DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 21st day of December 2022
Filed on: 09/07/2020
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
C.C.NO. 181/2020
Between
COMPLAINANT
Mahin S., S/o. Shaji, Kizhakkevattathuputhenpura House, NGO quarters, Muvattupuzha 686661.
(Rep. by Adv. C.C. Liju, City Tower, Thodupuzha)
VS
OPPOSITE PARTIES
1. M/s Cochin Motors, Bypass Junction, Edappally, Kochi 682024. Rep. by its Manager
2. Chandras Motors, Kolenchery 682310. Rep. by its Manager Vinu
3. Shyam, Sales Executive, Chandras Motors, Kolanchery 682310
(OP No. 1 to 3 Rep. by Adv. Paul Mathew, Muvattupuzha
F I N A L O R D E R
D.B.Binu, President:
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant is working in “customer service” at Nedumbassery, Cochin International Airport. The first opposite party is a dealer selling TVS two-wheelers. The second opposite party is the sub-dealer of the first opposite party. The third opposite party is the employee of the second opposite party. The complainant approached the opposite parties for purchasing a TVS two-wheeler bike on 19.12.2019 and booked a TVS NTORQ 126 RACE EDITION and made a payment of Rs.1,000/- as advance. The complainant contended that the opposite parties agreed to deliver the Scooter on 01.01.2020. On 30.12.2019 he made the payment. The opposite parties informed the complainant that delivery was delayed due to disputes in registration procedure. The delay in delivery of the vehicle caused hardship to the complainant and the complainant prayed for return of money paid with 12% and compensation of Rs.1 Lakhs for his hardship.
2) Notice
Notice was issued from the Commission to the Opposite Parties No. 1, 2, and 3 and the opposite parties received the notice, entered appearance, and filed version.
3) Version of the Opposite Parties
The 1st opposite party is a reputed TVS two-wheeler bike dealer/ seller at Vyttila and the 2nd opposite party is a sub-dealer of the 1st opposite party and the 3rd opposite party is an employee of the 2nd opposite party. While so the complainant approached the 2nd opposite party for purchasing a TVS two-wheeler bike on 19.12.2019 and booked a TVS NTORQ125-DISC RACE bike after making a payment of Rs.1,000/-. While booking the vehicle the complainant informed the 2nd opposite party that he himself shall make arrangements for availing of the loan and shall arrange the balance amount payable to the opposite party. The 2nd opposite party informed the complainant that one week time will be required for clearing all the formalities including registration, cheque clearance, etc. from the date of full payment. The complainant expressed his consent to the above proposal.
The complainant on 31.12.2019 came to the office of the 2nd opposite party with a Demand Draft of Vijaya Bank and demanded that the delivery of the vehicle should be made to him on the very next day ie 1.1.2020. The 2nd opposite party informed the complainant that the delivery can be made only after clearing all the formalities including the uploading of details for registration on the official site of the Ministry of Road Transport and Highways- VAHAN. Immediately after receiving the payment from the complainant, the 2nd opposite party uploaded the necessary details of the purchaser/complainant in the official site of Ministry of Road Transport and Highways- VAHAN and informed the complainant to furnish Form No-20 of The Central Motor Vehicles, Rules, 1989 with address, signature, and seal of the financier. But the 2nd opposite party was surprised at the attitude of the complainant. The complainant informed the 2nd opposite party that he is busy with his work and will furnish the details only when he is free. Since the opposite parties are customer friendly and an intention to deliver the vehicle to the complainant as soon as possible the employee of the 2nd opposite party, i.e. the 3rd opposite party met the complainant in person and collected the signature of the complainant and other necessary information. When the 3rd opposite party requested the complainant to get the seal of the concerned financier to complete the legal formalities, the complainant said that he is busy with his work and he is not free and demanded the 3rd opposite party to get the seal from the Vijaya Bank-the financier of the complainant. Being customer friendly, the 3rd opposite party himself approached the bank officials and got the seal. The Bank officials intimated to the 3rd opposite party that the said Vijaya Bank and Bank of Baroda got merged and hence, now they can only provide the seal of Bank of