IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 26th day of November, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No. 02/2011 (Filed on 01.01.2011)
Between:
1. Fr. John Areeckal,
Manager,
Holy Angels English Medium-
Higher Secondary School,
Adoor.
2. The Principal,
Holy Angels English Medium-
Higher Secondary School,
Adoor. … Complainants.
(By Adv. Sanal George).
And:
1. T.V. Sundram Iyengar & Sons Ltd.,
Kanjikuzhy, Kottayam represented
by its Managing Director.
2. The Sales Manager,
T.V. Sundram Iyengar & Sons Ltd.,
Kanjikuzhy, Kottayam.
3. The Branch Manager,
T.V. Sundram Iyengar & Sons Ltd.,
Pathanamthitta Branch. … Opposite parties.
(By Adv. Sony Sebastian)
O R D E R
Sri. Jacob Stephen (President):
The complainants have filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainants case is that the 1st complainant is the Manager of Holy Angel’s English Medium Higher Secondary School, Adoor and the 2nd complainant is the Principal of the said school and the 1st opposite party is the Managing Director of T.V. Sundaram Iyengar & Sons Ltd. and the 2nd opposite party is the Sales Manager of Kottayam Branch of the 1st opposite party and the 3rd opposite party is the Pathanamthitta Branch Manager of the 1st opposite party.
3. The brief facts of the complaint is as follows: The complainants had purchased 2 Ashok Leyland School Buses from the opposite parties for the transportation of the students studying at their school. The said purchase was made as per the quotation dated 17.05.2010 of the opposite parties by paying an advance of ` 10,000 each for one bus and by paying the full amount on 28.05.2010. At the time of making the booking the 1st complainant was made to believe by the opposite parties that the buses will be delivered within 15 days from the date of making full payment. The complainants had given the full payment for the purchase of the said buses on 28.05.2010. As per the terms and conditions, the opposite parties have obliged to deliver the buses on or before 12.06.2010. Based on the assurance of the opposite parties, the buses will be delivered on or before 12.06.2010, complainants sold their two old buses which was using for the transportation of students. The non-delivery of the buses on the assured date compelled the complainants to hire other buses for the transportation of the students. For which the complainants had spent an amount of ` 2,40,500. Along with said monetary loss, complainants were also caused to undergo severe mental agony and other losses. The complainants were also lost their reputation. The first bus was delivered on 26.06.2010 and the 2nd bus was delivered on 15.07.2010. Apart from the delay in delivering the buses it is also noted that the steppiny tyre provided in one of the buses is also found defective. All the above said acts of the opposite parties is deficiency in service which caused financial loss and mental agony to the complainant to the tune of ` 4,40,500 and the opposite parties are liable to the complainant for the same. A lawyer notice was also sent on 15.09.2010 calling upon the opposite parties to pay the above amount. But they have not turned up to settle the demand of the complainants. Hence this complaint for the realization of a total amount of ` 4,40,500 and for replacing the defective stepney tyre along with cost of this proceedings.
4. Opposite parties entered appearance and filed version with the following main contentions: Opposite parties admitted the transactions but they denied the allegations raised by the complainants against them. Opposite parties also challenged the maintainability of this complaint on the grounds of non-joinder of necessary parties and misjoinder of parties and on the ground of territorial jurisdiction and on the ground that complainants are not consumers. According to the opposite parties, in the light of the allegations in the complaint the manufacturer of the bus and the manufacturer of the tyre are necessary parties and there is no cause of action against the 3rd opposite party. Further, there is no defective good or deficiency in service involved in this case. The complainants are not consumers as defined in the Consumer Protection Act. No part of any transaction had occurred within the jurisdiction of this Forum and hence this Forum has no territorial jurisdiction to entertain this complaint. That apart opposite parties contended that this complaint is not sustainable on merits and the complainants are not entitled to get any of the reliefs from the opposite parties. At the time of booking itself, the complainants were specifically informed that the delivery of the vehicle will be subject to availability and supply of the same to the 1st opposite party from the manufacturer M/s. Ashok Leyland Ltd. The demanded model of the buses were very much in demand through out India and hence the buses were available for delivery only on 25.06.2010 and 15.07.2010 respectively and that too after putting much pressure to the manufacturer. The buses supplied to the 1st opposite party from the manufacturer were immediately delivered to the complainants without any delay and hence there is no deficiency in service or breach of law from the part of the opposite parties. Opposite parties are not responsible for the losses sustained if any to the complainants for the selling of their old buses. The allegations that the complainants has loss of money, loss of reputation and mental agony are false as the opposite parties has not committed any deficiency in service to the complainants. The allegation regarding the defects of the stepney tyre is also false as the vehicles and its accessories were accepted by the complainants after careful inspection of the same to their entire satisfaction. Opposite parties admitted the issuance of the legal notice issued by complainants but they denied the allegation that the opposite parties did not responded to the legal notice as the opposite parties had issued the reply notice to the complainants on 20.10.2010. This complaint is highly frivolous and vexatious and is apparently without any merits or bonafides. With the above contentions, opposite parties prays for the dismissal of this complaint with their cost as they have not committed any wrongs to the complainants as alleged by them.
5. On the basis of the pleadings of the parties, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the complainant is entitled to get any relief as prayed for in the complaint?
(3) Reliefs & Costs?
6. The evidence of this complaint consists of the oral deposition of PW1, DWs.1 to 3 and Exts.A1 to A18 and B1 to B17 and Ext.X1. After closure of evidence, both sides were heard.
7. Point No.1:- In view of the nature of the alleged grievances of the complainant and the place occurrence of the alleged grievances, we are not inclined to accept the contentions of the opposite parties in respect of the non-joinder of necessary parties, territorial jurisdiction etc. Therefore, we find that this complaint is maintainable before this Forum.
8. Point Nos. 2 & 3:- The complainants’ allegation is that they have booked 2 Ashok Leyland buses for transporting the students of their school by paying ` 10,000 as advance for each bus on 17.5.2010. At the time of booking, opposite parties promised to deliver the buses within 15 days from the date of making the full payment. Accordingly, the complainants had given the full payment on 28.05.2010 expecting the delivery of the vehicles on or before 12.06.2010 as assured by the opposite parties. They also sold their old buses expecting the delivery of the new buses. But the opposite parties inspite of their assurance, delivered the first bus on 25.06.2010 and second bus on 15.07.2010. Because of the delay in delivering the new buses by the opposite parties, the complainants are compelled to hire other vehicles on rent for transporting their students till the delivery of the new buses. For hiring other buses, the complainants had spent an amount of ` 2,40,500 as rent. The delay in the delivery of the new buses also caused mental agony and reputation of the complainants. Even though loss of reputation and compensation for mental agony cannot be calculated in monetary terms, the complainants estimated it as ` 2,00,000. Further, one of the steppiney tyre provided in one bus is also found defective. All the above acts of the opposite parties are clear deficiency in service and the opposite parties are liable for the same to the complainants. A legal notice was also issued to the opposite parties demanding the said claims. But they have not turned up to settle the claim.
9. In order to prove the allegations of the complainants, first complainant had filed a proof affidavit in lieu of his chief examination along with 18 documents. On the basis of the proof affidavit, the first complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A18. Exts. A1 and A1(a) are the quotations dated 10.05.2010 of the buses issued by the opposite parties in the name of the first complainant. Exts. A2 and A2(a) are the copies of the registration certificate of the newly purchased buses. Ext. A3 is the copy of the E-mail letter dated 20.08.2010 issued by the complainants to the second opposite party intimating the defects of the steppiney tyre. Ext. A4 is the copy of legal notice dated 15.09.2010 issued for the complainants in the name of first and second opposite parties. Exts. A5 and A5(a) are the postal receipts of Ext. A4 legal notice. Exts. A6 and A6(a) are the postal acknowledgment cards of Ext. A4 legal notice. Exts. A7 to 18 are the payment vouchers showing the payment of rent for hiring other vehicles.
