Kerala

Idukki

CC/11/2019

Johny Philip - Complainant(s)

Versus

populer vehicles and servicess ltd - Opp.Party(s)

27 Sep 2022

ORDER

DATE OF FILING : 21.1.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  27^th  day of September, 2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.11/2019

Between

Complainant                                            :   Johny Philip,

                                                                    Vazhappillil House,

                                                                    Vimalagiri P.O., Karimpan.         

       (By Adv: Lissy M.M.)

And

Opposite Parties                                       :  1. The Managing Director,

                                                                       Popular Vehicles and Services Ltd.,

                                                                       Kuttukkaran Complex, Killipalam,

                                                                       Karamana, Thiruvananthapuram.

        2. The Branch Manager,

                                                                       Popular Vehicles and Services Ltd.,

                                                                       Thodupuzha.

                                                                    3. The Sales Representative,

                                                                        Popular Vehicles and Services Ltd.,

                                                                       Thodupuzha.

 (All by Advs: Prince J. Pananal,

Lal K. Joseph & Luxy T.A.)

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under Section 12 of the Consumer Protection Act of 1986. Complaint averments are briefly discussed here under :

 

1^st opposite party is authorised dealer of Maruti vehicles having its registered office at Karamana, Thiruvananthapuram. 2^nd opposite party is represented by its Mananger, as a branch of 1^st  opposite party functioning in Thodupuzha. 3^rd  opposite party is a sales representative working under 1^st  and 2^nd  opposite parties.

 

 

Complainant is the registered owner of a car, namely, Wagon R, having registration No.KL-7AX-4620. On 28.11.2018, as per instructions of 1^st  and 2^nd  opposite parties, 3 rd opposite party had approached complainant and offered to

purchase his car for Rs.1,25,000/- under an exchange scheme and agreed to provide a new Swift Dezire car to him at discounted rates. After obtaining booking order, 3^rd  opposite party had taken possession of complainant’s old car. At the time of booking, 3^rd  opposite party had agreed to deliver the new car on 2.12.2018. However, on the next date itself, 2^nd  opposite party informed complainant that they would give only Rs.1,15,000/- for old vehicle. This was not acceptable to complainant. Besides opposite party had not delivered the new vehicle as offered by them. Despite repeated requests from complainant, for return of his old car in the same condition it was taken from him, opposite parties have not returned it to him. On 15.12.2018, complainant had issued a lawyer notice to opposite parties demanding return of old vehicle along with compensation of Rs.1,000/- per day, for use of vehicle. Till date, old vehicle has not been handed over to complainant. He is a teacher by profession. Complainant was using his car for daily commute to his school and back to his residence. Since old vehicle is retained by opposite parties, complainant is entitled to get Rs.1,000/- per day for the period during which opposite parties continue to retain the car. Vehicle was taken purposefully by 2^nd  opposite party only for getting a new car booked in complainant’s name. Since new car could not be delivered in time, to get the order cancelled, opposite parties have gone down over their offer to purchase the car for Rs.1,25,000/- as promised. Complainant submits that M/s. Indus Motors had agreed to purchase his old car for Rs.1,20,000/- and complainant had agreed to sell the car to Indus Motors. Opposite parties had offered a high price for complainant’s old vehicle only for getting a booking for new vehicle from him. When they were unable to deliver the vehicle in time, they had reduced price of his old car. This constitutes unfair trade practice and deficiency in service on their part. Complainant therefore prays for a payment of Rs.1,25,000/- from opposite parties with 12% interest from 2.12.2018 or till payment, in the alternate for payment of Rs.1,000/- per day from 24.11.2018, till vehicle is returned to complainant. He also seeks payment of Rs.25,000/- from opposite parties as compensation for deficiency in service and Rs.10,000/- towards litigation cost.

 

2. Complaint was taken on file and upon notice, opposite parties 1 to 3 have appeared and filed a joint written version. Their contentions are briefly discussed here under :

          According to opposite parties, complainant is not a consumer as defined under Section 2(d) of the Act and therefore the complaint itself is not maintainable.            

                                                                     

They further, without prejudice to their contentions raised regarding maintainability of case, submit that, complainant is indeed owner of a Wagon R car having registration No.KL-07AX-4620, which is a 2005 model and ran 78553 kms.

