BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SHRI. P. SUDHIR                                :         PRESIDENT

SMT. SATHI. R                                   :         MEMBER

SMT. LIJU B. NAIR                            :         MEMBER

                                              C.C.No: 152/2012     Filed on 10/5/2012

                                            Dated: 30..03..2017

Complainant:

Premchand. P.R., NMC 11/58(1), Aananda Vihar, Kairali Hills, Mukkolakkal, Nedumangadu, Nedumangadu Taluk, Thiruvananthapuram – 695 541.

                    (By Adv. K.S. Gopinathan Nair)

Opposite parties:

1. Indus Motors Ltd., Cordial Towers, near St. Marys School, Pattom, Pattom Palace-P.O., Thiruvananthapuram – 695 004. Represented by its Manager.

                    (By Adv. Aboobacker. P.K)

2. Maruti Susuki India Ltd., Palam-Gurgaon Road, Gurgaon, Haryana – 122 0015. Represented by its Secretary.

This C.C having been heard on 21..02..2017, the Forum on 30..03..2017  delivered the following:

ORDER

SHRI. P. SUDHIR, PRESIDENT:

          Complainant’s case is that for his easy conveyance complainant booked a Maruthi Ritz LD1 – in the 1^st opposite party establishment. Complainant booked the above mentioned car on 19/12/2011. The car was booked based upon the promise of the 1^st opposite party will deliver the car within a week. By believing the words of the 1^st opposite party the complainant paid the invoice charge of Rs. 5,43,599/- on 22/12/2011. But the 1^st opposite party violated the promise that the car will deliver within a week. The complainant frequently visited the 1^st opposite party’s office for the delivery of the vehicle. Frequent demand and request of the complainant, the 1^st opposite party deliver the vehicle after 38 days of booking. Before delivering the vehicle that is on 28/1/2012 1^st opposite party informed the complainant that 2^nd opposite party increased the price and the complainant have to pay an additional amount of Rs. 17,201/-. The 1^st opposite party was purposefully not delivered the vehicle that the 1^st opposite party have well knowledge regarding the 2^nd opposite party’s decision to increase the price. The 1^st opposite party purposefully delayed to deliver the car bearing Engine No. chasis No. 1769761 – 364554. At the time of booking there are so many Ritz LDI cars in the yard in the custody and possession of 1^st opposite party. Based upon the knowledge that there is car in the yard 1^st opposite party promised the complainant to deliver the vehicle within a week. If the 1^st opposite party deliver the vehicle within the agreed time, the complainant was not bound to pay additional amount of Rs. 17,210/-. The act of the opposite parties 1 & 2 amounts to deficiency of service and 1^st opposite party charged excess amount from the complainant. The excess amount charged is Rs. 17,201/-. The complainant sent legal notice to the both opposite parties. The 1^st opposite party accepted the notice and not paid the excess amount charged or compensation. Instead of his payment 1^st opposite party issued a reply notice stating false and baseless contentions complainant approached this Forum for refund of excess charge collected from the complainant and for compensation.        

2. Notice sent to opposite parties. 1^st opposite party appeared and filed version and 2^nd opposite party sent version by post.

