BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. P. SUDHIR : PRESIDENT
SMT. R. SATHI : MEMBER
SMT. LIJU B. NAIR : MEMBER
C.C. No. 424/2012 Filed on 27.11.2012
ORDER DATED: 27.11.2015
Complainant:
V.C. Anil Kumar, Advocate, residing at T.C 28/746, ‘Bindu’, Punnapuram, Pettah P.O, Thiruvananthapuram-695 024.
(By Adv. Sreeja Sasidharan)
Opposite party:
The Managing Director, Popular Hyundai, Popular Motor World (P) Ltd., Near Karamana Bridge, Neeramankara, Kaimanam P.O, Thiruvananthapuram-695 040.
(By Adv. R. Balakrishnan)
This case having been heard on 15.09.2015, the Forum on 27.11.2015 delivered the following:
ORDER
SRI. P. SUDHIR: PRESIDENT
The gist of the complainant’s case is the complainant booked a new car Hyundai Eon Era BSIV (Hyundai Eon Era (M) Maharajah Red in colour, on 10.12.2011 from the opposite party. The same was registered as KL-01 BD 8878. That he booked the said car as per the advertisement given by the opposite party in Mathrubhoomi daily stating that those who book Hyundai Eon in December 2011 will get free insurance benefit of Rs. 10,000/- and exchange bonus of Rs. 10,000/-. The complainant alleges that the total benefit offered by the opposite party is Rs. 20,000/-. The complainant states that the total on road cost of the vehicle as per the invoice No. 1281 dated 17.12.2011 is Rs. 3,42,019/- and that he took delivery of the new car on 18.12.2011 after exchanging the old Maruti 800 bearing No. KL-01 AS 4015 and that he had paid the entire cost of the vehicle. The opposite party issued two invoices to the complainant at the time of the new car delivery, i.e Ex-showroom retail invoice dated 16.12.2011 bearing No. 1281 where the total cost of the vehicle is mentioned as Rs. 3,06,746/- after deducting the trade discount and including VAT and CESS. The other invoice is the final bill i.e; the customer account settlement voucher dated 17.12.2011, bearing No. 1281 and it shows the total cost of the vehicle, i.e; Rs. 3,42,019/- which includes insurance premium of Rs. 8,998/-, Logistic and Handling charges of Rs. 5,000/-, road Tax and Registration fee of Rs. 19,400/- and the extended warranty of Rs. 1,875/-. The complainant alleges that as per the final invoice No. 1281 dated 17.12.2011, the opposite party did not adjust the insurance premium amount of Rs. 8,998/-. It is the case of the complainant that as per the offer, as advertised in the newspaper, the opposite party deducted the exchange bonus but not the insurance premium amount. The complainant is eligible to get back the full insurance premium amount of Rs. 8,998/- as offered by the opposite party. According to the complainant in the final bill dated 17.12.2011 bearing No. 1281 issued by the opposite party, it is shown that the on-road price of the new vehicle is Rs. 3,42,019/- including the insurance premium and from the said invoice it is also very clear that the complainant had paid Rs. 3,42,900/- which includes the insurance premium amount. Therefore the complainant is entitled to get the refund of the insurance premium from the opposite party. The complainant has demanded the refund of the insurance premium amount on several occasions but with no response. The complainant even registered a complaint with the manufacturer. But of no avail. In spite of continuous demands the opposite party did not return the amount collected towards the insurance premium, which the opposite party has offered. The said act of the opposite party is nothing but an unfair trade practice. The complainant states that the Hon’ble Consumer Forum has jurisdiction to try the matter and that he is a consumer. He alleges that due to the irresponsible conduct of the opposite party he lost an amount of Rs. 8,998/- and has suffered mental strain and other harassment and injury. The complainant, as reliefs, has prayed for the refund of full insurance premium of Rs. 8,998/-, Rs. 15,000/- as compensation and also cost of Rs. 5,000/- along with other reliefs this Forum may deem fit.
On receiving the notice from this Forum opposite party appeared and filed version contesting the matter.
As per the version of the opposite party the complaint is not maintainable either in law or on facts and the same is filed devoid of logic and reason and the complainant overlooked the calculations made by the opposite party. The complainant failed to go through the retail invoice and the customer and account settlement voucher meticulously. The advertisement in Mathrubhoomi daily says that when a customer buys Hyundai Eon of a particular model the saving may go upto Rs. 20,000/- i.e, he will receive at the maximum Rs. 20,000/- as savings. The opposite party also states that the asterisk (*) mark in the advertisement is to be given importance for it points to a relevant addendum/addition given below. In the advertisement which appears in the Mathrubhoomi daily it says. “Terms and conditions apply”, “Features and specifications as shown may not be part of standard fitment and are subjected to change without prior notice,” price is based on Kerala, “All offers are from Hyundai Authorized dealers only”, No cash discount can be availed in lieu of offers and schemes cannot be clubbed with any other offer”. The opposite party further submits that what the complainant produced as Ex-showroom retail invoice is not the Ex-showroom retail invoice but it is simply the retail invoice prepared in Form No. 8 B as per the Kerala Value Added Tax Rules 2005. It was also stated by the opposite party that the discount shown there is not a trade discount but the discount given to the complainant lieu of free insurance. A trade discount is nothing but a deduction from the list price of a vehicle/goods allowed by a manufacturer/wholesaler to a retailer. Hence the discount shown there in the retail invoice No. 1281 dated 16.12.2011 is nothing but the discount given to the complainant in lieu of free insurance. The opposite party also states that the calculations were made on the basis of cost of the vehicle. The cost of the vehicle and the Ex-showroom price of the vehicle are not one and the same. The cost of the vehicle do not consist of VAT and cess charges. The ex-showroom price during the period of selling the vehicle to the complainant was Rs. 3,15,744/-. The Ex-showroom price is the price notified by the manufacturer of the vehicle. The ex-showroom price will be the same with other dealers of the same car of the same make. The opposite party states that the opposite party has given to the complaint all the offers promised and advertised. The opposite party has never appropriated the insurance amount or any excess amount in this case. The opposite party has not committed any unfair trade practice as alleged by the complainant. The discount was made on the cost of the vehicle and not on the Ex-showroom price and VAT and cess were added only after making the discount. Thereby no loss or harm was caused to the complainant. Everything pertaining to the invoice and the voucher was elaborately explained to the complainant by the opposite party at the time when the same were issued.
Complainant filed chief examination of affidavit and Exts. P1 to P4 marked. Complainant not cross examined by opposite party. Opposite party filed chief examination of affidavit and Ext. D1 marked. DW1 was cross examined by complainant. Opposite party examined one witness DW2 and DW2 was also cross examined by complainant.
Points for consideration are:-
- Whether there is deficiency of service or unfair trade practice on the part of opposite party?
- Whether the opposite party has refund or given insurance amount of Rs. 8,998/- to the complainant?
- Whether the complainant is eligible for the reliefs sought for?
