Tamil Nadu

South Chennai

CC/281/2014

K.Arokiaraj - Complainant(s)

Versus

M/s.KLN Motor Agencies Pvt Ltd., - Opp.Party(s)

K.Gunasekaran

18 Oct 2022

ORDER

Date of Complaint Filed : 30.06.2014

Date of Reservation      : 21.09.2022

Date of Order               : 18.10.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No. 281/2014

TUESDAY, THE 18^th DAY OF OCTOBER 2022

Mr. K. Arokiaraj,

S/o R. Kulanthaisamy,

No.5/3, Kambar Street,

Metha Nagar,

Chennai-600 029.                                                            …  Complainant

 

-Vs-

The Managing Director,

M/s KLN Motor Agencies Pvt ltd,

8 (NP) Developed Plot,

Guindy Industrial Estate,

Ekkattuthangal,

Chennai - 600 097.                                                                         ...  Opposite Party

******

Counsel for the Complainant             : M/s. K. Gunasekar

Counsel for the Opposite Party          : M/s. Lavanya Shankar

 

        On perusal of records and having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Party, we delivered the following:

ORDER

Pronounced by Member-I,Thiru. T.R. Sivakumhar, B.A., B.L.,          

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct to pay the advance amount of Rs.10,000/- along with interest accrued thereon from the date of booking to till date of realisation @24% p.a and to pay a sum of Rs.1,80,000/- for loss  of income for the period of 11 months from 12.07.2013 and to pay another sum of Rs.1,00,000/- towards the mental agony and also to pay another sum of Rs.5000/-.

2.     The averments of Complaint in brief are as follows:-

 

 The Complainant had paid Rs.10,000/- as advance/initial payment by way of Cheque bearing No.097140 dated 12.07.2013 drawn on Federal Bank, Chennai -29 and the Opposite Party had acknowledged the said payment vide receipt No.0000994 dated 12.07.2013 and assured him that the car would be delivered within a period of 3 months. After the expiry of 3 months when he approached the Opposite Party, he was again informed it would take another 2 months and he had waited for 5 months without any source of income. As the Complainant is wholly dependant on the said car. After the lapse of 5 months, the Opposite Party had informed him telephonically that as the said Model Travera has developed engine problem, he advised him to chose another Model "Enjoy". Considering the comfort it could give to the passengers, he had chosen the said model Tavera. As the Opposite Party had insisted the Complainant to chose the model Enjoy" he had intimated the Opposite Party to cancel his booking and demanded to refund the said advance amount of Rs.10,000/-.Till date the Opposite Party has not come forward to refund the said amount, hence hewas constrained to issue legal notice to the Opposite Party on 21.01.2014 called upon to refund the advance amount with interest. In spite of receipt of the said notice, there was no response. Hence he sent another reminder legal notice to the Opposite Party on 27.02.2014, even for which there was no response. He is a "consumer", as he had intended to purchase a car and booked for the same with the Opposite Party. The Opposite Party has failed to fulfill his part of contract under the booking, he had caused untold mental agony to him, due to belated information, about the car, he could not ek his livelihood for a period 11 months that he had incurred loss to the tune of 1,80,000/- towards his income for which the Opposite Party is liable to pay him. Due to the non delivery of the vehicle in time and on all subsequent days, the Complainant was put to constant mental agony for which the Opposite Party is liable to pay Rs. 1,00,000/- towards the mental agony suffered by the Complainant.Hence the complaint.

3.   Written Version filed by the Opposite Party in brief are as follows:-

         The Complainant's claim has not been substantiated with any proof and before dwelling into the main aspect as to the very maintainability of the complaint, the Complainant cannot eke out any remedy against the opposite parties for the reason that ex facie there was neither any commission nor omission on their part in order to be tried before this Hon'ble Forum, as the services rendered by them on any account would not certainly come under the purview of Sec 2(1)(g) of the Act. Without prejudice to the foregoing submission or to the statement made hereunder they are ready and willing to refund the sum of Rs 10,000/- to the Complainant, subject to him complying with the formalities engrafted in this regard.They were unaware of the profession carried out by the Complainant and the fancy he had developed for Chevrolet Tavera.The Complainant visited their show room & evinced interest in purchase of a vehicle manufactured by Chevrolet Sales India Pvt Ltd and he was informed about the range of vehicles emanating from Chevrolet's stable and he opted to go for Chevrolet Tavera BS III, cost price of which after discount was Rs 8,90,000/- and the Complainant placed a request with them to receive a sum as mentioned in the complaint in the forefront and assured to get back at the earliest after making necessary arrangement to remit the balance sum of Rs 8,80,000/-, therefore it lies ill on the Complainant's mouth to state that they had informed him that the waiting period his 3 months. Assuming without admitting, even if they had stated so yet that doesn't absolve him from discharging his part of obligation by remitting the balance sale consideration toward the vehicle, as on the face of the pleading itself it could be inferred that he never chose to take the matter forward. It was out rightly denied that he visited their showroom and they sought 2 more months to do the needful, except stated so had not placed any convincing material in this aspect, hence the same can be discarded without any hesitation. As they would be all the more be happier to deliver the vehicle as sought for by the Complainant as it would add one more to their count, rather depriving the Complainant as portrayed by him. It was out rightly denied that they called upon the Complainant after lapse of 5 months and asked him revisit about purchasing Chevrolet Tavera and also impressed upon him to opt for Chevrolet Enjoy, such statement are manifestly self serving because he had least bothered to corroborate such statement in a manner known to law. They vehemently deny that the Complainant had informed them about cancellation of the booking and sought for refund of the amount paid there under, it's a known secret that if the Complainant opt's for cancellation of the booking he should personally visit their showroom to complete the formalities framed in this regard and he cannot expect them to either overlook the accepted rules prevailing in such nature, therefore it's wholly uncharitable on his part to invoke legal proceeding alleging deficiency of service as against them, much less than issuing notice to comply with illegitimate demands. The Opposite Party craves this Forum not to draw any inference for non issuance of reply to legal notices allegedly served upon them by the Complainant. It was out rightly denied that they have failed to discharge obligation cast upon them, the Complainant before making such sweeping allegation should comprehend that he's all the more obligated to remit the balance sale consideration and by no mean can point fingers upon the Opposite Party & get away from such commitment. The sum claimed by the Complainant towards loss of income has been patently invented for the purpose of foisting the present complaint, which otherwise has no legs to stand. The sum sought towards mental agony is also concocted for the purpose of setting the law in motion. There is no cause of action for the above complaint and whatever stated in this context have been apparently invented one. The relief prayed for by the Complainant cannot be granted, as the Complainant has not made out a case for seeking such reliefs. The above aspects have to be proved with all such material evidence as may be deemed necessary to sustain a claim for compensation under the Consumer Protection Act, 1986 by the Complainant. There is no deficiency in service whatsoever and there is no negligence on their part, hencethey stands absolved of any liability to pay any compensation and the Complainant is not entitled to claim any compensation. Only the Complainant is liable to pay cost under Section 26 of the Act for filing this frivolous and vexatious complaint. Hence prayed to dismiss the complaint.

4.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-4  were marked. The Opposite Parties submitted his Proof Affidavit and Written Arguments. On the side of the Opposite Parties, No documents were marked.

 

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:-

It is an undisputed fact that the Complainant had booked Chevrolet Tavera BS III model car with the Opposite Party and had paid a sum of Rs.10,000/- by way of Cheque dated 12.07.2013 towards advance to the Opposite Party.

        The disputed facts are that the Opposite Party had agreed to deliver the said vehicle within a period of 3 months to the Complainant and thereafter when he had approached the Opposite Party it was informed to him to wait for 2 more months. Even after lapse of 5 months it was informed to him over phone that the said model vehicle has developed engine problem and hence to chose another model “Enjoy”, hence he had informed to cancel the said booking and to refund the advance amount of Rs.10,000/-. In spite of receipt of Legal notice and reminder legal notice, sent by him to the Opposite Party, the refund was not made. Due to non delivery of vehicle in time and on subsequent days he was put to mental agony apart from loss of income.

The contention of the Opposite Party is that the claims of the Complainant in respect of negligence and deficiency of service on their part, loss of income and mental agony sustained by the Complainant, were not substantiated by material evidence and hence the complaint in all aspects is not maintainable. Further contended that the Complainant had failed to make the balance consideration of Rs.8,80,000/- except by paying a sum of Rs.10,000/- towards advance and further had not hand over any cancellation letter. Further contended that no adverse inference should be drawn on them for non issuance of reply to legal notices allegedly served upon them by the Complainant.

On discussion made above and in the facts and circumstances of the case, it is clear from Ex.A-2 Receipt dated 12.07.2013 issued by the Opposite Party acknowledging the receipt of the cheque dated 12.07.2013 for a sum of Rs.10,000/-. Though the Opposite Party had contended that no adverse inference could be drawn for non issuance of replies to the legal notices allegedly served upon by the Complainant, the Opposite Party had admitted the receipt of the advance amount but had failed to refund the same, when the said vehicle could not be delivered in time nor any material evidence has been produced before this Commission to prove that the said vehicle was ready for delivery and the same was informed to the Complainant and failed to pay the balance consideration of Rs.8,80,000/- and to take delivery of the said vehicle. Hence we hold that the Opposite Party had acted negligently by holding the advance amount of Rs.10,000/- without assigning any reason and by not refunding the advance amount of Rs.10,000/- to the Complainant within a reasonable time, when no forfeiture clause was found in the receipt nor pleaded by the Opposite Party. Therefore, we are of considered view that the Opposite Party had committed deficiency of service and caused mental agony to the Complainant. Accordingly Point No.1 is answered. 

 

Point Nos.2 &3:-

As discussed and decided Point No.1 against the Opposite Party, the Opposite Party is liable to pay the advance amount of Rs.10,000/- together with interest @6% p.a from 12.07.2013 and also to pay a sum of Rs.10,000/- towards deficiency of service and mental agony caused to the Complainant, along with cost of Rs.3,000/-. As the Complainant had not produced any material evidence to prove his loss of income, he is not entitled for the same and also not entitled for any other relief/s. Accordingly Point Nos.2 and 3 are answered.

In the result the Complaint is allowed in part. The Opposite Party is directed to pay the advance amount of Rs.10,000/- (Rupees Ten Thousand Only) together with interest @6% p.a from 12.07.2013 to till the date of this order and also to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) towards deficiency of service and mental agony caused to the Complainant, along with cost of Rs.3,000/- (Rupees Three Thousand Only) to the Complainant, within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 6% p.a from the date of receipt of this order till the date of realisation.

 

 

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 18^th of October 2022. 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

List of documents filed on the side of the Complainant:-

 

Ex.A1	12.07.2013	Copy of the cheque issued by the complaint to the Opposite Party towards booking o the vehicle
Ex.A2	12.07.2013	Receipt issued by the Opposite Party to the Complainant
Ex.A3	21.01.2014	Legal notice issued by the Complainant
Ex.A4	27.02.2014	Legal notice issued by the Complainant

 

List of documents filed on the side of the Opposite Party:-

 

NIL

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT