BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

F.A. 506/2008  against C.C.  648/2006,  Dist. Forum-I, Hyderabad.

Between:

M/s. Fortune  Automobiles Pvt. Ltd.

H.No. 6-3-569/2,  Rockdale

Somajiguda, Hyderabad

Rep. by its Finance Manager.                    ***                           Appellant/

            Opposite Party       

                                                                   And

Garlapati Sanjeeva Reddy

S/o. Raghupathi Reddy

Age: 40 years, Flat No. 401

Sai Durga  Apartments

H.No. 1-4-57, Prabhatnagar

Maruthinagar, Chaitanyapuri

Hyderabad.                                                           ***                         Respondent/

Complainant

Counsel for the Appellant :                         M/s. M.V.K. Viswanathan

Counsel for the Respondent:                       M/s. B. V. Krishna Murthy

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

    &

                                 SMT. M.SHREESHA, MEMBER.
                                                 

FRIDAY, THIS THE TWELFTH DAY OF NOVEMBER TWO THOUSAND TEN

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President)

***

1)                 This   is an appeal preferred by the opposite party  against the order of the Dist. Forum  directing it to pay Rs. 15,586/-  being the excess amount collected  with interest  @ 15% p.a.,  together with punitive damages of Rs. 50,000/-  and costs.

2)                The case of the complainant in brief is that the appellant is a dealer of   Ford cars.    He purchase Ford Fiesta under proforma invoice dt.  21.3.2006  for  Rs. 8,23,647/-.  He paid Rs.  1 lakh in cash at the time of booking.    He applied for loan from State Bank of Hyderabad (SBH) which had paid Rs. 7, 23,647/- to the appellant on   22.3.2006.  Despite payment of entire amount the appellant though promised to send necessary invoice for the purpose of applying to RTA for registration it did not do so.    He issued legal notice on 18.5.2006 but of no avail.    He also requested the appellant to forward R.C. book for endorsement of bank under   hypothecation.    However, he has received a notice from  the appellant on   4.6.2006  alleging that  he colluded with  one Mr. L. Manohar, Sales Executive  to defraud  to a tune of Rs. 2,80,000/-.    It was only to cover up its own latches for which he had given reply notice alleging that it had collected  Rs. 8,23,647/- while the actual price was Rs. 8,08,061/-.    When the appellant gave criminal complaint to the police alleging that   the sales executive had mis-appropriated the amounts, when police summoned he showed all the documents.    This was made in order to cover up their latches in not sending the invoice.    He also booked another Ford Fiesta in the name of his friend  Sri M. C. Koti Reddy and paid Rs. 2,50,000/-.   Since there was delay on the part of appellant the booking was cancelled and the amount was refunded.    He had also paid insurance premium through  another agent, however the appellant had refunded the amount along with discount  on handling  charges and registration charges to a tune of  Rs. 30,000/-.    In all the appellant had refunded Rs. 2, 80,000/-.  Therefore he filed the complaint seeking directions to the opposite party to send the invoice, pay Rs.  15,586/- being the difference in price with interest @ 24% p.a., besides Rs. 1 lakh towards mental agony and costs.

