D.O.F: 06/12/2013
D.O.O: 05/12/2018
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.286/13
Dated this, the 5th day of December 2018
PRESENT:
SRI.ROY PAUL :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
K . Balakrishnan, Aged 51 Years
S/o Kunhambu Nair, R/at “ Sree Valsam”
Near CPM Office, Vidyanagar Post,
Naimaramoola, Kasaragod 671123 : Complainant
(Adv: Ramakrishna. P)
And
1. M/s Nissan Motors India Private Ltd,
Plot No.1A, SIOPCOT Industrial Park
Mattur P.O, Oragadam, Sri Perumbudur Taluk, : Opposite Parties
Kancheepuram District, Tamilnadu.
(Adv: Sreejith Cherote)
2. M/s Manumatic Nissan, Thottada,
Kannur -670007.
( Adv : K.Ranjith)
ORDER
SRI.ROY PAUL :PRESIDENT
This complaint under section 12 of Consumer Protection Act has been filed for an order directing the opposite party to provide a new vehicle or its value to the complainant along with compensation and cost.
The case of the complainant in brief:-
The complainant had booked a brand new Nissan Sunny Diesel Xl white car on 27/03/2013 at Kasaragod office of opposite party 2. The complainant has paid a sum of Rs. 854597/- also to opposite party no 2 on 31/03/2013 through a bank transfer. Thereafter the opposite party no 2 delivered the car at Kasaragod on 17/04/2013. Though the complainant exchanged his old car the opposite party no 2 failed to pay the exchange bonus to the complainant. In the vehicle data sheet and sale letter the manufacturing year of the car is shown as March 2013. But at the time of registration it is August 2012 model . Though the complainant approached the opposite party for replacement of a new 2013 model car the opposite party no 2 was failed to do so. There is deficiency of service and unfair trade practice on the part of the opposite parties. Hence the complaint.
The opposite parties entered appearance before the Fora and submitted their versions separately, but with almost same contentions. Opposite party no 1 contended that the relationship between opposite party no 1 and opposite party no 2 is principal to principal basis as per the dealership agreement. The opposite party no 1 has no direct contact with the complainant. The sales and services are falling within the exclusive domine of the dealer. The opposite party no 2 had published an advertisement in Mathrubhumi daily dated on 17/03/2013 about the special benefit of the car manufactured in the year 2012 (year out cars). Thus the complainant purchased the car on the special scheme for an amount of Rs. 838712/- only . opposite party no 1 has no role in the scheme and discount announced by opposite party no 2 dealer . There is no specific allegation against opposite party no 1. So the opposite party no 1 is an unnecessary party in the proceedings. Since a criminal steps (crime no 443/13 under section 420/IPC) initiated by the complainant against this opposite party, this complaint is not maintainable. The special offer for the car in the month of March 2013 was cash discount of Rs. 16000/- and exchange bonus of Rs. 20000/- . In the month of April 2013 the offer was cash discount of Rs. 10,000/- with no exchange bonus. The complainant had made the payment only on 30/03/2013 Saturday in the evening, 31/03/2013 was a Sunday . Hence the registration could not be effected in the month of March 2013. There was increase of 1% vat from 01/04/2013. So the complainant has to pay a sum of Rs. 7464/- ie 1% excess amount. The opposite party is not liable for the same. since the complainant voluntarily expected to take 2012 model car the exchange bonus also offered to him apart to the cash discount of Rs. 13464/-. So there is no deficiency of service or unfair trade practice on the part of the opposite parties. At the time of delivery itself the complainant was well aware the fact that the vehicle is 2012 model. The other allegation is false hence denied. The opposite party no 2 has put on hold the exchange bonus since the complainant filed a criminal case against the opposite parties. All the documents supplied to the complainant will show that the vehicle is 2012 model. Opposite party no 2 contended that the complainant booked 2012 model on 27/03/2013 on the basis of the advertisement in Mathrubhumi daily on 17/03/2013 about the special discount of 2012 model car. Thus Rs. 16000/- as discount and Rs. 20,000/- exchange bonus are entitled by him. The price of 2013 model is Rs. 854712/- . But the complainant paid Rs. 838712/- only as the price of the 2012 model. The data sheet was prepared on the basis of the website of motor vehicle department. Hence the mistakes took place in it for which the opposite party no 2 is not liable. The opposite party no 2 adopted the averments in the version of opposite party no 1 also. The complaint may be dismissed with cost.
On the basis of the rival contention of the pleadings the following issues were framed for consideration.
- Whether there is any deficiency service on the part of the opposite party?
- Whether the complaint is entitled for the any reliefs?
- Reliefs and cost?
The evidence consists of the oral testimony of Pw1 and Ext A1 to A10 documents marked on his part. The opposite party adduced evidence through Dw1 and Ext B1 to B5 documents also were marked on their part .
ISSUE NO: 1
The complainant adduced evidence by submitting his chief affidavit in lieu of his chief examinations to the tune of the pleadings in the complaint and denying the contentions in the version. He was cross examined as Pw1 by the opposite parties and he relied on Ext A1 to A10 documents also to substantiate this case. According to him he had specifically booked 2013 model car on 27/03/2013 and advance payment was made on 30/03/2013 itself. But the vehicle delivered only on 17/04/2013 and opposite party levied excess vat on the vehicle. Ext A1 dated 27/03/2013 is the vehicle booking form in which the opposite party has not mentioned that the vehicle model is 2012 model. It is clearly stated in Ext A1 about the exchange of his old car. Ext A2 data sheet signed by the manufacture (opposite party 1) clearly stated the vehicle as March 2013 and price of the vehicle as Rs .854597/- . The invoice dated 06/04/2013 issued by the opposite party no 2 is marked as Ext A3 which also shows the price of the vehicle is Rs. 854597/- . In Ext A4 delivery note and A7 temporary registration nothing mentioned about the year of manufacture , but in Ext A6 form 21 the model is March 2013. So it is clear that the opposite party has made the complainant to believe that the vehicle booked and delivered to him is 2013 model car. The exchange bonus was not given to him. So there is deficiency of service and unfair trade practice on the part o the opposite parties and complainant has suffered much hardships, mental agony, loss of time, and money. Hence the complaint may be allowed.
Dw 1 adduced evidence to the tune that the complainant had booked 2012 model car as per the advertisement in the newspaper. The complainant had received the offer for 2012 model car also. The complaint was well aware the fact the vehicle booked and delivered to him is 2012 model on payment off Rs. 838712. The price of 2013 model car was Rs. 854712/-. The Dw1 relied on Ext B3 bank statement also to substantiate his defence case about the payment made by the complainant. Since the complainant was made the payment on 30th march 2013 at the evening, the sale of the vehicle could not include in March 2013 quota. March 31st was a Sunday also . Hence 1% increase on vat was levied from the complainant. All the documents pertaining to the vehicle will show that 2012 model. There is no deficiency of service or unfair trade practice on the part of the opposite parties. This complaint filed with ill motive for un lawful enrichment may be dismissed with cost under section 26 of Consumer Protection Act. Heard both sides.
On perusal of the pleadings documents and evaluation of the evidence tendered before the Fora we hold that there is no whisper about the model (Manufacture year) of the car in Ext A1 booing order form dated 27/03/2013. So we hold that if the booking was for 2012 model it ought to have specifically mentioned in order form. Normally there is no possibility of booking of 2012 model car in the year 2013. Apart to that the Ext A2 vehicle data sheet signed by opposite party no 1 manufacturer and Ext A6 sales certificate also clearly stated that the car is 2013 March model. The case of the complainant is that he was made to believe that vehicle is 2013 model by opposite party no 1 and 2 through Ext A2 data sheet. There is no manufacturing year in Ext A7 TP(Temporary Registration). So he could realise the model of the vehicle at the time of permanent registration only. Immediately he had sent registered lawyer notice Ext A9 dated 18/05/2013 also to the opposite parties. So there is no much delay in the part of the complainant in initiating legal steps against opposite parties. The dictum of ipso factum- documents itself speaks against the opposite parties applicable here. The defence taken by the opposite parties are preposterous also. From the forgoing discussions and findings we are of the considered view that there is deficiency of service and unfair trade practice on the apart of the opposite party no 1 and 2. Hence the issue no 1 found against the opposite parties and answered accordingly.
ISSUE NO: 2&3
As discussed above the complainant was made to believe that the vehicle delivered is a 2013 model. So we are of the opinion that the opposite party no 2 had received the appropriate price of 2013 model car also from the complainant. It is in evident that the complainant is entitled for Rs. 20,000/- as exchange bonus from the opposite parties, since his old vehicle already exchanged. Non payment of exchange bonus also amounts to deficiency of service and unfair trade practice on the part of the opposite parties. Hence the opposite parties are liable to pay the exchange bonus amount Rs. 20,000/- with interest @12% per annum from the date of complaint. The complainant has successfully proved that due to the deficiency of service and unfair trade practice on the part of the opposite parties he has suffered much hardship, mental agony, loss of time and money. We the Froa are of the view that there is practical difficulty about the replacement or refund of the price as prayed in the relief portion of the complaint at this belated stage. So we hold that the opposite parties are liable to pay a sum of Rs. 1,00,000/- as compensation along with Rs. 5000/- as litigation cost also to the complainant to meet the ends of justice. Thus the issue no 2 and 3 are also accordingly answered .
In the result the complaint is allowed in part directing the opposite party no 1 and 2 jointly and severally to pay a sum of Rs. 20,000/- as exchange bonus with interest @ 12% per annum from the date of complaint (dtd.06/12/2013 ) along with Rs. 1,00,000/-(Rupees One lakh only) as compensation and Rs. 5000/-(Rupees Five thousand only) as litigation cost to the complainant within 30 days of the receipt of the order . Failing which the aforesaid sum of Rs. 1, 00,000/- also will carry interest @ 12% per annum from the date of order till realisation from the opposite parties . The complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 1986.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits:
A1- Copy of the Order Booking Form.
A2-copy of the vehicle Data Sheet dated: 12-04-2013.
A3- Copy of the Invoice- Form No.8B Dated: 16-04-2013.
A4- Copy of the Delivery note dated: 16-04-2013.
A5- Copy of the Form No.60 dated: 12-04-2013.
A6- Copy of the Sale Certificate dated: 12-04-2013.
A7- Copy of the Temporary Certificate of Registration dated:12-04-2013.
A8- Copy of the communication sent by the sales Manager dated:19-04-2013.
A9- Office copy of the registered notice sent by the complainant dated:18-05-2013.
A10- Reply sent by the Opposite Party No.2.
B1- Advertisement in Mathrubhumi daily dated: 17-03-2013.
B2- Form No.22 Dated: 04-08-2012.
B3- State Bank of India statement , from 01-03-2013 to 31-03-2013.
B4- FIR in Crime No. 443/2013 at Vidyanagar Police Station.
Witness Examined
PW1- K. Balakrishnan.
DW1- Manojkumar. V. N.
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
