DATE OF FILING :06/06/16 

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the 30th day of May 2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

           SRI. BENNY. K. MEMBER

CC NO. 162/2016

Between

Complainant       : Suresh, S/o Janardhanan,

                                                                           Parachalil House,

                                                                           Kumaramangalam P.O.,

                                                                           Thodupuzha, Idukki District.

        (By Adv:   Soniya Sunny)

And

Opposite Party                                          :  1 . The General Manager,

                                                                              KTC Automotive Company, N.H.47, 

                                                                              Muttam, Kalamassery, 

                                                                              Kochi – 683 106. 

                                                                              (By Adv.Biju Abraham)

                                                                         2 . The General Manager,

                                                                               Mahendra India, World Head Quarters,

                                                                               Maheendra Tower, G.M.Boresel, 

                                                                               Marge Morly, Mumbai – 400 018, 

                                                                               Maharashtra

(By Adv: Lissy M.M. and  Adv. Sunil C.G.)

 

O R D E R

SRI. S. GOPAKUMAR (PRESIDENT)

 

The case  of the complainant is that,  

 

The complainant had got booked one Mahindra Bolero SLX White Car  with the first opposite party through their agent, when he approached the complainant's house at Thodupuzha on 10/12/15 by paying an amount of Rs.5000/- as booking money.  At that time the first opposite party issued a proforma invoice/ quotation of the first opposite party to  the complainant and assured that the car shall be delivered to him within one week or on or before 10/12/15.  At the time of booking the vehicle the first opposite party said that the  ex showroom price of the car is Rs.7,99,370/- and they given an amount of Rs.67,208/- as discount.

                                                                                                                          (Cont.....2)

-2-

As assured by the first opposite party complainant approached them on 16/12/15 for providing the car along with the balance amount, the first opposite party failed to do so and they postponed the delivery of the vehicle to another day.  Thereafter so many time the complainant approached the first opposite party for getting the vehicle, each and every time the first opposite party delayed the delivery of the vehicle on false and baseless excuses.  At last on 24/02/16 complainant issued  a legal notice to both the opposite parties and demanded to deliver the car.  On that notice the second opposite party replied that, they are trying to enquire the matter with the first opposite party and they requested some more time for solving the issue.  Thereafter till day no effort was taken by the opposite parties to deliver the car  or redress the grievances of the complainant.  Complainant further averred that, being a business man  he is in dare need of a vehicle for his business as well as family purpose.  So that he happen to book the vehicle through the agent of the first opposite party.  Due to the non- delivery of the vehicle as promised by the first opposite party, he happened to hire other vehicle for his daily use, thereby he caused to spend an amount of Rs.1500/- per day as taxi charge. 

 

The complainant further  contented that, the act of the opposite parties are gross deficiency in service and unfair trade practice.  This caused much mental agony and financial loss to the complainant.  Against this act of the opposite parties, the complainant approached this Forum for getting relief such as to direct the opposite parties to pay an amount of Rs.2 lakh as compensation along with refund of the booking amount and cost of the complainant.

 

The complainant was contested by the opposite parties 1 and 2  and filed separate written reply.  In their reply version the first opposite party  admitted the booking of the vehicle and issuance of proforma invoice of the vehicle in question.  Further contented that the team leader of the first opposite party, who had interacted with the complainant informed that the said model of the vehicle is not readily available and the vehicle can be delivered only after 30-45 days, which was acceptable to the  complainant.  But this Variant was limited stock, and this fact was informed to the complainant and requested him to approach the office of the first opposite party to explore the possibility of converting the booking to top end variant, but the complainant was not amicable for the same.  By  the  beginning  of  February 2016, when the vehicle

                                                                                                                           (Cont.....3)

-3-

booked by the complainant was available, the same was again informed to the complainant, and the complainant did not turned up, thereafter the executive contacted the complainant  and requested him to cancels the booking, but the complainant did not send any communication from his part for the cancellation  of that order.

 

The first opposite party further contented that in the enquiry and booking made by the complainant, he had made it clear that he wish to purchase the vehicle by availing finance from IndusInd bank and he never took any invoice from the first opposite party enabling to avail finance and also he never turned up to the office of the first opposite party for making any further enquiry with regard to the vehicle except the communication made over phone from their office to the complainant.  The first opposite party further contented that, the vehicle had been booked by the complainant in his personal name and for private use, and more over he had not a case that he had brought in the entire sale price for taking delivery of the vehicle on the day stated in the complaint.

 

Hence there is no deficiency in service from the part of this opposite party.  

 

In their reply version, the second opposite party  contented that the transaction with them to the first opposite party are on principal to principal basis.  The dealer places bulk orders for different vehicles and the second opposite party  supplies vehicle in large numbers.  The second opposite party need not know about the ultimate  buyer at the time of sale by the dealer the second opposite party never had any transactions with the complainant and thereafter there is no privity of contract between them.  Therefore the complaint  is against the second  opposite party is liable to be dismissed on the above mentioned grounds.

 

The second opposite party further contented that, it is admitted by the complainant himself that the second opposite party issued a reply.  Since the second opposite party was not at all involved directly in the sales transaction, no further reply was necessitated,  and the second opposite party had taken prompt action by forwarding the complaint to the concerned dealer, especially  the complaint is regarding a sales transaction. 

                                                                                                                          (Cont.....4)

-4-

 

Complainant produced evidence in support of his averments, and complainant was examined as PW1 and Ext. P1 to Ext.P6 were marked.  From the defence side the second opposite party has filed proof affidavit through there Area Manager,  Aneesh M. Varghses.  No effort was taken by the first opposite party to adduced any evidence either orally of documentarily.  Ext.P1 is the quotation/ proforma invoice issued by the first opposite party, Ext.P2 is the vehicle booking docket, Ext.P3 is the copy of legal notice dated 24/02/16, Ext.P4 is the postal receipt (2 nos), Ext.P5 is the AD card (2 nos), Ext.P6 is the reply notice of the second opposite party.

 

Heard both sides, 

 

        The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties, and if so, for what relief the complainant is entitled to ?

 

The Point:-   It has been submitted by the learned counsel for the complainant that, the first opposite party miserably failed to deliver the vehicle as stated in the complaint in detail, even after they received the booking amount and issuance  of Ext.P1 invoice  and Ext.P2 booking docket.  Even though they accept the legal notice, they has not cared to respond it.  The  first opposite party took the matter at most negligently and carelessly and not even adduced any evidence before this Forum for substantiating the version of their reply.  Hence it is a fit case  for invoking deficiency in service and unfair trade practice against the first opposite party.  On the other hand the learned counsel for the second opposite party vehemently argued that the manufacturer sells the vehicle to its dealers, by raising invoices are not involved in the sales transaction with the end customer.  The second opposite party had no occasion to interact with the complainant at any point of time and there was no transaction with them.  The counsel further stated that, the business dealership is on the basis of clear terms and agreement between the dealer and manufacturer and the second opposite party is not a party in issuing any booking docket or given any assurance regarding the delivery of the vehicle.  Hence no deficiency of service or unfair trade practice is happened on the part of these opposite parties.

 

                                                                                                                          (Cont.....5)

-5-

We have heard the counsel for the complainant and the second opposite party and have gone through the evidence on record of the case, carefully.

 

The first question that falls for consideration is, as to whether the vehicle in question, was booked by the complainant by paying an amount of Rs.5000/- and in lieu of that the first opposite party issued Ext.P1 and Ext.P2 quotation and booking docket.  Whether the second opposite party had any role in this transaction.  It is an admitted fact that the first opposite party received an amount of Rs.5000/- as booking amount for a Bolero SLX White Vehicle and issued a quotation/Proforma Invoice to the complainant.  Also issued Ext.P2 booking docket.  It is also an admitted fact that, the complainant approached the first opposite party for getting the vehicle delivered, so many times, at last he constrained to issue a legal notice to both the opposite parties, and even after the acceptance of the legal notice, the first opposite party had not cared to consider the matter positively, not even send a reply to their notice, stating the reason that why they had not delivered the vehicle to the complainant, or there is any short coming from the part of the complainant.  In their version the first opposite party contented that in the enquiry and booking made by the complainant he had made it clear that he wish to purchase the vehicle by availing finance from IndusInd bank and he never took any invoice from this opposite party enabling him to avail finance.  On going through the above contention of the first opposite party, Forum is of a considered view that, it is the option of the complainant to raise money from the financial institution or some other way to purchase the vehicle, and the first opposite party has no right to enquire or go deep in such matters.  Here, the liability of the first opposite party is only to convince the Forum that why they had not delivered the vehicle to the complainant.  Hence the opposite parties had miserably failed to adduce any evidence to substantiate their version.  No effort is taken by the first opposite party to shift their liability to the second opposite party or had not produced any evidence to show that, whether they placed the booking to the second opposite party, and the second opposite party is solely liable to answer this question.

 

Evidence produced by the complainant is more than sufficient to fasten the liability  upon the first opposite party alone.  But the complainant failed to produce any evidence to show that he suffered a heavy loss as alleged in the complaint.  

                                                                                                                         (Cont.....6)

-6-

Hence the complaint allowed in part.  The first opposite party is directed to repay an amount of Rs.5000/- to the complainant along with 12% interest from the date of booking, and also directed to pay an amount of Rs.10,000/- as compensation to the complainant for the deficiency in their service that happened in this matter, within one month from the date of receipt of the copy of this order,  failing which compensation  amount  shall carry 12% interest per annum from the date of default  till the realization

 

     Pronounced in the Open Forum on this the 30th  day of May, 2018.

 

   

                                                                  SRI. S. GOPAKUMAR (PRESIDENT)

 

                                                                                                                                                                                                                                                                

  SRI. BENNY. K.  (MEMBER)

 

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1               - Suresh P.J

On the side of the Opposite Party :

DW1              - Aneesh M.Varghses

Exhibits :

On the side of the Complainant :

Ext.P1          -  The quotation/ proforma invoice issued by the first opposite party

Ext.P2          -  The vehicle booking docket

Ext.P3         - The copy of legal notice dated 24/02/16

Ext.P4         - The postal receipt (2 nos)

Ext.P5         - The AD card (2 nos)

Ext.P6         - The reply notice of the second opposite party

On the side of the Opposite Party :

Nil.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Forwarded by Order,

 

 

 

 

SENIOR SUPERINTENDENT