IN THE CONSUMER DISPUTES REDRESSAL COMMISSION ALAPPUZHA
Tuesday the 04th day of August, 2020
Filed on 07.03.2017
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. Sholy.P.R. . LLB(Member)
In
CC/No.66/2017
Between
Complainant:- Opposite party:-
Sri. Renjith 1. Manager
S/o Rajan Hercules Automobiles
Chooruvilayil International, Mavelikara
L.S.Nooranadu.P.O Alappuzha
(Adv.R.Rajendra Prasad) (Adv.C.Parameswaran)
2. Manager
Hercules Automobiles Internaitonal, TC.1845&7
Sree Dhanya Castle, Kavadiyar,
Thiruvananthapuram (Adv.C.Parameswaran)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act. 1986.
1. Complainant’s case recapitulated is as follows:-
On 4/12/2016 complainant booked a Maruti Swift car with the 1st opposite party by paying Rs. 2000/-. It was assured by 1st opposite party that the vehicle will be delivered within 12 days. 1st opposite party informed that the vehicle will be delivered on 24/12/2016 and on 21/12/2016 complainant transferred an amount of Rs. 89,000/- by NEFT to the account of 1st opposite party at Alappuzha. Thereafter he availed a loan from HDFC Bank and on 21/12/2016 transferred an amount of Rs. 4,36,436/- to the account of 1st opposite party.
On 22/12/2016 it was informed by the opposite party that there is no stock of the vehicle. On enquiry it was revealed that the vehicle booked by the complainant was sold to some other on 14/12/2016 for a higher amount. On enquiry it was informed that they are ready to return the advance amount along with interest at the rate of 3.75% per annum. Complainant had paid a total amount of Rs. 5, 49,436/- and he is entitled for a bonus of Rs.10,000/- and exchange bonus of Rs. 12,000/-. As promised the vehicle was not delivered on 24/12/2016 and till date. Complainant had availed loan from HDFC Bank and paid three EMI’s at the rate of Rs. 9,546/- and complainant is entitled for refund of the same. The act of the opposite parties are deficiency in service and they are entitled to compensate for monetary loss and mental agony. There was dereliction of duty and mal trade practice from the side of opposite parties. Opposite parties are liable to pay Rs.5,49,436/- deposited by the complainant along with interest at the rate of 14% and Rs.25,642/- being the 3 EMI’s paid to HDFC Bank. Complainant is also entitled for an amount of Rs. 50,000/- as compensation along with cost.
2. Opposite parties filed a joint version mainly contenting as follows:-
There is no negligence or deficiency of service on the part of this opposite parties. Complainant has put up distorted facts to suit his case. The delivery of the vehicle was depending upon the seniority of the complainant in terms of the date of deposit and there was no assurance that the vehicle will be delivered within 12 days. The allegation that the amount was remitted as per the instigation is false. Opposite parties are not aware about the loan transaction of the complainant with the HDFC Bank.
Complainant is liable to pay the price of the car as prevailing at the time of delivery which was Rs. 5,48,517/-. Complainant remitted an amount of Rs. 5,27,436/- instead of Rs.5,48,517/-. Hence he was called upon to remit the balance payment of Rs. 21,081/-. The allegation that the vehicle ordered by the complainant was delivered to some other customer by getting excess amount is false. The averment that complainant is entitled for a bonus of Rs. 10,000/- and exchange bonus of Rs. 12,000/- are false. The vehicle can be delivered to the complainant on remitting the entire price of the vehicle at the time of billing. The allegation that the complainant had remitted three instalments in the loan account is false. Opposite parties have no role in the matter of the loan transaction of the complainant with HDFC Bank. Opposite party had duly informed the complainant about the price of the vehicle. Opposite parties had never adopted any unfair trade practice and the complainant had not suffered any mental agony and inconvenience. The vehicle was not delivered to the complainant for nonpayment of the balance amount of Rs.21,081/- and the instant complaint is only an afterthought. Hence complaint may be dismissed with cost.
3. On the above pleadings following points were raised for consideration:-
1. Whether there is deficiency in service on the part of the opposite
parties as alleged?
2. Whether the complainant is entitled to realize an amount of Rs.
5,49,436/- along with interest at the rate of 14% from the
opposite parties as prayed for?
3. Whether the complainant is entitled to realize an amount of
Rs.28,642/- along with interest at the rate of 14% being three
EMI’s paid at HDFC Bank?
4. Whether the complainant is entitled for Rs.50,000/- as
compensation for the mental agony?
5. Reliefs and cost?
4. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to Ext.A4 on the side of the complainant and oral evidence of RW1& RW2 from the side of the opposite parties. Ext.B1 was marked during the cross examination of PW1.
5. Point No. 1,2, and 4:-
For the sake of convenience these points are considered together.
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked as Ext.A1 letter of HDFC Bank, Ext.A2 Statement of Account of HDFC Bank and Ext.A3
Disbursement Advice cum Delivery Order. Ext.A4 Customer docket was marked by consent. During cross examination Ext.B1 Order Booking /Commitment Check list dealer copy was marked. RW1 is the manager of opposite parties. He filed an affidavit in tune with the version.
RW2 stated that till January 2018 he was working as team leader at the office of the opposite party. Complainant had booked Swift LXI optional vehicle and Ext.B1 was issued. In Ext.B1 it is specified that vehicles will be delivered as per availability. Complainant was informed about the arrival of the vehicle from the manufacturer. The price of the vehicle was Rs. 5,47,417/-. Complainant had paid an amount of Rs. 5,27,417/-. Complainant had not paid the balance amount to take delivery. There was no assurance of giving bonus and exchange bonus. Vehicle and documents were not produced for exchange.
The substance of the evidence is discussed above. The case of PW1, complainant is that as per Ext.A4(Ext.B1) he booked a Maruti Swift LXI (O) car with the opposite parties on 4/12/2016 by paying an amount of Rs.2000/-. At the time of booking it was promised that the vehicle will be delivered within 12 days. The total price fixed was Rs. 5,54,198/- including extended warranty and Rs. 5,48,517/- excluding extended warranty. Thereafter he was informed that the vehicle will be delivered on 24/12/2016 if the entire balance amount is paid. Accordingly on 21/12/2016 initially he paid an amount of Rs.89000/- through NEFT and transferred an amount of Rs.4,36,436/- by availing a vehicle loan from HDFC Bank. Thus he paid total amount is Rs. 5,27,436/-. According to PW1 opposite parties promised that he will get a consumer offer of Rs. 10,000/- and exchange offer of Rs. 12000/-. So according to him if that amount is added to the amount paid by him it will be the total value of the vehicle. However the vehicle was not delivered as promised and hence on 7/3/2017 he filed the complaint before this Commission alleging deficiency of service and mal trade practice. Opposite parties filed a version admitting the receipt of Rs. 5,27,436/-. According to them the total value of vehicle was Rs. 5,48,517/-. An amount of Rs.21,081/- was due from the complainant and due to the nonpayment the vehicle was not delivered. They denied consumer offer of Rs. 10000/- and Rs.12000/- as exchange bonus. When examined as PW1 the complainant reiterated his claim. He contended that at the time of booking there was a promise that the vehicle will be delivered within 12 days and that is why he availed a loan of Rs. 4,36,436/- from the HDFC Bank and paid the amount. Now the only question to be looked into is whether there was a promise for giving bonus and exchange bonus. As stated earlier receipt of Rs. 5,27,436/- is admitted by the opposite parties in the version as well as in the evidence tendered by RW1 who is the Manager of the opposite parties. Admittedly the price of the vehicle without extended warranty is Rs. 5,48,517/-. PW1 paid an amount of Rs. 21,081/- less than the value considering the offer and exchange bonus. Ext.B1 is the copy of order booking /Commitment check list dealer copy. It was marked during the cross examination of PW1. On a perusal of the same it is seen that the consumer offer and exchange is written in the same. Copy of Ext.B1 is available in Ext.A4 which is the Customer copy. In that also consumer offer and exchange is mentioned. Along with Ext.A4 a Cataloge of December 2016 – total offer is available. In it the consumer offer is Rs. 10,000/- and exchange offer is Rs. 25,000/-. PW1 admitted that he sold his vehicle bearing Reg.No.KL.3 W-1004(Santro Car) outside and the documents were entrusted with the opposite parties for exchange offer. Since the vehicle was sold outside he was entitled for the exchange bonus of Rs.12000/- only. So from Ext.B1document coupled with Dec 2016 - total offer cataloge available in Ext.A4, it is pellucid that PW1 is entitled for consumer offer and exchange offer. If Rs. 10,000/- and Rs. 12,000/- is added it will be more than the value of vehicle. In other words it can be seen that PW1 paid Rs. 5,27,436/- and if consumer offer and exchange bonus is added it will be more than the value of the vehicle and so PW1 was justified in not paying an amount of Rs.21,081/-.
On a perusal of the evidence of PW1 it is seen that he was able to withstand the beating by the stick of cross examination. In other words there was nothing to discredit his testimony. Per contra the evidence of RW1 shows that he was stating utter false hood. Though he claimed to be the Manager of the opposite parties he doesn’t know whether customers used to purchase vehicles after availing loan from the bank. He denied the offer of bonus and exchange bonus. But from the document issued from the opposite parties it is seen that bonus and exchange bonus are available during Dec 2016 and PW1 booked the vehicle on 4/12/2016. According to him they will deliver the vehicle only on payment of full cash. RW1 stated that complainant was informed to pay the balance amount. During cross examination of PW1 it was put to him that e-mail was sent to him for payment of balance amount. However such a contention is conspicuously absent in the version. Now it is well settled by various Judicial pronouncements that evidence adduced without pleading is to be eschewed (1958 KLT 721(SC) [Moran Mar Basselios Catholicos Vs. T.P.Ariva & Others], 1984KLT 606, [Elizabeth Vs. Sarama]. Further the evidence of RW2 who claims to have worked under RW1 is contradictory to the evidence of RW1. According to him opposite party used to arrange finance for the vehicle. He had knowledge that PW1 had availed a loan from HDFC Bank. Though it is claimed that PW1 was informed about the balance payment of the vehicle no document is produced by the opposite parties. If they had sent e-mail as contended in the cross examination of PW1they could have very well produced copies.
It was contended by the learned counsel appearing for the opposite parties that in Ext.B1 it is mentioned that the vehicle will be delivered as and when available from the manufacturer. It is to be noted that PW1 booked the vehicle as early on 4/12/2016 and he paid the entire amount on 21/12/2016 after deducting bonus and exchange bonus. Till this date the vehicle was not delivered to him. It is difficult to believe that if a person can spent an amount of Rs.5,27,436/- for buying a vehicle such a small amount of Rs. 21,081/- will not be available with him. So it is crystal clear that the said amount was not paid considering the consumer offer and exchange offer evidenced from Ext.B1 and Ext.A4. Buying a vehicle or upgrading the one will be a long cherished ambition. Here in this case though PW1 paid the entire amount of the vehicle during Dec 2016 till this date the vehicle was not delivered to him. PW1 has got an allegation that the vehicle booked by him was sold to somebody else by the opposite parties on a higher price and he was offered the amount along with 3.75% interest. Of course PW1 could not produce any evidence to prove the allegation. However no evidence is produced by the opposite parties to show the priority list of booking. On assessing the entire evidence of this case we have no hesitation to hold that there was deficiency of service and restrictive trade practice from the side of opposite parties. In this context we are also enlightened by the decisions of the Hon’ble Supreme Court reported in (1994) CPJ 1 (SC) (Omprakash Vs. Assistant Engineer, Haryana Agro Industries Corporation Ltd. & Another.) and 1995 (2) CPC page1 (Mahindar Pratap Dass Vs. Modern Automobiles and Another.)
In the circumstances we are of the opinion that complainant is entitled for refund of the entire amount of Rs. 5,27,436/- along with interest from the opposite parties. PW1 is claiming an amount of Rs. 50,000/- as compensation for mental agony and other difficulties. Here in this case it is to be noted that the vehicle was booked on 4/12/2016 and the entire balance amount was paid on 21/12/2016. Though it was promised that the vehicle will be delivered within 12 days till this date the promise was not full filled. Though it was contented that there was no assurance of delivering the vehicle within 12 days, it is to be noted that PW1 paid the entire balance amount on 21/12/2016 for which he had to avail a loan of Rs. 4,36,436/-. If there was no such assurance one will not rush to the bank and avail a loan. Since the vehicle was not delivered till this date we are of the opinion that the amount of Rs. 50,000/- claimed by PW1 is reasonable and it can be safely allowed. These points are found accordingly.
6. Point No.3:
PW1 is claiming an amount of Rs. 28,642/- along with interest at the rate of 14% on a contention that he paid three EMI’s to the HDFC Bank in his loan account. He has produced Ext.A2
to prove the same. However while considering Point No. 1,2 &4 we have allowed an amount of Rs.5,27,436/- being the total amount paid by PW1 to the opposite parties. This amount is inclusive of instalments and so if this payment is allowed it will be unlawful enrichment to the complainant and so we are disallowing this amount. This point is found against the complainant.
7. Point No.5.
In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs.5,27,436/-
along with interest at the rate of 12% from the date of complaint
e; on 7/3/2017 till realization from the opposite parties.
B) Complainant is allowed to realize an amount of Rs.50,000/- as
compensation from the opposite parties.
C) Complainant is allowed to realize an amount of Rs. 10,000/- as
cost.
The order shall be complied within one month from the date of receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Forum on this the 04th day of August, 2020.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Renjith(complainant)
Ext.A1 - Letter
Ext.A2 - Statement of Account
Ext.A3 - Disbursement Advice cum Delivery Order
Ext.A4 - Customer docket .
Evidence of the opposite parties:-
RW1 - Chandra Mohan (Opposite party)
RW2 - Aravind U.S(Witness)
Ext.B1 - Customer docket
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
