DOF. 23 / 3 /2005

                                                            DOO. 24/6/2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the 24^th day of  June       2010

C.C.No.78/2005

Ulahannan,

Perumbanikkal House,

P.O.Kottiyoor                                                              Complainant

(Rep. by Adv.K.C.Santhoshkumar)

1. Sales Manger,

   Sakthi Automobiles

   Near Training School,

   Thana, Kannur 2.                                           Opposite parties

2. Manager,

   Sakthi Automobiles,

   Meernchanda,

   Kozhikode 18.                                                      Opposite Party

 (Rep. by Adv.P.Rajeev, Calicut)

O R D E R

Smt.K.P.Preethakumari, Member

                     This is a complaint filed under section 12 of consumer protection act for an order directing the opposite partiers to pay Rs.90, 000/- towards financial loss and compensation to the complainant.

            The case of the complainant is that he had approached the 1^st opposite party as per the direction of TATA Finance in September 2004 to purchase a TATA Tipper case and chassis. The total price of the vehicle is Rs.7, 15,118/- and arranged a loan of Rs.6, 50,000/-from the TATA finance and the rest of the amount i.e. Rs.1, 45,118/- has to be paid by the complainant to 1^st opposite party. The complainant has paid Rs.1, 00,000/- on 18.12.04 and the 1t opposite party represented that they will inform the complainant the date for paying rs.45, 118/- and promised that the vehicle will deliver the next day of its payment. The complainant had demanded for a vehicle without power steering and the vehicle without power steering should have been registered on or before 31.12.04 and the 1^st opposite arty admitted to deliver the vehicle before 31.12.04. On 26.12.04 the 1^st opposite party contacted the complainant and demanded him to pay the balance amount on 27.12.04 and promised that the vehicle will be delivered on 28.12.04. The complainant had paid the amount and he approached the 1^st opposite party for delivery of the vehicle. But on that day the vehicle was not ready for delivery and the 1^st opposite party failed to deliver the vehicle on or before 31.12.04. The cost of the vehicle was increased on the very next year and he was directed to pay the increased amount with respect to that vehicle. So the complainant had issued a lawyer notice to deliver the vehicle for the price admitted by the 1^st opposite party. But they informed the complainant that they were not in a position to deliver the vehicle for the price as on 2004 and represented that the matter can be brought into the notice of Regional office. So the complainant had given consent to take delivery and hence the delivery was taken by the complainant after giving Rs.34, 882/-. This was happened only due to the negligent and deficient service of opposite party and hence he had suffered great financial loss also. Hence the complaint.

            Upon receiving the complaint notice was issued to the opposite parties both opposite parties appeared and filed their version.

            The opposite parties filed version contending that the complaint is not maintainable before this Forum since the vehicle was purchased for commercial purpose and hence the complainant is not a consumer. The opposite parties admit that the complainant had given a vehicle purchase application to 1^st opposite party as directed by TATA finance. But the opposite parties are not aware about the terms and conditions in the agreement that complainant had executed with the financer. They further admits that the complaint had paid Rs.1, 00,000/- on 18.12.04 and had been asked to pay the balance amount immediately to effect booking. The complainant was told that the entire cost of the vehicle had to be paid before a booking was affected. They further denies the allegations that the complainant had met on 26.12.04 and that the promise was also made that the vehicle would be delivered the next day etc. The complainant has not approached the opposite arty to take delivery on 27.12.04.

            The complainant had approached the 1^st opposite party in September 04 and on 23.9.04 proforma invoice had been issued to him. The complainant later came on 18.12.04 and booked the vehicle and a vehicle purchase application was also executed by him and an amount of Rs.1, 00,000/- was paid by him on that day. On 23.12.04 a demand draft was given by the complainant for an amount of Rs.6, 50,000/- which was paid by TATA Finance Ltd. And the balance amount of Rs.45, 118/- was paid by the complaint only on 27.12.04 and the booking had finally came into effect on the date. As per the vehicle purchase application executed by the complainant, the cost of the vehicle prevailing on the date of actual delivery had to be paid by him. The complainant was aware that he had to pay the actual cost of vehicle on the date that took delivery of the vehicle and he had agreed to pay the price prevailing on the date of delivery. The cost of the vehicle increased with effect from 3.1.05 and the cost of the vehicle had gone up by Rs.42, 394/- and he was given reduction of Rs.7512/- and was asked to pay the balance of Rs.34882/- and the complaint instead of taking delivery had issued a lawyer notice and there after the complainant came to 1^st opposite party and was told that he could take back the amount that he had paid, if he was not ready to take delivery of the vehicle. But he wanted the vehicle and gave a letter to the 1^st opposite party agreeing to take delivery of the vehicle, promised to withdraw from the proceeding and he paid the balance amount and took delivery of the vehicle. So the complaint has no merit and hence the complaint is liable to be dismissed.

            On the above pleadings the following issues were raised for consideration.

1.      Whether the complainant is a consumer?

2.       Whether there is any deficiency on the part of opposite parties?

3.      Whether the complainant is entitled to any relief?

4.      Relief and cost.

                        The evidence in this case consists of the oral testimony of PW1, PW2 and DW1 and Exts.A1 to A6 and B1 and B2 with objection.

Issue Nos.1 to 4

            The complainant’s case is that even though he had paid full amount for a TAT SK.1613/36 vehicle during 2004, the opposite parties had extracted an amount of rs.34882/- more by saying that the price of the vehicle was increased in the year 2005, since they had delivered the vehicle on 18.1.05. But he has paid the entire amount during 2004 itself and hence the opposite parties were bound to deliver the vehicle for the price during 2004 i.e. Rs.7, 95,118/-. In order to prove his case he had produced documents. Such as Ext.A1, Proforma invoice, dt.23.9.04, A2 payment schedule, A3 invoice cum delivery receipt dt.31.1.05, A4 receipt dt.18.12.04, A5 receipt dt.27.12.04 and A6 copy of lawyer notice and examined PW1 and PW2. In order to disprove the case the opposite arty also produced Exts.B1 and B2 which are marked with objection and also examined the witness  DW1.

            The opposite parties contended that the complainant is not a consumer since the vehicle is used for commercial purpose and hence the forum has no jurisdiction to try the case. The complaint deposed before the Forum that “Rm³ Idm-d-Sn-Øm-\-¯n ]qgn,- sa-ä F¶n-h-\ÂIp¶ ]Wn-bm-Wv. 2 Poh-\-¡m-cp-­v.-H-¶p-a-I-\pT H¶p- Rm-\p-am-Wv. F\n-¡vsse-k³kv-D-­v.From this it is seen that he is using the vehicle for transportation of constructing materials like sand and metal. In Anilkumar Gupta vs. Managing Director, Turning Point computer Education Centre P Ltd. Which was reported in 2003(2) CPJ 128 – it was held that commercial purpose is a specific term which is being used for the business and earning profits on large scale. But in this case the complainant deposed that the complainant and his son are acting as drivers in the tipper and hence it is seen that the complainant have been using the tipper for his earnings and the opposite parties have not produced any contra evidence. Sowe hold that the complainant is a consumer and hence the Forum has ample jurisdiction to try the case.

            The opposite party further contended that since the complainant has taken possession of the vehicle during January 2005, he is bound to give the price of the vehicle as on January 2005. The Ext.B1 proforma invoice dt.23.9.04shos that during 2004 the value of the vehicle is Rs.7, 95,118/-. The Ext.A4 receipt dt.18/12/04 and A5 dt.27.12.04 shows that the complainant has paid Rs.1, 45,118/- during the month of December 2004 itself.  The opposite parties also admits that the complainant had given a demand  draft for Rs.6,50,000/- paid by TATA Finance to the opposite parties and the final payment was made by the complainant on 27.12.04. In short the opposite parties themselves admit that the entire amount as per Ext.A1 dt.23.9.04 was paid by the complaint on 27.12.04. Even though the complainant had paid entire purchase price to the opposite parties they have delivered the vehicle only during 2005. So the delay is on the part of opposite parties in delivering the vehicle. More over as per Ext.B2 clause 5, stated that tcJm-aq-eT \nÝnX t^md-¯n At]£ kzo-I-cn¨p Ign-ªm am{Xta HmÀUÀ \ne-hn hcn-I-bp-ffq and the Ext.B2 is the vehicle purchase application dt.18.12.04 in writing i.e. According to opposite party himself, they have received order on 18.12.04 for the amount as per Ext.A1 i.e. 795118/-. So we are of the opinion that the opposite parties are bound to deliver the vehicle to the complainant as per the price during 2004 and hence there is deficiency and unfair trade practice on the part of opposite parties. So the opposite parties are liable to refund the excess amount received by the complainant. So the opposite parties are liable to refund Rs.34882/- to the complaint with Rs.5000/- as compensation and Rs.500/- as cost of the proceedings and the complaint is entitled to receive the same and order passed accordingly.

            In the result, the complaint is allowed directing the opposite parties to pay

 Rs.34, 882/- (Rupees Thirty Four Thousand Eight hundred and eighty two only) as excess amount received from the complainant with Rs.5000/-(Rupees Five thousand only) as compensation and Rs.500/- (Rupees Five hundred only) as cost 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 as per the provisions of consumer protection Act.

                                         Sd/-                                       Sd/-                   Sd/-

President                      Member           Member

APPENDIX

Exhibits for the complainant

Ext.A1, Proforma invoice, dt.23.9.04,

A2 payment schedule,

A3 invoice cum delivery receipt dt.31.1.05,

A4 receipt dt.18.12.04,

A5 receipt dt.27.12.04

A6 copy of lawyer notice

Exhibits for opposite parties

B1.Letter dt.10.2.05 sent by complainant

B2.Vehicle purchase application submitted by complainant

Witness examined for the complainant

PW1.Complainant

PW2.Ulahannan

Witness examined for the opposite arty

DW1. Joseph Thomas

                                                            /forwarded by order/

                                                            Senior Superintendent

Consumer Disputes  Redressal Froum, Kannur.