DATE OF FILING : 3.9.2013

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the  3rd day of  November, 2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

          SRI. BENNY. K. MEMBER

 

CC NO.281/2013

Between

Complainant       :    Ajitha M.M.,  

Painumoottil House,    

Nedumkandam,   

Idukki District.

(By Adv:  Joseph Pathalil)

And

Opposite Parties                                        :   1.  The Managing Director,

     St. Antonies Motors India Ltd.,

     111/178, Vadavathoor P.O.,

     Thannickalppady, Kottayam. 

   (By Adv:  Saji Isaac & Jithin Saji Isaac)

2.  The Manager,

     Tata Motors Ltd.,

     1st Floor, Vasudeva Building,

     T.D. Road, Ernakulam. 

      (By Adv:  Sibi Thomas)

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

          This complaint is filed for getting compensation  for  the non-delivery of the vehicle booked by the complainant. The complainant in order to purchase a Motor Car (Tata motors Vista) remitted an amount of Rs.150000/- on 13/03/2012 with the 1st opposite party. This money was transferred from complainant's account in  Union Bank Of India, Nedumkandam Branch to 1st opposite party's account. In order to raise  fund the complainant pledged her gold ornaments for Rs.1,20,000/-. But even after repeated demand the 1st opposite party never delivered the vehicles. In the month of March 2013, again she approached the opposite party and demanded the vehicle or return the money but the opposite party says that he left the dealership of Tata Motors and is unaware of the amount paid. Hence complainant approached the 2nd opposite party and they stated that the 1st opposite party is still a dealer  and vehicle will (cont....2)

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be delivered soon. But nothing happened, so the complainant filed a petition before the S.I of police Kottayam and opposite party promised to deliver the car or return the money. But till date they never returned the money or delivered the car, so that this petition is filed for getting compensation for the unfair trade practice from the part of the opposite parties.

  In this case, Forum passed an order against the opposite parties after declaring them as exparte on 30.12.2013.  Against this, the opposite parties preferred appeal before the Hon’ble State Consumer Disputes Redressal Commission and as per the order the Hon’ble State Consumer Disputes Redressal Commission, in appeal No.467/2015, the opposite parties appeared before the Forum and contested the matter.

          Opposite parties 1 and 2 filed detailed reply version separately.  In their version, 1st opposite party, contended that, they conducted their routine business with the 2nd opposite party, online and the activities are done through a platform called the Dealer Management System, which is maintained by the 2nd opposite party.  The dealer management system keeps  the track of customer booking ID and maintain information regarding booking mode on behalf of customers.  The 1st opposite party receives booking from the customers and remits the booking amount in the account of  2nd opposite party.  The  2nd opposite party then generates the customer booking ID.  When  the vehicle is ready for delivery, the 2nd opposite party intimates the 1st opposite party to remit the balance amount.  The 1st opposite party  further contended that, in this case, the 1st opposite party had transferred the amount received from the complainant to the account of 2nd opposite party as was the usual practice.  The  details of the complainant was also entered into the dealer management system for generating the customer booking ID which is also available through the dealer management system.  Subsequently the 2nd opposite party intimated the 1st opposite party for remitting the balance amount for the vehicle of the complainant, this opposite party had intimated the complainant for remitting the balance amount.  But the complainant did not remit the amount, in the meantime differences of opinion arose between the 1st and 2nd opposite parties, on the reason that 2nd opposite party, without any notice, blocked the access of the 1st opposite party, to the (cont....3)

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Dealer Management System in August 2012.  Hence this opposite party was unable to find out the customer ID or track the details of the booking of the complainant.  Thereafter this opposite party was terminated from the dealership of 2nd opposite party.  Eventhough  this opposite party had contact the 2nd opposite party several times to get the details of the complainant’s booking, the 2nd opposite party who was not in good terms with this opposite party did not responded.  1st opposite party  further stated that they had transferred the booking amount in question to the 2nd opposite party and this amount is in the custody of 2nd opposite party and the liability to repay it is  upon the shoulders of the  2nd opposite party.

          On the other hand the 2nd opposite party filed reply version stating that the complaint has no cause of action that there has not been any deficiency in service on the part of the 2nd opposite party.  the relationship between the opposite parties 2 and 1 is of principal to principal and this opposite party is no way liable or responsible for the alleged transaction.  The opposite party further contended that, though the complainant was assured by the 1st opposite party that the booking amount would be credited to his account, the same has not been done within the knowledge of this opposite party.  Moreover, no point of time had any officer of this opposite party met the complainant as alleged.  This opposite party generally sells vehicles to the dealers such as the 1st opposite party as principal to principal and they in turn affect sale of the vehicles to the  concerned customers.  Hence if the amount stated to have been paid by the complainant to the 1st opposite party had been in turn received by this opposite party, there is no reason why this opposite party would not have effected sale of the vehicle to the 1st opposite party.  Hence under the above circumstances, there has been no deficiency in service or unfair trade practice on the part of this opposite  party, as alleged.  

          The evidence adduced by the opposite party by her oral testimony and marking of Exts.P1 and P2 documents.  Ext.P1 is the statement of account of Union Bank of  India, Nedumkandam Branch from 1.3.2012 to 10.6.2013 and Ext.P2 is the Gold Loan token copy. 

(cont....4)

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          From the opposite side, one Mehar Reynold, Managing Director of 1st opposite party,  Anton John Karthik, Territory Sales Manager of 2nd opposite party, Pradeep R. Chandra, Jyothi J, Chief Manager of SBT Commercial Branch, Kollam were examined as DWs1 to 4 respectively.  Exts.R1 and X1 to X4 marked. Ext.R1 is the compilation of documents.  Ext.X1 is the bank statement of account showing the transfer of amount from A/c No.10246201249 to 99827044308.   Ext.X2 is the letter of arrangement dated 9.9.2010.  Ext.X3 is the statement of account of A/c No.10246201249 issued by 1st opposite party.  Ext.X4 is the details of RTGS transaction from the 1st opposite party's above account.  

          Heard both sides.

          The points that arose for consideration is whether there is any deficiency in service from the part of opposite parties, and if so, for what relief the  complainant is entitled to ?

          The POINT :-   We have heard the learned counsels appearing for all the parties and have also perused the records.

          The learned counsel for the complainant argued that she  remitted an amount of Rs.1,50,000/- to the 1st opposite party for booking a Tata Indica car on 13.3.2012.  The money was transferred from her SB Account, maintained in the Union Bank of India, Nedumkandam Branch as evident in Ext.P2 Bank account statement.  But evenafter repeated demand, 1st opposite party  evaded from the  delivery of the vehicle.  Hence the complainant approached 2nd opposite party, who is the distributor of the Tata cars, and they stated that the 1st opposite party is still their dealer and the vehicle will be delivered soon.  But both the opposite parties failed to perform their part.  Hence the complainant intimated her unwillingness and she cancelled her booking with the 1st opposite party and demanded the booking amount back.  For getting the car, she waited more than on year.  Hence she is  demanding the booking amount along with interest, cost and compensation from opposite parties alleging deficiency in service and unfair trade practice.

 

(cont....5)

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          The learned counsel for the 1st opposite party vehemently argued that they have transferred the booking amount received from the complainant, to the account of 2nd opposite party as was the usual practice.  The booking, payment and billing is done through the dealer management system (DMS) maintained by the 2nd opposite party and booking for the complainant was also done through the above DMS system.  It is admitted by the DW2, the territory sales manager of 2nd opposite party also.  The counsel further argued that the details of customers are entered in the booking form online by the 1st opposite party for the amount transferred to the 2nd opposite party in bulk.  The amount is transferred to the 2nd opposite party by the 1st opposite party through the KLM CC account of the 1st opposite party from which amount could be withdrawn only by the 2nd opposite party and is evident from page 5, clause 10 of the inventory funding of Ext.X2.  The DW2 further deposed that the amount is not deducted on customer booking, the transaction is not based on a single, but in large quantity.  He further deposed that the dealer management system will be invalidated when the dealership is closed.

          The learned counsel further argued that an amount of Rs.32 lakhs has been transferred on 14.3.2012 and Rs.9 lakhs has been transferred on 15.3.2012 to the 2nd opposite party. It is evident from Exts.X1 and X3.  It has seen from page No.120 of  the Ext.R1, the 2nd opposite party has withdrawn Rs.1,75,05,858/- on 16.3.2012 from the account of 1st opposite party.  Ext.X4 shows that Rs.32 lakhs has been transferred to the beneficiary account No.3216000 300 1470 from account No.10246201249 on 14.3.2012 and 15.3.2012.  It can be seen from Ext.R1 that beneficiary account No.3216000 300 1470 is that of Tata Capital and that the said amount has been transferred to the 2nd opposite party, Tata Motors.  Moreover, page No.11, clause 2 of Ext.R1 shows that the amount which is paid to Tata Capital could be given only to Tata Motors.  The learned counsel further argued that as per the deposition of DW2, the DMS will be invalidated when dealership is closed, hence the 1st opposite party is not able to access the dealer management system.  Hence the 1st opposite party filed a petition before the Forum to direct the 2nd opposite party

(cont....6)

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to produce the relevant records from DMS maintained by them, but the 2nd opposite party failed to produce the same.  Hence adverse inference can be drawn against 2nd opposite party.

