Date of Filing 23.08.2023

                                                                                                       Date of Disposal: 15.12.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                    …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                           ……MEMBER-I

               THIUR.P.MURUGAN, M.Com, (ICWA), BL.,                                                                  ……MEMBER-II

CC.No.83/2023

THIS FRIDAY, THE 15^th DAY OF DECEMBER 2023

Mr.S.Chandrasekaran,

S/o.Subramaniyan,

No.31, Mettu Street,

Periyakuppam,

Thiruvallur Taluk & District.                                                                  ......Complainant.

                                                                        //Vs//

1.The Regional Manager,

    Regional Office,

    T.V. Sundaram Iyengar & Sons Limited,

   No.7B, West Veli Street,

   Post Box No.21, Madurai -602 001.

2.The Deputy General Manager –Cars,

   G.M.Division,

   Sundaram Motors Limited,

   No.180, Anna Salai, Chennai 600 006.

3.The Branch Manager,

    Union Bank of India,

    Thiruvallur.                                                                                     ……Opposite parties.

Counsel for the complainant                                       : M/s.R.Dhamodaran, Advocate.

Counsel for the opposite parties                                : Exparte.

This complaint coming before us on various dates and finally on 11.12.2023 in the presence of M/s.R.Dhamodaran, counsel for the complainant and opposite parties were set exparte for non appearance and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with regard to the loan availed by the complainant along with a prayer to direct the 2^nd opposite party to return the amount via., Rs.8,37,881/- advanced by the 3^rd opposite party along with reasonable interest from 09.06.2012 till date of realization for clearing the outstanding loan due and payable to the 3^rd opposite party, to direct the 2^nd opposite party to return the amount paid by the complainant to the 2^nd opposite party viz., Rs.51,000/- along with reasonable interest from 23.07.2012 till date of realization and to direct the opposite parties 1 and 2 to pay a sum of Rs.2,00,000/- towards mental agony for the financial hardship caused to the complainant, to direct the opposite parties 1 & 2 to pay a sum of Rs.2,00,000/- towards deficiency in service caused to the complainant and direct the opposite parties to pay a sum of Rs.50,000/- towards cost, legal and other expenses incurred by the complainant.

Summary of facts culminating into complaint:-

2. Complainant obtained proforma invoice from the 2^nd opposite party on 05.12.2011.  The price of the vehicle was Rs.8,37,881/- as per the proforma Invoice.  On 05.05.2012 the complainant booked a vehicle with the 2^nd opposite party fixing 3 months time from 05.05.2012 as tentative delivery date in format.  Based on the said booking order complainant applied for a loan through TAHDCO, Thiruvallur District for the said sum of Rs.8,37,881/-.  The TAHDCO, Thiruvallur District recommended the loan papers of the complainant to the 3^rd opposite party on 17.03.2012 to sanction the said loan.  The 3^rd opposite party based on the said recommendation order sanctioned a sum of Rs.8,37,881/- and disbursed the said amount to the 2^nd opposite party by means of cheque No.556528 dated 09.06.2012 for facilitating the delivery of the vehicle.  Before making the above payment to the 2^nd opposite party by the 3^rd opposite party the complainant was also called upon by the 2^nd opposite party to pay an amount of Rs.25,000/- and the said amount was also paid by the complainant vide cheque No.001330 dated 05.05.2012 from his pocket to meet shortfall.  But the vehicle though assured of delivery by the 2^nd opposite party on 05.05.2012 within 3 months, was not at all delivered to the complainant.  When the complainant enquired about non-delivery of the vehicle he was again asked by the 2^nd opposite party to pay extra charges viz., Rs.26,000/- and the same was paid on 23.07.2012 vide Receipt No.06971 to the 2^nd opposite party.  Thus a total sum of Rs.8,88,881/- was paid  to the 2^nd opposite party by way of Bank loan and direct payments in two instalments by means of cash.  Even after a lapse of more than 4 months from 05.05.2012 the vehicle was not delivered and thus the complainant incurred heavy loss. Hence the complainant issued a legal notice to the 2^nd opposite party on 30.08.2012 demanding delivery of vehicle immediately and also to pay Rs.2,00,000/- as damages for the said delay for which the 2^nd opposite party sent a reply on 07.09.2012 stating that the concerned RTO authorities declined to register the vehicle for some technical reason and that they are taking up the matter with Transport Commissioner, Chennai for fulfilment of necessary formalities. Till today the vehicle was not delivered. Thus aggrieved by the act of the opposite parties the present complaint was filed for the relief as mentioned above.

3. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A15 were submitted. Though notices were served to the opposite parties they did not appear before this commission to file any written version and they were called absent and set exparte on 25.10.2023 for non filing of written version as per the statute.

