BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  :  MEMBER

C.C. No. 24/2007 Filed on 24.01.2007

ORDER DATED: 16.04.2018

Complainant:

K. Vinod Kumar, C.R.A. 20, Kuzhivayal Lane, Opposite Cosmopolitan Hospital, Pattom, Thiruvananthapuram.

                                    (By Adv. S. Reghukumar)                                        

Opposite parties:

1. M/s Maruti Udyog Ltd., 11^th Floor, Jeevan Prakash Building, 25, Kasturba Gandhi Marg, New Delhi-110 001 represented by its Managing Director. 

(By Adv. G.S. Prakash)

2. M/s Sarathy Autocars, Pallimukku, Kollam represented by its Managing Partner. 

3. M/s Sarathy Autocars, P.T.C Towers, S.S. Kovil Road, Thampanoor, Thiruvananthapuram.

(By Adv. S. Sunil Narayanan for 2^nd & 3^rd O.P)

This case having been heard on 28.02.2018, the Forum on 16.04.2018 delivered the following:

ORDER

SRI. P. SUDHIR:  PRESIDENT

Complainant’s case is that the complainant was desirous of buying a black Maruti Wagon R/LXI E3 car and he approached the 2^nd and 3^rd opposite parties.  The sales officer attached to the 3^rd opposite party explained in detail regarding the various offers and discount and assured the complainant about the company’s discount offer of Rs. 39,000/- as well as about the dealer’s incentives such as mud flap, floor mat, steering cover, wheel cup, seat cover (American Velvet), perfume, doll, reverse music, Teflon coating etc.  Moreover the above said offer/assurance was given in writing by the 3^rd opposite party.  The complainant believing the offer/assurance given by the 3^rd opposite party booked a black Maruti Wagon R/LXI car by remitting an amount of Rs. 2,00,000/- by taking a Demand Draft bearing No. 756123 payable at Indian Bank, Kollam in favour of the 2^nd opposite party on 07.06.2006, for which the 3^rd opposite party issued a receipt.  At the time of booking of the car, the 3^rd opposite party also assured that they will deliver the new car within 10 days.  The said assurance was incorporated by the 3^rd opposite party in the proforma invoice dated 07.06.2006 issued to the complainant.  Believing the assurance of the 3^rd opposite party, the complainant disposed of his old vehicle, i.e, Maruti 800 which the complainant had been using from 1999 at a price of Rs. 55,000/- on 17.06.2006 to one Mr. B. Reji.  Even after the expiry of the agreed 10 days as the vehicle was not delivered and as there was no response from the 2^nd and 3^rd opposite parties, the complainant personally contacted the office of the 2^nd opposite party at Kollam.  The 2^nd opposite party’s Manager gave lame excuses like the vehicle had been dispatched from the factory, the trailer had not arrived etc.  It is further submitted that the complainant found it very difficult to perform his and his family’s daily routine without the vehicle, which had in turn caused substantial financial loss as well as mental agony.  The complainant also found it very difficult in hiring vehicles to make alternative arrangements.  To cover up the inordinate delay in delivering the vehicle and to cover up deficiency in service and unfair trade practice the 2^nd opposite party sent an old Maruti 800 car bearing Reg. No. KL-02 U 1586 to the complainant on 07.07.2006 as a temporary arrangement and the same was taken back by the 3^rd opposite party on 05.08.2006 without assigning any reason. On 07.07.2006 the officials of the 2^nd opposite party for the first time informed verbally that they have some difficulty in procuring the booked model from the company since the model has been changed by the manufacturer and assured/agreed to deliver the new model car with all the offers and discount they agreed originally.  It is pertinent to note that till 07.07.2006 the 2^nd opposite party was giving the lame excuses such as the vehicle has been dispatched from the factory, the trailer had not arrived etc. which were quite contrary to the new reason.  Moreover the decision of the 1^st opposite party to change the model is not an overnight decision.  For introducing a change in model there has to be scientific research and trial.  Further statutory clearance and technical formalities are mandatory to be complied with.  The said process requires long period of time.  The 2^nd and 3^rd opposite parties who were well aware of the said facts willfully concealed the said fact with an intention to take undue advantage.  On 04.08.2006 the complainant contacted the 2^nd opposite party, through a consumer activist and to the surprise of the complainant they not only refused any follow up action for expeditious delivery of the vehicle, but also suggested that the complainant shall either take back the booking amount with 15% interest or take a new model vehicle without any discount or offers, quite contrary to the assurances/agreement.  The said acts of the opposite parties constitute deficiency in service and unfair trade practice.  The complainant sent several letters to the opposite parties 1 & 2 but they never cared to reply.  However the 2^nd opposite party had issued a reply on 29.08.2006 stating that since a new model car was allotted to the complainant and the 1^st opposite party decided to withdraw the schemes to the new model car, they are unable to give the benefits of the previous schemes to the new model.  Moreover they directed the complainant to take possession of the new model car within 7 days from the date of receipt of the said reply by remitting the price in full as there was no scheme then.  The complainant issued a registered reply dated 20.09.2006 to the letter dated 29.08.2006 issued by the 2^nd opposite party, expressing his willingness to accept the new model car without prejudice to his right to claim compensation and other reliefs consequent to the deficiency in service and unfair trade practice committed by the opposite parties.  However the 2^nd opposite party neglected to respond to the said reply.  Complainant had contacted the 2^nd and 3^rd opposite parties several times to settle this matter amicably.  Complainant also informed the entire facts to the opposite parties through the letter dated 09.10.2006.  But the opposite parties took casual and negligent attitude towards the complainant.  Constrained by the hostile attitude of the opposite parties, the complainant caused to issue a suit notice dated 25.10.2006 claiming return of advance of Rs. 2 Lakhs with 15% interest from 07.06.2006 and Rs. 1 lakh as compensation for the deficiency in service and unfair trade practice committed by the opposite parties.  The 1^st opposite party has not issued any reply and the 2^nd opposite party issued a reply stating that they are ready and willing to the refund of Rs. 2,00,000/- with interest at 15% per annum from 07.06.2006 and regarding the allegations of deficiency in service and unfair trade practice the 2^nd opposite party raised false and frivolous contentions to counter the same. 

Notice sent to opposite parties and opposite parties 1 to 3 filed version. 

As per the version of 1^st opposite party the contention taken is that the 1^st opposite party is not privity to the agreement for sale in transaction.  The complainant never paid or deposited any amount with the 1^st opposite party.  Complainant never paid any amount to the 1^st opposite party for alleged booking.  It is pertinent to mention that the opposite parties 2 & 3 are entirely a separate and independent entity carrying on its business of sale and service of vehicle.  The relationship between the opposite parties 1, 2 & 3 are governed by the Dealership Agreement on principal to principal basis.  It is reiterated that the 1^st opposite party was not party to the alleged transaction.  The complainant has failed to set out any case of deficiency in service or unfair trade practice as defined under the Act against the 1^st opposite party.  The complainant neither entered any agreement for sale or service nor paid any amount to the 1^st opposite party for supply of goods (car).  The question of any deficiency in service or unfair trade practice, therefore, does not arise on the part of 1^st opposite party.  The complainant has failed to set out a single instance wherein the 1^st opposite party ever interacted or furnished any statement to the complainant in regard to sale of alleged Maruti Wagon R/LXI is concerned.  The complainant entered an agreement for sale of vehicle with opposite parties 2 & 3 and the 1^st opposite party was not privity to the said agreement, the question of any deficiency in service on the part of this opposite party does not arise.  The 1^st opposite party do/did not sell the vehicle so manufactured by it directly to any individual customer.  This opposite party sells the vehicle to its dealers against the full payment of price and the dealer in turn sell the same to their customers under their own invoice and sale certificate as is required under the Central Motor Vehicles Rules.  The 1^st opposite party is/was not required to provide any scheme to the complainant by virtue of any provision of law.  The complainant has no case for deficiency in service or unfair trade practice against this opposite party and it is not liable towards the complainant jointly or severally as alleged.  The complainant is not entitled to any relief against the 1^st opposite party. 

Opposite parties 2 & 3 filed version stating that as per the booking order the complainant had only paid Rs. 2 Lakhs and the booking order did not covenant for delivery of the vehicle at a specified time since the booking was subject to availability of colour and vehicles.  Normally the validity of proforma invoice would be 45 days.  In this case the column where the period of validity and other details in proforma invoice had been kept blank and the complainant might have forged that proforma invoice by incorporating the words ‘ten days’.  These opposite parties intimated the complainant regarding the model change and the decision on the part of the 1^st opposite party to stop the scheme announced for the old model Wagon R LXI car since the manufacturer had ceased to manufacture the same.  So the scheme of old model was not extended to new model and these opposite parties informed the complainant regarding the inability to supply old model with or without any benefit in the scheme for the old model.  At the time of introducing the new vehicle the manufacturer granted a new scheme for the vehicle.  This was informed to the complainant by the 2^nd and 3^rd opposite parties.  But the complainant insisted for supply of a new model within the scheme available for the old model Wagon R car of the time of booking.  The opposite parties 2 & 3 have any right to revive a scheme which had already being stopped by 1^st opposite party.  Opposite parties 2 & 3 have not violated any agreement nor there is any agreement between these opposite parties and the complainant.  These opposite parties being the authorized dealer are limited to the role of selling the vehicle upon availability of the model.  These opposite parties have not made or acted any deficiency of service to the complainant.  It is settled law that the supply of vehicle is depending upon the availability of the vehicle from the manufacturer within the dealer and as such these opposite parties are barred by impossibility of performance.  Complainant himself has admitted that the offer and discounts are of the company.  The 3^rd opposite party has not given to the complainant anything in writing regarding the dealer’s incentive.  The 3^rd opposite party never assured to the complainant that the car will be delivered within 10 days.  The booking was subject to availability of colour and vehicles from the manufacturer.  These opposite parties are in no way connected to the agreement of sale of the complainant’s car and it is done at the discretion and convenience of the complainant and nothing is stated in the said agreement that on assurance of the opposite parties 2 & 3 that the said vehicle sold by him as per agreement.  To maintain good customer relation 2^nd opposite party sent Maruti 800 car bearing Reg. No. KL 02 U 1586 to the complainant on 14.06.2006 and when the newly booked car became ready for delivery on 04.08.2006 that the said service car is taken back by the 2^nd opposite party.  Since the complainant remained unwilling to take delivery of the new model vehicle and the 2^nd opposite party caused to send a notice on 29.08.2006.  Though these opposite parties are ready to supply new model vehicle with current offer to the complainant, the complainant is not ready to get it or to receive back the advance amount of Rs. 2,00,000/- with interest @ 3.75% as per the agreement signed and issued to these opposite parties by the complainant.  The complainant is adamant in not receiving the new model car or the advance money back but insisting for a scheme not available to the new model car, though he is well aware that these opposite parties have no role in allotting a scheme or offer.  This is a willful and deliberate action from the side of the complainant to harass and to cause hardships to these opposite parties.    

Issues:

1. Whether there is deficiency of service on the part of opposite parties?
2. Whether the complainant is entitled for the reliefs sought for?
3. What is the interest to be allowed?

Issues (i) to (iii):- Complainant filed chief examination affidavit and examined as PW1.  Exts. P1 to P9 marked.  PW1 cross examined by opposite parties.  Opposite parties 2 & 3 filed chief examination affidavit and examined as DW1.  DW1 cross examined by complainant.  In this case opposite parties 2 & 3 have not delivered the vehicle within the stipulated time mentioned in the invoice which is the only deficiency on the part of the opposite parties 2 & 3.  2^nd and 3^rd opposite party produced D.D for Rs. 2,00,000/- and complainant has received the D.D without prejudice to the right to claim interest prayed for in the complaint.  So the question is regarding the interest rate to be fixed.  In the deposition of DW1 “payment- ന് ശേഷം book ചെയ്ത വാഹനം നല്‍കാത്തതു കൊണ്ടല്ലേ deposit തുകയായ 2 ലക്ഷം രൂപ 15% പലിശയോടുകൂടി തിരികെ നല്‍കാമെന്ന് Ext. P9- ല്‍ പറഞ്ഞിരിക്കുന്നത് (Q) അതെ (A)”.  So it is clear admission regarding rate of interest.  1^st opposite party is exonerated from liability.  Opposite parties 2 & 3 are jointly and severally liable to pay interest @ 15% per annum for Rs. 2 Lakhs from 07.06.2006 to 29.05.2007 (the date on which complainant received the D.D for Rs. 2,00,000/-) and to pay Rs. 3,000/- towards the cost of this proceedings.  There is no order for compensation. 

In the result, complaint is allowed.   1^st opposite party is exonerated from liability.  Opposite parties 2 & 3 are jointly and severally liable to pay interest @ 15% per annum for Rs. 2 Lakhs from 07.06.2006 to 29.05.2007 (the date on which complainant received D.D for Rs. 2,00,000/-) and to pay Rs. 3,000/- towards the cost of this proceedings.  There is no order for compensation.  Opposite parties 2 & 3 shall comply the order within one month from the date of receipt of this order failing which the calculated interest amount carries interest at the rate of 9% per annum from the date of default till realization. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16^th day of April 2018.

        Sd/-

P.SUDHIR                             : PRESIDENT

         Sd/-

R. SATHI                               : MEMBER

          Sd/-

LIJU B. NAIR                        : MEMBER

jb

C.C. No. 24/2007

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - K. Vinod Kumar

 II      COMPLAINANT’S DOCUMENTS:

P1     - Copy of temporary receipt

P2     - Copy of proforma invoice

P3     - Copy of sale agreement dated 17.06.2006.

P4     - Copy of receipt dated 05.08.2006

P5     - Copy of letter sent by 2^nd O.P to complainant

P6     - Copy of letter sent by complainant to 2^nd O.P dated 20.09.2006

P7     - Copy of letter sent by complainant to 1^st O.P dated 09.10.2006

P8     - Copy of suit notice

P9     - Copy of reply notice dated 07.11.2006

III      OPPOSITE PARTY’S WITNESS:

          DW1 - Manilal

 IV     OPPOSITE PARTY’S DOCUMENTS:

          D1     - Copy of order booking form

                                                                                                      Sd/-

PRESIDENT

jb