IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 31st day of July, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No. 32/2012 (Filed on 06.02.2012)
Between:
George Mathew,
Mulavelil Kannattumannil,
Kumpalathamon P.O.,
Vadasserikara,
Pathanamthitta Dist. … Complainant.
(By Adv. Thomas Puthukulam)
And:
1. Nippon Toyota Motor Corporation Pvt. Ltd.,
Represented by its Managing Director
Babu Moopan, Head Office, Nirmal-
Jayaprakash, No.X/314, K, NH 47,
Nettoor P.O., Maradu, Ernakulam.
2. The Senior Manager (Sales),
Toyota Dealers, Nippon Motor-
Corporation Pvt. Ltd.,
M.C. Road, Nattakom, Kottayam.
(By Adv. Sajan. A. Varghese)
3. Managing Director, Mahindra &
Mahindra Finance Corporation Ltd.,
Head Office, 2nd Floor, Sadhana-
House, Behind Mahindra Towers,
570, P.B. Marg, Worli, Mumbai – 18.
4. Mahindra & Mahindra Finance-
Corporation Ltd., Branch office,
College Road, Pathanamthitta.
(By Adv. Hari. V.R.) … Opposite parties
O R D E R
Sri. Jacob Stephen (President):
Complainant has filed this complaint against the opposite parties for getting certain reliefs from the Forum.
2. The complainant’s case is that he booked an Innova Car from opposite parties 1 and 2 on 23.06.2011 by paying an amount of `50,000 as advance for presenting the said car to his niece in connection with her marriage scheduled on 26.11.2011. At the time of booking opposite parties assured to deliver the care before the marriage. While so, on 13.11.2011, 2nd opposite party informed the complainant that the car is ready for delivery and asked the complainant to pay the balance amount immediately. Accordingly, the complainant made finance arrangements for ` 8.5 lakhs with opposite parties 3 and 4 on 16.11.2011 for paying the balance amount of the car. On the same day itself, 3rd opposite party collected ` 31,000 from the complainant as the 1st instalment and other charges of the loan. Opposite party also told that the loan amount will be paid to opposite party company directly. On 17.11.2011 2nd opposite party informed the complainant that they have received the delivery order from 4th opposite party and asked the complainant to remit the balance of ` 2,07,000 which includes registration charges, insurance and miscellaneous expenses which was paid by the complainant on 18.11.2011. Even after the receipt of the whole amount the car was not delivered by opposite parties 1 and 2. Then the complainant contacted the team members of 2nd opposite party who told that the car which was brought for the complainant was given to some other clients in urgent need. Then the complainant reminded 2nd opposite party about the marriage of his niece who assured that the vehicle will be delivered in time. But in spite of the assurance of the 2nd opposite party the car was not delivered to the complainant till the marriage is over. So the complainant cancelled the order on 27.11.2011 and demanded for the repayment. While being so 3rd opposite party demanded the 2nd instalment of the finance. At that time, the complainant informed 3rd opposite party that the car was not delivered by the opposite parties so far. But they replied that they have paid the amount to 1st opposite party company and they have nothing to do with the delivery of the car. Fearing bouncing of pre signed cheque which are with 3rd opposite party, the complainant had made the payment of ` 28,600 to the 3rd opposite party as the 2nd instalment of the vehicle loan. While so on 15.12.2011 the 2nd opposite party intimated by the complainant through telephone that the car is arranged for delivery. Then the complainant informed the 2nd opposite party that he had already cancelled the booking on 27.11.2011 and asked them to settle the matter with 3rd opposite party. In the meantime, 2nd opposite party also sent a letter dated 15.12.2011 to the complainant intimating the availability of the car. So the complainant issued a legal notice on 23.12.2011 asking him for the refund of money, interest and settling all other liabilities with the financiers. The said notice was replied by 2nd opposite party stating that they have received the loan amount from 4th opposite party only on 28.12.2011. But 3rd opposite party did not give any clarification or reply as to why the payment to 2nd opposite party was delayed. Because of the above said acts of the opposite parties, the complainant had sustained mental agony and financial loss and the acts of the opposite parties is a clear deficiency in service and unfair trade practice and the opposite parties are liable to the complainant for the same. Hence this complaint for the following reliefs against the opposite parties:
(1) Direct the 1st and 2nd opposite parties to refund all the amounts collected from the complainant along with interest @ 18% from the date of booking till realization of the amounts.
(2) Direct the opposite parties to settle all the accounts in regard to ` 8.5 lakhs paid by 3rd opposite party to 1st opposite party, between themselves.
(3) Direct the 1st and 2nd opposite parties to pay a compensation of `1,00,000 to the complainant towards hardships and mental agonies suffered by the complainant.
(4) Direct 2nd and 3rd opposite parties to refund all the amounts collected from the complainant in cash and also through cheques along with interest @ 18% per annum from the respective dates till realization. Also they may be directed to return all the cheque leaves collected from the complainant.
(5) Direct the 3rd and 4th opposite parties to pay a compensation of `1,00,000 to the complainant towards hardships and mental agonies suffered due to non release of payment in time which resulted in all these hardships.
(6) Direct the opposite parties to pay an amount of ` 2 lakhs as compensation for the deficiency in service.
(7) Direct the opposite parties to pay all the expenses incurred in this litigation.
3. All opposite parties entered appearance and 1st and 2nd opposite parties filed a common version and the 3rd and 4th opposite parties also filed a common version.
4. The main contentions in the version of the 1st and 2nd opposite party is as follows:- They admitted the booking of the car by the complainant, but denied all other allegations of the complainant against them. They never assured of delivering the car by mid November 2011. They also denied that they had never telephoned the complainant that they have received the delivery order from the 4th opposite party. Though the complainant claims that the balance payment of ` 8.5 lakhs was given to the 2nd opposite party on 18.11.2011, they have received the said amount only on 28.11.2011. On getting the full amount on 28.11.2011 they have informed the complainant that the car was available for delivery. But the complainant did not turned up for taking delivery of the car. Thereafter on 15.12.2011 and 23.12.2011 the 2nd opposite party sent letters to the complainant for taking the delivery of the vehicle. As there was no reply or response from the part of the complainant, the said car was delivered to the next customer on priority. The allegation that the complainant had contacted the 2nd opposite party and had cancelled the order and demanded the repayment is also false and hence denied. The booking of the car is on usual terms and they have acted accordingly. Thus they have not committed any deficiency of service against the complainant. With the above contentions, 1st and 2nd opposite parties prays for the dismissal of the complaint.
5. The main contentions of the 3rd and 4th opposite parties is as follows:- They admitted the loan transaction with the complainant. The 4th opposite party and the complainant has entered into an agreement on 16.11.2011 for ` 8.5 lakhs for the purchase of Toyota Innova Car and thereafter the 4th opposite party has given the delivery order and the loan amount to the 1st opposite party as required by the complainant. As per the terms of the agreement the complainant remitted the EMI’s till 15.03.2012. The 4th opposite party had issued the delivery order to the 1st opposite party on 16.11.2011 itself as per the directions of the complainant. The 1st opposite party is duty bound to deliver the car after the receipt of the loan amount and delivery note. There is no delay from their part or no deficiency was committed by opposite parties 3 and 4. The delivery of the car and the related matters are not within the powers of the opposite parties 3 and 4. Since opposite party 3 and 4 has not committed any deficiency of service to the complainant, the complainant is not entitled to get any of the reliefs as prayed for in the complaint against opposite parties 3 and 4. With the above contentions, opposite parties 3 and 4 prays for the dismissal of the complaint against them.
6. On the basis of the pleadings of the parties, the only point to be considered whether this complaint can be allowed as prayed for?
7. The evidence of this complaint consists of the oral testimony of PW1, DW1 and Exts.A1 to A11 and B1. After the closure of evidence, both sides were heard.
8. The Point:- The complainant’s allegation is that he had booked an Innova Car from 1st and 2nd opposite parties on 23.06.2011 by paying ` 50,000 on 01.07.2011. The said booking was made for delivering the said car as a presentation to his niece in connection with her marriage schedule to be held on 26.11.2011. At the time of booking the complainant also informed his above said desire to the 1st and 2nd opposite parties. They also assured to deliver the car by that time for fulfilling the complainant’s desire. Thereafter, as per the instructions of the 1st and 2nd opposite parties the complainant arranged the balance amount of ` 8.5 lakhs by way of a loan from opposite parties 3 and 4. An amount of ` 2,07,000 was also given to the 1st opposite parties by the complainant in cash other than the loan amount as demanded by opposite parties 1 and 2. According to the complainant, the 1st and 2nd opposite parties received the entire price of the car by 16.11.2011. However, 1st and 2nd opposite parties has not delivered the car till the marriage of his niece is over. So he cancelled the booking and demanded the repayment of the amount. But they have not taken any steps for the repayment of the money. At the same time, 3rd and 4th opposite parties compelled the complainant to remit the EMI’s of the loan amount as per the terms and conditions of the loan agreement. So the complainant is compelled to pay the EMI’s. The above said acts of the opposite parties 1 and 2 caused mental agony and financial loss to the complainant and opposite parties 1 and 2 are liable to the complainant. He prays for allowing the complaint.
9. In order to prove the case of the complainant, the complainant has submitted a proof affidavit in lieu of his chief examinations along with certain documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A11. Ext.A1 is the copy of the front page of the order booking form dated 23.06.2011. Ext.A2 is the photocopy of the commitment check list in the name of the complainant issued by the 2nd opposite party. Ext.A3 is the copy of the order form for the accessories issued by the 2nd opposite party in the name of the complainant. Ext.A4 is the finance proposal form dated 01.07.2011 issued by the 2nd opposite party in the name of the complainant. Ext.A5 is the copy of the repayment schedule of the 3rd and 4th opposite parties in respect of the complainant’s loan. Ext.A6 is the copy of the statement of account issued by the 4th opposite party in respect of the loan account of the complainant. Ext.A7 is the copy of the receipt dated 18.11.2011 for ` 2,07,338 issued by the 2nd opposite party in the name of the complainant. Ext.A8 is the letter dated 15.12.2011 sent by the 2nd opposite party in the name of the complainant. Ext.A9 is the office copy of the legal notice dated23.12.2011 issued for the complainant to the 2nd opposite party. Ext.A10 is the reply notice issued for 2nd opposite party in reply to Ext.A9 notice. Ext.A11 is the notice dated 04.01.2012 issued to the 2nd opposite party for the complainant.
10. On the other hand, the contention of the 1st and 2nd opposite party is a total denial of the complainant’s allegation. They admitted the booking of the car on 01.07.2011. Thereafter they received the entire balance amount only on 28.11.2011 and on getting the balance amount they have intimated the complainant for taking delivery of the car. But the complainant has not turned up in spite of the notices given to the complainant. Thus they argued that they have not committed any deficiency of service against the complainant and prays for the dismissal of the complaint against them.
11. In order to prove the contentions of opposite parties 1 and 2 they have not adduced any oral or documentary evidence. But they cross-examined the complainant.
12. At the same time, the contention of the 3rd and 4th opposite parties is that they have entered into the hypothecation agreement with the complainant on 16.11.2011 for ` 8.5 lakhs for the purchase of the Toyota Innova Car and thereafter they have given the delivery order and the loan amount to the 1st opposite party and they have nothing to do in the delivery of the car and the complainant is liable to pay the loan amount as per the terms and conditions of the hire purchase agreement. The complainant also paid the EMI’s up to 15.03.2012 without any default. Thus they argued that they have not committed any deficiency in service against the complainant and hence they are not liable to the complainant and prays for the dismissal of the complaint against them.
