Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint against the opposite parties for getting a relief u/s.12 of the C.P. Act 1986.

2. The case of the complainant is stated as follows:  The Complainant is the owner of a Honda city V car as per invoice No.SAL-INV-DD-202-1516-334 dated: 04/12/2015.  The said car purchased from the 1^st opposite party for the complainant’s son’s treatment transportation.  According to him the price of the vehicle was for Rs.9,66,801/- and the road tax was Rs.77,744/-.  It is contented that as per the above account statement the opposite parties only eligible to receive Rs. 10,44,545/- but the opposite parties received an amount of Rs. 10,50,000/- by bank transfer and paid an amount of Rs.154/- in person.  It is contented that the 1^st and 2^nd opposite party received an amount of Rs.5,455/- in excess to the actual amount without any reason.  Though the complainant inform the excess payment and sent legal notice against them they did not return the excess amount received.  It is again contented that the act of the opposite parties clearly comes under the purview of unfair trade practice and clear deficiency in service.  Therefore, the complainant filed this case before this Forum to return the excess amount of Rs.5,455/- with cost and compensation.

3. This Forum entertained the complaint and issue notice to the 1^st to 3^rd opposite parties for their appearance.  All the opposite parties entered appearance.    1^st and 2^nd opposite parties filed a common version and 3^rd opposite party filed a separate version.  The version of 1^st and 2^nd opposite parties are as follows.  1^st and 2^nd opposite parties admitted that the complainant purchased the above said vehicle as stated by the complainant.  According to them this opposite parties were given full details of the payment to be made by them for the said transaction.  The complainant signed the sale contract with the opposite parties on 23/11/2015 wherein the amount shown as Rs.10,95,628/-.  The said amount includes the handling charge of the vehicle.  It is contented that the complainant paid the whole amount voluntarily and without any objection.  The collection of handling charges are towards the expenditure involved in handling the vehicle right from the point the said vehicle was delivered to the dealer by the manufacturer and until the said vehicle is delivered to the respective purchasers.  According to them, in order to cover up all the above said expenses the opposite parties are charging handling charges from the purchasers of the vehicle.  The opposite parties again contented that there is no occasion to re-think about the collection of the handling charge and the complainant are not eligible to get the said amount as refunded.  According to them there is no cause of action for this complaint and the complainant is only to harass this opposite parties.  Therefore, these opposite parties prayed to dismiss the case by granting compensatory cost to the opposite parties.

4. The 3^rd opposite party filed a detailed version which is briefly stated as follows:  According to 3^rd opposite party, the complainant impleaded 3^rd opposite party with malafide intentions to harass and take undue advantage against 3^rd opposite party.  The 3^rd opposite party is not at all a necessary party for this proceeding hence this case is bad for mis-joinder of unnecessary party, i.e. 3^rd opposite party.  It is contented that 3^rd opposite party is the manufacturer of the vehicle and the 1^st and 2^nd opposite parties are the dealers of the opposite party’s vehicle.   The 1^st and 2^nd opposite parties are selling the vehicle to the public at large based on their own marketing strategy.  The 3^rd opposite party can be held liable in case of any manufacturing defect of the said vehicle.  There is no privity of contract between the complainant and 3^rd opposite party and as such the complainant has no right to raise any deficiency in service and unfair trade practice against this opposite party. It is further contented that the case of the complainant against 3^rd opposite party is total false and the proceedings against the 3^rd opposite party is vexatious with ulterior motive to harass and defame this opposite party.  According to 3^rd opposite party he never received any amount from the complainant so that the complainant is not a consumer of 3^rd opposite party as per the provisions of the Consumer Protection Act.  It is also contended that this opposite party is not a service provider of this complainant.  Therefore, this opposite party prayed to dismiss this complaint with compensatory cost against the 3^rd opposite party.  Apart from the above version this opposite party filed a petition to delete him from party array.  The said petition is numbered as I.A .No 36/16 and it is heard and finally dismissed.

5. This Forum perused the complaint, version and records before us and framed the following issues.  

1. Whether the opposite party 1&2 committed any deficiency in service or unfair trade practice against the complainant?
2. Whether 3^rd opposite party is a necessary party for the proceedings of this case?
3. Regarding relief and cost?

         6. The evidence of the complaint consists of the proof affidavit as well as oral evidence of PW1&PW2, Ext.A1 to A11 and C1.  Ext.A1 is the copy of quotation dated 02.12.2015 issued by 1^st opposite party to the complainant.  Ext.A2 is the copy of payment confirmation issued by Canara Bank dated 03.12.2015 (subject to proof).  Ext.A3 is the copy of temporary registration certificate of the complainant dated 05.12.2015.  Ext.A4 is the copy of vehicle data sheet.  Ext.A5 is the copy of vehicle tax invoice dated 04.12.2015 for Rs.9,66,801/- issued by 1^st opposite party.  Ext.A6 is the copy of certificate dated 04.12.2015 issued by 3^rd opposite party.  Ext.A7 is the copy of Registration Certificate of the complainant.  Ext.A8 is the legal notice dated 29.12.2015 sent by the complainant to opposite parties.  Ext.A9 is the postal receipt of Ext.A8.  Ext.A10 & A11 are the postal acknowledgment cards.  On the other side, the opposite parties did not adduce any oral evidence except their versions.  After the closure of evidence, we heard the learned counsels for the complainant and the 3^rd opposite party.  Opposite parties 1&2 did not appear on the day of hearing. 

7. Point Nos.1 to 3 :- For the sake of convenience, we would like to consider point Nos.1 to 3 together.  The case of the complainant is that he purchased a   Honda city V car on 04/12/15 from 1^st opposite party for his personal use and for the treatment transportation of his disabled son Jobin Abey Stephen.  As PW1 the complainant deposed that he paid an amount of Rs. 10,50,000 by a bank transfer and Rs. 154/- as cash to the opposite parties 1&2 including the road tax amount Rs. 77,744/-.  It is deposed that as per the quotation of 1^st opposite party which is marked as Ext.A1 dated 02/12/2015 shows that the Total On-Road price is Rs. 10,55,834/-.  As per complaint and proof affidavit PW1 deposed that he paid an amount of Rs.10,50,000/- to 1^st opposite party by bank transfer as the price of the vehicle plus road tax of the vehicle.  In order to substantiate this payment PW1 relying on Ext. A2 (subject proof).  As per this documents it shows that an amount of Rs. 10,50,000/- was paid to the opposite party on 03/12/2015.  Though the opposite parties opposed the marking of this Ext. A2 they did not raise any contention with regard to the payment Rs. 10,50,000/- to opposite party 1&2 as per the complaint and proof affidavit of PW1.  Ext. A3 is the temporary Registration Certificate in favour of PW1 and Ext. A4 is the vehicle details and address of the complainant.  As per Ext. A5, it is true that PW1 paid an amount of Rs.9,66,801/- as the price of the vehicle including the vat 14.5% to opposite party for this transactions.  The Ext. A6, is the pollution certificate which is issued in favour of PW1 and Ext.A7 is the R.C book issued in favour of the complainant for the said vehicle.  Ext.A3 & A7 are proves the ownership of vehicle with the complainant PW1.  Ext.A8 is the legal notice dated 29/12/2015 issued to the opposite party for the Redressal of this complaint.  PW2 in this case is the Joint RTO of the Pathanamthitta District.   Though he is examined in chief of opposite party 1 & 2 was absent on that day of examination and did not cross-examine PW2.  3^rd opposite party’s learned counsel submitted that he does not want to cross-examine this PW2.  As per the direction of this Forum on 28/10/2016 PW2 produced the Circular dated 03/02/11 issued by Transport Commissioner, Thiruvananthapuram.  The said Circular is marked as Ext.C1 on 04/11/2016.  The Circular says that “vhml\ hn¸\ \S-¯n. hnhn[ UoeÀamÀ hml\w hm§p-¶-h-cpsS ]¡Â \n¶pw  registration charge, registration expense Fs¶ms¡ \ne-I-fn A\-[n-Ir-X-ambn Bbn-c-¡-W-¡n\v cq] IqSp-X-embn (handling charge F¶ t]cnÂ) hm§p-¶-Xmbn ]cm-Xn-IÄ hcp-¶p-­v.  ]e-t¸mgpw tamt«mÀ hml\ DtZ-ym-K-Ø-·mÀ¡v \ÂIm-\p-ff ]Ww F¶ \ne-bn-emWv hm§p-¶-Xv.  C¯-c-¯n A\-[n-Ir-X-ambn UoeÀamÀ ]Ww hm§p-¶-Xv XnI¨pw sXämb Hcp Imc-y-am-Wv.  UoeÀamÀ Fs´Ãmw Imc-y-§Ä¡mWv ]Ww CuSm-¡p-¶-sX¶v hy-à-ambpw IrX-y-ambpw FgpXn {]ZÀin-¸n-¡-W-sa¶v \nÀt±iw t]mbn-«p-f-f-Xm-Wv.  FÃm Hm^o-kÀamcpw X§-fpsS AXnÀ¯n¡p-f-fn hcp¶ hml\ UoeÀamÀ Cu \nÀt±iw ]men-¨n-«pt­m F¶p-d¸v hcp-t¯-­-Xm-Wv.  A\-[n-Ir-X-ambn C¯-c-¯n hml\w hm§p-¶-h-cn \n¶pw XpI CuSm-¡n-b-Xmbn Adn-ªm CMV Rule 44 {]Imcw UoeÀam-cpsS trade certificate cancel sN¿p-¶Xv DÄs¸-sS-bp-ff \S-]-Sn-IÄ kzo-I-cn-¡p-¶-Xm-sW¶v FÃm hml\ UoeÀam-scbpw Adn-bn-t¡-­-Xm-Wv.  am{X-aà CXp am[-y-a-§Ä hgn {]kn-²o-I-cn-t¡-­-Xp-­v''.  On the basis of the circular, it is crystal clear that the dealer of the vehicle has no right to receive and handling charge from the purchasers of the vehicle.  The point to be considered is whether the opposite party 1&2 in this case received any amount as registration charge, registration expense, handling charge etc.etc.  When we peruse the evidence adduced by PW1 and the pleading of opposite party 1&2 by their version it is to see that the complainant PW1 paid an amount of Rs. 5,455/- as excess amount for the said transactions.  When we peruse the version of opposite party 1&2 it reveals that opposite party1&2 have every right to collect the handling charges and registration expenses if any from the purchasers of the vehicle.  According to opposite party 1&2, they are receiving this amount within the purview in the dealership and opposite party 1&2 has every right to receive the same.  When we peruse the cross-examination of PW1 by opposite party 1&2, it reveals that opposite party 1&2 received the amount Rs. 10,95,638/- by way of a sale contract agreement.  The learned counsel appearing for the opposite party 1&2 asked a question and PW1 answered like this “Sale contract Rm³ I­n-«nÃ. Sale contract H¸n-«Xv \n§Ä BsW¶pw AXn³{]-Imcw Rs. 10,95,638/þ cq] Service charge DÄs¸sS \n§Ä k½-Xn-¨n-cp-¶Xv BW-tÃm(Q) CÃ.  (A) Fianl Settlement Rm³ H¸n-«n«nÃ.  Rs. 10,50,000/þ cq] full C.CBbn-cp-t¶m?  BbXv Bank  \n¶v transfer sN¿p-I-bm-bn-cp-¶p. Final Settlement Bbn Rm³ H¸n« tcJ-bà Ct¸mÄ Fs¶ ImWn-¨Xv”.

