IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 11th day of June, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.166/2010 (Filed on 04.12.2010)
Between:
Somanathan Achary,
Kurikattil,
Iravon, Konni,
Pathanamthitta.
(By Adv. Mathew Chacko) …… Complainant
And:
1. T.V. Sundaram Iyengar & Sons,
Kidan Galil Compound,
Thekkemala, Kozhencherry,
Pathanamthitta.
(By Adv. Sony Sebastian & Mary John)
2. Magma Fincorp Ltd.,
Padinjarekkara Building,
Baker Junction, Kottayam. ….. Opposite parties.
O R D E R
Sri. N. Premkumar (Member):
Complainant filed this complaint against the opposite parties for getting a relief from the Forum.
2. The 1st opposite party is the authorized dealer of the Mahindra and Mahindra and 2nd opposite party is a finance company. Complainant booked XYLO E 4.7 on 22.09.2009 from 1st opposite party. As per the order form the vehicle has to be delivered only on the month of February 2010. As per the repayment chart the payment due was to start from 10.11.2009. The vehicle was delivered only on 02.02.2010 but instalment taken was prior to the delivery.
3. At the time of booking payment of ` 2,09,300 was taken cash and the balance of ` 4,87,000 to be paid in instalment of 48 months. Complainant was prompt in paying his instalments on 01.11.2010 complainant visited one of his relatives and point out that the vehicle that he was using was not XYLO E4.7 and that it was some other model. On hearing the same complainant went through the R.C.Book and learns that the vehicle delivered to him was XYLO E2 and not XYLO E4.7. The matter was intimated to the opposite party, but the opposite party wants the complainant to come over to Kottayam with the vehicle and discuss the matter there. Complainant is scared to go to Kottayam with the vehicle. The act of opposite party is an unfair trade practice. Hence this complaint for directing the 1st opposite party to replace the vehicle and deliver the booked vehicle with ` 1,00,000 as compensation for mental agony with cost. Complainant also seeking a direction to 2nd opposite party to regularize the instalment due.
4. 1st opposite party entered appearance and filed separate version stating that complaint is not maintainable either in law or on fact. According to them, allegation of unfair trade practice is patently false. They also alleged that no part of the cause of action has arisen before the jurisdiction of this Forum. The vehicle in question was brought from the 1st opposite party’s showroom at Kottayam and delivery also taken by the complainant at Kottayam. The complaint is for mis-joinder of parties and there is no cause of action against the 1st opposite party. Complainant is an interior decorator who has bought the vehicle and is using as a taxi for commercial purpose engaging a driver.
5. According to them, complainant had approached the 1st opposite party company’s showroom at Kottayam on 22.09.2009 and booked a Mahindra XYLO E4.7 vehicle with misty silver colour cost of ` 6,96,300 (excluding insurance and other charges) and paid an advance of Rs.1,000 for the same. The vehicle was kept ready for delivery and whenever the complainant was asked to take delivery of the vehicle by paying the entire amount of ` 6,96,300 together with insurance and other charges, less ` 1,000 paid as advance to them. Complainant informed them that though the amount for which he had taken finance from his financier was ready, the complainant was arranging the balance amounts towards the said vehicle. Finally, complainant approached and informed them that he could not muster enough funds for purchasing the Mahindra XYLO E4.7 version of the vehicle at ` 6,47,600 and this opposite party agreed to the same. Thereafter, he approached the opposite party company at Kottayam on 01.02.2010 with a D.D for ` 4,83,400 from his financier and ` 1,60,500 as his share towards the value of the E2 version of the above vehicle. The complainant had opted for the said E2 version vehicle had taken delivery of the same to his full satisfaction. He was not in a position to shell out a further ` 48,700 on the vehicle cost alone for the E4.7 version of the vehicle. All the records of the vehicle mentioned the model of the same to be E2 version. He also received the excise duty refund wherein also it was mentioned that the vehicle supplied to him was an E2 version.
6. According to 1st opposite party, complainant approached them at their branch office at Nattakam, Kottayam and not at Branch at Thekkemala, Kozhencherry, Pathanamthitta. This opposite party is not aware of the repayment conditions and instalment with the 2nd opposite party and this opposite party is not a party to the contract between them. This opposite party has not called the complainant for any discussion at Kottayam. They also not aware why the complainant is scared to go to Kottayam and they did not committed any unfair trade practice. The complainant is not entitled to any of the relief claimed in the complaint. Therefore, opposite parties canvassed for the dismissal of the complaint.
7. 2nd opposite party entered appearance and filed separate version stating that complaint is not maintainable either in law or on facts. The agreement dated 19.10.2009 executed between the complainant and the 2nd opposite party provides for settlement of all disputes by arbitration. It is therefore only just and proper to refer the parties to the arbitration.
8. According to them, complainant approached the 2nd opposite party for financial assistance for purchase of a Mahindra Xylo E4.7 model vehicle to be purchased by him from the 1st opposite party. The 1st opposite party is unaware of the claim of the complainant that the vehicle would be delivered within 10 days as per the order form but they it was delivered only in the month of February, 2010. This opposite party has no role in the selection or delivery of the vehicle. Based on the agreement this opposite party financed an amount of ` 4,87,000 for the purchase of Mahindra Xylo E4.7 model. As per the terms of the agreement, complainant is bound to repay the loan amount with interest in 48 instalments of ` 14,052 each. The 1st instalment was paid on 10.10.2009 and the instalments had to be paid on 10th day of calendar month thereafter. The complainant is bound to adhere to the repayment schedule irrespective of whether he took delivery of the vehicle or not.
9. The claim of the complainant that he was prompt in paying the instalments is false. The complainant paid the 1st instalment only on 30.01.2010. Even thereafter, he has been grossly irregular in payment of the instalment due. Complainant has remitted only an amount of ` 1,27,368 as on 09.02.2011 as against ` 2,10,780 which had to be paid by him by that date. Complainant is only bound to pay interest on the delayed payments in accordance with the agreement terms.
10. The claim of the complainant that his friend pointed out to him on 01.11.2010 that the model of the vehicle used by him was not XYLO E4.7 and that he learnt that the vehicle delivered to him was XYLO E2 and not SYLO E4.7. On going through the R.C. Book is evidently a false claim. Complainant has not intimated this opposite party at any time about being delivered a different model of vehicle by the 1st opposite party. If at all a cheaper model has been given to the complainant, it is unbelievable that he would not have noticed it for early an year. If any such foul play has been committed it would have been done by the complainant in collusion with the staff of the 1st opposite party so as to misappropriate the excess payment collected from, this opposite party.
11. This opposite party has not committed any defective service or unfair trade practice. The complainant can regularize his account by payment of the amount in arrears from him. For that no direction from this Hon’ble Forum is necessary. This complaint has been filed only to evade payment of the amount due to this opposite party. Hence they canvassed for the dismissal of the complaint with their cost.
12. From the above pleadings, following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
13. Evidence of the complaint consists of the oral deposition of PW1, DW1 and marked Exts.A1 to A4 and B1 to B5. After closure of evidence, both parties were heard.
14. Point Nos. 1 to 3:- In order to prove the complainant’s case, complainant’s authorized agent filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Exts.A1 to A4. Ext.A1 is the authorization letter of the complainant. Ext.A2 is the repayment schedule chart. Ext.A3 is the instalment paid receipt. Ext.A4 is the order form issued by 1st opposite party.
15. In order to prove the opposite parties contention, 1st opposite party’s sales officer filed proof affidavit along with certain documents. He was examined as DW1 and the documents produced were marked as Exts.B1 to B5. Ext.B1 is the retail invoice issued by T.V. Sundram Iyengar & Sons Ltd. to complainant. Ext.B2 is the New Vehicle Delivery Note dated 30.01.2010. Ext.B3 is the copy of relevant pages of sales and stock register of T.V. Sundram Iyenger & Sons Ltd., Kottayam during the period September, 2009 to February 2010. Ext.B4 is the copy of price list of Mahindra Xylo vehicles for the relevant period. Ext.B5 is the copy of excise duty refund register of T.V. Sundram Iyengar & Son’s Ltd.
16. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record. The complainant’s case is that he booked XYLO E4.7 model vehicle from the first opposite party by paying ` 2,09,300 as cash and the balance of `4,87,000 financed by second opposite party as loan agreeing to repay by instalment and released the vehicle. But later complainant found that the released vehicle is not XYLO E4.7 but XYLO E2. The act of the first opposite party is unfair trade practice and hence this complaint.
17. First opposite party’s contention is that the vehicle has released from Kottayam and therefore there is no jurisdiction to entertain this case. According to them, complainant booked a XYLO E4.7 model vehicle by paying `1,000 as advance. But later complainant informed that he could not muster enough funds for purchasing XYLO E4.7 model by paying ` 6,96,300 and opt for E2 version at a cost of ` 6,47,600 and delivered the same. Second opposite party’s contention is that they financed an amount of ` 4,87,000 for the purchase of XYLO E4.7 model. Complainant has to repay the said loan amount with interest in 48 instalments of ` 16,052 reach. But the complainant has not in prompt payment of instalments. If any foul play in delivering cheaper vehicle, it would have been done by the complainant in collusion with the staff of the first opposite party for misappropriation of excess payment from the second opposite party.
18. It is seen that the complainant has filed this complaint seeking relief from opposite parties 1 and 2. During the pendency of this case, complainant filed memo stating that they are not pressing any relief against first opposite party. Therefore, we are not going through the imperfection or deficiency, if any, of the second opposite party and they were exonerated.
19. On a perusal of Ext. A4, it is learnt that the complainant booked XYLO E4.7 model vehicle. Ext. A2 also shows that the loan sanctioned by second opposite party is XYLO E4.7. According to the complainant, he paid ` 2,09,300 as cash and the balance of ` 4,87,000 financed by second opposite party for purchasing the XYLO E4.7 model vehicle. But he has not produced any material to substantiate it. This fact has been admitted by PW1 in his deposition which is as follows:
“2,09,300/- cq]-bmWv R§Ä \ÂIn-b-Xv. 2,09,300/þ cq] TVSþ AS-¨-Xn\v Fs´-¦nepw tcJ-IÄ Chn-sS lmP-cm-¡n-bn-«ntm? CÔ.
20. Second opposite party’s contention is that there may have some foul play in collusion with the staff of the first opposite party and complaint. We do agree that there may have a foul play on the part of the first opposite party in delivering XYLO E2 though as per Ext. A4 is XYLO E4.7. But in the absence of cogent evidence, we are not in a position to find the allegation raised against the second opposite party. Therefore, complaint is not allowable.
21. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 11th day of June, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix
Witness examined on the side of the complainant:
PW1 : Rajeshkumar
Exhibits marked on the side of the complainant:
A1 : Authorization letter of the complainant.
A2 : Repayment schedule chart.
A3 : Instalment paid receipt.
A4 : Order form issued by 1st opposite party.
Witness examined on the side of the opposite parties:
DW1 : Vinu Cherian
Exhibits marked on the side of the opposite parties:
B1 : Retail invoice issued by T.V. Sundram Iyengar & Sons Ltd. to the complainant.
B2 : New Vehicle Delivery Note dated 30.01.2010.
B3 : Copy of relevant pages of sales and stock register of T.V. Sundram Iyenger & Sons Ltd.,
Kottayam for the period 09/2009 to 2/ 2010.
B4 : Copy of price list of Mahindra Xylo vehicles for the relevant period.
B5 : Copy of excise duty refund register of T.V. Sundram Iyengar & Son’s Ltd.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Somanathan Achary, Kurikattil, Iravon, Konni,Pathanamthitta.
(2)T.V. Sundaram Iyengar & Sons, Kidan Galil Compound,Thekkemala,
Kozhencherry, Pathanamthitta.
(3)Magma Fincorp Ltd., Padinjarekkara Building, Baker Junction, Kottayam.
(4) The Stock File.
