SRI.R. VIJAYAKUMAR, MEMBER.

            This is a complaint filed under section 12 of Consumer Protection Act seeking repayment of excess amount collected by opp.parties and for getting an amount of Rs.11,808/- as 12  ½ interest for Rs.4,62,689/- which was paid by the complainant ,Rs.31,050/- as taxi fares spent by him  due to the delayed delivery of  car, Rs.21,143/- for non providing the accessories and specification offerred by the opp.parties, Rs.1,50,000/- as compensation for mental agaony and Rs.20,000/- by way of legal expenses.

The complainant’s case is that the opp.parties intentionally delayed in delivery of  the Santro car which was booked by him on 30..5..2007  in connection with the marriage of his daughter.   The basic accessories offered by the opp.party is not delivered to the complainant and thus the opp.party had violated the conditions in the agreement.

          The opp.parties case is that delay in delivery of the vehicle was happened due to the latches from the complainant.   The opp.party had convinced the complainant the chance of  delay in getting the vehicle.   Even though the vehicle was ready for delivery at Kollam show room on 17..6..2008, the complainant was not willing to take the vehicle raising unlawful demands.

          The complainant is examined as PW.1 Ext.P1 to P20 marked.  From the part of opp.parties DW.1 examined.   Exts. D1 to D3 marked.

The points that would arise for consideration are:

1.     Whether the complaint is maintainable

2.     Compensation and cost.

Points 1 and 2

          The case of the complainant is that the complainant,  in connection with  the marriage of his daughter booked a Sandro Automatic car on 30..5..07 with the 1^st opp.party  for a price of Rs.4,56,374/-  Before  the booking 2^nd and 3^rd opp.parties had shown a  Brochure  and given attractive offers to the complainant .   The 2^nd  and 3^rd opp.parties  received a cheque for an amount of Rs.69,689/- and  subsequently on 5..6..07   received an amount of Rs.3,93,000/- from SBT Branch, Beach road, Kollam as vehicle loan.  Thus the opp.party had received an amount of Rs.6315/- in excess.

          The 2^nd and 3^rd opp.parties absconded and they did not deliver the car in time.   The complainant sent registered  letters to the opp.parties.  But the opp.parties did not replay.   As the complainant filed a petition before the East Police and after the interference of Police  the opp.parties delivered the car.  Prescribed facilities were not provided in the car.  The car was delivered only after 75 days as against their promise that they will deliver the car  within 7 days.   Retreating  from their offers they had fitted 2 speaker instead of 4 speakers.  Instead of H2 [gold colour] they delivered  real earth  colour vehicle.  Instead of black  colour bumber, body colour  bubber Leather , seat cover  and basic accessories  rear compartment top,  siger lighter holder,rear wiper blade were not provided.  Instead of Bridge stone  tyres  they had fitted MRF tyres.   Additional amount Rs.6291/- also was charged

Even after the  the registration of the vehicle in the name of the complainant on 13..7..2007,  the opp.parties did not deliver the vehicle to the complainant and they had displayed the decorated vehicle in the show room.

As the opp.parties had not delivered the vehicle in time the complainant had spent Rs.31,050/- for taxi .   The bank charged  an amount of Rs.11,808/- as interest. He had sustained financial loss of Rs.1,00,000/-.as he had postponed his return journey.

Due to the deficiency in service from the part of opp.party, the complainant sustained heavy loss and mental agony for which the opp.parties are liable to compensate.  Hence the complaint is filed seeking reliefs. .

The case of opp.parties is that no assurance was given by them for the delivery of which  within 7 days .   The opp.party had convinced the complainant that it will take some time for delivery of such type   of vehicle Generally while booking the opp.party would intimate the company and the vehicle  would be delivered from the company.   The complainant booked the vehicle on 30..5..2007 and the vehicle reached at Thiruvananthapurm show room on 15..6..07 and reached at Kollam Show room on 17..6..07.  Even though the opp.party intimated  the complainant on the same day itself, that the vehicle is ready for delivery the complainant was not ready to take the vehicle on that day as he was going abroad.  On the way to the airport the complainant and family visited the showroom and directed the opp.party to complete the entire works including painting.   Subsequently the complainant came back from abroad after two weeks and contacted the 1^st opp.party for delivery.  On 12..7..2007 the opp.parties registered the vehicle in RTO., Kollam.   The opp.party had already given 50% Insurance amounts, one year extended warranty under body coating.   Balpunket speaker ,MP3 player and security system.  The cost of body bumper painting was borne by the complainant.   The complainant  demanded  for leather seat cover which was not affordable by the opp.parties.   As the complainant refused to take delivery the vehicle kept in the showroom for more than one month.  The complainant sent two registered notice and finally approached before the SI of Police, East police, Kollam

