IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 28th day of December, 2018
Filed on 16. 06. 2017
Present
1. Sri.E.M. Muhammed Ibrahim , BA,LLM (President)
2. Smt. Sheela Jacob, B.com,LLB (Member)
in
CC/No.165/2017
Between
Complainant:- Opposite parties:-
Sri.N.Chandramohan, 1. Indus Motor Co.Pvt.Ltd.
S/o Neelakantapillai, Opp. Cochin Shipyard,
Koyikkal Revathy Veedu, Thevara, Kochi-682015.
Kannamangalam Village, Rep.by its Manager.
Mavelikara.
(By Adv.C.Viswanathan Chettiar) 2. Indus Motor Co.Pvt.Ltd.,
Branch Office,
New Prathibha Theatre,
Puthiyakavu, Mavelikara-690101
Rep.by its Manager.
(By Adv.V.K.Dinesh Kumar for
Oppo: parties No.1 and 2)
ORDER
SRI.E.M. MUHAMMED IBRAHIM.B.A.LLM (PRESIDENT)
This case is based on a consumer complainant filed under section 12 of the Consumer Protection Act, 1986.
2. The averments in the complaint as stands amended in short, are as follows:-
The complainant intended to pursha a Maruti Swift Car from 2nd opposite party. The price of the vehicle agreed was Rs.5,86,831/-. The complainant has exchanged an old Santro car for getting exchange and other offers agreed by opposite parties. The price of the new Swift car after deducting the exchange offer and other offers was Rs.5,86,831/-. By mutually agreeing the above price the complainant paid an advance of Rs.3000/- and booked the car with 2nd opposite party on 16-03-2017. At the time of booking the car 2nd opposite party has given assurance that the new vehicle will be delivered within 1 ½ months of booking the same. However on 25-04-2017 the 2nd opposite party directed the complainant to pay the entire price within 3 days and in such event the vehicle will be delivered within 7 days. By believing the above representation the complainant on 27-04-2017 paid the agreed price of Rs.5,83,831/- after deducting the advance amount already paid. However the vehicle was not delivered to the complainant even on 5-5-2017. There upon the complainant approached the 2nd opposite party and enquired about the reason for the delay in delivering the vehicle there upon the 2nd opposite party made the complainant to believe that the vehicle will be definitely delivered on 12-05-2017. But on that date also the 2nd opposite party has not delivered the vehicle but promise to deliver the vehicle on 17-05-2017. On that date also the vehicle was not delivered to the complainant. However the 2nd opposite party offered lame excuses. The complainant on 27-04-2017 has transferred the entire amount agreed after deducting the advance already paid by RTES from his bank account and also entrusted the entire documents of the old Santro car which is agreed to be exchanged as the new Swift car was not delivered within time or extended time the complainant orally and through notice has enquired about the reason but the opposite parties caused indefinite delay in delivering the vehicle. Hence on 18-05-2017 the complainant caused to send a registered notice but on getting the above notice the 2nd opposite party on 23-05-2017 sent a replay raising false and frivolous reply by concealing material facts and also not offering any valid reason for the delay in delivery of the vehicle. There is clear deficiency in service on the part of the opposite parties. The complainant is an advocate by profession. As the new car was not delivered within the agreed time the complainant was constrained to hire a new car for 1 month for his daily use for which he paid rent the has lost his opportunity to use the new car by 1 month and there by the complainant has sustained heavy loss and opposite party has sustained unjust gain by receiving the price of the vehicle and the old santro car 1 month prior to the delivery of the new car and thereby caused financial loss as well as mental agony to the complainant. The complainant paid altogether Rs.38,000/- as rent to the car at the rate of Rs.1,000/- per day from 27-04-2017 to 05-06-2017. The 2nd opposite party has delivered the car on 07-06-2017 only. The complainant has purchased the above car by availing loan from the Oriental Bank of Commerce, Chengannur Branch and has to paid Rs.6,075/- as interest for the above 38 days. According to the complainant he is entitled to get compensation for the mental agony and other sufferings caused by the opposite parties for the inordinate delay in delivering the vehicle and thereby the complainant is entitled to get Rs.10,000/- as compensation. Hence the complaint.
3. The opposite party No.1 and 2 filed joint version raising the following condensations:-
The opposite parties never agreed to deliver the vehicle within 1 ½ months. At the time of booking the vehicle itself it was stated to the complainant that the period mentioned in the order booking form is only a tentative period and the same may change due to different reasons and the complainant himself was convinced the same. The allegation that the opposite parties had given assurance that the vehicle will be delivered after the payment of the entire amount is utter false hood. The opposite parties cannot determine the exact date of delivery of the vehicle as the same may change subject to the availability of the vehicle from the manufacturer. The opposite parties are also not promised to deliver the vehicle by 12th May nor asked the complainant to wait till 17-05-2017. The vehicle was ready for temporary registration and the temporary registration was delayed due to the delay on side of the complainant. The complainant did not hand over the required documents to the opposite parties in time for complying the formalities of issuing new policy to the new vehicle. The staffs of the opposite parties had requested several times to hand over the documents. But the complainant did not consider our repeated requests and reminders. The staffs of the opposite parties had clearly intimated the complainant about the necessity of the documents required for the ownership change of his old vehicle and submission of the new policy documents are essential for arranging the temporary registration. Since the required documents are in the custody of complainant, opposite parties were not in a position to complete the temporary registration formalities. The delay in delivery of the vehicle is due to the non-submission of required documents on the side of the complainant and the opposite parties are not responsible for the delay. The opposite partied have not committed any deficiency of service and had already intimated that the vehicle will be ready for delivery after the temporary registration. Hence the complainant is not entitled for any compensation as prayed.
4. In view of the above pleadings the points that arise for consideration are:-
1) Whether there is any deficiency in service or unfair trade practice on the side of the opposite parties No.1 & 2.
2) Whether the complainant is entitled to get compensation if so what would be the quantum of compensation to be awarded.
3) Reliefs and costs.
5. Evidence on the side of complainant consists of the oral evidence of PW1and Ext.A1 to A7 documents. Evidence on the side of the opposite parties consists of the oral evidence of RW1, RW2, and Ext.B1 to B3 documents. Heard both sides. The learned counsel appearing for both sides have also filed notes of arguments.
Point No.1 & 2
6. For avoiding repetition petition discussion of materials these 2 points are considered together. The specific case of the complainant is that he booked a new Maruti Swift car on 16-3-2017 by paying Rs.3000/- as booking advance. The opposite party has undertaken to deliver the vehicle when the full payment was accepted. Admittedly there is a delay in 38 days in delivering the new vehicle after making the full payment. According to the opposite parties the delay in delivery of the vehicle was due to the lapse and laches on the part of the complainant for which the opposite parties are not liable. Now the question to be considered is whether the delay in delivery of the new car was caused due to the fault of the complainant or to the opposite parties. PW1 is none other than the complainant he has filed an affidavit in lieu of chief examination by reiterating his case in the complainant and proved Ext.A1 to A7 documents. During cross examination he would admit that the vehicle was entrusted to the old santro car bearing number KL 07 AM 5493 which was exchanged was entrusted to the second opposite party on 27-4-2017. But the date was mistakenly stated as 28-4-2017 in the advocate notice which is marked as Ext.A4. The value of the old second hand vehicle was fixed at Rs.40,000/- and amount Rs.3,000/- was given as general offer by the second opposite party. That he paid the required amount towards the insurance company to the 2nd opposite party are shown in the invoice. He has categorically denied the suggestion made by the learned counsel for the opposite parties during cross examination that the temporary registration of the new vehicle was denied as he fails to pay the insurance amount to the opposite parties. However the OP has no such case in the written version that he has surrendered the vehicle on 27-4-2017 to the second opposite party and thereafter he has used a vehicle on rent a car facility from a private person that the opposite parties are not requested to hand over any documents relating to the old exchanged vehicle for the purpose of obtaining NCB. According to the opposite parties the complainant has never surrendered his old vehicle on 27-4-2017 with all its documents before the opposite parties and vehicle was under his custody. It is clear from the admission of RW2 who is daughter in law of the complainant who is the present owner of the Santro Car bearing KL 07 AM 5493 which was exchanged by the complainant while purchasing the new car. It is brought in evidence through RW2 that her father in law the complainant is the original owner of the said car. She has made application to change the original ownership of the car on 27-4-17 when she has made the application through the person through purchase the said car for true value who are Indus Motors, Puthiyakavu. She has also hand over ID proof and they promise to arrange all necessary papers of the santro car in her paper that her father has given price Rs.40,000/- of the santro car. But at the time they have issued any receipt when she asked about the receipt the people representing true value functioning at Indus Motors, Puthiyakavu replied that the vehicle is with them and therefore no receipt is required. However she obtain the RC book by changing the ownership only after 1 month through registered posts. In view of the above evidence that RW2 it is clear that the complainant has hand over the santro car to the persons conducting true value at the Indus Motors, Puthiyakavu on 27-4-17 on 27-4-2017 on which date the complainant is paid the agreed price Rs.5,83,831/- after deducting the advance amount already paid and the value of the exchange offer and other offers. The RW2 who purchases the old santro car also made an application at the office of the RTO on 27-4-17 itself through the persons representing true value. In the circumstance the contention of the opposite parties that the complainant did not hand over the required documents of the old vehicle in time for complying the formalities of issuing new insurance policy to the new vehicle is devoid of any merit. Usually when the exchange of the old vehicle is made by purchasing the old vehicle by the agency which is year mark for the purchase of the second hand vehicle ( true value vehicle). While selling the vehicle the purchaser is expected to obtain all the documents including insurance policy and RC book of the old vehicle. Then only the sale and purchase of the old vehicle become valid. As it is brought out that the daughter in law of the complainant purchase the old second hand car sold by the complainant to the persons conducting true value of the vehicle simultaneously on the day when the complainant paid the sale proceeds of the new car.
7. It is the oral evidence of RW1 who is none other than the in charge of the Chegannur branch of Oriental Insurance Company would indicate that the he received Ext.B1 letter on 27-4-2017 claiming non claim bonus in respect of the new vehicle as early on 24-4-2017. But according to him he received the Ext.B1 letter only on 31-5-2017 from the sales executive in the Indus Motors. It is pertinent to note that RW1 would admit that during cross examination for the complainant that prior to 31-5-2017 the representative of the Indus motors of the company approached RW1 on two occasions for getting NCB and he is not remembering those days and all those days they have not and on the above 2 occasions. The said representatives have not brought the required documents. The above admission of RW1 clearly indicates that the complaint has claimed NCB as early on 24-4-17. But the sales executive of the Indus Motors as caused delay in producing the sale till 31-5-2017. In the circumstances it is clear that the representative of the Indus motors has caused inordinate delay in producing Ext.B1 letter before the insurance company for which the complainant cannot be claimed. It is also brought out in evidence through RW1 that they have produced copy of the RC book and original insurance certificate only on 31-25-2017 and on the same day it was caused the application for getting or issuing NCB was processed and Ext.B2 NCB certificate was issued. If NCB certificate was produced new vehicle will get 50% off in respect of own damage premium.
8. The oral evidence of PW1 stands collaborated by the oral evidence of RW2 who purchased the second hand car sold by the complainant to the 2nd opposite party through the representative of the true value vehicle functioning at the Maruti showroom Puthiyakavu.
9. It is further contented on behalf of the opposite parties that the vehicle was ready for temporary registration. But the temporary registration was delayed as the complainant could not arrange the required documents to the opposite parties in time for complying the formalities of issuing new vehicle and the complainant has paid only the balance amount required for taking insurance for the new vehicle after adjusting the amount in the Non Claim Bonus (NCB) on his old vehicle. For getting NCB the complainant ought to have submitted the copy of the transfer change of RC book of the old vehicle. Even the ownership change was only effective with from 12-5-2017 and the application for NCB was produced before insurance company on 31-5-2017. After receiving the NCB the opposite party completed the formalities of temporary registration and delivered the vehicle to the complainant. In view of the facts and circumstance in the case we find no merit in the above argument advanced by the opposite parties especially when it is brought out in evidence that as on the date of payment of the sale consideration of the vehicle the complainant has exchanged the santro car for Rs.40,000/-. It is a well accepted custom of the sale of vehicle that the vehicle should be sold to the purchaser along with the RC book, insurance certificate and tax token and other related documents of the vehicle and it is the duty of the purchaser (true value vehicle) functioning at the office of the 2nd OP is expected to change or caused to change the RC book and take necessary steps to obtain NCB as they have only issued invoice deducting the non claim bonus from the insurance charge. It is also brought out in evidence that the RW2 who purchased the exchanged car from the True Value Vehicle has given necessary application form on the very same date of payment of the price of the new vehicle by the complainant. It is the duty of the 2nd O.P to arrange all those things for getting temporary registration and hand over the new vehicle to the complainant within the agreed date. If it is not possible the 2nd O.P ought to have given specific intimation stating that there will be delay in delivering the new vehicle. Here in this case no such notice has been given after receiving the full value of the vehicle and making assurance that the vehicle will be delivered within 1 ½ months from the date of booking and 1 week after paying the full price.
10. The another contention of the opposite parties is that they cannot assure the exact date of the delivery of the vehicle as the date of delivery is dependent on getting the vehicle manufactured from the manufacturing company. If that is so they ought to have given intimation to the complainant to that effect and ought not have received the full sale price before getting delivering the new vehicle from the manufacturing company at the showroom. It is clear from the available materials that there is inordinate delay in delivering the new car to the complainant even after getting the entire price of the vehicle which the complainant is entitled to get reasonable compensation. In the circumstances there is deficiency in service and unfair trade practice on the part of the opposite parties 1 and 2.
11. The further case of the complainant is that as he has exchanged the old vehicle which was in use and the entire sale consideration of the vehicle was made he has left with no vehicle and therefore he hired a car on a rent a car basis for his daily for 38 days, for which he has to pay Rs.38,000/- at the rate of Rs.1000/- per day. It is true that the complainant has sworn that fact in his proof affidavit but he has not adduced any reliable and convincing documentary evidence such as bill, receipt obtained from owner of the vehicle used by him on rent a car basis. He has also not even mentioned the number of the vehicle and name of the owner of the vehicle used by him on rent a car basis. It is further to be pointed out that even though he exchanged the old vehicle to True Value Vehicle the same was purchased by RW2 who is none other than the daughter in law of the complainant who is residing at the residence of the complainant along with her husband who is the only son of the complainant. In the circumstances the very same car is available at the residence of the complainant. The non production of any receipt issued by the owner of a rent a car, the non furnishing of the number of the said car and name of the owner of the car who given a car on a rent a car basis to the complainant we are not inclined to believe the version of the complainant that he hired a car on a rent a car basis and paid Rs.38,000/- as rent is not believed at all. However the materials available on record would indicate that there is inordinate delay in getting the new car the complainant suffered mental agony apart from financial loss, that he availed loan from the Oriental Bank of Commerce, Chengannur Branch and paid Rs.6075/- as interest for the delayed period of 38 days for no fault of him. The above claim of the complainant is not specifically denied by the opposite party. Therefore he is entitled to get the interest paid the loan availed by him for the above 38 days. The complainant has claimed only on Rs.10,000/- as compensation for the mental agony and other sufferings. In view of the facts and circumstances the above claim of compensation only reasonable. The complainant is also entitled to get cost of the proceedings amounting to Rs.5,000/-. The points answered accordingly.
Point No.3
In the result complaint stands allowed in part directing the opposite parties No.1 and 2 to pay Rs.10,000/- as compensation Rs.6075 being the loss on account of payment of interest by the complainant towards the loan availed by himself for 38 days for the payment of sale price of the vehicle for 38 days prior to the delivery of the vehicle. The opposite parties also directed to pay Rs.5,000/- towards cost of the proceedings.
The opposite party 1 and 2 are directed to comply with the above direction within 30 days from the date of receipt of a copy of this order, failing which the complainant is allowed to recover Rs.16,075/- with interest at the rate of 12 % per annum from the date of the complaint till realisation along with cost Rs.5,000/- from O.P 1 and 2 jointly and severally and from their assets.
The prayer to award Rs.38,000/- as expense towards payment of rent for the vehicle used by the complainant on rent a car basis stands disallowed.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 28th day of December, 2018.
Sd/-Sri.E.M.MuhammedIbrahim (President):
Sd/-Smt. Sheela Jacob (Member):
Appendix:-
Evidence of the complainant:-
PW1 - N.Chandramohan (Witness)
Ext.A1 - Copy of Account Statement details for Oriental Bank of Commerce
Ext.A2 - Copy of letter, dated 18-05-2017
Ext.A3 - Acknowledgement Card
Ext.A4 - Copy of cash receipt, dated 28-04-2017
Ext.A5 - Copy of track consignment
Ext.A6 - Job card retail cash memo
Ext.A7 - Proforma Invoice, dated 26-04-2017
Evidence of the opposite parties:-
RW1 - K.P.Sukumaran Nair (Witness)
RW2 - Athira R Pillai (Witness)
Ext.B1 - Copy of letter, dated 24-04-2017
Ext.B2 - Copy of NCB certificate
Ext.B3 - Registration details of vehicle department
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- Sa/-
Compared by:-