8. In order to substantiate the case of opposite party 1&2, it is the duty of opposite party 1&2 to mark the said document through their witness if it is genuine.  They have not taken any steps to this effect.  It is interesting to see that except this contention opposite party 1&2 did not raise any contention with regard to the contents of proof affidavit of PW1.  Hence it can be inferred that except this portion the whole testimony of PW1, is unchallengeable as far as opposite party 1&2 are concerned.  It is true that the learned counsel appearing for opposite party 3 cross-examined this witness as per their version.  In cross PW1, answered to a questiion: “2^nd opposite party]dª{]Im-c-amWv  3^rd OP sb I£n tNÀ¯-Xv.  Ahsc I£n tNÀ¯Xn\m AhÀ¡v km¼-¯nI \jvSw D­mbn F¶Xv icn-b-Ã. 3þmw  OP  sb I£ntNÀ¯Xv Hgn-hm-¡m³  sImSp¯ I.A bv¡v Bt£]w sImSp-¯n-cp-¶-Xn\v \n§Ä¡v sXfn-hp-IÄ hÃXpw Dt­m(Q) CÃ.(A)”.  In the light of the answer of PW1 in cross with regard to opposite party 3 and the whole evidence adduced by the PW1 in this case it can be inferred that opposite party 3 is not at all a necessary party for the proceedings.  Though the Forum granted sufficient time to the complainant to adduce evidence against opposite party 3 the complainant not succeed to adduce any evidence to show the unfair trade practice or deficiency in service of 3^rd opposite party.  As discussed earlier, we can easily arrived a conclusion to the effect that opposite party 1&2 received an excess amount of Rs.5,455/- from the complainant against the prevailing standing orders of the transport authority.  Though the opposite parties 1&2 pleaded that they have got all freedom or right to receive such amount they miserably failed to establish their case before the Forum.  The complainant in this case adduce sufficient evidence against opposite party 1& 2  to prove the deficiency in service or unfair trade practice of them.   At the same time, it is also come out in evidence to show that the complainant failed to adduce any evidence against 3^rd opposite party.  Though the complainant pleaded that 3^rd opposite party is a necessary party for this proceeding and they are ready and willing to adduce evidence against 3^rd opposite party, at the time of trial of this case, as stated earlier complainant failed to do it.  On the date of hearing of this case, the learned counsel appearing for the 3^rd opposite party filed a petition to invoke section 26 of the Consumer Protection Act against the complainant for a frivolous and vexatious proceedings against 3^rd opposite party.  We heard the said petition as I.A.No.124/16 along with the main case on the same day.  As discussed earlier, we found that the complainant failed to adduce any evidence against 3^rd opposite party in this case.  If so, whether the complaint is liable to the 3^rd opposite party u/s. 26 of Consumer Protection Act.   It is to be bear in mind that the consumer Protection Act is a social legislation, in order to protect or safe guard the interest, of the consumers.  When we apply our mind as per Sec.26 of Consumer Protection Act, the purpose of this act and social implication of this legislation has to be considered.  Therefore, even though we find that 3^rd opposite party is not at all a necessary party for this proceeding, considering the nature and circumstances of this case along with the purpose of legislation, we are not going to invoke section 26 against the complainant.  But we would like to give a warning to the complainant for this kind of implication of unnecessary parties for the proceedings.  The complainant succeeded to prove this case against opposite party 1&2 and it also found that the complainant is eligible to get a reasonable compensation and cost from opposite parties 1&2.  Opposite parties 1&2 are the dealers of the vehicle and they are Manager and Managing Director respectively.  Opposite parties 1&2 are severely and jointly liable to the complainant.  In the light of the above discussion point No. 1 to 3 are found in favour of the complainant. 

