DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> Civil Station, Palakkad – 678 001, Kerala<br /> <br /> Dated this the 30th day of April, 2007<br /> <br /> Present: Prof.O.Unnikrishnan, Member <br /> Mrs.K.P.Suma, Member<br /> <br /> C.C.No.103/2006<br /> <br /> L.Guruvayoor Kutty,<br /> S/o.Late Lakshmana Moothan,<br /> House No.3/197, Sree Valsam,<br /> Behind Kasaba Police Station,<br /> Kuridikkadu,<br /> Pudussery, Palakkad. - Complainant <br /> <br /> Vs <br /> <br /> The Proprietor,<br /> Sakthi Automobiles,<br /> (A Division of ABT Industries Ltd),<br /> Sajina Super Complex,<br /> BPL Koottupatha,<br /> Chandranagar Post, Palakkad – 7 - Opposite party <br /> <br /> <br /> O R D E R<br /> <br /> By Mrs.K.P.Suma, Member<br /> <br /> The case of the complainant is as follows:<br /> <br /> The complainant placed an order for purchasing a 2006 model 407 SFC Tata goods vehicle and the opposite party has agreed and promised to supply the said vehicle for total price of Rs.4,72,000/- after adjusting necessary discounts etc. Complainant has paid an advance of Rs.2 lakhs in cash for the opposite party for which opposite party issued a receipt and for the balance amount complainant availed a loan from Catholic Syrian Bank Ltd., Kanjikode <br /> : 2 :<br /> Branch for Rs.2,72,000/- and the said amount was paid by the Bank through Demand Draft to the opposite party on behalf of the complainant. At the time when the complainant requested for supply of vehicle the opposite party agreed that they will deliver 2006 model Tata 407 vehicle only as per the requirement of the complainant. The complainant took delivery of the vehicle from the opposite party on an impression it is a 2006 model vehicle as required on 15.5.2006. When the vehicle was registered as No.KL9 T 7617 as per the R.C book handed over to the complainant by the R.T.O. on 25.6.2006 the complainant came to know that the vehicle was 2005 model. Then the complainant came to know that the opposite party as a matter of fact from the very beginning of the transaction has cheated the complainant by delivering the vehicle of 2005 model contrary to the terms and conditions, request and order of the complainant causing heavy loss to the complainant and wrongful gain to the opposite party. The aforesaid act of the opposite party amounts to clear deficiency of service and unfair trade practice. When the complainant realised that vehicle is not of 2006 model as per his requirements he issued a lawyer notice dtd. 30.5.2006 to the opposite party calling upon them to replace the 2005 model vehicle with a new 2006 model vehicle within one week from the date of receipt of the notice. Opposite party received the notice but has neither complied with requests nor redressed his grievance and has not sent any reply thereto. Hence the complaint. The opposite party has collected the value of a new model vehicle but delivered old model vehicle which is not having the said price. The complainant will not get the resale value for the said vehicle on par with 2006 model vehicle. The model of the vehicle holds very significant in all respect. The complainant also states that the proforma invoice regarding the vehicle given to complainant by the opposite party at the time of delivery of the vehicle in which year of the model of the vehicle is not shown purposefully by the opposite party which clearly <br /> : 3 :<br /> indicates their intention to cheat the complainant. The complainant has purchased the vehicle for eaking out of his livelihood and to pull on his family. The complainant had prayed for an order to direct the opposite party to replace the 2005 model with a new brand 2006 model with all its accessories and if the opposite party is reluctant to replace as demanded they may be directed to refund the amount already paid with interest @ 18 % p.a till realisation and also to pay compensation of Rs.25,000/- for the mental agony and physical suffering suffered by the complainant.<br /> <br /> Opposite party in their version has stated that the complaint is not maintainable since the complainant has purchased and is using the vehicle for commercial purpose. He is not depending for the income derived from this vehicle. Complainant cannot be treated as a person who is earning his livelihood from this vehicle. Hence complainant is not falling within the definition of consumer as defined provisions of Consumer Protection Act. For that ground alone the complaint is to be dismissed. The allegations that the complainant placed an order for purchasing a 2006 model 407 SFC Tata goods vehicle for Rs.4,72,000/- is incorrect. They have admitted that the complainant has paid an advance of Rs.2 lakhs in cash and a sum of Rs.2,72,000/- was paid by the complainant through Demand Draft. But the allegation that opposite party promised and made believe that they will deliver 2006 model vehicle, and complainant took delivery of the vehicle on the said impression are all incorrect. The contention that vehicle is a 2005 model was known to the complainant only when it was produced for registration is also incorrect. The petitioner has placed an order for a Tata SFC vehicle and when he came to select the same vehicle manufactured in the 2005 were also available with the opposite party. Petitioner was attracted by the same since the cost of 2005 model was lesser by Rs.30,000/- than the prevailing model. <br /> : 4 :<br /> Thus, a sum of Rs.4,72,048/- was collected from the complainant. though the cost of 2006 model was Rs.5,02,048/-, then a sale certificate was issued by the opposite party which clearly indicated the year of manufacture December 2005. Complainant did not raise any objection but instead took the vehicle for registration from where, he on his own executed form No.20 under Motor Vehicle Rules has unmistakably mentioned year of manufacture as 2005. Form 20 executed by the complainant clearly show that he is fully aware of the year of manufacture. The late invention by the complainant regarding deficiency of service is only an attempt to claim same amount without any bona fide. There is no deficiency of service or unfair trade practice on the side of opposite party. Hence the complaint is to be dismissed.