10. On the other hand, the contention of the opposite parties is that, at the time of booking itself, the complainants were specifically informed that the delivery of the vehicles will be subject to availability and supply of the same to the first opposite party from the manufacturer M/s Ashok Leyland Limited. Though payments for the 2 buses were accepted by the first opposite party on directions from M/s Ashok Leyland Ltd. who has to deliver the vehicles to the first opposite party. But the manufacturer delivered the vehicles only on 25.06.2010 and 15.07.2010 as buses were not available immediately with the manufacturer as the said type of buses had very much demand throughout India. So the delay in the delivery of the buses is not caused due to any laches or deficiency from the part of the opposite parties. In the circumstances, opposite parties are not liable for the losses alleged to have been caused to the complainants. That apart, the allegation of monetary loss caused by hiring of vehicles for making alternative arrangements for the transportation of the students is also false as it is not supported with any cogent evidence. The allegation of the defect of the steppiney tyre is also false as the buses and its accessories were accepted by the complainants after careful inspection of the same to their entire satisfaction. Thus, opposite parties argued for the dismissal of the complaint as they have not committed any deficiency of service to the complainants.
11. In order to prove the contentions of the opposite parties, 2 witnesses were examined as DWs. 1 and 2 and the second opposite party was examined as DW3 on the basis of the proof affidavit of the second opposite party. The carbon copies of trip sheets (50 in number) of vehicle No. KL-26/711 owned by Plamittathu Travels from 27.05.2010 to 29.08.2010 brought by DW1 was marked as Ext. X1 through DW1. The documents produced by the opposite parties along with second opposite party’s proof affidavit were marked as Exts. B1 to B17 through DW3. Ext. B1 is the reply notice dated 20.10.2010 issued for the opposite parties in reply to Ext. A4 legal notice of the complainants. Ext. B2 is the order booking form dated 28.05.2010 of the opposite parties submitted by the complainants in respect of the stag bus. Ext. B3 is the retail invoice dated 25.06.2010 in respect of the sale of the stag bus booked by the complainants as per Ext. B2. Ext. B4 is the sale certificate dated 24.06.2010 issued by the opposite parties in the name of the complainants for the sale of the buse booked as per Ext. B2. Ext. B5 is the gate pass dated 25.06.2010 issued by the opposite parties in the name of the complainants for taking the vehicle. Ext. B6 is the copy of New vehicle hand over form dated 25.06.2010 in respect of stag model bus. Ext. B7 is the copy of new vehicle arrival report-cum-delivery check list dated 24.06.2010. Ext. B8 is the copy of vehicle data sheet of Motor Vehicles Department dated 24.06.2010 in respect of stag bus. Ext. B9 is the copy of sales invoice dated 22.06.2010 issued by M/s. Ashok Leyland Ltd. to the opposite parties. Ext. B10 is the copy of Vehicle Order Form dated 28.05.2010 in respect of Lynx bus. Ext. B11 is the copy of retail invoice dated 14.07.2010 issued by the opposite parties in respect of Lynx model bus to the complainants. Ext. B12 is the sale certificate dated 15.07.2010 in respect of Lynx model bus to the complainants. Ext. B13 is the new vehicle hand over form dated 14.07.2010 in respect of Lynx model bus. Ext. B14 is the copy of new vehicle arrival report-cum-delivery check list dated 14.07.2010 in respect of Lynx model bus. Ext. B15 is the gate pass dated 14.07.2010 in respect of Lynx model bus. Ext. B16 is the copy of sales invoice dated 10.07.2010 issued by M/s. Ashok Leyland Ltd. to the opposite parties in respect of Lynx model bus. Ext. B17 is the copy of letter dated 23.07.2010 from the complainants to the first opposite party authorizing the bearer of the letter to take the buses.
12. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the parties have no dispute with regard to the transaction. The only dispute is with regard to the delay in the delivery of the buses by the opposite parties as against their promise at the time of the booking and the said delayed delivery caused much loss and sufferings to the complainants. According to the complainants, as per the promise of the opposite parties, they have to deliver the buses on or before 12.06.2010. But the buses were delivered only on 25.06.2010 and 15.07.2010. Because of the said delayed delivery, the complainants were compelled to spend money for hiring other buses for their use by paying an amount of ` 2,40,500 as rent and also they have caused much mental agony and other sufferings. So they argued for allowing the complaint.
13. But according to the opposite parties, the delay in delivering the buses was not due to any fault of them and it so happened due to the non-supply of the buses by the manufacturer. At the time of booking itself, the complainants were specifically informed that the delivery of the buses will be subject to availability and supply of the same by the manufacturer to the opposite parties and the booking was made by the complainants after accepting the said facts. Further opposite parties are not responsible for the sale of the old buses or for the payment of rent to the hired vehicles, if any. So they argued for the dismissal of the complaint as they have not committed any deficiency in service.
14. In view of the rival contentions of the parties, the question to be considered is whether the opposite parties are liable to the loss and sufferings of the complainants. On a perusal of Exts. A1 and A1(a), the quotations given by the opposite parties, there is a noting that the vehicles will be delivered on or before 15 days after full payment and as per Exts. B2 and B10, full payment was made on 28.05.2010. Exts. B2 and B10 are the order booking form in which the condition of sale is mentioned. The second clause in the condition of sale is as follows: “Supply of vehicles will be entirely of the discretion of the dealer”. Exts. B2 and B10 are the first written contract between the parties. So the second clause of the condition of sale mentioned above is binding on the complainants. So the complainants are not entitled to demand any claim against the opposite parties for the delayed delivery of the buses. At the same time, in the light of the said condition, opposite parties are not entitled to delay the delivery of the buses for a long time as they have already collected the full amount from the complainants. Here, in this case, admittedly some delay has been occurred in the delivery, in spite of their assurance in Exts. A1 and A1(a). But opposite parties are justifying the said delay by saying that the manufacturer had not delivered the buses to them as per their order. But they are silent about the date on which they have given the complainant’s order and the amount to the manufacturer. They have also not adduced any evidence to show that they have given the order of the complainants and the amount collected by them to the manufacturer immediately on the receipt of the same from the complainants. In the absence of such an evidence and in the light of the assurance of 15 days it can be presumed that the delay was caused due to the non-payment of the amount to the manufacturer in time. Opposite parties has not placed the booking and the remittance of the amount to the manufacturer immediately after the receipt of the same from the complainants. If they have given the same to the manufacturer as and when they collected the same from the complainants, the delivery would have been made by the manufacturer as per the assurance given in Exts. A1 and A1(a). So it is clear that, in this respect, there is some latches from the side of opposite parties to a certain extent. It is not just and fair to hold others money without any reasons. So opposite parties are liable for the above said unfair attitude.
15. Then comes the question of the extent of the liability of the opposite parties. The complainants in this case, claims the losses sustained to them due to the deficiency of service of the opposite parties. According to them, they have spent an amount of ` 2,40,500 as rent for hiring buses and they also estimated the cost of their mental agony etc. as ` 2,00,000. But on a perusal of the available evidence, we could not find anything against the opposite parties for fastening a liability on them in this respect. Moreover, as per Ext. A3 E-mail letter, the complainants have not raised such a claim till 20.08.2010 and actually the claim for the rent etc. are raised only on 15.09.2009 through Ext. A4 Advocate Notice. So it is clear that the said claim is an afterthought and it lacks bonafides. Further the complainants produced certain cash vouchers for establishing their claim for the rent allegedly paid by them. For verifying the genuineness of the said vouchers, the opposite parties filed 2 petitions as I.A. 140/2011 and 19/2012 for directing the complainants to produce certain documents. But the complainants has not produced the documents inspite of the order of this Forum in the above I.A’s. The non-production of the said documents also leads us to the presumption that Exts. A7 to A18 vouchers are not genuine. Moreover, they have not adduced any cogent evidence to prove the sale of old buses or they have not turned up for cross examining DW3. All the above said facts constrained us from taking a decision in favour of the complainants in respect of their above said claims. So we are not inclined to allow the complainants’ prayer for compensation of ` 4,40,500.
