O R D E R<br /> Sri. Santhosh Kesavanath P., President.<br /> <br /> The case of the petitioner's is as follows:<br /> The petitioner is an old lady who purchased a “Scorpio” Dx Vehicle from the first opposite party who is the dealer of the said vehicle. The second opposite party is the manufacturer of the vehicle. According to the petitioner she was induced to approach the first opposite party relying on an advertisement given by the first opposite party in dailies repeatedly to the effect that the purchaser of the said vehicle will be benefited to the tune of Rs. 42,000/- to 60,000/- depending on the model of the vehicle. The petitioner on 16..12..2005 booked the said vehicle upon remittance of Rs. 5000/-. On<br /> <br /> -2-<br /> 27..12..2005 first opposite party offered the delivery of the vehicle at a price of Rs. 7,60,613/- within 4 days and directed the petitioner to remitt the balance of the vehicle value after deducting the advance amount and Rs. 17699/- against the customer benefit scheme. It is against offer of Rs. 42,000/- But the first opposite party was reluctant to honour the offer and directed the petitioner to remit the above amount. The petitioner states that he remitted an amount of Rs.5,37,914/- under protest on 28..12..2005 and the remaining amount of Rs. 2,00,000/- was paid directly by ICICI Bank from the complainant's loan account to the first opposite party. Later the complainant insisted to the remit the insurance premium amounting Rs. 27544/- to the United India Insurance Company Ltd at their Kottayam branch Office. The petitioner states that the first opposite party had not delivered the vehicle within 4 days as promised and insisted the petitioner to remit an additional amount of Rs. 5,850/- as price escalation and petitioner states that he was forced to remit Rs. 6184/- as EMI to the financier on 31..1..2006 prior to taking of the vehicle. The vehicle was delivered to the petitioner on 2..2..2006. The petitioner states that due to the unfair trade practice on the part of the opposite parties the petitioner forced to sell her old car on 29..12..2005 and she had to depend on taxi for personal use . Thus the petitioner had spend Rs. 25,000/- as taxi hire charges. According to the petitioner she is entitled to a sum of Rs. 24,301/- as the balance of customer benefits scheme along with the amount of Rs. 5,850/- remitted by the petitioner as against price escalation and he claims 12% interest for the total amount for the delay of 33 days in delivery in the vehicle and Rs. 25,000/- as compensation thus the petitioner is total claims an amount of Rs. 88903 as loss sustained to him. So, the petitioner prays<br /> <br /> -3-<br /> for a direction to the opposite party to pay the sum of Rs. 88,903 with 12% interest from the date of petition till realisation along with 12% interest and cost of the proceedings.<br /> Both opposite parties entered appearance and filed version , first opposite party, the dealer, filed version contenting that the petition is not maintainable. According to them there is no deficiency in service and unfair trade practice on their part. The first opposite party contented that advertisement was issued by the second opposite party, the manufacturer, in dailies regarding the benefits subject to the terms and conditions their in. The said advertisement contained a specific condition that the said offer was valid only till 24th December, 2005. As per the terms and conditions of the offer, the same was applicable only on the booking of the above vehicle and paying the entire value of the vehicle before 25..12..2005. The petitioner admittedly paid the full value of the vehicle only after 25..12..2005. So, she cannot claim the said offer applicable to her. Further more, the first opposite party duly informed the petitioner that the allocation of the vehicle by the first opposite party to the petitioner will depend on the supply of the vehicle by the 2nd opposite party to the first opposite party and the petitioner accepted the said conditions and signed in the order booking form. So he is not entitled to any of the reliefs claimed against the first opposite party. The first opposite party contented that the petitioner came forward and purchased the vehicle on her own violation and not on the basis of inducement by the first opposite party. The first opposite party denied the delivery of the vehicle at a price of Rs. 7,60.613/- within 4 days as alleged and they contented the delivery of the vehicle by the dealer to the petitioner will depend upon the supply of vehicle by the manufacturer and also they informed the petitioner that price, <br /> <br /> -4-<br /> taxes duties etc. of the vehicle will be as applicable on date of delivery of the vehicle to the petitioner. Further, in the case of the petitioners she was not eligible to the offer of Rs. 42,000/- because the full vehicle value was paid by the petitioner after 25..12..2005 but as a matter of good will the petitioner had given discount of Rs. 17699/- the allegation of the petitioner that the petitioner was insisted by the opposite party to pay the insurance premium amounting Rs. 27544/- to the United India Insurance Company is denied. The petitioner took insurance from the United India Insurance Company on her on accord. The allelgation of the petitioner with regard to selling of a car and the expenses incurred by the petitioner for depending on taxi are denied by the first opposite party so the first opposite party pray for a dismissal of the petition with their costs.