IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 16th day of July, 2020
Filed on 02.11.2016
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. C.K.Lekhamma. LLB(Member)
In
CC/No.353/2016
Between
Complainant:- Opposite party:-
Sri.Sarath .N. Pillai 1. The Manager
S/o Narayana Pillai Hercules Automobiles Int’L (P)Ltd
Manappallil House Authorized Maruti Dealer
Pela Muri, Kunnamangalam Sanathanapuram .P.O, A.C Road
Village, Pela.P.O, Kalarcode, Alappuzha
Mavelikara
(Adv.U.Chandra Babu) 2. Sri. Rahul
Sales Executive Hercules, Automobiles Int’L (P) Ltd,
Authorized Maruti Dealer.
Sanathanapuram .P.O, A.C Road
Kalarcode, Alappuzha
(Adv.C.Parameswaran for OP 1&2)
3. The General Manager
The Maruti Suzuki India Ltd.
1, Nelson Mandela Road,
Vasant Kunj
New Delhi-110070
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint u/s 12 of the Consumer Protection Act.1986
1. Complainant’s case in brief is as follows:-
The 1st opposite party is the authorized dealer of Maruti Vehicles, 2nd opposite party is the sales executive and 3rd opposite party is the manufacturer and seller of Maruti Vehicles.
The complainant decided to purchase a Maruti Celerio ZXI car and the 2nd opposite party approached him and assured delivery at the earliest within 30 days after booking and a maximum of 45 days. Complainant signed an agreement with the 1st opposite party on 4//2016 by making an advance of Rs. 1000/-.
On 5/7/2016 2nd opposite party approached the complainant along with the Deputy Sales Manager, Mr. Gifin and informed that the vehicle is under transit and demanded Rs. 50,000/-. Believing the words complainant effected the payment. Again on 14/7/2016 the 2nd opposite party contacted the complainant and informed that the car has reached in the yard and demanded payment for Temporary registration. Complainant arranged Rs. 4,00,000/- from his finance company M/s Muthoot Finance, Kayamkulam. It was informed that the vehicle will be delivered within 2 days. The vehicle was not delivered as promised and on enquiry it was revealed that it was not loaded for transportation. Opposite party 1 and 2 with malafide intention received Rs. 4,51,000/- from the complainant.
The complainant is paying interest for the vehicle finance loan amount from the date of payment and so far 4 instalments of Rs. 8260/- was paid. It was paid due to the fraudulent acts from the opposite party 1 and 2. Complainant sustained much mental agony and pain due to the act of opposite parties.
Complainant sustained a loss of Rs.33,040/- by way of payment of interest and he is entitled to Rs.2,50,000/- as damages due to delay in delivery. He is also entitled for an amount of Rs. 25000/- being travelling expenses since he sold his vehicle believing the words of opposite parties. Hence the complaint is filed for a direction to deliver the vehicle and for compensation.
2. Opposite party 1 and 2 filed a version mainly contenting as follows:-
There was no negligence or deficiency in service on the part of the opposite parties. It is true that the complainant had booked a Maruti Celerio Zxi car with the opposite parties by paying Rs.1000/-. The delivery of the car depends upon the seniority of booking and availability of vehicles. There was no assurance that the vehicle will be delivered within 30 days of booking. The vehicle cost was Rs.5,32,379/-. The vehicle was delivered to the complainant as and when it was available. The delivery period given in the booking order is only indicative. The allegation that there was information given to the complainant that the vehicle is in transit is false. The vehicle was delivered to the complainant and he had taken delivery without any protest. The advance amount will not carry interest. Since the complainant had accepted the vehicle without any protest he is not entitled to raise any other claim. There is no deficiency in service as alleged and complainant is not entitled for any other reliefs. Hence the complaint may be dismissed with costs.
3. 3rd Opposite party filed a version mainly contenting as follows:-
Complainant is not a consumer as defined u/s 2(1)(d) of the Consumer Protection Act. 1986. The complainant did not enter in to any contract for sale or hire any service for consideration with 3rd opposite party. The complainant has not paid any amount towards booking and price of vehicle in question to 3rd opposite party. There is no privity of contract between the complainant and 3rd opposite party. This complaint is not maintainable before this Forum u/s 12(2) of the Act. since this opposite party is not residing within the jurisdiction or any cause of action had arisen within in the territorial jurisdiction of this Forum.
3rd opposite party is a manufacturer of Maruti Suzuki range of vehicles. The dealer sells the vehicles to their customers under their own invoice and sale certificate as per the terms and conditions settled between dealer and individual customer. This opposite party is not liable for any act of omission or commission on the part of the dealer. The relationship between this opposite party and its dealers are based on the principle to principle. 1st opposite party is a separate and independent legal entity.
This opposite party has not committed any deficiency in service or involved in unfair trade practice as defined under the act. The relief sought by the complainant fall outside the ambit of Clauses (a) to (i) u/s 14(1) of the act. This opposite party has not received any amount from the complainant and hence complainant has no locus standi to file the present complaint against this opposite party. This opposite party is not liable to deliver the vehicle in question to the complainant. Complainant has filed frivolous and vexatious complaint against this opposite party and hence may be dismissed with exemplary cost.
4. On the above pleadings following points arose for consideration :-
- Whether the complainant is entitled to get an order for delivery of the vehicle?
- Whether the complaint is maintainable against 3rd opposite party?
- Whether the complainant is entitled to receive interest for Rs.33,040/- ?
- Whether the complainant is entitled for Rs.250000/- as compensation for mental agony and pain?
- Whether the complainant is entitled for 16% interest for Rs. 4,51,000/- as alleged?
- Whether the complainant is entitled for Rs. 25000/- being the travelling expenses?
- Reliefs and costs?
Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A8 on the side of complainant and the oral evidence of RW1 on the side of opposite parties.
5. Point No.1:-
PW1 the complainant booked the vehicle as per Ext.A1 on 2/11/2016. He filed the complaint before this Forum for a direction to the opposite parties to deliver the vehicle at the earliest. While examined as PW1 during cross examination PW1 admitted that he received the vehicle on 5/11/2016. So this relief has become infructuous.
6. Point. No.2.
3rd opposite party forwarded the written statement directly to this Forum. In the said written statement it is contended that there is no privity of contract between complainant and 3rd opposite party. It was also contended that the 3rd opposite party is having its office at New Delhi and no cause of action has arisen against 3rd opposite party within the territorial jurisdiction of this Forum. It was contented that as per the provision of dealer ship agreement entered between 3rd opposite party and 1st opposite party the relationship is principal to principal. The customer is booking the vehicle with the dealer after paying necessary amount and 3rd opposite party has nothing to do with the booking. To prove their contentions they also relied upon an order of the National Consumer Disputes Redressal Commission dated. 4/5/2009 in Revision petition No. 674 of 2004. (Maruti Udyog Limited Vs. Nagendar Prasad Sinha & another) In the said order it was held that the relationship between the dealer and the company is that of principal to principal basis and company is not liable for any default committed by the dealer. Hence the 3rd opposite party is not liable to pay compensation and even the complaint is not maintainable against them. This point is found against the complainant.
7. Point No.3,4,5 & 6.
For the sake of convenience these points are considered together. The case of PW1, complainant is that he booked a Maruti Celerio Zxi car on 4/6/2016 as per Ext.A1 document with the 1st opposite party. They had promised that the vehicle will be delivered within a month or maximum 45 days. On 5/7/2016 they collected an amount of Rs. 50000/- on a contention that the vehicle is in transit. Further on 14/7/2016 they collected an amount of Rs. 4,00,000/- on a contention that it is required for insurance policy and Temporary registration. In a nutshell the case of the complainant is that though the opposite parties 1 and 2 collected the entire price of the vehicle it was not delivered as promised. According to PW1 he had to collect amount from the finance company for which he had paid interest. Hence the complaint is filed for realizing amounts on various heads. Opposite party 1 and 2 filed version contenting that there was no promise to deliver the vehicle within 30 days or maximum of 45 days. There was no mis- representation that the vehicle is in transit and they demanded amount. According to them the delay occurred since there was several booking and the 3rd opposite party manufacturer is distributing the vehicle as per priority basis. According to them, complainant had taken delivery of the vehicle in full satisfaction and so he cannot filed such a complaint. Complainant got examined as PW1 and marked as Ext.A1 to A8. The Manager of the 1st opposite party got examined as RW1.
