KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

APPEAL  NO: 465/2009

                                 JUDGMENT DATED:12-10-2010

PRESENT

SRI. M.V. VISWANATHAN                                    : JUDICIAL MEMBER

M/s K V R Cars, R/by its Manager,

K.N.Jayaraj, S/o Late K.Sankaran,                     : APPELLANT

Anangoor, Post Vidyanagar,

Kasaragod-671 123.

(By Adv.Sri.K.Harikumar)

            Vs.

Narayanan, S/o Kunhambu Nair,

M.N.House, Chaliamkodu,                                   : RESPONDENT

Post Kalanad, Kasaragod Dist.

(By Adv.Sri.G.S.Kalkura)

                                                    JUDGMENT

SRI. M.V. VISWANATHAN  : JUDICIAL MEMBER

Appellant was the opposite party and respondent was the complainant in CC.172/08 on the file of CDRF, Kasaragod.  The complaint was filed alleging deficiency of service on the part of the opposite party in effecting sale of a 2007 model Maruthi Estilo car instead of 2008 model car.  The opposite party entered appearance and filed written version denying the alleged deficiency of service.  The opposite party contended that the complainant received discount of Rs.21,000/- because of the model of the vehicle and that the complainant purchased the said car with full knowledge and consent.  Thus, the opposite party prayed for dismissal of the complaint.

2. Before the Forum below, the complainant was examined as PW1.  Exts.A1 to A3 documents were marked on the side of the complainant.  B1 to B3 documents were produced and marked on the side of the opposite party.  The complainant filed proof affidavit.  But the opposite party did not file any proof affidavit.  On an appreciation of the evidence on record, the Forum below directed the opposite party to pay Rs.50,000/- by way of compensation towards the financial loss and hardship and mental agony suffered by the complainant.  The opposite party was also directed to pay cost of Rs.3000/-.  Hence the present appeal by the opposite party therein.

3. We heard both sides.  The learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He argued for the position that the complainant purchased the 2007 model car with his free will and volition and on getting discount of Rs.21,000/-  from the dealer and Rs.14,000/- from the manufacturer.  He also relied on Ext.B3 statement of account to substantiate the case of the appellant that the respondent/complainant received Rs.21,000/- from the appellant/opposite party (dealer).   On the other hand, the respondent/complainant supported the impugned order passed by the Forum below.  He argued for the position that the complainant suffered mental agony and financial loss because of the deficiency of service on the part of the opposite party in delivering a 2007 model car instead of 2008 model car.  Thus, the respondent prayed for dismissal of the present appeal.

4. There is no dispute that the respondent/complainant purchased a brand new Maruthi Zen Vxi Estilo Model Car during the month of May, 2008.  The aforesaid car was delivered by the appellant/opposite party (dealer) on 14/5/2008.  It is an admitted fact that the opposite party delivered a 2007 model car to the complainant.  It is the definite case of the appellant/opposite party that the respondent/complainant received discount of Rs.21,000/- because of the delivery of the 2007 model car.  On the other hand, the respondent/complainant alleged deficiency of service on the part of the opposite party in effecting sale of 2007 model car instead of 2008 model car.  It is further stated that the complainant was under the bonafide belief that the car he purchased is of 2008 model.

5. The complainant as PW1 has deposed in support of his case.  Ext.A2 is the lawyer notice dated:30/6/2008 issued at the instance of the complainant alleging deficiency of service and demanding replacement of the old car with a new 2008 model car.  Ext.A3 is the reply notice issued by the appellant/opposite party dealer.  In A3 reply notice the appellant/opposite party categorically admitted the delivery of 2007 model car.  The mere fact that the respondent/complainant was given discount of Rs.21,000/- at the hands of the opposite party/dealer cannot be taken as a ground to hold that the respondent/complainant was ready to purchase  2007 model car by receiving the aforesaid discount of Rs.21,000/-.  It is to be noted that there is no piece of evidence available on record to show that the complainant/purchaser was ready to purchase  2007 model car instead of 2008 model car.  If there was any such understanding between the complainant/purchaser and the opposite party/dealer necessarily there would be document evidencing that understanding. 

6. The appellant/opposite party (dealer) has relied on B3 statement of account.  It would only show that the complainant was given  discount of Rs.21,000/-.  But, there is nothing to show that the said discount was received by admitting the model of the vehicle as 2007.  It is to be noted that the dealers and manufacturers of motor vehicles are in the habit of giving discounts on purchase of motor vehicles.  The mere fact that the respondent/complainant who purchased Maruthi Zen Vxi Estilo model car was given Rs.21,000/- by way of discount cannot be taken as a ground to hold that the complainant/purchaser agreed or satisfied with  2007 model car.  In the ordinary course, a purchaser of motor car will be satisfied with a brand new vehicle.  The complainant/purchaser approached the opposite party in May 2008 for purchasing a brand new vehicle.  The complainant being the purchaser expected from the opposite party for delivery of 2008 model vehicle.  In fact, the opposite party supplied  2007 model car.  The aforesaid conduct on the part of the appellant/opposite party would amount to deficiency of service and unfair trade practice.  So, the complainant/purchaser is to be compensated for the aforesaid deficiency of service.

7. The Forum below awarded a compensation of Rs.50,000/- for the aforesaid deficiency of service.  It is to be noted that the complainant obtained a brand new vehicle but the year of manufacturer is 2007.  It is further to be noted that the aforesaid vehicle was manufactured in the year 2007 but it was delivered in the year 2008.  There was only model change.   Instead of 2008 model, the complainant got only 2007 model vehicle because of that difference in model the complainant cannot be awarded such a huge compensation of Rs.50,000/-.  More over the complainant has not adduced any evidence to substantiate his claim for Rs.50,000/- or any other amount.  There can be no doubt about the fact that the complainant/purchaser made a tall claim on the mere fact that he obtained  2007 model car.  This commission is of the view that the compensation of Rs.50,000/- awarded by the Forum below is on the higher side.  Considering the nature and seriousness of the deficiency of service committed by the appellant/opposite party, we fix the quantum of compensation at Rs.25,000/-.  The aforesaid compensation is sufficient to meet the ends of justice.  Thus, the impugned order dated:16/7/2009 passed by CDRF, Kasaragod in CC.172/08 is modified to that extent.  In all other respects the impugned order passed by the Forum below is confirmed including the liability to pay interest at the rate of 12% in the event of default to make the aforesaid payment of Rs.25,000/-.

In the result the appeal is allowed partly.  The impugned order passed by the Forum below is modified and thereby the compensation of Rs.50,000/- awarded by the Forum below is reduced to Rs.25,000/-.  In all other respect the impugned order is confirmed.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

M.V. VISWANATHAN  : JUDICIAL MEMBER

VL.