13. In order to prove the contentions of the 3rd and 4th opposite parties, an authorized representative of the 3rd and 4th opposite party filed a proof affidavit in lieu of the chief examination along with 1 document. On the basis of the proof affidavit, he was examined as DW1 and the document produced is marked as Ext.B1. Ext.B1 is the attested copy of a power of attorney executed in favour of PW1 by 1st opposite party.
14. The complainant’s allegation is that though he had paid the entire amount to the first and second opposite parties on 16.11.2011, but they have not delivered the car before 26.11.2011 as against their assurance. But the contention of the opposite parties 1 and 2 is that the delivery of a booked car depends upon the terms and conditions of the order booking form and they can deliver the car only on getting the full amount of the car and they have received the full amount of the car only on 28.11.2011. The deposition of DW1 shows that the opposite parties 3 and 4 had paid the loan only on 28.11.2011. The relevant portion of the deposition of DW1 is as follows: Cu CS-]m-Sp-ambn _Ô-s¸« 8.5 e£w cq]m R§Ä 1þDw 2þDw FXr-I-£n-IÄ¡v \evIn-bXv 28.11.2011-þ BWv”. On the other hand, the complainant has not proved his contention that he had paid the amount to opposite parties 1 and 2 on 16.11.2011. Thus it is clear that opposite parties 1 and 2 have not committed any deficiency in service in delivering the car before 26.11.2011 as per the terms and conditions of the booking, as they received the price of the car only on 26.11.2011.
15. At the same time, it is evident from Exts. A5 and A6 that the third and 4th opposite parties completed the formalities in connection with the loan arrangement of the complainant on 16.11.2011 so as to transfer the loan amount to opposite parties 1 and 2 on that day or the next day. But they have not transferred the loan amount to opposite parties 1 and 2 till 28.11.2011 as desired by the complainant. This fact is also admitted by opposite parties 3 and 4 through the deposition of DW1. Further, opposite parties 3 and 4 have not adduced any evidence to show that they have transferred the loan amount to opposite parties 1 and 2 on 16.11.2011 or on the next day. They have transferred the loan amount only after 12 days. The said, unexplained, delay in transferring the money to opposite parties 1 and 2 is a clear deficiency in service from the part of opposite parties 3 and 4 which caused sufferings to the complainant. So the entire sufferings of the complainant were due to the above said deficiency of service of opposite parties 3 and 4.
16. The next question is with regard to the cancellation of the booking of the car by the complainant. According to the complainant, he had cancelled his booking on 27.11.2011. But according to opposite parties 1 and 2, they have no knowledge about the said cancellation and they have received a notice also stating the cancellation after 23.12.2011 vide Ext. A9 advocate notice. On a perusal of available materials on record, there is no evidence to show that the complainant had made his cancellation before 23.12.2011. So the contention of the complainant that he had cancelled the booking on 27.11.2011 is not sustainable for want of better evidence.
17. Thus on the overall facts and circumstances and as per the available evidence, we find no deficiency of service against opposite parties 1 and 2 in the delivery of the car. At the same time, we find deficiency of service against opposite parties 3 and 4 in transferring the loan amount to opposite parties 1 and 2 on 16.11.2011 or on the next day. However, from the facts and circumstances and the available evidence, it is seen that opposite parties 1 and 2 are still holding an amount of ` 11,07,388 as per Exts. A1, A5 and A7 illegally after 23.12.2011 i.e. from the date of cancellation of the booking by the complainant as per Ext.A9. It is further seen that opposite parties 3 and 4 are collecting the EMI’s and insisting the payment of the remaining EMI’s from the complainant without getting the car. But the above said act of the opposite parties 3 and 4 cannot be treated as an unwarranted action as they are entitled to do so as per the terms and conditions of the hire purchase agreement executed between the complainant and opposite parties 3 and 4. In the circumstances of this case, the complainant is entitled to be compensated by opposite parties 1 and 2 as the above said sufferings of the complainant is due to the consequences of the non-payment of the amount with opposite parties 1 and 2 to the complainant after the cancellation of the booking made by the complainant. Further the complainant is entitled to get compensation from opposite parties 3 and 4 for their deficiency in service. On the basis of the discussions and observations herein above, this complaint is allowable with modifications:
18. In the result, this complaint is allowed as follows:
(a) Opposite parties 1 and 2 are directed to return the loan amount of ` 8,50,000 (Rupees Eight lakhs fifty thousand only) and its interest from 23.12.2011 to the opposite parties 3 and 4 as per the hire purchase agreement executed between the complainant and opposite parties 3 and 4.
