BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 29th May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.384/2014
(Admitted on 26.9.2014)
Mrs. Jayalaxmi H.V,
W/o Madhwaraya Bhat,
Raja Hamsa
Landlinks Township Road,
Drebail, Mangalore 575008.
……… Complainant
(Advocate for Complainant by Sri. KVK)
VERSUS
- Managing Director,
T.V.S Motors Company,
Jayalakshmi Estates, V Floor,
8, Haddows Road, Chennai.
- The Proprietor/ managing Partner,
Novel Motors, Bejai, Kapikad Road,
Mangalore
- Manager,
Novel Motors, Bejai, Kapikad Road,
Mangalore
…. Opposite Parties
(Opposite Party No.1 Ex parte)
(Advocate for Opposite Party No.2 and 3 by Sr. NBPR)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D
This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims he on 24.10.2013 by paying of Rs.5,000/ as advance for purchase of scooty pep promising to deliver the vehicle on arrival of the stock and complainant approached opposite parties No.2 and 3 and delivery of the vehicle within 3 days failed issued but at the time of deliver we noticed on the vehicle and hence refused with except to vehicle. Though promised to deliver the vehicle it was not deliver complainant and the refused to give address of Opposite Party No.1. Claiming that services rendered by Opposite Party No.2 and 3 seeks the reliefs for deliver the vehicle scooty pep to complainant up to the satisfaction specification and demand and also for Rs.25,000/ as compensation.
2. Opposite Party No.2 and 3 filed version the complainant is guilty of suppressio vary and suggestio falsy. Initially complainant wanted the purple colours scooty pep but after registration and booked the vehicle on 24.10.2013 and asked Opposite Party to proceed with the registration formalities and paid the cash amount on the same day and due to agreed deliver on 25.10.2013. On the same day opposite parties proceeded ahead with registration formalities and got the process completed the registration No.KA.19.EJ.8967. But on the same evening complainant approached Opposite Party seeking to change the colour vehicle from silver purple to blue. As registration formality was also over Opposite Party had tendered their inability to change the vehicle as sought by the complainant. Thereafter the complainant left opposite parties office.
3. Thereafter complainant has twisted the material facts and resorted to issue a notice. The said vehicle has been kept in the show room of opposite parties. Scratches or damages to vehicle contended to deliver by complainant any complainant is not entitled for other reliefs hence seeks dismissal.
4. In support of the above complaint the complainant Mrs. Jayalaxmi H.V, filed affidavit evidence as (CW1) and answered the interrogatories served on her and produced documents got marked at Ex.C1 to C7 as detailed in the annexure here below. On behalf of the opposite party Mr.Vinod Sherlekar, (RW1) Managing Partner, also filed affidavit evidence answered the interrogatories served on him and produced documents got marked at Ex.R1 to R7.
5. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of arguments. We have considered entire case filed on record including evidence tendered by the parties. Our findings on the points are as under are as follows:
Point No. (i) : Affirmative
Point No. (ii) : Negative
Point No. (iii): As per the final order.
REASONS
6. POINTS No. (i): The complainant had paid the value for TVS scooty pep to Opposite Party No.2 and 3 for the purchase and there by relationship as consumer and service provider is established. As to allegations of complainant of failure of Opposite Party No.2 to deliver the vehicle in good condition claimed by the complainant concerned was disputed and liability to deliver damaged vehicle on the date agreed was not delivered to complainant is disputed by opposite parties hence there is dispute between the parties as contemplated under section 2 (1) (e) C.P. Act. Hence we answer point no. 1 in the affirmative.
7. POINTS NO.(ii): The complainant has filed is affidavit evidence to substantiate plea raise in the complainant. On the other hand Opposite Party apart from affidavit evidence produced Ex.R1 B Register extract with registration No.KA.19.EJ.8967 the date of registration 24.10.2013 and name of registered owner as mentioned of the complainant and class of vehicle shown cycle motor cycle TVS motor co. ltd showroom
and year of manufacture 9.2013 and the tax paid on 25.10.2013 and he makers shown TVS scooty pep plus BSIII. Ex.R2 is the ledger account of novel motors there is Opposite Party No.2 as per which on 24.10.2013 cash Dr credit show room of Rs.5,000/ and then on the same day another for Rs.44,492/ is mentioned on 10.12.2013 closing balance shown as debit and credit side Rs.51,247/. Ex.R3 is the motor insurance policy in respect of same vehicle in the name of complainant. Ex.R5 is the vehicle invoice for the sale of the vehicle issued by complainant by Opposite Party No.2 and it is dated 24.10.2013. Ex.R6 is the copy of the letter addressed by Opposite Party company dated 28.10.2013 as not taken delivery vehicle purchased the scooty pep plus purple colour.
8. On the contrary to this on complainant’s claims made of vehicle that was ready for delivery to complainant by Opposite Party No.2 and 3 was damaged condition there is no scrap of evidence rendered by complainant except the affidavit evidence.
9. Ex.C1 is the notice issued by complainant to Opposite Party No.2 and it is dated 29.10.2012 mentions the balance issued by opposite parties show room in the letter dated 24.10.2013 two receipt on 24.10.2013. Ex.C3 is the another copy of notice issued by complainant to Opposite Party No.2 it is dated 18.12.2013 for failure to deliver the scooty of her choice calling upon Opposite Party No.2 deliver the vehicle to complainant. In fact as seen from Ex.C3 except mentioned in the scooty of did not mentioned her choice. Even Ex.C5 copy of legal notice address to Opposite Parties stress points mentioned in the company except showing that Opposite Party no.2 proprietor the delivery vehicle under satisfaction of complainant did not mentioned it was satisfaction needed by complainant.
10. Then it is clear even though as seen from Ex.R2 the ledger extract, Ex.R3 the insurance certificate, Ex.R5 the vehicle invoice and Ex.R1 B extract copy of the RC. The vehicle was ready for delivery to complainant the purchased by the making payment of the amounts but the only conclusion that can by drawn is despite even after a to complainant by Opposite Party as per Ex.R6 did not take delivery of the vehicle sent by speed post as Ex.R7 to complainant did not take delivery of vehicle. In fact even though in the complainant mentions of scratches to the vehicle, and hence he did not take delivery but such ground of scratches is not made in the copy of notice Ex.C1. Hence, that the complainant failed to prove deficiency in service on the part of opposite parties to complainant. As even registration formalities and also insurance certificate was ready on 25.10.2013 itself. The allegation of failed deliver to the satisfaction of complainant of the vehicle mentioned in the complaint and also legal notice issued on behalf complainant doesn’t indicate the level of satisfaction required by complainant. Hence we are of the confirm view complainant failed to prove deficiency in service on the part of opposite parties. Hence points no.2 answer in the negative.
POINTS No. (iii): In the result the following order
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 dictated by President to the Stenographer typed by him, revised and pronounced in the open court on this the 29th May 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mrs. Jayalaxmi H.V,
Documents marked on behalf of the Complainant:
Ex.C1: Original notice dated 29.10.2012 along with postal receipt for having posted the notice.
Ex.C2: Original acknowledgement card for having delivered the postage.
Ex.C3: Original notice dated 18.12.2013 along with postal receipt for having posted the notice.
Ex.C4: Original acknowledgment card for having delivered the postage.
Ex.C5: Original notice dated 10.2.2014 issued by the learned counsel.
Ex.C6: Original acknowledgement card for having delivered the notice dated 10.2.2014 to the opposite parties.
Ex.C7: Postal receipts (3).
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr.Vinod Sherlekar, Managing Partner
Documents marked on behalf of the Opposite Parties:
Ex.R1: The Registration certificate.
Ex.R2: The ledger account of novel motors from 1.3.2013 to 26.1.2014.
Ex.R3: The insurance policy issued by United India Insurance co. ltd.
Ex.R4: The Owners Manual.
Ex.R5: The vehicle invoice dated 24.10.2013.
Ex.R6: The copy of the notice dated 28.10.2013 issued by this opposite parties to the complainant.
Ex.R7: The acknowledgement.
Dated: 29.05.2017 PRESIDENT
