O R D E R

[Per Ms. Cynthia Colaco, Member]

By this order we shall dispose of the complaint filed by the complainant u/s 12 of the Consumer Protection Act against the opposite parties.

          In the complaint, in short it is stated as under:

1. That the opposite party no.1  is a dealer with regard to the sale and service of vehicles manufactured by the opposite party no. 2 , and has advertised, printed brochures indicating sale price, insurance, road tax, payable on each model, that the said prices shown in the brochures are  highly inflated .

1. The complainant alleged that basing himself on such representations of the opposite party the complainant booked on  02-07-2011 a i10magna 1.2 Bs IV Model, sleek silver in colour for the price of Rs.4,68,083:00 which includes charges towards handling and logistics, basic accessories, insurance  and road tax towards which cheques were issued  as follows. On 02-07-2011 cheque issued for a sum of Rs.10,000:00  and thereafter on                 13-07-2011 issued another cheque  for a sum of Rs.3,28,083:00 both drawn on State Bank of India,  Colva Branch.

1. That besides the sum of Rs.3,38,083:00 paid by the complainant to the opposite party, the opposite party no.1 had purchased under the  buy back scheme  the Maruthi van bearing registration No. GA 08-A-6561 belonging to the complainant for a sum of Rs.1,00,000:00, which amount was adjusted as against the payments of the new car purchased.   So also a bonus of             Rs.20,000:00 was offered as an exchange bonus for having exchanged his old Maruthi Van under the buy back scheme, however, the said bonus has not been received by the Complainant till date.

1. That totally the complainant had paid an amount of             Rs 4,68,083:00 including a cash discount of Rs.30,000:00 offered to the complainant by the authorized sales representative on behalf of the opposite party no. 1. and was promised further benefits/discounts likely to be declared on or before the delivery of the vehicle.

1. That the opposite party  no. 2 through the opposite party  no. 1 and Alcon Hyundai advertised on the Navhind Times dated            07-07-2011 various discounts and benefits offered for purchase of their vehicles which included free insurance, no petrol hike for one year and free extended warranty for one year, which worked out to Rs 21,955:00 i.e Rs.15,455:00- towards free insurance, Rs.4,200:00 towards no petrol hike for one year and Rs.2,500:00 towards extended warranty.

1. The said vehicle was delivered to the complainant on             19-07-2011 and subsequently registered under No.GA-08-F-7368.  At the time of the delivery, the representative of the opposite party no. 1 again promised that all the benefits as mentioned in  the Navhind Times dated 07-07-2011 would be given, which have not been received by the complainant till date. That the opposite party no.1 refused to issue the sales invoice to the complainant.

1. That the branch show room of the opposite party no. 1 at Ponda collected an amount of Rs.15,455:00 towards insurance and a sum of Rs.21,739:00 towards road tax, which amount is in excess compared to the amount actually paid by the opposite party no.1 to the insurance company and the transport authorities.

1. That upon receipt of cover note from the insurance company the complainant was shocked to see that  Rs. 9,326:00 only had been paid as against the fact that an amount of Rs.15,455:00 was collected from the complainant. So also towards road tax although a sum of Rs.21,739:00 was collected only a sum of                                Rs.21,054:00 was paid to the R.T.O.  That the balance amounts have not been refunded till date.

1. That even though the complainant had visited the branch showroom of the opposite party no.1, the concerned sales personnel initially failed to redress the grievances and even refused to entertain the same thereafter,  this act constituting deficiency of service.

1. By letter dated 28th July 2011, addressed to the opposite party no. 1, with a copy to the opposite party no. 2, the complainant demanded immediate payment of the amount of Rs.22,640:00 as advertised in the Navhind Times of July 7th 2011, and a refund of the excess amounts collected towards payment of  insurance premium and road tax. However, no replies were received.

1. On the 25-08-2011 the complainant received the extended warranty along with the sales and retail invoice of the vehicle in which the retail price of the vehicle was shown as Rs.4,16,889:00  as against the price shown in the brochure and as against the price collected from the complainant, by the opposite party no.1.

