IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 11th day of December 2009 CC.59/2007 & 60/2007 CC.59/2007 V.Rajan, Truck Operator, Mundiyath House, P.O.Ayithara Mambaram. Complainant (Rep. by Adv.N.Premarajan) Sakthi Automobiles, 23/398, Meenchanda, Calicut Arts & Science College P.O., Opposite party Kozhikode 18. Rep. by its Branch office at Thana, Kannur (Rep. by Adv.P.Rajeev) CC/60/2007 K.Surendran, Truck Operator, Vismaya Nivas, P.O.Ayithara Mambaram. Complainant (Rep. by Adv.N.Premarajan) Sakthi Automobiles, 23/398, Meenchanda, Calicut Arts & Science College P.O., Opposite party Kozhikode 18. Rep. by its Branch office at Thana, Kannur (Rep. by Adv.P.Rajeev) Sri.K.Gopalan,President O R D E R As the subject matter and opposite party is one and the same the above two complaints have taken up for consideration together for the sake of convenience. CC/59/2007 This is a complaint filed under section12 of consumer protection act for getting an order for recovering Rs.53679/- with interest @18% from the date of complaint till realization. The case of the complainant in brief is as follows: The complainant is earning his livelihood by driving and operating goods carrier Truck. The complainant had purchased Tata LPG 1613/42 truck from the opposite party with the financial assistance of Sundaram Finance Ltd. Thalassery. at the time of initial negotiation for purchase the complainants was told to arrange loan for the ex-showroom price after discount in prevalence on the date of booking of the vehicle. During the beginning of August the ex-showroom price of the said vehicle was Rs.8,16,551 and after a discount of Rs.31,551/- the complainant was required to pay only Rs.7,85,000/- with the Sundaram Finance Ltd., Thalassery branch . Further on obtaining a DD for the said amount from the financier he got it remitted to the opposite party on 5.8.06 itself. After appropriating the loan amount and effecting a temporary registration of the vehicle the opposite party delivered the vehicle to the complaint on 7.8.06 at their Kannur branch. By that time the price of the vehicle had become reduced to Rs.7, 49,999/-. So complainant was required to pay only Rs.7, 49,999/- at the time of delivery. Hence he claimed the refund of the excess amount of Rs.35001/- from the opposite party. They had also agreed to refund the same to the complainant per Demand draft directly drawn to the loan account with the financier. But opposite party did not refund the amount. Lawyer notice send on 16.1.07 but they have not even replied the same.. It is deliberate and willful which amounts to deficiency in service that caused a loss of Rs.35,001/- as excess price and Rs.3,675/- by way of the interest @ 18% thereon from 5.8.06 to 4.3.07 and general damage to the tune of Rs.10,000/- on account of mental agony and Rs.5000/- as cost of this proceedings. The contentions of opposite party in brief are as follows: The complainant had purchased TATA LP71613/42 vehicle from the branch of the Opposite party. They are the authorized dealers of the vehicle manufactured byTATA MOTORS. It is purchased with the financial assistance of M/s.Sundaram Finance Ltd., Complainant was given a discount of Rs.31.551 and he had paid only a sum of Rs.7.85,000/-that is the value after discount offered. It is not correct that the cost of the vehicle is only7, 49,999/-. The vehicle invoiced to the complainant on 5.8.06 and the actual price was Rs.8, 16,551/-. The lawyer notice sent by the complainant was replied properly. Opposite party did not agree to refund any amount. He is not entitled to get refunded any amount. The delivery order clearly pointed out that the price of the vehicle was Rs.8, 16,551/-. The vehicle was then invoiced and kept ready for delivery on 5.8.06. But he took delivery of the vehicle only on 7.8.2006. On 7.8.2006 there was a special offer from the manufacturer of the vehicle offering the vehicle for Rs.7, 49,999/- after discount. This was not applicable to the complainant since the sale proceedings were completed by them and invoiced to him on 5.8.06. Moreover the quotation cum proforma invoice issued by the opposite partly also showed the price as Rs.8, 16,551/- since it is already agreed to purchase for that price complainant cannot utilize the subsequent scheme. What was offered by the manufacturer was only the price of the particular model of vehicle at ex-New Delhi. The advertisement clearly says “Delhi.ex-showroom price”. The vehicle was invoiced on 5.8.06 prior to the so-called offer from the manufacture on7.8.06. The vehicle which was ready for delivery on 5.8.06 was taken delivery of by the complainant on 7.8.06. It was offered for Rs.8, 16,551/- and the same was accepted by the complainant. Hence the complainant is not entitled for any relief. On the above pleadings the following issues have been raised for consideration. 1. Whether there is any deficiency in service on the part of the opposite party? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral testimony of complainant as PW1 and ext.A1 to A15 on the side of complainant and oral testimony of opposite party as DW1 and Ext.B1. The evidence of DW1 has been taken as common in both CC.59/07 and 60/07. CC.60/2007 This is a complaint filed under section12 of consumer protection Act for getting an order for recovering Rs.53, 676/- with interest @ 18% from the date of complaint till realization. The facts of the case are same as that of CC.59/07. So we are not repeating the whole story. The complainant Surendran also purchased TATA LP71613/42 truck. The opposite party delivered vehicle on 7.8.06 at their Kannur Branch. By that time price reduced from Rs.7, 85,000/- to Rs.7, 49,999/-. He also claimed the refund of the excess amount Rs.35, 000/-. The opposite party filed version but reiterated the same contentions raised in the version of CC.59/2007 On the above pleadings the following issues have been raised for consideration. 1. Whether there is any deficiency in service on the part of the opposite party? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral testimony of complainant as PW1 and Ext.A1 to A8 on the side of complainant. The evidence adduced by opposite party in CC.59/07 as DW1 adapted to this complaint. Issue Nos.1 to 3 in OP.Nos.CC.59/07 and 60/07 The 1st issue in the above both complaints have been taken up together for consideration for the sake of convenience and to avoid repetition of discussion of evidence in the complaints. Both the complainants have the same grievances. It is an admitted fact that both the complainants purchased TATA LPG.1617/42 Truck from the opposite party with the financial assistance of Sundaram Finance Ltd, Thalassery. The case of the complainants is thus: The complainants were required to pay a sum of Rs.7, 85,000/- each after a discount of Rs.31, 551/-. It was represented further that the actual price to be paid by the complainants are the price prevailing at the time of delivery. On 5.8.06 the money was remitted. The opposite party delivered the vehicle to the complainants on 7.8.06 at their Kannur branch. By the time the price of the vehicle came down to Rs.7, 49,999/-. So the price of the vehicle on the delivery date is only Rs.7, 49,999/-. Thus complainants are entitled to get the excess amount be refunded. The case of the opposite party on the other hand is that the vehicles invoiced to the complainants on 5.8.06 and the actual price on the day was Rs.8,16,551/-. The vehicle was kept ready for delivery on 5.8.06. But complainants took delivery of the vehicles only on 7.8.06. On 7.8.06 and there was a special offer of the vehicle for Rs.7, 49,999/- after discount. Opposite parties definite case is that since the sale proceedings were completed and vehicles were invoiced on 5.8.06 the complainants are not entitled for the said special offer of the manufacturer. Another contention is that what was offered by the manufacturer was only the price of the particular model of vehicle at ex-New Delhi, ie. advertisement says” Delhi ex-show room price’. It reveals from the facts given above that the first question to be decided is whether complainants are entitled for the offer on 7.8.06, the delivery date of the vehicle or liable to pay the price prevailed on the date of invoicing the vehicle. Ex.tA10 is the tax invoice. This is dt.5.8.09. What is deposed by DW1 in cross examination is thus: Tax invoice tImgnt¡mSp \n¶pX¿mdm¡nbXmWv. Rm³ Cu tIm¸n ssIImcyT sNbvXn«nÃ. Ex.tA10 X¿mdm¡nbXpBcmsW¶dnbnÃ. F\n¡v Ft¸mgmWp Ab¨p In«nbsX¶dnbnÃ. CXptImgnt¡m«p\n¶p X¿mdm¡pTt]mÄ hml\T I®qcnemWv. The evidence of DW1 makes it clear that the tax invoice was prepared not in the presence of complainants and the delivery had not been effected on 5.8.06. It can be seen that the necessary requirements essential to make the goods in deliverable state, had not been completed by the opposite party on 5.8.06. In cross examination he has deposed that “delivery sN¿pTt]mÄ hml\¯n\p Temporary registration AS¡WT . Tax, insurance F¶nh AS¡WT. Cu paper sImSp¯mse temporary registration In«pIbpffp . Temporary registration FSpXvXmse hml\T delivery sN¿m³ ]äp. Ext.A6 & 7(CC.59/07) proves that the vehicles had been temporarily registered only on 7.8.06. DW1 deposed in cross examination that hnÂ]\ ]qÀ¯nbmhp¶Xp delivery tbmSp IqSnbmWv. 7.8.06 \mWv hn hnÂ]\ ]qÀ¯nbmbXp . Delivery hsc hml\T garage  \n¶p]pds¯Sp¯n«nÃ. 5\pT 6\pT hml\T KmtcPnemWv . . . . Delivery note delivery sN¿pTt]mtg sImSp¡pIbpffp . Version, affidavit F¶nhbn delivery 5.8.06\p F¶p {]kvXmhn¨Xp icnbÃ. . Tax invoice 7.8.06 \p am{XamWv customer¡v ssIamdnbXp . RC collect sNbvXXpT Insurance collects sNbvXXpT 7.8.06 \mWv.. From the evidence of DW1 itself it is quite clear that the vehicle was delivered only on 7.8.06 on completion of the necessary requirements essential to make the goods in deliverable state. As per terms and conditions Ext.A10 the buyers will have to pay prices prevailing at the time of delivery. Clause 1 of Ext.A10 reads that “1.Above prices are current ex-showroom prices. Buyers will have to pay the prices prevailing at the time of delivery’. It is therefore undoubtedly clear that the complainants are entitled to enjoy the price benefit of the scheme existed on 7.8.06. Now arose the question what is the benefit that is available on 7.8.06. Ext.A3 advertisement dated 7th day of August 2006 makes the offer thus Smä FÂ]nSn 1613 Ct¸mÄ cq.7,49,999 am{XT \nÝnXIme Hm^À Ct¸mÄ ¯s¶ \n§fpsS Smäm tamt«mÀ Uoedpambn _Ôs¸SpI. |
It is crystal clear that as per the offer of the manufacturer the price of the vehicle on 7.8.06 was Rs.7,94,999/- what has been deposed by DW1 in his cross examination is also relevant to this aspect. He has deposed that “Tax invoice issue sNbvXmepT delivery date sshImT. AXn\nSbn FIvsskkvUyq«nbnepmIp¶ hyXnbm\T XpS§n]e ImcW§ÄsImp hnbpsS hnebn hyXymkapmIpT. He has also deposed that “Delivery kab¯pff ]WamWv sImSpt¡Xp F¶p H¶mT Ivtfmkmbn Ext.A10  ]dªn«ps¦n icnbmWv. Ext.A3 ]ckyT manufacturer issue sNbvXXmWv. AXp C³Uy apgph³ _m[IamWv. Ext.A3 ]cky¯nse hyhØ {]m_ey¯n h¶Xp 7.8.06 \mWv. AXp {]m_ey¯n hcp¶tXmSpIqSn A¶phsc C³Uybnepmbncp¶ price list  IpdhphcpT . Manufacturer fix sN¿p¶XmWv bYmÀ°hne AXp arbitrary Bbn hyXymks¸Sp¯m³ dealer ¡v A[nImcanà . Hence it is quite evident that the price shown at Ext.A3 had been in force on 7.8.06, the day of delivery of vehicle. Ext.A1 in OP.59/07 and in 60/07 shows that complainants paid Rs.7, 85,000/- each instead of Rs.7, 49,999/-. That is an amount of Rs.35001/- charged from the complainants over and above the actual price that they have liable to be paid. So0 opposite party is liable to refund the said amount Rs.35001/- to each complainants. In the light of the above discussion and on perusal of the entire documents produced we have no hesitation to hold that the non return of the amount that has been charged over and above the then prevailing price, as a result of special offer of manufacturer is an unfair trade practice and a deficiency in service on the part of the opposite party. Hence there is no doubt that the opposite party is liable to refund Rs.35, 001/- to each complainants. The complainants are also entitled to get an interest @10% together with a compensation of Rs.5000/- each from the date of complaint to the realization of the amount and a sum of Rs.500/- each as to the cost of these proceedings. The issues 1 to 3 thus found in favour of complainants in CC.59/07 and CC.60/07 and passed orders accordingly. In the result, OP.59/2007 is allowed directing the opposite party to refund Rs.35001/-(Rupees thirty five thousand and one only) with an interest @10%p.a from the date of complaint ie.9.3.2007 till the realization of the amount. The opposite party is also directed to pay a sum of Rs.5000/-(Rupees Five Thousand only) as compensation together with an amount of Rs.500/-(Rupees Five hundred only) as cost of this proceedings. The opposite party is liable to pay these amounts to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order against the opposite party as per the provisions of consumer protection Act. In the result, OP.60/2007 is allowed directing the opposite party to refund Rs.35001/-(Rupees thirty five thousand and one only) with an interest @10%p.a from the date of complaint ie.9.3.2007 till the realization of the amount. The opposite party is also directed to pay a sum of Rs.5000/-(Rupees Five Thousand only) as compensation together with an amount of Rs.500/-(Rupees Five hundred only) as cost of this proceedings. The opposite party is liable to pay these amounts to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order against the opposite party as per the provisions of consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant in OP 59/07 A1& A2.Copy of the letter sent by Sundaram finance to OP A3.Paper advertisement A4.Certificate cum policy schedule issued by Oriental Insurance co. A5. copy of Certificate cum policy schedule issued by Oriental Insurance co. A6. & 7.Copy of the truck registration certificate A8 & 9.Copy of the RC of complainants in 2 Ops. A10. & 11. Tax invoice issued by Sakthi automobiles A12.Copy of the letter dt.30.10.06sent by Sundaram finance to OP A13.Copy of the lawyer notice sent to OP A14.Postal AD Exhibits for the opposite party B1.Copy of the reply notice sent to complainant B2.Postal AD Exhibits for the complainant in OP60/07 A1Copy of the loan sanctioning letter. A2.copy of the Manorama daily A3.copy of the insurance cover note A4.Copy of temporary RC A5.Copy of tax invoice A6.Copy of RC A7 & A8.Copy of lawyer notice and postal AD Witness examined for the complainant PW1.Surendran PW2.Rajan Witness examined for the opposite party DW1.C.H.,Preman /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
......................GOPALAN.K
......................JESSY.M.D
......................PREETHAKUMARI.K.P | | 
