DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 18th day of October, 2023
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 22/11/2021
CC/201/2021
Sunny M. Samuel,
S/o. J. Samuel,
Mattathil Veedu, Kunnathukavu,
Thachampara (P.O.), Palakkad – 678 593. - Complainant
(By Adv. P. Sreeprakash)
Vs
M.C.P. Automobiles Pvt. Ltd.,
17/523A, NH47, Near Marathakara,
Puzhapalla Road, Thrissur – 680 306 - Opposite party
(By Adv. B. Ravikumar)
O R D E R
By Sri. Vinay Menon V., President
- Brief pleadings are that the complainant advance booked a Fort Eco Spot Titanium Model Car, which was never delivered. This complaint is filed seeking return of Rs. 5000/- paid as advance, Rs.7,310/- paid as processing charges and loan insurance, and 3 EMIs along with compensation.
- The opposite party filed version which details that the opposite party had already repaid Rs. 10, 44,322/- paid to the opposite party towards value of the vehicle, that the complainant refused to accept Rs. 5,000/- that was tendered to the complainant in person by way of cheque and that they are not at all, in any way, bound to make good any loss that the complainant had allegedly suffered since they had acted only as per the directions made by the manufacturer company.
- Post pleadings, the following issues were framed.
- Whether there is non-joinder of necessary parties?
- Whether the OP is liable to reimburse the entire claim of the complainant?
- Whether there is any loss suffered by the complainant on account of any act of opposite party?
- Whether the complainant is entitled to any of the reliefs as claimed for?
- Reliefs, if any, grantable?
4. (i) Complainant filed proof affidavit and marked Ext. A1.
(ii) O.P. filed proof affidavit and marked Exhibits B1 to B3. There was no objection whatsoever in marking the documents on either side.
(iii) Complainant filed an application as IA 565/2022 seeking to cross examine the respondent. Since on the date it was filed, the proceedings had not reached the evidence stage of the opposite party, this application was kept in abeyance. But subsequently, post marking of documents of opposite party, this application was not called into attention. Hence we presume that the complainant is not pressing for this application and is dismissing the application at this stage.
Issue No. 1
5. This issue was framed based on a contention made by the opposite party in their pleadings that Ford (manufacturer) is a necessary party to the proceedings. Yet on going through further paragraphs in the version we find that the OP has made statements to the effect that they had effected repayment of the money. Per opposite party such repayment was carried out at the behest of the manufacturer. This proves that Thus we do not feel that the manufacturer need to be a necessary party in these proceedings based on the conduct of the opposite party.
Issue Nos. 2 & 3
6. Complaint claims, as can be ascertained from a perusal of the memorandum of complaint at the relief section are as follows:
1) Return of booking advance - Rs. 5,000/-
2) Processing charges & Loan insurance - Rs. 7,310/-
3) EMI remitted (Rs.16,380 x3) - Rs. 49,140/-
(Compensation sought for is not added herein.)
Upon a calculation paragraphs 1 to 3 we find that the total expenditure incurred by the complainant is Rs.61,450/-. But the complainant has limited his claim to Rs.44,816/-. Since the accounts does not tally and in the absence of any clear and specific calculations showing as to how amounts are arrived at, we need to ascertain by sieving through the pleadings and available evidence whether the complainant in entitled to receive the amounts in each of the 3 heads.
7. Primarily in order to ascertain whether the complainant is entitled to receive the amount he has raised a claim for, it is necessary to schedule the events chronologically.
Sl. No. | Date | Particulars | Remarks |
1. | 19/04/2021 | Booking date (Ext. B3) | Tentative date of delivery shown as 22/6/2021 |
2. | 22/06/2021 | Tentative date of delivery | Shown in Ext. B3 |
3. | 22/07/2021 | Loan account starts (Ext. A1) | |
4. | 30/10/2021 | O.P. repaid Rs.10,44,322/-. Loan account closed. | Ext. A1, Pleadings |
8. Perusal of pleadings and documentary evidence proves that upto sometime prior to 30/10/2021, the complainant was under a bonafide belief that he would receive a car as booked by him. Based on this belief and pursuant to Ext.B3 agreement entered into between the complainant and opposite party and relying on the legal sanctity of Ext. B3, the complainant availed financial assistance from the Bank. Thus the complainant had acted upon a legally enforceable document and had to incur expenses unnecessarily for no fault of his.
In such an eventuality, wherein the complainant acted upon a legally binding contract and incurred expense and wherein the agreement was nullified at the instance of the O.P. (or their Principal, for whom the O.P. entered into the agreement) the OP is bound to make good, in their capacity as the agent of the manufacturer, the losses suffered by the complainant.
9. Having found that the opposite party is bound to make good the expenses incurred by the complainant, in the facts and circumstances of the case, the next task is to ascertain whether the complainant has proved the three complaint claims.
1. Return of booking advance - Rs. 5,000/-
10. Per opposite party, they had already repaid the entire amounts due to the complainant except for the advance amount which the complainant refused to accept when a cheque was handed over to the complainant.
11. Ext.B2 is an undated cheque allegedly issued by the opposite party in favour of the complainant to prove that they had handed over this cheque to the complainant which the complainant had allegedly refused to accept. This cheque does not contain the official seal of the opposite party. We are not inclined to believe that the O.P., a company, would issue an undated cheque without its official seal. The Bank would demand that the O.P., being a Company, issue a cheque with its seal. O.P. has also failed to produce any documents maintained by them in the course if their daily business wherein issuance of a cheque would be recorded, since this return would form a part of official expenditure or miscellaneous expenditure.
OP contents that they had repaid the entire amounts payable to the complainant by way of bank transfer. What prevented the OP from transferring this advance amount also by way of bank transfer is not stated.
12. Hence, upon a consideration of all the above grounds, we hold that opposite party had deliberately withheld payment of Rs.5,000/- to the complainant. Ext. B2 cheque was issued for the purpose of this complaint. Claim 1 is allowed.
2. Processing charges & Loan insurance - Rs. 7,310/-
13. The next claim is regards the amounts that the complainant allegedly had to incur for availing a loan from the bank. Complainant has not adduced any evidence to prove this claim. Ext. A1 will not assist the complainant in any manner to prove the expenses he had incurred under this head. Hence this claim is rejected.
3. EMI remitted (Rs.16,380 x 3) - Rs. 49,140/-
14. As already stated supra in para 6, sum of the 3 claims adds up to Rs.61,450/-. But the complainant has limited his claim to Rs.44, 816/-. Schedule in the relief section in memorandum of complaint is not clear as regards the basis of claim raised. Entire pleadings and calculation of the complainant lacks clarity and specificity and is ambiguous. In the absence of a clear statement of calculation to prove the amounts due from the O.P. to the complainant, we refuse to presume an amount that is due from the O.P. to the complainant.
Thus the complainant has failed to prove by way of clear and specific pleadings and evidence that he is entitled to claim number 3. This claim is also rejected.
Issue No. 4
15. Guided by the findings above we hold that the complainant is entitled to refund of claim number 1 of Rs. 5000/- alone.
Issue No. 5
16. Resultantly, we hold that the complainant is entitled to the following reliefs.
- The opposite party shall repay an amount of Rs.5,000/- to the complainant together with interest @10% from 19/4/2021 till date of repayment.
- The opposite party shall pay an amount of Rs.10,000/- as compensation.
- The O.P. shall pay an amount of Rs. 5, 000/- as cost of these proceedings.
- The Opposite Party shall comply with the aforesaid directions within a period of 45 days from the date of receipt of a copy of this order, failing which the opposite party shall pay a solatium of Rs. 500/- per month or part thereof from the date of this order till date of payment of the entire amounts as stated above.
Pronounced in open court on this the 18th day of October, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant :
Ext.A1 – True copy of statement of account
Exhibits marked on the side of the opposite party:
Ext.B1 – Copy of ledger account from 1/4/2021 to 29/12/2021
Ext.B2 – Original undated cheque bearing No.440186.
Ext.B3 – Copy of order booking form
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant : Nil
Witness examined on the side of the opposite party : Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
