BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 38/2008 Filed on 28.02.2008

Dated : 15.06.2010

Complainant:

Anila Robin, W/o Robin Joseph, Kurisinkal, TRA B-55, Nalanchira P.O, Thiruvananthapuram-15.

(By adv. Idicula Zachariah)

Opposite parties :

1. The Managing Director, M/s Hilton Hyundai, T.C 36/58(6), Zion, N.H. Bypass Road, Eanchakkal, Thiruvananthapuram-8.

    

2. The Manager, M/s Hilton Hyundai, Shaarmers Tower, Sasthamangalam P.O, Thiruvananthapuram-10.

(By adv. Prabhu Vijaya Kumar)

This O.P having been heard on 30.04.2010, the Forum on 15.06.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Brief facts of the case are as follows: Opposite party is the Hilton Hyundai Car dealer in the City of Thiruvananthapuram and other places. The complainant booked through her husband CR. Di SX-ABS Model Car having the color Deep Perl Blue on 22.09.2007 at a discounted price worth Rs. 8,96,979/- and remitted Rs. 1,000/- towards the same as booking advance. Later the complainant remitted Rs. 50,000/- vide cheque No. 065407 of Bank of India, Paruthippara branch dated 27.09.2007 from the joint account of the complainant and her husband. Moreover the complainant arranged vehicle loan with Bank of India, Paruthippara branch for the balance payment. Whileso on 09.11.2007 it was informed from the office that the booked vehicle is ready for delivery on payment of the balance amount. The complainant remitted the entire balance Rs. 8,00,000/- vide pay order No. 2516 dated 09.01.2007 of Bank of India by cash. After accepting the entire amount, they showed to the complainant a car which is of different model and colour was not Deep Perl Blue. The complainant reluctant to accept the vehicle, since the vehicle was different from the ordered one. Then they replied to the complainant to wait some more time to get the ordered model car having Deep Perl Blue colour. As per their request the complainant waited for the vehicle till 17.11.2007 and finally on enquiry they revealed that the particular model vehicle with Deep Perl Blue colour is not available for delivery. Therefore the company is ready to return the entire amount along with interest, process charge, cost etc. But in their refunded post dated cheque the amount of interest, process charge, cost etc were not covered. So the aforesaid act is totally an unfair trade practice from the part of opposite parties after accepting the entire amount, offered a vehicle which is different from the Model and colour that the complainant placed. On 19.11.2007 complainant herself sent a letter/notice to the Hilton Hyundai, Thiruvananthapuram by registered post for loss and damages caused to the complainant due to deficiency in service and unfair approach of the opposite party. But the opposite party didn't give any reply to the said letter. There is total deficiency in service and unfair trade practice from the opposite parties and irresponsible act of the opposite parties has caused heavy loss, mental agony and other hardships to the complainant. Hence this complaint.

Opposite parties, Hilton Hyundai filed their version. In the version they admitted that the complainant had placed a booking for a Hyundai Verna Diesel car and paid Rs. 1,000/- as booking advance and later Rs. 50,000/- as the initial payment. The opposite parties submit that they are only dealers and the availability of a particular model/colour etc. is subject to the availability from the manufacturer. Complainant had remitted the balance amount vide pay order No. 2516 dated 09.11.2007 of Bank of India and remaining amount of Rs. 45,979/- by cash. But these opposite parties vehemently deny that we had informed the complainant that the vehicle is ready for delivery on payment of balance amount. It is submitted that a vehicle is ordered from the manufacturer only on payment of the full amount or at least 75-80% of the said amount. At the time of booking itself the fact that the colour of the car is subjective to availability from the manufacturer was informed to the complainant. After payment of the initial amount, the complainant had come forward with the balance amount nearly after two months. The complainant had stated the delay in sanctioning of the loan as the reason for the delay in making the balance payment. It is vehemently denied that opposite parties had showed a car with a different colour to the complainant. The complainant was appraised by the opposite parties that the particular colour is no longer in production and that these opposite parties could only try to procure a car having the said Deep Pearl Blue Colour from unsold stock lying with any other dealer or the manufacturer. The complainant had also agreed to the same and had remitted the balance amount. Accordingly their efforts did not prove to be fruitful, they had returned the entire amount back to the complainant. It is submitted that no process charges or cost were charged from the complainant by these opposite parties and hence they are not bound to give process charges or cost to the complainant. Only an amount of Rs. 51,000/- was with these opposite parties for a period of 43 days. The balance amount was remitted only on 09.11.2007 vide bank pay order dated 09.11.2007 and cash payment of Rs. 45,979/- and the same was refunded along with Rs. 51,000/- on 17.11.2007 itself. Even if the complainant is adamant on claiming interest, she can only claim interest on the aforesaid days. But these opposite parties are in no way liable to pay interest to the complainant. There is no unfair trade practice from the part of these opposite parties. The very fact that the pay order from the bank dated 09.11.2007 would add further probability and credibility to the version of the opposite parties that it is the delay in processing and sanctioning of loan by the bank that has resulted in the delay of remitting the balance amount by the complainant. Further this would also negate the complainant's version that these opposite parties had asked the complainant to remit the balance amount on 09.11.2007 whereas the bank pay order is also dated 09.11.2007 showing it was only allotted on that day. There is no deficiency in service or unfair trade practice from the part of these opposite parties. Complainant has not faced any hardships or mental agony or loss on this regard and hence her claim for mental agony and hardships are bad and only to be dismissed. No process charges were claimed or charged by the opposite parties and hence they are not liable for any process charges. As regards the interest, complainant is not entitled for the same on account of the facts stated in the version. There is no cause of action for filing this complaint and the complaint is a frivolous test dose attempt by the complainant. Complainant is not entitled to any of the reliefs claimed and the complaint is only to be dismissed with costs.

To prove her contentions complainant has filed proof affidavit and produced 7 documents. Opposite parties cross examined the complainant. Opposite parties have no evidence.

The points that would arise for consideration are:-

1. Whether there is deficiency in service or unfair trade practice from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- Complainant in this case paid an advance booking amount of Rs. 1,000/- to the opposite parties on 22.09.2007. Ext. P2 is the order booking form. As per this document colour of the vehicle is D Perl Blue and Model CRDISX ABS. There is no dispute with regard to this matter. Ext. P3 is the payment receipt dated 27.09.2007. As per this document the complainant had paid Rs. 50,000/- to opposite parties on 27.09.2007 towards advance for booking of SX ABS of deep pearl blue colour. Ext. P4 is the receipt of payment of Rs. 8,45,979/- on 09.11.2007. The complainant paid the total price of the car i.e; 8,96,979/- to the opposite parties. After accepting the entire amount the opposite parties showed to the complainant a car which is of different model and colour was not deep pearl blue. Due to that reason complainant did not accept the same. Therefore the complainant waited for the vehicle till 17.11.2007. Thereafter only the opposite parties revealed that the particular model vehicle with deep pearl blue colour is not available for delivery. Thereafter the opposite parties refunded the amount without interest, process charge etc. As per the complainant the act of the opposite parties is totally an unfair trade practice from the side of opposite parties after accepting the entire amount, offered a vehicle which is different from the model and colour that the complainant placed.

In this case the main contention of the opposite parties are that at that time the particular colour is no longer in production. It is not an excuse, it is the duty of the opposite parties to assure if that colour of the vehicle is available or not before receiving the entire price of the car from the complainant. The complainant in this case arranged the amount as a bank loan. Hence it is implied that the complainant had to remit the processing fee etc. relating to a bank loan. Complainant arranged the amount with the belief that she will get the same colour and model of the car which she had booked. But the opposite parties failed to supply the same. Hence there is deficiency in service from the side of opposite parties. The opposite parties have admitted that an amount of Rs. 51,000/- was with them for a period of 43 days i.e; from 27.09.2007 to 17.11.2007. Hence the complainant is entitled to get interest for that period. Before filing this case the complainant had sent notice to the opposite parties. But the opposite parties did not care to send a reply. The copy of the notice dated 19.11.2007 is produced as Ext. P6. Ext. P7 is the postal receipt of notice.

From the foregoing discussions, we find that there is deficiency in service from the side of opposite parties. Hence the complaint is allowed. The opposite parties are held liable to pay compensation to the complainant.

In the result, the opposite parties are directed to pay 9% interest for Rs. 1,000/- from 22.09.2007 to 17.11.2007 and for Rs. 50,000/- from 27.09.2007 to 17.11.2007. Opposite parties shall pay Rs. 4,000/- as compensation and Rs. 2,000/- as costs to the complainant. Opposite parties are jointly and severally liable to pay the amount. Time for compliance one month from the date of receipt of the order. Thereafter 12% annual interest shall be paid to the entire amount.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of June 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

jb

C.C. No. 38/2008

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Anila Robin

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of price list

P2 - Copy of order booking form.

P3 - Payment receipt dated 27.09.2007.

P4 - Receipt of payment of Rs. 8,45,979/- dated 09.11.2007.

P5 - Statement of account from 01.06.2007 to 12.02.2008

P6 - Letter dated 19.11.2007 issued by complainant to opposite

party.

P7 - Postal receipt dated 19.11.2007

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT