KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 44/12
JUDGMENT DATED : 22.08.2012
PRESENT:
SMT. A. RADHA : MEMBER
Tata Motors Finance Ltd.,
South Bazar, Kannur – 670 002. : APPELLANT
(By Adv. N.U. Nampoothiri)
Vs
1. N.P. Padmanabhan
“Padmanabha Nivas”
Muringodi, P.O. Muringodi,
Kannur – 670 671.
(By Adv. K. Rajendran) : RESPONDENTS
2. K.V.R. Dream Vehicles (P) Ltd.
P.O. Kizhunna, Thottada,
Kannur – 670 002.
JUDGMENT
SMT. A. RADHA : MEMBER
Aggrieved by the order passed by CDRF, Kannur in
CC No. 264/2011 the 2nd opposite party/appellant came up in this appeal wherein the opposite parties are directed to pay an amount of Rs. 24,380/- within 1 month from the date of the order failing which the complainant is entitled for interest @ 12% p.a from the date of filing the complaint.
2. The brief facts of the case are that the complainant booked a Tata Nano Car on 25.04.09 from the Kannur booking centre. He booked for a yellow A/c car. As the complainant was not good in English the employees of the Tata office filled up the application form. The application form was purchased for Rs.350/- from the 1st opposite party and the filled up form was entrusted with the 2nd opposite party as instructed over telephone. The complainant went to the office of the 2nd opposite party and paid Rs.14,532/- along with DD for Rs.2,999/- on 14.07.09 for which receipt No.34365 was issued and it was on the assurance that they will deduct the paid amount from the total cost of the car at the time of delivery. It was on 15.01.10 they issued a paper containing the No.114763207 which contained the name of Kerala KVR Dream Vigils Kannur Private Limited. It is also informed that the car will be issued in his name in the month of March. On information received from their office that the car had arrived, the complainant visited the 1st opposite party’s office and to the utmost surprise the colour of the car was blue. The complainant booked the Nano car having yellow colour. The complainant did not take the delivery of that summer blue car. It was informed by them that it would take some more time for the issuance of the yellow car. The complainant refused to take the summer blue car and left the place. Even after repeated requests made to the opposite party’s office, they were reluctant to discuss with him nor they returned the money paid towards the purchase of the Nano car. This act of the opposite parties resulted in financial loss, mental agony for which the complaint filed for getting compensation and cost.
3. The opposite parties filed version contending that the
1st opposite party had no direct dealings with the complainant.
The complainant approached the 2nd opposite party for availing finance for purchasing the car. After receiving the invoice from the 2nd opposite party on 02.02.2010, the 1st opposite party came to know about the booking of the car with the 2nd opposite party. The 1st opposite party had no knowledge about the selection of colour of the car by the complainant. When the complainant visited their showroom the only colour available was that of summer blue colour and was informed that the complainant had to wait for another 2 or 4 months to receive the colour he preferred ie yellow colour. The complainant was adamant in his nature and was very quarrelsome and left the place. On a gesture of their goodwill, the 1st opposite party was ready to give the specified colour after 3 or 4 months. It is also contended that there occurred no damages or financial loss in this matter to the complainant and no liability can be fastened upon the 1st opposite party and they are not liable to pay any compensation.
4. In the written version filed by the 2nd opposite party specifically contended that the complainant availed vehicle finance. It was statutory that the borrower of the loan and the lender had to abide by the terms and conditions of the application form stipulated under the agreement. The main contention raised by the 2nd opposite party was that the complaint was filed as an abuse of the process of law and it was not maintainable and he suppressed the material facts. The allegations made by the complainant are all mis-conceived and the allegation of deficiency in service is also without any bonafides. It is also contended that the complainant had voluntarily applied for the loan after fully convinced of the terms and conditions of booking loan and charges to be paid, refund of booking amount etc. At this stage the complainant cannot challenge the contractual terms and as such the complaint deserves outright dismissal. It is the complainant himself, who had put his signature after knowing all the details in the application form with full understanding and satisfaction. It is also stated that the amount of Rs.2,999/- was the booking charges of the car and was not a non-refundable amount and this was already conveyed to the complainant at the time of booking itself. Moreover, the Nano car was allotted being a successful allottee under the computerized random selection process and was selected to get the delivery of the car during March 2007. The booking was arranged by the 2nd opposite party and the complainant had opted for the terms stipulated in the loan application. It is also stated that the complainant chose to renew/extent the booking loan period and paid Rs.14,532/- towards interest Rs.249/- up to 31st March 2010 till the date of delivery. The amount was actually due to the 2nd opposite party, as the 2nd opposite party arranged finance for booking the car. It is the complainant who refused to take delivery of the car allotted to him during that period. It is also stated that the allotment was made on lot for the Nano car at that time and the 2nd opposite party has nothing to do with the delay in delivery of the car. The 2nd opposite party was entitled for the amount accepted as they arranged the finance for the complainant to purchase the car on 14.07.09. Being a financial institution the 2nd opposite party is entitled to charge interest for the loan availed through them.
5. The complainant adduced evidence as PW1 and documents marked as Exts. A1 to A7. The evidence of PW1 shows that he contacted the 2nd opposite party for booking the car. Though he purchased the application form from the 1st opposite party, he also deposed that he had no case against the 1st opposite party. It is on the sole reason that he was allotted the summer blue nano car instead of yellow nano car, the complainant was not willing to take delivery of the car. He also admitted that he had remitted Rs.2,999/- towards booking charge. To substantiate the case, the opposite parties produced Exts.B1 and B2. Ext. B1 is the application form and Ext. B2 is the application for Nano booking loan. As per Ext. B1 is only a photocopy and it was not proved properly and this cannot be taken into evidence. It is true that the complainant approached the 2nd opposite party and availed a loan. The 2nd opposite party produced Exts. B1 and B2 and they had not proved properly in evidence. So those documents cannot be considered as a genuine one and even the signature in the application form was not proved in evidence. In the absence of proper evidence adduced by the 2nd opposite party, the receipts produced by complainant for Rs.21,380/- paid to the 2nd opposite party remained un-controverted. The 1st and 2nd opposite parties admitted that they could not avail yellow nano car when the complainant came to take the delivery of the car. As the matter was not disputed by both the parties it is true that the complainant was not given yellow car and if the complainant wanted to get the yellow car, he had to wait for another 3 to 4 months as per the version filed by the 1st opposite party.
6. From the facts and circumstances of the case it is clear that though the complainant/respondent booked the nano yellow car he was not given with that specified colour which is clearly admitted by both the parties. It is also clear that they had yellow car at the time when he visited the 1st opposite party office, he was shown with the summer blue car and there had the yellow car in the show room. This Commission find clear deficiency in service and unfair trade practice on the part of the 2nd appellant/2nd opposite party after accepting the 1st instalment from the appellant/complainant.
In the result, appeal is dismissed and this Commission find clear deficiency in service on the part of 2nd appellant/ 2nd opposite party and the respondent is entitled to recover the amount as ordered by the Forum below from the 2nd opposite party/2nd appellant.
Office is directed to send a copy of this order to the Lower Forum with the LCR.
A. RADHA : MEMBER
Da