They would however, deny the contentions that 3^rd opposite party had approached complainant on 28.11.2018 as instructed by 1^st and 2^nd opposite parties and offered to purchase the complainant’s vehicle for Rs.1,25,000/-, under an exchange scheme and had further agreed to give a new Swift Dezire car to complainant. In fact, complainant had approached opposite parties on 20.11.2018 for purchasing a Swift Dezire car. He had also expressed his wish to exchange his old car for the same. Complainant has also submitted an order (booking No.11569) dated 20.11.2018, for purchasing a Swift Dezire car. However, he had not remitted any amount after booking the car. While booking new car, complainant had requested opposite party to help him in selling his old vehicle, since offer of opposite parties for purchasing old vehicle under ‘True Value’ scheme was rejected by complainant. Complainant had then requested opposite parties to retain the vehicle with them for a few days, so that it could be exhibited before prospective buyers who may approach opposite parties, so that he may get a higher price for his old vehicle. Though this request was not initially conceded by opposite parties, upon further pleas of complainant, they had conceded to his request. Thereafter complainant had entrusted the vehicle with documents to opposite parties. As a goodwill gesture, opposite parties had permitted complainant to keep his vehicle at nearby pay and park service for a few days and exhibit his vehicle before prospective buyers. However, contrary to expectations of complainant, no prospective buyers had approached to purchase the old vehicle. Complainant was duly intimated regarding the same by opposite parties. At the request of complainant, opposite parties had retained the vehicle, for few more days. While so, they received a legal notice by the complainant wherein untenable contentions were raised. Opposite parties had then contacted the complainant and had instructed him to take back his vehicle and remit amount towards booking of new vehicle. Complainant had then informed opposite parties that he is not interested in purchasing Swift Dezire car and that he wants to purchase a new stylish vehicle like Baleno and he had approached ‘Nexa’ showroom for the same. He had also informed opposite parties that he had entrusted his old vehicle only with the intention of selling it for a good price utilising the goodwill of the opposite parties. Though he had assured to take back the vehicle without delay, he had not taken back the same. Upon his assurance that the vehicle will be taken back, opposite parties had not sent a reply to the legal notice. Further contentions that complainant was using his old car for daily commute to his school and back and that he is entitled to recover Rs.1000/- per day for the period when the vehicle is under possession of opposite parties were denied by opposite parties. Complainant had entrusted the old vehicle with opposite parties upon his own volition and with the expectation of selling the vehicle to prospective buyers who would approach opposite parties in search of old car. Vehicle of complainant was an old model and could hardly fetch Rs.25,000/- in its present condition. Booking for new vehicle was upon condition that vehicle will be delivered in order of customer booking, subject to payment and other formalities for registration. That approximate delivery date given in order booking form is only indicative. Vehicle delivery will be subject to availability of vehicles from manufacturer. That the dealer will not be responsible in case of delay or rejection of finance by financier and also due to unforeseen circumstances. Having given a written booking order, accepting these conditions, complainant cannot turn around and contend that opposite parties could not delivered the new car in time. It is incorrect to say that the offered price for old car was reduced by opposite parties as they were unable to effect delivery of new car within the promised time. Contentions advanced that the vehicle will fetch Rs.1,25,000/- are incorrect. Opposite parties had only admitted to help the complainant to sell his old vehicle as a goodwill gesture. They had not committed any unfair trade practice or deficiency in service. Complainant is not entitled to recover any amount from opposite parties since complainant had failed to take back his old vehicle despite repeated requests by opposite parties. Pay and park authorities had requested parking fees from opposite parties. Hence they are entitled to recover amount expended by them for preserving the vehicle, from complainant. Opposite parties have been unnecessarily dragged before this Forum as a pressure tactic. Complaint is to be dismissed by granting compensatory costs to opposite parties.

 

3. Case was then posted for evidence, after affording sufficient opportunity to both sides to take steps. On the side of complainant, he himself was examined as PW1 and Exts.P1 to P3 were admitted. In fact, Ext.P3 was produced after initial examination of complainant and he was examined again for the said purpose. On the side of opposite parties, one Afsal. K, who was the present sales representative working in Thodupuzha under 2^nd  opposite party was examined as RW1. Exts.R1 to R3 were proved on the side of opposite parties. A witness schedule was filed by opposite parties naming one Ajayan as a witness who was the sales representative at the time when the disputed transaction or rather booking of new Swift Dezire Car was done by complainant. Registered notice sent to the given address of the said witness was returned unserved. Though an opportunity was afforded to opposite parties for production of witness, they have not done so. Hence evidence was closed and both sides were heard. Initially, on 2.8.2022, complainant alone was heard as there was no representation from the side of opposite parties. Subsequently, upon application by opposite parties, case was re-opened and both sides were heard on 16.9.2022. Now the points which arise for consideration are :  

1) Whether opposite parties 1 and 2 had purchased complainant’s old car for Rs.1,25,000/- as per an exchange scheme for sale of a new car from their dealership to the complainant ?

2) Whether opposite parties had agreed to deliver the new car on 2.12.2018 ?

3) Whether there was any concluded agreement between complainant and opposite parties for the purchase of old car of complainant by them and sale of new car at a discounted price by opposite parties, to him?

4) Whether complainant is a consumer as defined under the Act ?

5) Reliefs and costs ?

 

4. Point Nos.1 to 3 are considered together :

 

Specific case of complainant as disclosed from his complaint is that, on 28.11.2018, the then Sales Representative of 2^nd  opposite party had approached him with an offer to purchase his old car for a sum of Rs.1,25,000/- under an exchange scheme whereby complainant was to be given a new Swift Dezire car at discounted rates. It is also pleaded that 3 rd opposite party had agreed to deliver the new vehicle on 2.12.2018. To prove his contentions, complainant himself has given evidence and produced Exts.P1 to P3. Ext.P1 is a preliminary information report, purportedly written up by 3^rd opposite party (the then Sales Representative). Ext.P1(a) is a writing appearing below the columns in Ext.P1, which are : ‘old car purchased – 1.25 lakhs’. In his complaint, complainant would specifically say that the offer was made by 3^rd  opposite party to purchase the old car for Rs.1,25,000/- on behalf of 1^st and 2^nd opposite parties. During his cross examination, complainant would depose that in fact then sales representative Ajayan and another person namely Jinson had approached him. That he does not know who had filled up Ext.P1 and made P1(a) endorsement in it. It would be pertinent to note that Ext.P1(a) is not admitted by opposite parties. These are suggested to be forgeries effected by complainant for the purpose of advancing his case. We would also note in this context that the then Sales Representative Ajayan has not been impleaded in this case in his personal capacity. 3^rd  opposite party in the cause title of complaint is only shown as Sales Representative of 1^st and 2^nd  opposite parties functioning in Thodupuzha. Therefore, appearance of 3^rd  opposite party before this Commission is of the present Sales Representative, who is RW1. Since the then sales representative is not a party to this complaint, it was up to the complainant to summon and examine the witness to prove that Ext.P1was filled up and P1(a) was written by him as sales representative of 1^st and 2^nd opposite parties. However, he had shirked away from discharging this burden which he had undertaken. Evidence of PW1 reveals that the said Ajayan is his old student. Whatever it may be, even  otherwise, contentions that there was an agreement by which opposite parties 1 to 3 had agreed to purchase the old car of complainant for a price of Rs.1,25,000/- are not supported by the documents produced by complainant himself. The disputed endorsement, Ext.P1(a), is seen made in Ext.P1, which is only a preliminary information sheet. It is mentioned in the complaint itself that on the next day of Ext.P1, opposite parties had informed the complainant that they can purchase the old car only for Rs.1,15,000/-. This would imply that there was no specific offer as such for purchase of old car from complainant for Rs.1,25,000/- by opposite parties. Besides as per P1 car is 2005 model. It was 13 years old in 2018 when offered for sale. In this context, it would be also apposite to refer to Ext.P3, which was subsequently produced by complainant. Ext.P3 is a booklet issued by manufacturing company styled as a customer welcome docket. Ext.P3 consists of several parts like, forms, order booking check list, accessories quotation and exchange. In the exchange portion of booklet, there is a form of purchase agreement which is required to be filled only in case of Trade-in of existing car. No such agreement has been executed in this case. We also notice that Ext.P3 was subsequently produced by complainant after he was initially cross examined regarding handing over of the same to him. Ext.P3 contains counter foil of Ext.R1, which is an order booking form. During cross examination, complainant had admitted of having signed and given Ext.R1. It is specifically mentioned in the document that ‘executant understands that any verbal commitment will not be honoured’. Signature of complainant appears immediately below the said condition. We also notice that as per Ext.R1, delivery was to be effected only within a period of 2 weeks. Ext.R1 also discloses that this was only tentative waiting period. As per the terms and conditions of booking given in Ext.R1, vehicle will be delivered only in the order of receipt of customer booking, subject to payment and other formalities. Approximate delivery period given in the order booking form is only indicative. Vehicle delivery is however to be subject to availability of vehicles. In view of these conditions contained in Ext.R1, contentions advanced and evidence tendered by complainant to the effect that opposite parties had agreed to deliver the new car on 2.12.2018 cannot be believed or sustained. So also, we notice that order booking form reveals that booking date was 20.11.2018. In the complaint, pleadings are specifically addressed to the effect that 3^rd opposite party had approached complainant with an exchange scheme for purchase of his old car and sale of new car to him only on 28.11.2018. During cross examination, complainant would admit that in fact booking was done and old car was taken on 20.11.2018. Value/ price of old car is not shown in Ext.R1 and said column is left blank.

