IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 20th day of April 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No. 100/2022 (Filed on 09.05.2022)
Complainant : Smt.Udaya Devi N.S,
Kulangara Illom, Vanat Road
Nalukodi P.O, Paippadu Village
Changanassery Taluk,
Kottayam Dist
Vs
Opposite parties :1. Sai Service Pvt Ltd
MC Road, Near BPCL Pump
Chengannoor P.O, Alappuzha
Kerala-689121
2. Maruti Suzuki India Ltd
1, Nelson Mandela Road
Vasant Kunj, New Delhi-110070
(By Adv.Anto Thomas Adipuzha)
O R D E R
Smt.Bindhu.R, Member
The complaint is filed under section 35 of the Consumer Protection Act 2019.
The complainant booked a Maruti Spresso VXI +AGS from the 1st opposite party by exchanging her 2014 model Hyundai Xcent car and they took possession of the car on the same day for an agreed price of Rs.3,20,000/-. The on road price of the new car was Rs.6,02,270/-. Even after 4 to 8 weeks, the opposite parties did not deliver the car and they said that it would take 2 more months to effect the delivery of the new car. So as a vehicle was very urgent for the complainant as her husband was undergoing treatment for heart ailment, she purchased another model of the same manufacturer, the 2nd opposite party from another authorised dealer. But the opposite parties were not ready to give the discounts as offered by them at the time of booking the 1st car. Due to the delay in delivery made by the opposite parties, the complainant had to spend more amount as the price of the 2nd car and she lost the discount offers amounting Rs.47,000/-. This is a clear deficiency of service from the opposite parties and hence the complaint is filed for payment of Rs.47,000/- and compensation for mental agony and hardships.
On receipt of notice the opposite parties appeared and filed version.
The 1st opposite party has denied all the allegations in the complaint except the booking of the S presso car by the complainant. The complainant sold the old Hyundai Xcent car bearing registration no KL 66-1873 to true value for Rs.3,20,000/- on 22.10.2021. Out of the sale proceeds, Rs.1,42,000/- was paid to clear the outstanding due towards the hypothecating agency as to effect the hypothecation cancellation. The 1st opposite party paid this amount, and kept Rs.10,000/- as advance amount for the new Maruti S presso VXI + AGS silky silver coloured car booking on 27.10.2021 and the balance amount of Rs.1,54,500/- was refunded to the account of the complainant on 05.11.2021 as per the written request of the complainant. All the allegations regarding the repeated requests made by the complainant and no updation from the opposite parties etc. are denied. The opposite party further contended that the normal waiting period for the new S-presso vehicle was 6 to 8 weeks and it was informed to the complainant at the time of booking. On 11.11.2021 the complainant requested to change the booking to Cellario model car and again on 15.11.21 she again wanted to change to S-Press due to financial reasons. But at that time the S presso cars were not available and hence later the complainant purchased a Maruti Cellario car from another dealer and thereafter demanded to return the balance amount to her account vide a letter dated 03.11.2021. On 28.12.21 the complainant cancelled the booking and the opposite party refunded the booking amount to the complainant on the same day. The opposite party further contended that the complainant cannot claim for the exclusive offer given to the S Presso car for the Cellario car that too purchased from another dealer. The offer cannot be transferred. The complainant has approached the Commission by suppressing all these facts. Hence the complaint is liable to be dismissed.
The 2nd opposite party in its version contended that it has no privity of contract between the complainant and the 2nd opposite party. The relation of the 2nd opposite party and the 1st opposite party is only on principal to principal basis. The complainant is not a consumer of the 2nd opposite party and the 2nd opposite party has not received any payment or there is no agreement between them for the sale of any goods. So the complaint is not maintainable. There is no deficiency of service or unfair trade practice on the part of the 2nd opposite party.
The complainant and both the opposite parties tendered affidavit evidence. Exhibits A1 to A6 were marked from the side of the complainant and Exhibits B1 to B10 from the part of the opposite parties.
On evaluation of the pleadings and evidence, the issues to be answered are whether there is any deficiency of service on the part of the opposite party and if so what are the reliefs entitled by the complainant?
- In answer to these issues when we look into the pleading of the complainant, the allegation is that the opposite parties after taking booking of the vehicle S-Presso VXI + AGS Silky Silver Car by the complainant on 22/10/2021 did not deliver the car within the promised 45 days, so she had to cancel the booking and purchased another car Cellario ZXI + AGS from another dealer of the 2nd opposite party. At the time of booking of the 1st car, the opposite parties offered some discounts amounting to Rs.50,000/- but at the time of booking the Cellario car, they did not gave the said discounts. According to the complainant the opposite parties are bound to give the discounts as offered.
- The contention of the 1st opposite party is that they had informed the complainant that the S Presso car was not in stock and whenever they get sufficient stock, they would deliver the requested vehicle. The complainant claims that she was promised to give the booked car within 45 days whereas the 1st opposite party affirm that they did not give any such assurance and the said vehicle would be ready for delivery only in 4 to 6 weeks.
- The complainant has produced Exhibit A1 to A3 documents which are copy of the Order booking and commitment check list and preliminary information sheet issued by the 1st opposite party in which the conditions for delivery is stipulated as the delivery will be subject to the availability of the vehicle and price and customer offers are current. “Vehicle will be delivered strictly in the order of receipt of customer booking subject to payment and other formalities. Approximate delivery period given on the order booking form is only indicative, vehicle delivery however be subject to availability of vehicles. Price and consumer offer quoted above are current. Price and consumer offer on the date of invoicing will be applicable”. Exhibits A2 and A3 documents are signed by the complainant which shows that she booked the S Presso car fully understanding the terms and conditions of delivery and offers.
- Exhibit A4 is the reply given to the complainant by the territory sales manager of the 2nd opposite party to her demand of the discount offers and exchange offer on the subsequent purchase of Cellario Car. In A4, it is shown that the offers which were valid in the month of booking of the 1st car was not in existence at the time of the booking of the Cellario car and so they were unable to give discounts as per the said offers on the purchase of the Cellario car.
- The complainant’s allegation is that he was eligible to get the discounts offered by the 2nd opposite party at the time of purchasing the Cellario as it was also purchased from an authorised dealer of the 2nd opposite party .The complainant has not produced any cogent evidence to prove that the 2nd opposite party has given such discount offers either by way advertisements or in their website. Exhibit A6 is a printout in which the October 21 car discounts of the 2nd opposite party is narrated but the complainant purchased the Cellario car only in January22.Moreover, Exhibit A6 is not admissible in evidence as it lacks proper authentication.
- We find that after booking the vehicle on 22.10.2021 as per Exhibit B1 and A2, the complainant waited for two months until 30.12.2021 when she cancelled the booking for non delivery of the vehicle by the opposite parties. In B1, issued by the 1st opposite party the tentative delivery period is shown as 6 to 8 weeks. In Exhibit A1 which is the copy of the order booking commitment checklist, the delivery date shown is 11.11.2021. In B6, after paying the exchange price of the old vehicle of the complainant to her, the 1st opposite party retained Rs.10,000/- with them and the delivery date is changed to 3rd No.21. Thereafter even after the elapse of 60 days, ie.15 weeks the 1st opposite party did not deliver the car. Only because of this non delivery, the complainant has to lose the corporate offer and exchange bonus and the complainant had to approach another dealer and take another vehicle. So the non delivery of the car on time by the 1st opposite party is found to be deficiency in service. This has caused great mental agony and hardships to the complainant as she had already sold out her car and the new car was not delivered within the expected time limit.
- The deficiency is clearly on the part of the 1st opposite party and the 2nd opposite party being the manufacturer cannot be held liable for the deficient act of the 1st opposite party. It is the 1st opposite party who should ensure the availability of the booked cars by its customers. The manufacturer cannot be held liable for the deficient act committed by its dealer in such cases. Ref. Tata Motors Ltd. Vs Antonio Paulo Vaz, 2021 Supreme Court.
In the light of above discussion we find that the deficiency of service on the part of the 1st opposite party and we allow the complaint vide the following order.
The 1st opposite party is directed to give Rs. 20,000/- to the complainant as compensation for her mental agony and Rs.1,000/- towards litigation cost. Order shall be complied within 30 days from the date of receipt of the copy of this order, failing which the compensation amount will carry 9% interest till the date of realization.
Pronounced in the Open Commission on this the 20th day of April, 2023.
Smt.Bindhu.R, Member sd/-
Sri.Manulal.V.S, President sd/-
Sri. K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant.
A1- Copy of the order booking / commitment checklist dated 27.10.2021.
A2- Carbon copy of the order booking/commitment checklist dated 22.10.2021.
A3- Original copy of the preliminary information sheet issued by Sai Service Private Ltd.
A4- Copy of the E-mail to A5- Copy of the settlement memo of Maruti Cellario dated 10.01.2022.
A6- October 2021 car discounts details available on Maruti Suzuki cars.
Exhibits marked from the side of opposite parties
B1- Copy of the order booking/ commitment checklist dated 22.10.2021.
B2- Copy of the purchase agreement dated 22.10.2021.
B3- Copy of the delivery receipt dated 22.10.2021.
B4- Copy of the sale receipt dated 22.10.2021.
B5- Copy of the letter to the Manager, Sai Maruti Showroom dated 03.11.2021.
B6- Copy of the statement of account of Sai Service Private Limited.
B7- Copy of the booking cancelation format of Sai Service Private Ltd.
B8- Copy of the payment advice dated 03.01.2022.
B9- Copy of the letter from TVS Credit Services Limited.
B10- Copy of the Dealership agreement.
By order
Sd/-
Assistant Registrar
