<br /> ORDER<br /> <br /> Sri.K.Gopalan: President<br /> This complaint is filed under Section 12 of the Consumer Protection Act for an order directing the opposite parties to pay Rs 1,00,000/- with interest and cost. <br /> The averments in the complaint in brief are as follows. The complainant booked a Kwalis vehicle by giving an advance Rs 50,000/- to Amana Toyota. Knowing this 2nd opposite party by the direction of opposite party no.1 on the advice of 3rd opposite party approached the complainant to make believe him that Maruthi Versa is better than Kwalis vehicle. Thus he changed to cancel the booking of Kwalis vehicle and booked by compulsion Maruthi Versa obtaining a cheque of Rs 15,000/- in the name of the company. As per the assurance of delivery on 17.1.2004 complainant waited in the office of the opposite party from morning itself. Upto 8 ‘o clock night complainant was compelled to wait on the assurance repeatedly saying “ will reach immediately”,’ will reach immediately’ and finally the vehicle M.A.3E.B.K.1500-106414 ( chassis no.) G13.B.B.N.158938(engine no.) delivered to complainant at night. Opposite party no.2 delivered the vehicle at his house. The registration number of the vehicle is K.L.13/K.8307 . On the very next day when complainant used to run the vehicle there was loud sound and could see also bends on two doors and tearings on ceiling wood. Complainant could not examine the vehicle since it was delivered at night and further it was driven by opposite party no.2 to take it at his house. The complainant then understood the reason why the vehicle was purposefully delivered during night. The defects were reported to opposite parties by complainant himself . At the time of booking opposite parties were compelled the complainant to record it as Taxi. They made believe him that Rs 35000/- will be given as subsidy if it is done and for that ,also obtained complanant’s signature on certain papers. But complainant was given only less than Rs 20,000/-instead of Rs 35000/-.The delivery note, given to complainant when the vehicle placed for service recorded bend of the door, tearing of ceiling wood and loud sound of the vehicle etc. The opposite parties assured the complainant that another vehicle will be issued immediately . Since the vehicle has not been delivered till 18.2.2004 complainant gave a direct notice to opposite parties on 19.2.2004. On receiving the notice opposite parties assured him to a new vehicle within one month and the delivered vehicle has taken back and kept in their work shop in Kannur. But complainant was called to the office by opposite parties 1 & 2 and told that there are people to purchase the vehicle so that it can be sold for good price and thereafter new vehicle will be delivered. On the basis of this assurance the vehicle was sold on 28.3.2004 to one P.V. Mujib Rahman from Malappuram, who was brought by opposite parties. Opposite party caused a loss of Rs 62,000/- to complainant by this transaction. Complainant purchased this vehicle for his livelihood. But he could use the vehicle for even a single day. Heavy loss both financial and mental caused to complainant due to the deficiency in service on the part of the opposite parties. The financial loss is out of subsidy amount of Rs 15,000/- and the loss of Rs 62,000/- in the sale of the vehicle. The mental agony cannot be measured in terms of money. A cheque for Rs 1500/- was given as the first instalment towards the loss sustained by the complainant and assured by opposite parties 1 & 2 that the balance amount will be paid before 20.6.2004 on consultation with 3rd opposite party. But there was no payment thereafter. Complainant issued a lawyer notice on 22.6.2004, in which it was happened to put the number of vehicle wrongly as K.L.13/K 8237 instead of K.L.13/K 8307. Though there was assurance there was no payment. Hence this complaint.<br /> Forum issued notice to both parties. Opposite party no.3 did not appear before the Forum nor filed version. Opposite party no.3 subsequently declared exparte. Opposite parties 1 & 2 filed joint version.<br /> The contention of opposite parties 1 & 2 in brief are as follows. The allegation that opposite party no.2 approached on the direction of opposite party no.1 on the advice of opposite party no.3 and induced to cancel the booking for Kwalis vehicle and obtained a cheque in the name of the company of opposite parties and booked Maruthi Versa are all false and fabricated story. It is denied as it is not correct that the complainant was waited in the office of the opposite parties on 17.1.2004 and saying “ vehicle will reach immediately” “ reach immediately” and finally vehicle was delivered night at 8’o clock . Vehicle was reached to the office of the first opposite party in the morning itself on the day 17.1.2004 agreed to deliver .It was late for some time only because of doing the fitting works as directed by the complainant. After finishing the fitting works complainant took the vehicle in the day light itself. It was for using the vehicle for the marriage of complainant’s relative on the next day the fitting work including sterio was done. It was also endorsed there is no complaint with respect the vehicle. Opposite parties came to know the fact that a Kwalis vehicle was booked earlier by the complainant only after the delivery was taken. The vehicle Kwalis was booked under the Drivers scheme for running as taxi but at the same time attempted to take loan from the ICICI bank hiding the fact that it was booked as taxi. ICICI rejected the loan knowing this fact and complainant himself turned from purchasing the Kwalis withdrawing the amout and approached these opposite parties . These opposite parties have no connection with respect to the booking and all. It was not correct that the next day when the vehicle was used there was huge sound and also seen two doors bend and the ceiling wood has torn .It was also not correct that the vehicle was drived to complainant’s house by the 2nd opposite party It was lie that the complainant has informed the opposite party about the deficiency in service. Opposite party contened that it was lie that these opposite parties made believe the complainant to record as taxi and obtained signature saying that he will get Rs 35000/- and gave only less than Rs 20,000/- instead of Rs 35,000/- Complainant booked the vehicle himself under the Drivers scheme . At that time , first opposite party told, certain percentage of total amount, will get as subsidy. Opposite parties never told the complainant that he will get Rs 50,000/-as subsidy. It is a part of policy decisions of the company only. Opposite parties have no connection with those decisions. It is not correct to say that it was recorded in the delivery note that the bending of doors, tearing of ceilings and of soundness etc when the vehicle was placed for service itself . As per delivery note it was recorded only that the vehicle was received with full satisfaction. It was lie to say that the opposite parties were promised to replace a new vehicle. Opposite parties denied the allegation of the complainant that he had sent a notice on 19.2.2004 since the vehicle was not delivered till 18.12.2004 and promised to deliver a new vehicle by which the vehicle had been kept in the workshop of opposite parties in Kannur. Complainant never approached these opposite parties after the delivery of the vehicle. It is also denied the averment that these opposite parties induced the complainant to sell the vehicle to one P.V. Mujeeb Rahman in Malappuram and thereby caused a loss of Rs 62,000/-. Complainant reported only default of the vehicle without producing the vehicle. When he asked to produce the vehicle he disclosed the fact of sale. If there was found any default it might have happened after delivery due to the negligence of the complainant. These opposite parties were ready to carryout repair of those defaults . But complainant did not bring the vehicle instead sold to another person. It is not correct to say that Rs 15,000/- were given to meet the loss but out of compulsion that some offer is necessary since other dealers in Kannur are giving various offers. Opposite parties were never offered to pay balance amount by paying Rs 1500/-. After receiving the notice these opposite parties were not given any offer to complainant. The complainant is not entitled to get compensation of Rs 1,00,000/-as demanded. Complainant is a broker. At the time of purchasing the versa vehicle it was shown as private vehicle in loan transaction whereas in booking vehicle it was shown as taxi. It was out of the fear that these facts will be come out through these opposite parties, this complaint was lodged. The vehicle purchased for the purpose of livelihood not brought to these opposite parties for repair, though told there was defects. It was sold even without the consent of the Bank. Hence prays to dismiss the complaint. <br /> On the above pleadings the following issues have taken for consideration.<br /> 1. Whether there is any deficiency on the part of the opposite party?<br /> 2. Whether the complainant is entitled for the relief as prayed in the complaint.<br /> 3. Relief and cost.<br /> The evidence consists of the oral evidence of complainant as PW1,DW1 and documentary evidence Exts. A1 to 11. <br /> Complainant has stated in his affidavit that he has booked for a Kwalis vehicle by giving an advance of Rs 50,000/- and later cancelled it by the instigation of opposite parties. Ext. A1 payment advice dated 20.1.2004 shows that D.D.bearing no.194454 drawn on Federal Bank Ltd, Cannanore for Rs 50,000/- being the payment of refund of booking amount sent to complainant K.P. Shihabudheen by the authorized signatory of Amana Toyota VPK Motors (P) Ltd. Ext.A1 is an evidence to prove that booking amount Rs 50,000/- has refunded to complainant. But it does not prove that it was as a result of opposite parties instigation to cancel the booking. Complainant alleges that the vehicle delivered by the opposite party was at about 8’o clock night. But there is no supporting evidence to prove the time of delivery. Ext.A3 the delivery receipt is produced to prove that the vehicle Maruthi had taken delivery by complainant Shihabudeen from the opposite party on 17.1.2004. The time of the delivery has not been mentioned in Ext.A3. Ext.A4 certificate of registration gives detailed description including Maker’s classification Maruthi Versa DX. If the vehicle is registered registration is done when the vehicle is in running condition. The next case of the complainant is that the very next day of delivery of vehicle there was huge sound and on examination he has witnessed defaults on door and ceiling. He could see two bends on door and tearings on ceiling . Except the affidavit there is no evidence to prove the said defaults of the vehicle. Complainant states that he has booked the vehicle for intending to make use of the vehicle as taxi by which he will be able to earn for his livelihood. But going through the evidence it can be seen that he has booked the vehicle so for the purpose of getting subsidy. Complainant has produced the copy of payment order sent for and on behalf of Maruti Udyog Ltd so as to prove that he has got that much amount only from opposite party. Complainant’s allegation that he will get Rs 35,000/- as subsidy if vehicle is booked for taxi is not proved. In the cross examination complainant deposed as follows:<br /> <br /> <br /> <br /> The definite answer by the complainant is yes. Moreover there is no evidence to show that opposite parties induced him by saying so. Ext.A5 the payment order helps to prove only that Rs 19972/- has been paid to complainant and not more than that. The question of subsidy of Rs 35,000/- cannot be proved by Ext. A5 payment order. Complainant stated in his affidavit thus:<br /> <br /> <br /> In Ext.A4, the relevant pages 1 to 5 of R.C. book giving detailed description of the vehicle but there is no details regarding the above said defaults in any one of the pages produced by the complainant. If it is in some other pages complainant should have produced that relevant pages also. The complainant also alleged that the opposite parties were assured to deliver new vehicle to complainant. No supporting evidence could be produced in order to establish such allegation. It is also alleged by the complainant that he has given a notice on 19.2.2004 to opposite parties and on receiving the notice opposite parties 1 & 2 assured him that a new vehicle will be delivered within one month and as per such assurance the vehicle brought and kept in the work shop of opposite party in Kannur for which also there is no evidence . Complainant’s allegation that one V.V. Mujib Rahman was brought to him by opposite parties and told that he will get good price for the vehicle and thereafter a new vehicle will be delivered and on their instigation the vehicle Maruthi was sold to that person are also not proved. No attempt were being made to examine Mujeeb Rahman. Ext. A6 is the copy of sale agreement.It does not to prove that the complainant sustained a loss of Rs 62,000/-out of that sale. The scrutiny of the entire evidence placed before the Forum does not prove anyone of the allegations raised by the complainant. The copy of the lawyer notice Ext.A7 is not a notice but only a request sent by complainant himself. That too creates more contradiction such as the following:<br /> <br /> The earlier version of the complainant is quite contrary to this statement. As per earlier version there was huge sound on the very next day and also the tearing of ceiling was seen as if it had been existing already whereas , this version indicates that these defects were developed while using the vehicle. Thus it is an inconsistent version which cannot be believed at all. Thus the complainant failed to establish that there is deficiency on the part of the opposite party. Complainant is not entitled to get any compensation. Hence the issues 1 to 3 found against complainant.<br /> In the result the complaint is dismissed. No order as to costs.<br /> <br /> Sd/-MEMBER Sd/-MEMBER Sd/- PRESIDENT <br /> APPENDIX <br /> Exhibits for the complainant<br /> A1. Photo copy of the payment advice dt. 20.1.2004 issued by Amana Toyota VPK Motors(P) Ltd.<br /> A2. Photo copy of the invoice dt. 17.1.2004 issued by the opposite party.<br /> A3.Delivery receipt dt.17.1.2004<br /> A4. Photo copy of certificate of registration of KL 13K 8307<br /> A5. Photo copy of the cheque dt.8.4.2004 for Rs 19,972/-<br /> A6. Photo copy of the motor sale agreement dt.28.3.2004<br /> A7. Photo copy of the letter dt. 19.2.2004 sent to the opposite party.<br /> A8. Photo copy of the cheque for Rs 1500/-<br /> A9. Copy of the lawyer notice dt. 22.6.04 sent to the opposite party.<br /> A10. & A11. Acknowledgement card signed by the opposite parties.<br /> Exhibits for the opposite party – NIL<br /> Witness examined for the complainant<br /> PW1. Complainant<br /> Witness examined for the opposite party <br /> DW1. Vilasini K Prasad.<br /> Forwarded/ by order <br /> SENIOR SUPERINTENDENT<br /> <br /> <br /> <br />