DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 23rd day of August 2014
Present : Smt.Seena H, President
: Smt.Shiny.P.R. Member
: Smt.Suma.K.P. Member Date of filing :10/10/2013
(C.C.No.172/2013)
Anilkumar,
Section Engineer,
(Works), Southern Railway,
Railway Colony,
Hemambika Nagar,
Olavakkode, Palakkad. - Complainant
(By Adv.K.Haridas)
V/s
1.The Manager,
Phoneix Cars India Pvt.Ltd.,
12/4931 NH47 Road, Mannuthy Bypass,
Nadathara, Thrissur – 680 751
2.The Manager
Phoenix Cars India Pvt.Ltd.
Shornur Bypass Road, Near Mercy College,
Palakkad - Opposite parties
(By Adv.M.Jithesh Menon)
O R D E R
Order by Smt.SEENA.H, PRESIDENT
Complaint in brief.
The complainant approached the second opposite party to purchase a Volkswagon Vento Trendline car in black pearl effect. 2nd opposite party has convinced the complainant that the total amount of the vehicle is Rs.9,42,245/- including registration and road tax and the cost of the insurance is free.
Accordingly the complainant booked the vehicle on 23/8/2012 and paid a sum of Rs.1,00,000/- by cash on the same day in the office at Palakkad and a Sales Contract form is issued to the complainant signed by both the complainant and the sales consultant and it was promised to deliver the vehicle on 01/9/2012. Thereafter the complainant availed a loan for a sum of Rs.5,00,000/- from SBI Olavakkode branch and the Bank has sent the whole money to the second respondent by DD and the complainant paid the balance amount towards the total consideration of the vehicle including tax etc. by cheque and the opposite party has encashed those instruments and the vehicle was ready for delivery.
As per the directions of the Sales Consultant the complainant visited the show room of second opposite party at Thrissur. But shockingly second opposite party was about to deliver a vehicle in silver color to the complainant. Complainant refused to accept the vehicle because he has ordered a black one. Further the complainant came to know that the second respondent has obtained temporary permit for the vehicle and paid the insurance amount also.
Thereafter having discussions with the opposite parties and the sales consultants the opposite parties have promised the complainant to deliver a new vehicle as ordered by him and have delivered a car in black color as opted and booked the complainant. But the opposite parties have paid a sum of Rs.69,333/- towards road tax to the car in silver color which the complainant has not received from the amount paid by the complainant. The opposite parties have not delivered that vehicle and according to the complainant there is no justification from their part to pay tax from the money paid by the complainant to a vehicle neither purchased nor delivered to him. The complainant was again compelled to pay a sum of Rs.69,333/- towards the road tax of the new vehicle. Opposite parties have promised that the tax already paid would be repaid to the complainant. As per the directions of the opposite parties, the complainant submitted a written request before the RTO Palakkad for the refund of the tax but the complainant has got a communication from the RTO Palakkad that there is no provision to refund the tax which is already paid as per the provisions of the Kerala Motor Vehicles Taxation Act. The Sale Consultant has made all the arrangements for the registration of the vehicle and paid the road tax also. The complainant has not insisted the opposite parties to register the silver color car in the name of the complainant and he has not authorized to pay the road tax to a vehicle which is not purchased by him.
The complainant is compelled to abstain from his duties due to the unlawful trade practices from the part of the opposite parties and he is forced to visit the RTO offices frequently. The action of the opposite parties has caused much mental agony too. The attitude taken by the opposite parties against a valuable customer is a clear case of deficiency of service and unlawful trade practice within the meaning of the Consumer Protection Act. Hence the complaint. Complainant prays for an order directing the opposite parties to pay a sum of Rs.74,933/- alongwith Rs.3716/- towards interest from the date of payment till date of complaint, Rs.1,00,000/- towards deficiency of service and Rs.1,000/ towards cost of legal notice alongwith 12% interest for the aforesaid amount from the date of petition till the date of payment and costs.
The contentions of opposite parties are as follows:-
Opposite parties submit that the complainant had made enquiries about a Volkswagon Vento Diesel car on 22/08/2012, a representative of opposite party had met him and had given a test drive and all relevant details about the car to him. Thereafter the complainant had finalized to book a volkswagan Vento (diesel) trend line variant model. At the time of placing the booking for the Volkswagon Vento Car, the complainant had intimated the representative of opposite parties that he had not finalized his choice of colour of the car and that he preferred 2 colours namely silver and black. It was also intimated to the representative of opposite party by the complainant that the option of colour of the car would be finalized by him, after seeing the silver colour vehicle, displayed at the Palakkad office of opposite party. Later, on the very same day, the complainant had came to Palakkad. The opposite party has shown the silver colour vehicle. After seeing the vehicle, the complainant had told the representative that he had finalized the colour and the representative of the opposite party had finalized the colour choice of the complainant as silver, since the complainant had finalized the colour after seeing the silver colour vehicle.
The representative of opposite parties had met the complainant on 1/9/2012, before the pre delivery inspection and had asked him about his choices regarding the accessories to be fitted in the car. The representative of the opposite party was told by the complainant that he needs mud flat, floor mat, seat cover, silver body door handle and mirror painting. The details and the price of the additional accessories to be fitted were conveyed to the complainant by this opposite party’s representative. Therefore, even at that point, it was obvious and clear as day light that the complainant had confirmed his choice of colour as silver, going by the colour of the door handle etc. preferred by him. There was absolute no confusion or misunderstanding even at that point of time. The entire documents required for registration and the amount for the road tax required to be remitted was also given to the opposite party’s agent attached to the Regional Transport Office.