<br /> <br /> The complainant filed proof affidavit along with documents which has marked as Ext.A1 to A7 (series).<br /> The point that arises for consideration <br /> 1.Whether the complainant is a consumer as defined in the C.P.Act?<br /> 2.Whether there is any deficiency of service on the part of opposite party? and <br /> 3.Reliefs and costs?<br /> Point No.1: The opposite party had raised the contention that the complaint is not maintainable since the vehicle is used for commercial purpose. The complainant has other sources of income. He is not depending for the income deriving out of his vehicle. It is admitted that complainant is actually doing scrap business whereas complainant in his complaint as well as in the additional affidavit has stated that he is using the vehicle by himself for transporting the old scrap materials from one place to another for sale. He himself is driving the vehicle and has not engaged any driver as alleged by the opposite party. And he is solely depending the income derived from the same <br /> : 5 :<br /> for his livelihood. He has no other sources of income or earning. He is having the business of purchasing and selling of old scrap materials. In order to prove the said facts the complainant has produced the copies of delivery notes 6 in Nos. filed by him before the Sales Tax Authorities which is marked as Ext.A6 series. The said documents will go to show that the complainant is using his vehicle for his business purpose and not for commercial purpose and he himself is driving the vehicle and has not engaged any other driver for the same. Moreover, the opposite party has not produced any contra evidence to prove that the complainant is having another source of income for his livelihood. The contention of the opposite party that the complainant is not a consumer will not hold good for the above said reasons. The complainant herein will come under the definition of consumer.<br /> <br /> Point No.2: opposite party has put forward a contention that the complainant placed an order for a Tata SFC vehicle and when he came to select the same vehicle manufactured in the year 2005 were also available with them and the complainant has attracted by the same since the costs of 2005 model was lesser by Rs.30,000/- than the prevailing model. It is evident from Ext.A1 invoice that opposite party has quoted the price of the vehicle as Rs.5,02,048/-. The opposite party had also admitted in their version that the price of 2006 model is Rs.5,02,048/-. From this he came to conclusion that the price mentioned in the proforma invoice was pertaining to 2006 model. There is no evidence on record to prove the contention of the opposite party that the complainant was attracted by 2005 model and opted for the same. The opposite party has also admitted that they have received a sum of Rs.2 lakhs towards advance and a Dismissed for default of Rs.2,72,000/- towards the price <br /> of the vehicle. The complainant has also produced a letter from the opposite party which was marked Ext.A7 series which shows that they have extended a <br /> : 6 :<br /> cash discount of Rs.30,000/- to the complainant. The said documents were not challenged or objected by the opposite party. So it is clear that the amount paid by the complainant along with the discount extended to the complainant will come to the price Rs.5,02,048/- being the price of the 2006 model as admitted by the opposite party in their version. Hence it is very clear that the opposite party had adopted a deceptive practice by supplying 2005 model for the price of Rs.5,02,048/- which was the price of 2006 model. The aforesaid act of opposite party amounts to deficiency of service. The point answered accordingly.<br /> <br /> Point No.3: In the light of the above findings in Point No.2, the complaint is allowed and the complainant is eligible for the reliefs and costs as mentioned below.<br /> <br /> We direct the opposite party to replace 2005 model with 2006 model or to refund Rs.30,000/- (Rupees Thirty thousand only) as the discount amount extended to the vehicle along with cost of Rs.1,000/- within a period of one month from the date of communication of this order failing which the complainant is eligible to the interest @ 12% p.a for the whole amount.<br /> <br /> Complaint allowed as above with costs.<br /> <br /> Pronounced in the open court on this the 30th day of April, 2007 <br /> <br /> Member (Sd)<br /> <br /> Member (Sd)<br /> <br /> : 7 :<br /> Appendix<br /> Exhibits marked on the side of complainant <br /> Ext.A1 – Proforma invoice dtd.26.4.06<br /> Ext.A2 – Receipt for payment of Rs.2 lakhs issued by opposite party dtd.28.4.06<br /> Ext.A3 – Memo issued by Bank for payment of Dismissed for default for Rs.2,72,000/-<br /> Ext.A4 – R.C. book (Certified copy)<br /> Ext.A5 (Series) – Copy of lawyer notice, Postal receipt and acknowledgement<br /> Ext.A6 (Series) 6 Nos. - Copy of delivery notes produced before Sales Tax <br /> Ext.A7 (Series) 2 Nos. - Copy of the letters issued by opposite party to Bank (Certified copy issued from Bank)