IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

                                                     C.C.No. 153/2020

PRESENT

      SMT. S.K.SREELA, B.A.L, LL.B, PRESIDENT

          SMT. S.SANDHYA   RANI. BSC, LL.B, MEMBER

     SRI.  STANLY HAROLD, B.A.LL.B, MEMBER

ORDER DATED:     31.10.2023.

BETWEEN

Valiyaparambu P.O.,

Alappuzha 690516                                                         .:           Complainant

AND

1.  Managing Director,

M/s Pothen Motors (P) Ltd.,

Kollam 691 004.

(Sangeeta S.Panicker)

2. The Managing Director,

Hyundai Motor India Limited,

Plot No.H-1, SIPCOT Industrial Park,

Irrungattukottai, Srioerumbudur,

Kancheepuram TN 602117                                                 :Opposite Parties

(By Adv.G.Bimalraj)

ORDER

Stanly Harold, B.A.LLB, Member

          This complaint is filed U/s 35 of the Consumer Protection Act 2019.   

The averments in the complaint in short are as follows:-

          Complainant has booked VERNA(P) SX Option 2020 model with the 1^st opposite party, vide Order Booking Form No.19595 on 30.12.2019 by paying Rs.5,000/-.  At the time of booking the agreed total on road cost was Rs.14,13,725/- and it was assured that the vehicle will be delivered before 25.01.2020.  Subsequently, since the 1^st opposite party has confirmed the delivery by 2^nd week of January 2020, complainant arranged payment of Rs.11,84,000/-(FULL EX SHOWROOM COST) from SBI, Kollam on 04.01.2020.  Complainant had paid the full Ex Showroom price of the vehicle in the first week of January 2020, for getting the vehicle delivered to the complainant on 25.01.2020 as assured by 1^st opposite party.  Despite complainant repeated requests and reminders the 1^st opposite party could not deliver the vehicle in time.  But the 1^st opposite party was simply conveying one or the other excuses to justify the delay in delivery.  It is to be noted that there were more than two and a half months time between the payment date and the lock down date to fulfill the promise on delivery.  At last on 14.05.2020 after 132 days from the date of making the full ex show room price of the vehicle, the 1^st opposite party delivered the vehicle with an increased cost of Rs.15,12,436/- forcing the complainant to pay an additional sum of Rs.98,711/-.  Since the delivery was made at a road side place near Oachira, complainant had been constrained to travel to that place another car which incurred additional expenses.    The 1^st opposite party had not provided Fas Tag at the time of delivery and  opposite parties asked to visit Karunagappally show room of the 1^st opposite party for this, which also resulted in additional expenses.  According to the complainant he was paying monthly instalments to the financiers during the above period (from January 2020 onwards) without receiving the vehicle.  1^st opposite party took the Ex Showroom price, in full, in the first week of January 2020 and kept the amount with them for more than 4 months and afterwards delivered the vehicle with an increased price.  Thereafter SBI, Kollam had imposed a penalty of Rs.2,500/- due to delay in producing of RC Book of the financed vehicle.  Complainant has sent a letter to 1^st opposite party, and 2^nd opposite party through registered post on 06.06.2020 and got an undated and unsigned reply in a plain paper which is not at all answering even a single query raised by complainant and hence not satisfactory.  The above aforesaid act of the opposite parties are deficiency in services and unfair trade practice rolled out by the purchase of a new car.  Due to the aforesaid deficiency in service by the 1^st opposite party, the complainant has been made suffer financial loss, physical pain, mental agony, and trauma.  The opposite parties are jointly and severally liable to compensate the complainant for their deceptive act.  Hence the complaint is being filed to redress these issues and seek appropriate redressal.  Hence the complaint.

          The 1^st opposite party filed separate version resisting the averments in the complaint and contended that the complaint is not pleaded in numbered paragraphs the complaint is denied as a whole and the issues are traversed accordingly.  The 1^st opposite party further contended that real facts regarding the sale of the vehicle is purposefully hidden by the complaint so as to engage in an experimental litigation and to try procuring an award by misleading the Hon’ble Commission.  It is further contended that the purchase of the Hyundai Verna 1.5 MPI MT SX(O) by the complainant is admitted.  It is true that the complainant has approached the 1^st opposite party dealership and booked the vehicle on 30.12.2019.  At the time of booking the specifically instructed the dealership that since he is booking the vehicle at the end of 2019, he intends to buy the 2020 make of the 2018 model verna car.  The 1^st opposite party contends that from 2020 onwards, the Hyundai Company stopped the production of the old model of car and subsequently a new model was rolled out.  The 1^st opposite party had in due course informed the complainant regarding the unavailability of the old model Verna and the decision of the company to replace it with a face lifted model.  The complainant was apprised about the change of price when the same was made available to the dealer by the manufacturer.  The another wide lock down imposed in India had also contributed towards the delay in delivery of the vehicle.  Due to the complete shutdown of all offices and units of the manufacturer and dealers and the transportation of vehicles from the manufacturer to the dealership was delayed.  Hence it could be seen that there were no willful latches from the part of the 1^st opposite party. 

          The complainant had purchased the said vehicle after getting satisfied of the new vehicle model/specifications, the change in circumstance which leads to the increase in price and after agreeing to the new terms and conditions.  1^st opposite party further contending that the averments in the complaint is farfetched and contrary to the real facts.  The pandemic, nationwide lock down etc may have contributed towards some agony to the complainant.  But it is part and parcel of the whole systematic adjustment even the manufacturer and dealerships suffered all around the country to the tune of crores of rupees.  The loan availed by the complainant from the bank is a matter to be settled between the lender and the borrower(complainant) in accordance with the law of the land and the orders and circulars issued by the Ministry of Finance relevant to the pandemic period.  The complainant hails from Alappuzha and it was in honor of the special request of the complainant that the dealership arranged the delivery of the vehicle at Oachira, in order to reduce the travelling distance for the complainant.  The delay in customer receiving the fastag was due to the shortage of the same with the dealership owing to the lockdown imposed in the country.  Hence the compensation sought on both the above mentioned grounds are unsustainable.  The complainant himself has voluntarily insisted the dealership to take the full ex showroom price in advance as he doesn’t  want the said money to be spent on other expenses.  The dealership has not demanded the complainant to make the full payment in advance.  The 1^st opposite party further contends that the complaint is based on hypothetical and imaginary contentions totally contrary to the real facts and prudence.  The 1^st opposite party further contends that the complainant has got no credible allegations which points towards the deficiency in service or unfair trade practice committed on the part of this opposite party.  The  reliefs claimed are  unsustainable in law and baseless and complaint is only to be dismissed with cost and compensation.

          The 2^nd opposite party filed separate version resisting the averments in the complaint.  It is contended by the 2^nd opposite party as far as the 2^nd opposite party is concerned, the present complaint is frivolous, misconceived and has been formulated on wrong and misleading facts.  There is no allegation as against the 2^nd opposite party in the above complaint and the 2^nd opposite party is dragged in to this proceeding only to arm twist them.  The 2^nd opposite party further contends the present complaint is liable to be dismissed qua the 2^nd opposite party on the sole ground that no cause of action has arisen against Hyundai Motor India Limited.  That a bare perusal of the complaint will reveal that the 2^nd opposite party not unnecessarily impleaded as a party.  It is further contended that HMIL is neither a proper nor necessary party to the present proceedings nor any cause of action has arisen against HMIL for filing the present complaint.  It can be revealed from the complainant not even a single allegation has been brought out against the 2^nd opposite party.  The 2^nd opposite party contends that the entire complaint revolves around the allegation that the dealer M/s Pothen Hyundai, post selling and delivering the said vehicle to the customer, customer has realized that the dealership has charged Rs.98,711/- in excess.  The complainant has impleaded HMIL as a party to this complaint merely on the misconceived ground that the dealers are representatives of HMIL and that HMIL is liable for the acts and omissions of the dealer.  Despite having complete knowledge that HMIL is not at all liable for registration of the vehicle and that the liability of registration falls under the domain of the dealers, the complaint is bad for misjoinder and as such the name of HMIL deserves to be deleted from the array of parties.  The 2^nd opposite party further contends that HMIL/2^nd opposite party operate with all its dealers on a principal-to principal basis and errors/omission, if any at the time of retailing or registration of the car is the sole responsibility of the concerned dealer.  It is contended that the 2^nd opposite party being the manufacturer of the Hyundai cars is limited and extends to its warranty obligations alone and error/omission/misrepresentation, if any, at the time of retail sales of the car on part of the dealer cannot be fastened upon the 2^nd opposite party.  It is contended that by no stretch of imagination the manufacturer is to be  held liable for any damages or loss, if any, caused to complainant by the non-issuance of registration certificate or by providing wrong registration number by the dealer and it was the dealer who was solely responsible to the complainant for any misinformation/omission as the relation between the manufacturer and dealer, as stated above is on principle to principle basis.  It is also important to mention that the cars are purchased by the concerned dealers against payment in their name and thereafter they sell the car to the end use customers with their own profit margin in their sale invoice.  It is pertinent to mention that the “title of the Hyundai vehicle” passes on to the concerned dealer, the moment it is put on a common carrier.  Admittedly, there is no allegation relating to performance of the car manufactured by the 2^nd opposite party.  It is further contended by the 2^nd opposite party the contents of prayer clause are wrong and denied.  It is denied that the 2^nd opposite party is liable to compensate for any losses suffered by the complainant due to any misrepresentation or omission on the part of dealer.  Complainant has not suffered any mental agony trauma on account of any act or omission on the part of 2^nd opposite party.  The present complaint being frivolous  and a total abuse of the process of law is liable to be dismissed as against the 2^nd opposite party.

In the light of the above pleadings the point that arise for consideration are:-

1. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties in providing the VERNA(P) SX Option 2020 model car to the complainant?
2. Whether the complainant is entitled to get compensation?
3. Reliefs and costs?

Evidence on the side of the complainant consists of oral evidence of PW1 and Exts.A1 to A4 documents got marked.  Opposite parties have not adduced any oral or documentary evidence.  Complainant and 1^st opposite party filed notes of argument.  Heard the counsels for the complainant and the 1^st opposite party.

Point No.1 & 2

          For avoiding repetition of discussion of materials, these two points are considered together.  The following are undisputed rather than admitted facts in this case.  The complainant had booked a VERNA(P) SX Option 2020 model with the 1^st opposite party vide Order Booking Form No.19595 on 30.12.2019 by paying Rs.5,000/- cash.  At the time of booking the cost of agreed car was Rs.14,13,725/- and they also assured that the vehicle will be delivered before 25.01.2020 and this is also an admitted fact.  1^st opposite party had confirmed the complainant that the delivery of the car will be on the 2^nd week of January 2020.  Believing the words of the 1^st opposite party, complainant has arranged the payment of Rs.11,84,000/- (FULL EX SHOWROOM COST) from SBI, Kollam on 04.01.2020 and the complainant had paid the full Ex Showroom price of the vehicle in the first week of January 2020, for getting the vehicle delivered as assured by the 1^st opposite party  on 25.01.2020.  But the opposite party failed to delivery as the time promised.  According to the complainant, 1^st opposite party was simply conveying lame excuses to justify the delay and the negligence caused by 1^st opposite party.  It is also pertinent to note that the complainant has booked the vehicle on 30.12.2019, two and a half months before the Covid Pandemic lockdown.  The 1^st opposite party has ample time to fulfill the obligation made to the complainant but the 1^st opposite party failed to do so.  However on 14.05.2020 after 132 days from date of making the full ex showroom price of the vehicle,  1^st opposite party delivered the vehicle with an increased price of Rs.15,12,436/- compelling to pay an additional sum of    Rs.19,711/-.  This was contrary to the agreement of booking arranged on 30.12.2019.  It is very pertinent to note that the 1^st opposite party has committed gross deficiency in delivering the car booked by the complainant.  There is a bound obligation from the part of the 1^st opposite party to deliver the vehicle at the residence of the complainant.  But the 1^st opposite party had made the delivering at the road side of Oachira and the complainant was constrained to travel to that place by taking another car by spending additional expenses.  It is also very pertinent to note that, the unavailable item, required in a newly delivered car, which is an inevitable them car fast tag was not provided at the time of delivery.  Due to this, complainant had to spend another additional amount to visit the Karunagappally showroom.  The 1^st opposite party has promised to delivery the car as home delivery.  But the 1^st opposite party failed to do so.  The act from the part of 1^st opposite party caused sufferings and financial losses and mental agony.  Counsel for the 1^st opposite party has vehemently cross examined the complainant but nothing was brought out to disprove the case of the complainant.

The 1^st opposite party committed unfair trade practice by deliberately misrepresenting the terms and conditions arrived at the time of booking the car on 30.12.2019.  This deceptive conduct not only constitutes a violation of the complainant's consumer rights but also inflicts significant mental distress and financial loss upon them.  The 1^st opposite party by providing oral assurance of the delivery of the car on 25.01.2020 as home delivery, the 1^st opposite party created a false expectation and induced the complainant to purchase the vehicle.  The Commission examined thoroughly the evidence available in Ext.A1 series, Ext.A2 series indicating the deficient service caused by the 1^st opposite party.  Another aspect evident from Ext.A2 is that the complainant had specifically and categorically narrated by points intimated the opposite party about the excess payment charge collected in excess at the time of delivery of the Verna.  It is very pertinent to note that while booking the vehicle on 30.12.2019 the agreed price of the vehicle on road amounts to Rs.14,13,725/- and assured that the vehicle will be delivered before 25.01.2020.

