IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 28th day of September, 2020
Filed on 22. 06. 2020
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. C.K.Lekhamma. BA. LLB(Member)
In
CC/No. 139/2020
Between
Complainant:- Opposite parties:-
Smt. Smitha.M.G The Managing Director
Karthika Ramanattu Motor Corp
Kuthirapanthi Builing No.VII/581C
Thiruvambady.P.O KSEB Section Office
Alappuzha-688002 Pattanakkadu,Cherthala-688531
(Party in Person) (Adv. V.Pramod.)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the consumer Protection Act. 1986.
Complainant’s case in brief is as follows:-
On 13/3/2020 complainant transferred an amount of Rs.10,000/- by online transfer to the account of the opposite party as requested by their executive for purchasing a Bullet for her son Akshay.V.Anil. The executive informed that if the balance is paid they can deliver the vehicle within two days. Accordingly she pledged gold ornaments for Rs.1,10,000/- at Bank of Baroda and collected balance amount from her friends. On 31/1/2020 she sent a cheque for Rs. 1,93,863/- to the opposite party by courier. She received the receipt dtd. 3/2/2020. In spite of receipt of whole amount vehicle was not delivered and they delayed delivery. After two months she requested to refund the amount and forwarded documents as required by them on 21/3/2020. Since she was advised a surgery for which expected expenses was more than one lakh they were requested to speed up the refund. Till date there was no positive response from them. Though the date of surgery was fixed for 1st May,2020 due to financial difficulties she could not undergo surgery. She had sustained mental and physical agony which occurred due to the deficiency in service of the opposite party. Hence the complaint is filed to realize an amount of Rs.2,03,863/- along with interest at the rate of 18%, Rs. 20,000/- as cost and Rs.1,00,000/- as compensation.
2. Opposite party filed version mainly contenting as follows:-
The complaint is filed without any bonafides and suppressing material facts. There is no negligence or deficiency in service on the side of the opposite party and the complainant has no cause of action. The entire dealing and all the transactions regarding the booking and delivery of the vehicle and all connected matters including cancellation and refund are subject to the terms and conditions stipulated in the order booking form.
The contention that there was an assurance that if the balance amount of Rs. 1,93,000/- is paid the vehicle will be released within two days is false. Before booking of the vehicle on 13/1/2020 it was informed that the delivery period is 60 days. The vehicle booked was Royal Enfield Stealth Black classic 350 which at the time of booking was of the classification BSIV. The sale of which was there after prohibited by the Green Tribunal and Central Government authorities and hence the upgradation of the vehicle from BSIV to BSVI became mandatory for which time was required. Complainant issued cheque through courier and it was encashed on 6/2/2020. This opposite party is not aware regarding gold loan.
From 2017 onwards opposite party is functioning as dealer of Royal Enfield Bullets without any complaint. The factory of Royal Enfield is situated in Chennai. Due to the Covid-19 Pandemic there was a complete lockdown from 20/3/2020 in Kerala and from 24/3/2020 in all over India. On 21/3/2020 complainant issued an email cancelling the order. On 23/3/2020 morning complainant was informed that the vehicle is likely to come on 1st April 2020. She was informed that the vehicle booked will take a further period of 60 days. Without paying attention to it complainant insisted on cancellation. Hence on 24/3/2020 opposite party informed her that she can come to the accounts department of the showroom and receive the cheque. But due to lockdown the office was closed and it was reopened only on 15/6/2020.
Opposite party is no way liable for paying interest or any compensation because there was no delay for refund of the amount. Opposite party is prepared to pay the refund amount without accruing any interest. Opposite party is not liable to compensate the complainant. Hence complaint may be dismissed with cost.
3. On the above pleadings following points arise for consideration:-
1. Whether there was deficiency of service on the part of the
opposite party?
2. Whether the complainant is entitled to refund of advance
money along with interest as prayed for?
3. Whether the complainant is entitled to realize compensation
from the opposite party as prayed for?
4. Reliefs and costs?
4. Evidence in this case consists of the oral evidence of PW1, Ext.A1 to A4 from the side of the complainant and the oral evidence of RW1 and Ext.B1 from the side of opposite party.
