D.O.F. 25.02.2010

                                            D.O.O. 27.03.2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:   Sri. K. Gopalan                                     :        President

                Smt. K.P. Preethakumari                     :         Member

                Smt. M.D. Jessy                                    :        Member

Dated this the 27^th day of March, 2012.

C.C.No.73/2010

Sajithkumar P.K.,

S/o. Kunhiraman P.,

Represented through his P.A. Holder,

Dinesh P.K.,                                                         :         Complainant

s/o. Kunhiraman P.,

Puthoor House,

Koottumugham P.O.,

Sreekandapuram (Via)

(Rep. by Adv. M.C. Biju)

1.  The Branch Manager,

     German Motors,

     13 P6-14 A, Valapattanam Post,

     Kannur – 670 010.

2.  The Branch Manager,

     German Motors,                                              :         Opposite Parties

     118/A, Chungam Junction,

      Westhill, Kozhikode.

(1 & 2 rep. by Adv. M. Asokan)

3.  The Managing Director,

     General Motors India Pvt. Ltd.,

     Chandrapura Industrial Estate,

     Halol – Panchamahal District,

     Gujarath – 389351.

(Rep. by Adv. V. Shankar)

O R D E R

Smt. K.P. Preethakumari, Member.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to replace the old car with 2010 model green colour car or to pay ` 2 lakhs as compensation.

          The brief contentions of the complainant is that eventhough he had paid `52,000 as advance for purchasing a new 2010 model Chevrolet Beats LSC green colur car as induced by 1<sup>st</sup> opposite party before launching function during 2010 January, the 1<sup>st</sup> opposite party delivered a misty lake Chevrolet beat LS car.  The 1<sup>st</sup> opposite party has taken all the steps to register the car and the complainant has received the R.C. and other related documents on 21.01.2010.  On verification of this document the complainant came to know that the opposite parties have delivered a 2009 model car, eventhough the 1<sup>st</sup> opposite party made believe the complainant that they will deliver 2010 model car.  On enquiry the complainant came to know that 2010 model cars are available in the show room on the date of launching and delivered 2010 model car to five persons.  Due to the act of opposite parties the complainant sustained loss of `1,00,000 and also suffered great mental agony and is claiming one lakh as compensation for mental agony suffered by him.  Eventhough the complainant has filed a criminal complaint against opposite parties before Valapattanam police station, they have not taken any action against opposite party due to the influence of opposite parties.  The complainant suffered all these due to the deficient service of opposite parties.  So the opposite parties are liable to compensate complainant.  Hence this complaint.

          In pursuance to the notice issued by the Forum all opposite parties appeared and filed their version. The 1^st and 2^nd opposite parties filed version admitting that complainant booked for a Chevrolet bear LSC green colour car.  It is also admitted that complainant has paid `52,000 as advance and it is denied that out of which `10,000 was paid for getting the car on the launching day.  The opposite party further admits that the complainant was delivered with a misty lake Chevrolet Beat LS car by 1^st opposite party.  The complainant has filled up all the papers for the registration and 1^st opposite party has submitted for registration and hence the complainant is fully aware of all the details entered in the papers.  The allegation that the opposite parties cheated the complainant by delivering a 2009 model vehicle instead of 2010 is not correct.  The vehicle booked by the complainant was a Chevrolet beat L.S. Green car on the launching day on 18.01.2010.  Ten Chevrolet beats cars were delivered from the show room at Taliparamba, out of these five were Chevrolet Beat LS and the other cars were Chevrolet Beat LT, out of which 8 were 2009 model and two were 2010 model cars.  Only one was Chevrolet Beat LS and the colour of the car was Olympic white.  Among the other L.S. cars there was one car having cocktail green colour which was delivered to a customer, Mustafa who booked the car on earlier date than the complainant and hence he was given preference and that car was also a 2009 model car.  Eventhough there was a 2010 model car among the other four Chevrolet Beat L.S. cars, the complainant was not ready to take the same as the colour of the car was not to his liking.  There were no other Chevrolet Beat LS cars having cocktail green colour available in the show room on the launching day, other than the one given to Mustafa.  The complainant himself selected the misty lake coloured car from amoung the Chevrolet Beat L.S. Car among the cars in show room on 16.01.2010 the complainant selected misty lake colour car.  The complainant was issued with an invoice on 16.01.2010 and is that engine number, make and colour of the car are mentioned.  So the complainant was aware about the details regarding the car including the colour and the make.  It is not incorrect to say that he was aware about the colour of the car only as on 21.01.2010.  There is no basis on the allegation that the opposite party cheated the complainant.  The allegation that due to the act of the opposite party, the complainant had sustained loss of `1,00,000  and in addition mental agony etc are not correct.  The selection of the car was made by the complainant after inspecting all the vehicles available in the show room of 1^st opposite party.  Usually those who purchase cars from January to March of a particular year will be supplied with the cars manufactured in the last part of the previous year.  Usually the car manufactured in the particular year will be supplied to the customers only from April of that particular year.  The Chevrolet Beat car is a new introduction by 3^rd opposite party on Indian roads during 2009 December/January 2010.  It is impossible to deliver 2010 model cars to all customers who were delivered with vehicles in the first month of 2010.  The complainant is not having any complaint about the performance of the car.  The complainant has not booked for a car manufactured in a particular year.  All the cars delivered on 18.01.2010 are manufactured and moved out of factory within a span of two or three weeks.  The cars which were moved out of the factory till December 31^st 2009 are considered as 2009 model cars and those cars which were moved out of the factory from 1^st January 2010 are considered as 2010 model cars.  There is absolutely no grounds for filing a complaint against opposite parties and hence the complaint is liable to be dismissed. 

          3^rd opposite party also filed version contending that the complaint required great deal of evidence and hence the complaint is liable to be dismissed.  There is no complaint against 3^rd opposite party in the complaint and not alleged any deficiency of service on the part of 3^rd opposite party.  There is no cause of action arised against 3^rd opposite party.  The relationship with the 1^st, 2^nd and 3^rd opposite parties and the complainant 3^rd opposite party has no role in it.  So the 3^rd opposite party is dragged before the Forum unnecessarily.  It is understood from the 1^st and 2^nd opposite parties that the complainant at the time of booking itself was informed that the colour sought by the complainant was not available and agreed to 1^st opposite party misty lake color.  So there is no deficiency of service on the part of 3^rd opposite party and hence the complainant is liable to be dismissed.

          Upon the above contentions the following issues have been raised for consideration.

1. Whether there is any deficiency on the part of opposite parties?
2. Whether the complainant is entitled to any relief?
3. Relief and cost.

    The evidence in the above case consists of the oral testimony of PW1, DW1 and DW2 and Exts. A1 to A14 and B1 to B5.

          The case of the complainant is that eventhough he booked for a new model 2010 Chevrolet Beats L.S.C – green car the opposite parties delivered him a 2009 L.S. misty lake Chevrolet Beats car. In order to prove his case the P.A. holder was examined as PW1 and document such as temporary registration dated 18.01.2010, Retail Sales order booking for 12.01.2010, cash receipts  3 in number, invoice dated 16.01.2010, copy of the complaint filed before Valapattanam police station, Magazine, news paper, lawyer notice, postal receipts, acknowledgment cards, reply notice, power of attorney etc.  In order to disprove the case opposite parties examined DW1 and 2 and produced documents such as order booking form of Mustafa dated 06.01.10, copy of reply notice, postal receipts and acknowledgment cards, copy of details of delivery, authorization and agreement.  According to the complainant the Chevrolet Beats L.S. car was launched on road in Kannur during 2010 in a launching ceremony dated 18.01.2010 and induced by these new model he had purchased the car.  The complainant had booked for the car on 12.01.10 as per the documents ie receipt dated 12.01.10 having no.1845.  As per this it is seen written as “booking advance for Beat LS C-green”. Nothing is written in the receipt as 2009 or 2010 model.   Similarly Ext.A4 and A5 proves that the complainant has given ` 50,000 as part payment towards the consideration.  The complainant has not produced any other documents to prove that he had booked for 2010 model Chevrolet Beat LS Cocktail green car.  The complainant has produced Ext.A8 magazine and A9 newspaper published to the effect that Chevrolet is intended to introduce the Chevrolet beats car on Indian road during 2010 January.  Nothing was reported in this advertisement that they are going to launch the car manufactured during 2010 only.  Moreover in Ext.A6 invoice also nothing was stated with respect to manufacture year of the car.   The complainant deposed before the Forum that “2009 December 31-\v D­m-¡p¶ hml\w 2009 modelDw       2010 P\p-hcn 1 \v D­m-¡p¶ hml\w 2010 model Dw Bbn-cn-¡Ww F¶p ]d-ªm icn-bm-Wv.”  So from this it is seen that the complainant has knowledge about the manufacturing date and model of the car.  But he has not stated nothing about the model in the advance receipt.  No booking order is produced before the Forum also.  So the complainant failed to substantiate the contention that he had booked for 2010 model car.

          Regarding the colour in A3 receipt it is seen that he had booked for cocktail green colour.  But it is seen that Ext.A6 invoice, the colour of the car is shown as misty lake.  The PW1 deposed that “h­n-bpsS  invoice 16.01.10\v brother\v \ÂIn-bn-cp-¶p.  16.01.10\v ]cm-Xn-¡m-c\v FSp-¡m³ t]mIp¶ h­n-bpsS colour Ad-nbm-am-bn-cp-¶p.  From this it is seen that the complainant knew very well that the colour of the car which he was going to take delivery is not cocktail green, but misty lake.  So he has taken delivery with knowledge.  If he was not satisfied with this colour, he can very well avoid taking delivery.  So it is seen that the complainant has taken delivery of the car with satisfaction.  So from the available evidence on records, it is seen that the complainant has miserably failed to substantiate his case by producing cogent and convincing evidence and hence we are of the opinion that there is no deficiency of service on unfair practice on the part of opposite parties and hence the complaint is liable to be dismissed and order passed accordingly. 

          In the result, complaint dismissed.

          No cost.

                        Sd/-                             Sd/-          

                    President                     Member                   

APPENDIX

Exhibits for the Complainant

A1.  Temporary registration certificate dated 18.01.2010.

A2.  Retail sales order booking form dated 12.01.2010.

A3.  Cash receipt dated 12.01.2010.

A4.  Cash receipt dated 16.01.2010.

A5.  Cash receipt dated 1601.2010.

A6.  Invoice dated 16.01.2010.

A7.  Copy of complaint to Valapattanam P.S. dated 28.01.10.

A8.  Magazine.

A9.  News paper (subject to proof)

A10. Lawyer notice.

A11. Postal receipts (two in number).

A12.  Postal ads (two in number).

A13.  Reply notice.

A14.  Power of attorney (subject to proof)

Exhibits for the opposite party

B1.   Order booking form of Mustafa dated 06.01.2010.

B2.   Copy of reply notice, postal receipts, ads.

B3.   Copy of details of delivery dated 18.01.2010.

B4.   Authorisation letter dated 23.09.2011.

B5.   Agreement

Witness examined for the complainant

PW1.  Complainant

Witness examined for opposite party

DW1. Vilasini K. Prasad

DW2. Manish Singh Rathore. 

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT