For the Complainant:- Sri B.K.Patra, Advocate, Bhawanipatna, Kalahandi.
For the O.P No.1 :- Sri S.Ch.Das and associates, BBSR.
For the O.P. No.2:- None.
ORDER.
The present disputes arises out of the complaint petition filed by the above named complainant alleging deficiency in service against the afore said O.Ps for non refund of balance amount taken in advance. The brief facts of the case is briefly summarised hereunder.
That the complainant on Dt. 20.4.2015 handed over 2 Nos. of D.D. bearing No.042010, 042011, a sum of Rs.9,00,000/- and Rs.2,25,548/- total a sum of Rs.11,25,548.00 respectively to the O.P. No.1 for purchase of One Maruti CIAZ ZDI-CIRDCL1 passenger Car in accordance to the rate quoted in proforma invoice Dt.18.04.2015. The O.P. No.1 handed over the above vehicle to the complainant on Dt. 21.4.2015 along with actual cost of the vehicle paper. The actual cost of the above vehicle as alleged by the complainant was Rs. 10,88,931.00. The excess amount a sum of Rs. 36,617.00 has to be refunded by the O.P. No.1 to the complainant. The complainant approached the O.P No.1 from time to time in person and over phone, but till date the O.P. No. 1 is paid deaf ear and not refunded the balance amount a sum of Rs.36,617.00 as promised to the complainant. Hence this case has been filed by the complainant before the Dist. Consumer Forum for redressal of his grievance and prayed to direct the O.P No. 1 to refund the excess amount a sum of Rs. 36,617/- with interest @ Rs. 18.% from the date of respective deposit till payment and pay cost, compensation towards mental agony and such other relief as the court deems fit and proper for the best interest of justice.
On being noticed the O.P No.1 filed written version through their learned counsel and submitted that the case is not maintainable in the eyes of law. The O.P. No.1 further submitted that the complainant is called upon to strict proof of the same. The complainant after inquiry about the price list of the vehicle and receiving of quotation from the O.P. No.1 with ancillary cost towards purchase of vehicle being satisfied and agreed with the sale price purchased the vehicle by paying such amount, so the question of collection of excess amount from the complainant does not arises at all. The complainant is not entitled to get a sum of Rs. 36,617/- from the O.P. No.1 as alleged. The facts which are not denied specifically hereby denied by the O.P. No.1. Further the O.P No.1 submitted that this forum has no jurisdiction to entertain complaints on account of deficiency in service. The O.P No. 1 therefore prays the forum to dismiss the proceedings against the O.P No. 1 with cost.
On being noticed the O.P No.2 filed written version through postal service and submitted that the case is not maintainable in the eyes of law. The O.P. No.2 further submitted that the complainant is called upon to strict proof of the same. The O.P. No. 2 is the manufacturer of Maruti Suzuki range of vehicles and does not sell the vehicles to any individual customer. The O.P. No.2 sells the vehicles to its dealers under the dealership agreement. The present complaint is liable to be dismissed on this ground. In the instant case the complainant claimed refund of excess amount against the O.P. No.1. The complainant has neither paid any amount to the O.P. No.2 nor the O.P. No.2 has sold/delivered vehicle in question to the complainant. The complainant has impleaded the O.P. No.2 to the present complaint without any cause of action. The facts which are not denied specifically hereby denied by the O.P. No.2 . Further the O.P No.2 submitted that this forum has no jurisdiction to entertain complaints on account of deficiency in service. The O.P No. 2 therefore prays the forum to dismiss the proceedings against the O.P No. 2 with cost.
The O.P No.1 appeared and filed their written version. Arguments from the learned counsels for the O.Ps and from the complainant heard. Perused the record, documents, filed by both the parties.
The learned counsel for the O.Ps. vehemently advanced arguments touching the points both on the facts as well as on law.
FINDINGS.
On the basis of the pleadings of the parties, the sole question of determination is Whether the complainant is entitled to get the excess amount paid in advance as per proforma invoice ?
On careful perusal of all the document we observed that there is no dispute that the complainant purchased a One Maruti CIAZ ZDI-CIRDCL1 passenger Car and handed over 2 Nos. of D.D. bearing No.042010, 042011, a sum of Rs.9,00,000/- and Rs.2,25,548/- total a sum of Rs.11,25,548.00 respectively to the O.P. No.1. The O.P. No.1 in their written version admitted the above version.
The O.P. No. 1 in their written version para- 8 clearly contended that the complainant after well aware of price of the case vehicle and fixed there to agreed to purchase the vehicle in question with good sound mind without any pressure from the O.P.No.1. The vehicle on road price was Rs.11,25,548/- including all ancillary cost there to. It is pertinent to mention here that the Ex-show room price of the vehicle on Dt. 1.4.2015 had fixed to Rs. 10,23,837/-, the handling charges of the said vehicle was Rs.4,450/- which is meant for transporting of the vehicle from godown to show room , fuel, washsing , touch-up, godown security charges etc. So the customer is required to pay Rs.1,500/- towards standard MGA which is meant for footmat, steering cover, perfume etc. and Rs. 13,750/- towards MSIL extended warranty of the vehicle, the customer is also required to pay Rs. 51,892/- towards registration fees before the RTO of the case and Rs.30,019/- towards Maruti insurance and accordingly the complainant is to be paid Rs.11,25,548/- towards the purchase of the vehicle, the complainant paid the said amount to the O.P. No.1 and purchase the vehicle so question of refund of balance money Rs.36,617/- to the complainant does not arise.
The complainant in support of his case field an affidavit sworn before Notary Public, Bhawanipatna and stated he has not fitted any extra accessories other than fitted with the vehicle at the time of delivery. Further the complainant submitted that he had not opted for four years extended warranty of the vehicle at the time of the purchase. The complainant further submitted that to adjust the excess amount taken by the O.P.No.1 during delivery of the vehicle the O.P. No.1 has made a false document and has filed in the court like Invoice and four years warranty extended certificate for the purpose of defending the case.
On perusal of all the documents relied on by the parties and hearing argument advanced by them. We find that the proforma invoice issued by the O.P.No.1 duly acknowledged by the complainant the cost of the vehicle is quoted as Rs.11,25,548.00 which includes EX-show room price at Rs.10,23,837.00 extended warranty at Rs. 13,750/-, Handling charges Rs.4,550/-, Insurance Rs. 30,019/-, Registration charges Rs.51,892/- and standard MGA Rs.1,500/-. In accordance to this proforma invoice the complainant has paid Rs.11,25,548/- through two Nos. of drafts as discussed above which is not in dispute.
But while delivering the vehicle the O.P. No.1 issued an original invoice of Rs. 10,08,387/- which is signed and sealed by authorized signatory for Sky automobiles (O.P. No.1). The invoice includes price of the vehicle a sum of Rs.9,02,059.02 out of which Rs.17,621.00 was deducted as exchange/ loyalty bonus as such the value comes to Rs.8,84,438.02 and it further include VAT of Rs. 1,19,399.13 and handling charges of Rs.4,550/-. So in the original invoice the insurance amount of Rs. 30,019/-, Registration charges 51,892/- and standard MGA Rs. 1,500/- have been excluded and also Extended warranty Registration a sum of Rs.13,741.63.
The copy of insurance certificate filed by the complainant reveals that payment towards Rs.30,019/- has been admitedly paid by the O.P. No.1 and the copy of payment receipt of M.V. Deptt. reveals that payment of Rs. 50,665/- has been paid towards M.V. tax. So the available document reveals that out of Rs.11,25,548/- received by the O.P. No.1 Rs. 10,89,071/- has been accounted for . So the O.P. No.1 still have Rs.36,477/- excess with him.
The O.P. claimed to have charge Rs. 13,741.63 towards Extended warranty Registration and during defense produce one copy of invoice –cum- certificate of extended warranty for that amount. This amount though mentioned in proforma invoice had not been included in the original invoice. In view of this the stand of the complainant that he has not opted for extended warranty stands proved as the copy of the certificate which is produced during defense is without any signature & seems to be prepared after wards to adjust the excess amount received by the O.P.No.1. Further the amount of Rs.1,500/- towards standard MGA which has been quoted in proforma invoice has not been mentioned in the original invoice. No documents or bill for Rs.1,500/- has been produced by the O.P. No.1 in support of receipt of the same.
The affidavit filed by the complainant and argument is that during delivery of the vehicle he has not opted for the extended warranty and standard MGA for which the same was not mentioned in the original invoice and that during delivery of the vehicle the O.P. No.1 promised to pay back the excess amount received by him after completion of registration is to be believed.
So we are of the opinion that the O.P. No.1 has kept excess amount of Rs.36,477/- which he had to return to the complainant. The O.Ps. who is dealer in a reputed company like Maruti is expected to come to the forum with clean hands.
We observed the complainant feel the O.P No.1 service is deteriorating and does not follow business ethics. This is undoubtedly speaking of the unfair trade practice resorted to by the O.P No.1 with a view to hoodwinking gullible consumers. That due to delay, negligence and deficiency in service by the O.Ps the complainant sustained mental agony, damages etc hence the O.P. No.1 is liable to pay compensation under circumstances of the case.
On perusal of the papers filed by the complainant it is revealed that the actions of the O.P. No.1 is unfair trade practice in order to grab the money of the complainant, which amounts of cheating and as such the OP No. 1 diserves punishment. The complainant unnecessarily put to undue harassment, mental agony, heavy loss and the OPs are liable to pay compensation for damages to the complainant. Undoubtedly such whimsical act of the O.P. No. 1 is within the ambit of Section 2(1)(4)(1)(v) and 2(1)(r) (3)(b) of the C.P. Act which is related to unfair trade practice and which is corresponding to section 36 A of the Monopoly Restricted Trade Practice M.R.T.P. act of 1969 under part- A of Chapter-III of the said act.
Hence to meet the ends of justice, the following order is passed.
ORDER.
In the result with these observations, findings the complaint petition is allowed on contest against the O.P No. 1 and dismissed against O.P. No.2.
The O.P No. 1 is ordered to refund Rs. 36,477.00 along with interest @ Rs.12% per annum to the complainant from the date of respective delivery of vehicle till realization. The O.P. No.1 is further ordered to pay Rs.10,000/- towards compensation for mental agony, damages. The O.P No. 1 is further directed to pay Rs.2,000/- towards cost of litigation.
The O.P No.1 is ordered to comply the above directions within 30 days from the date of receipt of this order failing which the complainant is at liberty to file execution proceeding as laid down in the C.P. Act for realization of the same from the O.Ps.
Dictated and corrected by me
Pronounced on this 10th. Day of December, 2015
Member. Member. President
Documents relied upon:-
By the Complainant:-
1.Xerox copies of the insurance Policy bond .
2.Xerox copies of the M.T. tax receipt.
3.Temporary certificate of registration.
4,Demand Draft 2 Nos. Dt.20.4.2015 a sum of Rs. 9,00,000/- and Rs.2,25,548/- respectively.
5.Proforma invoice Dt. 18.4.2015.
6.Original invoice Dt. 21.4.2015
7.Form -22.
8.Sale certificate.
By the O.P No. 1:-
1.Xerox copies of the Price list of the vehicle.
2.Invoice cum certificate of extended warranty registration.
3.Tax /vehicle & charges invoice.
4.Ledger account.
By the O.P. No.2. Nil.
President.
10.12.2015.
The order pronounced in the open forum in presence of the parties and enclosed separately in the file.
The complaint petition is allowed on contest against the O.P No. 1 and dismissed against O.P. No.2.
The O.P No. 1 is ordered to refund Rs. 36,477.00 along with interest @ Rs.12% to the complainant from the date of respective delivery of vehicle till realization. The O.P. No.1 is further ordered to pay Rs.10,000/- towards compensation for mental agony, damages. The O.P No. 1 is further directed to pay Rs.2,000/- towards cost of litigation.
The O.P No.1 is ordered to comply the above directions within 30 days from the date of receipt of this order failing which the complainant is at liberty to file execution proceeding as laid down in the C.P. Act for realization of the same from the O.Ps.
Member. Member. President
