O R D E R

Sri. P. Satheesh Chandran Nair (President): 

                   The complainant filed this petition u/s.12 of the C.P. Act 1986 for getting a relief from the opposite party.  

         2. The case of the complainant is stated as follows:  On 10.11.2015 the complainant booked a new Hyundai I20 Active CRDi S Motor Car for an amount of Rs.9,47,872/-, with opposite party and paid an amount of Rs.10,000/- as advance for that booking.  It is contended that at the time of booking the opposite party made to believe the complainant that the above said vehicle would be delivered on 30.11.2015.  The complainant arranged the balance amount and approached the opposite party for taking the delivery of the said vehicle the opposite party failed to deliver the vehicle as agreed to the complainant.  According to the complainant, the act of the opposite party caused mental harassment and other difficulties to the complainant.  It is again contended that the complainant issued a legal notice dated 23.03.2016 to the opposite party demanding the advance amount and compensation from the opposite party.  Though the opposite party received the legal notice they failed to redress the complaint of the complainant.  Hence, this complaint to refund the advance amount Rs.10,000/- with 12% interest, compensation, cost etc. etc.

          3. This Forum entertained the complaint and issue notice to the opposite party for their appearance.  The opposite party entered appearance and filed their version as follows:  According to the opposite party, the petition of the complainant is not maintainable in law and as a consumer he has not suffered any loss on any account as alleged by the complainant.  The opposite party admitted that the complainant has paid an amount of Rs.10,000/- as advance for the purchase of the vehicle mentioned in the complaint.  It is also admitted that by paying the full amount of balance by the complainant the opposite party agreed to deliver the booked vehicle.  It is contended that the vehicle is actually brought to Kerala by the agent of opposite party and the company is bound to pay the delivery charges.  According to the opposite party, when a vehicle is booked a day is fixed for delivery of the vehicle and on that day the balance amount would be credited by the opposite party then only the delivery of the vehicle would be fixed.  It is further contended that when a booking was cancelled there is an undertaking that a cancellation charge of Rs.3,000/- would be deducted from the advanced amount.  It is further contended that there is no cause of action against the opposite party with regard to this case.

          4. We peruse the complaint, version and records before us and framed the following issues:

1. Whether the complaint is maintainable before this Forum?
2. Whether the opposite party committed any deficiency in service against the complainant?
3. Regarding the relief and costs?

                   5. In order to prove the case of the complainant, the complainant filed a proof affidavit in lieu of his chief examination and examined as PW1.  Ext.A1 to A5 and Ext.B1 are also marked through PW1.  Ext.A1 is the copy of Order Booking Form dated 10.11.2015.  Ext.A2 is the copy of letter dated 11.12.2015 sent by the complainant to opposite party.  Ext.A3 is the copy of letter dated 23.03.2016 sent by the complainant’s counsel to the opposite party.  Ext.A4 is the postal receipt.  Ext.A5 is the copy of retail invoice dated 19.12.2015 for Rs.8,52,475/-.  On the other side opposite party examined its Manager as DW1.  Ext.B1 is the copy of Order Booking Form dated 10.11.2015.  (Ext.A1 & B1 are one and the same).  DW1 filed a proof affidavit in lieu of his chief examination and it is seen that no documents were marked at the time of trial.  After the completion of evidence of complaint and opposite party, we heard both sides.

                   6. Point No.1:-  The opposite party in this case contended that this case is not maintainable before the Forum.  When we go through the evidence of this case it can be seen that the complainant booked a Hyundai I20 Active CRDi S Motor Car by paying Rs.10,000/- as advance e for its delivery.  The opposite party admitted the advance payment and also admitted the agreement of delivery of the vehicle within the stipulated time.  Hence it is clear that the complainant is a consumer of the opposite party and the opposite party is a service provider.  Hence Point No.1 found accordingly.