Opposite parties submit that it was only on the day of delivery of the car that the complainant had come to the show room and had changed his stand by declaring that he wanted a black colour Vento Car and not a silver colour one. Even in spite of this sudden change of stand by the complainant, regarding his choice of colour, the representative of the opposite party had assured to the complainant that the need full will be done regarding the choice of colour, in an endeavor to see that the complainant is satisfied and happy with the dealings with the opposite party and to ensure that no customer is unhappy in any way, what so ever.
Thereafter, a black Volkswagon Vento diesel (trend line variant) car was delivered to the complainant and the representative had even agreed to help the complainant to get the refund of road tax paid by him in respect of the silver colour car and also to assist him in all the procedures attached to it. The opposite party’s representative had fulfilled his promise and had tried best to get the refund of the tax paid by the complainant from the Regional Transport Officer. But, unfortunately, for reasons beyond the opposite party’s control and for reasons best known to the Regional Transport Officer, Palakkad the request submitted by the complainant is stated to have been rejected. The entire confusion arose when the complainant changed his stand regarding his choice of colour, for which these opposite parties cannot be penalized.
Further the rejection of the request for refund by the Regional Transport Officer is not final one and the statute provides for an appeal before the Deputy Transport Commissioner, which can very well be availed by the complainant and the refund can also be obtained. Without resorting to the remedies available to him under the statute and by abandoning the rights available to him, he has chosen the easier way out, by seeking compensation from this opposite party in respect of the amount which he has remitted by way of road tax. Hence opposite parties prayed for dismissal of the complaint.
Evidence adduced consists of the affidavit of the complainant. Ext.A1 to A7 marked on the side of the complainant. Opposite party filed affidavit.
Heard the parties and has gone through the evidence on record.
Issues for consideration
1.Whether there is any deficiency in service on the side of the opposite
parties ?
2.If so, what is the relief and cost ?
Issues 1 & 2
The Specific case of the complainant is that he had booked a Volkswagon Vento Trendline car in black pearl effect with 1st opposite party and full amount including road tax was paid on various dates. Opposite party instead of delivering the ordered colour, another car of silver colour was made ready on the date of delivery. Road tax for the same was also paid by opposite party. On questioning opposite party delivered the ordered colour, but the complainant was made to pay the road tax also. Inspite of several requests opposite parties did not refund the tax paid.
Opposite parties on the other hand contented that the complainant has booked a volkswagon car in silver colour. Road tax etc., was paid by opposite party’s agents at RTO office, under the specific direction of the complainant. Only on the date of delivery complainant has made a change of mind and insisted for black colour. Opposite parties always wish their customers to be happy and satisfied with their dealings and hence the colour as ordered by the complainant was delivered.
Heard both parties and gone through the evidence on record. Ext.A1, the copy of the sales contract form dated 23/8/2012, it is seen that colour preference given by the complainant is (1) Reflex Sliver (2) Black pearl effect. Reflex silver is seen striken. In order to verify the veracity of the said document, the original was produced by the complainant and also the carbon copy of the same was call fored from opposite party. In all the three documents Reflex silver is seen striken off. According to opposite parties Ext.A2 & A3 which are receipts issued for the payment made it is specifically stated colour ‘reflex silver’. Since the complainant has not made any objection at the time of its issuance, it is clear that he has booked silver colour car. Counsel for the complainant argued that objection of the complainant has compelled opposite parties to deliver the ordered car. We are of the view that if the complainant has not booked black car, opposite party under no circumstances will deliver the car. Further Ext.A1 also evidences the fact that the complainant has booked black one. The stand of the opposite parties that the customer friendly attitude has resulted in the delivery of the black vehicle seems to be unbelievable. If that be the attitude and care of the opposite parties, complainant would not have been dragged to the Forum.
It is a fact that complainant has paid road tax for two cars. One of the car (silver) is with the opposite party only. Opposite party is silent on the point whether the said car is sold or not. Opposite party has no case that as the same has become a second hand car, it has left with opposite party without sale. Opposite party has no difficulty in realizing the amount road tax from the new owner. Opposite party can very well ask the complainant to wait till the silver colour car is sold. That was also not done by opposite party. The evidence on record show that 1st opposite party has paid tax for the car not booked by the complainant and also complainant was made to run from pillar to post for refund of the tax amount, which opposite party can refund without any difficult. The act amounts to gross deficiency in service on their part.
Opposite party has contended that RTO is also a necessary party. We are of the opinion that since the alleged deficiency in service on the part of the opposite party’s alone, RTO is not a necessary party in the complaint.
In view of the above discussions we allow the complaint and order the following:
- Opposite parties are directed to pay complainant an amount of Rs.70,000/- (Rupees Seventy thousand only) to complainant being the compensation for deficiency in service along with Rs.1000/- as the cost of the proceedings.
- On receipt of the amount, complainant shall sent an undertaking affidavit to opposite party stating that the tax refund shall not be claimed from any other authorities.
- Order shall be complied within one month from the date of receipt of order failing which complainant is entitled for interest at the rate of 9% per annum for the whole amount from the date of order till realization.
Pronounced in the open court on this the 23rd day of August 2014.
Sd/-
Seena H
President
Sd/-
Shiny.P.R.
Member
Sd/-
Suma.K.P.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Sales contract form issued by opposite party
Ext.A2 – Photocopy of Form 8B issued by opposite party
Ext.A3 - Photocopy of receipt dtd.8/9/12 issued by opposite party
Ext.A4 – Photocopy of letter sent by RTO, Palakkad to the complainant dated
8/11/12.
Ext.A5 – Photocopy of Tax License of the vehicle
Ext.A6 series – Copy of Lawyer notice sent to opposite parties dated 16/1/13
alongwith postal receipts and acknowledgement cards
Ext.A7 series – Documents related to purchase of the vehicle.
Exhibits marked on the side of the opposite parties
Nil
Cost
Rs.1,000/- allowed as cost of the proceedings.
