BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
O.P. No. 132/2005 Filed on 26.04.2005
Dated : 16.07.2012
Complainant :
Jiji Thomas, Shine Enterprises, Valiyakada, Peroorkkada, Thiruvananthapuram.
(By adv. C.S. Raj Mohan)
Opposite parties :
M/s Tata Motors Officers and Network, Passenger Car Business Unit, Marketing and Customers Support, 26th Floor, Centre No. 1, World Trade Centre, Cuffe Parade, Mumbai-400 005.
TATA Motors, Passengers Car Business Unit, K.D. Block, Pimpiri, Pune – 411 018.
(By adv. Menon & Menon)
M/s Kulathunkal Motors, Kulathunkal Buildings, Overbridge, M.G. Road, Thiruvananthapuram.
(By adv. Nair Ajay Krishnan)
This O.P having been taken as heard on 15.06.2012, the Forum on 16.07.2012 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to filing of the complaint are that complainant booked an Indica Diesel car manufactured by M/s Tata Motors with 3rd opposite party, Kulathunkal Motors, on 29.01.2004 by remitting Rs. 10,000/- as booking amount, that the said car was booked for the purpose of using it as a contract carriage, that at the time of booking, 3rd opposite party specifically told that the vehicle would be delivered on or before 15.02.2004, that as per agreement the balance amount is to be paid at the time of delivery of the car, that is on 15.02.2004, that complainant entered into an agreement with ICICI Bank and bank agreed to pay the entire balance amount, that after availing the loan the fact was informed to the 3rd opposite party, but no vehicle was made available for delivery before 15.02.2004, that 3rd opposite party assured that the car would be ready on or before 20.02.2004, that on the basis of the assurance and as per the demand of the 3rd opposite party complainant entrusted a demand draft on 20.02.2004 from ICICI Bank for the balance amount of Rs. 2,47,823/-. Apart from that, on 17.02.2004 complainant paid Rs. 5,000/-, that the balance to be actually paid at the delivery as per the contract was Rs. 37,277/-. Complainant was ready with the said amount on 20.02.2004. Since no car was delivered on that day, the balance of Rs. 37,277/- was not accepted by the 3rd opposite party. Thereafter 3rd opposite party made some false assurances on different dates. Subsequently 3rd opposite party informed that only Indica Deluxe Duro I A/C was available and insisted the complainant to take delivery of the same before March, otherwise there would be a hike in the price after budget. 3rd opposite party informed that complainant has to pay an amount of Rs. 25,810/- as additional value for Deluxe A/C car, that because of delay in delivering the car complainant could not submit tenders with Government of Kerala, BSNL, Doordarshan etc, that on expectation that the vehicle would be delivered on or before 15.02.2004 complainant entered into an agreement with private persons to rent the car. Finally complainant was forced to accept A/C car on 23.03.2004. Because of the delayed delivery of the car, complainant sustained huge loss since he could not submit tenders with Doordarshan, Government of Kerala and BSNL. The total loss sustained by him is estimated at Rs. 1,00,000/- apart from the amount of Rs. 25,810/- which he had paid as additional price for Deluxe A/C car, that complainant sent legal notice to opposite parties, but they were not ready to settle the disputes. Hence this complaint to direct opposite parties to pay an amount of Rs. 1,00,000/- as compensation and reimburse the amount of Rs. 25,810/- being the additional value received by opposite parties along with costs.
Opposite parties 1 & 2 filed version contending interalia that the complaint is not maintainable either in law or on facts, that complainant cannot be treated as a consumer as complainant had purchased the Tata Indica Car for operating it as a contract carriage by engaging paid drivers. Complainant has no case that there has been any deficiency in service on the part of opposite parties 1 & 2, that when the complainant had approached the 3rd opposite party for the purchase of Tata Indica non A/C car he was informed by 3rd opposite party that as there was a shortage in the supply of non A/C model cars, he could opt for an A/C version of the said car if he required the vehicle urgently, that he had paid the booking advance of Rs. 10,000/- on 29.01.2004, that 3rd opposite party never assured the complainant that the vehicle would be delivered by 15.02.2004, that delivery of the car was subject to various conditions such as availability of the same with the manufacturer, the colour and model opted etc. Complainant had accepted these conditions. Complainant on having approached the 3rd opposite party on 20.02.2004, had been informed that as the non A/C model car was not available with opposite parties, he could not be delivered with the same on 20.02.2004 and that if he was willing to opt for an A/C version car the same could be delivered to him immediately. Complainant had initially not opted for the A/C version as the 3rd opposite party had not accepted the proposal of the complainant to provide him with the A/C version car at the price of the non A/C version car, that the complainant had of his own volition on 23.03.2004 expressed his willingness to purchase the A/C model car and had accordingly remitted the balance amount for the same. There is no merit or basis in the allegations raised by the complainant.
3rd opposite party also filed version contending that 3rd opposite party had not forced or compelled the complainant in any manner whatsoever to accept the A/C model car, but on the other hand complainant had out of his own free will and accord opted for the same. The A/C model car was delivered to the complainant on the same day on which the complainant had paid the balance amount of the price of the said model car to the opposite party, that complainant has suppressed material facts in order to reap unlawful benefits by abusing the process of law. Since there was no delay or deficiency in service on the part of the 3rd opposite party, 3rd opposite party is not liable to pay any amount as compensation to the complainant. Hence 3rd opposite party prayed for dismissal of the complaint.
The points that arise for consideration are:-
(i) Whether the complainant is a consumer as defined in the Consumer Protection Act?
(ii) Whether there is deficiency in service on the part of opposite parties?
(iii) Whether the complainant is entitled to compensation and costs?
In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P6. Opposite parties have not filed proof affidavit or any documents.
Points (i) to (iii):- The very case of the complainant is that he had booked for a Tata Indica diesel car for the purpose of using it as a contract carriage which was only a source of livelihood of the complainant. The stand of the opposite parties is that complainant is not a consumer as he owns an establishment by name 'Shine Enterprises'. According to opposite parties, the description of the complaint in the cause title would disclose that complainant had purchased a car for commercial purpose. There is no material on record to show or to suggest that complainant had purchased the said car for commercial purpose. Complainant has been cross examined by opposite parties. In his cross examination, complainant as PW1 has deposed that the Shine Agency is not a taxi car agency. According to complainant the said agency is an agency for transport contract for goods. According to complainant, by the above said agency he could enter contract with BSNL, Doordarshan etc. PW1 has further deposed that he had never conducted a contract carriage in the name Shine Agency prior to the purchase of Indica car from the opposite parties. PW1 has deposed further that there was a driver and in addition to that he would run the car as he had a badge with him. The onus is on the part of the opposite parties to show that complainant had booked the car for commercial purpose. There is nothing on records to show that complainant had purchased the car for commercial purpose. In the absence of evidence in support of the version, we are of the view that complainant had booked the said car for the purpose of using it as a contract carriage which is the only source of livelihood of the complainant. In view of the above, we find the complainant is a consumer as defined in the Consumer Protection Act. There is no point in dispute that complainant had booked the said car on 29.01.2004 on payment of Rs. 10,000/- as advance amount. Ext. P1 is the copy of booking details. As per Ext. P1 complainant had booked the said car on 29.01.2004 and paid Rs. 10,000/- towards booking amount. On perusal of Ext. P1, it is seen that model is Indica DL Euro-I and expected delivery date: February 15th. In the vehicle usage column, it is mentioned as taxi and balance payment mode-finance by ICICI. Ext. P2 is the invoice dated 23.03.2004 for Rs. 3,25,910/-. Ext. P3 is the copy of the amortization schedule issued by ICICI Bank. As per Ext. P3 loan amount comes to Rs. 2,55,000/-. Ext. P4 is the postal receipt. Ext. P5 is the copy of advocate notice issued by complainant to opposite parties. Ext. P6 is the reply issued by 3rd opposite party to Ext. P5 advocate notice. The case of the complainant is that 3rd opposite party agreed to deliver the vehicle on 15.02.2004 and complainant agreed to pay the balance amount on that date. On enquiry with 3rd opposite party, it was informed by 3rd opposite party that no vehicle was made available for delivery on 15.02.2004. It has been contended by the complainant that 3rd opposite party assured that the car would be ready on or before 20.02.2004 and it was on the basis of that assurance, complainant entrusted the demand draft issued from ICICI Bank for balance amount of Rs. 2,47,823/-. According to complainant, the vehicle was booked on 29.01.2004 for Rs. 3,00,100/- and complainant was ready with the balance amount on 20.02.2004. On 20.02.2004 3rd opposite party informed the complainant that only Indica Euro DL A/C alone was available and insisted the complainant to take delivery of the same before March. Since there was no alternative complainant was forced to accept the A/C car on 23.03.2004 after remitting the balance amount. It is pertinent to point out that as per Ext. P1 complainant never booked A/C version of the said car, thereby it can be inferred that complainant had booked an Indica non-A/C car DL model. On 20.02.2004 complainant had paid only Rs. 2,47,823/- by way of cheque from ICICI Bank. According to him he was ready with the balance amount to take delivery of the car on 20.02.2004, but the model was not made available on that date. According to opposite parties 1 & 2 there was a shortage in the supply of non-A/C model cars, but A/C version of the car was available at that time. It should be noted that complainant was forced to purchase A/C model on 23.03.2004 even though he had booked for a non-A/C model. Opposite parties never furnished any material to suggest the reason for shortage. Complainant has never adduced any evidence to show that the alleged delay of two months was deliberate. It is pertinent to point out that complainant had produced the cheque for Rs. 2,47,823/- on 20.02.2004 towards balance amount, it may be on the impression that he would get delivery of the vehicle from the opposite parties on that day, otherwise he would not attempt to produce the cheque on that day. Even after furnishing the same, opposite parties could not deliver the opted vehicle till 23.03.2004. It is pertinent to point out that the said amount of Rs. 2,47,823/- was with the 3rd opposite party from 20.02.2004 to 23.03.2004. 3rd opposite party had used the said amount till the date of delivery of the car to the complainant. It is to be noted that complainant had taken loan from ICICI Bank to purchase the said car Circumstances compelled the complainant to purchase an A/C model for which he was forced to pay additional amount also. As complainant had to pay interest on the loan amount for the delayed period from 20.02.2004 to 23.03.2004, extra payment of interest for the delayed period has to be treated as economic loss to the complainant by the action of the opposite parties. Opposite parties have not filed proof affidavit to substantiate their stand in the version nor have opposite parties furnished any material to suggest proximate cause for delay to deliver the booked vehicle. Since the money was received by 3rd opposite party one month before delivering the vehicle and due to the action of the 3rd opposite party complainant had incurred economic loss by way of remittance of interest for the loan amount from 20.02.2004 to 23.03.2004. In view of the above, we find there is deficiency in service from the side of the 3rd opposite party for which complainant is entitled to compensation. Taking the overall situation, we deem that a compensation of Rs. 5,000/- would meet the ends of justice. As the aforesaid amount was with 3rd opposite party till the delivery of the vehicle to the complainant, it is just and fair to direct 3rd opposite party to pay an amount of Rs. 5,000/- as compensation to the complainant.
In the result, complaint is allowed in part. 3rd opposite party is directed to pay Rs. 5,000/- as compensation to the complainant along with Rs. 1,000/- as costs within two months from the date of receipt of this order.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16th day of July 2012.
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
Sd/-
S.K. SREELA : MEMBER
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O.P. No. 132/2005
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Jiji Thomas
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of Order Form.
P2 - Copy of invoice dated 23.03.2004 for Rs. 3,25,910/-.
P3 - Copy of amortization schedule issued by ICICI Bank
P4 - Postal receipts
P5 - Copy of advocate notice dated 01.12.2004.
P6 - Reply notice issued by 3rd opposite party.
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
NIL
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PRESIDENT
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