Date of Filing 11.05.2023

                                                                                                             Date of Disposal: 30.10.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                         …….PRESIDENT

                THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                ……MEMBER-I

CC.No.46/2023

THIS MONDAY, THE 30^th DAY OF OCTOBER 2023

Mrs.J.Sarah John,

W/o.John Victor,

Plot No.209, TNHB Colony,

9^th Street, Korattur, Chennai 600 080.                                                 ......Complainant.

                                                                           //Vs//

Mr.M.Gounthamchand,

Owner of M/s.Sri Vardhaman Motors,

(Authorized Main Dealer for Vespa),

Old No.328, New No.1007, T.H.Road,

Old Washemenpet, Chennai 600 021.                                            .…..Opposite Party.

Counsel for the complainant                                       : M/s.A.T.John Victor, Advocate.

Counsel for the opposite party                           : M/s. S.Muthukumaravel, Advocate.

This complaint coming before us on various dates and finally on 12.10.2023 in the presence of M/s.A.T.John Victor, counsel for the complainant  and M/s. S.Muthukumaravel counsel for the opposite party and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party with respect to the delivery of a different vehicle than one booked by the complainant along with a prayer to deliver the vehicle VESPA VXL 125 CBS BSVI RED FL20, 2023 model, and to refund the excess amount of Rs.32,109/- being the amount collected from the complainant and to pay a sum of Rs.2,50,000/- towards compensation for the mental agony and hardship caused to the complainant due to the unfair trade practice and deficiency in service on the part of the opposite party.

Summary of facts culminating into complaint:-

2. Aggrieved by the act of the opposite party with respect to the delivery of a different vehicle than one booked by the complainant, the present complaint has been filed by the complainant against the opposite party.

3. It was the case of the complainant that she wanted a good and standard two wheeler to move here and there in Chennai city. The complainant had decided to purchase VESPA VXL 125 CBS BSVI. The complainant wanted to wait for the Tamil Year auspicious month i.e. (Thai Masam) Pongal, 2023 to begin. The complainant had called up the opposite party’s show room in the end of December 2022 and tried to find out the details the vehicle and told the opposite party to book the vehicle during Pongal 2023 as the complainant was very particular about the model of the year 2023. The opposite party asked the complainant to book during Pongal 2023 to get new model 2023 and also the opposite party assured best of his service at any point of time.  The complainant expressed her colour of choice of red colour. The opposite party had started pressurizing the complainant immediately to pay some advance and book the colour of choice of the complainant by paying Rs.6,000/- as a token of confirmation of the delivery of the red colour Vespa vehicle. Again complainant on 12.02.2023 received a call from the opposite party and pressurized the complainant to book the said vehicle immediately to avoid missing all the discounts and other benefits. The complainant had gone to the opposite party’s show room with an intention of booking 2023 year model as it was the preferred vehicle model for the complainant. The complainant had booked Red colour VESPA VXL 125 CBS BSVI RED FL 20-2023 NEW MODEL on 12.01.2023 by paying a sum of Rs.6,000/-. The opposite party issued vehicle booking receipt vide No.VR2200838. Complainant’s Hire Purchase scheme for two wheelers was offered by the IDFC Bank vide loan Account No.102895740.  The receipt of the payment from IDFC Bank was not intimated by the opposite party to the complainant. The complainant had wanted the opposite party to deliver the vehicle VESPA VXL 125 CBS BSVI RED FL 20-2023 NEW MODEL for which the opposite party had told the complainant the said vehicle would be delivered only after due completion of RTO Registration work. The complainant on 08.03.2023 reached the opposite party show room to take delivery of VESPA VXL 125 CBS BSVI RED FL 20-2023 NEW MODELS where VESPA VXL 125 CBS BSVI YELLOW was asked to take delivery, when the complainant objected this particular model of the vehicle, the opposite party started abusing the complainant and told the complainant that this vehicle was registered in the name of the complainant and given vehicle’s registration number TN-13-AA-1557 (yellow colour) vehicle. The complainant got upset and became speechless, further it is stated by the opposite party that the said vehicle was already registered in the name of the complainant hence change of colour of Red colour VESPA was ruled out, Hence with no other go, the complainant had to take the delivery of the VESPA VXL 125 BSVI YELLOW vehicle only. After taking delivery of vehicle and of the papers and when the complainant had reached home, the complainant had checked up the papers of the vehicle, it was understood that the engine No.M853M3088133 was manufactured in the month September 2022 as per invoice raised by PIAGGIO VEHICLE PRIVATE.  But the opposite party cheated complainant by saying the said vehicle was manufactured in the year of 2023 only and brand new Godown piece. The first opposite party cheated the complainant to the core for self gain and earned exorbitant profit out of selling of this old model VESPA VXL 125 CBS BSVI, YELLOW  and also charged excess amount as per the invoice of the opposite party vide No.V2200336 dated 18.01.2023.  Thus aggrieved by the acts of the opposite party the present complaint was filed to direct the opposite party to deliver the vehicle VESPA VXL 125 CBS BSVI RED FL20, 2023 model red colour and to return back the excess amount of Rs.32,109/- and to pay a sum of Rs.2,50,000/- towards compensation for the mental agony and hardship caused to the complainant due to the unfair trade practice and deficiency in service on the part of the opposite party.

The crux of the defence put forth by the opposite party:-

4. The opposite party filed version disputing the complaint allegations contending interalia that they never assured or never trapped the complainant to get a 2023 model during the 2023 Pongal festival.  No dealer would deliver a New Year model in the 2^nd week of January of any year and no customer would except the same.   Opposite party had not forced the complainant to purchase the Red colour Vespa vehicle and it was the choice of the complainant and she paid a sum of Rs.6,000/-towards initial payment and booked the red colour vehicle.  On 11.01.2023 the complainant out of her own choice and wish had changed the model of the Vespa Red vehicle into the Vespa VXL 125 CBS CS6 75^th anniversary edition yellow colour and it was purely the complainant’s wish and the opposite party never assured 2023 model which was impossible to be delivered. Opposite party issued a receipt on 12.01.2023 based upon the requirement of the complainant and also arranged loan through IDFC Bank and accordingly on 17.01.2023 the IDFC Bank transferred an amount of Rs.1,46,050/- to the opposite party.  Complainant has visited the opposite party showroom and taken photo with yellow colour Vespa Vehicle and the same was uploaded to the Bank. It was submitted that the model VXL 125 75^th edition bearing chassis No.MET00004A2H021310 and Engine No.M853M3088133 was requested to do registration. Vehicle was registered on 25.01.2023 and Hsrp number plate came on 27^th and came to showroom on 08.02.2023 and created problem went to police station and took delivery in police station on 10.02.2023 after receiving cash of Rs.7,000/-. To save the reputation of the company the opposite party without any fault on his side had paid a sum of Rs.15,000/- to the complainant and the complainant received the amount and executed a letter to the Inspector and tendered a letter on 10.02.2023 and on the same day the complainant had taken delivery of the yellow colour Vespa vehicle No.TN 13 AA 1557 and obtained the delivery receipt from the opposite party in front of the Inspector of Police. Thus they sought for the complaint to be dismissed.

5. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A12 were submitted. On the side of opposite party proof affidavit was filed and documents marked as Ex.B1 to Ex.B12 were submitted.

Points for consideration:-

1. Whether the complaint allegations with respect to the delivery of a different vehicle than one booked by the complainant amounting to deficiency in service and unfair trade practice on the part of opposite party has been successfully proved by the complainant with admissible evidence?
2. If so to what reliefs the complainant is entitled?

6. Point No.1:-

The following documents were filed on the side of complainant in support of his contentions;

1. Invoice vide No.1200064313 raised by M/s. PIAGGO VEHICLE PRIVATE LIMITED in favour of opposite party dated 22.08.2022 was marked as Ex.A1;
2. Vehicle Booking Receipt vide No.VR2200838 dated 12.01.2023 was marked as Ex.A2;
3. Delivery Challan, vide D.C.No.D2200490 dated 18.01.2023 was marked as Ex.A3;
4. Invoice vide No.V2200336, dated 18.01.2023 was marked as Ex.A4;
5. Reliance General Insurance copy dated 23.01.2023 was marked as Ex.A5;
6. Legal notice sent to the opposite party by the complainant dated 27.02.2023 was marked as Ex.A6;
7. Postal receipt of the legal notice sent to the opposite party dated 27.02.2023 was marked as Ex.A7;
8. Copy of track consignment was marked as Ex.A8;
9. Reply legal notice sent by the opposite party to the complainant dated 29.03.2023 was marked as Ex.A9;
10. R.C. Book of the complainant’s vehicle No.TN 13 AA 1557 was marked as Ex.A10;
11. Statement of Accounts issued by the IDFC Bank was marked as Ex.A11;
12. Photo of the complainant along with the red colour Vespa vehicle was marked as Ex.A12;

On the side of opposite party the following documents were filed in proof of their defence;

13. Photo of the complainant along with the yellow colour Vespa Vehicle was marked as Ex.B1;
14. Letter issued by the opposite party to the Inspector of the Police was marked as Ex.B2;
15. Letter issued by the complainant to the Inspector of Police dated 10.02.2023 was marked as Ex.B3;
16. Vehicle Booking Receipt dated 12.01.2023 was marked as Ex.B4;
17. Vehicle Booking Receipt dated 20.01.2023 was marked as Ex.B5;
18. Deliver Receipt dated 18.01.2023 was marked as Ex.B6;
19. Loan agreement between the complainant and IDFC Bank dated 04.01.2023 was marked as Ex.B7;
20. Brochure issued by the company for the model (Only yellow colour) was marked as Ex.B8;
21. Tax Invoice dated 18.01.2023 was marked as Ex.B9;
22. Statement of Accounts by opposite party dated 17.01.2023 was marked as Ex.B10;
23. Disposal letter by IDFC Bank dated 24.06.2023 was marked as Ex.B11;
24. Service Invoice dated 07.06.2023 was marked as Ex.B12;

7. Heard both learned counsel.

8. The crux of the arguments advanced by the learned counsel appearing for the complainant is that the complainant being a home nurse booked a red colour VESPA VXL 125 CBS BSVI 2023 model.  However, the opposite party committing unfair trade practice and deficiency in service cheated the complainant by registering a yellow colour vehicle which was an old model and compelled the complainant to take delivery.  Thus he sought for the complaint to be allowed directing the opposite party to deliver the vehicle actually booked by her along with compensation and cost.

9. On the other hand, the learned counsel appearing for the opposite party argued that initially the complainant had chosen red colour and quotation was given for red colour.  However, after three days they opted for yellow colour of different model.  It is his arguments that they never assured the complainant to deliver 2023 model which was not at all possible in the month of January 2023.  He relied upon the booking receipt wherein the colour was mentioned as yellow.  Further, he also stated that the opposite party had paid Rs.15,000/- before Police Station for compromising the complaint given by the complainant.  Thus he prayed for the dismissal of the complaint.

10. On perusal of the pleadings and appreciation of material evidences it is seen that the vehicle was purchased from the opposite party in hire purchase. Even in Ex.A1 invoice No.1200064313 dated 22.08.2022 the product and colour was mentioned as VESPA VXL 125 CBS BSVI YELLOW 75^th  However, in Ex.A2 Booking Receipt the colour was mentioned as red which was issued after payment of Rs.6,000/-as advance.  In the Delivery Challan and the Tax Invoice (Ex.A3 & Ex.A4) the colour of the vehicle was mentioned only as yellow colour.  The photographs submitted by the opposite party vide Ex.B1 it is seen that the complainant was standing with the vehicle and the colour of the vehicle was yellow.  As contended by the opposite party vide Ex.B2 the complainant had taken delivery of the vehicle with yellow colour after receipt of an amount of Rs.15,000/-.  The complainant had stated in Ex.B3 that she had compromised with the opposite party and will not further agitate the issue before any forum.  The Tax Invoice dated 18.01.2023 clearly shows that the complainant had received VESPA VXL 125 CBS BSVI, YELLOW without any agitation.  The proof of free service availed by the complainant was also marked as Ex.B12.   The complainant had filed an additional document a photograph wherein she was sitting on a red colour vehicle.  However, no proof was submitted as to when the said photograph was taken whether it was taken at the time of booking or at the time of enquiry which fact was not clearly mentioned.

11.  In the facts and circumstances the delivery of the vehicle was not disputed and the complainant using the vehicle till today was also an admitted fact.  The complainant did not allege any defects in the product.  Further the photograph given for loan application clearly shows that the complainant was only with the yellow colour vehicle.  The Booking Receipt and Delivery Challan shows that the vehicle’s colour chosen by the complainant is yellow.  Even if it is the case of the complainant that she desired for red coloured vehicle but had taken delivery of yellow coloured vehicle on compulsion by the opposite party, she did not deny the receipt of Rs.15,000/- for withdrawing the Police Complaint given by her against the opposite party.  In the letter issued by the complainant she had stated that the matter was settled and she was withdrawing the complainant against the opposite party.  We also could not easily brush aside the defence of the opposite party that in the month of January 2023 the customer could be delivered a new model of the year 2023.  In the said facts and circumstances we do not find any deficiency in service on the part of the opposite party and find no merits in the complaint. Thus we answer the point accordingly in favour of the opposite party and as against the complainant.

Point No.2:-

12. As we have held above that the complainant failed to prove that the opposite party had committed deficiency in service and unfair trade practice, she is not entitled any relief in the complaint.  Thus we answer the point accordingly.

In the result, the complaint is dismissed.  No order as to cost.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 30^th day of October 2023

     -Sd-                                                                                                                       -Sd-

MEMBER-I                                                                                                           PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite party:-

      -Sd-                                                                                                                    -Sd-

MEMBER-II                                                                                                       PRESIDENT