IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

            DATED THIS THE 27^TH  DAY OF JANUARY 2018

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

          Sri. M.Praveen Kumar,Bsc, LLB ,Member

       CC.No.86/2016

Prakash.K.B                                                         :                  Complainant

Dasarchana, PLNRA -117

Thirumullavaram P.O

Kollam

[By Adv.Kalkulangara .J.Suresh Kumar]

V/S

1.         The Proprietor                         :                  Opposite parties

Nippon Toyotta

Nippon Motor Corporation (P) Ltd

Parakkulam, Kottiyam P.O

N.H.Road, Kollam – 696671

[By Adv.B.Dilip, Kollam]

2.       Toyotta Motor Company

          No.24,10^th Floor, Canberra Block

          Vittal Myllya Road, Bangalore - 560001

           [ By Adv.G.Vijayakumar &  Adv. Boris Paul, Kollam ]

ORDER

SRI. M. PRAVEEN KUMAR, MEMBER

            Complainant’s case is that he had booked an Etios GD (White) Motor  car with the 1^st opposite party on 17/03/2014 by paying Rs.50,000/- (Rupees Fifty Thousand only) as advance amount for booking a car and at that time the sales officer of the 1^st opposite party has issued a receipt for the above amount and order booking form. At the time of booking the vehicle the 1^st opposite party and  his representative had assured the complainant that the vehicle will be delivered to him

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on or before 31^st of March 2014.  The complainant also fears that his priority was over looked and the vehicle was delivered to some other customers. Due to the delay in delivery of the vehicle against the assurances by the 1^st opposite party the complainant has suffered severe mental agony. The 1^st opposite party has also failed to comply the  offers made by them.

          Complainant had paid the entire balance cost of the vehicle on 25/03/2014 from Quilon Co-operative Urban Bank, Kollam through IDBI Bank. But 1^st opposite party delivered the vehicle only on 26/04/2014. The complainant was denied the March  offer of insurance discount of Rs.15,000/-. Anticipating this the complainant had sent a lawyers notice on 16/04/2014. But even after acceptance of the above notice the 1^st opposite party denied the offers made to the complainant . Later the complainant received a vague reply notice without even mentioning the name  of the proprietor , denying the malpractice of the 1^st opposite party and that they had credited an amount of Rs.3506/- in the account of the complainant.  But the said Rs.3506 is actually the price of the extra fitting which the complainant had returned to 1^st opposite party. The act of the 1^st opposite party giving assurance of the prompt delivery of the vehicle with a discount to the tune of Rs.15,000/- as insurance offer and that no additional expenses will be incurred at the time of delivery of the vehicle were all in futile and they had not keep their word and defaulted in complying the above assurance which amounts to the deficiency of service and unfair trade practice from the part of 1^st opposite party. Due to this the complainant had been subjected to monetary loss, grant hardship, mental agony and pain and sufferings. Even though the harassment  caused from the 1^st opposite party and his representatives could not be computed in terms of money for an amicable settlement, the complainant is amenable on payment of an amount of  Rs.25,000/- as compensation for the deficiency of service & unfair  trade practices

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from the 1^st opposite party. To allow the complainant an amounts of Rs.15,000/- they offered as insurance discount and thereafter denied, to allow the interest for the total amount remitted for the delayed period of delivery of the car, to pass an order directing the opposite parties to pay compensation to the complainant to the tune of Rs.25,000/- for the monetary loss, mental agony  and pain and sufferings of the complainant at the hands of the opposite parties, allowing the cost o the complaint such other reliefs the Hon’ble Forum  may deem fir and proper in the nature and circumstances of the case.

          1^st opposite party filed version stating that 1^st opposite party and its representative had never assured the delivery of the vehicle to the complainant on or before 31/03/2014 which the complainant booked on 17/03/2014 of Rs.50,000/- as a dealer of Toyato , vehicle the 1^st opposite party never caused deliberate delay in diverting the vehicle. Toyota Kirloskar Motor (TKM), the Indian subsidiary of Japanese auto major Toyota, has declared a  lockout at its manufacturing  facility in Bangalore with effect from March 16 the of 2014. The  lock out and stick of the employees were continued  for 36 years and that caused scarcity in supply of the Toyota Vehicles. The lock out and strike of the employees were reported in almost all the news dailies and medias.  The complainant had effected fully payment in the month of March itself only because of the reason that he will get subsidized loan from his Bank, Urban Bank, Kollam. The complainant was not denied any offer. It is true that the 1^st opposite party received a notice dated 16/04/2014 and it was replied also. It is also correct that the 1^st opposite party had credited an amount of Rs.3506/- in the account of the complainant. That amount was not the price of  the extra times. 1^st opposite party has never committed any unfair trade practice or deficiency of service to the complainant.

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          2^nd opposite party filed version contending that the relationship between answering opposite party and opposite party No.1 is on principal –to-principal basis . Dealers purchase vehicles and parts from opposite party No.2 on payment of full price and in turn, they sell the same to their end customers. Issues relating to booking, delivery, cancellation, servicing, customer relations, etc are independently handled by dealers. As an obvious corollary thereto, the answering opposite party is not responsible for the acts and omissions of opposite party No.1.

          Opposite party No.1 promised the complainant delivery of the vehicle in the month of March 2014 is false and baseless and the complainant is put to strict proof of the same. It is submitted that in the month of March 2014, there was labour unrest in the manufacturing plant of opposite party No.2 due to which manufacturing of vehicles were affected. The opposite party No.1 at the time of booking the vehicle had time and again intimated the complainant about the non availability of  the   vehicle , but the complainant had insisted to book the vehicle and make payments to avail benefits from his bank.  The discount of Rs.15,000/- which was promised to the complainant at the time of booking was also provided to the complainant and the vehicle was delivered to the complainant on 26^th April 2014 by the opposite party No.1. Therefore the contention of the complainant is false and baseless and the complainant is put to strict proof of the same.  After delivery of the vehicle, the complainant has come up with this complainant after the lapse of more than two years alleging deficiency of service which cannot be sustained under law, there is no deficiency of service on part of the opposite parties and this complaint is filed by the complainant with an ulterior motive to make unjust gain, which is liable to be dismissed with cost.

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Points for consideration.

1. Whether there is any  deficiency in service and unfair trade practice on the part of the opposite party?
2. Reliefs and costs?

In order to prove the case of complainant, complainant filed a proof affidavit along with 4 documents in lieu of his chief examination . On the basis of the proof affidavit he was examined as PW1 and documents were marked as 1. Exts P1 , 2.Ext.P2, 3.Ext.P3, 4.Ext.P4. 1^st opposite party represented by Sabu Devarajan, Sales Manager , Nippon Toyota filed a proof affidavit along with 3 documents, in lieu  of his chief examination he was cross examined as DW1 and documents were marked  as  D1 to D3.

On 11/07/2017 opposite parties evidence closed and both parties allowed  time for filing argument notes . But both parties not filed any argument notes though  sufficient time given to both side for the same.

Point No.1

Admitted case of parties that complainant had booked an Etios GD (White) Motor car with 1^st opposite party on 17/03/2017 by paying Rs.50,000/- and said vehicle delivered on 26/04/2014.

One crucial question arise for consideration is whether there is any offer of Rs.15000/- as insurance discount and which is given to the complainant or not.

Complainant side claimed that he paid Rs.7 Lakhs as balance amount to 1^st opposite party on 25/03/2014.  But the Ext.P3 document shows that an amount of Rs.7 Lakks received from Quilon Co-Operative Bank Ltd. On 31/03/2014 complainant alleged that 1^st opposite party offered insurance  discount of Rs.15,000/- and vehicle delivered after one month counsel for the 1^st opposite party

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vehemently argued that they never given any promise that the delivery of the vehicle before 31/03/2014. 1^st opposite party produced commitment check list and marked as Ext.D3 which clearly disclose that they given 15,000/- as  “March Offer”  insurance discount . Hence the complainant’s claim of  Rs.15,000/- as insurance discount is unjustifiable and the 1^st opposite party is not liable to pay the same.

Learned counsel  for the complainant brought our attention that complainant paid Rs.50,000/- as advance on 17/03/2014 and paid the balance amount of          Rs. Rs.7,00,000/- on 31/03/2014. Opposite party No.1 delivered the vehicle only after 26 days, which amounts deficiency in service and unfair trade practice on the part of opposite party No.1. The learned counsel for 1^st opposite party  submitted that the delay of delivery of vehicle is due to the internal problem at the  company. Any way on perusal of the records we are satisfied that there is 26 days delay in delivery of the vehicle to the complainant. Hence the complainant’s claim of interest for the total amount remitted for the delayed period of delivery of the car is justifiable. In view of the facts and circumstances discussed above it is clear that there is deficiency in service and unfair trade practice on the part of opposite parties and complainant is entitle to get relief.  No.2 . Point answered accordingly.

Point.No.2

In the result, complaint is allowed in part.1^st opposite party is directed to pay Rs.4000/- to the complainant (interest for the 7.5 Lakh rupees @ 7.5% of 26 days). Opposite parties are further directed to pay Rs.5000/- as compensation and Rs.3000/- as cost to the proceedings jointly and severally. The order must be complied with within one month from   the date of   receipt of this order . Non compliance this order the amount of Rs.9000/- will carry  12% interest till realization. Relief No.1 stands rejected.

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Dated this the 27^th day of January  2018.

                                                                                    E.M .MUHAMMED IBRAHIM:Sd/-                                                                                                                                                                                                                                                                                                                                                                                                M.PRAVEENKUMAR:Sd/-

                                                                                    Forwarded/By Order

                                                                                   Senior Superintendent

I N D E X

PW.1: - Prakash.K.B

Ext.P.1:- Office copy of advocate notice dated 16/4/14

Ext.P.2:- Reply notice dated 21/5/14

Ext.P.3:- Vehicle Receipt Voucher dated 31/3/14

Ext.P.4:- Retail invoice

DW.1:-  Sabu Devarajan

Ext.D.1:- Authorization letter

Ext.D.2:- Extract taken from New India Express daily

Ext.D.3:- Commitment  check list