IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 16th day of August, 2021.
Filed on 16-01-2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Sholy P.R, B.A.L,LLB (Member)
In
CC/No.16/2020
between
Complainant:- Opposite parties:-
Smt.Ambika Kumary T.N 1. Sri.Abdul Latheef
W/o Sreekumar S Managing Director
Harivalsam House No.209 Hercules Automobiles Intl. Pvt.Ltd.
Vedaraplavu P.O. Sanathanapuram P.O., AC road
Charummoodu, Alappuzha Kalarcode, Alappuzha-3
(Party in person) (Adv.Sri.C.Parameswaran)
2. Sri.Mahesh (Sales manager)
Hercules Automobiles Finance
Intl. (P).Ltd, Kottamkulangara
Kayamkulam- 690502
(Party in person)
O R D E R
SMT.SHOLY P.R (MEMBER)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
The complainant booked an Ertiga ZXI model car from the opposite party on 11.05.2019 by paying an amount of Rs.11,000/-. The delivery date was said to be on 20.12.2019. before one month from the delivery date, sales manager of the opposite party named Mr. Mahesh contacted the complainant and informed that the full amount is need to be paid as the vehicle is coming with the owner’s name. To pay the amount the complainant availed a loan amount of Rs.7,80,000/- from Canara Bank Chingoli Branch. The complainant had paid the on-road price of the said car, which is Rs.10,65,330/-, excluding the booking charge to the opposite party via Canara Bank.
But there was no response from the opposite party regarding the vehicle and when the complainant tried to contact the opposite parties sales manager, he refused to pick up the call. Then the complainant directly contacted the opposite parties showroom they informed that the vehicle is on the way from Bangalore. Then the complainant again tried to contact the opposite party, but they have blocked the complainant’s mobile number. After that, the complainant contacted another staff of the opposite party and requested to give the engine number and chasis number. But that attempt was also a failure. They did not provide the said engine and chasis number to the complainant.
After that, the complainant demanded for the full refund of the amount paid via Canara Bank. The complainant requested for closing the loan amount and on 31.12.2019, the opposite party transferred the entire amount of Rs.10,65,330/- to the said account and the loan was closed. The booking amount of Rs.11,000/- was also refunded. The complainant had paid interest of Rs.7,555/- to the Bank. So the interest amount of Rs.7,555/- along with 12% interest for Rs.11,000/- and one month interest for the complainant’s own fund of Rs.2,85,330/- and 50,000/- for mental agony faced by the complainant is to be paid from the opposite party. The opposite party has to pay the excess amount for the same car booked from Indus Motors, as there may be variations in the Ex-showroom price.
Version filed by the opposite parties in the following averments:-
The complaint is devoid of merits, is not legally maintainable. There is no negligence or deficiency of service on the part of this opposite parties. This opposite parties had never instigated the complainant to purchase the vehicle in issue and the complainant had paid the amount for purchasing the Maruti Ertiga ZXI at her own volition. The delivery of the car was depending upon the seniority of the complainant in terms of the date of deposit and the opposite parties had never assured the complainant that the vehicle would be delivered on 20.12.2019. The opposite parties never told the complainant that the vehicle will be delivered on 20.12.2010. The opposite parties are not aware of the alleged loan transaction of the complainant with any financial institution and the complainant may be put to strict proof thereof. If at all the complainant had availed loan, the same was availed at her convenience without the intervention of the opposite parties. The complainant is liable to pay the price of the car as prevailing at the time of delivery. The complainant remitted an amount of Rs.10,65,330/- instead of the actual price of the vehicle at the time of billing. Hence, he was called upon to remit the balance payment, which cannot be faulted with. The allegation that the opposite parties had informed the complainant that the vehicle was not in stock etc are false. The allegation that the complainant had paid the entire amount of the vehicle etc are false. The complainant failed to fulfill his obligation under the contract of sale of the vehicle by remitting the full value of the vehicle inspite of the repeated demands made by the opposite parties. The allegation that the complainant had remitted three installments in the loan account etc are false. The opposite parties have no role in the matter of the loan transaction of the complainant with bank as alleged. The terms and conditions of the financial assistance alleged in the complaint is between the complainant and the financier. This opposite parties had duly informed the complainant about the price of the vehicle. The opposite parties had never adopted any unfair trade practice and the complainant had not suffered any mental agony and inconvenience as alleged and the complainant is not entitled to recover any amount from the opposite parties. The vehicle was not delivered to the complainant for non payment of the balance amount. The opposite parties have not collected any excess amount from the complainant as alleged. The complainant had voluntarily rescinded the contract of sale and received the entire amount remitted by her in full and final settlement. The instant claim is only an afterthought and raised with a view to extract unconscionable amount from the opposite party.
On the above pleadings following points were raised for consideration:-
1. Whether there is any deficiency in service on the part of opposite parties as alleged?
2. Whether the complainant is entitled to get any reliefs sought for in the complaint?
3. Reliefs and costs?
Evidence in this case consists of oral evidence of PW1 and Ext.A1 to A4 on the side of the complainant. Opposite party has not adduced any oral or documentary evidence. Heard both sides.
Point No.1 and 2
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A4.
Complainant in this case had booked a car from opposite party No.1 by executing Ext.A1 order booking check list by remitting an advance amount of Rs.11,000/- to the opposite party No.1 on 11.05.19. According to the complainant at the time of booking the car the 1st opposite party made believe her to deliver the vehicle on 20.12.2019. On the basis of that by believing the words of 2nd opposite party who told that the entire amount of the cost of the vehicle must be paid before one month of its delivery since the same was delivered in the name of the complainant from company. Hence the complainant availed a loan from Canara Bank, Chingoli branch for a sum of Rs.7,80,000/-. As per the proforma invoice the total cost of the vehicle was 10,76,330/- in which Rs.11,000/- was paid and the balance amount of Rs.10,65,330/- had remitted through Canara bank with his own fund on 30.11.2019. Though the complainant had paid entire amount as per Ext.A2 proforma invoice the opposite party No.1 had not delivered the vehicle to the complainant. The further allegation is that the 2nd opposite party mislead the complainant by saying that the delivery of the vehicle was postponed due to not taking the temporary registration. There after the 2nd opposite party and staff of the opposite party No.1 on several occasions delayed the delivery of vehicle. Realizing the foul play committed by the opposite parties the complainant demanded refund of the amount already paid to the 1st opposite party. Thereby on 31.12.2019 the 1st opposite party transferred Rs.10,65,330/- to the bank account of the complainant and also paid Rs.11,000/- directly to the complainant. Further allegation is that the complainant had to pay Rs.7,555/- to Canara bank towards the interest of the loan which he availed for purchasing the car in question. According to PW1 the said amount had remitted without any use on her. Besides that she wants interest @ 12% for Rs.11,000/- which she had paid to 1st opposite party as advance for purchasing the vehicle and the same was in idle on her behalf. Further she had paid Rs2,85,330/- for full settlement of the total cost of the vehicle to the opposite party No.1. Hence she filed the complaint for realizing such amounts as interest for the same along with compensation. Opposite parties filed version contenting that the delivery of the vehicle in question was delayed only due to the negligence on the part of complainant since she had not paid the total cost of the vehicle in question. There was no assurance to deliver the vehicle on 20.12.2019. There is no deficiency in service on the part of opposite parties and so they prayed for dismissal of the complaint with compensatory cost. The complainant got examined as PW1 and Ext.A1 to A4 marked.
On perusal of Ext.A1 advance booking order it is revealed that the delivery of the vehicle was offered in a tentative period of 6 months. Booking date is 11.05.2019. As per Ext.A1 the period offered for delivery of vehicle is attained in November 2019. Of course we have to believe the allegation raised by the complainant regarding the date of delivery of the vehicle ie, on 20.12.2019. If so, the opposite parties are liable to pay the amount which the complainant had already remitted as interest to the bank in her vehicle loan account, it is Rs.7,555/- shown in Ext.A3 bank statement. Besides that it is the acts of the opposite parties which leads the complainant to file this case and thereby the opposite parties are liable to pay cost of the proceedings to the complainant. Considering the facts and circumstances of the complaint we are not ordering compensation in this case. These points are found accordingly.
Point No.3
In the result complaint stands allowed in part.
- Opposite parties are directed to pay Rs.7,555/- (Seven thousand five hundred and fifty five only) to the complainant within 30 days of receipt of this order.
- The complainant is entitled to realize an amount of Rs.2,000/- (Two thousand only) from opposite parties as cost of the proceedings.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 16th day of August, 2021.
Sd/-Smt. Sholy P.R (Member):
Sd/-Sri.S.Santhosh Kumar (President):
Appendix:-
Evidence of the complainant:-
PW1 - Ambika Kumary T N (Witness)
Ext.A1 - Copy of order booking/ commitment checklist
Ext.A2 - Copy of proforma invoice dtd. 21.11.19
Ext.A3 - Copy of statement of account from 01.01.2020 to 10.01.2020
Ext.A4 - Customer docket
Evidence of the opposite parties:- NIL
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
