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. 199/2008 Filed on 29.08.2008 Dated : 30.11.2009 Complainant: Mujeeb. M, S/o A. Mohammed Ismail, Anandavilasom, Thempammoodu, Pullampara P.O, Thiruvananthapuram District.
(By adv. A. Shiju) Opposite party:
M/s Indus Motor Co. Pvt. Ltd., Cordial Towers, Near St. Mary's School, Pattom P.O, Thiruvananthapuram-4.
(By adv. P.K. Aboobacker)
This O.P having been heard on 30.10.2009, the Forum on 30.11.2009 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that complainant had booked one Swift D'zire Diesel car with the opposite party on 16.04.2008, that opposite party told the complainant that the car would be delivered only on full payment, that complainant agreed the terms and conditions and received an invoice dated 16.04.2008, that the clause (ii) of the invoice and clause 3 of the order booking form stated that “price prevailing at the time of invoicing shall only be applicable”, that complainant took the car on payment of Rs. 50,000/- that the remaining amount of Rs. 3,86,000/- paid on the very next day (17.04.2008) and that the loan amount for Rs. 2,00,000/- was sanctioned on 22.04.2008. Opposite party did not deliver the vehicle to the complainant. Opposite party issued cheque for Rs. 28,949/- being a portion of the Road Tax to the complainant to pay directly. On 23.06.2008 opposite party called the complainant on phone and demanded payment of Rs. 33,660/- for the delivery of the vehicle in contravention to the invoice. Complainant paid the amount on the very same day. The officials told that the vehicle will be delivered on 28.06.2008 itself. When the complainant approached opposite party for taking delivery of the vehicle opposite party further demanded payment of refunded tax amount of Rs. 28,949/-. Complainant paid the same and took delivery of the car. As per the invoice given by opposite party complainant had to pay Rs. 6,37,744/-. But opposite party collected an amount of Rs. 6,62,070/-. Hence this complaint to direct opposite party to pay a sum of Rs. 52,000/- with interest thereon to the complainant. Opposite party filed version contending that the complaint is not maintainable in law and facts, that complainant has no cause of action against the opposite party. Complaint is liable to be dismissed for non-joinder of necessary parties, that the Maruti Udyog Ltd., the manufacturer of Maruti vehicles fixed the price of the vehicle in accordance with the existing laws and rules permitted, and that opposite party did not collect any extra amount as stated in the complaint. Opposite party is only a dealer of Maruti vehicles manufactured by Maruti Udyog Ltd. and opposite party has no control or supervision over the price fixed by Maruti Udyog. Opposite party told the complainant that the vehicle would be delivered only on full payment, that in the terms and conditions it is clearly mentioned that the vehicle would be delivered depending upon the supply from the manufacturer and the price prevailing at the time of delivery of the vehicle will be applicable. The final price of the vehicle will be shown in the invoice at the time of delivery of the vehicle and the customer is liable to pay the said amount. If complainant felt that for any reason that the invoicing price is high, he was free to cancel the booking and he was entitled to get back the advance amount paid by him with 6% interest as mentioned in the order booking form. After taking delivery of the vehicle complainant cannot raise such contentions which are not maintainable as per law. Opposite party had received Rs. 1,92,410/- from the financier of the complainant. Opposite party collected Rs. 6,62,062/-with the following details: Vehicle cost Rs. 6,03,853/-, Tax Rs. 36,231/-, insurance Rs. 17,083/-, extended warranty Rs. 2,395/- and registration Rs. 2,500/-. Complainant is not entitled for any one of the reliefs sought for in the complaint. Hence opposite party prayed for dismissal of the complaint. The points that arise for consideration are:- Whether the opposite party has collected excess amount from the complainant? Whether there is deficiency in service on the part of opposite party? Whether the complainant is entitled to get compensation?
In support of the claim, complainant has filed affidavit and Exts. P1 to P6 were marked. Complainant has been cross examined by the opposite party. Opposite party did not file affidavit, but marked two documents as Exts. D1 & D2. Points (i) to (iii):- Admittedly, complainant had booked one Swift D'Zire Diesel car with opposite party on 16.04.2008. It has been the case of the complainant that he had remitted Rs. 50,000/- on 16.04.2008, Rs. 3,86,000/- on 17.04.2008 and loan amount of Rs. 2,00,000/- was sanctioned on 22.04.2008, thereby he had done his part as per the invoice. It is further submitted by the complainant that after several days opposite party had issued a cheque for Rs. 28,949/- to him to pay the road tax directly and that on 23.06.2008 opposite party demanded payment of Rs. 33,660/- for delivery of the vehicle in contravention to the invoice. It is submitted by the complainant that when he reached opposite party's office for delivery of the vehicle, opposite party demanded further payment of Rs. 28,949/- and the same was paid and took delivery of the car. It is argued by the opposite party that opposite party had told the complainant that the vehicle would be delivered to him only on full payment. It is the say of the opposite party that in the terms & conditions printed in the order Booking form it is clearly mentioned that the vehicle will be delivered depending upon the supply from the manufacturer and the price prevailing at the time of the delivery of the vehicle will be applicable and the final price of the vehicle will be shown in the invoice at the time of delivery and the customer is liable to pay the said amount. It is further argued by the opposite party that if the invoicing price is high, complainant was free to cancel the booking and he was entitled to get back the advance amount paid by him with 6% interest. It is further submitted by the opposite party that though loan amount of Rs. 2,00,000/- was sanctioned, opposite party had received only Rs. 1,92,410/- from the financier after their deduction towards the loan. Ext. P1 is the copy of the proforma invoice dated 16.04.2008 issued by the opposite party. In Ext. P1 it is seen specifically printed that price quoted (in the proforma invoice) is current and subject to change without notice, price prevailing at the time of invoicing shall only be applicable, delivery as per priority subject to availability of stock etc. Ext. P2 is the copy of the order booking form dated 16.04.2008. As per Ext. P2, model booked is Swift D'zire Vdi, Colour booked MM Black amount Rs. 50,000/-. Ext. P3 series are receipts for Rs. 50,000/- dated 16.04.2008 towards booking payment against Swift, Rs. 3,86,000/- dated 17.04.2008 towards payment against Swift D'zire Vdi, Rs. 28,806/- dated 7 July 2008 towards payment and Rs. 33,660/- dated 23 June 2008 towards payment against Swift D'zire Vdi. Ext. P4 is the copy of the amortization schedule which is not seen signed by the issuer. Ext. P5 is the acknowledgement card. Ext. P6 is the copy of the advocate notice dated 18.07.2008. Ext. D1 is the copy of the stock in hand report of Indus Motor Co. Pvt. Ltd as on 17.04.2008. Ext. D2 is the copy of the stock in hand report of Indus Motor Co. Pvt. Ltd.. as on 20.06.2008. Complainant has not furnished the invoice without which the price prevailing at the time of invoicing and date of invoice cannot be assessed. Ext. P1 is the copy of the proforma invoice which is seen dated 16.04.2008. On going through the Ext. P3 series receipts, an amount of Rs. 50,000/- was given as booking payment on 16 April 2008, Rs. 3,86,000/- was remitted towards payment on 17 April 2008, Rs. 28,806/- was remitted on 7 July 2008 and Rs. 33,600/- was remitted on 23 July 2008. It is pertinent to note that complainant has agreed the terms and conditions as seen in Ext. P2 order Booking Form. As per clause 1 of the terms & conditions of sale, at the time of booking, customers are required to deposit only C-Form (booking amount); price of the vehicle, payment towards local sales tax, dealer margin etc. should only be paid at the time of taking delivery. Clause 2 of Ext. P2 says vehicles will be delivered strictly in the order of full C-Form (Booking amount) price deposited by customers. Approximate delivery period given on the order booking is only indicative. Vehicle delivery is, however, subject to production of vehicle by manufacturer. As per clause 3, prices and schemes prevailing at the time of invoicing of the vehicle will be applicable. Complainant has no case that opposite party had not issued the invoice to him. Opposite party has admitted in their version that they have collected Rs. 6,62,062/- from the complainant, of which Rs. 6,03,853/- is towards vehicle, Rs. 36,231/- towards tax, Rs. 17,083/- towards insurance, Rs. 2,395/- towards extended warranty and Rs. 2,500/- towards registration. In this case complainant never furnished the invoice, which is the primary document to show the price and date of invoice of the said vehicle. Complainant has no case that opposite party has not issued the invoice. The initial burden of proving the case would rest on the complainant. Complainant has not proved the case with cogent and clinching evidence. In view of the matter and in the light of evidence available on records, there is nothing to attribute any deficiency on the part of opposite party. Complaint has no merits at all which deserves to be dismissed. In the result, complaint is dismissed. Parties shall bear and suffer their costs. 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 30th day of November 2009.
G. SIVAPRASAD, President. BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
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C.C. No. 199/2008 APPENDIX I COMPLAINANT'S WITNESS : PW1 - M. Mujeeb II COMPLAINANT'S DOCUMENTS : P1 - Photocopy of proforma invoice dated 16.04.2008 issued by opposite party. P2 - Original order booking form No. 5954 dated 16.04.2008. P3 - Photocopy of receipt dated 18.04.2008 issued by opposite party. P3(a) - Photocopy of receipt dated 07.07.2008 issued by opposite party. P4 - Photocopy of amortization schedule issued by opposite party. P5 - Photocopy of acknowledgement cards addressed to opposite party. P6 - Photocopy of legal notice addressed to opposite party dated 19.07.2008.
III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : D1 - Photocopy of stock in hand details dated 20.06.2008 produced by opposite party. D2 - Photocopy of stock in hand details dated 17.04.2008 produced by opposite party.
PRESIDENT
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