KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO. 581/11

JUDGMENT DATED : 28.3.12

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

SHRI. M.K. ABDULLA SONA                           :  MEMBER

Indus Motors Co. Pvt. Ltd.,

One Way Junction,

Kothamangalam Road, Muvattupuzha.              :  APPELLANT

(By Adv. C.S. Rajmohan & P.K. Aboobacker)

Vs

Aneesh S., Nambiaparambil House,

Vannappuram P.O., Thodupuzha.                     :  RESPONDENT

(By Adv. Tom Joseph)

JUDGMENT

SHRI. M.K. ABDULLA SONA : MEMBER

          This appeal prefers from the order passed by the CDRF, Ernakulam in CC No. 352/10 dated: 27.5.2011. The appellant is the opposite party and the respondent is the complainant. This appeal prefers from the direction that the Forum ordered the opposite party shall deliver the car as per Ext. A1 order booking form or refund Rs.2,09,000/- to the complainant.

          2.      In short, the complainant had booked a pre-owned ALTO LXI 2006 model car with the opposite party by paying Rs.2,09,000/- on 23.04.2010. The vehicle bearing Reg. No. KL-7BD-3032 was selected and he had entrusted the said amount with one Ali the then in-charge of pre-owned counter section. On 29.4.2010, when the complainant approached the opposite party for getting delivery of the vehicle, the opposite party refused the same stating that the said Ali who had accepted the money had committed suicide. The opposite party being the employer of the said Ali is vicariously liable to compensate the complainant. The complainant is entitled to get delivery of the above vehicle or refund of its price with interest. Hence this complaint is filed.

3.      The appellant/opposite party had entrusted appearance and filed their written version. It is contended that the opposite party does not collect more than Rs.5,000/- towards advance booking. After completing all the formalities the vehicle will be delivered to the customer and at that time alone, has he to pay the balance amount. In this case, the opposite party has not received any amount from the complainant. The opposite party issues receipts for all the payments received in its office and complainant had not any evidence that the opposite party had received the price of the vehicle and so the complaint is only to be dismissed.

4.      The Forum below heard both the parties and examined the depositions of PW1 and DW1 and the Exts. A1 and A2 documents. Ext. A1 is a pre-owned car booking form dt.23.04.2010 and A2 is a receipt dated 27.05.2010 issued by CI of police, Muvattupuzha.

5.      The Forum below taken a view that DW1 is the witness for the opposite party deposed that he is not aware of the transaction between the complainant and the deceased Ali, though he further stated that the said Ali had accepted money from various persons promising to deliver vehicles. It is evident from Ext. A1 pre-owned car booking form that there is no provision to show the whether acceptance of the amount is as advance or in full settlement of the price. The opposite party has categorically admitted that they do not accept more than Rs.5,000/- as advance and evidently the transaction was contractually for consideration of the full amount of the firm. The opposite party does not have a case that the said Ali was not their employee. Therefore the opposite party is liable either to deliver the vehicle in question to the complainant or to refund Rs.2,09,000/- to the complainant.

6.      In the result, the Forum below allowed the complaint.

7.      On this day, this appeal came before this commission for final hearing; both counsels for the appellant and the respondent argued their own cases in detail. The counsel for the appellant argued that the appeal on the basis of grounds of the appeal memorandum that the Forum below wrongly considered the Ext. A1. This is nothing but a booking form and Ext. A2 receipt which issued by the CI of Police Muvattupuzha. These documents are not sufficient to prove the case of the complainant. If the opposite party company agreed to sale a vehicle to the complainant and accepted money from him; definitely the appellant would issue proper receipt. According to the appellant; this is nothing but an experimental case. He prays to allow this appeal it is liable to set aside the impugned order passed by the Forum below. But the counsel for the respondent/complainant submitted that the complainant who already paid Rs.2,09,000/- to the opposite party. There is no denial from the part of the opposite party that the deceased Ali who was not working as an employee in their shop hence liable for either deliver the vehicle or to return the amount to the complainant.

We heard in detail and perused the entire evidence from the case bundle and it is seeing that the document Ext. A1 is more and sufficient to say that the expected money as allowed in the complaint. If taken into consideration; the contention of the opposite party that they are having a practice to issue receipts on payment of any money. It is normally seeing that the receipt of the booking of the appellant/opposite party company could produce before the Forum below. Unless produce this relevant document, the contention of the appellant/opposite party is not acceptable. We discard the entire contentions of the appellant. We are seeing that the appellant/opposite party is liable to deliver the impugned vehicle and liable to return of the amount which already collected. In the circumstance, we are seeing that the order passed by the Forum below is legally sustainable, we are seeing it is an order passed by the Forum below is in accordance with the provisions of law and evidence. It is legally sustainable. We uphold this order.  We are not seen any reason to interfere in this order passed by the Forum below.

In the result, this appeal is dismissed and confirmed the order passed by the Forum below. The appellant/opposite party is direct to pay Rs.5,00/- as cost of the appeal proceedings. We do so.

M.K. ABDULLA SONA :  MEMBER

JUSTICE K.R. UDAYABHANU:  PRESIDENT

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