D.O.F. 31.08.2010
D.O.O. 02.01.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 2nd day of January, 2012.
C.C.No.215/2010
Jinsha A.
“535 Jinshalayam”
Kuthuparamba,
Kannur Dist. : Complainant
(Rep. by Adv. Sureshkumar Nambiar K.P.)
1. M/s. Popular Vehicles & Services Ltd.,
“Kuttukaran Centre”, Manangalam,
Kochi. Pin : 682 425
2. M/s. Popular Vehicles & Services Ltd.,
P.O. Civil Station, Wyanad Road, Calicut. : Opposite Parties.
(Rep. Adv. C.K. Sreekumar)
3. M/s. Popular Vehicles & Services Ltd.,
Old overbridge Road, Nr. Thaluk office,
Narangappuram, Thalassery.
O R D E R
Sri. K. Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection
Act for an order directing the opposite party to pay ` 65,000 as compensation with interest and cost.
The case of the complainant in brief is as follows. The complainant approached 2nd opposite party to purchase A-Star model Maruthi car. As required by 2nd opposite party an agreement was executed between opposite parties and the complainant on 08.02.2009 for the purchase of above said model car from 3rd opposite party. Complainant paid ` 15,000 as advance. Receipt issued by 3rd opposite party. 2nd opposite party has issued an order booking form duly filled and signed by him to the complainant. 2nd and 3rd opposite party agreed to deliver the vehicle within 3 days. It is because of this assurance of delivery within 3 days from the date of booking complainant entered into the agreement. Complainant contacted opposite party several times but vehicle was not delivered. They were playing delaying tactics. Complainant issued lawyer notice to 2nd opposite party on 17.02.2009 demanding return of advance amount, with compensation. 2nd opposite party sent no reply. The opposite parties violated the terms of the agreement. The vehicle is not yet delivered. Hence this complaint.
Pursuant to the notice 2nd opposite party entered appearance and 1st and 3rd opposite parties remained absent. 1st and 3rd opposite parties subsequently called absent and set exparty. 2nd opposite party appeared and filed version on behalf of all opposite parties contending as follows : The complainant has booked for the vehicle on 08.02.2009 paying ` 15,000 as advance. In the order booking form the approximate delivery period stipulated was 1 to 3 days. In the terms and conditions of the agreement the approximate delivery period given on the order booking form is only indicative and vehicle delivery however subject to production of vehicles by manufacturer and transit time and will not be responsible for any delay in the delivery due to any unforeseen circumstances. The above conditions was acknowledged by the complainant. The vehicle ready for delivery on 11.02.2009 and intimated the same. The sale letter was also prepared on 11.02.2009. But complainant willfully refused to take delivery. The complainant has applied for a loan from Sundaram Finance Ltd and the proposed vehicle was hypothecated to Sundaram Finance. But the loan was not sanctioned and then the complainant withdrawn from the purchase. The complainant has purchased “Chevrolet Spark”. It is for this purpose complainant refused to take delivery. The opposite parties have contacted the complainant to collect refund booking amount. Complainant has never come to the office and demanded to return the advance amount. The complainant has never undergone mental agony and met any loss. There is no deficiency in service on the part of opposite parties. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency in service on the part of opposite parties?
2. Whether the complainant is entitled for the relief as prayed in the complaint?
3. Relief and cost.
Issues 1 to 3 :
Admittedly complainant booked for the vehicle on 08.02.09 paying ` 15,000 as advance and the order booking form the approximate delivery period stipulated was 1 to 3 days. An agreement also entered into between the parties. The case of the complainant is that 2nd and 3rd opposite party agreed the supply of vehicle within three days and she entered into agreement solely due to the belief that the vehicle would be delivered within three days of booking. But opposite party failed to deliver the vehicle . It is an admitted fact that the vehicle was ready on 11.02.09. Opposite party’s case is that the delivery period though stipulated in Booking Form was 1 to 3 days, in the term in the agreement the approximate delivery period given on the order booking form was only indicative and vehicle delivery however, subjected to production of vehicles by manufacturer and transit time and will not be responsible for any delay in the delivery due to any unforeseen circumstances. Opposite party also contended that the above said condition was acknowledged by the complainant.
PW1 adduced evidence by his chief affidavit that the complainant executed agreement on 08.02.09 to purchase the subject matter vehicle and paid ` 15,000 . He has further stated that at the time of signing the order booking form 2nd and 3rd opposite parties assured to deliver the vehicle within three days. It was on this assurance advance was paid and booked the vehicle. But opposite party did not deliver the vehicle. Lawyer notice was sent on 08.02.2009. Opposite party did not sent any reply.
