DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 22nd day of January, 2024
Present : Sri. Vinay Menon V., President
: Sri. Krishnankutty N.K., Member Date of Filing: 5/11/2021
CC/187/2021
Jayakrishnan V.,
S/o. Vella,
Unni Nivas,
Nelliyankad, Kannanur (PO),
Kuzhalmannam, Palakkad – 678 702 - Complainant
(By Adv. K.A. Kylas)
Vs
- Manager,
Pinnacle Nissan,
Near Sai Krishna Apartments,
Kunnathurmedu, Coimbatore Road,
Palakkad – 678 013
- Manager,
Pinnacle Motor Works Pvt.Ltd.,
NH 47, Mannuthy Bypass,
Kuttanallur (PO), Thrissur – 680 014
- The Manager,
State Bank of India,
Sekharipuram Branch,
Palakkad - Opposite parties
(OPs 1 and 2 by Adv. K.V. Sujith
OP 3 Ex-parte)
O R D E R
By Sri. Vinay Menon V., President
- Foundational pleadings illustrate that the complainant booked for availing a car from the O.P.1 and paid the entire cost by availing loans to a tune of Rs. 7,73,000/- from the 3rd O.P. But there was inordinate delay on the part of the OPs 1 & 2 in delivering the car and therefore booking was cancelled. Upon cancellation, the OP 1 & 2 repaid only Rs.7,73,000/- that was paid by the bank and not the other expenses that the complainant had entailed by way of advance payment and EMI payments and the interest accrued. This complaint is filed seeking return of unpaid amounts and compensation and cost.
- Essence of counter pleadings of the OPs 1 & 2 is that the delay occurred as a result of Covid restrictions and that they had already refunded the amounts received by them.
- OP3 failed to file version in time and there was no representation either. Hence, they were set exparte.
- The following issues were framed for consideration:
- Whether the non-delivery of the vehicle to the complainant in time is due to reasons beyond the control of OPs?
- Whether there was delay on the part of OPs in refunding the amount after receiving the cancellation request of the complainant and closure letter from the bank?
- Whether there is any deficiency in service on the part of OPs?
- Whether the complainant is entitled to any of the reliefs claimed?
5. Any other reliefs?
5. (i) Evidence comprised of proof affidavit and Exhibits A1 to A16. Marking of Exts. A9 to A16 was objected on the ground that they were photocopies. Since this Commission is not bound by Evidence Act and in the absence of a plea that the said documents are forged or concocted, this objection is rejected.
(ii) There was no documentary evidence for OPs 1 & 2. They filed proof affidavit.
(iii) Complainant filed application to cross examine the witness for OPs 1 & 2. Even though chances were granted on 8/8/2023, 25/9/2023, 27/10/2023 and 6/11/2023, witness for O.P.s 1 and 2 failed to turn up. Thus, any adverse inference, if any available, can be resorted to.
Issue No.1
6. Inorder to ascertain this issue we have to answer the following questions:
i. Whether the office of O.P.1 was in the containment zone?
ii. Whether the O.P.s had acted in a timely manner?
iii. Whether the declaration of O.P.1’s containment zone will affect delivery?
i. Whether the office of O.P.1 was in the containment zone?
7. OPs 1 & 2 raised the imposition of Covid restrictions and quarantine as the cause for delay. As per their pleadings, Kuttanalloor Panchayat, wherein O.P.1 was having office was declared as containment zone for 2 months from 24/4/2021. No evidence is adduced, like circulars issued by the Health Department, to prove the pleading of the Panchayat being a containment zone for 2 months.
Hence, we hold that the contention of the O.P.s 1 and 2 regarding delay on account of Covid restriction is merely an attempt to escape liability under contract and statute and is only liable to be discarded.
ii. Whether the O.P.s had acted in a timely manner?
8. Undisputed case of the complainant is that complete payment of price was effected by 21/04/2021. O.P.s hold that Panchayat was declared containment zone by 24/04/2021 and delivery of the car could not be effected in time for 2 months. Hence there was a delay.
9. Since we have already found that the declaration of Panchayat is a figment of imagination of the O.P.s, we need not dwell any further into this aspect.
10. It is true, as borne by records, that the complainant effected complete payments only by 21/4/2021. But the OPs do not have a case that this delay in payment was the cause for delay in delivery of the car. Hence, date of payment of price has no connection whatsoever with the delay in delivery.
No pleadings whatsoever is forthcoming from the OPs 1 & 2 as regards the dates on which the order was placed for the car with the manufacturer by the O.P.s 1 and 2. In usual practice, car is ordered by the dealer as and when the advance amount is paid. Balance of the price, after deducting the advance amount is paid off along with tax and statutory payments as applicable on the date of delivery.
Thus, the opposite parties are to answer for delay from the date of payment of advance amount by the complainant which is 15/12/2020.
11. Based on this practice, delay has to be calculated from 15/12/2020 and as on the date of refund, there was a delay of over 8 months. The O.P.s had failed to act in a timely manner.
iii. Whether the declaration of O.P.1’s containment zone will affect delivery?
12. It would be pertinent to note that Ext. A1 receipt shows that the payment was effected by the complainant in the Palakkad Branch, i.e. office of the 2nd O.P. Version is completely silent as to whether there was delivery facility in the Palakkad Branch or not or that delivery would be effected only at that place. What prevented the O.P.s from delivering the car at Palakkad is not stated.
In the absence of any pleading or refusal to adduce evidence even after granting chances, we will have to presume that the Branch at Palakkad, also had delivery facilities.
13. Thus, we can see that the contention raised by the OPs 1 & 2 with regard to lock down due to Covid pandemic is not the reason for delay in delivery. We hold that non delivery of the vehicle for about 8 months was not due to reasons beyond the control of OPs, but due to deficiency in service on the part of the O.P.s.
Issue No. 2
14. We hold that there is no delay on the part of OPs 1 & 2 in effecting payment of the amounts paid to them by the bank.
Issue No. 3
15. As already stated supra, advance payment was made on 15/12/2020. The complainant had taken steps for a valid and effective contractual agreement. A duty, therefore was cast on OPs 1 & 2 to take all earnest efforts to have the car delivered in time by placing order promptly immediately after advance was paid by the complainant. They were also bound by law and transparent business practices to intimate the complainant regarding any delay that might occur. The OPs had failed in their contractual obligation by not informing the complainant with regard to the date of delivery or at least intimating the complainant that there would be inordinate delay.
16. What is vital in this case is the date on which the O.P. 1 or 2 placed order of delivery with the manufacturer. Had they been prompt and had carried out effective follow up, they could have deflected any question regarding their liability. In this case, no evidence is adduced by the O.P.s with regard to this fact, even after having opportunity. Hence the reasonable presumption that is available is that they had failed to place order promptly.
17. Ext.A11 is a communication issued from the manufacturer, M/s. Nissan to the complainant. Said communication is dated 6th July 2021, ie. 6 months and 21 days after the advance amount was paid. With regard to the date of delivery the manufacturer has stated as herein below:
“Regarding your concern related to the delivery time line of your All New Nissan Magnite, we would like to inform you that estimated delivery date of your All New Nissan Magnite is 15/8/2021. This would be periodically updated basis the information.” (SIC)
Ext.A11 clearly shows that the car would be delivered only by 15/08/2021. Even this date is not an assured date for delivery. Thus, we can see that there is a delay of nearly 8 months between the first date of paying advance and the tentative date of delivery.
18. The natural course of human conduct is that no person would want to wait for nearly one year for a car like the one for which the complainant had paid for. So it is only reasonable to come to a conclusion that had the complainant got notice of the delay he would not have resorted to purchase the car.
19. We are therefore left with no alternate scenario than to hold that there is deficiency in service on the part of OP1 & 2 in not delivering the car in time and in not intimating the complainant regarding the delay.
Issue No. 4
20. Consequently, we hold that the complainant is entitled to the reliefs sought for in the complaint.
Issue No. 5
21. One interesting aspect is that the complainant has impleaded the SBI, Sekharipuram Branch who was unlucky enough to come between the dispute between the complainant and OPs 1 & 2 (Not overlooking the fact that they stood to gain interest and some contractual charges). No deficiency in service can be attributed to them in the facts and circumstances of the case. In the normal course, imposition of compensation and cost to the 3rd OP by the complainant would serve as a deterrent to the likes of the complainant who pull in innocent onlookers into a fray for no valid statutory reasons, but because of a misplaced and ill-advised confidence that the complainant can go scot free, even if they pull in innocents. But as the circumstances lie, OP 3 has failed to enter appearance and contest the matter. Therefore, we refrain from imposing a cost on complainant payable to O.P.3.
22. In the result the complaint is disposed off with a direction to the OPs 1 & 2 to pay an amount of Rs.3,50,000/- to the complainant, being the claim raised in the complaint.
23. The OPs 1 & 2 shall comply with the above order within a span of 45 days from the date of receipt of this Order failing which the OPs shall pay solatium to the complainant at the rate of Rs. 500/-p.m. or part thereof from the date of this order till the date of final payment.
Pronounced in open court on this the 22nd day of January, 2024.
Sd/-
Vinay Menon V
President
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Printout of receipt dated 15/12/2020 for Rs.11,000/-
Ext.A2 – Printout of receipt dated 13/04/2021 for Rs.7,73,000/-
Ext.A3 - Printout of receipt dated 21/04/2021 for Rs.1,34,000/-
Ext.A4 - Original arrangement letter dated 17/4/21
Ext.A5 – Copy of Ext.A6
Ext.A6 – Original of communication dated 22/7/2021
Ext.A7 – Original of communication dated 30/7/2021
Ext.A8 – Original statement of account dated 30/7/2021
Ext.A9 – Printout of email dated 14/7/2021
Ext.A10 – Printout of email dated 05/05/2021
Ext.A11 – Printout of email dated 24/6/2021 & 6/7/2021
Ext.A12 – Printout of email dated 15/7/2021
Ext.A13 – Printout of email dated 10/7/2021
Ext.A14 – Printout of email date not seen
Ext.A15 – Printout of email dated 5/7/2021
Ext.A16 – Printout of email dated 10/7/2021
Exhibits marked on the side of the opposite party:
Nil
Court Exhibit: Nil
Third party documents:
Ext.X1 – Entire Loan documents
Witness examined on the side of the complainant : Nil
Witness examined on the side of the opposite party: Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