1. That the Complainant had not received the benefits advertised in the Navhind Times dated 7th July 2011 as also the cash discount offered by the opposite party no 1. Further, the actual amount paid to the insurance company and transport authorities  as against the excess amount collected by the opposite party no. 1  has not been refunded to the  complainant. That a legal notice was addressed to the opposite parties which was replied on 10/10/2011.
2. The complaint came to be filed praying that the opposite parties be directed to jointly and severally pay to the complainant Rs.22,640:00  i.e  Rs.21,955:00 towards the benefits  advertised in the Navhind Times dated 7th July 2011, and the amount of Rs.685:00 being the excess amount collected towards road tax,  and repay the excess amount collected towards the sale price of the said vehicle with interest of 18%.  To pay the exchange bonus of Rs.20,000:00 towards the exchange of the Maruthi Van and  Rs.1,00,000:00 towards compensation for mental torture.

1. The complaint was presented on 28-03-2012 and admitted on 12-04-2012. The opposite parties were served with notice . The opposite party no. 1 filed their  written version on 08-06-2012. The opposite party no. 2 filed their written version on 06-07-2012.

1. In the written version the opposite party no. 1 stated as under:

1. It was denied that the prices shown in the brochure were inflated prices. It was agreed that the complainant had paid totally an amount of Rs. 3,38,083:00 and a further amount of Rs.1,00,000:00 lakh was adjusted towards the buy back scheme of the Maruthi Van under No. GA-08-A-6561 thus the total amount of Rs.4,38,083:00 stood paid.

     ii) that the sum Rs. 1,00,000:00 as against the old Maruthi van (buy back scheme) was adjusted towards the sale price of the new vehicle and that an amount of Rs. 20,000:00 was promised as an exchange bonus  to the complainant.

    iii) that the booking was done much prior to the advertisement dated 07-07-2011 in the Navhind Times; that the complainant had already availed of all discount/benefits at the time of booking his vehicle i.e i10 Magna 1.2 Bs IV model, which was a cash discount of Rs.30,000:00, one year free insurance, and an extended warranty on his new vehicle.  It was denied that further benefits/discounts which were likely to be declared by the company on or before the complainant taking delivery of his vehicle were promised to him at the time of taking delivery of his vehicle.

   iv) that an amount of Rs 15,455/- towards insurance and a further  amount of Rs 21,739/- towards road tax were paid at Ponda branch showroom was denied. It is also denied that the complainant personally redressed his grievances to the opposite party no.1. That the letter dated 28-07-2011 sent by the complainant and the reply dated 25-08-2011 sending the extended warranty and invoice of the vehicle are also denied.

1. In their written version the opposite party no. 2 stated as under:

     i.  Any  policy/scheme is valid at the time of booking only and at the time of booking the vehicle on 02-07-2011, the complainant was entitled to  and received  a cash  discount of Rs. 30,000:00, and the complainant could not avail of a scheme announced subsequently.

    ii. that the advertisement in the Navhind Times dated 07-07-2011 specifically mentions "all offers are from Hyundai dealers only”; That the opposite party  no. 2 operates “on a principal to principal basis with its dealers" and therefore the opposite party no. 2  is not responsible for the same. It is denied that the complainant is entitled to warranty or free insurance or any amount towards no petrol hike as alleged.

    iii. it is denied that the prices are inflated or depicted wrongly. It is denied that the complainant was to receive an exchange bonus of Rs.20,000:00. As per the exchange bonus policy the complainant was entitled to receive a sum of Rs.15,000:00 which has been approved and disbursed by the opposite party no. 2 to the opposite party no.1; that if the same was not handed over to the complainant it was the sole responsibility of the opposite party no.1 as any error/omissions/misrepresentation, if any at the time of retail sales or services is the sole responsibility of the concerned dealer.

   iv. That apart from the discount amount of Rs.30,000:00 which has been received by the complainant there is nothing else brought on record to show that the complainant was eligible for further discount

    v. It is specifically denied that the complainant is entitled to receive any discounts based on the advertisement in the Navhind Times dated 07-07-2011 issued by the opposite party no.1.  It is also denied that the opposite party is entitled to jointly and severally pay an amount of Rs. 22,640:00.

   vi. The opposite party no.2 further stated in their written version    that the Forum has no territorial jurisdiction as mandated under Section 11 of the CPA as the principal office of the opposite party no.2 as noted from the memo of addresses is situated in New Delhi and not in Margao .

   vii. That there is no privity of contract as seen in section 2(1)(g) of the Act, between the complainant and the opposite party no. 2 except warranty obligations of the vehicle as there is no complaint as to the  performance of the car. That the title of the Hyundai vehicle has passed on to the concerned authorized dealer, when handed over. That retailing or servicing is the sole responsibility of the concerned dealer. That no case of deficiency has been made out as against the opposite party no. 2. That any policy scheme is void or valid  at the time of booking only. That from the complaint it is noted that  the complainant was given a cash discount of Rs.30,000:00 at the time of booking the car, that there was no  scheme of  insurance  at  the time of booking  the  car on 02-07-2011.

viii.  That from the receipt it can be seen that the amounts paid for the purchase of the car are issued by the opposite party no. 1 and not as an agent for the opposite party no. 2.

  ix.That the complainant has not brought any document on record to show that he is entitled to any further discount apart from the discount received by him of Rs.30,000:00. That this opposite party had never represented to the complainant that it would provide either extended warranty or free insurance or amount for petrol hike. That from the advertisement relied upon it is seen that all offers are from Hyundai authorized dealers only and not from the manufacturers.

x. That all averments made in the complaint were denied as against the opposite party no.2.

 17.    We have gone through the complaint, the written versions,  documents on record, affidavits in evidence and written arguments. The issues to be looked into by the Forum are:

1. whether the complainant is entitled to the benefits mentioned in the Navhind Times of July 7th  2011?
2. whether the complainant is entitled to refund of the excess amounts collected towards payment of Road Tax, with interest of 18%.?
3. whether the complainant is entitled to pay the exchange bonus of  Rs.20,000:00 towards the exchange of the Maruthi Van?
4.  whether the Forum does not have territorial jurisdiction against the opposite party no.1 since the same has its head office at Delhi?

18.     With regard to the issue no.1, it is the case of the opposite party that the complainant booked his vehicle to be purchased on  02-07-2011, prior to the advertisement dated 07-07-2011 put  in the Navhind Times by the opposite party No.1.  It is submitted that the complainant had already availed of all schemes/benefits at the time of booking his vehicle i.e i10 Magna 1.2 Bs IV model, which was a cash discount of Rs.30,000:00, one year free insurance and extended warranty on his new vehicle. It is denied that further benefits/discounts which were likely to be declared by the company on or before the complainant taking delivery of his vehicle were promised to him at the time of taking delivery of his vehicle.

19.      It stands to reason that the offer would be made only at the time of booking and not after that.  Besides, the complainant had already availed of Rs.30,000:00, free insurance for one year , along with extended warranty on his new vehicle valid upto 18-07-2014 or upto 6000 kms sales promotion and the exchange offer of Rs.1,00,000:00 as exchange price for his old Maruthi car was also given to him although there was no privity of contract.

21.      Factually  a closer look at the issue shows that apart from the "No petrol hike for one year" all the benefits/discounts offered on 07-07-2011 were also offered on 02-07-2011, to the complainant  which  would mean duplicating the offer. It does not stand to reason to accept such a proposition where a customer avails of the benefits promised at the time of booking his vehicle and then  tries to make a grab for any further benefits advertised to attract future buyers. There is no evidence brought before us that  the complainant would be eligible for further benefits likely to be declared by the company on or before the delivery for the said vehicle. Although the complainant stated that Shri Raghunath Pai Raikar, the authorized sales representative assured more benefits, the same cannot be accepted. Therefore this issue is decided in the negative.

22.      With respect to the second issue the vehicle registration document brought on record by the complainant shows that road tax of Rs 21,054:00 was paid. The Proforma Invoice shows that Rs.21,739:00 was received. Therefore Rs. 685:00 was received in excess. The opposite party No. 1 would therefore be liable to return the said amount to the complainant.

23.       With respect  to the issue no.3 it is submitted that the on road price of the vehicle in the proforma invoice is shown as Rs. 4,68,083:00 which price is also mentioned in para 4 of the complaint as the total price of the vehicle. From the payment receipt brought on record it is seen that the amount paid to the opposite party no. 1 was  Rs.3, 38,083:00.

24.      From the customers order form produced by the opposite party it is seen that the respective columns are filled as under:" wherein the name and address of the complainant is shown, and the executive’s name shown is Raghunath Pai Raikar,  the car number dealer invoice No. 11201100244 and dealer inv. date 13/07/2011. Against "exchange price; Add exchange Bonus; Total exchange value" is shown as Rs.1,00,000:00. The signature of the complainant is noted. On the reverse of the page in the column car cost : on road  Rs 4,38,000; similarly in the Customer offer detail: description: on road discount Rs.30,000:00. The said document is  signed by the customer and sales executive. 

 25.      Even though the complainant claims that that an exchange bonus of Rs.20,000:00 was promised , the same does not reflect in the customers order form. However in para 5 of the complaint it is pleaded that the complainant was promised an amount of Rs.20.000:00 as an exchange bonus for having exchanged his old Maruthi Van under the said old vehicle buy back scheme Maruthi and the bonus was not received by him.    In the written version of the opposite party no.1 at para 4 , it is agreed that the "contents of para 5 of the complaint are substantially true.

26.      Further the opposite party no.2 in para 5 of their written version and in para 12 of their affidavit in evidence  have stated that as per terms and conditions of exchange bonus policy the complainant was entitled to receive Rs.15,000:00 only and not 20,000:00. That the same had been approved and disbursed by the opposite party No. 2 to the opposite party no. 1 to be paid to the complainant and further that if it was not paid, it was the sole responsibility of the opposite party no.1.

27.      In their written arguments the opposite party No.1 states that Rs.15,000:00 has already been paid and it can be seen from the ledger annexed as annexure 1.  However there is no such document on record.

28.      The affidavit in evidence of the opposite party no.1 is silent on this aspect, so is the document "customers order" produced on record by the opposite party no.1.  The bonus of  Rs. 20,000:00 has not been entered in the Add exchange bonus column.

29.     Even though the opposite party no. 2 states having sent Rs.15,000:00, the opposite party no. 1 admits that the claim made for 20,000:00 is substantially true.

30.      The matter was adjourned for clarification of the opposite party no.1 on three occasions prior to passing this order the same reflects in the rosnama.  However the opposite party no.1 did not appear neither did their advocate.  We are therefore of the opinion that the issue should be allowed based on the pleadings of the parties and the issue is decided in the affirmative.

32.       With respect to the issue no. 4  the opposite party no. 2 does not deny that the car sold  was manufactured by them  nor do they in any way establish that the transaction of the sale was not done within the territorial limits of the jurisdiction of this Forum. Their sole contention is that their head office is based in Delhi and that therefore this Forum has no jurisdiction. This contention of the opposite party no. 2 is  not proved by them and therefore we hold that this Forum has jurisdiction over the opposite party no. 2 .

In view of what is stated above we pass the following order:

O R D E R

The complaint is partly allowed.  The  opposite party no. 1 shall pay to the complainant an amount of Rs. 20,000:00 (Rupees twenty thousand only) towards the exchange bonus. The opposite party no.1  is directed to refund the sum of Rs. 685:00 (Rupees six hundred eighty five only) received in excess along with interest  of nine per cent from the date of purchase of the vehicle.

 (Shri Jayanat S. Prabhu)

             President

 (Ms. Savita G. Kurtarkar)

              Member

                                                                                (Ms. Cynthia Colaco)

                                                                                         Member