BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.8/2013

Dated this the  14^th day of December 2016

(Date of Institution: 01.04.2013)

B. Baskaran, son of Balakrishnan

Rep. by Power of Attorney B. Karunakaran

Son of Balakirushnan

No.23, Gangai Amman Koil Street

Thattanchavady, Puducherry – 605 009.

 ….    Complainant

vs

1. The Manager

    M/s MPL Ford

    No.101, 100 Feet Road, Chozhan Nagar

    Puducherry – 605 004

2. The Managing Director

    M/s Ford India P Ltd.,

    Block – 1B, 1^st Floor, RMZ Millenia Business Park

    Perungudi, Chennai – 600 096.

                                       ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru A. Arokiadass,  Advocate      

FOR THE OPPOSITE PARTY:  Thiru S.P. Vassudevan, Advocate

O R  D  E  R

(by Thiru V.V. Steephen, Member)

            This is a complaint filed by the complainant u/s 12 of Consumer Protection Act, 1986 to direct the opposite parties to award compensation of Rs.55,000/- towards legal expenses and Rs.2,50,000/- towards mental agony and to direct the opposite parties not to do unfair trade practice in future.

2.  The case of the complainant is as follows:

          The complainant stated that he is a practicing Advocate at Madras High Court.  The complainant approached the first opposite party for buying a Ford Figo car.  On 05.03.2012 the complainant has paid an advance of  Rs. 10,000/-  towards booking of the Ford Figo car, vide receipt No. FIABB09526RE dated 05.03.2012.  Thereafter the complainant came to understand that there is no power window provision in the back door in all the models of Ford Figo cars.  So the complainant was inclined to opted some other branded car and feel so inconvenient for him to buy the Ford Figo Car.  On 21.06.2012 the complainant wrote a letter to the second opposite party stating that the complainant has withdrawn the Order Booking in vide receipt No. FIABB095263RE   dated 05.03.2012 for an amount of
Rs. 10,000/-.  But there was no response from the first opposite party herein.  On 07.07.2012, the complainant sent Errata for to read the date as 21.06.2012, instead of 25.04.2012.  The first opposite party has received it on 22.06.2012, but not responded.  The complainant visited the opposite party No.1 office on 26.06.2012, 29.06.2012, the manager of the opposite party No. 1 promised to return the money and asked the complainant to visit back on 03.07.2012, 06.07.2012, 11.07.2012, 13.07.2012, 18.07.2012, 21.07.2012, 25.07.2012, 28.07.2012, 02.08.2012, 09.08.2012, 21.08.2012, 23.08.2012, 25.08.2012, 29.08.2012, 04.09.2012, 06.09.2012, 12.09.2012, and 18.09.2012, but they dragged to pay the money to the complainant.  The complainant has sent a Lawyer Notice on 24.09.2012, to the Opposite party No.1 herein and marked the copy to opposite party No.2  demanding the advance amount and the damages for the compensation.  Opposite party No.1 and 2, were received the notice, respectively on 26.09.2012 and 27.09.12.  But none of the opposite party respondent to the complainant.  The complainant stated that the opposite party No.1 and 2 are liable to refund the
Rs. 10,000/- to the complainant herein.  The complainant further stated that the opposite parties have committed the “Unfair Trade Practice”, and “Restrictive Trade Practice”  which is not permissible under the competition act and the consumer protection laws in India.  The complainant stated that he suffered from mental agony, since he was not responded the correspondences of the complainant.  The complainant herein visited several time, in-person to the opposite party No.1 show room, thereby thrown form pillar to post.  The complainant further submitted that the complainant suffered pecuniary loss and mental agony damages due to non- refunded the advance amount paid by the complainant herein. Hence, this complaint.

3. The reply version filed by the first opposite party and adopted by second opposite party briefly discloses the following:

            The complainant has not directly approached this Hon’ble Forum for his alleged grievances since, the cause-title states that he is represented by a Power of Attorney namely Karunakaran.  Prima facie such approach for any relief is totally barred under the act.  Further there has been no documentary evidence to show that the said Karunakaran has been authorized to file the present complaint.  On 05.03.2012 the complainant had booked a Ford Figo Car by paying an advance amount of Rs. 10,000/- with this opposite party.  At the time of booking the complainant informed that he is arranging funds through HDFC Finance.  Further, the complainant is defaulter in the repayment of his loan, and therefore HDFC declined to give Finance to the complainant.  Thereafter the complainant made an attempt with other private finances wherein they have also rejected his request.  Thereafter he came with a letter on 19.03.2012 to the opposite party and stated that he is not in a position to arrange funds and decided to take the car in the name of one Mr. Karunakaran in whose name the car loan could be processed, also requested that the advance amount paid by the complainant be transferred to the name of the said Karunakaran.  Wherein the first opposite party requested the complainant [i.e. Baskaran] to get a letter of acceptance from the said Karunakaran in this context.  But, till date he had not submitted such letter to the opposite party.  This opposite party further stated that after a period of two months i.e. on 21.06.2012 the complainant sent a letter to the first opposite party by cancelling the order of booking dated 05.03.2012 and demanded for return of the advance amount of Rs. 10,000/- to the complainant.  Subsequently the complainant, when he personally approached this opposite party, he was explained the terms and conditions agreed upon and signed by him at the time of booking the car.  In which as per Clause No. 8 “Cancellation of bookings will attract a cancellation charge of Rs. 5000/-.  The balance amount other than cancellation charges will be refunded only by cheque and will be given within 2 to 3 weeks days from the date of receiving cancellation letter”. Immediately after the discussion with the accounts department this opposite party drew a cheque for the refundable amount of
Rs. 5,000/- and handed over the same to the complainant.  For the reason best known to him he refused to accept and left the opposite party’s business office without mentioning anything.  The complainant repeatedly came to this opposite party and called upon the sales officer and forced him to refund the entire booking amount.  The sales officer concerned immediately referred the matter to management.  After that, it has been decided by the opposite parties to return the entire amount and when the payment was taken to the door steps in person in the month of October 2012,  he could not be contacted and thereafter the opposite party sent the instrument through Registered Post to the complainant.  The same was duly received by him and he has also encashed the said amount.  But, unfortunately the complaint is totally silent about the receipt of the payment.  The complainant has wantonly committed all these acts and there has been no deficiency caused to him by this opposite party in any manner.  Inspite of him having agreed to the terms and conditions the opposite party has refunded the entire advance amount paid by him.  Hence, prayed for dismissal of the complaint.

          4.   The complainant was examined though the power agent Mr. Karunakaran as CW1 and EX. C1 to C9 and EX R1 and R2 are marked though him.  The opposite parties have endorsed no oral evidence on their side on 10.03.2015 but thereafter on 10.03.2016  Thiru D. Purushothaman,  Sales Manager of opposite party was examined as RW1 and Ex. R3 was marked through him.

5,  Points for determination:

          1. Whether the complainant is a consumer?

          2. Whether any unfair trade practice was adopted by the opposite parties?

          3. Whether complainant is entitled for any relief?

6. Point No.1

The complainant has made an advance payment of Rs. 10,000/- dated 05.03.2012 (vide receipt no. FIABB09526RE) for purchase of Ford Figo car with 1^st  Opposite Party, who is the dealer of Ford Figo car manufactured by the 2^nd opposite party concern and since a consideration in part was received by Opposite Party  No.1 from the complainant for purchase of Ford Figo car from Opposite Party  No.1 and Opposite Party  No.2 being the manufacturer, the complainant is considered to be a consumer as against the Opposite Party  as per sec. 2 (d) (i) Consumer Protection Act.

7. Point No: 2

  The complainant intending to purchase a Ford Figo car has paid on advance amount of Rs. 10,000/- with 1^st opposite party on 05.03.2012 who is the dealer of the same.   Later on the complainant coming to know that there is no power window   provision in the back door of the car had sent a letter  on 21.06.2012 to opposite party No.1 withdrawing the booking done by the complainant and claimed for the refund of the entire advance amount of Rs. 10,000/- paid by him.  Since there was no response from the opposite parties the complainant preferred this complaint against the opposite parties on allegations of unfair trade practices.

8. The opposite party denied all the allegations leveled against them and submitted that  even though the terms and conditions of booking of car doesn't warrant  the opposite party to refund the entire advance amount, the opposite party had refunded the entire advance amount in the month of October 2012 to complainant and pleaded that no unfair trade practice was adopted by the opposite parties.

9.  Both side records and evidence of the complainant and opposite party were perused by this Forum and observes   as follows. 

The complainant was filed by power agent on the basis of power deed executed by the complainant (Ex.C9).  It was contended by the opposite party that complaint filed by the power agent is not maintainable under the Consumer Protection Act.  Regarding the issue of maintainability of the complaint filed by the power agent it was held  by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi  in R.P. No. 4516/2014 [JAGNNATH MUTRAJA VS UTTAR PRADESH AWAS EVAM VIKAS AND ANOTHER] reported  on 16.07.2015 that "the complaint filed by the power agent on the behalf of the  complainant is maintainable"  and in view of this findings it is held by this Forum that the present complaint filed by the power agent on behalf of  the complainant is maintainable before this Forum and the contention raised by the Opposite Parties that power agent has not produced any documentary  evidence authorised by the complaint to present the complaint  and that the power agent is not a competent  person to file complaint on behalf of the complainant is  not sustainable.

           On perusal of the complaint it was  observed that the complainant has paid a sum of Rs. 10,000/- on 05.03.2002 as advance amount to the Opposite Party No.1 towards the purchase of the Ford Figo car and acknowledging the same as advance amount the Opposite Party No.1 has issued a receipt for it  (Ex C2).  On 21.06.2002 the complainant has sent a letter (Ex.C3) to the OP1 cancelling the booking for the reason that this model of car doesn't have power window provision in the back windows and claimed for the refund of entire advance amount paid by the complaint.  It is contended by OP that the reason cited by the complainant is not genuine for which OP have produced the booklet of Ford Figo car (Ex R3) describing the features of the car. On perusal of (Ex R3) it is observed by the forum that the reason mention by the complainant for cancellation of booking is proved to be genuine as the booklet produced by  Opposite Party No.1 itself (Ex.R3) clearly reveals that the Ford Figo car doesn't have power window provisions in the back windows and  hence the contention of Opposite Parties that the reason mentioned by the complainant for withdrawal of booking car is invented for  the purpose of this case doesn't hold good . 

10. It is contended by the complaint that the Opposite parties have put the complainant to great Hardship by making him to visit the Opposite Party No.1's office for several times seeking for refund of advance amount paid by the complainant.  The reply version of the Opposite Party No.1 itself clearly supports the contention of the complainant that the complainant has visited the Opposite Party No1's office several times seeking for refund of advance mount.  The reply version of the Opposite Party No.1 in the 3^rd page is as follows.

"The complainant repeatedly came to the opposite party and called upon the sales offices and forced him to refund the entire booking amount."                      

11. It is pertinent to note that the letter of cancellation of booking was sent by the complainant to the Opposite Party No.1 on 21.06.2012 and a advocate notice was sent to the opposite party claiming for the same on 24.09.2012 but no response was given by the Opposite Parties either for the cancellation letter or for the advocate notice and it is only in the month of November 2012 the advance amount was refunded to the complainant i.e only after filing of this complaint.  As per the terms and conditions in Ex.R1 of clause 8 "Cancellation of bookings will attract a cancellation charge of Rs. 5000/-.  The balance amount other than cancellation charges will be refunded only by cheque and will be given within 2 to 3 weeks days from the date of receiving cancellation letter”.  On the perusal of the above facts it is observed by the forum that the complainant has received the advance amount only after filing of the complaint before this Forum in November 2012 i.e after 4 months from the date of receipt of cancellation letter of the complainant by the Opposite Party  and these acts reveal the wayward attitude of the Opposite parties in not adhering to the terms and conditions mentioned in (Ex. R-1).  Even though the Opposite Party No.1 has repaid the entire advance amount , the hardship suffered by the complainant from the acts of Opposite Party No.1 in getting back the advance amount would have caused mental agony to the complainant.

12. It is further observed by the Forum that even though the complainant is entitled only to receive a sum of Rs. 5000/- from a total sum of advance amount of Rs.10,000/- as per rule 8 of terms and conditions (Ex. R-1),  the Opposite Party No.1 has repaid the entire advance amount to the complainant.  Considering the acts of Opposite Party No.1 in making the repayment of entire advance amount to the complainant, this Forum is of the view that awarding a minimal amount of compensation to the complainant would be just and proper for the mental agony suffered by the  complainant due to the unfair trade practice of the opposite parties.

13. In view of the discussions made in the paras supra it is held by this Forum that opposite parties are liable for mental agony suffered by the complainant  due to the opposite partys' unfair trade practice.  This point is answered accordingly.

14. Point No.3

In the result the complaint is allowed.  The opposite parties are jointly and severally held liable and directed  

1. To pay the complainant a sum of Rs.10,000/-as compensation for the mental agony suffered due to the unfair trade practice of the opposite parties.
2. To pay a sum of Rs. 5000/- towards the cost of litigation.

The opposite parties are directed to comply with directions aforesaid within one month from the date of the receipt of this order.  

Dated this the 14^th  day of  December 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           30.12.2014           Karunakaran      

OPPOSITE PARTY'S WITNESS:

RW1           10.03.2016           D. Purushothaman

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER