IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 19th day of November, 2021.
Filed on 25-08-2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.200/2020
between
Complainant:- Opposite parties:-
Sri.Vishnu C S 1. MGF Motors Ltd., Cherthala
S/o Shajimon Authorised dealer of Hyundai
Chulliveliyil, Charamangalam Motor India Ltd. Ottappunna
S.N Puram P.O., Cherthala-688582 Muttom, Cherthala- 688524
Rep.by Power of Attorney holder Rep.by its Sales Manager
Shajimon C G, S/o Gopalan (Adv. Sri. Binu Mathew)
Chulliveliyil, Charamangalam 2. Hyundai Motor India Ltd.
S.N Puram P.O., Cherthala-688582 Corporate office No.001,
(Adv. Sri. Aravind Gosh) D-248, Abhishek Business
Centre, Laxmi Nagar,
Near Laxmi Nagar -
Motor station, Delhi-110092
(Adv. Sri. Jithin Paul Varghese)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
Material averments briefly stated are as follows:-
Complainant is now working as junior assistant in Air port authority of India at Chennai. He booked a Hyundai I 20 sporty BS6 car with the 1st opposite party on 11.03.2020 by making advance payment of Rs.5,000/- through his mother Sujatha. The total on road price of the vehicle is Rs.8,21,849/-. The complainant was having a Maruthi 800 car bearing Reg.No.KL 04 P 3796. Opposite party agreed to purchase the said vehicle for Rs.66,849/- in exchange of new vehicle on payment of the balance Rs.7,55,000/-. Out of the balance sale consideration Rs.1,00,000/- was given to the executive of the 1st opposite party on 14.03.2020 and Rs.1,00,000/- was paid directly in the account of the 1st opposite party in their bank account through fund transfer from the bank account of the complainant kept with SBI Muhamma branch on the same day. The remaining balance of Rs.5,55,000/- was also transferred to the account of the 1st opposite party from the same bank account of the complainant on 18.03.2020.
2. 1st opposite party had agreed that the new vehicle will be delivered on the next day of payment of the full amount after making temporary registration of the vehicle. The complainant made full payment on 18.03.2020 to get the benefit of proposed increase of tax from 01.04.2020. But 1st opposite party did not delivered the vehicle to the complainant or not registered the vehicle in the name of the complainant till 31.03.2020 eventhough the complainant demanded the delivery of the vehicle several times. On 31.03.2020 1st opposite party informed the complainant that even though they have booked the vehicle with the 2nd opposite party.
3. After 31.03.2020 the 1st opposite party demanded the complainant to deposit an additional amount of Rs.14,919/- as tax difference for registering the vehicle. But the complainant was not ready to deposit any amount further as he was not liable to make any additional amount due to the latches and negligence of the 1st opposite party. So the complainant demanded refund of the amount remitted to the 1st opposite party as price of the vehicle. 1st opposite party delayed the payment of the said amount till 01.07.2020. 1st opposite party issued cheque amounting to Rs.7,55,000/- to the complainant only on 1.07.2020. The ex-show room price of the vehicle booked by the complainant was Rs.7,45,931/- . If the complainant opted to purchase the vehicle after 31.03.2020 he had to pay Rs.14,919/- as additional road tax. Complainant got reliable information that the vehicle booked by him was sold to some other customer to make unlawful gain from the tax variation. The above act of the 1st opposite party is unfair trade practice and serious deficiency in service. The 2nd opposite party is vicariously liable for the tortiuous act committed by the 1st opposite party. Complainant sustained serious mental agony, inconvenience, loss and injury and he is entitled for compensation. Hence the complaint is filed claiming interest @12 % for Rs.7,55,000/- from 18.03.2020 to 01.07.2020 and for Rs.14,919/- on account of difference of tax variation along with 12% interest. Complainant is also seeking an amount of Rs.50,000/- as compensation.
4. 1st opposite party filed a version mainly contenting as follows:-
The complaint is not maintainable. The power of attorney holder who has filed this complaint is not duly authorized. Complainant’s power of attorney was not present at the time of raising the order booking form on 11.03.2020. The vehicle was booked by complainant’s mother Smt.Sujatha. The complainant’s mother placed an order for an I20 sportz car/ vehicle on 11.03.2020. the booking advance amount of Rs.5,000/- was paid only on the next day ie, on 12.03.2020. The ex-showroom price of the vehicle was Rs.7,45,931/-. The road tax, insurance, fast tag, registration charges etc. as statutory charges to be paid by the complainant in addition to the above. The total approximate on road price was Rs.8,62,578/-. Complainant had exchanged an old Maruti car for Rs.66,849/-. So the price after deducting the exchange price was Rs. 7,55,000/-. The payments were made by the complainant on 12.03.2020 (Rs.5,000/-), 14.03.2020 (Rs.1,00,000/-) 18.03.2020 (Rs.5,50,000/-) and on 21.03.2020 (Rs.1,00,000/-) additional payments if any in the nature of increased tax etc. were to be paid at the time of registration of the vehicle. Opposite party tried to book the vehicle with its principal the 2nd opposite party manufacturer on the same day but stock was not available. The booking was made only on 23.03.2020.
5. Due to the outbreak of covid-19 and the nationwide lockdown announced by the Government of India the despatch of the vehicle was withheld at the factory by the 2nd opposite party and hence they could not deliver the vehicle to this opposite party until 11.05.2020. The vehicle came to the showroom only on 12.05.2020. When it was informed to the complainant he started bargaining for the cash benefits for Rs.6,000/-.
6. With effect from 01.04.2020 government of India hiked road tax and it is to be paid by all buyers before registration of the vehicle. Inspite of several requests complainant delayed the payment. Complainant thereafter cancelled the booking vide letter dated 22.06.2020 and made illegal demands. The averment that opposite party had agreed to deliver the vehicle on the very next day is false. The vehicle was agreed to be delivered within one week after its arrival at the showroom. Complainant was not ready to deposit Rs.14,919/- being the increased road tax. The booking was cancelled on 22.06.2020 and Rs.7,55,000/- was refunded on 01.07.2020. The booking was cancelled on 22.06.2020 and the amount was returned on 01.07.2020 and there is no fault on the part of this opposite party. There is no agreement to pay interest on cancellation of order. The allegation that the opposite party sold the vehicle to some other customer is false. The complaint is filed without any bonafides on an experimental basis and it may be dismissed with exemplary cost.
7. 2nd opposite party filed a version mainly contenting as follows:-
The relationship between the opposite parties is principal to principal basis. The liability of this opposite party extends only to warranty obligations. The retail sale of the vehicle are strictly between the complainant and 1st opposite party. Complainant is not a consumer as defined under Sec.2 (7) of the Consumer Protection Act,2019. Complainant has no authority to file a complaint against this opposite party. Hence the complaint may be dismissed with exemplary cost.
8. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled for interest @ 12% for Rs.7,50,000/- from 18.03.2020 to 01.07.2020 ?
- Whether the complainant is entitled to realize an amount of Rs.14,919/- on account of difference of tax variation along with interest?
- Whether the complainant is entitled to realize an amount of Rs.50,000/- as compensation ?
- Reliefs and cost?
9. Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A5 from the side of the complainant. Opposite parties have not adduced any oral evidence Ext.B1 to B4 were marked.
10. Point Nos.1 to 4:-
PW1 is the power of attorney holder of the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A4. The copy of account statement was marked Ext.A5. Ext.B1 was marked from the side of 2nd opposite party and Ext.B2 to B5 were marked from the side of 1st opposite party.
11. As per Ext.A1 Order form on 11/3/2020 complainant Sri. Vishnu booked a Hyundai I20 Car through his mother with the 1st opposite party. An amount of Rs. 5000/- was paid as booking charge. The price of the car was Rs.8,21,849/-. The 1st opposite party had agreed to purchase an old Maruti 800 car for Rs. 66,849/-. After deducting the exchange value the balance was Rs. 7,55,000/-. On 14/3/2020 Rs. 1,00,000/- was given as cash and Rs.1,00,000/- through account transfer. On 18/3/2020 the balance amount of Rs.5,55,000/- was paid by account transfer. 1st opposite party agreed to deliver the vehicle on the next day of payment of the full amount. There was a proposed increase of tax from 1/4/2020 to the tune of Rs. 14,919/- . To avail tax deduction complainant wanted to purchase the vehicle on or before 31/3/2020. However the vehicle was not delivered as promised due to one or other reason and finally the booking was cancelled on 22/6/2020. On 1/7/2020 1st opposite party returned an amount of Rs.7,55,000/-. Now the complaint is filed on an allegation that 1st opposite party purposefully delayed delivery of the vehicle by which complainant had to pay an amount of Rs.14,919/- as road tax. He is also claiming interest at the rate of 12% for Rs. 7,55,000/- from 18/3/2020 to 1/7/2020. It is also stated that due to the act of the opposite parties complainant sustained mental agony and inconvenience for which he is claiming an amount of Rs.50,000/-. The complaint was filed through PW1 who is the Power of Attorney Holder of Sri. Vishnu. 1st opposite party filed a version admitting the receipt of the amount. However according to them Rs. 1 Lakh each was paid on 14/3/2020 and 21/3/2020. They could not deliver the vehicle in time since stock was not available with 2nd opposite party manufacturer. They booked the vehicle with the 2nd opposite party on 23/3/2020. In the mean time a nationwide lockdown was declared due to Covid 19 pandemic and so 2nd opposite party could not despatch the vehicle from their factory. Only on 15/1/2020 the vehicle was delivered to the 1st opposite party and the matter was informed on 12/5/2020. Complainant bargained for reduction of the amount which was not acceptable to them. On 22/6/2020 complainant cancelled the booking as per a letter and on 1/7/2020 the entire amount was returned. The road tax was increased by the government and the 1st opposite party is not liable for the same. Hence according to them the complaint is only to be dismissed. 2nd opposite party manufacturer filed a version mainly contenting that the relation between them and 1st opposite party is that of principle to principle. In other words 1st opposite party is not an agent of the 2nd opposite party and so they had no vicarious liability. Since no relief is sought against them, they also prayed for dismissal of the complaint. Power of Attorney holder who is none other than the father of the complainant was examined as PW1 and Ext.A1 to A5 were marked. Opposite parties have not adduced any oral evidence Ext.B1 to B9 were marked from their side.
12. The fact that complainant booked the vehicle through his mother on 11/3/2020 is not in dispute. It is also an admitted case that the entire amount was paid by the complainant after deducting the exchange value though there is certain difference in the dates. According to the 1st opposite party the vehicle was booked on 11/3/2020 but Ext.B4 cash receipt is dated 12/3/2020. According to PW1 he paid Rs. 1 Lakh as cash and Rs. 1 Lakh by transfer on 14/3/2020 whereas Ext.B3 receipt for 1 Lakh is dated 14/3/2020 and Ext.B6 receipt for Rs. 1 Lakh is dated 21/3/2020. Ext.B6 receipt for Rs. 5,50,000/- is dated 18/3/2020. The case advanced by PW1 is that the entire amount was paid on 18/3/2020 and there was promise to deliver the vehicle on the next day. In Ext.A1 (B2) Order Form the expected date of delivery is subject to completion of all financial and documentation required by customer. Though PW1 stated that on 18/3/2020 balance amount of Rs.5,50,000/- was paid, according to 1st opposite party Rs. 1 Lakh was paid only on 21/3/2020 and to prove the same they produced Ext. B6 receipt. Ext.B7 the account statement of 1st opposite party also shows that Rs.1 Lakh was paid on 21/3/2020. PW1 admitted that from 23/3/2020 there was a Nationwide Lockdown. So the vehicle could not be transported from the factory to the dealer. PW1 also admitted that Rs. 7,55,000/- was returned to him and his case is that due to the delay in delivery of the vehicle he had to pay additional tax of Rs.14,919/-. Since the vehicle was not delivered in time as per Ext.B8 letter dated 22/6/2020 the booking was cancelled. As admitted by PW1 on 1/7/2020 1st opposite party returned the entire amount. Ext.A5 statement of Account was pressed into service to show that Rs. 7,55,000/- was credited in the account of PW1 only on 29/7/2020. But in the complaint as well as in the chief affidavit it is stated that on 1/7/2020 a Cheque for Rs.7,55,000/- was given. So Ext.A5 has no relevance. According to PW1 1st opposite party had promised that on the next date of payment of entire amount the vehicle can be delivered if that is so since the entire amount was paid on 21/3/2020 as per Ext.B6 receipt the vehicle ought to have delivered on 22/3/2020. But admitted by PW1 there was a lockdown from 23/3/2020 by which transportation of the vehicle from factory to the dealer was not possible. In Ext.B2 clause 10(b).
“ Car Registration & Delivery shall be given after realization of full payment on the Bank account of the DEALER and is subject to production and supply of car from HMIL(Hyundai Motors India Ltd)”
13. Here in this case according to PW1 there as a promise to deliver the vehicle on the next date of payment of the entire amount. Admittedly complainant, Vishnu was not available at the time of booking the vehicle. Ext.A1 (B2) is seen signed by Mrs. Sujatha who is the mother of Vishnu. Though Pw1 stated that he was also available at the time of booking his signature is conspicuously absent in the booking form and it is seen signed by Sujatha. There is no evidence on record to show that there was promise to deliver the vehicle on the next day except the solitary interested testimony of PW1. However PW1 admitted that there was a lockdown from 23/3/2020 onwards and so the movement of vehicle from factory to dealer was not possible.
14. PW1 is claiming interest at the rate of 12% for Rs. 7,55,000/- from 18/3/2020 to 1/7/2020, on a contention that he paid the entire amount on 18/3/2020 and the cheque for Rs. 7,55,000/- was given on 1/7/2020. Ext.B8 is the letter dated. 22/6/2020 cancelling the booking. According to learned counsel appearing for the 1st opposite party on receipt of Ext.B8 letter immediately on 1/7/2020 they issued cheque for Rs. 7,55,000/-.
15. Ext.A4 is the copy of cheque dtd. 1/7/2020 for Rs. 7,55,000/-. Since booking was cancelled on 22/6/2020 as per Ext.B8 letter complainant is entitled for interest for Rs. 7,55,000/- from 22/6/2020 to 30/6/2020.
16. Complainant is claiming an amount of Rs. 14,919/- on a contention of difference of tax variation. The Power of Attorney Holder of the complainant who is none other than his father was examined as PW1. He has got an allegation that the vehicle booked by his son reached the 1st opposite party in time and they sold it to some other person. However it remains only an allegation without any evidence. The complaint as well as the chief affidavit is silent whether complainant had purchased any other vehicle so that he had to pay Rs.14,919/- as additional tax. No documentary evidence is also produced to show that complainant purchased another vehicle and he had to pay Rs.14,919/- as difference of tax. In said circumstances he is not entitled to realize Rs.14,919/- as claimed. Complainant is claiming an amount of Rs. 50,000/- as compensation for the loss, inconvenience and mental agony. As discussed earlier it has come out in evidence that there was a Nationwide Lockdown from 23/3/2020 due to Covid -19 Pandemic. So the 1st opposite party cannot be blamed for the delay in supplying the vehicle. Moreover as per Ext.B8 letter dtd. 22/6/2020 complainant himself cancelled the booking and so there is no question of any mental agony and there is no reason to award compensation. These points are found accordingly.
17. Point No.5:-
In the result complaint is allowed in part.
A) Complainant is allowed to realize interest for Rs.7,55,000/- at the rate of 9% per annum from 23/6/2020 (Ext.B8) to 30/6/2020 from 1st opposite party .
B) Parties are directed to bear their respective cost.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 19th day of November, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/- Smt. Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Shajimon.C.S (Complainant)
Ext.A1 - Copy of Order Booking Form
Ext.A2 - Original RC book of Old Car.
Ext.A3 - Account Statement form 10/3/2020 to 20/3/2020
Ext.A4 - Copy of Cheque
Ext.A5 - Statement of account
Evidence of the opposite parties:-
Ext.B1 - Copy of Dealership Agreement
Ext.B2 - Copy of Order Booking Form
Ext.B3 - Copy of Receipt
Ext.B4 - Copy of Receipt dtd. 12/3/2020
Ext.B5 - Copy of Receipt dtd.18/3/2020
Ext.B6 - Copy of Receipt dtd.21/3/2020
Ext.B7 - Statement of Account
Ext.B8 - Copy of Letter
Ext.B9 - True Copy of Statement of Account.
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