<br /> The second opposite party entered appearance and filed version contenting that the allegation of the petitioner is false and there is not privity of contract between the petitioner and second opposite party. They admitted that they gave the advertisement in the dailies. According to them the said offer was made by incorporating/pooling / various components namely manufacturer share, dealers margin and share from the financers commission. Here in the present case the share offered from the second opposite party's side and first opposite party's side was passed on to the customer, Even though she was not eligile to get the benefit of the scheme, due to the known remittance of the entire value of the vehicle before 25..12..2005. Further it is known to the second opposite party that the petitioner directly negotiated the financer and got maximum benefit from them and there is no scope for any benefits Further more applicability of the benefits is in certain conditions and in the present case the deduction envisaged from the financers<br /> <br /> -5-<br /> commission was already obtained by the petitioner and since the petitioner has not availed maximum percentage of loan to make her entitled to the benefit provided under the scheme. According to the second opposite party statement regarding the booking of the vehicle, delivery of the vehicle, remittance of the insurance amount etc. are not in any way connected within the knowledge of second opposite party. According to them there is no deficiency in service or unfair trade practice, so the second opposite party prays for a dismissal of the petition with their costs.<br /> Points for determinations are:<br /> i) Whether there is deficiency in service and unfair trade practice on the part<br /> of the opposite party?<br /> ii) Reliefs and costs.<br /> Evidence in this case consists of affidavit filed by both parties and their witness and Ext. A1 to A9 documents on the side of the petitioner and Ext. B1 to B9 documents on the first opposite party and Ext. B10 on the side of the second opposite party.<br /> Point No. 1<br /> According to the petitioner he had not given the full benefits as advertised by the opposite parties. The petitioner produced Mathrubhumi daily dated 19..12..2005 and the petitioner has not marked said documents so, the second opposite party marked it as Ext. B10.. In Ext. B10 it is stated that the offer applicable only through dealers on selected finance scheme for at a minimum of 90% finance and the loan is at discretion of ICICI Bank. Further more it is stated that the offer ends on 25th December 2005 or till stock last . . Here the second opposite party contented that the said offer was made by<br /> <br /> -6-<br /> incorporating/pooling various components namely manufacturers share dealers margin and share from financers commission and they further contented that deduction envisaged from finance commission was already obtained by the petitioner so they are not entitled for a full deduction of the benefits. The opposite party produced the receipt dtd: 28..12..2005 for an amount of Rs. 5,37,914/- and said document is marked as Ext. B3. From Ext. B3 it can be seen that the amount is paid after 25..12..2005. Opposite party also produced a delivery order issued by the ICICI Bank the said document is marked as Ext. B5. From Ext. B5 it can inferred that Rs. 2,00,000/- was advanced only on 28..12..2005. The receipt for payment of the amount by the ICICI Bank on 9..1..2006 is produced by the 1st opposite party and the said document is marked as Ext. B6. From Ext. B6 it can be seen that the amount is paid only on 9..1..2006. So, we are of the opinion that the argument of the opposite party that the petitioner remitted the amount after the time prescribed is true. It is also interesting to note that even after the receipt of the version of the second opposite party the petitioner had not taken any steps for impleading the financer in the party array. So, we are of the opinion that the contention of the opposite party with regard to the deduction in components of the dealer manufacturer and financer is true. From Ext. B6 it can be seen that only an amount of Rs. 1,93,816/- was advanced by the ICICI Bank. In Ext. B10 it is categorically stated that this offer is applicable for scheme for persons who avail minimum of 90% finance at the sole discretion of ICICI Bank. From Ext. B6 it can be seen that the petitioner had not availed 90% finance from ICICI Bank. So on that ground also the petitioner is not entitled to the deduction as claimed by her. The petitioner has a case that there<br /> <br /> -7-<br /> was in ordinate delayin the delivery of the vehicle but the petitioner has not produced any evidence to prove that there was purposeful delay on the side of the opposite party in supplying vehicle. The Hon'ble National Commission in a reported case in 2008 CPJ, page 45 Muthu Swami Vs. P R J Enterprises decided that the delivery of vehicle on payment of prevailing price can only be followed because the vehicle shall be served to the first come first serve. Further the petitioner produced the order booking form, the said documents is marked as Ext. A1. In Ext. A1 the details of amounts to be paid is shown. In Ext. A1 it is stated that an amount of Rs. 50,000/- shall be made as advanced payment along with the order form. Here from Ext. B3 it can be seen that even advance amount of Rs. 50,000/- was not paid before 25..12..2005. In Ext. A1 it is also stated that the price of the Scorpio will differ depending on the delivery of the vehicle and price payable will be applicable on the date of delivery of Scorpio vehicle. So the contention of the petitioner that the petitioner was forced to pay the escalated price is also not sustainable. So considering all facts discussed above . We are of the opinion that no deficiency in service or unfair trade practice can be attributed against the opposite parties. Point No. 1 is found accordingly.<br /> Point No. 2<br /> In view of finding in point No. 1. Petition is to be dismissed. Considering the facts and circumstances of the case. No cost and compensation is ordered.<br /> Dictated by me transcribed by the Confidential Assistant, corrected by me and<br /> <br /> <br /> <br /> -8-<br /> pronounced in the Open Forum on this the 29th day of August, 2008.