O R D E R

Sri. P. Satheesh Chandran Nair (President):

                        The complainant filed this complaint u/s.12 of the C.P. Act for getting a relief from the opposite parties.

                        2. The complainant’s case is stated as follows:  The complainant for the purpose of her on livelihood by means of self employment purchase a contract carriage vehicle.  The complainant has seen an advertisement on Malayala Manorama Daily dated 17.05.2015 in which the 2^nd opposite party offered that those who book the grant/X cent (motor car) will be rewarded 2 grams of gold coin.  The complainant believed the said advertisement of the 2^nd opposite party booked a Hyundai X cent Diesal Car by remitting Rs.9,000/- as an advance. She received an invoice dated 13.03.2015 for an amount of Rs.7,35,931/-.  She intended this vehicle as a contract carriage which was also informed to the opposite parties.  On 28.03.2015, X cent CrdiS(O)  car was delivered to her for an amount of Rs.6,54,971/-.  At the same time, an amount of Rs.23,332/- was collected as insurance premium, an amount of Rs.7,900/- as handling charge, an amount of Rs.10,500/- as accessories, and an amount of Rs.11,573/- as extended warranty charges.  From this amount, Rs.10,000/- was deducted as exchange value for Premier Padmini car together with 25% as exchange bonus.  Over and above the payment of Rs.6,42,000/-, Rs.10,000/- was also collected through a Demand Draft and an additional amount of Rs.21,276/- was also collected on the same day.  The vehicle was registered as KL/28/B-8877 and a contract carriage permit was also issued to her.  According to the complainant, even though there is an offer of Rs.22,000/- as free insurance the 2^nd opposite party collected Rs.23,332/- against that offer.  The 3^rd opposite party issued a private car policy certificate-cum policy schedule No.HFB 19344 to the complainant.  After verification, the complainant demanded a comprehensive policy for the vehicle.  The issuance of a private car package policy as stated above the complainant was not in a position to take her vehicle on road since it is registered as a contract carriage, which is having no insurance policy to carry passengers.  The issuance of a wrong insurance policy is a deficiency in service on the part of 2^nd opposite party as an agent and regarding the issuance of the said policy, 3^rd opposite party is also committed deficiency in service.  The complainant approached the 2^nd opposite party several time and point out the failure of the issuance of private insurance policy, non-payment of gold coin as per offer in the newspaper, the non-payment of offer for Rs.22,000/- for insurance scheme and non-payment of Rs.26,876/- as excess duty relief eligible for a contract carriage vehicle.  All these defects are deficiency in service committed by all the 4 opposite parties.  Though the complainant issue legal notice dated 12.05.2015 to all the opposite parties herein to redress the above defect all are in vain.  The opposite parties deceived and misrepresented the complainant with regard to the sale of this vehicle.  Hence the complainant filed this complaint against the opposite parties for getting reliefs. 

                        3. The complainant filed the complaint before this Forum along with documents.  We peruse the complaint, documents and heard the complainant and issue notice to all the opposite parties for their appearance.  All the opposite parties received the notice from the Forum but except 4^th opposite party none others appeared hence opposite parties 1 to 3 were declared exparte.

                        4. The 4^th opposite party’s version is stated as follows:  According to the 4^th opposite party the complaint is not maintainable either in law or on fact.  He contended that this contesting opposite party is an unnecessary party to this proceedings and no deficiency in service is alleged against him.  This opposite party never made any offer of free insurance and they never undertook to issue any policy to any vehicle without receiving the premium in advance.  This opposite party admitted that they issued an insurance policy to the vehicle which is the subject to this complaint on the basis of a proposal receipt.  Therefore, a change has been sought and the same has also been made in the policy to meet with the required as sought by the proposer.  The new policy is issued on 23.06.2015 w.e.f 24.06.2015 onwards.  He again contended that they acted the strictly within the principles of law and as such there is no deficiency in service against this contesting opposite party.  Hence they prayed to dismiss the complaint.

                        5. On the basis of the complaint and version filed by the 4^th opposite party, we would like to frame the following issues:

1. Whether the complaint is maintainable before the Forum?
2. Whether the 4^th opposite party can be exonerated from all the allegations?
3. Whether the complainant succeeds to prove the deficiency in service as alleged?
4. Regarding relief and costs?

           6. In order to prove the case of the complainant, the complainant filed a proof affidavit in lieu of chief examination and he is examined as PW1 and marked Exts.A1 to A17.  4^th opposite party cross-examined PW1.

            7. As per the proof affidavit filed by PW1, it can be seen that the affidavit is more or less as per the tune of the complaint.  According to the testimony of PW1, she stated that she purchased this vehicle for her livelihood and as per the advertisement seen in Malayala Manorama Daily dated 17.03.2015.  The heading of the advertisement is, “kzÀ®-¯n-f-¡-hp-ambn lps­-bpsS Grand offer”.  As per the advertisement, if a car is booked the company offered 2 grams of gold coin.  Believing the advertisement, the complainant’s husband booked X cent CrdiS(O)  car as a tourist taxi and all these details are informed to the 2^nd opposite party.  The 2^nd opposite party has given an assurance of all the offers seen in the advertisement are true and the complainant is eligible for all these offers.  The opposite party delivered the vehicle on 28.03.2015 and issued a sale certificate on that day itself.  According to the complainant, the opposite party not paid the insurance premium scheme Rs.22,000/-, excise duty refund scheme Rs.26,876/- to the complainant though it is offered as per the advertisement and even directly.  The complainant deposed that she has got only rs.25,000/- from 2^nd opposite party as exchange bonus.  The above car is registered at Mallappally Joint RTO Office with Reg.No.KL-28/B-8877 and the said registration is for a contract carriage permit.  She again deposed that the 2^nd opposite party has not delivered 2 gram gold coin as offered by opposite party, that 2^nd opposite party received Rs.11,573/- as extended warranty charge from the complainant and the warranty card also has not been issued in favour of the complainant.  Even though, the complainant paid insurance amount for a contract carriage policy the 2^nd opposite party and 4^th opposite party issued a private car package policy to the complainant.  The complainant again deposed that she avail a car loan from South Indian Bank, Branch Vennikulam and purchase this vehicle.  She has to remit Rs.10,300/- per month to the said bank for the repayment of the said loan.  According to her testimony, she stated that all the above act of the opposite parties are clearly comes under the deficiency of service.  In order to prove further her case she produced Ext.A1 to A17 as stated above.  Ext.A1 is the copy of advertisement published in Malayala Manorama daily dated 17.03.2015.  Ext.A2 is the receipt No.535 dated 17.03.2015 for Rs.9,000/-.  Ext.A3 is the copy of Proforma invoice dated 13.03.2015 for Rs.7,35,931.  Ext.A4 is the certificate dated 06.06.2015 issued by South Indian Bank, Vennikulam Branch.  Ext.A5 is the Sales Certificate dated 28.03.2015.  Ext.A6 is the copy of invoice No.319 dated 28.03.2015 for Rs.6,54,971/-.  Ext.A7 is the Customer Account Settlement Voucher dated 28.03.2015.  Ext.A8 is the copy of Temporary Certificate Registration dated 30.03.2015.  Ext.A9 is the copy of Registration Certificate KL-28/B-8877.  Ext.A10 is the copy of contract carriage permit No.P.Co 28/191/2015 dated 23.04.2015.  Ext.A11 is the copy of private car package policy dated 28.03.2015.  Ext.A12 is the copy of legal notice and postal receipts dated 12.05.2015.  Ext.A13 is the acknowledgement cards.  Ext.A14 is the Bank Receipt Voucher dated 24.06.2015 for Rs.3,610/-.  Ext.A15 is the copy of commercial car package policy dated 24.06.2015.  Ext.A16 is the copy of Press release dated 04.11.2015 issued by Transport Commissioner, Trivandrum.  Ext.A17 is the copy of Driving Licence and Badge. After the examination of the complainant as PW1 we heard the counsel appearing for the complainant in this case and the counsel for 4^th opposite party.

            8. Point No.1:-   In this case 4^th opposite party is only filed their version.  Their main contention is that this case is not maintainable before the Forum.  Though they raised a contention to this effect in their version no convincing evidence is produced on their part to substantiate their contention.  It is true that as per the contention of the complainant and the available exhibits produced from the side of the complainant we can come to a definite conclusion to the effect that the complainant is a consumer as per Sec.2(d) of the Consumer Protection Act.  Hence this case is maintainable before the Forum and the point found accordingly. 

            9. Point No.2:- The 4^th opposite party has a definite case here to the effect that they are not a necessary party to this proceedings and they have to be exonerated from all the allegations from this case.  When we peruse the evidence in this case based on the pleading, testimony and exhibits, it is clear that opposite party has committed any deficiency in service against the complainant.  Hence Point No.2 is found in favour of 4^th opposite party. 

            10. Point Nos.3 & 4:-  For the sake of convenience we would like to consider Point No.3 and 4 together.  It is already stated earlier that the complainant filed a proof affidavit and examined him as PW1.  At the time of adducing evidence, Ext.A1 to A17 were marked in favour of the complainant.  Except 4^th opposite party no other opposite parties turned up to cross-examine this PW1 since all are declared exparte.  At this juncture, it is to see that the evidence adduced by the complainant as PW1 against the opposite party 1 to 3 are unchallengeable.  Though 4^th opposite party filed version and cross-examined PW1, he tried to convince his position and also tried to exonerated from all the allegations against him only.  The complainant is clearly proved that as per Ext.A1, the 2^nd opposite party published an advertisement in Malayala Manorama daily dated 17.03.2015 and as per this Ext.A1 PW1 purchased the car on 28.03.2015.  Ext.A2 to A5 are clear evidence of the payment of advance proforma invoice, loan certificate and sale certificate etc.  The invoice No.319 the customer account settlement voucher dated 28.03.2015 and the temporary registration dated 30.03.2015 on the vehicle all are proved by Ext.A6 to A8.  It is also evident to see that the vehicle is registered as a contract carriage vehicle with a permanent Reg. No. KL/28-B/8877 and this can be inferred by Ext.A9 and A10.  The complainant has a strong case to the effect that the car package policy No.HFB-19344 dated 28.12.2015 issued by 3^rd opposite party as a private car package policy and that policy was issued against the direction of the complainant and moreover it is to see that even the temporary registration number of the car is for a contract carriage.  On the basis of the evidence adduced by the complainant, we can come to a conclusion that Ext.A11 the car package policy issued by 3^rd opposite party in this case was a policy only for a private vehicle and nobody can operate a contract carriage vehicle with this Ext.A11 car package policy.  It is to be noted that the complainant filed this case before this Forum and along with the case they filed an interim application for issuing a commercial car package policy (contract carriage).  This Forum issued a direction to this effect and on 24.06.2015, 4^th opposite party issued, a commercial car package policy to the complainant.  This can be proved by Ext.A15.  On the basis of the above evidence, we can come to a conclusion that this opposite party 1 to 3 committed deficiency in service against the complainant.  In order to convince this Forum, the complainant produced a press release dated 04.11.2015 of the transport commissioner of Kerala and the said document is marked as Ext.A16 in this case.  As per Ext.A16, it is clear that the dealers of the vehicles are restricted to receive any amount excess to the sale price of the vehicle.  The acceptance of excess amount is against the direction of the Govt. and against Rule 81 of Central Motor Vehicle Rules.  It is also to be noted that if a dealer is received any excess amount from the sale price the Govt. has got right to suspend the sale certificate of the said dealer.  As per this press release only Rs.200/- can be imposed as a service charge against the purchaser of a life motor vehicle.

            11. In order to substantiate the contention of the complainant, the counsel produced a citation 1997 (2) KLT 763 the dictum says, “a policy obtained for using the vehicle as a private car cannot be used for the purpose of using the vehicle as contract carriage carrying passengers for hire or reward”.  It is clear from this decision and as well as the evidence adduced by the complainant with regard to the status of the insurance policy, it can be inferred that the complainant was not in a position to use the vehicle in road with the private policy issued by 3^rd opposite party in this case.  The complainant has a definite case to the effect that for the ends of justice, this Forum has to award compensation to the complainant considering the nature and circumstances of this case.  In order to substantiate this contention the complainant cited a decision reported in SCC 668 (2000)7 reported by our Hon’ble Supreme Court.  The main dictum in this case is,   “Consumer Protection Act 1986 – Sections 14(1)(d), 18, 22, 11(1), 17(a) and 21(a)(i) – Compensation – Mode of quantification of – Held, attempt should be made to serve the ends of justice by awarding compensation if the case is established – Quantification would depend on facts and circumstances of each case and no hard and fast rules of quantification can be laid down for universal application – Consumer Forum should take into account all relevant factors and assess the compensation on the basis of legal principles, on moderation”. On the basis of this decision, it is to understood that this Forum has ample power to decide compensation to serve the ends of justice.  When we peruse the evidence adduced by the complainant in this case, it is evident to see that the opposite parties 1 to 3 published an advertisement on Malayala Manorama Daily and it is proved that through the advertisement the opposite parties given so many offers.  It is seen that except the exchange bonus no other offers has not been given to the complainant in this case as a responsible manufacturer or dealer.  A purchaser is usually given faith in the advertisement.  Here, it is reveal that what they said in the advertisement all those are not fulfilled.  The act of the opposite parties are comes under unfair trade practice.  It is to be noted that at the time of evidence the complainant produced Ext.A16, a circular issued the Transport Commissioner dated 04.11.2015.  As per the above said circular, the producer or the dealer of the vehicle are strongly restricted to receive any excess amount from showroom price or any handling charge at the time of delivery of the vehicle.  If it is found that such kind of illegal practice are done by the dealers or manufacturers the Govt. is entitled to suspend the sale certificate which was issued to the dealer as per Rule 44 of Central Motor Vehicle Rules.  When we look into the evidence of this case, it is clear that 1^st and 2^nd opposite party violated the direction, which was given as per Ext.A16. 

            12. On the basis of the above discussion, we find that opposite parties 1 to 3 are committed deficiency in service as well as unfair trade practice in this case.  When considering the evidence of this case, it is also come out in evidence that opposite parties 1 to 3 are jointly and severely responsible for all the illegal acts.  Hence Point Nos.3 and 4 are also found in favour of the complainant.

            13.  In the result, we pass the following orders: 

1. The opposite parties 1 to 3 are directed to pay an amount of Rs.73,349/- (Rupees Seventy Three Thousand three hundred and forty nine only) including the cost of 2 grams of gold coin Rs.5,000/-, insurance premium amount Rs.22,000/-, excise duty refund Rs.26,876/-, handling charge Rs.7,900/- extended warranty charge Rs.11,573/- to the complainant from the date of this complaint onwards with 10% interest  till its realization.

2. The opposite parties 1 to 3 are directed to pay a compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) to the complainant from the date of this order onwards till its realization with 10% interest.

3.  The opposite parties 1 to 3 are also directed to pay a cost of Rs.5,000/- (Rupees Five Thousand only) to the complainant from the date of order with 10% interest till its realization.

4. A copy of the order has to be sent to the Transport Commissioner, Thiruvananthapuram and Regional Transport Officer, Pathanamthitta in the light of the Circular dated 04.11.2015 of the Transport Commissioner, Kerala. 

 Declared in the Open Forum on this the 28^th day of January, 2016.                             

                                                                                                                            (Sd/-)

                                                                                                       P. Satheesh Chandran Nair,

                                                                                                                        (President)

Smt. K.P. Padmasree (Member – I)                 :    (Sd/-)

Smt. Sheela Jacob (Member – II)                    :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Beena Varughese

Exhibits marked on the side of the complainant:

A1 :  Copy of advertisement published in Malayala Manorama daily dated 17.03.2015.  A2  :  Receipt No.535 dated 17.03.2015 for Rs.9,000/-. 

A3  :  Copy of Proforma invoice dated 13.03.2015 for Rs.7,35,931. 

A4  :  Certificate dated 06.06.2015 issued by South Indian Bank, Vennikulam Branch. 

A5  :  Sales Certificate dated 28.03.2015. 

A6  :  Copy of invoice No.319 dated 28.03.2015 for Rs.6,54,971/-. 

A7   :  Customer Account Settlement Voucher dated 28.03.2015. 

A8   :  Copy of Temporary Certificate Registration dated 30.03.2015. 

A9   :  Copy of Registration Certificate KL-28/B-8877. 

A10 :  Copy of contract carriage permit No.P.Co 28/191/2015 dated 23.04.2015. 

A11 :  Copy of private car package policy dated 28.03.2015. 

A12 : Copy of legal notice and postal receipts dated 12.05.2015. 

A13 : Acknowledgement cards. 

A14 : Bank Receipt Voucher dated 24.06.2015 for Rs.3,610/-. 

A15 : Copy of commercial car package policy dated 24.06.2015. 

A16 : Copy of Press release dated 04.11.2015 issued by Transport Commissioner,   

         Thiruvananthapuram. 

A17 :  Copy of Driving Licence and Badge.

Witness examined on the side of the opposite parties:  Nil.

Exhibits marked on the side of the opposite parties:  Nil.

                                                                                                                       (By Order)

Copy to:- (1) Beena Varughese, Valiyangilikal House, Memala, Vennikulam. P.O.,

                     Mallappally, Pathanamthitta – 689 544.

2. M/s. S.S. Hyundai, South Regional Office – 4,  

          6^th Floor, Vankarath Towers, NH By-Pass Junction, Cochin – 24.

3. M/s. S.S. Hyundai, Variyapuram, Elanthoor East.P.O.,

          Pathanamthitta – 689 643.

4. M/s. Hyundai Assurance, Hyundai Motor India Ltd.,

          Variyapuram, Elanthoor East.P.O.

5. M/s. Future Generali India Insurance Co. Ltd.,

          Senapati Bapat Marg, Elphinstone Road,

          India Bulls Finance Centre, Senapati Bapat Marg,

          Elphinstone Road, Mumbai – 400 13.

6. The Transport Commissioner, Thiruvananthapuram.
7. The Regional Transport Officer, Pathanamthitta.
8. The Stock File.