                                                                                                               

To put it shortly, the disputed endorsement in preliminary information report of old vehicle that : ‘old car purchased – 1.25 lakhs’, will not be sufficient to prove that there was in fact an agreement by opposite parties for purchase of old car of complainant for a price of Rs.1.25 lakhs. As mentioned earlier, in case of exchange, a sale agreement is to be drawn up in the format shown in Ext.P3 itself. There is no such agreement. Further to this, as mentioned earlier, the so called offer which was made on 28.11.2018 (the date was admitted to be incorrect by complainant himself) was withdrawn on the next day itself. In other words, alleged offer to purchase the old car for Rs.1,25,000/- was withdrawn on the next day itself. No agreement for sale in the format given in Ext.P3 was executed by the parties. That being so, we find that there was no agreement by opposite party for purchase of complainant’s old car for a consideration of Rs.1,25,000/-.

 

Further contentions advanced that opposite parties had promised to deliver the new car on 2.12.2018 are also without any merits and cannot be sustained in the light of Ext.R1. Even in Ext.R1what is stated is only tentative delivery period and that too is 2 weeks and not a specific date, which according to complainant is 2/12/2018. We notice from the complaint averments that complainant had blamed opposite parties for not delivering the vehicle within time as they could not effect delivery on 2.12.2018. There was no promise as such for delivery of vehicle on 2.12.2018. Delivery period was only tentative and that too of 2 weeks from the date of booking which was not over by 2.12.2018. Besides opposite parties would submit that nothing was paid in further for booking of complainant’s car as per Ext.R1. As there was no concluded agreement between the parties for purchase of old car of complainant, it was incumbent upon the complainant to pay the amount as per Ext.P3, further to the booking. This is not seen done.

 

Yet another fact which comes to our notice is that during his cross examination, complainant had admitted that after issuance of Ext.R2 lawyer notice, he had decided to purchase a Baleno car on 20.12.2018. The purchase was to be effected through RW1 who was the sales representative of opposite party No.2. Complainant further admits that he had visited the dealership of opposite parties twice in December. Ext.R2 is booking requisition form signed and given by complainant for purchase of Baleno car. This evidence of complainant of having booked new Baleno car via RW1 would indicate that after sending of lawyer notice, there was further communication between complainant and opposite parties. The terms arrived at with regard to intended sale of baleno car are not given in the complaint. These facts have been suppressed with the motive of making out that opposite parties have admitted the claim and hence not responded to lawyer notice.

                                                                                          

Complainant has claimed that old car was taken away by opposite parties. Opposite parties have denied this and contended that in fact, car was entrusted to them by complainant himself, so that it could be exhibited before prospective customers who would approach opposite parties in search of an old car. There is no agreement for sale regarding old car, which as per P3 is usually executed between dealer and customer in exchange sales. We have already observed that P1(a) is not sufficient to prove such sale. In the absence of such an agreement to show that the vehicle was purchased by opposite parties, case of complainant that vehicle was taken possession by opposite parties after they had purchased it cannot be believed. Complainant has also admitted that transaction was on 20/11/2018 and not on 28/11/2018 as stated in complaint. He has no consistent case regarding the date when vehicle was given to or rather when it was taken by opposite parties and also regarding the person who had made P1(a) endorsement. In the absence of proof regarding sale of old car to opposite parties, entrustment of vehicle by complainant to them was probably for sale to prospective customers of dealer, interested in purchasing old cars as contended by opposite parties. Complainant could have taken back the old car if it couldn’t be sold. He has no case that old car was being forcibly retained. No criminal complaint was filed by him against opposite parties on these premises. During his cross examination, complainant would say that as he had already sold the vehicle and hence it was not necessary to take it back. There is no reliable evidence to prove that old vehicle was purchased by opposite parties and that it’s possession was given to them pursuant to or as an incident of sale. What surfaces is only entrustment of vehicle to opposite parties to facilitate it’s sale to their customers who require an old vehicle. Complainant could have collected the vehicle if he wanted to retain it with him. He has not done so for the reasons best known to him. We also notice that complainant does not have a case that vehicle is being put to use by opposite parties for their purposes or otherwise. Complainant has claimed Rs.1,000/- per day to reimburse the expenses relating to daily commute from his residence to the school where he was working as teacher. Complainant has not given evidence of the distance and fare involved for such commute. And most importantly, there is no evidence to show that old car was purchased by opposite parties or that it was forcibly retained by them against the wishes of complainant. As mentioned earlier, he was free to collect his vehicle from opposite parties. Yet he did not do so. He could have sought for a direction from this Commission for production of vehicle before this Commission office and taken possession of the same upon motion. He has not done so. 

             

 

To conclude, we find that complainant has not proved that his car was agreed to be purchased or purchased by opposite parties for a price of Rs.1,25,000/-. His case that delivery of new car could not be effected within time is disproved by Ext.R1 order booking form which was admittedly signed and delivered by him. Therefore, we find that there was no necessity for opposite parties to retract from their promises for purchasing the old vehicle at Rs.1,25,000/- and to make an offer to purchase the vehicle at a reduced price of Rs.1,15,000/- as alleged in complaint. Even going by pleadings in the complaint, Indus Motors, the other concern approached by complainant had not offered to purchase the car for Rs.1,25,000/-. They had only offered Rs.1,20,000/-. That being so, we find that contentions advanced to the effect that opposite parties had as pressure tactics, deliberately offered a reduced price for the old car as they were unable to deliver the new car on the promised date are without any substance at all. There was no agreement for purchase of old car of complainant for Rs1,25,000/- or for delivery of new car on 2/12/2018. New car was to be delivered tentatively within two weeks and complainant was not prepared to wait for it’s delivery and neither did he remit any monies pursuant to booking towards price of new car. Though a new car was booked it’s sale has not materialised, due to default by complainant. Point Nos.1 to 3 are answered accordingly.

 

5. Point No.4:

 

Coming to the question of maintainability on the basis of evidence tendered in this case, we find that there was no concluded contract between parties for purchase of old car of complainant by opposite parties for a consideration of Rs.1,25,000/-. Nor was any promise given to deliver the new car on 2.12.2018. In fact, there was no purchase of old car of complainant by opposite parties or a sale of new one to him by them. That being so, contentions advanced by opposite parties that the complainant cannot be considered as a consumer of opposite parties are forcefull.  Complaint itself cannot be maintained on these premises alone.  Point No.4 is answered accordingly.

 

6. Point No.5 :

 

In the view of findings entered upon Point Nos.1 to 4, we are of the view that the complainant is not entitled for the reliefs prayed for in the  complaint. Facts and circumstances which have emerged from the evidence tendered in this case would go to show that this complaint was vexatious. Complainant had suppressed material facts and gone against documents admittedly executed by him. Therefore,  we find that opposite parties are entitled for compensatory costs  from

• 10  -

complainant, which under the circumstances, could be fairly assessed as Rs.5,000/- for each opposite party.

 

Accordingly we dismiss this complaint with compensatory cost payable by complainant to opposite parties 1 to 3 amounting Rs.5,000/- per each. In case costs are not paid within 30 days of receipt of this order, opposite parties shall be at liberty to execute this order and realise the costs from complainant in accordance with the provisions of the Act. Parties are at liberty to take back extra sets of pleadings, objections and documents produced by them in this case after expiry of appeal period.

 

 

   Pronounced by this Commission on this the  27^th  day of September, 2022

 

 

                                                                                      Sd/-

           SRI. C. SURESHKUMAR, PRESIDENT

 

                                                                 Sd/-

                  SMT. ASAMOL P., MEMBER

 

                                                                              Sd/-

      SRI. AMPADY K.S., MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Johny Philip.

On the side of the Opposite Party :

DW1        -  Afsal K.

Exhibits :

On the side of the Complainant :

Ext.P1      -  Copy of Preliminary information sheet.

Ext.P(a)   -  Preliminary information sheet with endorsement.

Ext.P2     -  copy of legal notice.

Ext.P3     -  booklet issued by the manufacturer of Maruti vehicles.

On the side of the Opposite Party :

Ext.R1     -  Copy of Order booking/commitment checklist.

Ext.R2     -  Copy of booking requisition form.

Ext.R3     -  Order booking/commitment checklist.

 

 

 

                                                                      Forwarded by Order,

 

 

 

                                                               ASSISTANT REGISTRAR