BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 120/2007 Filed on 11.05.2007

Dated : 15.06.2010

Complainant:

John Bosco. J, Remya, Clappana P.O, Karunagappally, Kollam.

Opposite parties:

1. M/s Cheran Automobiles, Cape Road, Neeramankara, Pappanamcode P.O, Thiruvananthapuram-18.

   (By adv. S. Ajith)

2. Hero Honda Motors Ltd., 34, Community Centre, Basant Lak, Vasant Vihar, New Delhi-110 057.

This O.P having been heard on 12.05.2010, the Forum on 15.06.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Brief facts of the case are as follows: An advertisement was published on all dailies on 20^th September 2006 that one Motorola mobile phone is free with the purchase of a Hero Honda motor cycle from 20^th September to 31^st October 2006. Based on this the complainant visited the 1^st opposite party's showroom and booked one Glamour FI (Red) with an advance of Rs. 10,000/- on 20.09.2006. But the 2^nd opposite party did no supply the vehicle before the expiry of the offer date i.e; 31^st October 2006. All the occasions he enquired about the vehicle to the 2^nd opposite party. They assured that “you are in the scheme for the free mobile phone.” On 30.10.2006 when he approached the 1^st opposite party with balance amount the Sales Manager confirmed the offer and he was not permitted to remit the balance amount and told him to wait for one more week. But the opposite party supplied the vehicle only on 21.12.2006. The complainant alleges that if the opposite parties properly informed the complainant when the complainant visited the office on 30.10.2006, the complainant could take delivery of another model and avail the free offer. Hence this complaint.

The 1^st opposite party in this case is the dealer and the 2^nd opposite party is the manufacturer of Hero Honda Motors Ltd. In the version 1^st opposite party stated that the allegation of the complainant is that he has not been provided with a free gift offered by the opposite party for a limited period. The complainant has no contention that he has purchased the vehicle during the subsistence of the offer and he has been declined the gift. Therefore the complaint is not sustainable and the same deserves to he dismissed. The opposite party submits that it is true that the opposite parties have published an advertisement of free gift with the purchase of motor vehicles during the period from 20^th September to 31^st October 2006. The allegation that the complainant visited the opposite party on seeing the advertisement is not correct and the same is denied. The complainant visited the opposite party for the booking of a motor cycle of the model Glamour FI with red colour. He was informed at that time that the said type of vehicle is not available in stock and can be supplied on receipt of the vehicle from the manufacturer. He agreed and booked a vehicle by paying the booking fee of Rs. 10,000/-. This opposite party never made a promise that the vehicle will be supplied within the offer period or that the offer will be available to the vehicle booked during the offer period. The complainant was informed by the Sales Executive that the offer will be available only if the vehicle is purchased and not on booking. The complainant has not visited the opposite party on 30.10.2006 as alleged. He was informed about the availability of the vehicle over phone and he took delivery of the vehicle on 21.12.2006. He has taken delivery of the vehicle without any demands. Opposite party submitted that after few days he raised a demand for the free gift. The opposite party has informed him that the vehicle was purchased after the offer period and as such he is not eligible for the offer. He gave a notice during March, 2007 and the same was replied by the opposite party on 28.03.2007. The Sales Manager or General Manager never gave any assurance to the complainant that he will be given the free gift as alleged. The opposite party further stated that the complaint is filed only on an experimental basis and the complainant is not entitled to any reliefs.

Complainant has filed proof affidavit and produced 3 documents, that documents were marked as Exts. P1 to P3. The complainant has also produced the paper cutting of the advertisement. Opposite parties did not adduce any evidence.

The points that would arise for consideration are:-

1. Whether there has been deficiency in service or unfair trade practice occurred from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- Complainant's case is that attracted by the advertisement of the opposite party about the free gift at the time of purchasing the Hero Honda vehicle, he approached the opposite parties to purchase a Hero Honda bike on 27.09.2006 and booked one Glamour FI (Red) bike and paid Rs. 10,000/- as advance. But the opposite parties did not supply the vehicle before the expiry of the offer period. The complainant further alleges that the opposite parties assured the complainant that he will be get the offer. The complainant was willing and ready to pay the full amount before the expiry of the offer period. But the opposite parties did not permit him to remit the amount. The complainant booked the bike on 27.09.2006 and the opposite party supplied the vehicle only on 21.12.2006 i.e; after 3 months.

To prove his case complainant has filed proof affidavit and examined him as PW1. 1^st opposite party cross examined him. The document produced as Ext. P1 is the copy of the receipt of advance booking amount dated 27.09.2006. Ext. P2 is the photocopy of the pass book of the complainant. From this document we can see that the complainant had withdrawn Rs. 25,000/- on 30.10.2006. The complainant argued that he had approached the opposite party on 30.10.2006 to remit the balance amount of the bike. Through this document the complainant has proved his statement. Ext. P3 is the copy of notice issued by the complainant to the opposite party, demanding the free offer. Complainant has produced the advertisement in which the offer has been published by the opposite party. Opposite parties in this case has not adduced any evidence. From the evidences adduced by the complainant we can assume that attracted by the advertisement of the opposite party, the complainant decided to buy the bike. To get the free offer, the complainant booked the bike at that period itself. But the opposite parties supplied the bike only after the expiry date of the offer. The act of the opposite party in publishing attractive offers to attract customers to buy their products and later on not supplying the same within the offer period amounts to unfair trade practice on the part of the opposite parties. Such act of the opposite parties in deceiving the customers by publishing fake advertisement is a clear unfair sales promotion tactics on the part of the opposite parties. In this case complainant booked the vehicle on 27.09.2006 i.e; within free offer period, but the opposite parties supplied the vehicle only on 21.12.2006, i.e; after 3 months and at that time the offer period expired. 3 months delay in supplying the vehicle is also amounting to deficiency in their service. The complainant in this case was ready to purchase the vehicle within the offer period. From the above mentioned discussions we are of the view that there is unfair trade practice and deficiency in service from the side of opposite parties. Hence the opposite parties are liable to pay compensation to the complainant. The complaint is allowed.

In the result, the 2^nd opposite party is directed to pay Rs. 5,000/- as compensation and Rs. 1,500/- as costs to the complainant. Since the case is very old now, there is no relevancy of the free offer of mobile phone. Time for compliance one month from the date of receipt of the order. Thereafter 9% annual interest shall be paid to the entire amount.

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 15^th day of June 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

jb

C.C. No. 120/2007

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - John Bosco. J

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of receipt No. 43220 dated 27.09.2006

P2 - Photocopy of the pass book of the complainant.

P3 - Photocopy of the notice issued by the complainant to the

opposite party dated 26.03.2007.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT