BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD                                        :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 413/2012 Filed on 21.11.2012

Dated: 30.06.2014

Complainant:

K. Sreekantan Nair, S/o Kunjukrishna Pillai, T.C 765/60, Kashmiram, Thiruvallam P.O, Thiruvananthapuram. 

                             (By adv. V.K. Anil Kumar)

Opposite party:

 

Indus Motor Company Pvt. Ltd., represented by its Manager (Sales), Cordial Towers, Near St. Mary School, Kesavadasapuram, Pattom P.O, Thiruvananthapuram.

 

                             (By adv. P.K. Aboobacker)

 

This C.C having been heard on 23.06.2014, the Forum on 30.06.2014 delivered the following:

ORDER

SRI. G. SIVAPRASAD:  PRESIDENT

The facts leading to filing of the complaint are that complainant had initially booked on 20.09.2012 for a Swift Dezire Maruti Suzuki car by remitting Rs. 3,000/-, that opposite party had informed the complainant that the Swift Dezire car is not available and Swift VXI Model is available for immediate delivery on payment of the entire amount, that complainant had availed a car loan from Indian Bank, Thycaud branch for the purchase of the car on the basis of the promise made by the opposite party, that complainant closed the earlier loan and he availed a loan for Suzuki Swift VXI and produced a D.D for Rs. 5,60,207/- on 30.10.2012, that the entire amount of the car has been paid by the complainant on the basis of the promise made by the opposite party that delivery of the car will be made on the next day of the payment of the entire amount.  Altogether complainant had paid an amount of Rs. 5,63,207/-, that opposite party had cheated the complainant by giving false promise of immediate delivery of the car.  Complainant has demanded the return of the entire amount with interest as he decided not to purchase the car from the opposite party.  Opposite party did not repay the amount, that opposite party had adopted unfair trade practice, that complainant sent advocate notice on 07.11.2012 demanding the repayment of the amount.  Though opposite party received the notice, they did not repay the amount.  Hence this complaint to direct opposite party to repay the entire amount remitted with 12% interest from the date of remittance till realization along with compensation and costs. 

 

Opposite party, on being served, entered appearance and filed its version contending interalia that Mini. S. Nair had booked a Maruti Swift Dzire VXI car with opposite party subject to the terms and conditions in the order booking on 20.09.2012, that at the time of booking, she had paid Rs. 3,000/- towards advance payment, later she cancelled the said booking and opted for Swift VXI car.  The allegation that opposite party had promised to deliver the vehicle immediately on payment of full amount is not true or correct and hence denied.  Opposite party had not given any such assurance as Swift VXI car was having high demand at that time and vehicle can be delivered only on the basis of seniority of booking and availability of the vehicle.  When the booking was made, there was no stock of the said vehicle and the said fact was informed to the complainant and complainant had agreed to take delivery of the vehicle when his turn comes.  The period of one month shown in the order booking is only a tentative waiting period.  It is the customer’s choice to avail loan for purchasing the car and opposite party is not aware of the terms and conditions of the said loan availed by him.  In this case Mini. S. Nair had given a demand draft for Rs. 5,60,207/-.  The amount paid by the complainant is not full price of the vehicle.  It is only ex-showroom price and complainant has to pay the balance amount at the time of invoicing the vehicle as per the terms and conditions in the order booking form.  Complainant was not prepared to cancel the booking and accept the said amount without interest.  Complainant was demanding interest at the rate of 12% more than the interest prevailing in private financial institutions.  There was no unfair trade practice from the side of the opposite party nor had opposite party given false promise to the complainant.  Hence opposite party prayed for dismissal of the complaint. 

 

Points that arise for consideration are:-

1. Whether there is unfair trade practice and deficiency in service on the part of the opposite party?

2. Whether complainant is entitled to any of the reliefs as prayed for?

    

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P6.  In rebuttal opposite party has filed proof affidavit and has marked Ext. D1.    

Points (i) & (ii):- During the pendency of the complaint, complainant had filed a petition to direct the opposite party to deposit an amount of Rs. 5,63,207/- which the complainant remitted to opposite party.  On 11.12.2012 this Forum directed opposite party to deposit the said amount before this Forum on or before 19.12.2012.  On 21.12.2012 opposite party handed over a D.D for Rs. 5,63,207/- of Federal Bank dated 19.12.2012 to complainant.  The issue herein is that initially complainant booked for Swift Dezire Maruti Suzuki car on 20.09.2012 on payment of Rs. 3,000/-.  The very case of the complainant is that he had availed a car loan from Indian Bank, Thycaud Branch for the purchase of the said car.  The specific case of the complainant is that opposite party informed the complainant that Swift car is not available but the Swift VXI model is available for immediate delivery on payment of the entire amount.  Accordingly complainant closed the earlier loan and availed a loan for Suzuki Swift VXI and produced a D.D for Rs. 5,60,207/- as D.D. No. 655875 dated 30.10.2012.  The said D.D was encashed by opposite party, but the car was not delivered by the opposite party. There is no dispute on these points.  The stand taken by the opposite party is that opposite party had not given any such assurance to deliver the vehicle immediately on payment of the full amount.  According to opposite party the vehicle can be delivered only on the basis of seniority of booking and availability of the vehicle.  When booking was made there was no enough stock of the said vehicle and complainant agreed to take delivery of the vehicle when his turn comes.  Admittedly after filing the complaint opposite party as directed by this Forum returned Rs. 5,63,207/- to the complainant by way of D.D of Federal Bank dated 19.12.2012.  If sufficient stock of the said vehicle was not available, what prompted the opposite party to insist the complainant for payment of Rs. 5,60,207/- after remittance of the booking amount of Rs. 3,000/- on 20.09.2012.  Normally opposite party would demand the vehicle price from the customer when the vehicle is available for delivery to the customer.  Herein we cannot afford to overlook the contention of the complainant that he had shifted from Maruti Swift Dezire car to Swift VXI model on assurance of the opposite party for immediate delivery on payment of the entire amount.  It is pertinent to point out that complainant had availed the vehicle loan for the purchase of the proposed vehicle.  Had opposite party not made assurance for immediate delivery of the vehicle on payment of entire amount, complainant need not have remitted the entire amount by way of D.D.  Complainant has led evidence by way of proof affidavit and Exts. P1 to P6.  Ext. P1 is the copy of the order booking/commitment check list dated 20.09.2012.  As per Ext. P1 the booked model is Swift Dezire VXI.  In the said Ext. P1 finance scheme is mentioned as finance availed from Indian Bank.  Admittedly complainant shifted from Swift Dezire Maruthi Suzuki VXI model.  No order booking for Swift VXI model is produced, thereby the implication is that there was implied assurance from the side of the opposite party for immediate delivery of Swift VXI model.  Ext. P2 is the copy of the proforma invoice dated 29.10.2012.  As per Ext. P2 ex showroom price of Maruti Suzuki Swift VXI model is Rs. 5,00,792/-, insurance comprehensive is Rs. 14,852/-, road tax Rs. 40,063/-, service charges and permanent registration Rs. 4,500/-, total amount comes to Rs. 5,60,207/-.  It may be on the basis of Ext. P2 complainant had produced D.D for Rs. 5,60,207/-.  Ext. P3 is the receipt issued by opposite party for Rs. 3,000/- on 09.12.2012.  Ext. P4 is the copy of the advocate notice dated 07.11.2012 demanding repayment of Rs. 5,63,207/- with interest and compensation.  Ext. P5 and P6 are postal receipt and acknowledgement card respectively.  Opposite party has led evidence by way of proof affidavit and Ext. D1.  Ext. D1 is nothing but the copy of Ext. P1.  It should be noted that Ext. P1 is dated 20.09.2012.  Ext. P2 is dated 29.10.2012, thereby what can be inferred is that after lodging booking order on 20.09.2012, it was on the behest of the opposite party complainant availed Ext. P2 for Swift VXI model.  The said Ext. P2 discloses the total price of Rs. 5,60,207/-.  The said amount was remitted by the complainant on 30.10.2012 with expectation that the opposite party would deliver the vehicle immediately thereafter.  The vehicle was not delivered immediately.  Subsequently complainant decided not to buy the vehicle from the opposite party.  Since original invoice was not made by the opposite party, opposite party could very well return the amount on demand.  Opposite party did not return the amount when demanded by the complainant.  So complainant issued lawyer’s notice for getting the said amount with interest and compensation.  Even after acceptance of the same opposite party did not attempt to redress the grievance of the complainant.  On 19.12.2012 opposite party returned a D.D for Rs. 5,63,207/- as ordered by this Forum.  It may be mentioned herein that from 30.10.2012 to 18.12.2012 the said amount was with the opposite party.  It should be mentioned herein that complainant had remitted the said amount on availing a vehicle loan from the bank.  Normally bank would charge interest on the loan amount irrespective of the delivery of the vehicle by the opposite party.  Opposite party has kept the said amount with themselves while complainant had to pay interest on the vehicle loan.  Had opposite party returned the amount on demand complainant could repay the same to the bank and avoid interest.  Taking the overall situation equity demands that opposite party should not only pay back the amount but also the interest thereon to the complainant.  Hence we find complainant is entitled to get interest at the rate of 8% for Rs. 5,63,207/- from 30.10.2012 to 18.12.2012.  The action of the opposite party will amount to unfair trade practice and deficiency in service for which complainant is entitled to a compensation which we fix at Rs. 5,000/-.

In the result, complaint is allowed.  Opposite party is directed to pay interest at the rate of 8% for Rs. 5,63,207/- from 30.10.2012 to 18.12.2012 along with Rs. 5,000/- as compensation.  Both parties shall bear and suffer their respective costs. 

 

 

 

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 June 2014.

 

Sd/-

G. SIVAPRASAD                   : PRESIDENT

 

          Sd/-

R. SATHI                      : MEMBER

 

          Sd/-

                                                                        LIJU B. NAIR                : MEMBER

 

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C.C. No. 413/2012

APPENDIX

 

  I      COMPLAINANT’S WITNESS:

                             NIL

 II      COMPLAINANT’S DOCUMENTS:

          P1     - Copy of order booking/commitment check list dated 20.09.2012.

P2     - Copy of proforma invoice dated 29.10.2012.

P3     - Receipt dated 09.12.2012 issued by opposite party for Rs. 3,000/-

P4     - Copy of advocate notice dated 07.11.2012.

P5     - Postal receipt

P6     - Acknowledgement card

 

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

          D1     - Copy of order booking/commitment check list dated 20.09.2012.

 

 

                                                                                                        Sd/-

PRESIDENT

 

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