with an exchange bonus of Rs.10,000/- . On believing this complainant exchanged his jeep bearing Reg. No.KL.13 D 1641 through the opposite party. Complainant paid Rs.25, 000/- by cash and Rs.3, 32,933/-byway of DD. Opposite party did not pay agreed exchange bonus Rs.10, 000/-. Apart from this an excess amount of Rs.3, 500/- had been collected from complainant towards handing charge. There was nothing mentioned about handing charge at the time of booking. Lawyer notice requesting to pay back excess amount collected along with the exchange bonus. Opposite party received notice. But did not replied. No payment also made. Complainant has also spent Rs.2000/- towards TA and Telephone calls. Complainant assessed an amount of Rs.10, 000/- for the mental agony and pain suffered by him. Pursuant to the notice opposite party appeared and filed version contending that the opposite party is the dealer of Hundai Motor. Complainant had purchased the car from the opposite party. The opposite party had offered a discount of Rs.12, 500/- towards the insurance premium along with an exchange bonus of Rs.10, 000/- from the actual cost of the vehicle. The above said offer is subjected to certain specific conditions such as the purchaser of the car should own a car and it should be exchanged for new car and exchange claim would valid only if the old car is transferred for the purchase of new car. But the complainant did not own a car. Instead, who wanted to exchange his jeep for a new car. Since he did not have a car the complainant is not entitled to get the exchange claim. The complainant provided the details in the order book form and memorandum of understanding of exchange. Only after that, the complainant had revealed before this opposite party that he was intending to exchange the jeep instead of car. Because of that reason the sales executive denied to put the signature in the understanding of exchange claim bonus. So the averment that the complainant exchanged his jeep through this opposite party is totally incorrect. The amount Rs.3500/- is only towards the incidental charges. It was intimated at the time of booking. There is no deficiency on the part of opposite party. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for considrati9on. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled to get the remedy as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral testimony of PW1, DW1 and documentary evidence Exts.A1 to A6 and B1 and B2. Issue Nos. 1 to 3 Admittedly complainant purchased a new car from the opposite party. Opposite party had offered Rs.12, 500/- towards the insurance premium along with an exchange bonus of Rs.10, 000/- from the cost of the vehicle. The averment of the complainant is that believing the words of opposite party the complainant exchanged his jeep through opposite party. But opposite party did not pay the exchange bonus of Rs.10, 000/- as agreed by opposite party. At the same time opposite party contended that the offer is subjected to certain conditions such as the complainant should own a car of his own and it should be exchanged for the new car for the validity of exchange claim. The complainant did not own a car. Since he did not have a car he is not entitled for exchange claim. Ext.A1 is the order booking form. The offer column gives the details of offers given as follows: 1. 12,500/- Insurance 2. Corporate Bonus (4000) 3. 10,000/- Exchange bonus. The above order booking form makes it clear that there is exchange bonus of Rs.10,000/- Complainant sent Ext.A4 lawyer notice mainly demanding for the payment of exchange bonus of Rs.10,000/- and Rs.3,500/- collected excess over and above the price as handling charge, which had not been demanded at the time of booking. Ext.A5 receipt and ext.A6 acknowledgement proves that opposite party has received Ext.A4 notice. It was not replied by opposite party. If the opposite party had been free from liability under the shelter of conditions as is intended to explain by Ext.B1 and B2 a reply should have been sent by opposite party for ext.A4. The non reply of lawyer notice itself is enough to cast liability on the shoulders of opposite party. It is undoubtedly a deficiency on the part of opposite party. Opposite party contended that an old car owned by the new car buyer should exchange for the new car for claiming exchange bonus. But opposite party did not deny the fact that jeep of the complainant was exchanged through the opposite party. If that b e so opposite party is bound to give exchange bonus or otherwise opposite party ought not to have been exchanged the jeep of the complainant instead of car or he could have told then that the bonus was not available. The exchange was made under pretext that exchange bonus is available and afterwards trying to escape from that liability is nothing. but unfair trade practice. Non reply of lawyer notice Ext.A4 had only been considered as an attempt of escapism as part of unfair trade practice. The second demand of the complainant in Ext.A4 was to refund the excess amount of Rs.3, 500/-. The contention taken by the opposite party is that, that is an amount of incidental charges and not handling charge. But opposite party has not adduced evidence to prove it. Hence we have no hesitation to find that the opposite party is liable to pay Rs.10, 000/- as exchange bonus and Rs.3, 500/- collected separately together with Rs.2000/- as compensation and Rs.1000/- as cost of these proceedings. Issue Nos. 1 to 3 is found in favour of the complainant and orders passed accordingly. In the result, the complaint is allowed, directing the opposite party to pay Rs.10,000/-(Rupees Ten thousand only) as exchange Bonus and Rs.3,500/- (Rupees Three thousand five hundred only) as excess collected together with Rs.2000/-(rupees Two thousand only) as compensation and a sum of Rs.1, 000/- (Rupees One thousand only) as cost of these proceedings within one month from the date of receipt of this order, failing which it shall attract 12% interest p.a on the entire amount due as per the order. In case the amount if not paid within one month complainant is at liberty to execute the order against the opposite party as per the provisions of consumer protection act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Order booking form issued by KTC Hyundai dt.1.6.07 A2.copy of the D drawn by the complainant dt.8.6.07 A3.Deliverynotice issued by KTC Automobile A4 to A6..Copy of the lawyer notice, postal receipt, AD card. Exhibits for the opposite party B1.Copy of the undertaking of exchange bonus claim issued by the complainant B2.copy of annexure I B3.Authorisatin letter. Witness examined for the complainant PW1.Complainant Witness examined for the opposite party DW1Biju Mathew /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
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