5. Point no.1 to 3:-
PW1 is the complainant in this case. She filed an affidavit in tune with the complaint and marked Ext.A1 to A4. RW1 is the Manager of the opposite party. He filed an affidavit in tune with version and marked Ext.B1.
As per Ext.A4 Order booking form on 13/1/2020 PW1 booked a classic 350 EFI Stealth Black Motor cycle for her son Akshay V.Anil. As per Ext.A1 bank receipt she transferred an amount of Rs. 10,000/- to the account of the opposite party. As per Ext.A4 it was assured that the waiting period for the model is 15 days approximately. Thereafter on 31/1/2020 she issued a cheque drawn from her account maintained with Karnatka bank Ltd for Rs. 1,93,863/- The receipt of the cheque was acknowledged by the opposite party as per Ext.A2 dtd.3/2/2020. Now the case of the complainant is that though she transferred the entire amount and that there was an assurance to deliver the vehicle within 15 days, in spite of repeated request it was not done. Due to the urgency she procured money by pledging gold ornaments at Bank of Baroda and by collecting short term loans. To prove the pledging of the gold she has produced Ext.A3 receipt showing that on 29/1/2020 she availed a loan of Rs.1,10,000/-. Since the vehicle was not delivered as promised she cancelled her order and demanded refund of the money. She had to undergo surgery and hence she was in needed of money urgently. In spite of repeated request amount was not repaid and hence she has filed the complaint for realizing the amount of Rs.2,03,863/- along with interest, cost of Rs.20,000/- and Rs. 1,00,000/- for mental agony. To prove the case complainant got examined as PW1 and marked Ext.A1 to A4. The claim was resisted by the opposite party by filing a version mainly contenting that there was an upgradation of the vehicle from BS.IV to BS.VI and there was delay in production. Further due to covid -19 there was a lockdown in Chennai where the plant of Royal Enfield Company is situated. The vehicle stealth black is having high demand and it was not readily available. Opposite party had to close their showroom on 24/3/2020 and they could re-open only on 15/6/2020. They are ready to repay the entire amount. But as per the conditions in the order form complainant is not entitled for interest. The manager of the opposite party got examined as RW1 and Ext.B1 was marked.
The fact that PW1 booked a vehicle with the opposite party on 13/1/2020 and paid an amount of Rs. 10,000/- as advance is not in dispute. In Ext.A4 order booking form the period of delivery is shown as approximately 15 days. It is also an admitted fact that the entire balance amount of Rs. 1,93,863/- was paid by PW1 as per a cheque. Ext.A2 is a receipt issued by opposite party and it is dated 3/2/2020. In Ext.A4 order form the approximate period is 15 days and the vehicle was booked on 13/1/2020. On 31/1/2020 the entire balance amount was forwarded to the opposite party by cheque and it was received by them as per Ext.A2 receipt. So it can be seen that PW1 had paid the entire amount demanded by the opposite party and she was waiting for the vehicle. However in spite of repeated request the vehicle was not delivered and hence she had cancelled the order and demanded back the amount paid by her. The case advanced by RW1 is that due to lockdown there was some delay in Chennai plant of M/s Roayal Enfield and the production was stopped. Further there was an upgradation from BS.IV to BS.VI and hence the delay occurred. It was also pointed out that due to covid -19 also there was some delay and the showroom of the opposite party was closed for quite long time and it was opened only on 15/6/2020. Ext.B1 is a copy of e-mail sent on 3/8/2020 to the complainant informing their readiness to return the advance amount. Since the vehicle was not delivered and so that the money was not returned she filed the complaint before this commission on 22/6/2020. Opposite party entered appearance on 6/7/2020. Ext.B1 informing the willingness to return the advance amount is dated 3/8/2020. So it is crystal clear that Ext.B1 was sent after appearance before this commission on getting notice.