Points (i) to (iii):- Perused the evidence and documents marked and the arguments put forward by both the parties. The argument of opposite party is that “advertisement which appeared in Mathrubhoomi daily dated 10.12.2011. The advertisement has an asterisk (*) mark in it and gravity should be accorded to the asterisk (*) mark for it points to the additions/addendum given below the advertisement. One such addendum says that “No cash discount can be availed in lieu of offers”. So taking that into consideration it can very well be said that the discount shown in Ext. P2 is not a cash discount but the offer itself. Besides, in paragraph 6 of the version the opposite party has averred that the discount shown in Ext. P2 is nothing but the discount given in lieu of free insurance. In the affidavit filed in lieu of chief examination, also, in paragraph 5, the opposite party has stated that Ext. P2 (form No. 8 B Invoice No. 1281 bearing date 16.12.2011) എന്നാൽ Ex-showroom retail invoice അല്ലാ മറിച്ച് കേരള വാറ്റ് ചട്ട പ്രകാരം തയ്യാറാക്കിയ form No. 8B retail invoice ആണ്. ആയതിൽ പരാമർശിച്ചിട്ടുള്ള ഡിസ്കൗണ്ട് ഒരു trade discount അല്ല മറിച്ച് പരാതിക്കാരന് നൽകിയിട്ടുള്ള ഫ്രീ ഇൻഷുറൻസിനോട് അനുബന്ധിച്ചുള്ള ഡിസ്കൗണ്ട് ആണ്. പലപ്പോഴായി പല ഓഫറുകൾ വരുന്നതിനാലും നൽകുന്നതിനാലും ഡിസ്കൗണ്ട് എന്ന ഹെഡ്ഡിൽ ഓഫർ നൽകാറാണ് പതിവ്” and produced 3 ways of calculations to show that complainant has received the offer of free insurance by way of cash discount. The argument put forward by the complainant is that the Ext. P2 is the continuation of Ext. P3, which were issued by the opposite party. The opposite party never disputed the entries in the said documents. The ex-showroom price of the vehicle including value added tax at the rate of 12.50% and cess of 1% comes to Rs. 3,06,746/- as per Ext. P2. This figure is carried over in Ext. P3 invoice (customer account settlement voucher). As per Ext. P3, it is very clear that the opposite party has charged insurance premium of Rs. 8,998/- as item No. 2 and not given credit in the payable column. Moreover it is very important to note that the opposite party has given credit for the exchange bonus of Rs. 10,000/-. Item No. 7 as promised by them in Ext. P3, in payable column. So it is crystal clear that they have purposefully not given refund of the insurance premium as promised. The contention of the opposite party as per Ext. D1 that the ex-showroom price of the vehicle is Rs. 3,15,744/- instead of Rs. 3,06,746/-. On perusal of the Ext. D2and Ext. P2 it is very evident that the opposite party has committed manipulation in the invoices only to support their stand, i.e; as per Ext. D1, the VAT amount charged is Rs. 35,044/-, but as per Ext. P2, it is charged as 34,045.06. Moreover the opposite party has not charged cess amount in the Ext. D1 which is visible in Ext. P2. So the contention of the opposite party that Ext. D1 is the ex-showroom price of the vehicle cannot be believed and taken into consideration. Moreover the opposite party also taken a contention that the insurance premium amount has already adjusted in Ext. P2 as discount amount. On perusal of Ext. P2 and P3 it can be seen that the actual premium amount is Rs. 8,998/-. But the discount given by the opposite party is only Rs. 7.989.34. The contention taken by the opposite party cannot be taken into consideration with regard to the same and in total it can be seen that the opposite party has not given insurance benefit free of charge to the complainant.
We are of the opinion that there is unfair trade practice on the part of opposite party and opposite party has not given the benefit under the head ‘free insurance benefit’ to the complainant. A common man will not know the hidden trick and calculation magic of the dealer. Hence we are of the opinion that opposite party is directed to pay Rs. 8,998/- towards the refund of full insurance premium and Rs. 5,000/- as compensation for the mental agony suffered by the complainant and Rs. 2,000/- towards the costs of this proceedings.
In the result, complaint is allowed and opposite party is directed to pay Rs. 8,998/- as refund of full insurance premium and Rs. 5,000/- as compensation for the mental agony suffered by the complainant and Rs. 2,000/- towards costs of the proceedings within one month from the date of receipt of this order failing which complainant is entitled to realize the entire amount with interest at the rate of 9% per annum from the date of default till realization.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 27th day of November 2015.
Sd/-
P.SUDHIR : PRESIDENT
Sd/-
R. SATHI : MEMBER
Sd/-
LIJU B. NAIR : MEMBER
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C.C. No. 424/2012
APPENDIX
I COMPLAINANT’S WITNESS:
NIL
II COMPLAINANT’S DOCUMENTS:
P1 - Newspaper
P2 - Copy of retail invoice for Rs. 3,06,746/-
P3 - Copy of customer’s account settlement voucher
P4 - Copy of invoice for works contract.
III OPPOSITE PARTY’S WITNESS:
DW1 - Deepesh
DW2 - Nikhil Cariappa
IV OPPOSITE PARTY’S DOCUMENTS:
D1 - Price list (Hyundai)
Sd/-
PRESIDENT
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