IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

                       Dated this the   10^th   day of April 2018

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

        Sri. M.Praveen Kumar,Bsc, LLB ,Member

CC.No.157/15

Soman.K                                                    :         Complainant

S/o Kumaran

Somasylam, Kalari muri, Panmana Village

Puthnchantha P.O

[By Adv.N.sunil Joseph]

V/s

The Manager                                              :         Opposite party

Marikar Motor Ltd.

Bishop Jerom Nagar, Chinnakkada Muri,

Vadakkevila Village, Kollam.

[By adv.V.Sugathan, Siju.S, Sreelatha.S]

ORDER

SRI. M. PRAVEEN KUMAR, MEMBER

This is a case based on Consumer complaint filed  under Section 12(1) of the Consumer protection Act. Complainant’s case is that complainant had  booked a brand new Royal Enfield  STD-350 Model Bullet on 12.09.14 by remitting an advance amount of  Rs.5000/- from opposite party. At the time of booking the opposite party fixed 5 months tentative date  of delivery. Opposite party failed to make delivery of the Royal Enfield Bullet to the complainant in time. Price of the Bullet at the time of booking was Rs.1,11,000/-only and now price have been increased. The act of opposite party amounts to deficiency in service and wilful latches on the part of opposite party. Later complainant came to know that the vehicle which he was booked already delivered to  some other person.  Non  delivery  of  the  vehicle  as  on  the  agreed  date  caused  more

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inconvenience and personal difficulties to the complainant. Complainant sent lawyer notice to the opposite party on 28.05.15 and the  opposite party received the said lawyer notice on 02/06/15 but not delivered the Bullet to the complainant so far.  Hence complainant approached the forum for directing to return  Rs.5000/- with an interest @ 24% per annum,Rs.10,000/- for loss of amenities, comfort and convenience Rs.50000/-  as compensation for the loss and mental agony and Rs.2000/- as  costs  of  the proceedings.

The opposite party contested the matter by filing a written version raising the following contentions. The complaint is not maintainable either under law on or facts. Complainant booked a Royal Enfield STD 350 model bullet from the opposite party after remitting Rs.5,000/- as advance booking fee. At the time

of collecting the advance amount the opposite party informed the complainant that price quoted at the time of booking was only indicative and he should remit the price of the vehicle prevailing at the time of delivery. After accepting the terms and conditions the complainant booked by the vehicle on February 2015, and the vehicle booked by the  complainant was ready for delivery and opposite party informed the matter through telephone. Then complainant informed the opposite party that he was in some financial stringency so he couldn’t have raised  the balance price amount. Since the complainant was not ready to remit the balance amount the vehicle was given to next person in seniority list. Opposite party got a legal notice from the complainant to deliver the vehicle. In response to the legal notice opposite party informed the complainant that he can take the delivery of the vehicle by remitting the balance amount. As the opposite party is always ready to deliver the vehicle to the complainant, there is no chance of causing any loss of amenities comfort and convenience the complainant from the opposite party, there is no default, deficiency in service or negligence on the part of opposite party. Hence the opposite party prays to  dismiss the complaint with costs.

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In view of the above pleadings the points that would arise for consideration are:-

1. Whether the  opposite party  was ready to deliver  the vehicle in time?
2.  Whether there is any deficiency in service/negligence/unfair trade practice on the part of opposite party?
3.  Whether the complaint is entitled to get the reliefs as claimed in the complaint?
4.  Reliefs and costs?

Evidence on the side of the complainant consists of oral evidence of Pw1 and Ext. P1 to P3 documents. Opposite party has not adduced any oral or  documentary evidence.   Though sufficient opportunity was given both counsel have not advanced any argument nor filed any notes of  argument.

Point No.1 to 3

For avoiding repetition of discussion of materials these 3 points are considered together.Admitted case of the parties that complainant had booked a Royal Enfield STD-350 Model bullet with the opposite party on 12.09.2014 by paying an amount of Rs.5000/- as advance booking fee.According to complainant at the time of booking opposite party fixed 5 months tentative date of delivery.Ext.P1 booking order form dated 12.09.14 issued by opposite party would corroborate the version of Pw1 regarding the booking of said vehicle, booking amount and tentative date of delivery.  According to the opposite party they are always ready to deliver the vehicle at any time and informed the fact to the complainant on several times by telephone  and due to the financial stringency complainant not turned up. PW1 has clearly denied the above contention and  has deposed that he was having sufficient source to raise  fund to purchase the vehicle if he was informed.    However   the   opposite   party

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has not adduced any piece of evidence either oral or documentary to prove that, the vehicle allotted to the  complainant  was  ready  for   deliver  and  that  the

same was informed to the complainant with a request to take delivery of the same. More over opposite party admitted that they had received Ext.P2 legal notice from complainant but not issued any reply notice disputing the allegations stated in the notice and also stating that they were ready and willing to deliver the vehicle at any time as claimed in the written version.  Inspite of the specific demand to deliver the motor cycle booked as per Ext.P1 document within 7 days from the receipt of Ext.P2 lawyer notice the same was not delivered nor the opposite party sent any reply notice stating that the vehicle is ready with them.  Hence the forum is entitled to draw adverse inference against the opposite party under section 114(g) of the Indian Evidence Act.  On evaluating the entire materials available on record we are satisfied that the complainant has established its case beyond any reasonable doubt.

It is clear from the materials available on record that there is  gross deficiency in service and unfair trade practice on the part of the opposite party. Therefore the complainant is entitled to get the booking amount (Rs.5000/-) with reasonable  interest.

According to complainant, due to the negligence, deficiency in service and unfair trade practise of the opposite party, he has sustained  loss of amenities, comfort and convenience  and mental agony and hence he claimed Rs.60000/- as compensation for mental agony and other losses suffered by him and Rs.2000/- being costs. It is clear from the oral evidence of PW1 that the complainant has also sustained severe mental harassment & inconvenience apart from financial loss. There for the complainant is entitled to get compensation and costs of the proceedings from the opposite party. In view of the facts and circumstances  of  the  case  we  are  of  the  opinion  that  Rs.10,000/- shall   be

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sufficient compensation and Rs.2000/- shall be sufficient costs. The points answered accordingly.

Point No.4

In the result complaint stands allowed in the following terms. Opposite party is directed to pay an amount of Rs.5000/-(Booking amount) with 12% interest from 12/09/14 till realisation, Rs.10000/-as compensation and 2000/-as costs of the proceedings to the complainant within 45 days from today failing which the complainant is entitled to realize the same with interest at the rate of 12% per annum from the date of booking the vehicle (12/09/14) till realization from the opposite party and from their assets.

Dictated to the  Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  10^th   day of  April  2018.     

                               E.M.Muhammed Ibrahim:Sd/-

                                                                                                       M.Praveen Kumar:Sd/-

                                                                                                       Forwarded/by Order

                                                                                                       Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                     :         Soman

Documents marked for the  complainant

Ext.P1                  :         Booking order form

Ext.P2                  :         Lawyer Notice

Ext.P3                  :         Acknowledgement Card

Witness examined for the opposite party:-Nil

Documents marked for the  opposite parties:-Nil

   E.M.Muhammed Ibrahim:Sd/-

                                                                                       M.Praveen Kumar:Sd/-   

                                                                                       Forwarded/by Order

                                                                                       Senior Superintendent