IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 23rd day of June, 2010. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C.No.173/08 (Filed on 26.11.2008) Between: V. Sadanandan, S/o. Vasudevan,Aluvilayil House, Anandappally.P.O., Kodumon, Adoor, Pathanamthitta. …. Complainant And: 1. TATA Motors, 1st Floor, Vasudeva Building, T.K. Road, Ernakulam, Rep. by its Manager. (By Adv. Krishna Menon) 2. Kulathumkal Motors, Kulathumkal Buildings, M.G. Road, Trivandrum, Rep. by its Manager. 3. Kulathumkal Motors, Thiruvalla, Rep. by its Manager. (By Adv. Sam Koshy) 4. Prajeesh, Kulathumkal Motors, Thiruvalla. …. Opposite parties. O R D E R Smt. C. Lathika Bhai (Member): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The facts of the complaint is as follows: On seeing the promotional campaigns advertisement published by the opposite parties in Malayala Manorama daily on May 2008, the complainant had booked an Indica Euro II Amazon Blue Colour Car from 3rd opposite party on 21.5.08 by paying an advance amount of Rs.5,000/-. The 1st opposite party is the manufacturer of the vehicle and 2nd and 3rd opposite parties are the authorized dealers of 1st opposite party and 4th opposite party is the authorized agent of other opposite parties. The 3rd and 4th opposite parties canvassed the order from the complainant by offering Teflon coating, Rs.20,000/- cash discount, and Rs.5,000/- as exchange offer and they assured delivery of the car within 24 hours from booking the car. But the opposite parties did not deliver the car as assured and they informing the complainant that the delivery of Indica DLS Euro II Amazon Blue Car is impossible due to the unavailability and has to wait for months. The complainant booked this car on the basis of the promises made by the 3rd and 4th opposite parties and this opposite parties were aware of the unavailability of the above said car even though they canvassed the order and accept the advance and assured the vehicle will deliver within one day. At last on 29.5.08 the opposite parties delivered a silk gold coloured Indica car to the complainant instead of Amazon Blue colour. The complainant was compelled to purchase this car after a delayed delivery of six days. The opposite parties declined the offers Teflon coating and exchange bonus of Rs.5,000/- and normal coating was done. The complainant requested the opposite parties several time to fulfill the offers made at the time of booking, but they refused the request. More over the 3rd and 4th opposite party charged Rs.1,500/- as temporary registration fee in place of Rs.100/-. All these acts of the opposite parties amounts to an unfair trade practice and a clear deficiency in service. The opposite parties are liable to refund the exchange bonus amount with 12% interest. The failure of the delivery of the brand new car booked and refusal of Teflon coating and illegal collection of registration fee etc. are the unfair trade practice and deficiency in service from the part of opposite parties hence the complainant filed this complaint against the opposite parties for getting an order for refund of exchange bonus, for delivering brand new Indica DLS Euro II Amazon Blue Car instead of Indica Silk Gold and for compensation and cost. The complainant prays for granting the reliefs. 3. The 1st opposite party has filed a version stating as follows: The complaint is not maintainable either in law or on facts as the complainant is not a consumer as defined under Sec.2(1)(d) of the c.P.Act. There is no deficiency in service alleged from the part of this opposite party and this complaint is liable to be dismissed for mis-joinder of unnecessary party. The complainant had for an Indica DLS Euro II Amazon Blue Colour Car on 21.5.08. While placing the order the complainant had been informed by the 3rd opposite party that a car of that colour could be made available subject to its availability. The order form filled and signed by the complainant also specifically states that the cars are subject to availability. The allegation raised against this opposite party is without any bonafides and with ulterior motives. This opposite party is not canvassed any order from the complainant or offered Teflon coating, cash discount and exchange bonus or issued any promotional campaign through the print media. As an Amazon Blue Colour was not readily available, the complainant had been offered a silk gold coloured car and the complainant had accepted the same without any demur or protest. There has been no unfair trade practice or deficiency in service from this opposite party, hence this opposite party is not liable to compensate the complainant towards the alleged loss, injury etc. The complainant is not entitled to get any reliefs as sought for in the complaint hence this opposite party prayed for the dismissal of the complaint with their cost. 4. 3rd opposite party has filed a version stating as follows: This opposite party is also raised the contention that the complainant is not a consumer as per the provisions of the C.P.Act. The complainant had booked for an Indica Amazon Blue Colour Car on 21.5.08 by paying Rs.5,000/- as advance. It was clearly informed to the complainant that blue colour was out of stock and if he wanted a vehicle immediately as demanded he can take another colour choice. Accordingly the complainant opted for Silky Gold Colour and the same was delivered to the complainant on 29.5.08. This vehicle was having a cash discount of Rs.20,000/- only and the benefit was passed to the complainant. The loyalty bonus where for the vehicle categories of “Turbo Dicor India Segment”. The newspaper advertisement relates to Indica V2 and purchase are subject to “items & Conditions” whichever is applicable. On 11.2008, the complainant had sent a notice stating that loyalty bonus was to be given to him. On 13.11.08 this opposite party issued a reply notice to the complainant explaining the same. 5. Further contention is that the amount of Rs.1,500/- was collected for all the formalities and service charges of the opposite party in getting registration of the vehicle in the name of the complainant. There is no deficiency in service or unfair trade practice from the part of opposite parties hence the complainant is not entitled to get any relief from this opposite party. Therefore this opposite party prayed for the dismissal of the complaint with compensatory cost. 6. The 2nd and 4th opposite party not appeared or filed version hence they declared exparte and remained as such. 7. The points for consideration in this complaint are:- (1) Whether the complaint is maintainable before the Forum? (2) Whether the complainant is entitled to get a relief as prayed for in the complaint? (3) Reliefs & Costs? 8. The evidence in this case consists of the proof affidavit filed by the authorized representative of the complainant and Ext.A1 to A6. For the opposite parties, 3rd opposite party filed a proof affidavit and Ext.B1 to B4. There is no oral or documentary evidence from the part of other opposite parties. After closure of the evidence, both sides heard. 9. Point Nos. 1 to 3:- The complainant’s case is that the complainant had booked for an Amazon Blue Colour Car on 21.5.08 by paying Rs.5,000/- from the 3rd opposite party as per the promotional campaign advertisement given on 26.5.08 in the Malayala Manorama daily. The 3rd and 4th opposite parties canvassed the order from the complainant by offering Teflon Coating, Rs.20,000/- cash discount and Rs.5,000/- exchange bonus and the vehicle will delivered within one day. According to the complainant as agreed by the opposite parties they have not delivered Indica Amazon Blue Car hence he compelled to purchase a silk gold car after a delayed delivery of six days and declined the offer of Teflon coating and exchange bonus of Rs.5,000/-. Further this opposite parties have charged Rs.1,500/- for temporary registration fee instead of Rs.100/-. There is a deficiency in service and unfair trade practice from the part of opposite parties hence the complainant filed this complaint for getting the reliefs as sought for in the complaint. 10. In order to prove the complainant’s case, complainant’s authorized representative filed a proof affidavit and Exts.A1 to A6. Ext.A1 is the authorization in favour of Mr. Arunkumar executed by the complainant. Ext.A2 is the relevant page of the advertisement published in Malayala Manorama on 26.5.08. Ext.A3 is the relevnt of the advertisement published in Malayala Manorama dated 30.05.2008. Ext.A4 is the sale order form dated 21.5.08 filled by the complainant. Ext.A5 is the call details of the cellular No.9747405430 from July 26 to Nov.25 during the year 2008. Ext.A6 is the copy of letter-dated 11.10.08 issued by the complainant to Mr.Azad Pothen by refunding the loyalty bonus. 11. 1st and 3rd opposite party contended the case while the others set exparte. This opposite parties contended that the complainant is not a consumer as per Sec.2(d)(1) of the C.P.Act hence the complaint is not maintainable before the Forum. At the time of booking the Indica Amazon Blue Colour Car they informed the complainant that blue colour was out of stock and for want of immediate delivery of the car the complainant opted for silky gold colour and the same was delivered to the complainant. The car purchased by the complainant was having a cash discount of Rs.20,000/- and it was given to the complainant. The amount of Rs.1,500/- collected from the complainant was for the service charges and for all the formalities for getting the registration of the vehicle in the name of the complainant. The complainant agreed the same and he got the registration. There is no deficiency in service or unfair trade practice from the part of this opposite parties. 