PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 28th day of November 2011
Filed on : 15/06/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No. 315/2011
Between
V.A. Muhammad, : Complainant
Poovanmadathil house, (party-in-person)
Mannam P.O., 683 520,
Kottuvalli Village, Ernakulam.
.
And
Popular Vehicles and Services Ltd,: Opposite party
Koottukaran centre, (By Adv.George Cherian
Mamangalam, Kochi-682 024, Karippaparambil, Karippa-
rep. by Managing Director. Parambil Associates, HB-48,
Panampilly Nagar,
Kochi-682 036.
O R D E R
Paul Gomez, Member.
The complainant narrates the facts as follows:
The complainant made an agreement with the opposite party for purchase of a Pre-owned maruti car at the price of Rs. 1,80,000/- for which he made an advance payment of Rs. 5,000/-. The executive of opposite party promised him to arrange finance for the purchase of the vehicle. When the promise fell through, complainant found it difficult to keep his words and ultimately he could not succeed in fulfilling his dream of owning a car. The opposite party forfeited the amount paid as advance. Hence this complaint for refund of advance amount and compensation.
2.In the version filed by opposite parties, the transaction is not denied. But they contend that the advance paid cannot be refunded as per the terms and conditions of the agreement. There was no undertaking from the part of opposite party to arrange finance for the purchase of the vehicle. Hence it is urged that the complaint deserves dismissal.
3. No oral evidence presented on the side of complainant. Exts. A1 to A3 marked for him. Witness for opposite party was examined as DW1. Learned counsel appearing for parties were heard.
4. The points for deliberation and determination:
i. Whether complainant is entitled for refund of the amount paid
towards advance of price?
ii. Any other reliefs, if any.
5. Points Nos. i.The parties are disputing over Rs. 5,000/- which was handed over to the opposite party by the complaint as advance. The advance payment is borne out by Ex. A1. opposite party stick on to his stand of refusal of refund relying on a term in corporated in Ext. A1 pre-owned car Booking form. The said term reads as follows:
“Advance received is non refundable”. Ext. A2 lawyer notice was caused by complainant for the refund. The demand was refused by the opposite party by Ext. A3 reply notice.
The complainant could not honour his promise to purchase the vehicle due to some financial crunch he happened to face. He is also of the view that the executive of the opposite party had given him word that opposite party would arrange finance to facilitate him for the purchase, but they have not honoured their words. Unfortunately there is no cogent evidence to this undertaking and its subsequent violation. Therefore we leave it as such.
We shall revert to the Ext. A1 booking form which categorically states that advance paid is not refundable. They have received Rs. 5,000/- as advance in this case. But it is crystal clear that the terms ‘advance received’ is a subtitle to the main title of ‘price details’. Therefore it is beyond doubt that in the instant case Rs. 5,000/- was received as advance payment which constituted a part of the price of the vehicle. It is agreed in the second para of the version that Rs. 5,000/- was received as advance sale consideration.
It is well known that advance amounts are received as part of sale consideration or caution deposit for the enforcement of the promise to purchase made by the vendee. It is also well settled that amount falling under the latter category alone can be forfeited whereas advance sale consideration is refundable when the agreement failed to materialize. In that perceptive, the term in corporated in Ext. A1 regarding non-refund of advance pertains only to those received by way of caution money only. By applying this rule regarding dichotomy of advance as explained above, we come to the conclusion that the amount received in the present case is refundable. DW2 has deposed before the Forum that opposite party has sustained loss towards interest and opportunity for resale. Since those losses have not been substantiated by proof, we do not give much credence to such contentions.
6. Point No.ii. The claim has also been raised towards compensation for mental agony. Even though the stake involved is not much, still the disappointment suffered by the complainant in losing money without gaining anything in return is quite perceptible. Therefore complainant is entitled for Rs. 1,000/- towards compensation towards mental agony due to illegal forfeiture of advance price. He is also entitled to costs of proceedings in the Forum.
7. Resultantly, we allow the complaint as follows:
i. Opposite party shall refund Rs. 5,000/- collected from the
complainant.
ii. Opposite party shall pay Rs. 1,000/- towards compensation
for mental agony.
iii. Opposite party shall also pay an amount of Rs. 1,000/- by
way of costs of proceedings in the forum.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order, failing which the aforesaid sums shall carry interest @ 9% p.a. from the date of this order till payment.
Pronounced in the open Forum on this the 28th day of November 2011
Sd/- Paul Gomez, Member.
Sd/- A Rajesh, President.
Sd/-C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendnent.
