DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

 Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Thursday, the 28^th day of November 2024

CC No. 467/2017

Complainant

1.               Thrivikraman Namboodiri,

                        Pullangottillam, Peringalam (PO),

                        Kuttikkattur Amsom,

            Kozhikode – 673 571.

2.              Preetha. V.M,

W/o Thrivikraman Namboodiri,

             Pullangottillam, Peringalam (PO),

                       Kuttikkattur Amsom,

           Kozhikode – 673 571.

Opposite Parties

1. Marina motors (India0 Pvt Ltd,

Rep. by its Managing Director,

Authorised Dealer of TATA Motors,

Bypass Road, Pantheerankavu (PO),

Kozhikode – 673 019.

2. TATA Motors Insurance Broking and

Advisory Services Ltd, 1^st floor,

AFL House, Lok Bharathi Complex,

Andheri (East), Mumbai – 400 059.

(OP1 By Advs. Sri. M. Asokan and Sri. Z.p. Zachariah

 OP2 by Adv. Sri. Thomas Mathew)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.  

2. The case of the complainant, in brief, is as follows:

On 16/03/2017, the complainants purchased a TATA ZEST car from the showroom of the first opposite party by exchanging an old car. A commitment form was given to the complainants before the purchase which contained the details of the amount and payments regarding the purchase. The total on road price was calculated by the first opposite party as Rs. 7,05,130/-, out of which, Rs. 6,26,660/- as vehicle price, Rs. 25,837/-as insurance amount, Rs. 1,500/- as registration charges and Rs. 51,113/- as taxes and levies. The old vehicle of the complainant was valued at Rs. 85,000/-. The old vehicle bearing registration No. KL-11-S-3384 was given to the first opposite party. Including the old vehicle price and other discounts and offers, the first opposite party calculated the amount as Rs. 1,05,130/-. This amount was deducted from the total on road price of Rs. 7,05,130/- and balance amount of Rs. 6,00,000/- was paid by the complainants.

3. The first opposite party had collected an amount of Rs. 25,837/- from the complainants as insurance amount. But the first opposite party paid only an amount of Rs. 12,607/- as insurance amount and the receipt was issued for the said amount. Hence an excess amount of Rs. 13,230/- was collected by the opposite parties illegally from the complainants. The second opposite party is TATA Motors Insurance Broking and Advisory Services Ltd. Both the opposite parties colluded, collected the illegal amount and thus cheated the complainants. There was deficiency of service on their part. As bonafide purchasers, the complainants are entitled to get back the excess amount collected by the opposite parties with 24% interest along with compensation of Rs. 1,00,000/-. Hence the complaint.  
4. The opposite parties have resisted the complaint by filing written version separately wherein they have denied and disputed all the allegations and claims made against them in the complaint.
5. The first opposite party has admitted that the complainants have purchased the TATA ZEST car from their showroom on 16/03/2017 by exchanging the old car. But the allegations that they had provided a commitment form to the complainant offering to sell the vehicle at Rs. 6,00,000/- after adjusting the value of the old car and other discounts and benefits provided by the manufacturer and that they had gone back  from the commitment and collected excess amount from the complainant are not true and hence denied.
6. The complainants visited the showroom of the first opposite party on  24/02/2017 to enquire  as to whether they were selling TATA ZEST vehicle in exchange of old vehicle and also about the price and discounts available. The sales personnel informed the complainants that exchange facility was available and in such cases value of the old vehicle would be adjusted with the total price of the new vehicle. Regarding the discounts and other benefits, the complainant was informed that if they were buying the vehicle in February 2017, the offers provided by the manufacturer for the said month would be applicable. After discussion with the complainants, the first opposite party offered to sell TATA ZEST vehicle at a price of Rs. 6,00,000/- to the complainant after all adjustment towards various offers and discounts. A commitment form dated 24/02/2017 was provided to the complainants showing the above mentioned offer. The offer as per the said commitment form was applicable only for the month of February 2017. But the complainants did not buy the vehicle in February 2017.
7. However, they purchased the vehicle on 16/03/2017. Since the vehicle was purchased in March 2017, the offers provided by the manufacturer for the month of March 2017 alone were applicable. However, the first opposite party provided maximum benefits to the complainants at a price of Rs. 6,03,982/-. The details are as follows; The cost of the vehicle was Rs. 6, 29, 571/-, road tax Rs. 51,166/-, insurance Rs. 12,607/-, accessories Rs. 11,700/- and registration charges Rs. 150/-, total cost being Rs. 7,05,194/-. The old vehicle of the complainant was valued at Rs. 30,000/- on 24/02/2017. At the time of valuation the battery was in working condition. But on 16/03/2017 the battery was not at all functioning. Hence the first opposite party charged Rs. 2,300/- for the battery.  The charges for changing the registration of the old vehicle was Rs. 1,500/-. Thus the complainant had to pay an additional amount of Rs. 3,800/- to the first opposite party. Thus the total amount payable by the complainant for purchasing the new vehicle was Rs. 7,08,994/-. Against this amount the complainants paid Rs. 6,03,982/-.
8. The allegation of the complainants that the first opposite party had collected Rs. 25,837/- towards insurance is not correct. There was no offer from the side of the first opposite party regarding the insurance while purchasing the vehicle on 16/03/2017. The offer regarding insurance was applicable only for the month of February 2017. The opposite parties are not bound to honour commitment since vehicle was purchased in March 2017.
9. The allegation that the first opposite party valued the old vehicle at Rs. 85,000/- is not correct. The allegation that Rs. 13,230/- was collected in excess is not correct and hence denied. The complainants are not entitled to get refund of the amount and they are not entitled to claim any compensation. There is absolutely no deficiency of service or unfair trade practice on the side of the first opposite party. With the above contentions, the first opposite party prays for dismissal of complaint with compensatory costs.
10. According to the second opposite party, they are only an insurance intermediary and they are not authorised to collect any premium from the customers and hence the question of refund does not arise. The allegations in the complaint did not show any deficiency of service on the part of the second opposite party. Since there was no deficiency of service on their part, the second opposite party seeks dismissal of the complaint with costs.
11. The points that arise for determination in this complaint are;

1. Whether there was any unfair trade and business practice or deficiency of service on the part of the opposite  parties, as alleged?
2. Reliefs and costs.

12. Evidence consists of the oral evidence of PW1 and Exts A1 to A11 on the side of the complainant.  RW1 was examined and  Exts B1 and B2 were marked on the side of the first opposite party. The second opposite party did not adduce any evidence.  
13. Heard both sides. Brief argument note was filed by the first opposite party.
14. Point No 1 : The complainants are husband and wife. The first opposite party is the dealer of TATA vehicles and the second opposite party is an insurance intermediary. The complainants are alleging unfair trade and business practice and deficiency of service on the part of the opposite parties. The specific allegation is that an excess amount of Rs. 13,230/- was collected by the opposite parties illegally from them towards insurance premium of the newly purchased vehicle. The prayer in the complaint is for refund of Rs. 13,230/- along with compensation of Rs. 1,00,000/-.
15. The first complainant got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complainant and in support of the claim. Ext A1 is the copy of the commitment form, Ext A2 is the temporary certificate of registration, Ext A3 is the copy of the insurance certificate, Ext A4 is the copy of the complaint dated 09/05/2017 lodged in the Nallalam police station, Ext A5 is the copy of the lawyer notice dated 14/09/2017, Ext A6 is the copy of the policy schedule cum certificate of insurance, Ext A7 is the copy of the delivery receipt, Ext A8  is the copy of the lawyer notice dated 13/03/2018, Ext A9 is the copy of the reply notice dated 17/03/2018, Ext A10 is the copy of the letter dated 14/02/2019 issued by the first complainant to the RTO, Kozhikode and Ext A11 is the copy of the reply notice dated 21/09/2017.
16. The case advanced by the first opposite parte is one of total denial. According to the first opposite party, they had not collected any excess amount towards insurance. The stand of the second opposite party is that they are not authorised to collect any premium from the customers and hence no question of any refund of excess premium arises against them. The Assistant Sales Manager of the first opposite party was examined as RW1. RW1 has filed proof affidavit and deposed supporting and reiterating the contentions in the written version. Ext B1 series are the commitment form and order and billing form produced by the first opposite party and Ext B2 is the invoice dated 16/03/2017.
17. It is not disputed that on 16/03/2017 the complainants purchased a TATA ZEST car from the showroom of the first opposite party by exchanging an old car. The visit of the complainants to the showroom of the first opposite party was on 24/02/2017 for negotiation for the purchase of the new vehicle in exchange of an old vehicle. On that day a commitment form was provided to the complainant by the first opposite party. Ext A1 is the copy of the commitment form which contains the signature of the dealer and the customer and Ext A1 is not disputed. In Ext A1 the insurance amount is shown as Rs. 25,837/- and the value of the old vehicle of the complainant including all schemes of February 2017 is shown as Rs. 1,05,130/-. The total amount receivable is shown as Rs. 7,05,130/-. That being so, after deducting the value of the old vehicle amounting to Rs. 1,05,130/-, the amount to be paid is Rs. 6,00,000/- as pleaded and claimed by the complainant.
18. The case of the first opposite party is that the commitment form was applicable only when the vehicle was purchased in February 2017 and it is not applicable to subsequent purchase. Going by Ext A1, there is no such stipulation seen incorporated therein.  There is no whisper in Ext A1 that the commitment form would not be applicable for the vehicle delivered after February 2017. In this context, it is worthwhile to have a glance at the evidence tendered by RW1. RW1 has admitted that Ext A1 is true and correct and nothing is mentioned in Ext A1 that it was applicable only if the purchase was made in February 2017. There is endorsement on the reverse side of Ext A1 under the signature of both the parties that it was decided to buy back used car bearing Registration No. KL-11-S-3384 Indica V2 at Rs. 1,05,130/- with all schemes, balance six lakhs should be paid at Marina Motors before 2 days of the delivery of new vehicle. There is no mention about the date of delivery of the vehicle or that it was applicable only if the purchase of the vehicle was done in February 2017 itself.
19. The case of the opposite parties is that they had informed the complainant that the vehicle should be purchased in February 2017 itself and if the vehicle was bought in the next month, the offers for that month alone would be applicable.  But there is absolutely no evidence that the complainants were informed of  such a stipulation. Moreover, if such a stipulation was there, nothing prevented the first opposite party to insert such a stipulation in Ext A1 especially when all other conditions are put in black and white. The only condition stated in Ext A1 is that the balance payment should be made within 2 days prior to the delivery of the new vehicle. Moreover, the first opposite party has no case that a new commitment form was filled up on 16/03/2017 or on any other date prior to that in March 2017. So it is crystal clear that the sale was as per Ext A1. As rightly pointed out by the complainant, it appears that such a contention is taken by the first opposite party to suit the occasion and to escape from the liability.
20. As already stated,  Ext A1 is admitted by the first opposite party. Ext A1 does not tally with Ext B1 produced by the first opposite party. The entries in Ext B1 are different from Ext A1. The valuation amount of old vehicle and total receivable amount etc. are different. The first opposite party has no explanation for this discrepancy.
21. As per Ext A1, the insurance amount collected is Rs. 25,837/-. Ext A3 shows that the premium amount paid was Rs. 12,607/-. The difference is Rs. 13,230/-. So it is to be concluded that an excess amount of Rs. 13,230/- was collected from the complainant by the first opposite party. By collecting excess amount than the actual premium, the first opposite party has indulged in unfair trade and business practice and their act amounts to deficiency of service also.
22. The second opposite party is the insurance intermediary and they are not authorised to collect the premium amount from the customers and they have no role in the matter. That being the position, no unfair trade and business practice or deficiency of service can be attributed against the second opposite party and they are entitled to be exonerated. But as far as the first opposite party is concerned, they have illegally collected excess amount towards insurance premium and there is proof of unfair trade and business practice and deficiency of service against them. The first opposite party is liable to refund the excess amount of Rs. 13,230/- to the complainants. Undoubtedly, the act of the first opposite party has resulted in gross mental agony and inconvenience to the complainants, for which, they are entitled to be compensated adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 20,000/- will be reasonable compensation in this case. Point found accordingly.  
23. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;
    1. CC. 467/2017 is allowed in part.
    2. The first opposite party is hereby directed to pay a sum of Rs. 13,230/- (Rupees thirteen thousand two hundred and thirty only) to the complainants with interest @ 9% per annum from the date of the complaint i.e. 29/12/2017  till actual payment.
    3. The first opposite party is directed to pay a sum of Rs. 20,000/- (Rupees twenty thousand only) as compensation to the complainants for the mental agony and inconvenience suffered.
    4. The order shall be complied with within  30 days of the receipt  of copy of this order.
    5. The second opposite party is exonerated.
    6. No order as to costs.