12. In order to prove the contentions of opposite parties, 3rd opposite party filed a proof affidavit and Ext.B1 to B4. Ext.B1 is the copy of order form dated 21.5.08 signed by the complainant. Ext.B2 is the copy of the advertisement made by the opposite parties on 26.5.08. Ext.B3 is the copy of satisfaction note dated 29.5.08 signed by the complainant. Ext.B4 is the copy of reply notice dated 13.11.08 sent by the sales head of 3rd opposite party to the complainant. 13. While considering the 1st issue in this complaint the complainant had booked for an Indica Amazon Blue Car after paying an advance amount of Rs.5,000/- as per Ext.A4. The opposite parties have admitted the acceptance of advance amount and after that they offered their service. Hence the complainant is a consumer of opposite parties as per the provisions of C.P.Act and dispute between the complainant and opposite parties is a consumer dispute. Therefore, this complaint is maintainable before the Forum. 14. On going through the evidences in this case the materials on Ext.A4 shows that the complainant had booked for an INdica Amazon Blue Car from 3rd opposite party on 21.5.08. But as per Ext.B3, New Vehicle Release Order the opposite parties have delivered Indica DLSE II F Silk Gold colour car to the complainant on 29.5.08. It shows that instead of an Indica Amazon Blue Colour Car the complainant had purchased a silk gold colour car from the opposite parties. The complainant’s allegation is that the opposite parties have not delivered the booked Amazon Blue Colour Car as offered by them. Further the 3rd and 4th opposite party canvassed the order from him for purchasing the above said car by offering Teflon Coating, Rs.20,000/- cash discount, and Rs.5,000/- exchange bonus and these offers were not given to him. According to the opposite parties the loyalty bonus where for the vehicle categories of “Turbo” & ‘DICOR’ India segments as it was a single news paper advertisement, all Indica Diesel Fuel type were listed under a single name Indica V2. These offers were conducted by TATA Motors. The TATA Indica DLS vehicle purchased by the complainant was having a cash discount of Rs.20,000/- only and the same was given to the complainant. On a perusal of Ext.A2 and A3 paper publication relied by the complainant shows only the mentioning of cash discount of TATA cars. There is no mention of Teflon coating and loyalty bonus. No other materials on records shows that the opposite parties have made such an offers to the complainant (public) as alleged by the complainant. The complainant has not produced any other evidence to corroborate his allegations made against the opposite parties. More over the evidence shows that the complainant had purchased the Indica Silk Gold colour car with the satisfaction of him without any demur. Ext.A6 notice was sent to the 2nd opposite party for demanding to refund the loyalty bonus only. In the circumstances, we could not find any alleged deficiency in service or unfair trade practice from the part of opposite parties. The complainant failed to prove his complaint and hence the complaint is liable to be dismissed. 15. In the result, complaint is dismissed. No cost. Declared in the Open Forum on this the 23rd day of June, 2010. (Sd/-) C. Lathika Bhai, (Member) Sri. Jacob Stephen (President) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix:- Witness examined on the side of the complainant : Nil. Exhibits marked on the side of the complainant: A1 : Photocopy of the authorisation letter dated 26.08.2009 executed by the complainant in favour of Arunkumar. S. A2 : Advertisement published by the first opposite party in Malayala Manorama dated 26.05.2008. A3 : Advertisement published by the first opposite party in Malayala Manorama dated 30.05.2008. A4 : Photocopy of the sales order form dated 21.05.2008. A5 : Photocopy of the itemised call details for cellular No.9747405430. A6 : Photocopy of the letter dated 11.10.2008 issued by the complainant to the Managing Director, Kulathumkal Motors, Thiruvananthapuram. Witness examined on the side of the opposite parties : Nil. Exhibits marked on the side of the opposite parties: B1 : Photocopy of order form dated 21.5.08 signed by the complainant. B2 : Photocopy of the advertisement made by the opposite parties on 26.5.08. B3 : Photocopy of the new vehicle release order. B4 : Photocopy of letter dated 13.11.08 sent by the sales head of 3rd opposite party to the complainant. (By Order) Senior Superintendent. Copy to: (1) V. Sadanandan, Aluvilayil House, Anandappally.P.O., Kodumon, Adoor, Pathanamthitta. (2) The Manager, TATA Motors, 1st Floor, Vasudeva Building, T.K. Road, Ernakulam, (3) The Manager, Kulathumkal Motors, Kulathumkal Buildings, M.G. Road, Trivandrum, (4) The Manager, Kulathumkal Motors, Thiruvalla, (5) Prajeesh, Kulathumkal Motors, Thiruvalla. (6) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
