BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 30/08/2013

Date of Order : 15/12/2014

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

C.C. No. 613/2013

Between

And

O R D E R

A. Rajesh, President.

1. The facts leading to this complaint are as follows :-

Fascinated by the assurances of the 1^st opposite party, the complainant booked a car with them on 03-04-2014 by paying Rs. 50,000/-. A proforma dated 23-04-2013 was issued to the complainant by the 1^st opposite party agreeing to deliver the car within 20 days from the date of full payment ie. the Ex-show room price of Rs. 6,32,423/-. Accordingly, the complainant availed a loan from his employer the National Insurance Company Limited and they transferred a sum of Rs. 6,25,174/- to the 1^st opposite party on 09-09-2013. Thus, paid a total amount of Rs. 6,75,174/-. However, the opposite parties failed to deliver the car as agreed. Subsequently, the 1^st opposite party sent a proforma invoice dated 15-06-2013 demanding a higher rate ex-show room amounting to Rs. 6,35,423/- against the rate of Rs. 6,32,423/- to which they are not entitled. The complainant is entitled to get refund of the entire amount with interest @ 12% p.a. The complainant is entitled to get the car as per the contract rate at the earliest together with a compensation of Rs. 1,00,000/- for the mental agony and inconveniences suffered by him together with costs of the proceedings. This complaint hence.

2. The version of the 1^st opposite party is as follows :-

'Honda amaze EMT Diesel' car of Taffeta White colour was delivered to the complainant on 20-09-2013. The complainant booked a 'Honda Amaze SMT' model car with the 1^st opposite party on 03-04-2013 and the 1^st opposite party received a sum of Rs. 50,000/- by way of booking advance. 'Honda Amaze' was launched on 13-04-2013. He was never promised of being delivered within 20 days from the date of booking. When the vehicle desired by the complainant was available with the 1^st opposite party, they informed the complainant of the same. But he could not take delivery of the vehicle because the loan amount from his principal employer, the National Insurance Company Limited was not sanctioned by them and asked the 1^st opposite party to give him more time to convince his employer and secure the amount. The 1^st opposite party had to sell that vehicle to another customer due to the complainant's inability to take delay of the same. At the instance of the complainant, the 1^st opposite party changed the variant to AMAZE Base Model ie. EMT from SMT. The 1^st opposite party accepted the request and requested him to wait until the arrival of the next shipment. At that time, without the concurrence of the 1^st opposite party transferred Rs. 6,25,174/- to the 1^st opposite party's account. The complainant as well aware that the price quoted in the proforma invoice was not final and that he would have to pay the price prevalent at the time of delivery. Ex-show room price of Honda Amaze EMT during June-July 2013 was Rs. 6,35,423/-. On receipt of the consignment, the 1^st opposite party informed the complainant to take delivery of the car. The complainant came to the show room and at that time, he saw as 'Amaze EMT' in the yard, which was booked by another customer. The complainant demanded delivery of the vehicle in the yard. The 1^st opposite party could not satisfy his demand. Finally, he took delivery of the EMT model car on 20-09-2013. There is no deficiency in service on the part of the 1^st opposite party. The complaint deserves dismissal.

3. The defense of the 2^nd and 3^rd opposite parties is as follows :-

The 1^st opposite party shares a principal to principal relationship with the 2^nd and 3^rd opposite parties. The sale and purchase transaction is between the 1^st opposite party and the customer. The 1^st opposite party received advance amount from the complainant and deliver the car to the complainant on 20-09-2013. The complainant is entitled to get the reliefs as prayed for and the complaint is liable to be dismissed.

4. The complainant was examined as PW1 and Exts. A1 to A9 were marked on his side. Neither oral nor documentary evidence was adduced by the opposite parties. Heard the learned counsel for the parties.

5. The points that arose for consideration are as follows :-

1. Whether the complainant is entitled to get a 'Honda Amaze EMT' car as per the price in proforma invoice dated 23-04-2013?

2. Whether the complainant is entitled to get interest for Rs. 6,75,174/- from 09-05-2013, till the actual delivery of the car from the opposite parties?

3. Whether the opposite parties are liable to pay a compensation of Rs. 1,00,000/- to the complainant?

6. Point No. i. :- During the proceedings in this Forum on 20-09-2013, the complainant took delivery of 'Honda Amaze EMT Diesel' car of Taffeta White Colour from the 1^st opposite party. Ext. A1 sales contract goes to show that on 03-04-2013, the complainant booked a 2013 Amaze D car of T/W with the 1^st opposite party and paid Rs. 50,000/- by way of booking amount. Thereafter, the 1^st opposite party issued Ext. A2 proforma invoice dated 23-04-2013 showing the on road price of the car as Rs. 7,08,320/-. Regarding delivery of the car, the 1^st opposite party stated in Ext. A2 as under :-

“Delivery : At COCHIN 20 days from the date of receipt of full payment subject to availability with the manufacturer. Amount paid will not carry interest. Price prevailing at

the time of delivery will be applicable.”

7. Admittedly, the complainant availed a loan from his employer and transferred an amount of Rs. 6,25,174/- to the account of the 1^st opposite party on 09-05-2013. Subsequently, the 1^st opposite party issued Ext. A3 proforma invoice dated 15-06-2013 stating the on road price as Rs. 7,11,647/-. We are of the firm view that the complainant need to pay the price of the vehicle prevailing as on the date of payment of the full price of the car. Our view is fortified by the decision rendered by the Hon'ble Apex court in Vikas Motors Ltd. Vs. Dr. P.K. Jain 1999 (6) SCC 548 (cited by the learned counsel for the complainant) The Hon'ble Apex Court held that, “The submission regarding cut-off date for delivery of vehicle, as mentioned in a letter of Maruti Udyog Limited dated 5-7-1990, does not in any way advance of strengthen the case of the appellant because it did not cast any obligation upon the respondent to ascertain its contents and pay the extra amount despite deposit of the full amount within the time prescribed and, admittedly, before the escalation of price by way of rise in excise duty. The appellant, if aggrieved, can have his grievance redressed against the manufacturer but cannot force the respondent to pay the extra amount after receipt of the full and final payment as the price of the car which was agreed to be delivered to him immediately after the receipt of the full amount. It is not disputed that the cut-off date in the instant case was 6-8-1990, admittedly before the rise of the prices of the Maruti cars.” In view of the above, the 1^st opposite party is legally entitled to collect the price of the car prevailing as on 09-05-2013 and they are bound to refund the excess price, if any collected from the complainant with interest @ 12% p.a. from 09-05-2013 till realisation.

8. Point No. ii. :- The 1^st opposite party received a sum of Rs. 50,000/- from the complainant on 03-04-2013 as regards the price of the vehicle. The 1^st opposite party could deliver the car only on 20-09-2013. In Ext. A2, the 1^st opposite party agreed to deliver the car within 20 days from the date of receipt of the full price of the car. Though the complainant remitted the full amount of the car on 09-05-2013, the 1^st opposite party delivered the car only on 20-09-2013. The above conduct of the 1^st opposite party amounts not only to unfair trade practice, but also deficiency in service on their part. The 1^st opposite party is liable to pay interest for the amount from the date of expiry of 20 days from the date of payment of the full amount till the actual date of delivery of the car. In short, the 1^st opposite party is liable to pay interest @ 12% for Rs. 6,75,174/- from 29-05-2013 till 20-09-2013. Our decision is based on the pronouncement of the Hon'ble National Consumer Disputes Redressal Commission and the Hon'ble Supreme Court in Rajiv Bal Vs. Ford India Ltd. IV (2011) CPJ 263(NC), Om Prakash Vs. Asst. Engineer, Hariana Agro Industries Corporation Ltd. & Anr. (1994) 3 SCC 504 (both cited by the learned counsel for the complainant).

9. The complainant has had to suffer mental agony and inconveniences due to the deficiency in service on the part of the 1^st opposite party, especially when apart from the oral contention of the 1^st opposite party, nothing is in black and white to prove their averments. The complainant was compelled to approach this Forum to get his grievances redressed. Compensation is called for. We think that in addition to the directions stated above a lumpsum compensation of Rs. 10,000/- is enough to abate the agony of the complainant. Ordered accordingly. We do not find any deficiency in service on the part of the 2^nd and 3^rd opposite parties.

10. In the result, we partly allow the complaint and direct as follows :-

1. The 1^st opposite party shall collect the prevailing price of the car as on 09-05-2013 from the complainant and refund the excess amount, if any with interest @ 12% p.a. from the date of receipt till realisation.

2. The 1^st opposite party shall pay interest for Rs. 6,75,174/- @ 12% p.a. from 29-05-2013 to 20-09-2013.

3. The 1^st opposite party shall also pay Rs. 10,000/- (Rupees Ten thousand only) to the complainant by way of compensation for the reasons stated above.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 15^th day of December 2014.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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