DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 06th day of February, 2023
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 17/09/2021
CC/152/2021
Nakul A.,
S/o.M.P.Anilkumar,
Ma Kripa, 12/197 (3),
Ramanathapuram,
Puthur, Palakkad – 678 005 - Complainant
(Party in Person)
Vs
Managing Director,
Royal Enfield, Intrepid Works,
7/712, NH 544, Marutharode,
Palakkad – 678 007 - Opposite party
(By Adv. Vinod Kayanatt)
O R D E R
By Sri. Vinay Menon V., President
- In short, the complainant is aggrieved by the non-refund of the advance amount paid by the complainant to the opposite party for purchase of a motor cycle sold by the opposite party. The complainant paid an amount of Rs. 10,000/- by way of advance payment for the purchase of a Motorcyle on 31/03/2021. Tentative date of delivery was 29/07/2021. Till September, the O.P. failed to deliver the said vehicle. This complaint is filed seeking return of the aforesaid amount along with incidental reliefs.
- Notice was served on Opposite party on 06/10/2021. They entered appearance on 20/10/2021. Eventhough time was granted to the O.P. for filing version on 08/11/2021, 24/11/2021 and 13/12/2021 the O.P. failed to file version. Hence pleadings were closed. Thereafter, on 04/02/2022, ie. nearly 2 months after closing pleadings, the O.P. filed version along with I.A. 59/22 to condone the delay in filing of the version, stating that the version could not be filed as the O.P., a business establishment, was out of station. Yet the I.A. was allowed on cost, payable to complainant as well as the Legal Benefit Fund of this Commission. The O.P. informed this Commission that the order in I.A. 59/2022 was complied with. Accordingly version was taken on file. Issues were also framed based on the version.
On 13/12/2022, it came to light that the O.P. had not paid the cost ordered to be paid to the complainant. Hence version was rejected. The O.P. filed Review Application (But proceeded with as an Interim Application) against the order dated 13/12/2022. This application, IA. 621/2022, sought review of the order dated 13/12/2022 alleging that the complainant had not appeared on a number of dates owing to which the O.P. could not comply with the order in I.A. 59/2022. As the reasons raised in this I.A. were an abuse of the process of law, this I.A. was dismissed by a detailed order dated 23/01/2023.
3. Since version stands rejected, we are not resorting to the issues raised based on counter pleadings. The complainant need only prove a prima facie case. He filed proof affidavit and marked Exts. A1 and A2.
4. Ext. A1 is the Booking receipt voucher dated 31/03/2021. Tentative date of delivery is shown as 29/07/2021, ie. 4 months after date of payment of advance amount. It is shown on the facing sheet as well as in a “Note” on the reverse of Ext. A1 that this amount is non-refundable. Clause 2, under the “Terms and Conditions” is as below:
“2) No interest will be paid on booking amount at the time of refund”
So, even though a blanket ban is seen made in Ext. A1 regarding refund of booking amount, the same document also contemplates in Terms and Conditions, a situation wherein refund of booking is permitted. This later condition, therefore, would survive over the initial conditions.
5. Further, when there is an ambiguity in the terms and conditions of a contract, this Commission is to take recourse to the principle of “contra proferundum”, ie. the interpretation favorable to the person who did not draft the agreement should benefit. Since Ext. A1 contemplates situations wherein refund is not permissible as well as one where refund is permissible, without stating conditions for refund, we find an ambiguity in the terms and conditions in Ext. A1. We interpret the document favouring the complainant. The O.P. is liable to refund the amount.
6. Grievance of the complainant is that he did not receive the vehicle even after 5 months of waiting. Therefore he issued Ext. A2 letter dated 10/09/2021. That means the vehicle was not ready even till this date.
It is true that 29/03/2021 is the tentative date of delivery of the motorcycle. But a tentative date has to be reasonable. It cannot extent ad-infinitum. Even during the course of proceedings of this case, the O.P. party had made no attempts whatsoever to make a submission to the effect that the vehicle was ready for delivery.
7. Further this is a case in which the O.P. had failed to enlighten this Commission as to the cause of delay. Their version was rejected as a consequence of their conduct to mislead and misguide this Commission.
8. Thus the complainant has proved that there is a prima facie case in the complaint.
9. Thus the complaint is allowed as follows:
1. The O.P. is directed to pay an amount of Rs. 10,000/- to the complainant.
2. The complainant is entitled to interest on this amount @ 10% from 31/03/2021
till date of payment.
3. The complainant is entitled to a compensation of Rs. 5000/-.
4. The complainant is entitled to a cost of Rs. 5000/-
5. The O.P. shall pay to the complainant the aforesaid amounts within 45 days of receipt of this Order, failing which the complainant shall be entitled to a solatium of Rs. 250 per month or part thereof till the date of final payment of the amount so stated above.
Pronounced in open court on this the 06th day of February, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant :
Ext.A1 – Copy of booking receipt voucher dated 31/3/21
Ext.A2 – Copy of letter dated 10/9/2021
Exhibits marked on the side of the opposite party: Nil
Court Exhibit: Nil
Third party documents: Nil
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.