Admittedly on 4/6/2016 PW1 booked a Maruti Celerio Zxi car by paying an amount of Rs.1000/-. It is evidenced from order booking commitment check list. The main allegation of the complainant is that though the opposite parties collected Rs.50000/- as per Ext.A5 receipt on 9/7/2016 and Rs. 4,00,000/- on 14/7/2016 the vehicle was delivered only on 5/11/2016 as per Ext.A2 invoice. The complainant had to arrange finance for payment and he had to pay interest for the said amount. Though PW1 has got a case that at the time of booking opposite parties 1 and 2 promised that the vehicle will be delivered within 30 days and at a maximum of 45 days Ext.A1 document shows otherwise. In Ext.A1 it is stated that the delivery period is one month tentatively. Further as per terms and conditions of clause 2 the vehicle will be allotted on the basis of priority of booking and the remittance of full payment for the vehicle. Approximate delivery period given on the Order Booking Form is only indicative. Vehicle delivery is however subject to availability of vehicles by manufactures. Dealership will not be responsible for any delay in delivery of vehicle due to unforeseen circumstances. So from clause 2 it is crystal clear that the period of delivery mentioned in the order form is only indicative and that dealer is not responsible for any delay in delivering the vehicle. It is to be remembered that PW1 is claiming compensation only on a contention that there was delay in delivering the vehicle. He is also claiming interest for the amount paid by him but it is to be noted that there was no contract between parties to pay interest for the advance amount. Though PW1 has got a case that he had to spend Rs.20000/- for journey no evidence is available except his interested testimony. In para 8 of chief affidavit PW1 has got a case that the vehicle was delivered without washing. Such an allegation is not finding a place in the complaint. It is true that the complaint was filed on 2/11/2016 before the date of delivery that is on 5/11/2016 and complainant may not be able to include such a pleading. However after taking delivery the condition of the vehicle was not incorporated in the complaint by way of amendment. As per the settled law evidence adduced without pleading is only to be ignored. Hence assessing the evidence as a hole it can be seen that there was no contract between complainant and opposite parties 1 and 2 to pay interest on advance amount. The time of delivery shown in Ext.A1 order form is only tentative and will depend upon the availability of vehicles from the manufacturer. The vehicles are delivered by the manufacturer on priority basis. So opposite parties 1 and 2 cannot be blamed for delay in delivering the vehicle. In the circumstances the complainant is not entitled for any of the reliefs mentioned in the complaint and so these points are found against the complainant.
8. Point No.7
In the result complaint is dismissed with cost of Rs.3000/-. The order shall be complied within one month from the date of the receipt of the copy of this order.
Dictated to the Confidential Assistant, transcribed by him correct by me and pronounced in open Forum on this the 16th day of July, 2020.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - Sarath.N.Pillai(Witness)
Ext.A1 - Copy of Order booking/commitment check list dtd. 4/6/2016
Ext.A2 - Copy of Tax Invoice .
Ext.A3 - Full & Final Settlement Bill.
Ext.A4 - Receipt dtd.14/7/2016
Ext.A5 - Receipt dtd. 09/7/2016
Ext.A6 - Receipt dtd. 09/6/2016
Ext.A7 - Provisional Receipt dtd. 09/7/2016
Ext.A8 - Customer Docket
Evidence of the opposite parties:-
RW1 - Chandra Mohan(Witness)
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
