IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA
Dated this the 21st day of May, 2013.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C. No. 178/2012 (Filed on 16.11.2012)
Between:
George. M. Jacob,
Advocate & Notary,
Pathanamthitta
Muringasseril Kanamoottil House,
Kumbanad P.O.,
Thiruvalla – 689 547.
(By Adv. Mini Lovejith) … Complainant.
And:
1. M/s. Maruti Suzuki India Ltd.,
Represented by its Manager,
Plot No.1, Nelson Mandel
Road, Vasant Kunji,
New Delhi – 110 070.
2. The Regional Manager,
Regional Office (South III),
Maruti Suzuki India Ltd.,
2nd Floor, Tutus Tower,
NH-47, Bypass, Padivattom,
Cochin – 682 024.
3. The Manager,
Popular Vehicles & Services Ltd.,
Pathanamthitta Branch.
4. The Manager,
Popular Vehicles & Services Ltd.,
S.H. Mount Road,
Kottayam – 686 006.
(By Adv. G. Ajithkumar for 4th O.P) … Opposite parties.
ORDER
SRI. JACOB STEPHEN (PRESIDENT):
The complainant approached this Forum for getting a relief against the opposite party.
2. The complainant’s case is that he had booked a Maruti Swift VD1 Diesel Car manufactured by the first opposite party through the third opposite party by paying an amount of Rs. 10,000/- as advance on 02.08.2011 vide receipt No. OBF 13188 issued by the third opposite party. Thereafter on 21.03.2012, the complainant paid Rs. 5,83,203/- as the balance price of the car as directed by the third opposite party vide demand draft drawn on Punjab National Bank, Pathanamthitta. The car was delivered on 23.03.2012 by the third opposite party. At that time, third opposite party demanded an amount of Rs. 10,000/- more as additional price of the car. The complainant paid the said amount under protest. The manufacturing date of the vehicle is February 2012 and the said vehicle was delivered from the company before 2012 Budget. So the amount of Rs. 10,000/- collected by the third opposite party at the time of delivery is illegal and the opposite parties are liable to return the said amount. Therefore, the complainant sent a legal notice to opposite parties 1 to 3. The third opposite party sent a reply stating that the price increase came into effect on 15.03.2012 and he is not liable for the return of the increased price. However, the first opposite party refunded an amount of Rs. 3,000/- to the complainant by demand draft dated 18.05.2012. Even then the balance amount and its interest were not returned by the opposite parties till date. The non-return of the excess price collected by the opposite parties is an illegal act and hence opposite parties are liable to the complainant for the same. Hence this complaint for the realization of Rs. 18,631/- under various heads along with future interest at the rate of 12% from the opposite parties.
3. Opposite parties 1 and 2 filed their version directly by post.
4. The gist of the contentions raised by opposite parties 1 and 2 in their version is as follows: The complainant purchased the car from the third opposite party on the basis of an order booking form dated 02.08.2011 executed between the complainant and the third opposite party. The delivery of the vehicles manufactured by the first opposite party to the third opposite party is on the basis of an agreement executed between the first opposite party and third opposite party. The complainant and the first opposite party had not executed any agreement for the sale and purchase of a car. So there is no privity of contract between the complainant and the first opposite party. The payments were made by the complainant to the third opposite party. The first opposite party never sell the vehicles directly to customers. The first opposite party sells the vehicles to its authorized dealers under the dealership agreement. The answering opposite parties is not responsible for any act of omission or commission on the part of opposite parties 3 and 4. The relationship between the answering opposite parties and opposite parties 3 and 4 are on principal to principal basis as per dealership agreement executed between them. The answering opposite parties has not collected Rs. 10,000/- towards price increase of vehicle from the complainant. The vehicle was delivered on 23.03.2012 which is subsequent to the announcement of Central Budget. The complainant is liable to pay the difference in price on account of the price increase at the time of invoice. It is also agreed by the complainant at the time of booking. The complainant also failed to place any materials on record to substantiate his claims against the answering opposite parties. The answering opposite parties also denied that they have neither refunded an amount of Rs. 3,000/- to the complainant nor liable to make payment of interest as alleged. Thus in all respects, answering opposite parties are not liable to the complainant. With the above contentions, opposite parties 1 and 2 prays for the dismissal of the complaint against them.
5. Third opposite party is exparte.
6. 4th opposite party filed their version with the following main contentions: They admitted the sale of the vehicle. According to them, they have collected only the actual price of the vehicle and the actual price of the vehicle as on the date of delivery is shown in the invoice issued by them to the complainant. The price shown in the invoice is Rs. 6,13,107/-. As per the order booking form, the complainant is liable to pay the prevailing price at the time of delivery. The escalation in price has taken effect from 15.03.2011 and the vehicle was delivered on 23.03.2011. Therefore, the complainant has to pay the actual price as on the date of delivery of the vehicle. So the opposite parties has not collected any excess amount from the complainant as alleged by the complainant. Further, the averment of the complainant that the first opposite party had refunded Rs. 3,000/- is not known to the 4th opposite party. Thus they have not committed any wrongs. So the complainant is not entitled to get any amount from the answering opposite parties as claimed by the complainant. With the above contentions, 4th opposite party also prays for the dismissal of the complaint.
7. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
8. The evidence of this complaint consists of the oral deposition of PW1, DW1 and Exts. A1 to A9 and B1 series. After closure of evidence, both sides were heard.
9. The Point: The complainant’s allegation is that he had booked a Maruti Swift VD1 Diesel Car by paying Rs. 10,000/- as advance to third opposite party on 02.08.2011. Thereafter on 21.03.2012, he had paid an amount of Rs. 5,83,203/- as directed by the third opposite party as the balance price of the car. The car was delivered on 23.03.2012. At that time, the third opposite party asked the complainant to pay an amount of Rs. 10,000/- more than the payments already made by saying that the price of the car was increased. The complainant paid the amount under protest. According to the complainant, this car was manufactured in the month of February 2012 and it was sent from the factory before the declaration of the Central Budget. So the amount of Rs. 10,000/- collected by the third opposite party is an illegal collection as the delivery of his car was effected prior to the price increase. So the opposite parties are liable for the refund of the excess amount collected from the complainant. A notice demanding the refund of the excess price was also issued to the opposite parties. The 4th opposite party sent a reply dishonoring the complainant’s demand. At the same time, the first opposite party sent a demand draft for Rs. 3,000/- to the complainant after getting the complainant’s notice. So the balance amount of Rs. 7,000/- and its interest is due from opposite parties.
10. In order to prove the case of the complainant, the complainant filed a proof affidavit in lieu of his chief examination along with 9 documents. On the basis of the proof affidavit, he was examined as PW1 and the documents produced were marked as Exts. A1 to A9. Ext. A1 is the photocopy of page No.1 of the order booking/commitment check list No. OBF-13188. Ext. A2 is the photocopy of the registration certificate of the complainant’s car bearing KL-27C/124. Ext. A3 is the copy of the invoice dated 21.03.2012 issued by the 4th opposite party in the name of the complainant in respect of the sale of the vehicle in question. Ext. A4 is the copy of the registered notice dated 16.04.2012 issued by the complainant addressed to opposite parties 2 and 3 and others. Exts. A5 and A5(a) are the postal receipts of Ext. A4 in the name of the third addressee of the registered notice and in the name of the second opposite party. Ext. A6 is the reply notice dated 28.04.2012 issued by the third opposite party in reply to Ext. A4. Ext. A7 is the copy of a cheque dated 18.05.2012 of ICICI bank issued for Suzuki Motor Cycle (India) Private Ltd. in the name of the complainant. Ext. A8 is the cover in which Ext. A7 was sent to the complainant by Suzuki Motor Cycle (India) Pvt. Ltd. Ext. A9 is the extract of the pass book from 21.03.2012 to 31.08.2012 of the complainant’s account with Punjab National Bank.
11. Though the first and second opposite parties filed their version, they have not adduced any oral or documentary evidence in their favour. However, they have filed a proof affidavit in which they have raised the similar contentions, which is raised in their version.
12. At the same time, 4th opposite party’s contention is that they have not collected any excess price from the complainant as alleged by the complainant. The amount collected from the complainant is the actual price of the vehicle at the time of delivery of the vehicle. As per the order booking form, the complainant is liable to pay the price prevailing at the time of delivery and the actual price at the time of delivery is shown in the invoice given to the complainant. Further they contended that they are not aware of the alleged refund of Rs. 3,000/- to the complainant by the first opposite party and the documents relied by the complainant for the said refund is not connected with this transaction. So the complainant is not entitled to get any money from the 4th opposite party. With the above contentions, the 4th opposite party argued for the dismissal of the complaint.
13. In order to prove the contentions of the 4th opposite party, an authorized officer of the 4th opposite party filed a proof affidavit in lieu of his chief examination along with one document. On the basis of the proof affidavit, he was examined as DW1 and the document produced by him is marked as Exts. B1 and B1(a). Ext. B1 is the copy of the order booking/commitment check list No. OBF-13188 dated 21.08.2011 issued by the 4th opposite party in the name of the complainant. Ext. B1(a) is clause No.4 of the terms and conditions of Ext. B1.
14. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute between the parties with regard to the sale of the car. The only dispute is with regard to the price collected by the third opposite party from the complainant. According to the complainant, the third opposite party collected an amount of Rs. 10,000/- more on the date of delivery of the car by issuing Ext. A3 invoice of the 4th opposite party. Before collecting the said amount, third opposite party directed the complainant to pay Rs. 5,83,203/- and the complainant paid the same on 21.03.2012. After the receipt of the said amount, third opposite party had no right to collect any more amount than the above said amount of Rs. 5,83,2013/-. So the amount of Rs. 10,000/- collected by the third opposite party on the date of delivery of the car is an illegal collection and hence opposite parties are liable to return the said amount. Moreover, the complainant argued that the said car was sent by the first opposite party from their yard before the announcement of the Annual Budget of the Union Government. So the post budget price is not applicable to the complainant’s car. If the cut off number of the vehicle is produced by the opposite parties, it will justify the complainant’s allegations. But it was not produced by the opposite parties.
15. According to the 4th opposite party, though the car was sent from the yard of the first opposite party before the announcement of the budget, the car was delivered to the complainant after the budget. So the price increased is applicable to the complainant’s car and the complainant is liable to pay the increased price. So the complainant is not entitled to get any amount as claimed by the complainant.
16. In view of the rival contentions of the parties, it is pertinent to note that the opposite parties have not produced the cut off number of the complainant’s car. It is also pertinent to note that the opposite parties have not mentioned the actual price of the vehicle on the date of delivery either in their version or in their proof affidavit. We feel it as a willful suppression. They also purposely avoided to adduce any cogent evidence like the latest price list of the company to show that the price of the vehicle as on the date of delivery is par with Ext. A3 invoice. In the nature and circumstances of this case, the actual price fixed by the company as on the date of delivery is highly essential for the disposal of this complaint which ought to have been brought in evidence by the opposite parties as the said fact is exclusively within the control and knowledge of the opposite parties. But it is not brought by the opposite parties purposely. What prevented opposite parties from producing the relevant documents in their custody including the cut off number and latest price list for proving that the amounts collected by them from the complainant vide Ext. A3 invoice is the actual price of the car on the date of delivery. Moreover, the first opposite party as well as the other opposite parties willfully abstained from disclosing the actual price before this Forum. It is, no doubt, an hide and sick play of the opposite parties. The willful non-production of the said evidence and non-disclosure of the actual price clearly shows that the amount of Rs. 10,000/- collected by the third opposite party on the date of delivery of the car from the complainant is an excess collection and it is an illegal collection. Moreover, opposite parties has not taken any steps for proving the payment of Rs. 3,000/- by the first opposite party vide Ext. A7 cheque is not connected with this transaction. Thus in all respects, opposite parties failed to substantiate their contentions that the entire amount collected from the complainant vide Ext. A3 invoice is the actual price of the car on the date of delivery. So we find that the allegations of the complainant is sustainable and hence we found that third opposite party had committed an unfair play against the complainant by collecting an amount of Rs. 10,000/- more than the actual price of the car. Therefore, this complaint is allowable against the third opposite party as the whole amount was collected by the third opposite party as per the evidence of this case.
17. In the result, this complaint is allowed against third opposite party, thereby the third opposite party is directed to return the balance amount of Rs. 7,000/- (Rupees Seven thousand only) and its interest at the rate of 10% per annum from the date of payment till this date along with compensation of Rs. 2,500/- (Rupees Two thousand five hundred only) and cost of Rs. 1,000/- (Rupees One thousand only) to the complainant within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount at the rate of 12% interest per annum from today till the realization of the whole amount.
Dictated to the Confidential Assistant, transcribed and typed by him, corrected by me and pronounced in the Open Forum on this the 21st day of May, 2013.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Adv. George. M. Jacob.
Exhibits marked on the side of the complainant:
A1 : Advance booking receipt No.OBF 13188 dated 02.08.2011.
A2 : Photocopy of certificate of registration of KL.27/C-124 car.
A3 : Photocopy of invoice No.VSL-11004079 dated 21.03.2010.
A4 : Photocopy of the legal notice issued to second and third
opposite parties and the Executive Officer (Sales), Palam
Guargaon Road, Gurgaon, Haryana.
A5 & A5(a) : Postal receipts of Ext. A4 legal notice.
A6 : Reply notice sent by the third opposite party dated
28.04.2012.
A7 : Photocopy of cheque No. 552895 dated 18.05.2012 drawn
on ICICI bank, Gurgaon, Haryana.
A8 : DTDC courier cover.
A9 : Photocopy of relevant pages of passbook of Punjab
National Bank, Pathanamthitta Branch.
Witness examined on the side of the opposite parties:
DW1 : Sudeeshkumar. S.
Exhibits marked on the side of the opposite parties:
B1 : Photocopy of the order booking form No. OBF-13188
dated 02.08.2011 issued by the 4th opposite party in the
name of the complainant.
B1(a): Clause No.4 of the terms and conditions of Ext. B1.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) George. M. Jacob, Muringasseril Kanamoottil House,
Kumbanad P.O., Thiruvalla – 689 547.
(2) Manager, M/s. Maruti Suzuki India Ltd.,
Plot No.1, Nelson Mandel Road, Vasant Kunji,
New Delhi – 110 070.
(3) The Regional Manager, Regional Office (South III),
Maruti Suzuki India Ltd., 2nd Floor, Tutus Tower,
NH-47, Bypass, Padivattom, Cochin – 682 024.
(4) The Manager, Popular Vehicles & Services Ltd.,
Pathanamthitta Branch.
(5) The Manager, Popular Vehicles & Services Ltd.,
S.H. Mount Road, Kottayam – 686 006.
(6) The Stock File.
