D.O.F: 3/1/08 D.O.O:9/7/08 IN THE CONSUMER DISPUTES REDRESSAL FORUM KASARAGOD CC.No.1/08 Dated the 9th day of July 2008 PRESENT: SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI ; MEMBER SMT.P.P.SHYMALADEVI : MEMBER Smt.Jaseela, D/o Mohammed Kunhi(late), :Complainant R/at Muneera Manzil, Pakyara, Udma Po, Kasaragod. M/s PVS.Auto motive Co(P) Ltd, Meenchanda,Kozhikode-673018. : Opposite party ORDER REGARDING MAINTAINABILITY SRI.K.T.SIDHIQ: PRESIDENT; The complainant Smt.Jaseela avers that she booked one Ford Fiesta 1.4 2 X1 car with opposite party firm M/s PVS Auto motive Co.(P) Ltd Kozhikode. Eventhough the entire price for the car was paid, the car was not supplied by the opposite party on the date stipulated. The car was intended to present as a gift to her by her brothers and mother on the date of her marriage. Since the opposite party failed to deliver the vehicle on the date assured, Smt.Jaseela compelled to purchase another car with another dealer M/s Kairali Ford at Kochi. Owing to the sufferings and mental agony caused due to the non-supply of the car as agreed within the time as promised, smt.Jaseela filed this complaint claiming compensation of Rs.1,00,000/-/ with cost of the proceedings. 2. Against these factual back ground of the case, in response to the notice issued to opposite party M/s PVS Automotive Co(P)Ltd entered appearance and filed their version. The counsel appearing for opposite party raised a preliminary issue regarding the maintainability of the complaint for want of territorial jurisdiction. 3. According to the learned counsel for Smt.Jaseela, the complaint is maintainable and part cause of action arose within the territorial limits of the Forum on the ground that the legal executive of M/s PVS Automotive Co(P)Ltd came to the house of Smt. Jaseela and obtained the order booking form. 4. The learned counsel appearing for opposite party contended that M/s PVS Automotive Co.Ltd. is situated at Kozhikode and they neither have any branch office nor carries on business within the territorial limits of this Forum. Hence the complaint is legally not maintainable before the Forum and the negotiation within the jurisdiction of one Forum will not confer any jurisdiction to try the complaint. The counsel for opposite party further invited our attention to the decision rendered by the Honble National Consumer Disputes Redressal Commission in I(1995)CPJ 235(NC), I (2001)CPJ 21(NC) ,I (1995)CPJ 36(NC), III(2001)CPJ 37(NC) and the decision rendered by Bihar SCDRC which is reported in III(2001)CPJ 268. 5. In view of the above decisions we hold that this Forum lacks territorial jurisdiction to try the complaint. The complaint is therefore returned to the complainant for filing before the proper Forum having jurisdiction. If the complainant chooses to file a complaint, she can claim the benefits of Sec.14 of the Limitation Act to exclude the period spent in prosecuting the proceedings before this Forum while computing the period of limitation. Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT eva/ /Forwarded by Order/ Senior Superintendent
Date of filing : 02-01-2008
Date of order : 31-10-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC. 01/2008
Dated this, the 31st day of October 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.K.G.BEENA : MEMBER
Jaseela.C.M,
D/o. Mohammed kunhi (Late), } Complainant
R/at Muneera Manzil,
Pakyara, Udma.Po,
Hosdurg Taluk, Kasaragod.Dt.
(Adv.K.Kumaran Nair, Kasaragod)
M/s PVS Auto Motive Co.(P) Ltd, } Opposite party
Meenchanda, Kozhikode. 673018.
(Adv.Shyam Padman, Calicut)
O R D E R
SMT.P.RAMADEVI,MEMBER
Smt. Jameela filed this complaint alleging deficiency in service against opposite party M/s. PVS Auto Motive Co (P) Ltd.
The facts of the case in brief are as follows.
That the complainant had placed an order for one ford Fiesta 1.42XI car with the authorized dealer of the opposite party firm on 19-03-2007. The complainant had paid a total advance amount of `6,50,000/- to the opposite party by way of three DDs. At the time of order booking it was known that there would be tax hike for the vehicles to be purchased on or after 1-4-2007 as such the representative of the opposite party agreed to deliver the vehicle prior to 28-03-2007. Moreover, the said new vehicle was intended to be a marriage gift to the complainant by her mother and brothers. The marriage of the complainant was scheduled to be solemnized on 5-4-2007. But the opposite party did not deliver the new car to the complainant on the date being fixed and the opposite party was not in a position to assure as to whether it could be supplied before 1-4-2007. The authorized representative of the company told the complainant that the latest consignment for the company did not include the car booked by her. Due to uncertainity the complainant contacted another authorized dealer of the company Ford, M/s. Karali Ford at Kochi on 29-03-2007. The very same day the complainant’s brother left for Ernakulam and by the morning next day i.e. on 30-03-2007 reached with a new Ford car from Kochi. The complainant cancelled the order of booking on 29-03-2007. After cancellation the opposite party did not repay the advance amount of `6,50,000/- in time but illegally keep the amount with them for 2 months. The complainant had to arrange an amount of `6,50,000/- to pay M/s. Karali Ford Kochi by availing a loan from the fixed deposit of her brothers. The complainant caused to sent a lawyer notice on 16-04-2007 asking the opposite party to repay the advance amount plus interest @ 24% per annum. But the opposite party sent a demand draft on 21-05-2007 for `6,50,000/-. The complainant again sent a lawyer notice to the opposite party asking them to pay interest and compensation. The opposite party received the notice and had sent a false reply. Hence this complaint is filed alleging deficiency in service against opposite party.
2. On receipt of notice from this forum opposite party appeared through counsel and filed their version.
3. In the version the opposite party denied all the allegations made against them by the complainant. According to opposite party the complaint is not maintainable, the Forum lacks territorial jurisdiction to entertain the complainant since the transaction between the complainant and opposite party was completed outside the Kasaragod District.
4. The opposite party admits that the booking of Ford Fiesta 1.42XI car during the third week of March 2007 by the complainant. There was great demand for the said vehicle during March. The opposite party had duly apprised the complainant that the vehicle can be delivered upon the same being supplied by the manufacturer, and on priority basis. The complainant had placed the order on 19-03-2007 and reconfirmed the same on 20-03-2007 and paid the purchase price in instalments of `2,00,000/- and on 19-03-2007 and 20-03-2007 and the balance `2,50,000/- on 24-03-2007. Immediately thereafter the orders were placed with the manufacturer for the vehicle of the specifications booked by the complainant. The said vehicle 1.42XI diesel D white car was delivered against order No.108 dated 21-03-2007 on 4-4-2007. Immediately the said fact was intimated to the complainant, but the complainant had then stated that she will revert within a short time. Nothing was heard from the part of the complainant, the sales consultant of the opposite party contacted the complainant stated that she does not intend to purchase the said vehicle, and requested for refund. The vehicle ordered was already supplied by the manufacturer and the same being retained with opposite party, opposite party has expressed difficulty in refunding the amount without the said vehicle being sold to some one else. In such a situation the opposite party received the lawyer notice dated 6-4-2007. According to the opposite party the complainant never intimated the opposite party about the marriage and urgency at the time of placing the order. The opposite party further submits that the complainant was not cancelled the order till the vehicle was supplied by the manufacturer or even when the sales representative of the opposite party contacted the complainant. On receipt of the lawyer notice the opposite party had refunded `6,50,000/- and the same was received by the complainant without any protest. Hence there is no merit in the complaint hence the complaint is liable to be dismissed.
5. The evidence in this case consists of the evidence of PW1, the complainant, Exts A1 to A8 and opposite party is examined as DW1 and Ext.B1 document. Complainant’s counsel filed argument notes and both sides heard documents perused.
6. After going through the facts on record and oral evidence of both parties the following issues raised for consideration.
1. Whether the Forum lacks territorial jurisdiction to entertain the complainant?
2. Is there any deficiency in service on the part of the opposite party?
3. If so, what is the relief and costs?
Here the Hon’ble State Commission found the issue regarding territorial jurisdiction infavour of the complainant as per order of the Hon’ble SCDRC, Thiruvanathapuram in appeal No.230/08 which was filed against the order of this Forum holding that this Forum has no jurisdiction to entertain the complaint.
