O R D E R
Smt. K.P. Padmasree (Member – I):
Complainant Aniraj. A.K., residing at Aykara House, Nedumprayar Muri, Thottapuzhassery Village filed this complaint against the opposite parties for getting a relief from the Forum.
2. Brief facts of the complaint is as follows: Complainant is a Medical Representative by Profession. On 16.09.2014 he had booked a Car from the 1st opposite party by paying Rs.25,000 as advance. 1st opposite party is the dealer of the vehicle, 2nd opposite party is the General Manager of the 1st opposite party. Third opposite party is the manufacturer of the vehicle and 4th opposite party is the General Manager of the 3rd opposite party. 1st opposite party agreed to deliver the vehicle at the time of balance payment. On 30.09.2014 the complainant paid the balance amount through SBT, Vazhakkunnam Branch. In spite of the promise vehicle delivered only on 08.10.2014. But the vehicle was delivered without the remote key of the vehicle. Moreover, vehicle appeared in a very bad condition. Promised offers of reverse camera and seat covers were also not provided.
3. Complainant contacted opposite party 1 to 4 several times requesting the remote key. Without the remote key complainant faced many problems. 3rd opposite party informed the complainant that they have not yet received money from the dealer that is why the remote key is not provided. Finally complainant send legal notice to the opposite parties. 1st opposite party sent reply notice informing the arrival of the remote key. The above said act of the opposite parties is a clear deficiency in service. Opposite parties are jointly liable for the defective service rendered to the complainant. Hence this complaint for getting compensation of Rs.10 lakhs with 12% interest from the date of the complaint.
4. In this case, opposite parties 1 and 2 filed joint version with the following contentions. Opposite party 1 and 2 admitted that the vehicle was delivered to the complainant only on 08.10.2014. But these opposite parties never agreed to deliver the vehicle on the date of receipt of the balance payment. They also admitted that at the time of delivery, remote key was not provided to the customer due to the reasons beyond their control. At the time of delivery, vehicle was in good condition. No seat cover or reverse camera was offered to the complainant. On 06.12.2014 1st and 2nd opposite party received the remote key and on 08.12.2014 they tried to hand over the same to the complainant, but the complainant did not accept the key. On 15.12.2014 and 23.12.2014 these opposite parties informed the complainant about the arrival of the remote key but there is no response from the side of the complainant. The non-availability of the remote key along with the vehicle is not a wilful latches or deficiency in service of these opposite parties. With the above contentions, 1st and 2nd opposite parties prays for the dismissal of the complaint.
5. Opposite party 3 also entered appearance and filed version with the following contentions. The relationship between the 1st and 3rd opposite party is on principal to principal basis as such 1st opposite party is not an agent of 3rd opposite party. The business pattern prevailing between the 1st opposite party and the 3rd opposite party is that the 1st opposite party purchases the vehicles in bulk as per their requirement and independently effects the sale to its customers. The sale conducted by the 1st opposite party to the end customers is purely at the discretion of the said opposite party.
6. In the present case the dealer had made full payment to 3rd opposite party in respect of the vehicle in question in the month of November 2014 and the remote key was dispatched on 29.11.2014 by 3rd opposite party to the dealer. Thereafter the dealer had duly intimated the complainant about the arrival of the remote key but the complainant avoided to accepting the remote key. The 3rd opposite party is not in any manner responsible for the offers made by the 1st opposite party. With the above contentions, 3rd opposite party prays for the dismissal of the complaint.
7. On the basis of the pleadings of the parties, the following issues were framed.
(1) Where the case is maintainable before this Forum?
(2) Whether there is any deficiency in service from the part of the
opposite parties?
(3) Relief and costs?
8. The evidence of this complaint consists of the oral testimony of PW1, DW1, Exts.A1 to A9 and Ext.B1 to B3. After closure of evidence, both sides were heard.
9. Point No.1:- Complainant’s allegation is that on 16.09.2014 he had booked FIAT PUNTO EVO EMOTION vehicle from the 1st opposite party by paying an advance amount of Rs.25,000/-. 1st opposite party agreed to deliver the vehicle at the time of balance payment. Additional seal cover and reverse camera were offered as a compliment. On 30.09.2014 complainant paid the balance amount to the 1st opposite party. But they delivered the vehicle only on 08.10.2014 without the remote key. The offer of seat covers and reverse camera were not provided to the complainant. Complainant contacted the opposite party several times for getting the remote key. But there is no response from the opposite parties. Finally, complainant send legal notice to the opposite parties. The above said act of the opposite party caused financial loss and mental agony to the complainant and hence opposite parties are liable to the complainant for the same. Admittedly the transaction in question is clearly fall in the purview of Consumer Protection Act and is maintainable in this Forum.
Point Nos.2 & 3:- For the sake of convenience the issues No.1 and 2 considered jointly. In order to prove the case of the complainant, complainant filed proof affidavit in lieu of his chief examination along with 9 documents. On the basis of the proof affidavit, complainant was examined as PW1 and documents produced were marked as Exts.A1 to A9. Ext.A1 is the passbook of the complainant issued by SBT, Vazhakunnam Branch issued on 14.10.2014. Ext.A2 series is the e.mail contacts of the complainant to the opposite parties. Ext.A3 series is the call details of mobile No.9447030590 from 15.10.2014 to 25.11.2014. Ext.A4 series is the copy of legal notice issued to the 2nd opposite party dated 03.12.2014. Ext.A5 series is the postal receipts of Ext.A4. Ext.A6 is the intimation given by the 2nd opposite party to the complainant regarding the handover of the duplicate key. Ext.A7 is the reply notice sent by the 1st opposite party to the complainant’s counsel dated 27.12.2014. Ext.A8 is the e.mail message sent by the 1st opposite party to the complainant regarding the arrival of key. Ext.A9 is the postal receipts of Ext.A4.
11. On the other hand, the contention of the 1st and 2nd opposite party is that they never agreed to deliver the vehicle on the date of receipt of the balance payment. The remote key was received by these opposite parties on 06.12.2014 and the same was intimated to the complainant. But he is not ready to accept the same. No seat cover or reverse camera was offered to the complainant. The absence of the remote key will not affect the functioning of the vehicle. Therefore, there is no deficiency in service from these opposite parties.
12. 3rd opposite party’s contention is that they are only manufacturer. The relationship between the 1st and 3rd opposite party is on principal to principal basis and the 1st opposite party is not an agent of the 3rd opposite party. In this case, the dealer had made full payment to 3rd opposite party on 2014 November and the remote key was dispatched on 29.11.2014 by 3rd opposite party to the dealer. 3rd opposite party is not in any manner responsible for any kind of offers made by the 1st opposite party. With the above contentions, 3rd opposite party prays for the dismissal of the complaint.
13. In order to prove the case of the opposite parties, accountant of the 1st and 2nd opposite party filed proof affidavit with 3 documents. On the basis of the proof affidavit he was examined as DW1 and documents produced were marked as Ext.B1 to B3. Ext.B1 is the authorisation given by the 1st opposite party to DW1 dated 01.11.2015. Ext.B2 is the satisfaction note signed by the complainant dated 19.03.2015. Ext.B3 is the retail purchase order in the name of the complainant dated 12.09.2014.
14. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that parties have no dispute with regard to the sale or price of the vehicle. The only dispute is with regard to the delay in delivery and delay in supplying the remote key and complementary offers. Regarding the delay of delivery of vehicle, both parties admitted that there is 8 days delay in delivery. Ext.B2 is the retail purchase order signed by both the parties. In Ext.B2, terms and conditions reads as follows: ‘Delivery subject to the availability of vehicle’. So such 8 days delay is not to be considered as the deficiency on the part of the dealer.
15. Main allegation of the complainant is the non-supply of remote key and complementary offers. Opposite parties have not placed any material on record to show that what were the circumstances due to which remote key was not handed over to the complainant at the time of vehicle delivery. In new generation vehicle remote key is an integral part. Manufacturer of the vehicle is not directly deal with the sale and offers of the dealers. Complainant in his deposition clearly stated that such offer is given by the 1st and 2nd opposite party/dealer. For promoting sale dealers always follow this type of tactics.
16. Complainant purchased the vehicle spending Rs.8 lakhs. Ext.A2 series and Ext.A3 series is the Telephone – contacts, and e.mail message made by the complainant for redressing his grievance. In this aspect the dealers are also having certain responsibilities. After getting the legal notice, it is on 27.12.2014 opposite party intimated the arrival of duplicate key. Vehicle was delivered on 08.10.2014. In Ext.A6, the message is as follows: ‘The duplicate key will be handed over on or before 7th’. It is an admission on the part of these opposite parties.
17. Complainant paid the amount to the dealer/opposite party 1 and 2. These opposite parties delivered the car. Thus the direct liability of the dealer shall be there. It is their duty to collect the remote key in time and delivered to the customers. With regard to the offers that are allegedly made by the opposite party 1 and 2 to provide seat cover and reverse camera, the complainant failed to prove the same. If the said offers were made by the opposite party 1 and 2 at the time of booking the vehicle the complainant can definitely collect the invoice by noting such offers in the invoice, or bill. Hence we find that opposite parties have not committed any defect through the offer invoice.
18. In the result, this complaint is partly allowed against opposite party 1 and 2. Therefore, opposite party 1 and 2 are directed to provide the remote key of the vehicle to the complainant within 15 days from the receipt of this order along with compensation of Rs.10,000/- (Rupees Ten Thousand only) and cost of Rs.5,000/- (Rupees Five Thousand only), failing which 1st and 2nd opposite parties are also liable to pay an interest of 12% per annum till its realization from the date of order onwards.
Declared in the Open Forum on this the 29th day of April, 2016.
(Sd/-)
K.P. Padmasree,
(Member – I)
Sri. P. Satheesh Chandran Nair (President) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Aniraj.A.K
Exhibits marked on the side of the complainant:
A1 : Passbook of the complainant issued by SBT, Vazhakunnam Branch
on 14.10.2014.
A2 series : e.mail contacts of the complainant to the opposite parties.
A3 series : Call details of mobile No.9447030590 from 15.10.2014 to 25.11.2014.
A4 series : Copy of legal notice issued to the 2nd opposite party dated 03.12.2014.
A5 series : Postal receipts of Ext.A4.
A6 : Intimation given by the 2nd opposite party to the complainant.
A7 : Reply notice dated 27.12.2014 sent by the 1st opposite party to the
complainant’s counsel.
A8 : e.mail message sent by the 1st opposite party to the complainant.
A9 : Postal acknowledgment card of Ext.A4.
Witness examined on the side of the opposite parties:
DW1 : Niyasmon. T.A
Exhibits marked on the side of the opposite parties:
B1 : Authorisation dated 01.11.2015 given by the 1st opposite party.
B2 : Work satisfaction note signed by the complainant dated 19.03.2015.
B3 : Retail purchase order dated 12.09.2014 issued by 1st opposite party.
(By Order)
Copy to:- (1) Aniraj. A.K., Aykara House, Nedumprayar Muri,
Thottappuzhassery Village, Maramon.P.O.,
Pathanamthitta.
- General Manager, Marikar Engineers Pvt. Ltd., Marikar Fiat: 44/406 A,
Kodimatha, Nattakom. P.O., M.C. Road, Kottayam 686 013,
- The General Manager, Marikar Engineers Pvt. Ltd.,
Marikar Fiat: 44/406 A, Kodimatha, Nattakom. P.O.,
M.C. Road, Kottayam - 686 013.
(4) General Manager, FIAT Group Automobiles India Pvt. Ltd.,
Benefice Building, 3rd Floor, Mathuradas Mill Compound,
Thulsi Pipe Road, Lower Parel (W), Mumbai – 400 013,
(5) The General Manager, FIAT Group Automobiles India Pvt. Ltd.,
Benefice Building, 3rd Floor, Mathuradas Mill Compound,
Thulsi Pipe Road, Lower Parel (W), Mumbai – 400 013.
(6) The Stock File.