The Commission prefers paramount consideration to ensure the rights and interest of the consumer/ complainant.  In this case 1^st opposite party has committed gross deficiency in service and unfair trade practice by promising a price to the newly booked car and thereafter at the time of the delivery of the car they had purposefully and deliberately increased the rate of the car to a tune of Rs.98,711/-.  It is worth to note that while cross examining the complainant as PW1 vehemently, nothing was brought out to discard the evidence of complainant.  The opposite party failed to adduce any relevant evidence to prove the case or to defend the case advanced by the complainant.  It is very pertinent to note that the 1^st opposite party had failed to contest case with vital documents and evidence.  It is evident from the available record Ext.A2 that the 1^st opposite  failed to comply with the terms at the time of the agreement and charged an exorbitant amount from the complainant.  The 2^nd opposite party specifically contends that they operate with all dealers on a principal to principal basis and if error or omissions caused at the   retailing or registration of car, liability is under the domain the dealer and categorically points out that there is no specific allegation against the 2^nd opposite party.

 It is also very pertinent to note that the complainant has not raised any specific allegation of deficiency in service or unfair trade practice against 2^nd opposite party nor sought for any relief specifically against the 2^nd opposite party.  The complainant while at the time of cross examination nothing was brought against 2^nd opposite party or he had not claimed any relief from the 2^nd opposite party.  In the circumstances 2^nd opposite party is to be exonerated.

It is a specific case of the complainant that the 1^st opposite party without any basis and in violation of the booking agreement arrived on 30.12.2019.  Contrary to the booking no customer is supposed to suffer by the whims and fancies of the 1^st  opposite party/ dealer.  A person who is availing a vehicle by giving advance amount would expect that the vehicle would be delivered by the dealer promptly.  It is highly unfair in delivering the vehicle with undue delay without any valid reason.  The 1^st opposite party would contend that the lock down was declared by the Government so they were unable to deliver the vehicle at time.  But unfortunately the deadly Covid Pandemic has declared two and a half months after the booking of the vehicle.  However the pleadings of the complainant is to give much strength about the nationwide lockdown regarding the delay, because he had remitted the entire amount without any delay prior to lockdown.

On evaluating the entire available materials on record, the complaint established that there is deficiency in service and unfair trade practice in making delay in respect of the booked vehicle by the 1^st opposite party.  It is also brought out in evidence that due to delay in giving the vehicle , complainant has met with additional expenses thereby complainant sustained mental agony apart from financial loss.  Hence he is entitled to get a reasonable compensation and the costs of the proceedings.

We are of the view that the complainant is entitled to get Rs.98,711/- collected from the complainant as the price difference and Rs.10,000/- as compensation and Rs.5,000/- as costs of the proceedings.  The points answered accordingly.

Point No.3  

          In the result complaint stands allowed in the following terms:-

1. The 1^st opposite party is directed to pay Rs.98,711/- to the complainant being the charge collected in excess from the complainant towards the price of the vehicle with interest of 12% per annum from the date of complaint till realization.
2. The 1^st opposite party is also directed to pay Rs.10,000/- as compensation and Rs.5,000/- as costs of the proceedings.
3. The 2^nd opposite party is exonerated from all liabilities.
4. The 1^st opposite party is directed to comply with the above directions within 45 days from the date of receipt of the copy of this order failing which the complainant can initiate execution proceedings.

Dictated to the Confidential AssistantSmt. Minimol S. transcribed and typed by her corrected by me and pronounced in theOpen Commission this the 31^st day ofOctober 2023.

Sd/-

STANLY HAROLD

MEMBER

Sd/-

S.K.SREELA

PRESIDENT

Sd/-

S.SANDHYA RANI

MEMBER

Forwarded/by Order 

                            Senior superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                    : D.Reghu

Documents marked for the  complainant

Ext.A1 series (a)  : Email communication dated 03.02.2020

Ext.A1 series (b)  : Clarification mail dated 30.01.2020

Ext.A2                : Excess Payment charged against delivery of Verna

Ext.A3                 : Clarification letter

Ext.A4                 : Customer Account Statement Voucher

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil                                                    

Sd/-                                PRESIDENT