DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

Civil Station, Palakkad – 678 001, Kerala

Dated this the 25^th day of September, 2009

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

CC No.34/2009

Shreevidhya Krishnakumar,

W/o.Krishnakumar,

Shreyas,

Thenidukku,

Paruvassery,

Kannambra 678686. - Complainant

(Party in person)

Vs

M/s.Palghat Automotive Pvt. Ltd.,

5/428, Marutha Road,

Koottupatha,

Palakkad. - Opposite party

(By Adv.G.Ananthakrishnan)

O R D E R

By Smt.Seena.H, President

Shortly stated the facts of the case are:

Complainant booked a real earth coloured Santro GLS car at Palghat Automotive Pvt Ltd., the opposite party herein by paying the full amount of Rs.3,43,474/- on 9/12/08 and 15/12/08. Vehicle was promised to be delivered on 17/12/08. Complainant booked the vehicle in the hope of getting the year ending offer made by the Hyundai Company to the tune of Rs.30,000/-. Vehicle was not delivered on the promised day. Opposite party kept on changing the delivery dates on flimsy grounds. As the offer period closes on 31/12/08, complainant was forced to approach the police station as the opposite party was not ready to refund the amount even though demanded. Opposite party refunded the amount from the Police Station. Complainant on the same day booked vehicle with another dealer so as not to miss the offer. But he has to compromise in the colour of the vehicle.

According to the complainant, the act of the opposite party in changing the delivery dates a number of times on flimsy grounds is deficiency in service. Complainant claims a total amount of Rs.1,50,000/- under different heads.

2. The contentions set forth by the opposite party is as follows:-

Opposite party admits the fact that the complainant has booked a real earth coloured Hyundai Santro GLS car paying full amount. Opposite party offered free insurance of Rs.15,000/- worth accessories and corporate bonus of Rs.2,000/-. No specific date of delivery was promised by the opposite party to the complainant. Complainant wanted 'Real Earth' colour car which was not available with the opposite party. This fact was informed to the complainant. Subsequently complainant contacted the opposite party and requested to cancel the booking for want of funds. Complainant was informed that the car would be delivered within a weeks time as the consignment has already been sent by the company. In the meanwhile complainant filed a complaint before the Sub Inspector of Police, Kasaba. Immediately the entire amount paid by the complainant was refunded. Complainant who has booked the vehicle has cancelled it on her own option and hence there is no deficiency in service on the part of opposite party. Opposite party has suffered financial loss due to the cancellation. Within a week of refund of the amount, opposite party received the car of the complainant's choice. The same has to be sold to another person at discount rate which has resulted in heavy loss to the opposite party. According to opposite party, there is no deficiency in service on the part of opposite party.

3. The issues for consideration are;

1. Whether there is any deficiency in service on the part of opposite party?

2. If so, what is the reliefs and costs?

4. The evidence adduced consists of the affidavit of the respective parties. Exts.A1 to A3 marked on the side of the complainant and Exts.B1 to B3 marked on the side of opposite party.

5. Issue 1:

We have heard the complainant who argued in person and learned counsel for the opposite party and perused the relevant documents on record.

6. It is not in dispute that the complainant booked the vehicle with the opposite party making full payment. Complainant has stated that opposite party promised to deliver the vehicle on 17/12/08. But opposite party has contented that no date of delivery was given at the time of booking. It is true that no date of delivery is seen in any of the documents produced. But the delay in the delivery of the car is admitted by the opposite party by way of Ext.A1, which is the e-mail message sent by the Managing Director of the opposite party. Had there been delay, opposite party is bound to refund the amount already paid if the customer requests so. That has not been done in this case. Only after the complainant approached the police authorities by way of a complaint, opposite party refunded the amount. Further opposite party has stated in the affidavit that vehicle was received by the opposite party within one week of the refund of the amount. Amount was refunded on 31/12/08. So it is clear that the vehicle was not available for delivery even at the closing date of the offer. Complainant has booked the vehicle in the month of December in order to avail the offer announced by the manufacturer which is to be closed on 31^st December. Opposite party has stated that they were ready to give the offer even if the vehicle was delivered later. No documents showing the terms of the offer is produced by the complainant. Mere statement without sufficient evidence cannot be relied on. No dealer can be expected to act deviating from the terms and conditions of the offer provided by the manufacturer. Complainant under the fear of loosing the offer has booked the vehicle with another dealer. The acts of opposite party amount to clear deficiency on their part for which they are liable to compensate the complainant.

7. Issue No.2:

Complainant has altogether claimed an amount of Rs.1,50,000/- under different heads. Loss to the tune of Rs.1,50,000/- is not proved by the complainant.

Complainant has purchased the vehicle from the other dealer and has availed all the offers as admitted by him. The only thing he has to compensate is regarding the colour of the vehicle. In view of the above facts and circumstances of the case, we are of the view that an amount of Rs.5,000/- as compensation will meet the ends of justice.

8. In the result complaint allowed. Opposite party is directed to pay an amount of Rs.5,000/- (Rupees Five thousand only) being the compensation together with Rs.1,000/- (Rupees One thousand only) as cost of the proceedings. Order shall be complied within one month from the date of receipt of the order failing which the whole amount shall carry 9% interest from the date of order till realisation.

9. Pronounced in the open court on this the 25^th day of September, 2009

Sd/-

Seena.H,

President

Sd/-

Preetha.G.Nair,

Member

Sd/-

Bhanumathi.A.K,

Member

Appendix

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite party

Nil

Exhibits marked on the side of complainant

Ext.A1 – Reply sent by opposite party

Ext.A2 (Series) – Copies of Order booking forms – 2 in Nos.

Ext.A3 – Letter dtd.13/02/09 sent by International Consumer Rights Protection

Council to opposite party

Exhibits marked on the side of opposite party

Ext.B1 – Order booking form No.560

Ext.B2 - Order booking form No.645

Ext.B3 – Cash payment voucher No.3738 dtd.31.12.08 for Rs.3,43,500/-

Costs (Allowed)

Rs.1,000/- (Rupees One thousand only) as cost of the proceedings