(b) The opposite parties 1 and 2 are also directed to pay ` 2,57,388 (Rupees Two lakhs fifty seven thousand three hundred and eighty eight only) to the complainant with 10% interest from 23.12.2011 till this date along with compensation of ` 5,000 (Rupees Five thousand only) and cost of ` 1,000 (Rupees one thousand only).
(c) Opposite parties 3 and 4 are directed to cancel the hire purchase agreement between the complainant and the opposite parties 3 and 4 immediately on getting the amount from opposite parties 1 and 2 as ordered by this Forum.
(d) Opposite parties 3 and 4 are further directed to return the entire amount collected from the complainant so far with interest at the rate of 10% per annum from the date of filing of this complaint till this date along with compensation of ` 25,000 (Rupees Twenty five thousand only) and cost of ` 2,500 (Rupees Two thousand five hundred only) to the complainant.
(e) Parties are directed to comply this order within one month from the date of receipt of this order, failing which the defaulters are liable to pay an additional interest of 12% per annum also to the claimants from today till the payment of the whole amount.
Declared in the Open Forum on this the 31st day of July,
2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N.Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : George Mathew.
Exhibits marked on the side of the complainant:
A1 : Copy of the order booking form dated 23.06.2011.
A2 : Photocopy of the commitment check list issued by the
2nd opposite party to the complainant.
A3 : Copy of the order form (accessories) issued by the 2nd
opposite party
in the name of the complainant.
A4 : Finance proposal form dated 01.07.2011 issued by the
2nd opposite party in the name of the complainant.
A5 : Copy of the repayment schedule dated of the 3rd and
4thopposite parties in respect of the complainant’s loan.
A6 : Copy of the statement of account dated 16.12.2011
issued by the 4th opposite party in respect of the
account of the complainant.
A7 : Copy of the receipt dated 18.11.2011 for ` 2,07,338
issued by the 2nd opposite party in the name of the
complainant.
A8 : Letter dated 15.12.2011 sent by the 2nd opposite party
in the name of the complainant.
A9 : Copy of the legal notice dated 23.12.2011 issued by
the complainant to the 2nd opposite party.
A10 : Reply notice dated 03.01.2012 issued by the 2nd
opposite party in reply to the A9 legal notice.
A11 : Notice dated 04.01.2012 issued to the 2nd opposite
party by the complainant.
Witness examined on the side of the opposite parties:
DW1 : Jettin K.J
Exhibits marked on the side of the opposite parties:
B1 Attested copy of a power of attorney executed in
favour of PW1 by 1st opposite party.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) George Mathew, Mulavelil Kannattumannil,
Kumpalathamon P.O., Vadasserikara,
Pathanamthitta Dist.
(2) Managing Director, Nippon Toyota Motor Corporation
Pvt. Ltd., Babu Moopan, Head Office, Nirmal-
Jayaprakash, No.X/314, K, NH 47,
Nettoor P.O., Maradu, Ernakulam.
(3)The Senior Manager (Sales),
Toyota Dealers, Nippon Motor Corporation Pvt. Ltd.,
M.C. Road, Nattakom, Kottayam.
(4)Managing Director, Mahindra &
Mahindra Finance Corporation Ltd.,
Head Office, 2nd Floor, Sadhana House,
Behind Mahindra Towers,570, P.B. Marg, Worli,
Mumbai – 18.
(5)Mahindra & Mahindra Finance Corporation Ltd.,
Branch office, College Road, Pathanamthitta.
(6)The Stock File.
