IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Thursday the 23^rd day of March, 2023.

                                      Filed on : 08.12.2022

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. P.R.Sholy, B.A.L,LLB (Member)

In

CC/No.313/2022

      between

Complainant:-                                                    Opposite parties:-

Sri.Sreekumar.P.S                                      1.       The Manager

Sreeragam                                                            NCS Automotives

Mannanchery P.O.                                               NH 66, Kallummoodu

Alappuzha-688538                                             Kayamkulam-690502

(Adv.M.V.Viswabhadran)                                  (Adv.V.Krishna Menon& C.Muraleedharan)

                                                                   2.      Sri.Rajimon

                                                                            Sales Executive, Tata motors

                                                                            Arattuvazhi, Alappuzha-7

                                                                            (Exparte)

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.35 of the Consumer Protection Act, 2019.

Material averments briefly stated are as follows:-

 It was decided to give a car as a gift for the niece of the complainant  who was getting  married on 17/4/2021.  Accordingly he contacted the 1^st opposite party who is a dealer of  TATA Motors Alappuzha.  2^nd opposite party who is a sales executive of  the 1^st opposite party entered into an agreement on 26/1/2021 with the complainant and Rs.  10,000/- was given by account transfer.  At the time of executing the document it was agreed that the car will be delivered by the end of March 2021. Since there was no information complainant contacted the  opposite party and it was informed that there is some difficulty  since a chip is to be imported.

2.       Two days prior to the marriage information was received from the opposite parties that the  vehicle will not be delivered. They were not attending phone call. So far opposite parties have not contacted complainant and has not returned the  advance amount of Rs. 10,000/-. Since the   vehicle was not delivered as promised complainant could not give the car as present  during the marriage.  The  brother in law of the complainant Sri.Sathyapalan filed a  complaint before the Taluk Legal Services Committee but due to the  absence of opposite parties the complaint was dismissed. Since Sri.Sathyapalan is suffering from ear balancing problem the complaint is filed for and on behalf of him.   It is prayed that opposite parties may be directed  to return the  advance amount along with interest and appropriate compensation may be allowed.

3.       1^st opposite party filed a version mainly contenting as follows:-

 The complaint is not maintainable since  the complainant is not a consumer.   From the complainant it is seen that it is filed  for  and on behalf of  one Sri.Sathyapalan. K.R who  is suffering from ear balance problems.   It is not a ground for the present complainant filing the complaint without an authorization.

4.       Sri.Sathyapalan having expressed a desire  to book for a TATA Nexon car the executives of this opposite party had provided him with  requisite details as sought for  by him  whereupon Sri.Sathyapalan had of his own volition on 29/1/2021 booked for a TATA Nexon car after being  convinced of the same in the name of Miss.Aiswarya.  The booking amount towards booking of the car had been paid from the account of Sri.Vishnu.S, the son of Sri.Sathyapalan. The car was booked after accepting the terms and conditions contained in the order booking form/commitment form.  As per the terms and conditions the customer will have to pay the price of the vehicle as on the date of delivery.  The delivery of the vehicle would depend upon the  availability  of  the particular model and colour with the  manufacturer.   There was no assurance that the car will be delivered within two months.

5.       As there was a worldwide shortage of  electronic semiconductor chips and its supply especially on account of the then prevailing Covid-19 pandemic it had in turn affected the production of cars by the manufacturer and thereby leading to a delay in delivery of the car booked by Sri.Sathyapalan on 29/1/2021.  Sri.Sathyapalan had been duly informed of this fact from time to time.  As the said delay was not on account of any act of this opposite party it is no way liable or responsible for the same.  The allegations raised  against the opposite parties are denied and hence opposite parties are not liable to compensate.  Sri.Sathyapalan has till date not  cancelled the booking  made by him and hence he is not entitled for  refund of the booking amount.  Hence  this vexatious complaint may be dismissed with cost. 

6.       2^nd opposite party remained exparte.

7.       On the above pleadings following points were raised for consideration :-

1. Whether there is any deficiency of service from the part of opposite parties as alleged?

2. Whether the complainant is entitled to realize an amount of Rs. 10,000/- along with interest as prayed for?
3. Whether the complainant is entitled to realize compensation from  the opposite parties as prayed for?
4. Reliefs and costs?

8.       Evidence in this case consists of the oral evidence of PW1  and Ext.A1 to A5 from the  side of the complainant and the oral evidence of RW1 from the side of 1^st opposite party.

9.       Point No. 1 to3:-

PW1 is the complainant. He filed an affidavit in tune with the complaint and  marked Ext.A1to A3, A4 series and A5.

10.     RW1 is the sales head of 1^st opposite party.  He filed an affidavit in tune with version .

11.     The case advanced by PW1, the complainant is that the marriage of his niece  Ms. Aiswarya was to be solemnized  on 17/4/2021.  They had decided to gift a car for the  marriage and accordingly  contacted 1^st opposite party for booking a car. 2^nd opposite party who is  a sales executive of the 1^st opposite party, on  29/1/2021 executed an order and billing form and commitment form. An amount of Rs. 10,000/- was transferred to the account of  the 1^st opposite party from  Sri. Vishnu who is the brother of  Ms.Aiswarya. The booking was in the  name of Ms.Aiswarya who is the bride.   However though it was assured that  the  vehicle will be delivered within  9 months, the  promise was not fulfilled and  about two days prior to the marriage it was informed  that the vehicle will not be delivered on account of  non availability of  electronic semiconductor chip.  According to PW1   thereafter opposite parties did not contact complainant and they were not attending phone calls. Since the car could not be  delivered as a gift during marriage, complainant and his family members sustained  mental pain  and agony. Hence the complaint is filed for realizing the advance amount along with interest  and appropriate compensation.  1^st opposite party filed a version admitting that one  Sri.Sathyapalan who is the brother in law of the complainant had booked a car on 29/1/2021 in the name  of Ms.Aiswarya.  The booking amount was paid by Sri. Vishnu who is the son of Sri. Sathyapalan.  However  according to them there was no promise that  the vehicle  will be delivered within two months.  Due to non availability of electronic semi conductor chips on account of  covid-19 pandemic there was a delay in supplying the vehicle by the  manufacturer and it was informed to Sri. Sathyapalan.   Since the booking was not cancelled the amount was not refunded.  There was no cause for any mental agony. According to them the complaint is only to be dismissed.  Complainant got examined as PW1 and marked Ext. A1 to A3, A4series and A5. From the side of 1^st opposite party the sales head was examined as RW1. The learned counsel appearing for the complainant   relying upon the  evidence tendered by PW1 coupled with documents marked contended that the complaint is proved as per law and so  the complainant is entitled for the reliefs claim. Per contra the learned counsel appearing for the  1^st opposite party pointed out that complaint  itself is not maintainable  since the booking was in the name of Ms.Aiswarya and she is not a party in the complaint.  Further it was pointed out that there was no promise to supply the vehicle on a particular day and   the expected delivery was 9 weeks.  Due to the non availability of semi conductor chip the manufacturer was not supplying vehicles to the 1^st opposite party and  so the delay occurred. Since the booking was not cancelled they had not returned the advance amount. Hence according them  the complaint  is only to be dismissed.

12.     It is true that Ext. A4 Order and Billing form is in the name of  Ms.Aiswarya.  Ext.A2 is the wedding invitation letter of  Ms.Aiswarya. As admitted by PW1 the vehicle was booked for giving as a gift   to  Ms.Aiswarya during her marriage scheduled for 17/4/2021. The learned counsel appearing for the complainant pointed out that the booking  form is in the name of Ms.Aiswarya and she is not a party in the complaint. Since the vehicle was intended to be gifted during the marriage the booking was done in the name of Ms.Aiswarya.  Further in the version it is admitted by opposite party that the booking was done by Sri.Sathyapalan who is the father of Ms.Aiswarya and the brother in law of the complainant. PW1 has produced Ext.A1  executed by Sri.Sathyapalan by which he was authorized to file the complaint for and on behalf of Sri.Sathyapalan.   So the contention that complainant is not a consumer is untenable.  It is also admitted in the version that Sri.  Vishnu son of Sri.Sathyapalan had paid the booking amount. Ext.A4 is the order and billing form dtd. 29/1/2021 in the  name of Ms.Aiswarya.   Ext.A4(c) is the customer  account statement. Ext.A4(a) is the commitment form from which it is revealed that the expected delivery date is 9 weeks.  Admittedly the vehicle was not delivered and the complainant  and his brother in law Sri.Sathyapalan could not present the vehicle as a gift during the marriage of Ms. Aiswarya.  Since it is admitted in the version that booking  was done by Sri.Sathyapalan and that  Sri.Sathyapalan was informed regarding the delay the contention  that  booking was in the name of Ms. Aiswarya  is untenable.   The only contention raised in the version for non returning the advance amount  is that the booking was not cancelled.  PW1 stated that  opposite party were not  attending the  phone calls and so  complainant could not be blamed for not cancelling the booking.   During cross examination  RW1 admitted that they could not deliver the car on the  expected date and they had requested for 2 months time.  RW1 also admitted that since  the  plan was dropped  they had demanded to return the  booking amount. But  so far it is not seen  returned.  RW1 also admitted that they  are liable to return the booking amount.

13.     Since the car was not delivered  complainant is entitled for the booking amount.  According to PW1 the car was booked for giving as a present to Ms. Aiswarya.  Due to the delay in delivery they could  not give the same as a gift during the marriage.  From Ext.A4(a)  commitment form it is seen that the booking was done on 29/1/2021 and the  expected delivery date was 9 weeks. The vehicle was not delivered during the said period and even now also opposite party had not delivered the vehicle.  In said circumstances complainant is entitled for return of the booking amount along with compensation.  As rightly pointed out by the learned counsel appearing for the complainant since the  vehicle could not be given as a gift as decided by them it will definitely cause mental agony.  However considering the entire circumstances in this case we are of the opinion that an amount of Rs. 5000/-  can be given as compensation.  These points are found accordingly.

14.     Point No. 4:-

In the result, complaint is allowed.

a) Complainant is allowed to realize an amount of Rs. 10,000/- along with interest @ of 9% per annum from the date of complaint ie, on 8/12/2022 till realization  from the 1^st opposite party.

b) Complainant is allowed to realize an amount of Rs. 5000/- as compensation from the 1^st opposite party.

c) Complainant is allowed to realize an amount of Rs. 3000/- as cost from the 1^st opposite party.

d) Complaint against 2^nd opposite party is dismissed.

The order shall be complied within one month from the  date of receipt of this order.

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 23^rd  day of March,2023.                                       

                                                                 Sd/-Sri.S.SanthoshKumar(President)

                          Sd/-Smt.P.R.Sholy (Member)

Appendix:-Evidence of the complainant:- 

PW1                           -    Sri.Sreekumar P.S (complainant)

Ext.A1                       -    Letter of Authority

Ext.A2                       -    Invitation card of the marriage

Ext.A3                       -     Copy of statement of account

Ext.A4 series             -    Order form, commitment form and account statement form

 Ext.A5                       -    Copy of order dtd.06.01.2022     

Evidence of the opposite parties:

RW1                          -      Sri.Manoj Kumar T.A (witness)

///True Copy ///

To     

          Complainant/Oppo.party/S.F.

                                                                                                     By Order

                                                                                                 Assistant Registrar

Typed by:- Sa/-

Comp.by: