IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 24th day of January, 2024
Filed on: 14.08.2023
Present
- Smt. P.R.Sholy, B.A.L, LLB (President in Charge )
- Smt. C.K.Lekhamma . B.A. LLB (Member)
In
CC/No.228/2023
between
Complainant:- | Opposite Parties:- |
Merin Mathew 1. Showroom Manager
Kandathil Veedu Thumpoly Ather,
Avalookkunnu.P.O Alappuzha-688008
Alappuzha-688006
2. EVM Motors & Vehicles Pvt. Ltd
Ather KTM, Cresent Plaza
Cement Kavala, SH.1 Nattakam.P.O
Kottayam.
Repd by its Authorized Signatory
(Adv. Maneesha.R for Ops 1 &2)
O R D E R
SMT. SHOLY.P.R (PRESIDENT IN CHARGE)
Complaint filed u/s 35 of the Consumer Protection Act, 2019.
1. Complainant’s case briefly stated is as follows:-
On 30/6/2023, the complainant had booked a vehicle from the opposite party on payment of Rs. 25,000/-. But the complainant was constrained to cancel the said booking since the opposite party demanded more amount as booking charge. Though the opposite party informed to refund the advance amount received from the complainant, it was not complied by the opposite party till date and evaded from the repayment saying lame excuses. Alleging deficiency in service from the part of opposite party, this complaint filed for recovering the advance amount received by the opposite party along with the compensation and cost.
2. In reply to the complaint the opposite parties 1 and 2 filed version as follows:-
The complaint is not maintainable either in law or on facts. Complainant is not a consumer as per the Consumer Protection Act since the complainant never purchased any goods from the opposite parties or availed any service for any consideration. There is no deficiency in service or unfair trade practice from the side of opposite parties. The complaint is on an experimental basis. The allegations in the complaint are false and vexatious and no cause of action arose against the opposite parties. Hence the complaint is liable to be dismissed.
3. On the above pleadings the points raised for consideration are:-
1. Whether there is any deficiency in service on the side of the opposite party?
2. Whether the complainant is entitled to get the reliefs as sought for in the complaint?
3. Reliefs and costs?
Evidence in this case consists oral evidence of PW1 and Ext.A1 from the side of complainant. Though the opposite party filed version contenting the allegations of the complaint, they were not turned up for cross examining RW1 for disproving the pleadings of the complainant by affidavit.
4. Point No.1 & 2:-
PW1’s case is that she had booked a vehicle by paying an advance amount of Rs.25,000/- to the opposite party on 30/6/2023. It was cancelled by the complainant due to want of more money as advance by the opposite party. Thereafter the opposite party did not refund the said amount to the complainant till date. Hence the complainant filed this complaint alleging deficiency in service. It is evidented from Ext.A1 that the 2nd opposite party received an amount of Rs. 25,000/- as advance booking amount of a two wheeler on 30/6/2023. Though the complainant filed proof affidavit for facing cross examination, the opposite party did not turned up for the same. Moreover the opposite party, even in the version also not denied specifically the allegation of advance booking payment. The opposite party also did not adduced any evidence for strengthening their contention as pleaded in version.
As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”
Accordingly, through the unchallenged proof affidavit along with Ext.A1 the complainant proved his case and thus we are inclined to allow the complaint.
5. Point No. 3:-
In the result complaint stands allowed.
1. Opposite parties are directed to pay Rs. 25,000/- to the complainant within one month of receipt of this order, failing which the said amount shall carry an interest @ 9% per annum from 30/6/2023 till realization.
2. Opposite party 1&2 is directed to pay Rs. 5,000/-(Rupees Five thousand only) to the complainant as compensation.
3. Complainant is entitled Rs.1000/- (Rupees thousand only) from the opposite parties as cost of proceedings.
The order shall be complied with within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 24th day of January, 2024.
Sd/-Smt. P.R. Sholy (President in Charge)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Merin Mathew(complainant)
Ext.A1 - Cash Receipt dtd. 30/6/2023
Evidence of the opposite parties:- Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Typed by:- Br/- Assistant Registrar
Compared by:-