Dictated to the Confidential Assistant, transcribed by her, corrected and  pronounced by us in open Commission,  this the  28^th  day of November, 2024.

Date of Filing: 29.12.2017

     Sd/-                                                              Sd/-                                                              Sd/- 

PRESIDENT                                              MEMBER                                                    MEMBER                                                                                                 

APPENDIX

Exhibits for the Complainant :

Ext A1 -  Copy of the commitment form.

Ext A2 - Temporary certificate of registration.

Ext A3 - Copy of the insurance certificate.

Ext A4 - Copy of the complaint dated 09/05/2017 lodged in the Nallalam police station.

Ext A5 -  Copy of the lawyer notice dated 14/09/2017.

Ext A6 - Copy of the policy schedule cum certificate of insurance.

Ext A7 - Copy of the delivery receipt.

Ext A8  - Copy of the lawyer notice dated 13/03/2018.

Ext A9 -  Copy of the reply notice dated 17/03/2018.

Ext A10 - Copy of the letter dated 14/02/2019 issued by the first complainant to the RTO, Kozhikode.

Ext A11 - Copy of the reply notice dated 21/09/2017.

Exhibits for the Opposite Party

Ext B1 series -  Commitment form and order and billing form produced by the first opposite party.

Ext B2 - Invoice dated 16/03/2017.

Witnesses for the Complainant

PW1  -  Thrivikraman Namboodiri  (Complainant).

Witnesses for the opposite party

RW1 – Manoj Kumar                 

     Sd/-                                                            Sd/-                                                              Sd/- 

PRESIDENT                                              MEMBER                                                    MEMBER                                

                                                                                    True Copy,      

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                                                                                            Assistant Registrar.