The only question to be decided is whether PW1 is entitled to get interest on the amount. As stated earlier by Ext.B1 opposite party had agreed their willingness to return the amount. PW1vehimently contented that she is entitled to get interest. In the complaint she has stated that she had to undergo a surgery for which amount was required. However though surgery had fixed for 1st May 2020 at M/s Sahrudaya Hospital, Alappuzha due to stringent financial condition she could not undergo the surgery. Of course such a contention is not incorporated in the chief affidavit. However it is to be noted that PW1 is conducting her case in person. Secondly it was contented by PW1 that she had arranged money by pledging gold ornaments and collecting amount from her friends. To prove the pledging of gold ornaments she has produced Ext.A3 receipt issued by Bank of Baroda. By Ext.A3 dtd. 29/1/2020 PW1 took a loan of Rs.1,10,000/-. It is to be noted that PW1 gave the balance amount of Rs. 1,93,863/- on 31/1/2020 and so it is evident that she used money obtained by her by pledging gold ornaments to pay the balance amount. She has to pay interest for the pledging of gold ornaments. The reason for the dispute arose since opposite party did not deliver the vehicle within 15 days as promised by them in Ext.A4 Order booking form.
The learned counsel appearing for the opposite party contented that due to covid-19 pandemic and the upgradation of BS.IV to BS. VI the delay occurred. We respectfully disagree with him for such a contention. It is to be remembered that as per Ext.A4 the vehicle was booked on 13/1/2020. It is clearly mentioned that the approximate waiting period is 15 days. Apprehending delivery within 15 days PW1 issued cheque for the balance amount on 31/1/2020. It was accepted by opposite party as per Ext.A2 receipt on 3/2/2020. Covid-19 pandemic occurred during the middle of March and the lockdown in Kerala took place on 23/3/2020. Here it is to be noted that the entire balance amount was paid on 3/2/2020 as per Ext.A2 receipt issued by opposite party. Further opposite party being the authorized dealer of M/s Royal Enfield will have knowledge regarding the upgradation of the vehicle. By taking an order that they can deliver the vehicle within 15 days and accepting the money now they cannot turn round and say that it was due to upgradation and covid-19. In other words opposite party cannot take shelter under both the grounds narrated in the version and the evidence of RW1.
As discussed earlier PW1 had to arrange money by pledging gold ornaments for which she has to pay interest. The entire difficulty occurred due to non delivery of the vehicle as promised. In the said circumstances we have no hesitation to hold that PW1 is entitled to get interest for the amount whatever be the terms and conditions in the order booking form of the opposite party. Without delivering the vehicle as promised which is also incorporated in Ext.A4 order booking form now they cannot take shelter under the terms and conditions that interest is not payable for the amount. It is to be remembered that PW1 had paid the entire amount and not advance amount alone. In this context I am also entitled by the decision of the Hon’ble Supreme court reported in AIR 2009 S.C 3098 [Thazhathepurayil Sarabi Vs. Union of Inida.] It was held payment of interest is basically compensation for being denied the use of money during the period which the same could have been made available to the claimants”. In said circumstances PW1 is entitled for interest.
PW1 is claiming an amount of Rs.1,00,000/- as compensation for mental agony. As stated earlier in the complaint she has stated that she had to undergo surgery and the date was fixed as 1st of May 2020. She could not undergo the surgery since she could not arrange money. So definitely there will be mental agony and physical difficulties. The entire thing happened due to deficiency of service on the part of the opposite party. Considering the entire circumstance in this case we are of the opinion that complainant is entitled for an amount of Rs.10,000/-(Ten thousand only) as compensation for the mental agony and physical difficulties. These points are found accordingly.
6. Point No.4
In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs.2,03,863/- (Two lakh three thousand eight hundred and sixty three only) along with interest at the rate of 10% from 3/2/2020(Ext.A2) till realization from the opposite party.
B) Complainant is allowed to realize an amount of Rs.10,000/-(Ten thousand only) as compensation from the opposite party.
C) Complainant is allowed to realize an amount of Rs.2000/- (Two thousand only) as cost from the opposite party.
Order shall be complied within one month from date of the receipt of a copy of this order.
Dictated to the Confidential Assistant, transcribed by him correct by me and pronounced in open Commission on this the 28th day of September, 2020.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - Smitha.M.G(complainant)
Ext.A1 - Copy of Bank Receipts Sales Ho Voucher
Ext.A2 - Copy of Bank Receipts Sales Ho Voucher
Ext.A3 - Gold Loan card from Bank of Baroda
Ext.A4 - Copy of Order Booking Form
Evidence of the opposite parties:-
RW1 - Sanoop(Witness)
Ext.B1 - Copy of E-mail.
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