3)                 The appellant resisted the case.    It admitted that it is a dealer of Ford Fiesta Cars.    The complainant had purchased a car through one of its Sales Executive Sri L. Manohar by initially paying Rs. 50,000/- in cash   under receipt dt.  9.3.2006.   He availed loan from State Bank of Hyderabad   by way of demand draft dt. 22.3.2006 for Rs. 7,23,647/-. Thus he paid Rs. 7, 73,647/- out of Rs. 8,08,061/-.  He had to pay balance of Rs. 34,414/-.    Sri Manohar  played fraud by giving wrong credits to the complainant’s  account  by crediting  D.D. No. 195987 Dt. 3.4.2006  drawn on ICICI bank  for Rs. 5,20,384/- originally received from one Surender Banerjee and another D.D. dt. 3.4.2006 for Rs. 5,20,000/- drawn on SBI from one Smt.  Chandravathi.    In addition to that he gave credit of Rs. 50,000/- initially paid by the complainant at the time of booking of the car.    Thus he had paid Rs. 10, 90,384/- as against required amount of Rs. 8,08,861/-. At his request it had issued D.D. for Rs. 2, 80,000/- dt.  5.4.2006 which was encashed by him.    When the fraud was detected it had issued a report to the police against him.  It was registered  u/s 420 & 106 IPC.    Evidently the complainant had taken delivery of  car on 5.4.2006 and received the D.D. issued by it proving that he was hand in glove with  Mr. L. Manohar.  It is still under investigation.    On the notice issued by the complainant  it had given a reply dt. 4.6.2006.    The complainant had put up a counter claim for the first time  that the money  was paid by him on behalf of his friend Mr. C. Koti Reddy for booking a vehicle without any documentary  evidence.    This was invented for the purpose of  complaint.    The complainant had sent two receipts for Rs. 50,000/- each,   produced before the bank  bearing   same receipt Nos. 4472.   While one receipt bears the stamp and another  was un-stamped.    This is a clear manipulation.    When it sent  reply notice the postal authorities returned the cover with endorsement ‘un-delivered hence return to sender’.    The difference in rates shown by the complainant  pertains to  the  insurance premium and registration charges of the vehicle.    The complainant has  plied the vehicle for more than 11,000 KMs after getting the  first service on  24.4.2006  at 1521 KMs, second service  on 5.6.2006 at 5,286 KMs  and third service on 14.8.2006 at 10,850 KMs  free of cost.    Therefore it prayed for dismissal of the complaint with costs.   

4)                The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A8 marked while the  appellant filed the affidavit evidence of its  Finance Manager and  got Exs. B1 to B9 marked. 

5)                The Dist. Forum after considering the evidence placed on record opined that  the appellant had received excess amount of Rs. 15,586/- which it was liable to refund with interest  @ 15% p.a.,  from  23.3.2006 together with  Rs. 15,000/- towards punitive damages and  Rs. 2,000/- towards costs.

6)                Aggrieved by the said decision, the  appellant preferred the  appeal contending that the Dist. Forum did not consider the facts or law in correct perspective.     The complainant had failed to prove that he  had paid Rs. one  lakh in cash.    The Dist. Forum did not consider  the order in  R.P. No. 191/2006   dt.  22.9.2006 wherein this Commission directed it  to issue invoice which it had  complied and without considering the said fact  the Dist. Forum observed that the same was not complied even after lapse of 11 months.  It  is a travesty of truth  and contrary to record, and awarding punitive damages  on the said ground is bad under law.      No proof was filed in order to prove that the amount was paid on behalf of his friend C. Koti Reddy.  The complainant in fact has to pay Rs. 34,414/- and therefore  it prayed for dismissal of the complaint with costs.

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is undisputed fact that the complainant has purchased Ford Fiesta car from the appellant dealer.    While the complainant alleges that he had paid Rs.  1 lakh at the time  when he booked the car  as against  proforma invoice  of Rs. 8,23,647/- and remaining Rs. 7,23,647/-  by way of  D.D.  dt. 22.3.2006 having taken  the vehicle loan,  the appellant,  dealer had contended that the complainant had paid only Rs. 50,000/- in cash.   Later he paid Rs. 7,23,647/- through D.D. issued by State Bank of Hyderabad, altogether Rs. 7,73,647/- as against   cost of Rs. 8,08,061/-.   Ex. A1 proforma invoice filed by the complainant discloses that the cost of the car was Rs. 8,23,647/-.  An amount of Rs. 25,597/- was shown towards  insurance,  Rs. 3,500/- towards handling charges,  Rs. 5,000/- towards extra warranty and Rs. 3,000/- towards others.  The actual value of the car was Rs. 8, 08,061/-.    The complainant has undoubtedly paid Rs. 7,23,647/- by way of  D.D. obtained from  State Bank of Hyderabad vide Ex. A2  having obtained bank loan.    When the complainant alleged that he had paid Rs. 1 lakh towards advance, the appellant by registered notice Ex. A6 dt. 4.6.2006 had categorically mentioned that only an amount of Rs. 50,000/- was paid under receipt No. 4472 dt. 9.3.2006.    The value of the car including accessories was Rs. 8, 08,061/- and after deducting Rs. 7, 73,647/- he had to pay Rs. 34,414/-When he gave reply through his advocate he reiterated that he had paid Rs. 1 lakh in cash as advance.    He did not allege that  he took another car on behalf of his friend  Sri C. Koti Reddy and paid Rs. 2,50,000/-.    Since there was delay,  on his instructions,  he cancelled the booking and took refund of the amount.  Obviously he intends to explain the payment of other Rs. 50,000/- by linking to the above said transaction.  There is no proof that he got registered another car in the name of his friend.    