 9.  In the result we pass the following orders:

1. Opposite parties 1&2 are directed to return an amount of Rs.5,455/- (Rupees Five Thousand Four hundred and fifty five only) with 10% interest from the date of filing of this case onwards i.e., 11//02/2016.

2. Opposite parties 1&2 are also directed to pay a compensation of Rs. 10,000/-(Rupees Ten Thousand only) and a cost of Rs.2,500/- (Rupees Two Thousand and Five hundred only) to the complainant with 10% interest from the date of receipt of order onwards.

3. The 3^rd opposite party is exonerated from all charges and also given a warning to the complainant against inclusion of unnecessary party to the proceedings.

          Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 30^th day of November, 2016.

                                                                               (Sd/-)

                                                               P. Satheesh Chandran Nair,

                                                                            (President)

Smt. K.P. Padmasree (Member – I)             :   (Sd/-)

Smt. Sheela Jacob (Member- II)                 :   (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  : Abey Stephen

PW2  :  P.R. Sajeev

Exhibits marked on the side of the complainant:

A1 :  Copy of quotation dated 02.12.2015 issued by 1^st opposite party

        to the complainant. 

A2 :  Copy of payment confirmation issued by Canara Bank dated 03.12.2015   

        (subject to proof). 

A3 :  Copy of temporary registration certificate of the complainant dated 05.12.2015.  A4 :  Copy of vehicle data sheet. 

A5 :  Copy of vehicle tax invoice dated 04.12.2015 for Rs.9,66,801/- issued

        by 1^st opposite party. 

A6 :  Copy of certificate dated 04.12.2015 issued by 3^rd opposite party. 

A7 :  Copy of Registration Certificate of the complainant. 

A8 :  Legal notice dated 29.12.2015 sent by the complainant to opposite parties. 

A9 :  Postal receipt of Ext.A8. 

A10 & A11 :  Postal acknowledgment cards. 

Witness examined on the side of the opposite parties:  Nil.

Exhibits marked on the side of the opposite parties:  Nil.

Court Exhibit:

C1  :  Copy of Circular dated 03.02.2011 produced by R.T.O  

                                                                                                  (By Order)

Copy to:- (1) Abey Stephen, Edasserial House, Ranni.P.O, Pathanamthitta.                       (2) The Manager, Vision Motors Pvt. Ltd., Kumbazha- Konni Road,

          Mallassery Mukku, Thengumkavu.P.O, Pathanamthitta – 689 645.

3. The Managing Director, Vision Motors Pvt. Ltd.,

          Kuttukaran Group of companies, Kalathode,

         Thrissur District – 680 005.

4. The Managing Director, Honda Cars India Ltd.,

          Plot No. A-1, Sector 40/41, Surajpur – Kasna Road,

          Greater Noida Industrial Development Area,

          Dist. Gautam Budh Nagar, U.P. – 201306.                              

5. The Stock File.