IN THE CONSUMER DISPUTES REDRESSAL COMMOSSION, ALAPPUZHA
Thursday the 16th day of December, 2021
Filed on 20.09.2019
Present
1. Sri.S.Santhosh Kumar.BSc. LLB(President)
2. Smt. C.K.Lekhamma. BA,LLB(Member)
In
CC/No.236/2019
Between
Complainant:- Opposite parties:-
Sri.S.Sasi 1. The Authorised Signatory
Sree mangalam Hercules Automobiles Pvt.Ltd
Kaithathekku Recognized Maruti Dealer
Chettikulangara.P.O Show room, Sanathanapuram.P.o
Mavelikara-690106 A.C.Road, Kalarcode
Alappuzha-688003
(Adv. C. Parameswaran)
O R D E R
SMT. C.K.LEKHAMMA(MEMBER)
The brief facts of complainant’s case are as follows:-
The complainant had approached opposite party on 11/12/2018 and booked a maruti Omni van on payment of the booking amount of Rs.3000/-(Rupees Three thousand only) to the opposite party and he also entrusted Rs.18,000/- (Rupees Eighteen thousand only) to the Team Leader of the opposite party one Sri. Vinod Kumar. But the opposite party issued receipt for Rs.3000/- only. Inorder to effect maximum payment before delivery of the vehicle the complainant had taken a loan of Rs. 2,76,000/-(Rupees Two lakh Seventy six thousand only) via the Mahindra Finance Company, the company has paid the said amount directly to the opposite party. But the opposite party failed to deliver the car even after several assured days, the complainant contacted the opposite party several times over phone and also approached them directly. But the opposite party have failed to make available the car even after assured time till date. When the complainant informed the finance company that he has not received the vehicle till therefore the complainant is not ready to avoid further EMI. Thereafter the opposite party repaid the loan amount of Mahindra Finance and settled the loan transaction. Due to the said acts of opposite party, the complainant suffered huge financial loss since he had booked the vehicle for the purpose of earn money for his livelihood. Feeling aggrieved the complainant approached this Commission for following reliefs.
1) to direct the opposite party to refund Rs.18,000/-(Rupees eighteen thousand only) , also refund Rs.45,000/-(Rupees Fourtyfive thousand only) ie, the amount paid by the complainant to the finance company and also compensation for deficiency in service.
2. The version of the opposite party in short is as follows:-
The opposite party contended that on 11/12/2018 the complainant took the Maruit Omni Van on payment of Rs. 3000/- as advance. Subsequently on 21/12/2018 the vehicle was invoiced to the name of complainant but the complainant has not remit the balance amount of Rs.50,324/-(Rupees Fifty thousand three hundred and twenty four only) to the opposite party. Thereby the complainant failed to complied with the agreement between them. Further the opposite party denied the allegation in the complaint that the complainant has paid Rs.18000/-(Rupees Eighteen thousand only) to their staff Vinod Kumar. At the time of booking, the opposite party received only Rs.3000/-(Rupees Three thousand only) from the complainant as booking charge and which is mentioned in the order booking form. It is true that the complainant has availed a loan from the finance company and the said amount has been transferred to the opposite party directly by the finance company. But said amount is not sufficient to satisfy the entire price of the vehicle. So the complainant has to remit Rs.50,324/-( Rupees Fifty thousand three hundred and twenty four only) towards the balance price of the vehicle. Despite the repeated demands of the opposite party the complainant did not remit the said amount to them. The complainant is bound to pay the entire amount as per the invoice so the said acts of complainant sustained financial loss to the opposite party and the contrary allegation made against the opposite party is unsustainable. Hence the complaint is to be dismissed with the cost of opposite party.
3. The points that arose for consideration are as follows:-
1.Whether there is any deficiency in service committed by the opposite party?
2. Whether the complainant is entitled to get any compensation?
3. Relief and cost if any?
4. The complainant appeared in person he was adduced oral as well as documentary evidence Ext.A1 to A4 were marked from their side. From the side of opposite party, adduced only oral evidence. The complainant filed argument note. We have heard both sides.
5. Points No.1 and 2:-
Admittedly the complainant had booked a Maruti Omni van with opposite party on 11/12/2018 after paying the booking advance of Rs.3000/-(Rupees Three thousand only) and obtained Ext.A1 on the same date. Further it is admitted that the complainant had taken a loan from Mahindra Finance Company and they have directly remitted Rs.2,76,000/-(Rupees Two lakh seventy six thousand only) to the opposite party towards the price of the vehicle. The complainant alleged that an amount of Rs. 15,000/-(Rupees Fifteen thousand only ) has been collected from him by one Vinod Kumar the staff of the opposite party. The said Vinod Kumar was examined as RW1,during the cross examination he denied said allegation. The dispute is that even though the complainant paid a huge amount to the opposite party they did not deliver the vehicle within the time as they assured at the time of booking the vehicle. The opposite party contended that the reason for non delivery of the vehicle since the complainant has failed to remit the balance amount of Rs.50,324/-(Rupees Fifty thousand three hundred and twenty four only) as mentioned in the invoice issued by the opposite party.
It is pointed out in the argument notes that the condition No.1 of Ext. A1 in which it is mentioned that “ all the time of booking customers are required to deposit booking amount and the balance amount should be remitted before registration of the vehicle.” Therefore it is clear that as per the terms and conditions between the complainant and opposite party, the opposite party has no right to insist the complainant to pay the remaining amount before the registration of the vehicle. At the same time the opposite party contended that they have invoiced the vehicle to the name of the complainant. It is to be noted that the opposite party did not produce said invoice before the commission as they have contented. There is not even an iyota of evidence produced before us to substantiate the above contentions of the opposite party. The decision rendered by the Hon’ble Supreme Court Gopal, Krishnaji Ketkar Vs. Mahomed Haji Lathif & Ors (1968 AIR 1413). Wherein it is observed that
“Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts in issue.”
The said decision is squarely applicable in this case. Since the opposite party did not convinces with relevant documents that the vehicle is with them for delivery. Moreover it seems that the opposite party has repaid the loan amount to the finance company before filing the version. As per the records the vehicle booked on 11/12/2018 this complaint was filed after 10 months.
It is come out in evidence that the complainant is doing business for earning his livelihood and as a part of improving business, he decided to buy the vehicle. Nothing is produced by the opposite party to convince us that the purchase of the vehicle is for engaging it in commercial purpose to earn profit.
According to the complainant during this period he had been paying the EMI to the finance company. Ext.A2 series receipts and Ext.A4 statement of account produced for proving said transaction. Seemingly Ext.A2 receipts are not legible. Therefore we are unable to rely said documents. But it is admitted that opposite party had received Rs.3000/-(Rupees Three thousand only) as booking amount to the opposite party. The complainant is entitled to get refund of the said amount with interest from the date of payment from the opposite party. In view of the above discussions we have arrived at a conclusion that the opposite party had committed deficiency in service since they have failed to supply the vehicle. Therefore, the complainant is entitled to get compensation from the opposite party and also entitled to get cost of the proceedings from them.
Point No.3:-
In the result we allowed the complaint in part and direct as follows:-
A) The opposite party is liable to refund Rs.3000/-(Rupees Three thousand only) with interest @ 9% per annum from 11/12/2018 till realization.
B) The opposite party is liable to pay Rs. 10,000/- (Rupees Ten thousand only)as compensation for deficiency in service, failing which the said amount shall carry interest @ 9% per annum from the date of compliance of this order till realization.
C) The opposite party is also liable to pay Rs.5000/- (Rupees Five thousand only)towards litigation cost of the complainant.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 16th day of December, 2021.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - S.Sasi(complainant)
Ext.A1 - Order Booking form dtd. 11/12/2018
Ext.A2series - Receipts
Ext.A3 - Card
Ext.A4 - Statement of Account
Evidence of the opposite parties:-
RW1 - VinodKumar( Opposite party)
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