          As per the version of 1^st opposite party the contention taken is that complainant had booked a Maruti Ritz LDI car with a colour choice of chocolate colour with 1^st opposite party subject to the terms and conditions of the Order Booking Form dated 19/12/2011 issued to the complainant. On 25/12/2011 the complainant had paid Rs. 5,43,599/- towards the C Form price of the vehicle. 1^st opposite party was ready to deliver the chocolate colour vehicle before 25/12/2011. But after remitting the said payment, the complainant informed that he intended to take the vehicle with white colour. Then opposite parties had informed that the white colour is having highest demand and a lot of customers are waiting for the white colour and 1^st opposite party cannot deliver the vehicle overlooking the priority and if the complainant require white colour he wanted to wait for some more time. The complainant was informed his willingness to wait till reach his priority. The opposite party had informed the complainant to give a request in writing to change the colour and he informed that he will hand over the same when he reaches in the office of 1^st opposite party again. Though 1^st opposite party had informed the complainant that he can withdraw the amount deposited by him except the booking amount and he need to deposit the same on getting information regarding the arrival of his vehicle. Then the complainant informed that he has no objection to retain the same with us. 1^st opposite party does not collect the total price of the vehicle until the vehicle is despatched from the manufacturer because 1^st opposite party is liable to pay the price fixed by the manufacturer as on the date of invoicing. But in this case the customer did not disclose his intention to change the colour before remitting the amount and he was not  ready to get refund of the same when he informed his intention to change the colour of vehicle. The allegation that 1^st opposite party had promised to deliver the vehicle within one week is not true or correct and hence denied. Opposite parties had not given such an assurance. The tentative period given in the order booking form for delivery of chocolate colour itself was 15 days. But 1^st opposite party was ready to deliver the same when the said colour is reached and only thereafter they received the amount from the complainant. Later the complainant had made a request for change of colour as white colour which is having high demand in the car market. In the Order Booking Form the tentative period of delivery of the chocolate colour vehicle was shown as 15 days. At the time of booking itself it is stated that the period mentioned in the Order Booking Form is only a tentative period and the same may vary due to different reasons and the complainant had agreed to that he had signed the Order Booking Form after knowing that. The said fact is clearly mentioned in the terms and conditions portion (reverse side) of the Order Booking Form. 1^st opposite party never informed or assured the complainant that the white colour vehicle can be delivered in a particular period. Clause (6) of the Order Booking Form states that vehicles will be delivered strictly on the order of customer booking. Tentative delivery period given in the Order Booking Form is only indicative. Vehicle delivery is however subject to availability of vehicles. Clause 13 days “We will not be responsible for any delay in the delivery of vehicle due to any unforeseen circumstances”. Again Clause (3) says, “Prices and schemes prevailing at the time of invoicing of the vehicle will be applicable”. The said period as stated in the terms and conditions are only indicative and the dealer can deliver the vehicle only subject to the availability of the vehicle from the manufacturer as mentioned in the Order Booking Form. Moreover 1^st opposite party never given even tentative period for delivery of white colour. The complainant had changed the booking of a Maruti Ritz LDI car with 1^st opposite party with a choice of white colour which is having the high demand in the car market. The allegation that 1^st opposite party had assured that the vehicle will be delivered within one week from the date of the order is not correct. 1^st opposite party had not given such an assurance to the complainant. 1^st opposite party could not deliver the vehicle within the tentative period due to lack of availability of the vehicles from the manufacturer, especially the white colour. In the meantime, a labour strike had occurred in the company of the manufacturer and so the delivery of the vehicles was delayed due to that unforeseen circumstance. The allegation in the complainant that 1^st opposite party had breached the terms of purchase and committed unfair trade practice, delay, and collected excessive price are not true or correct and hence denied. 1^st opposite party never violated any of the terms mentioned in the terms and conditions printed on the over leaf of the Order Booking Form. At the same time the complainant had signed the Order Booking Form on 19/12/2011 after undertaking that he had read and understood the enclosed terms and conditions of booking and sale and accepted the same. Moreover complainant had submitted the request to change the colour on 21/01/2012. So he cannot now turn round and say that 1^st opposite party had violated the terms and conditions. The allegation that the complainant had paid the full payment on 19/12/2011 and opposite parties had purposefully delayed the delivery till 28/1/2012 and collected an additional amount of Rs. 17,201/- from the complainant as enhancement is not true or correct and hence denied. In fact the vehicle with chocolate colour was ready for delivery before that date but since the complainant had requested for a colour change of white, the same was not ready with 1^st opposite party and had to wait till the delivery of another lot of vehicle from the Maruti and this fact was informed to the complainant also. The complainant had paid only the C Form price at the time of booking and complainant has to pay the balance amount at the time of invoicing the vehicle which includes Registration charges, Excise duty etc. The complainant had not remitted the full payment at the time of booking as alleged by him. After booking of the vehicle the price was increased and the same was informed to the complainant. If the complainant was ready to take delivery of the chocolate colour as booked earlier, he could have purchased the same without any change of price as the said vehicle was reached before the increase of price. The complainant paid the balance amount even without raising any objection.

          3. The allegation of the complainant that 1^st opposite party had purposefully delayed the delivery of the car fully knowing the 2^nd opposite party’s decision to enhance the price of the vehicle, is not true or correct and hence denied. The complainant is liable to pay the price at the time of invoicing the vehicle as per the terms and conditions of the Order Booking Form. So the complainant is not entitled to get back the said amount of Rs. 17,201/- with or without interest. The allegation that at the time of booking there are so many Ritz LDI car in the yard in the custody and possession of 1^st opposite party and 1^st opposite party had purposefully delayed the delivery of the complainant’s car only to collect the enhanced price is untrue and without any basis and hence denied. The vehicle lying in the yard of the dealer will be awaiting the turn of the customers according to their seniority of booking on the basis of model, colour etc. Every vehicle has to be delivered to the customers on the basis of their seniority and the first colour choice was chocolate colour which could have been delivered within the tentative period of 15 days, but the complainant had subsequently requested for a colour change of white and so 1^st opposite party had to wait till the delivery of that colour from the next lot supplied by the manufacturer. The dealer cannot overlook the priority of booking of any customer. First of all there was no contract entered into between 1^st opposite party and the complainant that the car will be delivered on a particular price and on a particular date and so the complainant is liable to pay the price prevailing at the time of invoicing the vehicle as shown in the Order Booking Form, which means that there is a chance of enhancement of the price at the time of invoicing the vehicle. The complainant was free to cancel the booking and get returned the amount complainant had already paid, if according to him the price of the vehicle was excessive. But in this case the complainant had accepted the price and paid the amount and taken the vehicle without any hesitation and now he cannot turn round and say that these opposite parties have charged excess price. The complainant is liable to pay the price at the time of invoicing the vehicle as per the terms of the conditions in the Order Booking Form.

          4. Version of the 2^nd opposite party is that complaint is bad for non-joinder of party and is not maintainable against 2^nd opposite party as there is no privity of contract executed between the complainant and 1^st opposite party. The complainant has admittedly booked the vehicle in question with 1^st opposite party and entered into a sale agreement with 1^st opposite party. The complainant executed an Order Booking Form with 1^st opposite party. The complainant neither entered into any contract for sale of vehicle nor hired any service for consideration from 2^nd opposite party. The 2^nd opposite party is neither the necessary nor the proper party to be impleaded in the present complaint. The complainant has not paid alleged amount towards price of vehicle to 2^nd opposite party. That the 2^nd opposite party being manufacturer does not earmark or sell vehicles so manufactured to any individual customer directly. The answering opposite parties sells the vehicles to its authorised dealers under the Dealership Agreement against C Form under the Central Sales Tax Act. The dealers including 1^st opposite party sell the vehicles to its customers under their own invoice and sales certificate as per Motor Vehicles Act, 1988. The relationship between the opposite parties 1 & 2 are based on Principal-to-principal and is governed by the Dealership Agreement as enumerated in Clause C of recitals of the said agreement. The dealers including 1^st opposite party have no authority to represent answering opposite parties as enumerated in Clause 5 of the said Dealership Agreement. The 2^nd opposite party is not responsible for any act of omission or commission on the part of 1^st opposite party.

          3.  Issues:

(i)  Whether there is deficiency of service or unfair trade practice on the part of opposite parties?

(ii)  Whether the complainant is entitled for the relief sought for?

4. Issues (i) & (ii):    Complainant filed chief examination affidavit and Exts. P1 to P3 marked. 1^st opposite party filed chief examination affidavit and the documents produced is not according to the affidavit and 1^st opposite party not turned up to mark the documents. 1^st opposite party failed to prove the difference that complainant has made a request to change the colour and not produced any evidence to show that the white colour is having highest demand. 1^st opposite party not produced any document for delay in delivering of the vehicle. Hence we are of the opinion that we can safely conclude that complainant is entitled to get back the excess charge collected by the 1^st opposite party. 2^nd opposite party is exonerated.

In the result, complaint is allowed. 1^st opposite party is directed to return Rs. 17,200/- to complainant and to pay compensation of Rs. 5,000/- for the mental agony suffered by the complainant and Rs. 2,000/- as cost of this proceedings within one month from the date of receipt of this order, failing which Rs. 17,200/- carries interest @ 6% per annum from the date of default till realisation.  

           A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of March, 2017.

                    Sd/-P. SUDHIR             :         PRESIDENT

                              Sd/- R. SATHI                 :         MEMBER

  Ad.                        Sd/-LIJU B. NAIR          :         MEMBER

C.C.No: 152/2012

APPENDIX

  I.  Complainant’s witness                   :         N I L

II. Complainant’s documents:

P1      :  Copy of Proforma Invoice of Indus Motor Co. Pvt. Ltd to Premchand.P.R dated 20/12/2011

P2      :  Copy of Tax / vehicle Invoice of Indus Motor Co. Pvt. Ltd

P3      :  Copy of receipt of Indus Motor Co. Pvt. Ltd dated 28/01/2012

III. Opposite parties’ witness               :         N I L

 IV. Opposite parties’ documents         :         N I L

Sd/-PRESIDENT

Ad.