By Sri.P.K.Sasi, President
The case of the complainant is that she has purchased a Toyota Innova car from the opposite party as per the quotation dtd. 03/01/13. The vehicle cost was shown in the quotation as Rs.11,86,874/-. On 04/03/13 the complainant took delivery of the vehicle with a proforma invoice issued by the opposite party in which the cost of the vehicle was shown as Rs.12,22,808/-. It was told that Central Excise Duty has increased that is the reason for difference of cost. According to the complainant the opposite party has collected an excess amount of Rs.35,934/-. Based on the proforma invoice the complainant happened to remit an excess amount of Rs.3,600/- towards tax. Moreover the opposite parties collected Rs.3,400/- as logistics and facilitation charges. All these charges were collected by the opposite party illegally. The act of the opposite party collecting excess amount than the quotation and logistics and facilitation charges amounts to deficiency in service as well as unfair trade practice on their part. Hence a lawyer notice was issued on 11/07/13. Eventhen, no relief received hence this complaint is filed.
2) Being noticed on the complaint, the opposite party entered appearance through counsel and filed detailed version. The opposite party in their version stated that the complainant had purchased a vehicle on 06/03/13. There was a hike in the Central Excise Duty with effect from 01/03/13. Therefore an excess amount of Rs.35,934/- was collected from the complainant. Subsequently, when it was noticed by the manufacturer of the vehicle they invoiced the vehicle on 20/02/13 and the hike in Central Excise Duty is made not applicable for the vehicle purchased by the complainant. Accordingly, it was informed to the complainant and asked her to come and collect the excess amount happened to be collected. Instead of collecting amount she sent a lawyer notice dtd.11/07/13.
3) In the lawyer notice she claimed Rs.35,934/- with 12% interest on it and Rs.10,000/- by way of compensation. The opposite party sent reply to the lawyer notice and a demand draft for Rs.41,131/- of Federal Bank, Kalamassery branch in favour of the complainant dtd. 07/09/13 was also sent, to the lawyer who issued a lawyer notice, along with the reply. The amount shown in the DD includes Rs.35,934/- with Rs.2,197/- as interest at the rate of 12% for 180 days and Rs.3,000/- towards compensation and cost.
4) The opposite party further submitted that the other claims raised by the complainant in this complaint regarding excess payment of Additional tax Rs.3,600/- and Rs.3,400/- as logistic and facilitation charges were not claimed in the lawyer notice issued by the complainant. According to the opposite party they are not liable to pay any such amount to the complainant. The opposite party further submitted that they have not committed any sort of deficiency in service or unfair trade practice towards the complainant and prayed for the dismissal of the complaint with cost.
5) Then the case was posted for evidence and the points for consideration was that
1) whether there was any deficiency in service or unfair
trade practice happened on the part of opposite
party ?
2) If so what cost and relief ?
6) From the side of complainant she has appeared before the Forum and submitted proof affidavit in which she has affirmed and explained all the averments stated in the complaint in detail. She also produced 4 documents which are marked as Ext. P1 to P4. Ext. P1 is a copy of proforma invoice dtd. 03/01/13; Ext. P2 copy of proforma invoice dtd. 04/03/13; Ext. P3 copy of lawyer notice with postal receipt and Ext. P4 series (3 Nos.) reply notice with postal cover and DD for Rs.41,131/-. From the side of opposite party the Deputy Manager, who is the authorized person, appeared before the Forum and submitted counter proof affidavit in which he has affirmed and narrated all the contentions raised in their version in detail. He also produced 9 documents which are marked as Ext. R1 to R9. Ext. R1 is the copy of DD dtd. 07/09/13; Ext. R2 is the copy of reply notice dtd. 12/09/13; Ext. R3 is the postal receipt; Ext. R4 is the A/D card dtd. 14/09/13; Ext. R5 is the copy of reply notice dtd. 17/10/13; Ext. R6 is the postal receipt; Ext. R7 is the A/D card; Ext. R8 is the computer print-out of revised excise duty and its connected provisions and Ext. R9 is the authorization letter. Both sides filed detailed argument notes and we heard in detail also. The complainant is examined as PW 1 and the authorized person of the opposite party is examined as RW 1. Both witnesses were thoroughly cross examined by counsels for other side.
7) According to the complainant, the opposite party has collected excess amount in vehicle cost from the complainant and also collected logistic and facilitation charges illegally by the opposite party. Whereas the opposite party contented that excess amount collected, as Central Excise Duty was avoided by the manufacturer by preparing an invoice prior to the date of sale and that was sent to the complainant by means of DD along with interest and reasonable cost. They also contended that they have not collected any illegal amount from the complainant.
8) We have gone through the contents of affidavits filed and also perused the documents produced from both sides. The learned counsel for the complainant argued that the opposite party sent a DD in his name along with reply notice for which they have no right to do so. By sending a DD of the complainant in his name it created unnecessary agony to the counsel as well as his client. Whereas the learned counsel for the opposite party vehemently argued that before sending a lawyer notice by the complainant it was informed by the opposite party that some excess amount happened to be collected as Central Excise Duty is ready to return back with reasonable interest and asked her to come and collect. Instead of that she issued a lawyer notice so being prudent action the opposite party calculated 12% interest for 180 days for the excess amount happened to be collected from the complainant and an amount of Rs.3,000/- as compensation and cost. Since a lawyer notice was issued by the complainant, and DD is taken in the name of the complainant for an amount of Rs.41,131/- dtd. 07/09/13 and that was sent to the learned counsel who issued notice for and on behalf of the complainant. There is no illegality or irregularity or any wrongful act committed by the opposite parties. They only intended to settle the dispute by admitting their own fault. But the complainant neither encashed the DD nor sent it back to the opposite party, they simply kept the DD with them, hence the DD became stale. Nobody is benefited with that amount for this long period. The learned counsel for the opposite party further submitted that if at all there was any excess amount the complainant is claiming they could have go with this complainant even after encashing the DD amount. Keeping the DD without encashing or returning itself would go to show a malafide intention on the part of the complainant.
9) We have examined the entire materials on record and given a thoughtful consideration to the arguments advanced before us. The learned counsel for the complainant argued that the opposite party sent the DD with reply only after filing this complaint. We perused the Ext. P4 series reply notice as dtd. 12/09/13 the DD dtd. 07/09/13 is in the name of complainant for an amount of 41,931/-. As per Ext. R4 the reply notice was accepted by the complainant’s counsel on 14/9/13. The complaint is seen filed on 23/09/13. Hence the argument raised by the complainant’s side that the DD received only after filing this complaint cannot be accepted. If the DD was timely handed over to the complainant the dispute would have been settled. We don’t find any illegality or irregularity or nothing wrong in sending a DD in the name of the complainant along with the reply notice. Moreover, the DD and the copy of reply notice was not produced along with the complaint it was produced before the Forum only at the time of evidence, along with the proof affidavit. At least the complainant could have produce the DD before the Forum on either along with the complaint or immediately after filing the complaint. Only the purchaser of the DD can alone get back the DD amount by returning DD at concerned branch, by suffering some depreciation.
10) There is no proof produced from the side of complainant to show that the opposite party has collected any illegal amount from the complainant. There is no material produced before us to show that the opposite party is not having any right to collect any amount as logistics and facilitation charges. The burden is upon the complainant to prove their allegations. Considering the points discussed hereinabove we are of the opinion that the complainant is not entitled to get any amount in excess than the amount covered by the DD sent by the opposite party. The complainant could not prove any deficiency in service or unfair trade practice happened on the part of opposite party. Hence she is not entitled to get any amount as compensation or cost.
In the result, we allow this complaint in part and the opposite party is directed to collect the Ext. P4 DD from the Forum and to make payment of Rs.41,131/- (Rupees Forty one thousand one hundred and thirty one only) covered by the DD to the complainant within one month from receiving copy of this order. Failing which, the complainant is entitled to get 9% interest for that amount from the date of order till realization.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 31st day of January 2018.
Sd/- Sd/- Sd/-
M.P.Chandrakumar Sheena.V.V. P.K.Sasi, Member Member President.
Appendix
Complainant’s Exhibits
Ext. P1 copy of proforma invoice dtd. 03/01/13
Ext. P2 copy of proforma invoice dtd. 04/03/13
Ext. P3 copy of lawyer notice with postal receipt
Ext. P4 series (3 Nos.) reply notice with postal cover and DD
PW 1 Daisy
Opposite Party’s Exhibits
Ext. R1 copy of DD dtd. 07/09/13
Ext. R2 copy of reply notice dtd. 12/09/13
Ext. R3 postal receipt
Ext. R4 A/D card dtd. 14/09/13
Ext. R5 copy of reply notice dtd. 17/10/13
Ext. R6 postal receipt
Ext. R7 A/D card
Ext. R8 computer print-out of revised excise duty & connected
provisions
Ext. R9 authorization letter.
RW 1 Dileepkumar
Id/-
President
