BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                            C.C.No.14/2010

Dated this the 31^st day of March 2016

Ananthi, wife of Kannan               

No.8, Haziar Street              

Neravy Village and Post

Karaikal – 609 604

                                       ….     Complainant

Vs.

Proprietor          

M/s V.AR.N. Motors                   

Authorized Suzuki Dealer       

1A, Valluvar Street, Nehru Nagar Post

Karaikal – 609 605.

                    ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B.,

MEMBER

FOR THE COMPLAINANT      :  Thiru K. Thirumalvalavan, Advocate

FOR THE OPPOSITE PARTY   : Tvl. K. Veerapillai and S. Thirumurugan

                                                        Advocates

O R  D  E  R

(by Thiru A. Asokan, President)

This is a complaint filed by the complainant under Sections 11 and 12 of the Consumer Protection Act, 1986  to direct the Opposite Party to repay the advance amount of Rs.37,914/- to the complainant;  to order payment of 12% interest on the advance of Rs.37,914/- from the date of breach of contract i.e. from 09.12.2009 till date of payment;  to pay an amount of Rs.50,000/- towards compensation for mental agony caused to the complainant and for costs.

2.  The case of the complainant is as follows:

          The complainant had booked one Suzuki XCD 125 CC Motor cycle with the respondent and paid advance amount of Rs.22,914/- and Rs.15,000/- on 13.11.2009 and 05.12.2009 respectively and the receipts were issued in the name of the complainant.  The respondent was not interested to sold and deliver the vehicle to the complainant.  During the third week of December 2009, the complainant came to understand that the vehicle booked out of her money was insured in the name of one S. Subburayalu, brother of the complainant, with M/s National Insurance Company Ltd., Puducherry.  Due to breach of contract, the complainant demanded repayment of the entire advance through legal notice dated 19.12.2009 which was duly acknowledged by the respondent and gave reply stating that the advance amounts were received from the said Subburayalu and on the request of the said Subburayalu, the vehicle was insured in his name on 9.12.2009.  Further, the vehicle is with the respondent and also the respondent assured that the vehicle will be delivered to the said S. Subburayalu on payment of the balance amount towards the cost of the vehicle by the complainant.  The complainant further stated that there was no general, special power of attorney or authorization was given by her to sell, insure and register the vehicle in the name of S. Subburayalu.  As per section 2 (d) of the Central Motor Vehicle Rules, 1989 the term "financier" means a person with whom the registered owner of the motor cycle has entered into an agreement of hire purchase, lease or hypothecation in respect of such vehicle and whose name is entered in the certificate of registration.  The complainant intended to purchase the vehicle out of her own funds and advanced accordingly.  Hence, the vehicle ought to be insured and registered exclusively in her name.  Hence, this complaint.

3.       The reply version of the opposite party is as follows:

          The complaint is not maintainable either in law or on facts.  Apart from denying the allegations of the complainant, the opposite party stated that the said Subburayalu is the brother of the complainant and he only signed all the documents on behalf of the complainant and also paid all the advance money.  Only as per the instruction / request of Subburayalu, the said vehicle was insured in the name of Subburayalu on 09.12.2009 with National Insurance Company Ltd., Puducherry.   The Subburayalu promised the opposite party that he will pay the balance amount of existing price of the vehicle on 05.12.209 and get back his vehicle, whereas, on several requests of the opposite party, he did not turn up to get his booked vehicle and not paid the balance amount of the vehicle cost.  Therefore, the opposite party was unable to deliver the vehicle to the complainant's brother Subburayalu, without making balance payment of the vehicle.  The complainant has no legal value to file the complaint as against the Opposite Party and the complainant being lady paid the part amount as initial payment for booking and instructed her brother get it followed are all very clear to establish the real fact of the case.  Further the opposite party stated that their  company is always ready to deliver the vehicle either to the complainant or to her brother if they pay the balance amount.  Hence, prayed for dismissal of the complaint.

4.       On the side of the complainant, the complainant was examined as CW1 and Exs.C1 to C6 were marked.  On the side of the opposite party, one Kumar Proprietor of V.AR.N. Motors was examined as RW1 and one Subburayalu was examined as RW2. However, no documents were marked.

5.       Points for determination are :

          1. Whether the complainant is a consumer?

2. Whether the opposite party was negligent in performing his duty and committed Unfair Trade Practice?

3. To what relief the complainant is entitled for?

            6. Point No.1:

                   The complainant booked a motor cycle Suzuki XCD 125 CC with the opposite party by making advance payment of Rs.37,914/- on 13.11.2009 and 05.12.2009 respectively vide Exs.C1 and C2.   Hence the complainant is a consumer.

7. Point No.2:

          We have perused the pleadings, reply version of the Opposite Party,  exhibits marked and the evidence adduced by both the parties and arguments advanced by the counsels of both the parties.  The complainant alleged that in order to purchase a motor cycle, she had booked one motor cycle Suzuki XCD 125 CC with the Opposite Party by making advance amounts of Rs.22,914/- on 13.11.2009 vide Ex.C1 and Rs.15,000/- on 05..12.2009 vide Ex.C2.  The receipts Exs.C1 and C2 were issued in the name of complainant.  The complainant was ready to pay  the balance amount and take delivery of the vehicle.  But, during the third week of December 2009 the complainant came to know that the vehicle was insured in the name of  one S. Subburayalu with M/s National Insurance Company Ltd.,  Immediately, the complainant issued a legal notice dated 19.12.2009 vide Ex.C3 demanding the repayment of the advance amount paid by her.  The opposite party received the said notice and gave reply  dated 10.01.2010 vide Ex.C4 alleging that the said Subburayalu is the brother of complainant and that he only singed all the documents on behalf of complainant and on his instruction only, the opposite party insured the vehicle with National Insurance Company Limited in the name of Subburayalu.  Ex.C5 and Ex.C6 are the Insurance Policy. 

  8. On the otherhand, the Opposite Party alleged that the said Subburayalu only paid the advance amount of Rs.22,914/- and on his request only, the opposite party registered the vehicle in his name.  Further alleged that the said Subburayalyu promised the opposite party to pay the balance amount of existing price of the vehicle and take delivery of the same.  Since the balance amount was not paid, the vehicle could not be delivered.  They have not committed any breach of contract and that there is no deficiency in service on their part. 

9. This Forum has carefully perused the pleadings, documents, evidence and the argument of the respective Counsels.  On Perusal of Exs.C1 and C2, the advance amounts were paid by the complainant Ananthi and the said receipts were issued in the name of complainant.  When the complainant was ready to take delivery of the vehicle by paying the balance amount during third week of December 2009, she came to know that the vehicle was insured in the name of her brother Subburayalu.  Since there was breach of contract, the complainant demanded repayment of the entire advance amount through legal notice Ex.C3, the opposite party failed to return the same instead, they have issued reply notice Ex.C4 stating that Subburayalu only made all payments and on the instruction of Subburayalu only the vehicle was insured in his name with M/s National Insurance Company Ltd., and also requested to make payment of balance amount and get back the booked vehicle.  The CW1 in her evidence has stated that she only paid the advance amounts in her name.   The complainant has examined the said Subburayalu as CW2. The CW2 in his cross examination has stated that "I deny the suggestion that as per my instruction vehicle was registered in my name and due to non-payment of balance amount OP had not handed over the vehicle to me." 

          10. On the otherhand, the opposite party examined one Kumar, the proprietor of the opposite party company as RW1 who deposed during his cross examination that "Exs.C1 and C2 stands in the name of complainant and we have not obtained any sign from Subburayalu.  I have not obtained any documents in writing from the complainant stating that the vehicle can be registered in the name of Subburayalu."  Further the RW1 in his cross examination has stated that "I have sent a communication in writing to Subburayalu by informing that the vehicle was insured in your name.  I have not produced the letter before this Hon'ble Forum." From the evidence of RW1, it is clear that he had not sent any communication to the complainant.   Even the CW2/Subburayalu also not produced such communication alleged to be sent by the Opposite Party before this Forum.  Further on perusal of Ex.C4 reply for legal notice dated 10.01.2010, the opposite party himself asked the complainant to make payment of balance amount and get back the booked vehicle.  From the above version of RW1, this Forum could be inferred that the Opposite Party received advance payments from complainant and demanded the balance from the complainant and they have insured the vehicle with the National Insurance Company Limited in the name of Subburayalu.  It is the practice that if the payment made by a person, the vehicle should be registered and delivered to that person only until and otherwise, a specific instruction given by the party who made the payment.  In this case, the opposite party has not received any instruction either oral or in writing from the complainant to insure the vehicle in the name of Subburayalu who is residing at Nagapattinam.    Under such circumstances, when the payment was made by the complainant herself, insuring the vehicle in the name of any third party without getting any written permission from the complainant is gross negligence on the part of opposite party.  Further, it is admitted by the Opposite Party himself that they have not received any authorization letter or document to register and insure the vehicle in the name of Subburayalu.  The Opposite party also failed to inform the complainant about the insurance made in the name of Subburayalu.  The opposite party has not filed any proof that only on the instruction of Subburayalu, the vehicle was insured in his name.  But the said Subburayalu himself stated that he had not given any instruction to the opposite party to insure the vehicle in his name.  Further, the vehicle is still with the opposite party.  If the advance payment is made by the complainant,  it would be deemed that the opposite party agreed to sell the vehicle in the name of complainant herself.  But, the opposite party has insured the vehicle in the name of one Subburayalu without getting any authorization or written permission from the complainant.     The purpose for which the complainant paid advance amount was not served to the complainant.  The complainant was harassed by the opposite party by retaining the advance amount with them.  Therefore, this Forum found that the opposite party caused mental agony to the complainant due to negligence and also committed Unfair Trade Practice by receiving the advance amount from the complainant and insuring the vehicle in the name of Subburayalu.  Hence, the Opposite Party is liable for the deficiency in service.

11. Point No.3:

          In view of the decision taken in Point No.2, the complainant is entitled for the relief and therefore;

1. The opposite party is directed to return the advance amount of Rs.37,914/- to the complainant;
2. The opposite party is directed to pay a sum of Rs.20,000/-                    towards compensation for the injury caused due to negligent Act and Unfair Trade Practice;
3. The opposite party is  directed to pay a sum of Rs.5000/- towards cost of this proceedings.

          The order should be complied within two months from the date of receipt of this order.

Dated this the 31^st day of March 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

    MEMBER

COMPLAINANTS' WITNESS:

CW1           29.05.2015           K. Ananthi   

CW2           19.09.2014           Subburayalu

OPPOSITE PARTY'S WITNESS: 

RW.1          25.09.2015           R. Kumar

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:  NIL

 LIST OF MATERIAL OBJECTS:      NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

    MEMBER