Baroda and they can also furnish the details regarding the merger if necessary. The 3rd opposite party then immediately informed all these matters to the complainant and with his consent the details were uploaded to the VAHAN site. The uploading was not successful and the application was returned as "Hypothecation, seal and name mismatch". On enquiry it was found that the banks were merged much earlier and hence a correction was to be made in the name and details of the financier. The 2nd opposite party soon informed the complainant regarding the issue but the complainant was not ready to spend his time for clearing the issues relating to his financier and instructed the opposite parties to take necessary steps. The opposite parties then made a clarification to the RTO regarding the same through a letter dated 12.02.2020 and then uploaded all the information and completed all the legal formalities. On 13.02.2020 the opposite parties informed the complainant that the vehicle is ready for delivery. But the complainant came to take the delivery of the vehicle only after a week, after the receipt of intimation from the opposite party. The complainant used to make phone calls to the office of 2nd opposite party and harass the staff of the 2nd opposite party including their lady staff. The opposite parties never misbehaved with the complainant and it was the complainant who used to abusive words and harass the staff of the opposite party over the phone. The allegation that the vehicle booked by the complainant was sold to someone else is not true and the same is without any basis and hence denied. The chassis number and engine number of the vehicle provided in the invoice dated 31.12.2019 issued by the 1st opposite party to the complainant and the chassis number and engine number of the vehicle delivered to the complainant is the same and hence the allegation that the vehicle booked by the complainant was sold to someone else is without any basis. The allegation that the complainant agreed to deliver the vehicle on 1.1.2020 and the non-delivery of the vehicle on that date caused financial loss and mental agony to the complainant is not true and hence denied. The 1st opposite party in fact only agreed to deliver the vehicle after one week from the date of payment after completing all legal formalities. The complainant made the payment only on 31.12.2020 and the complainant does not even cooperate with the opposite parties in completing the legal formalities, including the furnishing of Form 20. The further allegation is that the since the opposite parties agreed to deliver the vehicle on 1.1.2020 the complainant sold his old scooter and due to the non-delivery of the vehicle to the complainant he could not reach his office on time and he used to travel in a taxi, autorickshaw, etc. and that he suffered financial loss in that regard is not true and hence denied. The complainant never agreed to deliver the vehicle on 1.1.2020 and if the complainant sold his old scooter before getting the delivery of the vehicle from the opposite parties, it is not the opposite party who should compensate the complainant for his personal expenses. The complainant never suffered any loss or injury as alleged in the complaint. The allegation that there is "a deficiency of service" and "unfair trade practice" by the opposite parties in not delivering the vehicle to the complainant is not true and hence denied. In fact, the opposite parties have delivered the vehicle to the complainant as agreed and hence the complaint itself is not maintainable and hence is liable to be dismissed.
3. Evidence
The complainant had produced 3 documents along with the complaint.
Exbt.A-1-. Copy of the bill received while booking the vehicle.
Exbt.A-2. Copy of the bank statement.
Exbt.A-3- Copy of the Letter received from Bank of Baroda for the issue of DD on behalf of the 1st Opposite Party.
The Opposite Parties had produced 4 documents along with the complaint. (EXHIBIT B-1 and B-4.)
Exbt.B-1-. Copy of the vehicle invoices.
Exbt.B-2-. Copy of the Policy schedule cum certificate of Insurance on 31.12.2019.
Exbt. B3- Copy of the Form 20, Application for Registration of Motor Vehicle
Exbt. B4- Copy of the letter issued to RTO, Muvattuuzha
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, the complaint was filed under section 12 (1) of the Consumer Protection Act,1986. The complainant had produced 3 documents along with the complaint. The opposite parties raised the vehicle invoice and Policy schedule cum certificate of Insurance on 31.12.2019 as evidenced by EXHIBIT B1 and B2.