Ext.A1 is the Order Booking Form. The payment details reveals that the complainant has paid ` 15,000 on 08.02.2009. Order Form also reveals that the approximate delivery period is 1 to 3 days. It shows that on 08.02.2009 opposite party offered to deliver the vehicle within three days. Opposite party’s contention is that as per the terms and conditions the offer made in the order Booking Form is not binding term but only an indicative and as per terms and conditions of agreement they are not bound to deliver it within three days since includes the term that approximate delivery period given on the Order Booking Form is only indicative. If this is the condition, liable what is the purpose of the offer to deliver the vehicle within tree days. It is a printed matter as part of the unfilled form wherein item bar condition has not accepted by parties. It is even not certain whether those conditions were read over to complainant and consent obtained. Actually the offer and acceptance is completed on the points entered and filled up in the form on the booking date 08.02.2009. The most important aspect as far as consent is concerned is nothing but where exactly the consensus ad idem is present. The terms upon which, the consensus ad idem, the common consent between the parties to the contract are not proved, those conditions are not legally applicable to the parties. The terms and conditions printed on the Form is a matter already in stock wherein, a consumer need not necessarily go through them all. So it is the obligation of the opposite party to invite the attention of complainant to all those conditions especially on those conditions that are adversely affect the interest of offeree/complainant and to obtain consent and signature as mark of it. Opposite parties are experienced ever so many transactions in their daily affairs of business whereas, it is relatively first experience as far as a consumer is concerned. So the trader has legal obligation to make the consumer aware of each and every terms of agreement. So a consumer is not bound by a term which was not specifically brought to his notice at the time of executing the agreement.
The allegation of the complainant that 2nd and 3rd opposite parties agreed to supply the vehicle within 3 days is clearly revealed in Ext.A1 Order Booking Form. In the absence of evidence that the terms invalidating the said offer has been consented by complainant, there is substance in the allegation of complainant. The spirit of the contention that the offer to deliver the vehicle 1 to 3 is not valid, cannot be accepted. The opposite party stated in version that they were ready to deliver the vehicle on 11.02.09, Another contention of opposite party is that the complainant has not taken delivery of the vehicle since complainant was not having the money as the finance was not granted by the financier. But at the same time opposite party contended that the complainant has brought Chevrolet spark car by declining to buy opposite party’s car. So it is sure and certain that the question of purchase of opposite party’s car has no way connected with the availability of finance as contented by opposite party. According to opposite party complainant purchased new car. New car only can be purchase if finance is available. So when complainant purchased the new car it makes the impression that complainant had the money to purchase the same. Then why opposite party contended that complainant did not purchase the booked car since the finance was not granted is left with unexplained. The means the financial capacity did not play any role in this transaction. It can be seen that there is no evidence of any unexpected event that created a situation which prevented the opposite party from delivering the vehicle to complainant. So opposite party cannot justify the non-delivery of vehicle on the ground of any unexpected event.
Ext.A4 dated 17.02.09 is the legal notice sent by complainant to opposite party calling upon to pay ` 50,000 as damages and ` 15,000 as deposited amount on the ground that the opposite party had failed to deliver the vehicle within the stipulated time. Complainant specifically alleged that opposite party had assured that the vehicle would be delivered within three days from the date of receipt of the advance payment but violated the offer. It is also alleged that complainant approached 2nd opposite party several occasion but they had not complied their assurance. If the opposite parties had justifiable explanations against these allegations they are legally bound to sent the reply. Opposite party did not sent any reply, which only indicates that the opposite parties had not had any justifiable answer against the allegation raised by the complainant. Hence deficiency in service on the part of opposite party is clear from the silence of opposite party towards Ext.A4 lawyer notice.
PW1 has been cross examined for opposite parties elaborately. But nothing could be brought out in favour of opposite party. PW1 deposed in cross examination that “11\v car delivery sN¿m³ X¿m-dm-bn-cp¶p F¶ adp-]-Sn-bn ]d-ªXv icn-b-Ã. ]cm-Xn-¡m-cn¡v _m¡n XpI \ÂIm³ Ign-bm-¯-Xp-sIm-mWv ImÀ delivery sN¿m-Xn-cp-¶Xv F¶p ]d-ªm icn-b-Ã.” The evidence of PW1 makes it clear that they were ready to make payment. To the next question PW1 answered thus “]cm-Xn-¡m-cn-bpsS A/c ]W-ap-m-bn-cp¶p F¶pw ]Ww opposite party ¡v sImSp-¡m³ X¿m-dm-bn-cp¶p F¶pw ImWn-¡m³ tcJ lmP-cm-¡n-bn-Ã.” That means opposite parties consistently raise the contention that complainant did not take delivery of the vehicle since she had no enough money to pay the balance. If that be so, why did opposite part kept silent without replying the legal notice dated 17.02.2009 wherein complainant put forward specific allegations. If opposite party was ready to deliver the vehicle what prevented from replying the legal notice sent by the complainant. It is also brought out from PW1 that the complainant had purchased the Chevrolet Spark Car after six months. The purchase of new car reveals the financial capacity of the complainant but opposite party could not succeed to establish that the complainant refused to accept the delivery and she did so for the purpose of purchase of another case.
Dw1 in his cross examination deposed that “hml\w book sN¿p-t¼mÄ A{]-Xo-£nX {]iv\w Dm-bn-sÃ-¦n 3 Znh-k-¯n-\p-f-fn delivery Xcm-sa¶v ]d-ªn-cp-¶p. A{]-Xo-£nX {]iv\w R§-fpsS `mK-¯p-\n-¶p-m-bn-cp-¶n-Ã.” Opposite party has no case neither they were ready to deliver the vehicle within three days nor any unexpected event had been taken place and there were existed any unforeseen circumstance. The evidence of DW1 undoubtedly proved that there was clear promise to deliver the vehicle within three days. It is also proved that any unforeseen circumstances had not been existed during those days. DW1 put up new case that “]cm-Xn-¡mcn office  h¶v hml\w th F¶p ]dªp F¶mWv R§-fpsS hmZw. C¡m-cyw FgpXn hm§n-¨n-Ã. hm§m³ {ian-¨n-Ã.” Opposite party has no such pleadings. Anyhow opposite party did not tried to get a refusal letter from complainant. DW1 further stated that “Sundaram Finance  \n¶v loan In«m-¯Xp-sIm-mWv ]cm-Xn-¡mcn hn hm§m-Xn-cp-¶Xv F¶p ImWn-¡m³ tcJ-sbm¶pw lmP-cm-¡n-bn-Ã.” That means the contention of opposite party has not been supported by any evidence. DW1 again deposed that “h¡o t\m«okv ]cm-Xn-¡mcn Ab-¨Xv ssI¸-än-bn-cp-¶p. t\m«o-kn\v adp-]Sn Ab-¨n-Ã. {]tX-y-In¨v Imc-W-an-Ã.” Opposite party has no explanation for non-reply of Ext.A4, legal notice. Hence the available evidence goes to show that opposite parties are promise breakers, who failed to deliver the vehicle within the stipulated time, which we consider as deficiency in service on the part of opposite parties and held liable to refund the advanced amount with compensation and cost.
Complainant is a medical student. The need of the complainant to purchase the vehicle need not be suspected. The emergency nature to certain extend also can be assumed. But what is the actual damage caused to complainant, over and above the advance amount is a question to be proved by the complainant. She has estimated her loss to the tune of ` 50,000. But no evidence adduced before the Forum in order to prove the actual loss. So we are helpless to award damages as prayed by complainant except a nominal amount of ` 5000. The opposite parties are liable to refund the amount of advance ` 15,000 with an interest at the rate of 10% from the date of filing of the case to the realization of the amount together with a sum of ` 1000 as cost of this litigation. Thus the issues No.1 to 3 are found in favour of complainant.
In the result, the complaint is allowed directing the opposite parties to refund the advance amount ` 15,000 (Rupees Fifteen Thousand only) with interest at the rate of 10% and a sum of ` 5000 (Rupees Five Thousand only) as compensation together with an amount of ` 1000 (Rupees One Thousand only) as cost of this litigation within 30 days of receipt of this order failing which the complainant is entitled to execute the order after the expiry of one month as per the provisions of Consumer Protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Order booking Form.
A2. Cash receipt for 15,000 by 3rd opposite party.
A3. Lawyer notice.
A4. Postal receipt.
A5. Power of Attorney.
Exhibits for the opposite party
B1. Invoice.
B2. Pre-inspection delivery jobcard.
Witness examined for the complainant
PW1. K.M. Venugopalan.
Witness examined for opposite party
DW1. Mansoor P.
/forwarded by order/
SENIOR SUPERINTENDENT
