IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

            DATED THIS THE 30^th  DAY OF JANUARY 2018

Present: -    Sri. E.M.Muhammed Ibrahim,B.A, LL.M. President

        Sri. M.Praveen Kumar, Bsc, LLB, Member

       CC.No.102/2016

M.Ani                                                         :                  Complainant

W/o .N.Madhu

K.P.Mandiram , Kadathoor Post

Thazhava

Kollam

[By Adv. V.Sugathan & Siju.S, Kollam]

V/S

          1.       M/s Pothens Hyundai             :                  Opposite parties

                   Pothen Motors ( P) Ltd

                   Maruthoor , Mannanthala

                   Thiruvananthapuram

          2.       Manager

                   Pothens Hyundai

                   2^nd Mile Stone, Kilikolloor

                   Kollam
                   [By Adv.C.R.Lalaji, Kollam]

ORDER

 E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

This is a consumer complaint filed under Section 12 (1) of Consumer Protection Act 1986 by M.Ani against two opposite parties seeking to issue direction to opposite parties to deliver 2012 make unused new Sonata Car to the complainant accepting the balance price of the vehicle and also compensation to the tune of Rs.1,00,000/- and cost of the proceedings.  The averments in the complaint in short are as follows.

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(2)       The complainant booked a new Sonata car with the 2^nd opposite party by paying Rs.10000/- as advance.  The total value fixed for the new car was Rs.17,00,000/-.  The 2^nd opposite party by receiving the advance has issued invoice receipt showing the advance amount and also for enabling the complainant to raise finance for the purchase of the vehicle.  The complainant after arranging finance with the bank repeatedly contacted the opposite party for taking delivery of the vehicle by receiving  the balance sale consideration.  But the opposite party failed to deliver the car which is an unfair trade practice and deficiency in service .  The non delivery of the car to the complainant has caused heavy loss and damage to the complainant.  The complainant caused to issue a registered lawyer notice to the opposite party for delivery of the vehicle.  But they are not even responded.  Hence the complaint.

(3)       The opposite parties entered appearance through their counsel and contested the matter by filing a joint written version by contenting that the complaint is not maintainable either in law or on facts.  According to the opposite parties the complainant is not a consumer as defined under the Consumer protection Act and the subject matter of the complaint does not constitute a complaint as defined under the Act.  However the opposite parties would admit that the complainant booked the car by paying Rs.10,000/- as advance on 25.11.2015 for purchasing 2012 manufactured Hyundai Sonata car.  They would further admit that they have also issued an invoice to the complainant enabling her to raise finance for the vehicle.  But the complainant did not produce any paper to the 2^nd opposite party showing that finance was arranged to purchase the vehicle.  There is absolutely no deficiency in service or unfair trade practice on the part of the opposite parties and therefore they are not liable to the complainant to any extent whatsoever.  The complainant has no cause of action

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and there is no basis for which the compensation is claimed.  The opposite parties are not liable to pay cost of the proceedings to the complainant and they are entitled to get cost of the proceedings from the complainant as it is a frivolous and vexatious complaint.

(4) In view of the above pleadings the points that arise for consideration are :-

1. Whether the complaint is maintainable?
2. Whether there is any deficiency of service or unfair trade practice on the part of the opposite parties No.1&2?
3. Whether the complainant is entitled to get a new Sonata car of 2012 make from the Opposite parties No.1&2 as claimed?
4. Whether the complainant is entitled to get compensation from the opposite parties as claimed?
5. Reliefs and costs?

(5) The evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 , P2, P3 series , P4 series and Ext.P5 documents.  The opposite party has not adduced any evidence either oral or documentary.  Both parties have filed argument notes and the learned counsel for the complainant  advanced oral argument. However the learned counsel for the opposite parties have not advanced any oral argument.

Point No.1

            (6) The opposite parties would content that the complainant would not come within the definition of consumer and therefore the complaint is not maintainable.  We find little force in the above contention.  Admittedly the complainant has booked to purchase 2012 model Hyundai Sonata car by paying

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Rs.10000/- as advance .   It is also an admitted fact that the opposite party has issued Ext.-P1 invoice to the complainant enabling her to raise finance for the vehicle.  The term consumer has been defined under Section 2 (1)(d) of the Consumer Protection Act.  Accordingly any person who buys any goods (including car) for consideration which has been paid or promised partly paid and partly promised is a consumer.  But the person who obtain such goods or purchase the same for commercial purpose is not a consumer.  The definite case of the complainant is that she has booked the car for her personal use by paying Rs.10,000/- as advance towards consideration.  Opposite party no.2 by receiving the advance has issued Ext.P1 invoice showing the receipt of the advance amount towards consideration.  In the circumstances we are of the view that the complainant would come within the purview of the term consumer especially when nobody has  a case that the car was booked by the complainant to use the same for any commercial purpose.  As the complainant would come within the purview of the consumer the complaint under Section.12(1) is maintainable.  The point answered accordingly in favour of the complainant.

Point No.2

            (7) The specific case of the complainant is that though she booked 2012 model Hyundai sonata car on 25.11.15 by paying Rs.10000/- as advance, the opposite parties have not delivered the vehicle after receiving the balance sale consideration.    The above conduct of the opposite parties according to the complainant  is unfair trade practice and there is deficiency of service .  The further case of the complainant is that the non delivery of the car by receiving balance sale reconsideration has caused heavy loss and damage to the complainant and therefore the complainant is entitled to get compensation also.  Opposite parties would admit the receipt of Rs.10,000/- as advance on 25.11.15  and issuance of Ext.P1 booking form/ invoice.  But according to the opposite

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parties the complainant did not pay the balance amount within the time limit and therefore they have not delivered the vehicle.  The opposite parties would further content that due to the fault of the complainant the  vehicle was not delivered to her and there is absolutely no unfair trade practice or deficiency of service  on the part of the opposite parties.

            (8) Now we shall consider whether the complainant has arranged Rs.6,90,000/- being the balance sale price and paid or offered the same to the opposite parties.

 According to the complainant after booking the car she manage to arrange finance from the bank. PW1 has deposed to that effect also. But according to the opposite parties the complainant did not produce any document to show that finance was arranged to purchase the vehicle or that she was having sufficient amount to purchase the vehicle.  In this connection it is pertinent to note the stipulation in Ext.A1 that  the expected date of delivery  of the vehicle will be subject to documentation requirement by the customer.  It is also to be pointed out that the complainant has put her signature in Ext.P1 by declaring that she has understood the terms and conditions etc. in Ext.P1 invoice. 

            (9) In view of the above terms and condition it is clear that vehicle will be delivered only on payment of balance sale price of Rs.6,90,000/-.  The complainant has not produce any evidence either oral or documentary except Ext.P5 letter  to prove that she was having Rs.6,90,000/- at any time till the vehicle was sold to another customer by the opposite parties.  It is true that the complainant has produced Ext.P5 document issued by the bank stating that bank authorities had given provisional sanction to the complainant under the car vehicle loan scheme.  The letter is dated 10.12.16 on which dated the vehicle was admittedly delivered to another customer.  This document has been subsequently produced and nothing has been stated regarding in the proof affidavit. Ext.P5 has

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been produced and got marked at a belated stage Ext.P1 to P4 documents alone have been marked in evidence before starting cross examination of Pw1.  There after Ext.P5 original letter purporting to be copy of the original letter has been produced and got marked in evidence during re examination.  However on perusal of Ext.P5 document it is seen that it is the original document letter issued by Canera Bank, Thazhava branch  containing  the seal and signature of the branch Manager.  Therefore the case of the complainant that Ext.P5 is copy of the letter issued by the bank sanctioning the loan to purchase the car and the original of which has been given to the bank to show that she is having balance sale consideration to purchase the car is devoid of any merit. As Ext.P5 is the original letter contenting the original signature of the bank manager the chance of original giving to the opposite parties as claimed by the complainant is not a possible.

(10) It is further to be pointed out that even if Ext.P5 has been delivered to the opposite parties it would not indicate that the complainant is having sufficient fund to purchase the vehicle.  Ext.P5 is a letter indicating that the bank has given “provisional sanction” to the complainant under the vehicle loan claimed to purchase Sonata car. Ext.P5 would not indicate the amount sanctioned by the bank. Without granting absolute sanction and without indicating the fund it cannot be said that the complainant is having sufficient funds to purchase the car. It is known to everybody that in order to obtain loan from the bank loan agreement has to be executed with the bank and security has to be furnished.  There is nothing record to prove that the complainant has complied with all those formalities with the bank to get the fund released from the bank.  In view of the content of Ext.P5 it is clear that loan has not been sanctioned in the name of the complainant to purchase the car.  But only “provisional sanction “ alone has been granted even on 10.02.16.  Therefore it is clear that the complainant is having no

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fund with her nor arranged bank loan purchase the car which was booked as per Ext.P1 invoice.

(11) Even in Ext.p2 lawyer notice the complainant has not stated that she was having sufficient amount to purchase the vehicle and offered the amount to the 1^st opposite party nor issued any letter or notice expressing her intention to purchase the vehicle by paying ready cash.  It is true that in Ext.P2 lawyer notice would state that the complainant has intimated the opposite parties regarding her willingness to pay the balance amount.  But there is absolutely nothing on record to indicate that the complainant was having money to the tune of  Rs.6,90,000/- with her to purchase the  vehicle booked as per Ext.P1 as claimed by her. Therefore the non delivery  of the vehicle booked by the complainant cannot be treated as an unfair trade practice nor any deficiency of service can be inferred. These two points answered accordingly against the complainant.

Point No.3

            (12) As the complainant has miserably failed  to establish that there is any deficiency of service or unfair trade practice on the part of the opposite party No.1&2 , we find that the complainant is not entitled to get any of reliefs claimed and the complaint is only to be dismissed.  The points answered accordingly.

            In the result complaint stands dismissed. However both parties are directed to suffer their respective costs .

Dictated to the  Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the 30^th day of January 2018.      

Dated this the  30^th    day of January  2018.

                                                                                                   E.M.Muhammed Ibrahim:Sd/-

                                                                                                   President

                          M.Praveen Kumar:Sd/-

                                                                                                   Member

           Forwarded/by Order

             Senior Superintendent

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INDEX

Witness Examined for the Complainant

Ext. PW1             :         N.Madhu

Documents marked for the  complainant

Ext.P1                  :         Order booking form

Ext.P2                  :         Office copy of legal notice

Ext.P3                  :         Postal receipts dated 24/02/2016 (3 Nos)

Ext.P4                  :         Acknowledgment cards (2 Nos)

Ext.P5                  :         Provisional sanction letter from Canara Bank dated

Witness examined for the opposite parties                  -        Nil

Documents marked for the  opposite parties     -        Nil

  E.M.Muhammed Ibrahim:

                                                                                      President

             M.Praveen Kumar:

              Member