<br /> By SRI. K. VIJAYAKUMARAN ACHARY, PRESIDENT<br /> <br /> This complaint is filed by complainant for realization of Rs.20,860/- towards compensation and cost. <br /> The averments in the complaint and briefly summarized as follows:<br /> <br /> The complainant who is a Government Servant booked a Hero Honda C.D. Dawn Motor Cycle with the Venad Automobiles, Vendermukku, Kollam. One Sri. Wilson Thomas agent of Centurion Bank , Thiruvananthapuram which was functioning in the same show room of the opp.party has agreed to secure a loan to the complainant for the purchase of the motor cycle. Accordingly in the presence of the said Wilson Thomas a motor cycle bearingNo.36308 was selected by the complainant and the same was booked on 14.7.2004by paying Rs.500/-. On 25.8.2004 as required by the said Wilson Thomas ,he has produced 36 cheque leaves Identity and address proof photo graphs of the complainant and surety etc. He has also produced a National Savings Certificate purchased from the Kilikolloor Post Office. Accordingly the Centurion Bank sanctioned a loan of Rs.28,500/- to the complainant. The price of the motor cycle was Rs.30,900/- and the balance amount of Rs.2400/- after deducting the advance was remitted in the office of the opp.party. In addition to that a sum of Rs.3873/- towards the price of the crash guard, delivery charge, Insurance fees, Registration fee and road tax etc was also remitted by the complainant. The motor cycle booked by the complainant on 14.7.2004 was sold to another customer and the opp.party told the complainant to select another motor cycle and book the same. Accordingly he selected another motor cycle bearing frame No.04F27F45668 he has also signed the necessary documents to be produced before the Registering Authority On 26.8.2004 has informed by the opp.party the complainant reached the show room and he was asked to wait there. About 12.24p.m. he was informed that the second motor cycle selected by him was also sold to another customer and therefore to select another motor cycle. Though the complainant waited there till 7.30 p.m. the opp.party did not deliver the vehicle to him. Though he demanded the amount remitted by him that was also not given to him. Thus he was harassed and humiliated by the opp.party. By about 7.30 p.m. he left the show room and cancelled the booking as the opp.party have harassed him and deceived him. Thereafter, on several occasions the complainant contacted the opp.party in person and over telephone for the amount remitted by him . But the same was not refunded and hence the complaint.<br /> <br /> <br /> <br /> The opp.party filed a version contending, inter alia, that the complaint is not maintainable. The complainant is not a consumer within the purview of the Consumer Protection Act and the complaint is not in relation to any consumer dispute. It is true that on 14.7.2004 the complainant remitted Rs.500/- in the show room of the opp.party for booking a Hero Honda Motor Cycle. There is no scheme for the opp.party as alleged by the complainant to book a the particular motor cycle and keep it aside by remitting Rs.500/- only. Such a scheme was not there at the time of booking by the complainant or any time thereafter. There is no connection to the opp.party in the transaction between Wilson Thomas and the complainant . The opp.party has not received any document either from the complainant or from the said Wilson Tomas. The opp.party is bound to deliver the motor cycle only if the entire amount is paid in cash or on production of a DD for the loan amount. The complainant on 24.8.2004 approached the opp.party and remitted Rs.1900/- towards the balance of the price of the motor cycle after deducting the loan amount of Rs.28,500/- alleged to have been sanctioned to him by the Centurion Bank. He has also remitted Rs.2893/- on 26.8.2004. But the DD of Rs.28500/- was not produced before the opp.party on that day. No such intimation was also received from the Centurion Bank. Without receiving the entire payment the opp.party is enable to deliver the motor cycle to the complainant. The burden to arrange payment of the entire loan amount to the opp.party is on the complainant which he failed to distance. The complainant after remitting Rs.6273/- demanded a Camera which was being offered as gift along with the motor cycle. The camera can be given only on completion of sala of the motor cycle and this fact was brought to the notice of the complainant who there upon got infuriated and left and thereafter a telegraph was sent by the complainant to the opp.party canceling the booking . Since the complainant informed the opp.party that he does not require the motor cycle, the opp.party issued an account payee cheque which was not received by the complainant. The opp.party is ready to refund the above amount, even now. The complainant is filed with a view to harass the opp.party and therefore the complaint may be dismissed with compensatory cost to the opp.party<br /> <br /> Points that would arise for consideration are:<br /> <br /> [1] Whether there is deficiency in service on the part of the opp.parties<br /> [ii] Reliefs and costs.<br /> <br /> For the complainant PW.1 is examined and Ext. P1 to P10are marked.<br /> <br /> No evidence adduced by the opp.parties.<br /> <br /> Points [I] & [2]<br /> <br /> The contention of the complainant is that the opp.party with a view to harass and humiliate him and to take a Camera given as a gift with each a motor cycle refused to sell the motor cycle booked by him. According to him though the Demand Draft for Rs.28,500/- was received by the opp.party on 26.8.04 , he was asked to wait unnecessarily in the show room till 7.30 p.m. and there after sent him back saying that the draft for Rs.28,500/- was not received from the Centurion Bank.<br /> <br /> The opp.party has admitted that they have received Rs.500/- on 14.7.2006 as booking charges from the complainant for which they issued Ext.P1. They have also admitted that the expenses and balance sale consideration of Rs.6273/- was also received by them on 24.8.2004 from the complainant. But their definite contention is that the DD for Rs.28,500/- that is, the loan amount has not been received by them on 26.8.04 when the booking was cancelled by the complainant or any time thereafter from the Centurion Bank. Ext. P4 is a letter issued by the Centurion Bank to the opp.party. It is dated 26.8.2004. In fact, the date in Ext. P4 is seen corrected as 26/8 from 28/8. Any way Ext.P4 shows that the opp.party has not forwarded any draft for Rs.28,500/- along with Ext.P4 but only informed the opp.party that they are extending finance of Rs.28,500/- to the complainant and that the payment will be effected within a couple of days. From Ext.P4 it is clear that the DD for Rs.28,500/- was not received by the opp.party on 26.8.2004as contended by the complainant. The contention of the opp.party is that they can deliver the vehicle only if the entire payment is received and in this case as per Ext.P4 the Centurion Bank sought for a couple of days for effecting payments. It cannot be believed by any stretch of imagination that the complainant was not aware of the contents of Ext.P4.. on the mere production of Ext P4 the complainant cannot expect delivery of the motor cycle is the duty of the complainant to produce the DD or arrange payment of balance Rs.28,500/- before the vehicle is delivered to him. The opp.party also cannot be expected to keep the vehicle booked by the complainant indefinitely anticipating the draft from the financier when there are other buyers ready with money.<br /> <br /> The Ext.P6 shows that the complainant has cancelled the booking on 26.8.2004 itself on the ground that he has been betrayed by the opp.party and caused troubles to him ignoring his satisfaction. When it is obvious from Ext.P4 that the DD for the loan amount not been forwarded to the opp.party with Ext. P4 on 26.8.2004 the complainant cannot blame the opp.party for not effecting delivery of the vehicle on 26.8.04. Even assuming that ext.P4 was, in fact, handed over to the opp.party either by the complainant or by the Centurion Bank on 26.8.2004 as the payment was not effected on 26.8.2004 the opp.party cannot be expected to deliver the motor cycle to the complainant on that day. The complainant failed to establish that production of Ext.P4 is as good as producing the draft for Rs.28,500/- . In the absence of evidence to that effect it cannot be said that there is any deficiency of service on the part of the opp.party.<br /> <br /> It is argued by the learned counsel of the opp.party that the Centurion bank was a necessary party to the proceedings but the bank was neither made a party to the complaint nor anybody from the bank examined to prove that the DD was, in fact, to the opp.party handed over on 26.8.2004 or that production of Ext. P4 is sufficient for effecting delivery of Motor cycle. The complainant has no satisfactory explanation as to why the bank was not impleaded or the said Wilson Thomas was not examined to prove his contentions. The most competent person to swear regarding the aspects of finance is the said Wilson Thomas and his non examination is fatal to the case. A careful perusal of the entire records produced in this case would show that the non delivery of the motor cycle to the complainant was not due to any latches on the part of the opp.party but for want of receipt of the balance of the sale consideration which the complainant has agreed to produce by way of loan from the Centurion Bank. The opp.party has stated in his version that his is ready to pay the amount collected from the complainant and infact that they have offered the said amount to the complainant by way of accounts payee cheque but the complainant refused accept the same. The definite contentions of the complaint is that the opp.party did not pay the amount collected from him despite several demands made by him in person and over phone. The opp.party has not produced any document to show that they have issued an account payee cheque of the Centurion Bank to the complainant which was refused by the complainant. In the absence any material it is to be presumed that the complainant’s case that the amount was not refunded by the opp.party seems to be probable. Therefore, the complainant is entitled to get above some with interest from the opp.party. He is not entitled to any compensation in the light of our finding that the non delivery of the vehicle was not due to any latches on the side of the opp.party. Point found accordingly.<br /> <br /> <br /> <br /> <br /> In the result the complaint is allowed in part directing the opp.party to pay a some of Rs.6273/- with interest at the rate of 12% per annum from 24.8.04 till payment. The order is to be complied with within one month from the date of receipt of this order.<br /> <br /> <br /> Dated this the 2nd day of November, 2007. <br /> <br /> <br /> K. Vijayakumaran Achary :<br /> Aadv. Ravi Susha :<br /> <br /> <br /> <br /> In d e x<br /> <br /> List of witnesses for the complainant<br /> PW.1. – P. Rajesh<br /> <br /> List of documents for the complainant<br /> P1. – Advance amount booking receipt<br /> P2. – Application form<br /> P3. – List of amount<br /> P4. – Letter by the Centurion Bank to Venad Auto Mobiles<br /> P5. – Receipt dt. 24.8.04<br /> P6. – Telegram message<br /> P7. –Letter dated 30.8.04<br /> P8. – DD form<br /> P9. – Returned cheque leaves<br /> P10. – Paper advertisement<br /> <br />