Date of Filing:13.08.2008<br /> Date of Order:13.01.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 13TH DAY OF JANUARY 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> COMPLAINT NO: 1775 OF 2008<br /> <br /> C.L. Shobha<br /> W/o. C. Radhashekhar<br /> R/at No. 17/4, “C” Block<br /> 8th Cross, Magadi Road<br /> Bangalore 560 023 Complainant<br /> <br /> V/S<br /> The Proprietor<br /> M/s. Nandi Toyota<br /> 46/3A, Kudlu Gate<br /> 7th Mile, Hosur Road<br /> Bangalore 560 068 Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act 1986. <br /> The facts of the case are that the complainant has purchased two Innova vehicles from the opposite party in the month of February 2008. The opposite party has given cash discount and excise duty discount. The opposite party offered an additional discount of Rs. 50,000/- for a 2007 Model Innova apart from Rs. 39,368/- towards cash discount and Rs. 60,000/- towards excise duty discount. Complainant agreed for that and made advance of Rs. 80,001/- to the opposite party by way of cash receipt dated 08.05.2008. Complainant was ready and willing to take delivery of the above said vehicle since the date of booking. She kept on calling opposite party for delivery of the vehicle. The opposite party did not receive the balance amount and vehicle is not delivered as agreed. Complainant issued legal notice on 14.07.2008 demanding to receive balance amount for which opposite party given vague and untenable reply. Hence, the complainant prayed for direction to opposite party to receive the balance consideration amount and to deliver the Innova Vehicle forthwith to the complainant.<br /> 2. Notice was issued to opposite party through RPAD. Opposite party put in appearance through advocate and defence version filed stating that the complainant has paid an advance of Rs. 80,000/- with a specific condition and clear instruction to pay the balance amount of Rs. 7,73,671/- within a Week’s time in terms of Booking order dated 07.05.2008. Complainant has failed to pay the balance amount as agreed and requested some more time to pay the balance amount. Invoice dated 31.05.2008 was raised in the name of the complainant and in view of the non-payment, it was cancelled on 7.06.2008 on request of the complainant in view of her inability to pay the balance amount. Husband of the complainant requested the opposite party to sell the said vehicle to the 3rd party being not able to arrange funds. Thus, the opposite party has sold the vehicle on 23.06.2008 to another client. As per the policy of Company vehicle can be sold and delivered on first come first serve basis only on payment of entire amount. The complainant has failed to make payment till 20.06.2008 i.e. 45 days from the date of booking. The opposite party having no alternate has to sell the vehicle to another party. Hence, the opposite party prayed to dismiss the complaint. <br /> 3. Arguments are heard.<br /> 4. I have perused the complaint, defence version and documents.<br /> 5. It is admitted case that the complainant has paid Rs. 80,001/- to the opposite party on 08.05.2008 as booking amount for Innova vehicle. In the Customer Receipt Annexure 1 produced by the complainant it is stated that subject to encashment of cheque, Price prevailing on the date of Invoice will apply. The opposite party raised Tax Invoice on 31.05.2008. It is the case of the opposite party that since the complainant failed to make payment, Invoice was cancelled. As per the case of the complainant booking was made on 08.05.2008. The complainant had to pay the balance amount within week’s time in terms of booking order. It is the case of the complainant that she was ready and willing to purchase and take delivery of the vehicle, since the date of booking she always kept on calling and meeting the opposite party to take delivery of the vehicle and she visited the showroom of opposite party several times. Inspite of all these the opposite party did not receive the balance amount and deliver the vehicle. Except bald and vague allegations made in the complaint there is absolutely no proof or no documentary evidence in support of this to show that the complainant was ready with the balance amount for taking delivery of the vehicle. The complainant has not produced bank statement or any other legal and acceptable documentary evidence like Cheque / D.D. to show to the court that she was capable to pay the balance amount to the opposite party for getting the delivery of the vehicle. The complainant has not produced any records or documents to show that she had made several calls and she also visited the showroom of opposite party on several occasions and requested the opposite party to receive the amount. The vehicle was booked on 08.05.2008. For the first time the complainant got issued legal notice through her advocate on 14.07.2008 and expressed her willingness to purchase vehicle in the legal notice. There is gap of more than 65 days in sending legal notice to the opposite party. The complainant has not produced any documents or records to show that she was really ready and willing to pay the balance amount and purchase the vehicle as per the booking order. In the absence of documentary proof that complainant was having sufficient amount for making payment it is very difficult to believe or accept self served statement of the complainant. So under these circumstances it is not just, fair, proper and reasonable to direct the opposite party to receive the balance amount and deliver the vehicle in question to the complainant. The only remedy or relief that can be granted to the complainant is refund of the amount paid by her with interest. In the result I proceed to pass the following:<br /> ORDER<br /> 6. The Complaint is allowed. The opposite party is directed to pay Rs. 80,001/- to the complainant immediately with 12% interest p.a. from 08.05.2008 till payment / realization. <br /> 7. The Complainant is also entitled for Rs. 2,000/- towards costs of the present proceedings from the opposite party.<br /> 8. The opposite party is directed to pay the amount by way of D.D./ cheque to the complainant directly with intimation to this forum.<br /> 9. Send the copy of this Order to both the parties free of costs immediately. <br /> 10. Pronounced in the Open Forum on this 13TH DAY OF JANUARY 2009. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br />