DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 28th day of February 2023.
Filed on: 01/01/2018
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 13/2018
Between
COMPLAINANT
Rayme M.P., S/o. Pappachan "Mullaparambil", South Janatha Road, Palarivattom, Kochi - 682025.
VS
OPPOSITE PARTIES
1. M/s. Derick Motors , 33/2F (New No 42/5), Civil Line Road, Padivattom, Palarivattom, Kakkanad, Kochi-682026. Represented by Its Proprietrix: Mrs Dores Rizal.
2. Mrs. Dores Rizal W/o. Habeeb Rizal, D/o. Lt. Michale L. James Residing At "Varakunil House". House No. 15/2188, Beach Road, Saudi Kochi -682002.
3. Mr. Rizal Habeeb, Manager, M/s. Derick Motors, 33/2F (New No.42/5), Civil Line Road Padivattom, Palarivattom, Kakkanad, Kochi - 682026.
Residing At: "Varakunil House, House No. 15/2188 Beach Road, Saudi, Kochi -682002
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 employed in a Private Firm in Ernakulam and the 1st Opposite Party is a proprietary concern engaged in the business as dealers of two wheelers manufactured by M/s. Yamaha Motor Corp. The 2 Opposite Party is Mrs. Dores Rizal, who is the Proprietrix of the 1st Opposite Party. The 3 Opposite Party is Mr. Rizal Habeeb, who is the husband of Mrs Dores Rizal, and is the Manager of the 1st Opposite Party. In order to meet the Complainant's personal travel needs, he approached the 1st Opposite Party on 28-02-2017 to buy a brand new "Yamaha" two-wheeler. The 2nd and 3rd Opposite Parties who were present in the office introduced themselves to the Complainant, as wife and husband and also as the Proprietrix and Manager, respectively of the 1st Opposite Party. They represented that 1st Opposite Party is the authorized dealers of two wheelers manufactured by M/s. Yamaha Motor Corp. The Complainant was keen on buying a particular model bike manufactured by M/s. Yamaha Motor Corp, namely FZ-16 with colour variant of either Black or Red. This was so because the FZ-16 Model Bike had single continuous seat as against the split seat for the other newer models. The Complainant was informed by the Opposite Parties that the FZ-16 model bike which he intended to buy was readily available with them in their go down, which was represented to be in Thripunithura. The Opposite Parties promised delivery of the vehicle within three days after receipt of the entire amounts in cash. The 2nd and 3rd Opposite Parties represented to the Complainant that the model he was looking for was in high demand and booking will be accepted only on payment of Rs.29,000/- in cash and by making the balance consideration/price of the vehicle either in cash or cheque and that the delivery would be made immediately thereafter, on receipt of the amounts. Since the Complainant was in urgent need of a 2-Wheeler and since the model he intended to buy was readily available with the Opposite Parties, believing the promise made by the Opposite Parties to deliver the bike to him on the very next day, the Complainant paid an amount of Rs.29,000/-in ready cash and another amount of Rs.60,500/- by Cheque on the same day ie 02-03-2017. The Opposite Parties insisted on making the payments in cash or else issue a cheque in the name of the 3 Opposite Party for immediate encashment to enable them to deliver the vehicle on the very next day. Believing the words of the 2nd and 3rd Opposite Parties, the Complainant issued the cheque for the balance amount of Rs.60,500/- in the name of the 3rd Opposite Party. The said amounts were immediately encashed by the Opposite Parties and the Complainant was intimated to contact them on 08-03-2017 for taking delivery of the vehicle. Accordingly, the Complainant visited the Opposite Parties on 08-03- 2017, for taking delivery of the bike. However, the bike was not delivered to him stating that the pre-delivery inspection could not be completed due to scarcity of staff in their establishment at Thripunithura and hence requested the Complainant to come on the next day i.e., 09-03-2017. The Complainant therefore had to return back without the vehicle. Thereafter the Complainant kept visiting the Opposite Parties frequently, but the vehicle was not delivered to him. Again, he approached the Opposite Parties for taking delivery on 20-03-2017, when the Opposite Parties informed him that the vehicle which was booked by the Complainant and promised to be delivered by them, cannot be delivered due to some government restrictions, which was not clearly mentioned to him. Later, the 2nd and 3rd Opposite Parties informed the Complainant that the particular model bike which the Complainant had booked was not now manufactured and made available to them by the manufacturer Yamaha as against the assurance made by them at the time of collecting the money from the Complainant for the particular bike. The Complainant was induced to pay the entire amounts as the Opposite Parties assured that the particular model Bike was readily available with them for delivery. Against the above said promise they forced the Complainant to opt for any other model which is readily available. Though the Complainant was not initially interested in any other model the 2nd Opposite Party convinced him that any other model opted by him will be delivered immediately. Since the Complainant had paid the entire amount is in advance and considering the urgent necessity, he was amenable to take another model bike from the Opposite Parties. Accordingly, the complainant requested to deliver him another model namely FZ s Version 2. Despite promising to deliver the newly opted bike, the Opposite Parties never delivered the vehicle to him. The complainant had approached the commission seeking an order directing the opposite parties to deliver to the Complainant a latest, brand new FZ-16 Model Yamaha Bike/Motorcycle with Nil Kilometer Odometer reading as booked by the Complainant or in the alternative to refund the entire amount of Rs.89,500/- paid by the Complainant with interest, to pay an amount of Rs.1,50,000/- as compensation for the Deficiency of service on the part of the Opposite parties and Rs.15,000/-as the cost of the proceedings.
2). Notices
Notices were issued from the Commission to the opposite parties. The opposite parties received the notice but did not file their versions. Consequently, the opposite parties are set ex-parte.
3). Evidence
The complainant had filed a proof affidavit and 5 documents that were marked as Exhibits-A-1- to A-5.
Exhibit A-1: True copy of the Receipt Dated 02-03-2017 for Rs.29,000/- issued by the Opposite Parties to the Complainant.
Exhibit A-2: True copy of the Receipt Dated 02-03-2017 for Rs.60,500/- issued by the Opposite Parties to the Complainant.
Exhibit A-3: Original Visiting Card of the 1st Opposite Party Stop.
Exhibit A-4: Original Computer printout of the advertisement of the Opposite Party's establishment provided in the website www.justdial.com.
Exhibit A-5: True copy of Aadhar Card bearing No.960607798749 of the Complainant, issued by Unique Identification Authority of India.
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:
As per Section 2 (1) (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant produced true copies of the Receipt Dated 02-03-2017 for Rs.29,000/- and the Receipt Dated 02-03-2017 for Rs.60,500/- issued by the Opposite Parties to the Complainant. (Exhibits A-1 and A-2). Hence, the complainant is a consumer as defined under the Consumer Protection Act,1986 (Point No. i) goes against the opposite parties.
The counsel for the complainant submitted that the Complainant therefore requested the Opposite Parties to refund the entire amounts collected from him for the vehicle with interest. To the surprise of the Complainant, the amounts paid by him was also not refunded by the Opposite Parties and the Opposite Parties kept on making excuses and sought time to return back the money. The Complainant felt some foul play and on enquiry with Yamaha, it was understood by the Complainant that the Opposite Parties are not the Company authorized dealers of M/s. Yamaha Motor Corp vehicles, as falsely represented by them but is only a retailer of 2 wheelers acting as sub-agents of other authorised dealers and that M/s. Yamaha cannot take any action against them. The Opposite Parties had knowing that the booked vehicle was not available with them and that the manufacturing of the vehicle booked by the Complainant was stopped by the manufacturer collected the entire amounts from him promising to deliver the said vehicle. The conduct of the Opposite Parties amounts to deficiency in service and unfair trade practice. The failure of the Opposite party in providing the vehicle after collecting the entire consideration from the Complainant is clear "deficiency" on their part as under Section 2(g) and Unfair Trade practice under Section 2(r) of the Consumer Protection Act, 1986 and which had caused severe hardship, mental agony, time loss and financial loss to the Complainant. In the instant case there is clear deficiency and unfair trade practice on the part of the Opposite Parties and aggrieved by the same and the inaction and indifferent conduct on the part of Opposite Parties, the Complainant has no other option but to approach this Honourable Forum, for the redressal of his grievances. The complainant also produced the original Computer printout of the advertisement of the Opposite Party's establishment provided in the website www.justdial.com(Exhibit A-4).
The commission scrutinized the receipts produced (Exhibits A-1 and A-2) by the complainant along with the complaint. F2 - 16 Black / Red is mentioned in both the receipts. These documents prove that the opposite parties have deliberately tried to deceive the complainant. It has not been proved by the opposite parties that it is false. In these circumstances, the Commission can only accept the proof affidavit and documents produced by the complainant as evidence.
We have also noticed that Notices were issued from the Commission to the opposite parties but did not file their versions. Hence the opposite parties set ex-parte. The complainant had produced 5 documents which are marked as Exbt.A-1 to A-5. All in support of his case. But the opposite parties did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to set aside the ex-prate order passed against it. It was further stated that this illegal, arbitrary and unjustified act of the Opposite Parties amounted to deficiency in service, indulgence in unfair trade practice, and caused mental agony and hardship to the complainant.
The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the opposite parties. We have no reason to disbelieve the words of the complainant. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
The Opposite Parties had inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of Opposite Parties in failing to provide the Complainant desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant.
We find the issue Nos. (II), (III) and (IV) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
i. The Opposite Parties shall refund Rs.89,500/- paid by the Complainant towards the purchase price of the16 Model Yamaha Bike/Motorcycle to the Complainant.
ii. The Opposite Parties shall pay Rs.10,000/- (Rupees ten thousand only) as compensation for the mental hurt, loss, agony and hardship caused to the complainant .
iii. The Opposite Parties shall also pay the complainant Rs.5000/- (Rupees five thousand only) towards the cost of the proceedings.
The opposite parties shall be jointly and severally liable for the above-mentioned directions which shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order.
Failing which the amount ordered vide (i) and (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt. K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission on this the 28th day of February, 2023.
Sd/-
D.B.Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exhibit A-1: True copy of the Receipt Dated 02-03-2017 for Rs.29,000/- issued by the Opposite Parties to the Complainant.
Exhibit A-2: True copy of the Receipt Dated 02-03-2017 for Rs.60,500/- issued by the Opposite Parties to the Complainant.
Exhibit A-3: Original Visiting Card of the 1st Opposite Party Stop.
Exhibit A-4: Original Computer printout of the advertisement of the Opposite Party's establishment provided in the website www.justdial.com.
Exhibit A-5: True copy of Aadhar Card bearing No.960607798749 of the Complainant, issued by Unique Identification Authority of India.
Opposite party’s evidence
Nil
Despatch date:
By hand: By post
kp/
CC No. 13/2018
Order Date: 28/02/2023
