COMPLAINT FILED: 25.09.2009<br /> DISPOSED ON: 18.08.2010<br /> <br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 18TH AUGUST 2010<br /> <br /> <br /> PRESENT :- SRI. B.S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER<br /> <br /> COMPLAINT NO.2270/2009<br /> <br /> <br /> COMPLAINANTS 1. Smt. S.Sunitha, <br /> Aged about 28 years,<br /> D/o Mr.V.Somanna,<br /> <br /> 2. Sri. V.Somanna, <br /> Aged about 57 years,<br /> S/o Venkataswamy,<br /> Both are at No.226, EWS, <br /> KHB Colony,<br /> First Stage, <br /> Basaveshwaranagara,<br /> Bangalore-560 079.<br /> <br /> <br /> Advocte : Satyanarayana<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTIES 1. The Managing Director, <br /> M/s. Kalyani Motors Pvt.Ltd<br /> No.24/1 & 24/5, <br /> Near Nayandhalli Signal, <br /> 100 Feet Road, <br /> Mysore Road Junction,,<br /> Bangalore-560 039.<br /> <br /> Advocte : S. Anilkumar<br /> <br /> <br /> <br /> 2. Mr. Rakesh Gowda B.K.,<br /> Sales Executive,<br /> <br /> (Deleted)<br /> <br /> 3. Mr. Puttaraju, Employee,<br /> <br /> 4. Mr. N.C. Murali, Employee,<br /> <br /> (Deleted)<br /> <br /> All are majors in age and <br /> employed at M/s. Kalyani <br /> Motors Pvt. Ltd<br /> No.24/1 & 24/5, <br /> Near Nayandhalli Signal, <br /> 100 Feet Road, <br /> Mysore Road Junction,,<br /> Bangalore-560 039.<br /> <br /> 5. The Chairman/Managing <br /> Director,<br /> M/s. Maruthi Suzuki India<br /> Ltd., Plot No.1, <br /> Nelson Mandela Road,<br /> Vasanth Kunj,<br /> New Delhi-110 070.<br /> <br /> 6. The Regional Manager,<br /> M/s. Maruthi Suzuki India<br /> Ltd., R.O. South, No.204,<br /> II Floor, Embassy Classic,<br /> Vittal Malya Road,<br /> Bangalore-560 001.<br /> <br /> Ex-parte<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> <br /> SMT. M. YASHODHAMMA, MEMBER,<br /> <br /> This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Parties. (herein after called as O.Ps) <br /> <br /> a) To pay the discount and incentive benefit of Rs. 50,000/- offered and extended to the vehicle of 2007 Model with interest at the rate of 21% p.a. from 21.01.2008 till realization.<br /> b) To pay Rs.1,02,000/- towards depreciation with interest at the rate of 21% p.a. from 21.01.2008 till realization.<br /> c) To pay compensation of Rs.50,000/- for negligence and deficiency in service with interest at the rate of 12% p.a. from 21.01.2008 till realization on the allegation of the deficiency in service.<br /> <br /> 2. The brief averments made in the complaint are as follows:<br /> <br /> 2nd complainant who is father of the 1st complainant with an intention to purchase a brand new Maruthi ALTO LXI BS III Car for his daughter contacted 1st OP who is a dealer of Maruthi Car manufactured by OP-5. On 07.01.2008 complainants enquired about the price, delivery etc. On enquiry OP 2, 3 & 4 offered discount of Rs.25,000/- and incentive like free insurance and free accessories worth of Rs. 25,000/- for the 2008 Model and insisted the complainant to buy 2007 Model Car and offered incentive in all Rs.50,000/-. Complainant insisted for new Model i.e. 2008 manufacture model for which OP 2, 3 & 4th OP asked the complainant to wait for 10 to 15 days. They issued proforma invoice for the said Car and quoted total price of Rs. 3,38,328/-. On 07.01.2008 2nd complainant booked 2008 Model Car in the name of the 1st complainant and paid Rs. 5,000/- as advance. The receipt issued by OP is produced. Complainants waited for 15 days. 1st complainant availed vehicle loan from Indian overseas bank, Shivanachetty garden branch, Bangalore-42 and paid two bankers Cheques dt: 18.01.2008 for a sum of Rs.1,50,000/- and Rs. 32,161/- totally Rs. 1,82,161/-. On 21.01.2008 complainants took delivery of the Car bearing Registration No. KA-02 MC 4851 through a delivery Challan under a good faith and impression that the vehicle supplied is that of 2008 model. After a gap of one month complainant received the R.C. book; without verifying the year of manufacture engine and chassis number complainant submitted the same to the bank as the said Car was hypothecated to the bank. In the month of January 2009 when complainant went to renew the insurance of the vehicle, they came to know that the year of manufacture of the car is 2007 and not 2008 as it was promised at the time of booking. Complainant waited for 20 days and took delivery on 21.01.2008. OPs deliberately cheated the complainant by supplying 2007 year model and further failed to give benefit of the said discount and incentive which was offered for 2007 year model. Inspite of repeated requests when OP failed to compensate the complainant, complainant felt deficiency in service against OP. Under the circumstances they were advised to file this complaint for the necessary relief’s.<br /> <br /> 3. On appearance OP-1 filed its version mainly contending that complainant is not a consumer; As per the principle of caveator Emptor, the purchaser should have been vigilant about the products and its quality and OP cannot be held liable; complainant failed to establish or substantiate their claim; complaint is bad for mis joinder of parties. Complaint is baseless, flagrant abuse of the process of law; complainants have no locus stand to initiate the proceedings; OP-1 is a reputed dealer of the Cars manufactured by OP-5; OP-1 denied that. Complainant paid the amount under the bonafide belief that they are purchasing the Car manufactured of the year 2008 and not of 2007; There is no promise as contended by the complainant. This OP delivered the car according to the seniority and consignment received on the date of delivery; As per records nothing is mentioned while booking the Car about the year of manufacture; complainant themselves intended to take delivery only after 15.01.2008 as of some auspicious, the car was delivered on 21.01.2008; After lapse of one year complainant filed this false and frivolous complaint which is liable to be dismissed u/s. 26 of the act, and prayed for dismissal of the complaint.<br /> <br /> 4. Complainant filed memo seeking deletion of OP 2 and 4 from the proceedings who are the employees of OP-1 and have left the Job. As per the order dt:09.12.2009 OP-2 and 4 are deleted as not necessary parties. OP-3 and 6 inspite of service of notice remained absent without any sufficient reason or cause, hence placed ex-parte.<br /> <br /> 5. OP-5 filed version mainly contending that this OP will not earmark any individual vehicle in favour of any individual customer at the time of dispatch from its factory to its dealer; this OP-5 has no involvement in the transaction of sale of vehicle to the individual customer; The relationship between this OP-5 and OP-1 i.e., dealer is that of the principal to principal basis as per the clause 5 of the dealership agreement executed between the parties. There is no privity of contract between OP-5 and the complainant; dealer shall not be deemed to be the agent for any purpose; There is no reason or occasion or cause of action against this OP. Vehicle manufactured at Gorgaon, Haryana; sale transaction completes as vehicles dispatched to dealers; OP-5 is not a necessary party to the complaint; There is no act of omission or Commission on the part of OP-5; No cause of action. Accordingly OP-5 prayed for dismissal of the complaint.<br /> <br /> 6. To substantiate complaint averments complainants 1 and 2 filed their respective affidavit evidence and produced proforma Invoice, receipts, covering letters, delivery challan, Copy of the R C book, Insurance Policy, postal acknowledgements and receipts.<br /> <br /> 7. From the above pleadings the points now that arises for our consideration in this complaint are as under;<br /> <br /> Point No. 1 :- Whether the complainants have Proved <br /> the deficiency in service on the part of <br /> the OPs?<br /> <br /> Point No. 2 :- If so, whether the complainants are <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 8. We have gone through the pleadings of the parties, both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:<br /> <br /> Point No.1:- In negative <br /> Point No.2:- Negative in part<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 9. At the out set it is not in dispute that the complainant No.2 booked brand new Maruthi Alto LXI BS III Car for his daughter i.e. complainant No.1 from OP-1 Showroom who is a dealer of Maruthi Suzuki India Ltd., to sell Maruthi Alto Cars on 07.01.2008 for a sum of Rs. 3,38,328/- in the name of the Complainant No.1. The receipt issued by OP-1 is produced. OPs asked the complainant to wait for 10 to 15 days. Complainant No.2 paid Rs.5000/- as advance. 1st complainant availed the vehicle loan from Indian overseas bank Bangalore. Complainant paid two bankers cheque dt:18.01.2008 for a sum of Rs.32,161/- and Rs.1,50,000/-. Totally complainant paid Rs.1,82,161/-. Complainants took the delivery of the Car bearing Registration No. KA-02 MC 4851 from OP-1 showroom on 21.01.2008. <br /> <br /> 10. It is contended by the complaint that they insisted for 2008 model OP 2,3,4 told the complainant to wait for 10 to 15 days and issued proforma Invoice for the 2008 Model Car. Hence complainant booked 2008 Model Car and waited for 15 days but basically there is no any documentary evidence in support this contention. Further it is contended by the complainants that after making the balance payment they took the delivery of the said Car on 21.01.2008 under the impression and in good faith and that the vehicle supplied is that of 2008 Model. The delivery challan also did not disclose the year of manufacture. In our view nothing prevented the complainants to seek clarification from OP at that time itself before taking delivery of the vehicle regarding the model of vehicle. <br /> <br /> 11. Further the complainants in para-5 of their affidavit evidence stated that the said Car is hypothecated to the Indian overseas bank Shivanachetty garden branch, Bangalore-42. After a gap of one month i.e. after taking delivery of the said Maruthi Car from the OP-1 Showroom complainants received the R.C. book; without verifying the year of manufacture engine and chassis number as they are purchasing the Car for the first time submitted the R.C. book to the bank as the said Car was hypothecated to the bank. That is to say even after receiving the R.C.book complainants failed to verify whether 2008 model is supplied or not as per their own admission. The principle of “BUYER BEWARE” is applicable to every consumer including complainants. Complainants who failed to exercise due diligence and care cannot allege deficiency in service on the part of OPs.<br /> <br /> 12. Further it is contended by the complainants in para-5 of their affidavit evidence that they are purchasing the Car for the 1st time but the documents produced at C12 dt: 18.03.2009 speaks otherwise contradictory. They have three Maruthi vehicles in their family and planning to change over to Santro. The person who seeks equity must do equity and come with clean hands. The approach of the complainants is not fair.<br /> <br /> 13. Further it is the case of the complainants that Ops failed to give benefit of discount and incentive worth of Rs.50,000/- for the 2007 Model. Primarily there is no documents in support of this contention. If complainants themselves forgone the rights now cannot claim these benefits. Further it is contended by the complainants that in Jan 2009 i.e., after lapse of one year while renewing the Insurance of the vehicle they came to know that the year of manufacture of the Car was 2007 and not 2008. Inspite of repeated requests and correspondence OPs failed to respond. Hence they approached this forum.<br /> <br /> 14. As against this it is contended by the OP-1 and 5 that as per the principle of ‘Caveat emptor’ the purchaser shall be vigilant about the quality of the products purchased. There is some force in this contention and the same has to be accepted. OPs have denied that they had promised to supply 2008 model. As per the seniority of the consignment received OP used to supply and deliver the vehicle. Complainant themselves insisted to take delivery after 15.01.2008 as of some auspicious. Hence Car delivered on 21.01.2008. OP-5 contended that as per clause-5 of dealership agreement there is no privity of contract between OP-5 and the complainants. Complainants not produced an iota of evidence in support of their claims against OP-5. Complaint is devoid of merits. Complainant failed to prove the deficiency in service on the part of the OPs. Under these circumstance we are of the considered view that complaint fails and complainants are not entitle for any relief’s. Accordingly we proceed to pass the following:<br /> <br /> <br /> ORDER<br /> <br /> The complaint is dismissed. Considering the nature of dispute there is no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 18th day of August 2010.) <br /> <br /> <br /> PRESIDENT<br /> <br /> <br /> <br /> MEMBER MEMBER <br /> <br /> <br /> gm. <br /> <br />