BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 27/05/2011

Date of Order : 09/02/2012

Present :-

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 272/2011

Between

And

O R D E R

Paul Gomez, Member.

1. The following facts induced the complainant to file this complaint :

The complainant booked a Hyundai i 10 Era model car with the opposite party on payment of Rs. 5,000/- as advance. When the complainant found it beyond his capacity to arrange finance for the same due to some personal problems, he intimated the matter to the opposite party and demanded refund of the sum paid in advance. When his request was turned down he made a formal demand in a legal notice caused to the opposite party. In the reply notice it was alleged that the 2^nd opposite party company had incurred some loss due to the negligent test driving of the complainant and made a counter claim of Rs. 3,500/- and expressed their willingness to pay the balance amount of Rs. 1,500/-. This offer was not acceptable to the complainant and he is in demand of the entire advance amount along with costs of this proceedings.

2. The version has been filed by the opposite party refuting all the allegations raised in the complaint. The booking of i 10 car has been admitted. The advance payment of Rs. 5,000/- also is not denied. It is the say of the opposite party that the opposite party has incurred heavy loss due to damage to the vehicle which was driven by the complainant for test driving. The actual cost of repairs was Rs. 20,000/-, but after providing for depreciation expenses incurred by the opposite party for repairs was 2,500/-. The complainant was willing to pay this amount initially, but later he backtracked and insisted for the cancellation of the booking. They are ready to pay Rs. 1,500/- provided the sum is received as full and final settlement of the claim. In sum complaint deserves dismissal with costs.

3. The complainant has no oral evidence. Exts. A1 to A4 were marked on his side. Witness for the opposite party was examined as DW1. Heard the counsel on both sides.

4. The following points emerge for settlement :-

1. Whether the opposite party has incurred any loss at the hands of the complainant?

2. What is the amount refundable?

3. Any other reliefs allowance?

5. Point Nos. i) to iii) :- The complainant a young man, enthusiastic of owning a motor car of himself, booked one i 10 Hyundai car with the opposite party on payment of Rs. 5,000/- but he was not fortunate enough then to realize his dream since he could not arrange adequate fund for the purchase. He intimated the fact to the opposite party and demanded refund. But they raised a counter claim for Rs. 2,500/- on the ground that they had shelled out this much of money due to a negligent act on the part of the complaint. They are willing to make over Rs. 1,500/- provided the said amount is accepted by way of full and final settlement. This suggestion was not acceptable to the young man. That is how, he happened to lodge this complaint demanding refund of full amount along with costs of the proceedings.

6. In principle, the opposite party has no objection in refunding part of the amount they have received from the complainant after deducting Rs. 1,000/- towards may be administrative charges. We also find anything wrong in retaining a portion by way of administrative expenses and Rs. 1,000/- seems not an unreasonable amount. The opposite party agrees in principle, the pay back of the balance amount. They would have handed over the amount but, for the occurrence of an untoward incident after the booking was made. According to the opposite party, there was test driving conducted to assess the real quality of the model and in that process, an accident occurred and the vehicle was damaged for the repairs of which the opposite party had incurred Rs. 20,000/-. But after deducting the depreciation, they reduced the claim to Rs. 2,500/-. That is the reason why, the opposite party is in demand of Rs. 2,500/- from the complainant. The demand looks reasonable, if it had in fact occurred. Unfortunately, the opposite party was not able to produce any material evidence to show that the incident had actually taken place. Unfortunately, the opposite party was not able to produce any material evidence to show that the incident had actually occurred. The only documentary evidence, according to DW1 is the drive feed back from signal by the complainant which is in the possession of the opposite party. Strangely enough, the said document was not produced before the Forum. The alleged incident was collision with an autorickshaw which occurred in the Vyttila Junction. Still, there is no whisper of any police case. DW1 has admitted that he has only hearsay knowledge about the incident. Naturally, he was compelled to agree that he has no idea about the nature of damage to the vehicle used for test driving. He was also not in position to disclose the amount paid by way of damages to the autorickshaw driver.

7. All these facts, put together would make the event of accident hardly to be believed. Once the event disappears, the opposite parties' liability to pay Rs. 4,000/- revives, even if they have not conceded in ever so many words that they are willing to pay. But the line of arguments would permit us to infer that the opposite party is willing this much of amount after deducting the amount incurred due to the accident. Since the pleading regarding accident vanishes, they are liable to pay Rs. 4,000/- after deducting Rs. 1,000/- towards administrative charges. They are also liable to pay costs of the proceedings.

8. Before parting with the complaint, we think the complainant deserves a word of appreciation, since we have been indeed delighted by the acumen shown by this intelligent young man in cornering the witness who mounted the box in this case, which was decisive in tilting the balance in his favour.

9. In consequence, the complaint is allowed as follows :

1. The opposite party shall pay Rs. 4,000/- (Rupees Four thousand only) to the complainant.

2. The opposite party shall also pay Rs. 1,000/- towards the costs of the proceedings.

3. The aforesaid amounts will carry interest @ 9% p.a. from the date of payment till realisation, if the said sums are not paid within 30 days from the date of receipt of this order.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 9^th day of February 2012.

Sd/- Paul Gomez, Member. Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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