The allegation in the complaint is that “there is a deficiency of service” and unfair trade practice by the opposite parties in not delivering the vehicle to the complainant. The counsel for the opposite parties submitted that the complainant had taken the delivery of the vehicle on 13.02.2020 there is no scope for the return of money and hence the 1st prayer is infructuous. The 2nd opposite party requested one week’s time for clearing registration, cheque clearance, etc from the date of full payment by the complainant but the complainant came on 31.12.2019 with a Demand Draft and demanded delivery of the vehicle on 01.01.2020. The 2nd opposite party informed that delivery can be done only after successfully clearing the uploading of registration details on the newly introduced official website of the Ministry of Road Transport and Highways-VAHAN. Immediately upon receiving payment the 2nd opposite party uploaded the necessary details and informed the complainant to furnish details of address, signature, and seal of the financer of the complainant in PM 1-12-22 Form No. 20 of the Central Motor Vehicles Rules 1989. As the complainant didn't co-operate the opposite parties for collecting signatures by visiting the complainant, the 3rd opposite party requested the complainant to get the seal of the concerned financer to complete legal formalities. As the complainant didn't co-operate, the 3rd opposite party approached the Vijaya Bank, the financier of the complainant for a seal, they informed that they can only provide a seal of the Bank of Baroda as they got merged with them. The opposite parties informed these matters to the complainant and with his consent uploaded the details to the Registration site as evidenced from EXHIBIT B3, but this was not successful and the application was returned as "Hypothecation, seal and name mismatch". On enquiry, it is known that banks merged much earlier and hence corrections need to be made in the name and details of the financer. The 2nd opposite party intimated the matter to the complainant but he had not advanced any co-operation thus the opposite parties cleared it with the RTO, Muvattupuzha through a letter dated 12.02.2020 which is marked as EXHIBIT B4. And then uploaded all the information and completed all legal formalities and delivered the vehicle. All these unforeseen procedures caused a delay of one and a half months since it was due to the non-cooperation of the complainant for the registration procedure. There was no wilful delay on the part of the opposite parties. After filing the complaint, the complainant is not prosecuting the case. The case is filed only to harass the opposite parties.
The Notice was sent to the complainant on 23.05.2022 and is seen served as per the proof of delivery of the Postal Department. The complainant is continuously absent since 23-07-2020. Hence the Commission has issued the notice to the complainant to appear and adduce evidence if any. No evidence adduced by the complainant to date. The case is posted for the evidence of the complainant. So many chances were given to the complainant to adduce evidence. No evidence was adduced by the complainant so far. The complainant is not interested to proceed further.
It is a settled position of law that the injured party has the burden of proof to show that there has been a breach of contract. In SGS India Ltd v. Dolphin International Ltd (2021 SCC On-line SC 879), it was held by the Apex Court that
The onus of proof of deficiency in service is on the complainant in the complaints of the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.”
The Complainant in this case has not provided any proof of deficiency of service in support of the allegations. Except for the averments, the complainant has failed to prove his case with sufficient documents to prove that deficiency of service occurred from the side of the opposite parties towards the complainant. There is no merit in the case and the case of the complainant is unbelievable and is liable to be dismissed and accordingly dismissed.
Pronounced in the open Commission this the 21st day of December 2022.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia T.N., Member
Forwarded/by Order
Assistant Registrar
APPENDIX
Complainant’s evidence:
Exbt.A-1-. Copy of the bill received while booking the vehicle.
Exbt.A-2. Copy of the bank statement.
Exbt.A-3- Copy of the Letter received from Bank of Baroda for the issue of DD on behalf of the 1st Opposite Party.
Opposite parties’ evidence:
Exbt.B-1-. Copy of the vehicle invoices.
Exbt.B-2-. Copy of the Policy schedule cum certificate of Insurance on 31.12.2019.
Exbt. B3- Copy of Form 20, Application for Registration of Motor Vehicle
Exbt. B4- copy of letter issued to RTO, Muvattuuzha
Despatch date:
By hand: By post
kp/
CC No. 181/2020
Order Date: 21/12/2022