          The counsel further stated that as per the deposition of DW2, 1st opposite party is the agent of 2nd opposite party and that the 1st opposite party is the channel between the 2nd opposite party and the customer.  The 2nd opposite party has not denied that the 1st  opposite party has made the booking of the complainant and hence there is a clear admission that the 1st opposite party had made the booking of the complainant.

          On the other hand, the learned counsel for the 2nd  opposite party argued that the relationship between the 2nd and 1st opposite parties being of principal to principal, there arises no necessity for any officer of the 2nd opposite party meeting with any individual customers.  The counsel further stated that the 2nd opposite party generally sells vehicles to the dealers such as the 1st opposite party and they in turn effect sales of the vehicles to the concerned customers.  If the amount stated to have been paid by the complainant to the 1st opposite party, had been in turn received by the 2nd opposite party, there is no reason why the 2nd opposite party would not have effected  the sale to the 1st opposite party.  The  counsel further stated that the 2nd opposite party has filed an affidavit against the petition filed by the 1st opposite party for the production of certain documents.  In that affidavit 2nd opposite party specifically sworned that the officials of Tata Motors Ltd. had  checked all the accounts and could not find any transaction of the specified amount made by the dealer.  It had also been stated that there also not been any transaction from the dealer end for the specified customer namely the complainant.  It had further been stated that Tata Motors maintaining different accounts assigned to dealer for different kind of transactions and that a duty is cast on the dealer to specify the date and time they made the transaction and to which account number.  The counsel further argued that the reliance sought to be made by the 1st opposite party on the statement of account produced by Tata Capital Financial Service Ltd., in an

  (cont....7)

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arbitration proceedings to state that personal of the said statement of account would disclose certain amount transferred by them to the 2nd opposite party is totally misplaced.  It could be seen from the said statement of account that there has not been any transaction from the dealer’s end for the specified customers, nor could it be seen that there has been any transaction of the specified amount made by the dealer.  Hence merely stating that they allegedly transferred to the account of the 2nd opposite party at different point of time would take in the amount remitted by the complainant cannot be accepted.

          On going through the evidence on record, the Forum found that it is an admitted fact that the complainant transferred an amount of Rs.1,50,000/-  to the 1st opposite party’s bank account on 13.3.2012 for  booking  a Tata Indica car.  She waited for the delivery of the vehicle for a long period of nearly one year.  At last she cancelled the booking of the vehicle and demanded the booking amount back.  She approached both the opposite parties several times, at last as a last resort, she approached the Forum.

          By admitting the receipt of Rs.1,50,000/-, 1st opposite party stated that they transferred this amount along with some other amount to the 2nd opposite party as a usual practice on the next day, that is, 14.3.2012 itself.  Thereafter also they placed bulk order to the 2nd opposite party and transferred crores of rupees to the 2nd opposite party’s account.  The version of the learned counsel that at the time of transferring the booking amount  to the 2nd opposite party, the distributor of Tata vehicles, the details of the customer were also entered in the Dealer Management  System.   In this case, the details of the complainant also entered in the DMS for generating the customer booking ID which is also available through the DMS.  According to the 1st opposite party, they conducted their routine business with the 2nd opposite party online and the activities are done through a platform called Dealer Management System.  Then the 2nd opposite party generates the customer ID, when the vehicle is ready, the 2nd opposite party intimated the 1st opposite party to remit the balance amount.  The version of the 1st opposite party can be admissible because it may be usual practice and the Exhibits such as Ext.X1, X3 and X4 statements of accounts 

(cont....8)

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show that the 1st opposite party placed bulk order to 2nd opposite party and transferred huge amount in the account of  2nd opposite party, for purchasing the Tata vehicles.  Being the authorised dealer of the 2nd opposite party, the transaction between them is specifically for purchasing of the vehicles.  This matter is  not denied by the 2nd opposite party.  None  of the documents produced by the 1st opposite party has not challenged by the 2nd opposite party also.

          At this juncture, it is very pertinent to go through the deposition of DW2, Anton John Karthik, the Territory Sales Manager of 2nd opposite party.  In  the box, he specifically deposed that (page 2), on generation of the centre ID, 2nd opposite party deducted the entire amount from the dealer's account (Q)?  No (A).  It is not based on customer booking ………………….. and the transaction is not based on a single, but in large quantity, because the transaction is a bulk quantity.  This version of the DW2 fortifies the contention of 1st opposite party, that the booking of the vehicle is in a large quantity and not for a single one.

          The contention of the 1st opposite party that immediately after placing the order in the month of March 2017, to the 2nd opposite party, there arose a difference of opinion between the opposite parties 1 and 2 and the relation between them is strained and immediately the 2nd opposite party blocked the access of the 1st opposite party to the Dealer Management System and thereafter 2nd opposite party cancelled the dealership of 1st opposite party.  Hence  the 1st opposite party was unable to find out the customer booking ID of the complainant which was generated by the 2nd opposite party has not to track out the details of the booking of the complainant is not denied by the 2nd opposite party.  Moreover,  2nd opposite party has not produced any evidence to counter this contention of the complainant.  Further more, DW2, the authorised person of 2nd opposite party categorically stated in the box that “when a dealership is closed, the user ID and password accessing DMS is invalidated by the 2nd opposite party” (page 3).  To substantiating the version of 1st opposite party, the 1st opposite party filed a petition before the Forum for directing the 

       (cont....9)

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2nd opposite party to produce the Dealer management system records before the Forum.  Instead of producing the records, 2nd opposite party filed an affidavit in reply to this petition stating that the officials of Tata Motors Ltd. had checked all its accounts and could not find any transaction of the specified amount made by the dealer.  In this matter, the Forum is of a considered view that, this version of the opposite party cannot be admissible because 2nd opposite party is the authority to handle the DMS and they can easily available the transaction details of a particular period with their one of the customers and it is very easy to produce the transaction details for a particular period that kept in the DMS before the Forum so as to establish that there has been such a transaction as alleged by the 1st opposite party.  Here  2nd opposite party denied the demand of the 1st opposite party by simply filing an affidavit.  But without sufficient materials to prove the contention in the affidavit, Forum is not in a position to consider it and is not sustainable.  

          On going through the Exts.X1, X3 and X4, the Forum found that the 1st opposite party transferred an amount of Rs.32 lakhs and Rs.9 lakhs to the account of 2nd opposite party and also it can be seen from page No.120 of the Ext.R1, the 2nd opposite party has withdrawn an amount of Rs.1,75,05,878/- on 16.3.2012 from the account of 1st opposite party.  being a dealer of 2nd opposite party, no doubt of this transaction for the purchase of Tata vehicles from 2nd opposite party.  Moreover,  2nd opposite party has not a case that this amount is transferred or received from the 1st opposite party was for some other purpose and it is very surprising that these documents are not challenged by the 2nd opposite party.  Under  this circumstances, the Forum is of a considered view that, the bulk order placed by the 1st opposite party to the  2nd opposite party after 13.3.2012 includes the advance booking of the complainant herein.  No  contrary evidence is produced by the 2nd  opposite party shaking the contention of the 1st opposite party.  Further it is also taken into consideration that the relation between the 1st and 2nd opposite parties is strained immediately after the transaction of the complainant and it resulted in the cancellation of the dealership of 1st opposite party.

      (cont....10)

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          On the basis of the above discussion, the Forum is of a considered view that the amount which  was transferred by the complainant to the 1st opposite party is transferred by the 1st opposite party to the account of 2nd opposite party, by way of purchase order along with other customers’ booking amount in bulk and the delay in delivery was caused due to the adamant attitude of the 2nd opposite party and 1st opposite has not at all liable for it and the act of the 2nd opposite party is a clear unfair trade practice and 2nd opposite party is bound to compensate the complainant.  Hence  the points that discussed above are found in favour of the complainant and 1st opposite party.  

          Hence the complaint allowed.  2nd opposite party is directed to repay Rs.1,50,000/- to the complainant along with interest at the rate of 12% per annum from 14.3.2012 till the payment, within 30 days of receipt of a copy of this order.  The 2nd opposite party is further directed to pay Rs.25000/- as compensation and Rs.5000/- as litigation cost to the complainant within the period stated above, failing which the whole amounts stated above shall carry 12% interest per annum from the date of default, till the realisation.

          Pronounced in the Open Forum on this the 3rd day of November, 2018

     

Sd/-

              SRI. S. GOPAKUMAR, PRESIDENT

 

 

Sd/-

          SRI. BENNY. K., MEMBER

 

 

 

 

 

 

 

 

 

      (cont....2)

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APPENDIX

Depositions :

On the side of the Complainant :

PW1               -  Ajitha M.M.

On the side of the Opposite Party :

DW1              -  Mehar Reynold

DW2              -  Anton John Karthik. J.

DW3              -  Pradeep R. Chandran.

DW4              -  Jyothi. J.

Exhibits :

On the side of the Complainant :

Ext.P1         -  The statement of account from Union Bank of India, Nedumkandam.

Ext.P2         -  The receipt for the gold loan.

On the side of the Opposite Party :

Ext.R1         - compilation of documents.  

Ext.X1         - bank statement of account showing the transfer of amount from 

  A/c No.10246201249 to 99827044308.   

Ext.X2        - letter of arrangement dated 9.9.2010.  

Ext.X3        - statement of account of A/c No.10246201249 issued by 

1st opposite party.  

Ext.X4        - details of RTGS transaction from the 1st opposite party's above account.

 

 

 

         Forwarded by Order,

 

 

 

            SENIOR SUPERINTENDENT