IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 16th day of May, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.145/09 (Remanded)
Between:
Thomas M. Pattiyani,
Pattiyanickal House,
Thelliyoor. P.O.,
Vennikulam,
Pathanamthitta.
(By Adv. Lalu John) ... Complainant
And
1. Suresh. K. Pillai,
Sales Representative,
Hercules Automobiles Int’l (P) Ltd.,
CCSB Road, Palace Road,
Chungom, Alappuzha.
(By Adv. D. Sanal Kumar)
2. M/s. Hercules Automobiles Int’l Pvt. Ltd.,
-do. –do.
(By Adv. C. Parameswaran) ... Opposite parties.
O R D E R
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The brief facts of the complaint is as follows: The first opposite party is the Sales Representative and the second opposite party is the firm dealing in the sales of Maruti vehicles. On the basis of the canvassing of the first opposite party, the complaint booked 7 Maruti Alto LX-Silky Silver colour car from the opposite parties by paying `45,000 on 18.11.2008. At the time of booking, opposite parties offered to arrange loan from State Bank of Travancore, Vennikulam Branch and also told the approximate delivery date as 20.11.2008. But the opposite parties neither delivered the car within the stipulated period nor returned the advance amount. The non-delivery of the car and non-refund of the advance amount is a clear deficiency in service and unfair trade practice which caused financial loss and mental agony to the complainant. The opposite parties are liable to the complainant for the same. Hence this complaint for the refund of ` 45,000 and its interest at the rate of 18% onwards along with compensation of ` 25,000 and cost of this case.
3. First opposite party is exparte though he filed his vakalath. Second opposite party entered appearance and filed their version with the following main contentions: Second opposite party challenged the maintainability of this complaint on the ground of territorial jurisdiction as this opposite party is functioning outside the jurisdiction of this Forum and no part of the alleged cause of action occurred within the jurisdiction of this Forum and also challenged that the alleged transaction is a commercial transaction as the complainant had booked 7 cars as per the averments in the complaint. The other contentions are that the first opposite party is not the authorized representative of the second opposite party and hence the second opposite party is not responsible to the transactions, if any, made between the complainant and the first opposite party. There is no privity of contract between the second opposite party and the complainant. This opposite party had not received any amount from the complainant. So the second opposite party is not liable to the complainant and this complaint is false and is filed on experimental basis for deriving undue pecuniary benefits. With the above contentions, second opposite party prays for the dismissal of the complaint with their cost as they have not committed any deficiency of service or unfair trade practice to the complainant.
4. On the basis of the pleadings of the parties, this Forum had taken the evidence of this complaint which consists of the proof affidavit of the complainant and Ext. A1. Second opposite party has not adduced any oral or documentary evidence in their favour.
5. On the basis of the available evidence on record, this Forum allowed this complaint directing the opposite parties for paying `45,000 with 8% interest per annum from the date of booking along with cost of ` 1,000.
6. Being aggrieved by the order of this Forum, second opposite party preferred an Appeal as Appeal No.55/2011 before the Hon’ble Consumer Disputes Redressal Commission, Trivandrum. After hearing the Appeal, Hon’ble CDRC set aside the order of this Forum and remanded the case to this Forum directing the Appellant to pay an amount of ` 4,000 to the complainant as cost and allowed the Appellant to contest the case before this Forum based on their contentions raised in their version. This complaint was also posted before this Forum on 28.12.2011 by the Hon’ble CDRC.
7. As per the directions of the Hon’ble CDRC, this Forum taken up the case for further proceedings. But the opposite parties have not appeared before this Forum and the second opposite party/Appellant has not complied the directions of the Hon’ble CDRC in spite of numerous adjournments from 28.12.2011. Thereafter this Forum declared the opposite parties as exparte and taken the evidence of the complainant. As part of the evidence of the complainant, the complainant filed proof affidavit along with one document. On the basis of the proof affidavit, the document produced is marked as Ext. A1. Ext. A1 is the photocopy of the order booking form No.3080 dated 18.11.2008 issued in the name of the complainant by the opposite parties.
8. Since the opposite parties are exparte in this stage and in the absence of any evidence against the complainant’s case from the side of the opposite parties, the complainant’s case stands proved as unchallenged. So we find that the non-delivery of the car and the non-refund of the advance amount is a clear deficiency in service and an unfair trade practice. Therefore, the opposite parties are jointly and severally liable to the complainant.
9. In the result, this complaint is allowed, thereby the opposite parties are directed to return an amount of ` 45,000 (Rupees Forty five thousand only) collected by the opposite parties as per Ext. A1 order booking form and its interest at the rate of 10% per annum from the date of payment of the said amount to the opposite parties. The opposite parties are also directed to pay an amount of ` 10,000 (Rupees Ten thousand only) as compensation and ` 2,000 (Rupees Two thousand only) as cost. The opposite parties are further directed to pay ` 4,000 (Rupees Four thousand only) ordered by the Hon’ble Consumer Disputes Redressal Commission, Trivandrum as cost for allowing the Appeal.
10. This order is to be complied by the opposite parties within 15 days from the date of receipt of this order jointly and severally, failing which the complainant is allowed to realize the whole amount ordered hereinabove along with 12% interest per annum from today till the realization of the whole amount.
Dictated to the Confidential Assistant, transcribed and typed by him, corrected by me and pronounced in the Open Forum on this the 16th day of May, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant: Nil.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the order booking form dated 18.11.2008 for
Rs. 45,000 issued by the second opposite party to the
complainant.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties: Nil.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Thomas M. Pattiyani, Pattiyanickal House,
Thelliyoor. P.O., Vennikulam, Pathanamthitta.
(2) Suresh. K. Pillai, Sales Representative,
Hercules Automobiles Int’l (P) Ltd.,
CCSB Road, Palace Road, Chungom, Alappuzha.
(3) M/s. Hercules Automobiles Int’l Pvt. Ltd.,
CCSB Road, Palace Road, Chungom, Alappuzha.
(4) The Stock File.