Points for consideration:-

1) Whether the complaint as filed before this Commission is hit by limitation?

2) Whether the complaint allegations as to non-delivery of the vehicle even after payment of entire cost by the opposite parties amounts to deficiency in service and whether the same has been successfully proved by the complainant?

3) If so what reliefs the complainant is entitled to?

Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1. Proforma Invoice for Chevrolet car from 2^nd opposite party dated 05.12.2011 was marked as Ex.A1;
2. Sanction of loan to the complainant recommended by TAHDCO dated 17.03.2012 was marked as Ex.A2;
3. Proc. Of District Collector, Thiruvllur sanctioning grant to complainant addressed to the 3^rd opposite party for purchase of vehicle dated 30.03.2012 was marked as Ex.A3;
4. Booking form for Chevrolet Tavera B 310 obtained by the complainant from 2^nd opposite party dated 05.05.2012 was marked as Ex.A4;
5. Advance amount of Rs.25,000/- paid by the complainant to the 2^nd opposite party by Cheque No.001330 dated 05.05.2012  was marked as Ex.A5;
6. Release of loan of Rs.8,37,881/- by the 3^rd opposite party vide the 2^nd opposite party by cheque No.556528 for purchase of vehicle by complainant dated 09.06.2012 was marked as Ex.A6;
7. Additional amount of Rs.26,000/- paid by the complainant to the 2^nd opposite party dated 23.07.2012 was marked as Ex.A7;
8. Legal notice sent by the complainant to the 2^nd opposite party dated 30.08.2012  was marked as Ex.A8;
9. Reply notice sent by the 2^nd opposite party to the complainant dated 07.09.2012 was marked as Ex.A9;
10. Order passed by District Consumer Forum , Thiruvallur in CC.No.01/2013 filed by the complainant dated 08.09.2014 was marked as Ex.A10;
11. Notice sent to the complainant by the 3^rd opposite party to repay the loan amount dated 24.08.2021 was marked as Ex.A11;
12. Legal notice to complainant from 3^rd opposite party’s counsel dated 28.08.2021 was marked as Ex.A12;
13. Reply sent by the complainant to the 3^rd opposite party marking copies to the 1^st and 2^nd opposite parties dated 01.11.2021 was marked as Ex.A13;
14. OTS Scheme offered by the 3^rd opposite party to the complainant dated 09.06.2022 was marked as Ex.A14;
15. Order passed by Hon’ble State Consumer Disputes Redressal Commission, Chennai based on a Joint Compromise Memo dated 13.09.2022 was marked as Ex.A15;

4. Though notice was issued to the opposite parties they did not appear before this Commission. However, being a question of law, this Commission suomoto decided the question with respect to limitation as the transactions related the year 2012.

5. Heard the oral arguments of the complainant.

6.  It is seen that the complainant intended to purchase a Tourist Car “CHEVROLET TAVERA B 319” from the 2^nd opposite party for a total price of Rs.8,37,881/- with loan advanced from TAHDCO, Thiruvallur District.  The loan was sanctioned and thus the complainant had paid the entire sale consideration to the 2^nd opposite party from whom the complainant intended to purchase the vehicle. Even after receiving the entire sale consideration, the 2^nd opposite party did not deliver the vehicle. However handed over only the keys of the vehicle to the complainant before the Collector of Thiruvallur.  Hence a complaint was filed in CC.No.01/2013 against the opposite parties for non delivery of the vehicle  wherein it has been clearly held that inspite of receiving the entire sale consideration the vehicle was not delivered to the complainant vide Para No.10 & 11 as follows;

Availing of loan by the complainant with the 3^rd opposite party to purchase the vehicle is admitted. Advance amount of Rs.25,000/- made by the complainant on 05.05.2012 with 2^nd opposite party and further payment of Rs.8,37,881/- made by the complainant to the 2^nd opposite party through the 3^rd opposite party is also admitted.  There is no documentary evidence to show that the opposite party 1 & 2 produced the vehicle before RTO, Thiruvallur for registration.  The alleged letter said to have been sent to the complainant by the opposite party 1 & 2 mentioning the procedural delay at RTO office, Thiruvallur has not produced by the opposite party 1 & 2.  The 2^nd opposite party has not produced any documentary evidence to show that they took a valid insurance for the vehicle.  Further the opposite party 1 & 2 have not produced any documentary evidence to show that the vehicle was delivered to the complainant through District Collector on 15.08.2012. 

Perusal of Ex.A5 shows that booking was made on 05.05.2012.  Ex.A2 as against the column the “tentative delivery date” it has been mentioned as three months.  It means the vehicle has to be delivered on 08.08.2012.  It is clear from Ex.A14 the vehicle was not registered till 07.09.2012 i.e. the date of Ex.A14.  The complainant issued a legal notice under (Ex.A1) calling upon the opposite parties to deliver the vehicle and to pay complainant of rupees two lakhs.  It is clear from Ex.A14, the vehicle booked by the complainant has not be registered till 07.09.2012.  The present complaint was filed on 26.12.2012. Contra to Ex.A13 the complainant prayed for professional loss and to pay compensation of the cheque amount. The complainant having paid the entire cost of the vehicle ought to have sought for delivery of the vehicle or to refund the cost of the vehicle, which the complainant failed to sought for.  It is evident from Ex.A13 & Ex.A14 the opposite parties have not registered and delivered the vehicle which the complainant booked under Ex.A1.  For non delivery of the vehicle the complainant would have suffered.  This act of the opposite parties amounts to deficiency in service and the point is answered accordingly.

7. Hence it is sufficiently held that the vehicle was not delivered to the complainant.  However in the said complaint no relief for delivery of the vehicle to the complainant was provided stating that relief of delivery not sought for by the complainant and only compensation for deficiency of service committed by the opposite parties an amount of Rs.1,00,000/- with interest was granted.  Against the said order the opposite parties went on appeal wherein a compromise has been entered and an amount of Rs.1,80,600/-was paid to the complainant.

8. Vide an order dated 13.09.2022 the State Consumer Disputes Redressal Commission, Chennai passed an order recording memo of compromise entered between the parties. In the joint memorandum of compromise between appellants and 1^st Respondent i.e., complainant it has been agreed under clause 5 & 6 as follows;

“The present dispute stands settled in the above terms.

The parties may pursue or work out their remedies in respect of other disputes (if any) in accordance with law.”

Thus as per the above clause it is made clear that the parties are at liberty to proceed with respect to other disputes and when the order was passed by SCDRC based upon the said compromise, it gives fresh cause of action for the complainant to proceed against the parties.  Hence we hold that the present complaint is not barred by limitation.  Thus the point is answered accordingly in favour of the complainant.

Point No.2:-

9. The amount was paid toward the purchase of the car in entirety i.e., a total sum of Rs.8,37,881/- which aspect was well established by the findings given in the earlier order by our Predecessor.  Hence when no challenge was made to those findings and when the said finding is not set aside we hold the same to have attained finality.  In such circumstances having received the entire amount towards the purchase of vehicle but not delivering the same to the complainant certainly amounts to clear deficiency in service and unfair trade practice on the part of the opposite parties.  Thus we hold that the opposite parties 1 & 2 had committed clear deficiency in service in not delivering the vehicle. 3^rd opposite party has nothing to do with the scenario and hence we hold liable opposite parties 1 & 2 only.

Point No.3:-

10. As we have held above that the opposite parties 1 & 2 had committed clear deficiency in service and unfair trade practice, directing them to deliver the vehicle at this period i.e., after nearly 10 years, the same would be an improbable relief and considering the loan obtained by the complainant from the 3^rd opposite party we direct the 2^nd opposite party to return/refund the entire cost received Rs.8,37,881/- with 6% interest from 09.06.2012 till realization and also the amount of Rs.51,000/- received from the complainant with 6% interest from 23.07.2012 till date of realization.  Further for causing mental agony and hardship for the complainant for all these years making him to run from pillar to post  we award a compensation of Rs.2,00,000/- to be paid by the opposite parties 1 & 2. Even under Ex.A14 dated 09.06.2022, it is seen that under OTS Scheme offered by the 3^rd opposite party the complainant is yet to pay a amount of Rs.9,34,204/-.  In such scenario we hold that the compensation of Rs.2,00,000/- is justified.  Apart from the same we award cost of Rs.10,000/- towards litigation expenses.

In the result, the complaint is dismissed against the 3^rd opposite party and partly allowed against the opposite parties 1 & 2 directing them jointly and severally liable

a) To refund the sum of Rs.8,37,881/- (Rupees eight lakhs thirty seven thousand eight hundred eighty one only) to the complainant with 6% interest from 09.06.2012 till realization within six weeks from the date of receipt of copy of this order;

b) To refund the sum of Rs.51,000/- (Rupees fifty one thousand only) to the complainant with 6% interest from 23.07.2012 till realization within six weeks from the date of receipt of copy of this order;

c) To pay a sum of Rs.2,00,000/- (Rupees two lakhs only) to the complainant towards compensation for the mental agony and hardship caused to him;

 d) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

 e) Amount in clause (a) & (b) if not paid within six weeks from the date of receipt of copy of this order, interest at an enhanced rate of 9% will be levied on the respective amounts.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 15^th day of December 2023.

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 MEMBER-II                                        MEMBER-I                                              PRESIDENT

List of document filed by the complainant:-

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MEMBER-II                                              MEMBER-I                                      PRESIDENT