16. However, opposite parties are liable to the extent of their deficiency of service which we have already found against them and hence this complaint is allowable with modifications:
17. In the result, this complaint is allowed with modifications, thereby the first opposite party being the principal of other opposite parties, is directed to pay interest at the rate of 10% per annum for an amount of ` 10,37,105 collected from the complainants as per Ext. B2 for the period from 12.06.2010 to 25.6.2010 and for an amount of ` 12,42,005 collected from the complainants as per Ext. B10 for the period from 12.06.2010 to 14.07.2010 within 15 days from the date of receipt of this order, failing which the complainants are allowed to realize the said amount with 12% interest per annum from this date till the realization of the whole amount. In the nature and circumstances of this case, no orders for compensation and cost.
Dictated to the Confidential Assistant, transcribed and typed by him, corrected by me and pronounced in the Open Forum on this the 26th day of November, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Prekumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainants:
PW1 : Fr. John Areeckal.
Exhibits marked on the side of the complainants:
A1 & A1(a) : Quotations dated 10.05.2010 issued by the opposite
parties to the first complainant.
A2 & A2(a) : Copies of the registration certificates of the newly
purchased buses.
A3 : Copy of E-mail letter dated 20.08.2010 issued by the
complainants to the second opposite party.
A4 : Copy of legal notice dated 15.09.2010 issued by the
complainants to the first and second opposite parties.
A5 & A5(a) : Postal receipts of Ext. A4 legal notice.
A6& A6(a) : Postal acknowledgment cards of Ext. A4 legal notice.
A7 to 18 : Payment vouchers showing the payment of rent for
hiring vehicles.
Witness examined on the side of the opposite parties:
DW1 : Aneesh Alex.
DW2 : Omankuttan.
DW3 : Ajayakumar. P.K.
Exhibits marked on the side of the opposite parties:
B1 : Reply notice dated 20.10.2010 issued by the opposite
parties in reply to Ext. A4 legal notice.
B2 : Order booking form dated 28.05.2010 of the opposite
parties submitted by the complainants.
B3 : Retail invoice dated 25.06.2010 in respect of the sale of
one bus booked by the complainants as per Ext. B2.
B4 : Sale certificate dated 24.06.2010 issued by the opposite
parties in the name of the complainants.
B5 : Gate pass dated 25.06.2010 issued by the opposite
parties in the name of the complainants.
B6 : Copy of New vehicle hand over form dated 25.06.2010 in
respect of stag model bus.
B7 : Copy of new vehicle arrival report-cum-delivery check list
dated 24.06.2010.
B8 : Copy of vehicle data sheet of Motor Vehicles Department
dated 24.06.2010 in respect of stag bus.
B9 : Copy of sales invoice dated 22.06.2010 issued by M/s.
Ashok Leyland Ltd. to the opposite parties.
B10 : Copy of Vehicle Order Form dated 28.05.2010 in respect
of Lynx bus.
B11 : Copy of retail invoice dated 14.07.2010 issued by the
opposite parties in respect of Lynx model bus to the
complainants.
B12 : Sale certificate dated 15.07.2010 in respect of Lynx
model bus to the complainants.
B13 : Copy of new vehicle hand over form dated 14.07.2010 in
respect of Lynx model bus.
B14 : Copy of new vehicle arrival report-cum-delivery check list
dated 14.07.2010 in respect of Lynx model bus.
B15 : Gate pass dated 14.07.2010 in respect of Lynx model
bus.
B16 : Copy of sales invoice dated 10.07.2010 issued by M/s.
Ashok Leyland Ltd. to the opposite parties in respect of
Lynx model bus.
B17 : Copy of letter dated 23.07.2010 from the complainants to
the first opposite party.
X1 : Carbon copies of trip sheets (50 in number) of vehicle No.
KL-26/711 from 27.05.2010 to 29.08.2010 through DW1.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Fr. John Areeckal, Manager, Holy Angels English
Medium Higher Secondary School, Adoor.
(2) The Principal, -do. –do.
(3) Managing Director, T.V. Sundram Iyengar & Sons Ltd.,
Kanjikuzhy, Kottayam.
(4) The Sales Manager, T.V. Sundram Iyengar & Sons Ltd.,
Kanjikuzhy, Kottayam.
(5) The Branch Manager, T.V. Sundram Iyengar & Sons
Ltd., Pathanamthitta Branch.
(6) The Stock File.
