IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 05th day of June, 2020
Filed on 20. 09.2017
Present
1. Sri. Santhoshkumar Bsc. LLB(President)
2.Smt. Sholly.P.R ,LLB (Member)
In
CC/No.256/2017
Between
Complainant:- Opposite parties:-
Sri.Sudheesh.R 1. Renault Alappuzha
Kuravanthaveli NH.47, MO Ward
Cherthala South.P.O Thiruvambady Junction
Cherthala, Alappuzha Alappuzha-688001
2. Athul.M.V
Sales Executive
NH.47, MO Ward
Thiruvambady Junction
Alappuzha-688001
(Adv. Menon & Menon,P.V Thomas
Consel fo the OP 1 &2)
3. Mahindra & Mahindra
Financial Service Ltd
2nd Floor, Chandra Square
Cullan Road, Near Shriram Mandir
Mullackal, Alappuzha-688001
O R D E R
SMT. SHOLLY.P.R (MEMBER)
This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act. 1986.
The averments in the complaint in short are as follows:-
On seeing an advertisement of the opposite party, when the complainant contacted them for the details of purchasing a Renault car the opposite party
visited the residence of the complainant and entrusted to deliver the car on
5-4-2017, if they booked the same then and there. Believing the words of the opposite party on 15.3.2017 the complainant transferred an amount of Rs. 1000/- towards booking charge to the opposite party’s account. The complainant has availed a loan of Rs. 3,50,000/-(Rupees Three lakh fifty thousand only) from Mahindra Finance and on 30-3-2017 the same was also transferred by the Finance company to the account of the opposite party. Both the parties orally agreed to transfer the balance amount of the vehicle from Rs.4,76,910/-(Four lakh seventy six thousand nine hundred and ten only) on the date of delivery. There after the opposite party directly informed the complainant to remit Rs. 50,000/- towards the registration and allied process for its delivery and far that the complainant transferred an amount of Rs. 50,000/- from the account of his wife to the opposite party. But on 5.4.2017 the opposite party called the complainant and compelled to get leave from office by the complainant and the complainant reached the office of the opposite party with balance amount. But the opposite party has not delivered the said vehicle nor gave the receipt for the amount received from the complainant. The opposite party did not respond to the complainant even after elapsing two weeks and thereby the complainant sent a letter to the opposite party for cancelling the agreement for purchasing the vehicle on 17.4.2017. After intimating the Mahindra Finance for several times through telephone and informed about the filing of case for reimpersement of the amount the opposite party returned the amount after 4 months. In the above circumstances the complainant filed this complaint for getting Rs. 51000/-(Rupees Fiftyone thousand only) which received by the opposite party and for compensation of Rs.20,000/-(Rupees Twenty thousand only) for his mental agony and for Rs.5000/-(Rupees Five thousand only) as costs of the proceedings.
In response to the notice served by this Forum the opposite parties 1 and 2 filed written version jointly. 3rd Opposite party impleaded in the mean time and served notice, but called absent and set exparte.
2.The contention of the opposite party 1 and 2 in short are as follows:-
The complainant is not maintainable either in law or in facts. The complainant is not a consumer and thus the complaint is liable to be dismissed. There is no deficiency in service on the part of the opposite party 1 and 2. The complainant had booked for a Renault car on 7.2.2017 by paying Rs. 1000/-(Rupees Thousand only) the complainant had further stated that he intended to avail loan for purchase of the vehicle and that on the final approval to be granted by the concerned Finance company, he would affect payment of the balance amount, if any to be paid by him towards the price of the vehicle. The total price of the vehicle payable was Rs.4,72,072/-(Rupees Four lakh seventy two thousand and seventy two only). The complainant had on 31.3.2017 effected payment of an amount of Rs. 34,000/-(Rupees Thrityfour thousand only) and stating that the balance amount towards the price of the vehicle would be paid by the finance company from which he had availed loan for purchase of the vehicle and the finance company had transferred the amount payable by them towards the price of the vehicle on 31.3.2017. On receipt of the said amount the complainant had been requested to take delivery of his vehicle. However the complainant by letter dated. 15.4.2017 requested to cancel the booking made by him and to refund the
amount paid by him towards the price of the vehicle. Based on the request made by the complainant the amount paid by the Finance company viz. Rs.3,50,000/-(Rupees Three lakh fifty thousand only) had been refunded to them on 18.5.2017. Further a cheque dated 23.5.2017 for Rs. 35,000/-(Rupees Thirty Five thousand only) payable to the complainant had been drawn and he had been requested to come to the office of the opposite party to collect the same. However inspite of repeated reminders, the complainant, for reasons best known to him had refused to come and collect the same. Thereupon pursuant to receipt of notice in the above complaint a fresh cheque for Rs. 35,000/-(Rupees Thirty thousand only) had been handed over to the complainant before this Forum on 11.12.2017 and the complainant has duly acknowledged the receipt of the said amount. Since the opposite party had received only Rs. 35,000/-(Rupees Thirty five thousand only) from the complainant and the same had been duly refunded to the complainant the complainant is not entitled to claim refund of any additional amount as claimed in the complaint. The opposite party cannot be held liable or responsible to refund the amount alleged to have been paid by the complainant to the finance company. The complainant is not entitled to get any of the reliefs sought for in the complaint and thus the complaint is liable to be dismissed with cost of the opposite party under Sec.26 of the Consumer Protection Act. 1986 as vexatious one.
3. In the view of the above pleadings the points that arise for consideration are:-
1. Whether there is any deficiency in service on the part of the
opposite parties?
2. Whether the complainant is entitled to recover an amount of Rs.
51,000/- from the opposite parties, if so from whom?
3. Whether the complainant is entitled to get compensation from
the opposite parties?
4. Reliefs and Costs?
4. Evidence on the side of the complainant consists oral evidence of PW1 and Ext.A1 to A5. Even though the Ext.A2 to A5 are marked as subject to objection since those are produced after cross examination of the complainant, the opposite party 1 and 2 are not cross examined the complainant subsequently where they got several opportunities for the same. No oral or documentary evidence adduced by the opposite party 1 and 2.
Both sides advanced oral agreements.
5. Point No.1 to 3
For avoiding repetition of discussion of materials these 3 points are considered together. Admittedly the complainant decided to purchase a car and orally contracted with opposite party 1 and 2 for purchasing a Renault car. According to the complainant the booking date is 15.3.2017 and it is seen in the version is 7.2.2017. Even though the date of booking is different for both parties it is admitted that Rs.1000/-(Rupees Thousand only) received as booking charge by the opposite party. Besides that the opposite party 1 and 2 admitted the acceptance of Rs. 50,000/-(Fifty thousand only) while questioning the complainant in cross examination that “ \n§fpsS ssI¿n \n¶pw hm§nb 50,000/þ cq]bn 35,000/þ cq] am{Xta sdt\mÄ«v I¼\n FSp¯n«pffp F¶pw _m¡n 15,000/þ cq] temWnsâ CFw sF Bbpw s{]mkÊn§v NmcvPv Bbpw alo{µ ^n\m³knte¡v t]mbXmsW¶pw ]dbp¶p.” Then the complainant answered that “ AXv F\n¡dnbnÃ, Rm³ 2þmw {]Xnsb 50,000/þ cq] G¸n¡pIbmWv sNbvXXv”. For the question
“hn Cd§p¶Xn\v ap¼v TP¡pw Registration \pw ]Ww sImSp¡WasÃm” the complainant answered that “ FÃm¯n\pw IqSnbmWv 50,000/þ cq] hm§nbXv.
In the above circumstances itself it can be understand that the opposite party2 received Rs. 50,000/-(Fifty thousand only) from the complainant on behalf of opposite party1 for part payment of the price of he said vehicle. According to the opposite parties 1 and 2 they have accepted only Rs. 35,000/-(Thirty five thousand) from the above mentioned amount of Rs. 50,000/- and balance Rs. 15,000/-(Fifteen thousand) has been utilized by 3rd opposite party as EMI and loan processing charge. But there is no evidence shown before us to accept the above contention of the opposite party and they have not disproved the deposition regarding the payment of Rs. 50,000/-(Fifty thousand) to the opposite party. More over on perusal of Ext.A2 to A5 it is evident that the complainant has sufficient money for paying balance amount of the price of the car when he came to the office of the opposite parties for effecting delivery of the said car. Hence we are of the opinion that the opposite party 1 and 2 committed deficiency in service on their part for delivery of the vehicle booked by the complainant in time. Since the opposite party has returned an amount of Rs. 35,000/- to the complainant they are liable to return the balance amount of Rs. 16,000/-(Sixteen thousand) with interest at the rate of 12% per annum to the complainant from the date of the
complaint till realization and liable to pay compensation and cost of the proceedings.
6. Point. No. 4
In the result the opposite party 1 and 2 are directed to pay Rs. 16,000/-(Sixteen thousand) to the complainant with interest @ 12% per annum from the date of complaint till realization and pay Rs. 2000/-(Two thousand only) towards compensation and also directed to pay Rs. 1000/-(One thousand only) towards costs of the proceedings . The order shall be complied within 30 days from the date of the receipt of the copy of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Forum on this the 05th day of June, 2020.
Sd/-Smt. P.R.Sholly (Member)
Sd/-Sri. S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Sudheesh .R(witness)
Ext.A1 - Statement of Account dtd.26/2/2018.
Ext.A2(Subject to Objection) - Gold Loan Specific Details Report.
Ext.A3(Subject to Objection) - Payment Voucher dtd.01.04.2017.
Ext.A4(Subject to Objection) - Payment Voucher dtd. 03.04. 2017.
Ext.A5(Subject to Objection) - Payment Voucher dtd. 04.04.2017.
Evidence of the opposite parties:-Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