7. The booking of the car and the entire payment made by the complainant is an admitted fact. But the complainant’s case is that the opposite party failed to deliver the car on the day when it was fixed for delivery. According to the complainant the opposite party agreed to deliver the car on 28-03-2007. But the car was not delivered on that day. On failure to deliver the car on 28-03-2007 the complainant had purchased the same model car from another dealer on 30-03-2007. According to the complainant she insisted the opposite party to deliver the car before 01-04-2007 because of two reasons. Firstly she came to know that there would be tax hike for the vehicles to be purchased on or after 1-4-2007 and the second reason is the said vehicle was intended to be a marriage gift to the complainant by her mother and brothers. The marriage was scheduled to be solemnized on 5-4-2007. Here there is no evidence before the court that there would be tax hike for the vehicles purchased on or after 1-4-2007. Regarding the marriage of the complainant eventhough there is no documentary evidence, the words of the complainant can be believable. But the next question to be answered is whether these facts were communicated to the opposite party or not. Here also there is no documentary evidence to prove that the above facts were communicated to the opposite party. The opposite party emphatically denied the above statements of the complainant In the case of the marriage it may not be possible to produce documents showing communication to opposite party. But factum of tax hike complainant can very well produce the document showing the tax hike and the same is communicated to the opposite parties. Hence we are of the opinion that the complainant failed to communicate the emergent purpose of the car which she booked before the opposite party. The next point to be considered is which is the date fixed for delivering the vehicle by the opposite party. Here according to the complainant the date of delivery of the vehicle was fixed on or before 28-03-2007. On failure to deliver the car on 28-03-2007 the complainant booked another car of the same model on 29-03-2007 and purchased the same from Kairali Ford at Kochi. But according to opposite party they never agreed to deliver the vehicle on or before 28-03-2007. They agreed to deliver the car on 4-4-2007 and the car was ready for delivery on 4-4-2007. Here both parties failed to produce any document showing the date of delivery of the car. But on going through all other facts on records and circumstances of the case we are of the opinion that if the date of delivery of the vehicle was fixed on 27-03-2007 and it was not delivered on that date definitely the complainant must cancel the booking and will ask for the refund of the amount since the case is an emergent one. Here the complainant never cancelled the booking of the car keeping the booking as such the complainant tried to search for another car and she got the same model car before 4-4-2007. The thing is that they were not ready to wait for the car up to 4-4-2007. Here it is presumed that the date of delivery of the car may not be on 27-03-2007 but it may be on 4-4-2007.
8. Here the main issue to be answered is whether there is any delay on the part of the opposite party to refund the amount of the car and thereby the complainant suffered mentally and financially. Here the specific contention of the opposite party is that the complainant never cancelled the booking of the car. But on the date of delivery of the car they refused to take delivery of the car since they purchased another car of the same model. But the opposite party being a dealer paid the entire amount of the car to the manufacturer and taken delivery of the car from the manufacturer. If a customer cancelled the booking after the car being supplied by the manufacturer, the dealer can refund the amount only on selling the car to another person and the sale proceeds of the car is used for refund. Here the opposite party paid the entire amount of the car to the manufacturer and the manufacturer supplied the car to the opposite party. But the opposite party can sell the car to a third party only on cancellation of booking by the complainant. Here the complainant eventhough orally stated that she cancelled the booking of the car but fails to produce any document. That means the contention of the opposite party will prevail. Moreover, the opposite party never refused to refund the amount. Opposite party was ready to pay the amount. The delay in refund the amount is caused due to the delay in selling the car to third party. Moreover the opposite party paid the entire amount of booking to the complainant. If any loss or hardship is caused to the complainant by way of delayed repayment the opposite party is not liable to compensate the same since there is no deficiency in service on their part. Hence we are of the opinion that there is no merit in the complaint and the complainant is not entitled to get any compensation as prayed for.
Therefore the complaint is dismissed. No order as to costs.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exts.
A1. Photocopy of Order Booking Form
A2 to A4. Photocopy of bank receipts
A5. Copy of lawyer notice.
A6. Copy of lawyer notice.
A7. Postal acknowledgement card
A8.Photocopy of RC of Jaseela.C.M.
B1. 07-06-2007 reply notice
PW1. Jaseela.C.M.
DW1.Mahesh Kutty Krishnan.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