                   7. Point Nos.2 & 3:-  For the sake of convenience, we would like to consider Point No.2 and 3 together.  When we appreciate the evidence of this case, it reveals that the complainant PW1 paid an amount of Rs.10,000/- for the purchase of the vehicle worth Rs.9,47,872/-.  The complainant contended that the delivery of the vehicle was fixed as 31.11.2015.  It is to see that the opposite party has not raised any serious objection with regard to the date of delivery, i.e. 31.11.2015.  It is true that the opposite party in this case pleaded that the complainant failed to pay the balance amount within the stipulated time.  When we examine the evidence adduced by the opposite party, it can be seen that the opposite party has not adduced any evidence to show that the vehicle was ready for delivery on 31.11.2015 or in other words opposite party even failed to prove that the complainant failed to pay the balance amount within the stipulated time.  The complainant examined as PW1 in this case and through him Ext.A1 marked.  As per Ext.A1, it is proved that the complainant paid an amount of Rs.10,000/- on 10.11.2015 as an advance for the purchase of the vehicle in question.  It is true that at the time of cross-examination the learned counsel appearing for the opposite party marked Ext.B1 endorsement of Ext.A1.  As per Ext.B1, it is true that a booking cancellation charge of Rs.3,000/- per car would be reduced from the advance amount if it is cancelled.  We do admit that if a cancellation is happened due to the non-performance of agreement on the side of the booking person the opposite party can reduced from the booking amount.  Here, in this case when we look into the contention raised by the complainant, it is to see that due to the failure on the side of the opposite party with regard to the availability of the vehicle the complainant was forced to cancel his booking.  In order to substantiate the contention of complainant with regard to this aspect we would have to refer Ext.A2 letter dated 11.12.2015 which was written in favour of the opposite party by the complainant.  The content of that letter is as, “Rm³ 10.11.2015-þ Xm¦-fpsS tjmdq-an I20 Active CRDi S ImÀ _p¡p sNbvXn-«p-Å-Xm-Wv.  30.11.2015-þ\v ap¼mbn  hml\w \ÂImw F¶ Dd-¸nsâ t]cn BWv hml\w _p¡p-sN-bvX-Xv.  F¶m \mfn-Xp-hsc hml\w In«n-bn-«n-Ã.  Xs¶-bp-aà C\nbpw h­n In«p-¶-Xn\v hfsc Xmakw Df-f-Xn-\m-epw, F\n¡pw hml\w AX-ym-h-iyw Bb-Xn-\mepw Rm³ _p¡nwKv NmÀÖmbn \ÂIn-bn-«p-ff ]Xn-\m-bncw cq] (10,000/þ) XncnsI \ÂI-W-sa¶v A`-yÀ°n-¨p-sIm-f-fp-¶p. hni-z-kvX-X-tbm-sS, H¸v”.  Though the complainant written a letter as stated above, at the time of cross-examination the learned counsel appearing for the opposite party raised certain doubt about the contents and delivery of the letter.  In cross PW1 answered, “Ext.A2-hn\v B[n-Im-cn-I-amb tcJ thsdbn-Ã.  CXv t\cn«v O.P ¡v \ÂIn-b-Xm-Wv.  Ext.A2-hnse  Handwriting    Ftâ-Xm-Wv.  Fsâ kuI-cyw A\p-k-cn¨v X¿m-dm-¡n-b-X-Ô. In another question he answered, “tIkn-te¡v BZ-y-ambn Notice Ab-¨Xv 2016 amÀ¨v amk-¯n BWv. Ext.A3 Ab-¨Xv hml\w bYm-k-abw FSp-¡m¯ hogvN ImcWw 3,000/þ cq] \jvSw D­mhpw F¶-Xp-sIm-­Ã”.  At the time of trial, PW1 stick on the plea of sending a legal letter as Ext.A3 and A2 letter has not been sent by PW1.  But it is directly handed over to the opposite party.  Though this disparity was raised by the learned counsel appearing for the opposite party when considering the nature and circumstances of this case this contradiction can be treated as so minor and it can be discarded.  When we are appreciating the velocity of this Ext.Ext.A2, we have to consider the pleading of the opposite party with regard to the availability of the vehicle.  It is true that the opposite party pleaded that the vehicle was ready for the delivery within the stipulated time and only due to the non-availability of the finance on the side of the complainant was the reason for the non-delivery.  If so, what prevented the opposite party to issue a notice to the complainant with regard to the availability of the vehicle?  Being a reputed company it is the primary duty of the opposite party to inform the availability of the vehicle to the complainant within a reasonable time.  In this case, though opposite party pleaded in favour of the availability of the vehicle but no records produced to show to substantiate their contention.  Considering the above fact, in order to arrive a conclusion we would have to rely Ext.A2 letter in complainant’s favour.  Ext.A3 and A4 are advocate notice dated 23.03.2016 and its postal receipt respectively.  The opposite party admitted that he received Ext.A3 notice in time.  When we look into the evidence, it can be seen that the opposite party has not been sent any reply notice to Ext.A3 advocate notice.  The Ext.A5 dated 19.12.2015 the retail invoice proves the details of the car in question and its price.  As per Ext.A5, the price of the vehicle including the tax is Rs. 8,52,475/-.  In the light of the above discussion, it can be inferred that the complainant has succeed to prove his pleading and it is proved that the vehicle was not available within the stipulated time, i.e. 30.11.2015.  Therefore, we find that there is a deficiency in service against opposite party and the opposite party is liable to the complainant.  The complainant pleaded for a huge compensation in this dealing but we are not fully agreed with the complainant with regard to high level compensation in this case.  Complainant is eligible to a reasonable compensation.  Hence Point No.2 and 3 found accordingly in favour of the complainant.

                   8. In the result, we pass the following orders:

1. The opposite party is directed to refund the advance amount Rs.10,000/- (Rupees Ten Thousand only) with interest of 10% to the complainant from the date of cancellation letter dated 11.12.2015.
2. The opposite party is also directed to pay a compensation of Rs.5,000/- (Rupees Five Thousand only) and a cost of Rs.2,500/- (Rupees Two Thousand Five hundred only) to the complainant with 10% interest from the date of receipt of this order onwards.

                    Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31^st day of December, 2016.

                                                                                              (Sd/-)

                                                                   P. Satheesh Chandran Nair,                                                                                                                                                                                                                                             

                                                                                         (President)

Smt. K.P. Padmasree (Member – I)               :   (Sd/-)

Appendix: 

Witness examined on the side of the complainant:

PW1  :  Salim. G

Exhibits marked on the side of the complainant:

A1 :  Copy of Order Booking Form dated 10.11.2015. 

A2 :  Copy of letter dated 11.12.2015 sent by the complainant to opposite party.  A3 :  Copy of letter dated 23.03.2016 sent by the complainant’s counsel

        to the opposite party. 

A4 :  Postal receipt. 

A5 :  Copy of retail invoice dated 19.12.2015 for Rs.8,52,475/-.

Witness examined on the side of the complainant:

DW1  :  Remesh. A

Exhibits marked on the side of the complainant:

B1  :  Copy of Order Booking Form dated 10.11.2015. 

                                                             (By Order)

Copy to:- (1) Salim. G, Puthumangalathu Veedu, Payyanamon.P.O.,

                    Konni Thazhom Village, Pin – 689 692.

               (2) Manager, Popular Hyundai, St. Peter’s Junction,

                    Pathanamthitta.P.O., Pin – 689 645.

               (3)  The Stock File.