9)                The appellant in order to prove that the complainant had paid Rs. 50,000/- only and not Rs. 1 lakh filed Exs. B1 & B2,  two receipts for Rs. 50,000/- each.    While Ex. B2 bears seal of the appellant company,  Ex. B1 does not bear such seal.    The appellant alleges that one of the receipts was  forged, however no steps were taken to prove the said fact.    The complainant sought for invoice in the complaint,  and in fact filed I.A. No. 594/2006 for delivery of invoice.  The Dist. Forum by interim order  directed the appellant to return invoice against which the appellant preferred R.P. No. 191/2006.  This Commission while confirming return of invoice,  however directed it subject to result of complaint.    The complainant also undertook not to alienate the vehicle.    The order has been complied and invoice was issued.    For the allegation of the complainant  that he could not ply the car for want of invoice,   the appellant had categorically  stated that the complainant has been using the car  and in fact  three  services were attended to  by giving details of KMs  run  and the dates on which free services were made.       The complainant did not dispute in his affidavit evidence about the said averments.    The Dist. Forum thinking that invoice was not received,  observed that the complainant could not run   the  car  for 11 months,  and  awarded  Rs. 50,000/- towards  punitive damages.    This is obviously incorrect.    Assuming that the complainant had paid the entire cost of the car by 22.3.2006,  invoice  was returned pursuant to orders of this Commission in R.P. No. 191/2006 dt. 22.9.2006.    Evidently there was no dispute as to the amount that the complainant had to pay.    The contention that the complainant  had plied the vehicle  for more than 11,000 KMs after getting the  first service on  24.4.2006  at 1521 KMs, second service  on 5.6.2006 at 5,286 KMs  and third service on 14.8.2006 at 10,850 KMs  free of cost was not in dispute.  Therefore he could not have moved the vehicle for 11 months has no basis.    Obviously he has been running the car without receiving original invoice.    The complainant has wrongly mentioned that the price of the car was Rs. 8, 23,647/- and alleges that he had paid Rs. 15,586/- more than the cost of the car.    At the cost of repetition, we may state that the value of the car was only Rs. 8, 08,061/-.  The complainant had paid Rs.  7,73,647/-.    He could not prove that he had paid Rs. 1 lakh.  What all he proved was  that he had paid Rs. 50,000/- initially at the time of booking.    He intends to explain  the payment  by projecting that he had paid the amount on behalf of his friend one Sri C. Koti Reddy.  However,  he failed to establish the said fact.    The remaining amount paid towards insurance, handling charges, extra warranty etc.  this is evident from a perusal of Ex. A1.    Therefore it can be said beyond doubt that the appellant has not collected any excess amount nor liable to pay any amount.    The complainant has come up with a false version in order to get the invoice without payment of balance of Rs. 34,414/-.    However, the appellant did not claim the said amount.  We do not intend that an order   need be passed for return of the said amount.    Therefore, we are of the opinion that the Dist. Forum was in error in ordering refund of  Rs. 15,586/-  with interest @ 15% p.a.,   together with punitive damages of Rs. 50,000/- and costs of Rs. 2,000/- when already  invoice has been received.

10)               In the result the appeal is allowed  setting aside the order of the Dist. Forum.  Consequently the complaint is dismissed.  However, in the circumstances of the case no costs.   

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

   Dt.  12.  11.   2010.

*pnr

“UP LOAD – O.K.”