Tamil Nadu

StateCommission

A/1/2016

N. Babu Ganesh - Complainant(s)

Versus

M/s. Omkar Vaagans, M.D., - Opp.Party(s)

S. Natarajan

16 Aug 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                                     PRESIDENT

              TMT. S.M.   LATHA  MAHESWARI,                                                       MEMBER

 

F.A.No.01/2016

(Against the order passed in C.C.No.13/2015, dated 08.09.2015 on the file of the District Commission, Thiruvallur)

 

 THE 16^th DAY OF AUGUST 2021.

N.  Babu Ganesh,

No.3450, Block F2,

MIG  6^th Block TNHB

Avadi, Chennai – 54.                                  Appellant/Complainant  

                                                 

                    - Vs –

1.  Omkar Vaagans by its Managing Director,

     (Authorised dealer for Mahindra Two Wheelers,

     No.208, CTH Road, Avadi, Chennai – 54.

 

2.  Zonal Business Manager,

     Mahindra Two Wheelers Pvt. Ltd.,

     No. 95, Celebrity Building,

     3^rd Floor, I Block  3^rd Avenue,

     Anna Nagar, Chennai – 40.                     Respondents 1 & 2/Opposite Parties 1 & 2.             

 

Counsel for the Appellant/complainant              :  M/s. V. Balaji,  Advocate.

Counsel for the Respondent-1/Opposite Party-1 :  Served & Called absent.

Counsel for the Respondent-1/Opposite Party-2 :  M/s. Sivakumar & Suresh, Advocates.  

 

             This appeal is coming before us for final hearing on 16.08.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following;-

ORDER

HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT. (Open Court)    

1.         This appeal has been filed by the appellant/complainant under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the District Commission, Thiruvallur made in C.C.No.13/2015, dated 08.09.2015,  dismissing the complaint.        

2.        For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Consumer Disputes Redressal Commission, Thiruvallur.        

3.       The brief facts which are necessary to decide this appeal is as follows;-

          The case of the complainant before the District Commission is that the 1^st opposite party is a dealer of the 2^nd opposite party who is the manufacturer of Mahindra Two Wheelers.   The complainant had booked for a two wheeler “ Mahindra Centuirio” N-1 on exchange offer of Rs.7,000/- for his old motor bike.  At the time of booking, the complainant was informed by the Manager of the 1^st opposite party that a total cost of motor bike was Rs.45,451/-exclusive of accessories and the registration, insurance and  other  charges, in all amounting to Rs.52,950/-.  The complainant was to make an initial payment of Rs.16,664/- and for the remaining balance, the complainant was assured by the Manager of the 1^st opposite party that they would arrange for financial assistance through one Capital First Ltd.,.  Believing the words of the manager of the first opposite party  on 02.08.2014, the complainant paid a sum of Rs.2,000/- and on 18.08.2014, he gave his old motor bike bearing registration No.TN-20-Q-0101 for exchange price of Rs.7,000/- which payment and exchange were duly acknowledged.  The complainant was asked to pay the balance cost of Rs.9000/- out of initial payment of Rs.16,664/- after completion of loan instalment on 02.08.2014.  After 5 days, the manager of the 1^st opposite party telephonically informed the complainant that the loan through Capital First Ltd., could not be arranged and hence loan arrangement was made with one Sri Ram City Finance and the complainant was asked to pay the balance cost.  Accordingly, on 18.08.2014, the complainant paid a sum of Rs.7,664/-by cheque drawn on SBI, Avadi Branch, and the same was acknowledged by the 1^st opposite party. On 28.08.2014, when the complainant went to take delivery of the motorbike, information was received from the 1^st opposite party that Ex-showroom price for motorbike “ Mahindra Centurio  N-1 “ was increased to Rs.46,893/-from 07.08.2014 onwards. The complainant was asked to pay additional cost of Rs.1,570/-. Accordingly, the complainant had also paid the said amount. Subsequently, on 31.08.2014, when the complainant verified the price of the Ex-showroom price of the said Motorbike in the internet, he came to know that the cost of the price of the motorbike, Mahindra Centurio – N-1, was Rs.45,101/- as on 31.08.2014. Hence, the complainant requested for refund of Rs.1,570/- collected excessively from the complainant but the 1^st opposite party rudely refused to comply with the request of the complainant. Now , the grievance of the complainant is that the act of the 1^st opposite party in selling the motorbike “Mahindra Centurio N - 1” in Ex-showroom price for a sum of Rs.46,893/- as agent the actual price of Rs.45,101/- would amount to unfair trade practice and therefore the complainant approached the District Commission praying for a direction to the opposite parties jointly and severally to refund the excess cost of Rs.1,570/- collected from him with interest at the rate of 24% per annum from 28.08.2014 and to pay a sum of Rs.25,000/-  as damages for deficiency in service committed by the opposite parties and another Rs.25,000/-as compensation for mental agony suffered by the complainant and further sum of Rs.25,000/- as compensation for unfair trade practice indulged by the opposite parties with cost of Rs.15,000/-.

4.          Even though notice was served on the opposite parties, they did not choose to appear and file their written version before this District Commission.  Hence the opposite parties were set ex-parte before the District Commission. On the side of the complainant, proof affidavit was filed and Exhibits A1 to A8 were marked before the District Commission. After considering the submissions of the complainant and analysing the materials available on records, the complaint was dismissed by the District Commission and aggrieved over the same, the complainant has preferred this appeal to set aside the order of the District Commission by allowing this appeal.

5.          The counsel for the appellant/complainant submitted that after analysing  the documents, the District Commission held that in Ex A6 filed by the complainant, no date was mentioned and hence the said document cannot be taken as relevant document for the purpose of determination of the price of the motorbike as on 28.08.2014 and therefore since there is no proof to show that the 1^st opposite party has received excess amount of Rs.1570/- towards cost of the vehicle and the complaint is liable to be dismissed and accordingly dismissed them complaint. Aggrieved over the same, the complainant has preferred this appeal to set aside the same and for allowing the complaint in favour of the complainant.   

6.       The 2^nd opposite party appeared before this Commission in this appeal.  Even though notice was served, the first opposite party remained absent.

7.       Heard the submissions made by the appellant/complainant and the 2^nd opposite party. The counsel for the appellant/complainant submitted that as per Ex A1, dated 02.08.2014 pro-forma novice issued by the 1^st opposite party, the cost of the vehicle was Rs.45,541/- but the 1^st opposite party collected Rs.46,893/-.  Even as per Ex A6, download print from the internet regarding the cost of the said motor bike as on 28.08.2014, the cost of the said vehicle was Rs.45,101/- only but whereas the 1^st opposite party has collected excess amount towards the cost of the motorbike.  The download print generated from the online website has been marked as Ex A6. Therefore, according to the appellant/complainant, he has successfully proved the allegation that the opposite parties have collected excess amount of Rs.1570/- whereas the opposite parties have miserably failed to prove that the cost of the vehicle was Rs.46,893/- on the date of purchase i.e., 28.08.2014. But, the District Commission dismissed the complaint mainly on the ground of Ex A6 wherein no date was mentioned. 

8.         When the matter came up for hearing on 09.08.2021, this Commission directed the 2^nd opposite party to furnish the particulars of the price list of “Mahindra Centurio N-1” two wheeler as on 28.08.2014.   But, today, on 16.08.2021 when case was taken up for hearing, the counsel for the 2^nd opposite party appeared but had not produced the price list of the said “Mahindra Centurio N-1” two wheeler as on 28.08.2014. But, it was contended by the counsel for the 2^nd opposite party that the 1^st opposite party is the dealer and the 2^nd opposite party is the manufacturer of the vehicle and if any amount was collected excessively by the dealer, 1^st opposite party, it is for the 1^st opposite party to refund the said amount.  The 2^nd opposite party, manufacturer of the product cannot be held responsible for the same. To fortify this submission, the learned counsel for the 2^nd opposite party relied on a judgement of the Hon’ble Supreme Court rendered in Civil Appeal No.574/2021 in the case of Tata Motors Limited – Vs – Antonio Paulo Vaz and Anr wherein it has been held that “No doubt, the absence of the dealer or any explanation on its part, resulted in finding of deficiency on its part, because the car was in its possession, was a 2009 model and sold in 2011.  The findings against the dealer were, in that sense, justified on demurrer. However, the findings against the appellant, the manufacturer, which had not sold the car to Vaz, and was not shown to have made the representations in question, were not justified.  The failure of the complainant to plead or prove the manufacturer’s liability could not have been improved upon, through inferential findings, as it were, which the District, State and National Commission rendered”. The above judgement of the Hon’ble Apex Court is squarely applicable to the facts of the present case.  When the `1^st opposite party has failed to appear and given an explanation, adverse inference has to be drawn against the 1^st opposite party i.e., a sum of Rs.1570/- was collected by him excessively.   At the same time, we are of the opinion that the 2^nd opposite party cannot be held responsible for the act of the 1^st opposite party and therefore, the appeal is to be allowed only as against the 1^st opposite party alone.    

7.          In the result, the appeal is allowed by setting aside the order of the District Commission, Thiruvallur made in C.C.No.13/2015, dated 08.09.2015.  The complaint is allowed in part only as against the 1^st opposite party directing him to refund Rs.1570/- collected excessively and also to pay a sum of Rs.5000/-as compensation to the complainant for mental agony suffered by him due to unfair trade practice and deficiency in service committed by the 1^st opposite party and another sum of Rs.5000/- as cost.  The complaint as against the 2^nd opposite party is dismissed without costs.

               Time for compliance; - Two months from the date of receipt of copy of this order, failing which the amount of Rs.1570/- and compensation amount of Rs.5000/- shall carry interest at the rate of 9% per annum from the date of the order till its realisation. 

               There shall be no order as to costs in this appeal separately.                        

 

 

 

S.M. LATHA MAHESWARI,                                                              R. SUBBIAH,

           MEMBER.                                                                              PRESIDENT. 

 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/Aug/2021