Tamil Nadu

North Chennai

180/2014

Mr.Aravindaraja Adhithan,S/o.Ganesh Adhithan, - Complainant(s)

Versus

The Manager, V.S.T.Motors Ltd., - Opp.Party(s)

J.Manoharan

20 Jul 2016

ORDER

 

                                                            Complaint presented on:  28.08.2014

                                                               Order pronounced on:  28.07.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

THURSDAY THE 28^th    DAY OF JULY 2016

 

C.C.NO.180/2014

 

 

Mr.Aravindaraja Adhithan,

S/o Ganesh Adhithan,

2^nd Street No: 51,

Govindarajapuram,

No.6, Nandhivaram Village,

Guduvanchery – 603 202,

Chengalpattu  Taluk,

Kancheepuram District.

                                                                             ..... Complainant

 

..Vs..

The Manager,

V.S.T.Motors Ltd.,

    VST – Arumbakkam,

Poonamalle High Road,

Madras.

	.....Opposite Party

Date of complaint                                 : 16.09.2014

Counsel for Complainant                      :J.Manoharan             

 

Counsel for opposite party                     : M/s. S.Raghunathan & P.S.Deepika

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1. THE COMPLAINT IS IN BRIEF:

          The Complainant paid  part payment of Rs. 10,000/- on 13.03.2014 and a sum of Rs. 1,90,000/- on 14.03.2014 by way of cheques to buy a Tata SK.407Ex/31 B & B Tipper FBT vehicle for a consideration of Rs.9,35,507/- including Insurance charges of  Rs.29,000/- and   registration charges  including Life Tax of Rs.16,000/-  with a discount of Rs.35,000/-and  the total vehicle cost is a sum of   Rs.9,45,507.  Thus the Complainant totally paid a sum of Rs.2,00,000/- only out of the vehicle cost of   Rs.9,45,507/-.  Even though five months was passed away the vehicle was not delivered to the Complainant and hence he has hired the vehicle for rental to shift the construction material towards the constriction of the building. Accordingly he paid a sum of Rs.5,000/- per day and thus  he spent a sum of Rs.8,50,000/- upto date on 23.08.2014.  As the Opposite Party delayed delivery of the vehicle proves the Deficiency in Service on the part of Opposite Party. Though the Complainant issued legal notice to the Opposite Party on 11.07.2014, the Opposite Party did not reply for the same even after receipt of the notice.  Hence the Complainant filed this Complaint to direct the Opposite Party to deliver the vehicle at the old rate and also pay compensation with cost of the Complaint.

 

2. WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

          The Complainant wanted to  purchase a TATA SK.407/31 Ex Tipper W & B Tipper  vehicle and based on which  the  Opposite Party  had issued a proforma invoice on 03.03.2014 indicating that the price of the said vehicle would be Rs.9,35,507/-. The said vehicle could be used only for commercial purposes, primarily in the construction business for carrying sand, blue metal, etc. The said vehicle had been booked in the name of the Complainant’s sole Proprietary business concern, namely, “M/s. Ganesh Hardware”. He had “hired for rental other vehicle to shift construction materials towards the construction the building and spent rental charge per day a sum of Rs.5,000/- in all amounting to Rs.8,50,000/- as on 23.08.2014”, would makes clear that the said Complainant proposed to purchase the said vehicle only for  commercial purpose and therefore the Complaint cannot be regarded as a Consumer. The Complainant had failed to make any further payment since March 2014, despite the fact that the Opposite Party called upon the Complainant several times to pay the sale consideration. However the Opposite Party did not pay the balance amount as per the invoice issued to him. This Opposite Party is only an agent of the manufacturer and according to the price fixed by the M/s.Tata Motors he has to sell the vehicle. On 14.07.2014 the M/s. Tata Motors revised the cost of the vehicle price and the vehicle would cost Rs.9,57,000/- as against the early price of Rs.9,35,507/-  and further the insurance and registration charges has also been increased to Rs.30,000/- and Rs.22,000/- respectively. Therefore this Opposite Party has not committed any Deficiency in Service and prays to dismiss the Complaint with cost.

 

 

3. POINTS FOR CONSIDERATION:

          1. Whether the Complainant is a Consumer?

          2. Whether there is deficiency in service on the part of the opposite party?

          3. Whether the complainant is entitled to any relief? If so to what relief?

4. POINT NO: 1

          The Complainant approached the Opposite Party to purchase a TATA SK.407/31 Ex Tipper W & B Tipper vehicle. The Opposite Party issued Ex.A1 Proforma invoice indicating the cost price of the vehicle at Rs.9,35,507/-. The Complainant paid a sum of Rs.10,000/- on 13.03.2014 vide cheque No.462513 through Corporation Bank, Guduvancherry Branch and also paid an another cheque for a sum of Rs.1,90,000/- on 14.03.2014  of the same bank  and thus the Complainant totally paid  a sum of Rs.2,00,000/- towards advance for purchase of the vehicle . The said payments are evidenced from Ex.A2 to Ex.A5.

          5. The Complainant booked a vehicle in the name of M/s.Ganesh Hardware in which the Complainant is the proprietor of the said concern. Admittedly the Complainant intended to purchase the vehicle for the business purpose. The Opposite Party would contend that the Complainant   wanted to purchase the vehicle for commercial purpose and hence the Complainant cannot be regarded as a Consumer and consequently the Complaint is not maintainable.

6. The Opposite Party admits that the Complainant is the proprietary concern. The Opposite Party has not contended that the Complainant is the owner of the several vehicles and using the same for his commercial purpose. The Opposite Party himself admits in the written version that, the Complainant hired a vehicle for his business. Therefore, the Complainant intended to purchase from the Opposite Party is the only vehicle to be used in his business. Since the Complainant does not own several vehicles for his business and he wanted to purchase only this vehicle for his business, leads to an irresistible conclusion that he wanted to purchase a vehicle to earn for his livelihood only and therefore we hold that the Complainant is a Consumer.

7. POINT NO: 2

          According to the Complainant even after 5 months of the  payment of advance amount of Rs.2,00,000/- to the Opposite Party to purchase the vehicle the Complainant had not prepared sale invoice and not provided chasis and engine number of the vehicle and not allotted the vehicle till the filling of the Complaint and the Complainant also personally approached the Opposite Party and to deliver the vehicle, the Opposite Party demanded higher rate than the rate provided in Ex.A1, which is nothing but an unfair trade practice and Deficiency in Service of the Opposite Party.

8. The Opposite Party would reply that even after several demand made by him to the Complainant, he did not pay the balance amount as per the Proforma invoice and therefore the question of  Deficiency in Service  on the part of the Opposite Party does not arise in respect of delivery of  vehicle.

9. The Complainant paid a sum of Rs.2,00,000/-  towards advance to the Opposite Party  to purchase the Tipper Lorry is not in dispute.  Nowhere in the Complaint including the prayer and also in an Ex.A6 notice the Complainant has not stated that he is ready to pay the balance amount. Further the advance amount paid by the Complainant is only a part amount i.e., nearly 1/5^th  of the cost price of the vehicle. Admittedly the Complainant has not paid major portion of the cost price of the vehicle. The Complainant has not established that even without full payment of the sale price the vehicle will be allotted to the Consumer. Since the Complainant has not paid the cost of the vehicle to the Opposite Party, he is not a bonafide person and hence his prayer to deliver the vehicle at the old rate is not acceptable. Further in Ex.A1, it has been specifically mentioned that price quoted in the invoice are subject to change without notice and price prevailing at the time of delivery will apply. In view of the contents of Ex.A1 the demand of the Complainant that the vehicle should be delivered at the old rate as per Ex.A1 is not sustainable and in view of such conclusion we hold that the Opposite Party has not committed any Deficiency in Service in respect of non delivery of vehicle to the Opposite Party.

          10. The Complainant paid the advance amount during March and April 2014.  The Opposite Party pleaded in his written version that cost vehicle price was revised on 14.07.2014 to a sum of Rs.9,57,000/- instead of earlier price of Rs.9,35,507/- The Opposite Party received notice on 14.07.2014 and on the same day the price was increased. Immediately, the Opposite Party should have informed the revised date of the vehicle to the Complainant having received an advance amount from him. The Opposite Party did not do so. Atleast the Opposite Party due to revised rate of the vehicle, he ought to have informed the Complainant either to come and receive the advance amount or agree to pay the revised amount along with the balance amount. The Opposite Party taken a definite stand that he will deliver the vehicle only for the revised rate as on 14.07.2014 and in such circumstances atleast in the Forum or before readily offered to refund the advance amount to the Complainant. However the Opposite Party has not chosen any one of the above course. Therefore we hold that the Opposite Party failure to refund the advance amount to the Complainant is Deficiency in Service in this respect, on the part of the Opposite Party.

 

11. POINT NO :3

The Complainant is certainly entitled for refund of his advance amount. Therefore we mould the relief and order that the Complainant is entitled for refund of the advance amount of Rs.2,00,000/- with 9% interest from 21.04.2014, the date on which the Opposite Party issued Ex.A5 receipt and also cost of litigation expenses for a sum of Rs.5,000/-. The Complainant is entitled for the relief as indicated above, and in respect of other reliefs the Complaint is dismissed.

          In the result the Complaint is partly allowed. The Opposite Party is ordered to refund a sum of Rs.2,00,000/- (Rupees two lakhs only) towards advance amount with 9% interest from 21.04.2014  to till the date of payment and also to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment. The Complaint in respect of the other relief is dismissed.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 28^th    day of July 2016.

 

MEMBER – II                                                               PRESIDENT

 

 

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 03.03.2014                   Proform Invoice

 

Ex.A2 dated 13.03.2014                   Corporation Bank Guducancherry cheque a sum of

                                                 Rs.10,000/- cheque No.462513                

 

Ex.A3 dated 14.03.2014                   Opposite Party receipt for Rs.10,000/-

 

Ex.A4 dated 20.04.2014                   Corporation Bank Guduvancherry cheque a sum

                                               Rs.1,90,000 cheque No.455474

 

Ex.A5 dated 21.04.2014                   Opposite Party receipt for Rs.1,90,000/-

 

Ex.A6 dated 11.07.2014                   Legal Notice with Postal Receipt

 

Ex.A7 dated 14.07.2014                   Acknowledgement card

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

                                      …….NIL……

 

 

 

 

MEMBER – II                                                               PRESIDENT