All the offers made to the complainant was already given by the opp.parties.   Actually the complainant booked a Santro Automatic [H2]  colour.   As per the request of the complainant, black colour of Bumper was changed with  resemblance to the body colour..    The opp.parties have supplied the entire accessories free of cost as offered in the order form.   The opp.parties have not made promise that the fitting charges would not be taken.   The complainant choose the Real Earth colour at the time of booking.   The opp.party had not offered any particular type of tyre.  It was done  by the company and no alteration could be done by the opp.parties.

There is no deficiency in service from the part of opp.parties.

          The 5th opp.party filed separate version containing additional contention that the Error, omission or mis representation if any by the dealer concerned at any time of retaining are servicing  of car is the sole responsibility of the dealer and liability of answering  5^th opp.party is only  to its warranty obligations alone.   There is no cause of action or averment against 5^th opp.party.   The complainant has not raised any issue  regarding  the performance of the car.  The name of  op5^th opp.party is to be deleted from part yarray.

          Even though sufficient notice has been given the 3^rd opp.party remained absent and not represented.  We have perused the entiredocuments in detail.  Heard both sides.

          Admittedly the complainant booked a Sandro Automatic car on 30..5..2007 . It is also admitted that the price of car was Rs.4,56,374/-.   The receipt of cheque for Rs.69,689/- and Rs.3,93,000/- through DD of SBT Branch, Beach Road, Kollam also is admitted.

          The main allegation of the complainant is that the opp.party committed undue delay in the delivery of the vehicle as against the assurance made by the 2^nd and 3^rd opp.parties.  The opp.parties contented that no assurance was made by them for the delivery within one week.   As argued by the learned counsel for opp.party no document produced by the complainant to show that the opp.parties assured delivery of the vehicle within one week.  On perusal of Ext.P2 order booking Form it is seen that Delivery time kept blank.  It is further argued by the learned counsel for opp.party that the column was kept blank because the particular type vehicle was not easily available.  While in cross examination the complainant also admitted that there is no documentary evidence to show that the opp.parties had assured to deliver the vehicle within one week.

          The opp.parties 1, 2 and 4 admitted that the vehicle reached at Thiruvananthapuram show room on 15..7..2007 and reached at Kollam show room on 17..7..2007 and they claims that they had intimated  the complainant on 17..7..2007 itself that the vehicle is ready for delivery.   According to the 5^th opp.party, the car reached at Thiruvananthapuram show room on 18..6..2007 and reached at Kollam show room only on 24..6..2007.   Exts. D2  Excise Gate pass cum delivery Chelan and Ext. D3  commercial invoice, produced by the opp.parties reveals that the vehicle reached at Thiruvananthapuram  on  18..6..2007..   The opp.parties 1 to 4  has not produced as anything to show that they had intimated to the complainant that the vehicle is ready for delivery.  No notice was given to the complainant regarding the delivery.  Even after the said vehicle reached, the opp.parties had not taken any steps  for immediate registration of the vehicle.   The vehicle was registered only on 1`2..7..2007.  Even  then the opp.parties 1 to 4 had not taken further steps for immediate delivery and it is clear from the documents that the vehicle was delivered only on  20..8..2008,  about 40 days after the registration of the vehicle.  It is an admitted fact that the vehicle was delivered only after the interference of police.  In these circumstances the argument of the opp.parties that the complainant refused to take the vehicle demanding leather seat will not sustain.  It is pertinent to note here that any of opp.parties had not responded to the registered notice issued by the complainant on  dates 24..7..2007 and 16..8..2007 and even after a notice was issued to opp.parties 1 to 4  on 31..7..2007 by the State Bank of Travancore, Kollam Beach road Branch from where the complainant had availed loan for purchasing the said vehicle.  If their statement is true that the vehicle was ready for delivery on 16..6..2007 and the complainant refused to take the delivery, what prevented them from issuing proper reply notice to the complainant?.   From these facts andcircumstances it is obvious that there was undue delay in the delivery of the said vehicle.

          Further allegation raised by the complainant is that an excess amount of Rs.6015/- received from him by the opp.parties.  No counter statement was made by the opp.parties in their version.  While in cross examination DW.1 admitted that when the amount paid by the Consumer and the DD amount added together the amount became excess.   The learned counsel for the complainant put the question that customer ļ Ĥˆð¢ò¡©Ã¡ DD ‎ý ©Ã¡  ˆ¥Ð¤Ä‎ý ó¼Ä®?  DW.1 answered that Insurance ¨üú œˆ¤Ä¢ free offer ð¢ñ¤¼¤.  complainant Insurance Ĥˆ »¤ù¤óü pay ¨Äí¤ •¹¨›ð¡Ã¤® Т Ĥˆ excess Ĥˆ ó¼Ä®  Т excess Ĥˆ customer Äñ¡›¤øø balance amount ‎ý adjust ¨Äí¤.

DW.1 further admitted that Rs.4500/- was adjusted for colour change of Bumper.  But the complainant contented that he had not requested for colour change.   While in cross examination of PW.1 the learned counsel for opp.party put the question that “P12   ±œˆ¡ñ«                   Bumber painting    4500/- ñ¥œ ›¢¹ø¢‎ý›¢¼¤« ‚ªÐ¡´¢ð¢¶¤Ù¤?  PW.1 answered that  …¨Ê •›¤ó¡™« ˆ¥Ð¡¨Äð¡Ã¤®

DW.1 also has admitted while in cross that there is no document to prove that bumber colour was changed as per the request of the complainant.   As per Ext. P12 the balance amount  was adjusted  in fitting changes.  But there was no agreement for payment of fitting charges in the  order Form.  From these facts  it is clear that the excess amount of Rs.4500/- adjusted in the name of colour change and  the balance amount adjusted as  fitting charges are to be refunded to the complainant.

          The offers given to the complainant was stated in Ext.P12. As per Ext.P12 the opp.party had given offer 1 half Insurance 2 Basic  accessories 3 MP 3 player [Blangent] 4.  Security system 5, extended warranty.  The customer put his signature in the document.  Hence the statement that accessories were not provided is unbelievable.  Nothing was produced to show that the opp.parties offered to provide 4 speakers Bridgestone tyres seat covers back compartment top lids etc.

It is further alleged by the complainant that he had sustained heavy financial loss due to the delay in delivery of the car.   According to him he had purchased the vehicle mainly in connection with and  for the purpose of the marriage of his daughter and he had spent Rs.31,050/- for his and his family travel.   The complainant had produced statementnbvvc of  accounts of amount he had spent for his travel and it was marked as Ext.P20.  On perusal we find that the traveling expenses shown in Ext.P20 were not related to the marriage of his daughter.  Supporting documents to prove this expenditure also was not produced.  Hence the actual financial loss sustained by the complainant could not be calculated on the basis of Ext.P20.

For all that has been discussed above, we are of the opinion that there is deficiency in service from the part of opp.party.   The point found accordingly.   As there is no specific allegation the 5^th opp.party is not liable for any compensation.

           In the result, the complaint is allowed in part.   The opp.parties 1 to 4 are directed to return Rs.6315/- the excess amount collected from the complainant and to pay interest for  one month at the rate of 12.25% per annum forRs.4,62,689/-. The opp.parties  are further directed to pay Rs.5000/- for financial loss Rs.7500/- as compensation for mental agony and cost Rs.1500/-

          The order is to be complied with within one month of the date of receipt of the order.

          Dated this the 30^th day of April, 2012

                                                          I N D E X:

List OF WITNESSES FOR THE COMPLAINANT

Pw.1. – Mohammed Maheen PIllai

List of documents for the complainant

P1. – Copy of Brochure

P2. – Oreder form

P3. – Statement of accounts

P4. – Letter dated 24..7..2007

P5. – Postal receipt

P6. – Letter dated 16..8.2007

P7. – Postal receipt

P6. – Letter dated 24..7..2007

P9. – Reply notice

P10. – Complaint dated 1..8..2007

P11. – Receipt

P12. – Statement of account

P13. – Delivery receipt

P14. – Feedback on sales experience

P15. – Delivery photo of car

P16. – Colour chart

P17. – Photos

P18. – Photo of tyre

P19. – Taxi charge

P20. -  Taxi charge

List of Witnesses for the opp.party

DW.1. – Abhilash

List of documents for the opp.party

D1. – Transport document [proof of delivery]

D2. – Excise Gate pass cum delivery challan

D3. – Commercial invoice