IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 30th day of November 2022.
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
C C No. 200/2018 (Filed on 25-09-2018)
Petitioner : Tony Caripathu Mathew,
Caripathu (H)
Marangattupally P.O.
Kottayam - 686635
(Adv. V.R. Rajesh)
Vs.
Respondents : (1) MGF Hundayi branch
Kottayam
Rep. by its Manager,
Mr. Tony George
(Adv. P. Fazil, Adv. V.S. Sreejith,
Adv. Jayasree Manoj, Adv. Saju Thailath
and adv. Jithin Paul Varghese)
(2) MGF Motors
Rep. by Chairman & Managing
Director,
Mr. Rajiv Guptha, MGF House,
4/17, ASAF ALI Road,
New Delhi – 110002
(3) Hundayi Motors Ltd.
Rep. by its MD& CEO
Mr.Young Key Koo
2nd, 5th and 6th Floor
Corporate one Baani building,
Plot No.5, Commerical Centre
Jasola, New Delhi - 110025
(Adv. Jithin Paul Varghese)
O R D E R
Sri. Manulal V.S. President
The complainant filed consumer complaint under Section 12 of the Consumer Protection Act of 1986.
The complainant’s case is as follows:
Complainant is an NRI working in Australia for the last many years. The complainant wanted to buy a Hundyai Creta model SUV. Enquiries were made by his wife and his brother in law with first opposite party in July 2016. The complainant was scheduled to come to Kerala on 8-9-2016 so he wanted to get the vehicle on that day. This was specifically made clear to the first opposite party. The first opposite party agreed to have the vehicle delivered on that date. So, on July 18, 2016, the complainant booked a vehicle from the first opposite party and paid an advance booking fee of Rs.25,000/- to the first opposite party, who is the authorised dealer of the third opposite party. A sum of Rs.14,02,419/- was paid by the complainant to the first opposite party’s bank account, which was the total cost of the vehicle. The complainant obtained a loan from the SBT Marngattupally branch for Rs.11,50,000/- out of this total amount. The complainant reached Kerala on 8-9-16, but the first opposite party could not deliver the vehicle on that day, they said one or other excuses. Finally, on September 19, 2016, the car was delivered. As the complainant had pre–arranged program from 9-9-2016 to 18-9-2016 he had to hire a taxi and paid a sum of Rs.19,500/- as taxi fair , besides he had to pay bank interest for the car loan amount. The act of the opposite parties in not delivering the car as promised, amounts to deficiency in service, and the opposite parties are liable to compensate the complainant for the same. As a result, the complainant filed this complaint, requesting an order directing the opposite party to pay Rs.19,500/- and interest on Rs.11,50,000/- at 9.85% from September 8, 2016 to September 19, 2016.In addition, the complainant sought relief to the effect that the opposite parties be directed to pay compensation to the complainant to the tune of Rs.25000/-.
Upon notice, the first and third opposite parties appeared before the commission and filed separate versions. Despite receiving notice, the second opposite party failed to appear before the commission and file a version. Hence the second opposite party set-exparty.
Per contra version filed on behalf of opposite party No.1 pleaded therein that complainant is not a consumer within the purview of the consumer protection Act 1986. The complaint is filed beyond the limitation period.
The complainant booked the said vehicle on 18-7-2016 and the vehicle was allotted without any delay to the complainant. However, when the representatives of this opposite party contacted the complainant, he informed them that he didn’t want the vehicle immediately as he was abroad, and he requested the first opposite party place the order in the next allotment. Unfortunately, there was a delay in allotting the vehicle in the second stage, and the vehicle reached the first opposite party only on 12-9-2016 and due to the Onam holidays in between, this opposite party couldn’t complete the process for a temporary permit. Understanding the need of the complainant, the first opposite party had offered him a courtesy car for his daily use but the complainant was not ready to accept the offer, stating that he could not take responsibility in case of any damage from his side for the courtesy car. The next working day was on 17-9-2018 and the temporary permit was taken on the same day and the car was delivered on 18-9-2019. There is no deficiency in service on the part of the first opposite party, and the complainant is not entitled to any relief.
Third opposite party filed version as follows:
The complainant has no cause of action against the opposite party No.2. It is pleaded that booking of vehicle in question was not done by opposite party No.2. It is further pleaded that contract between manufacturer and dealer is on the concept of principal to principal basis. Errors or omissions, if any, at the time of serving the car are the sole responsibility of the concerned dealer. The liability of the third opposite party, the manufacturer is limited and extends to its warranty obligations alone. The cars are purchased by the concerned dealers, such as the first opposite party, from the third opposite party against payment, and thereafter, the purchased cars are sold by the dealer to the customers under a sale invoice. The title of the ‘Hyundai vehicle’ passes on to the concerned dealer, the moment it is put on a common carrier. It is submitted in the version that there are no allegations raised against the third opposite party, and the third opposite party is not liable to compensate the complainant.
Evidence of this case consists of the depositions of Pw1 and Pw2 and exhibits A1 to A9. Ansar P.V. who is the Sales Manager of the first opposite party filed proof affidavit in lieu chief examination from the side of contesting opposite parties and marked exhibit B1.
Following points arise for determination in present complaint.
1. Whether the complaint is maintainable?
2. Whether the delay in delivery of vehicle in question by dealer after receiving consideration amount is deficiency in service on the part of opposite parties?
3. Final order.
Findings upon point No.1 with reasons:
There is no dispute on the fact that the complainant had booked a Hundyai Creta model SUV from the first opposite party on 18-7-2016 and paid an advance booking amount of Rs.25,000/- to the first opposite party who is the authorised dealer of the third opposite party. A sum of Rs.14,02,419/- was paid by the complainant to the first opposite party’s bank account, being the total cost of the vehicle.
Exhibit A1 is the order booking form. Exhibit A2 is the receipt issued by the first opposite party to the complainant on 18-7-2016 for an amount of Rs.25,000/- against the booking advance of Creta SX +16 (p) White in the name of the complainant. Thus, we are of the opinion that the complainant is consumer of the first and third opposite parties. Another contention of the first opposite party is that the complaint is barred by limitation. The complaint is filed by the complainant on 25-9-2018. The complainant’s case is that the first and third opposing parties offered to deliver the car on September 18, 2016, but the vehicle was delivered on September 19, 2016.We can see from the records that the complainant filed the complaint on September 25, 2018.Thus complaint must be filed before 19-9-2018. As per section 24A of the Consumer Protection Act 1986, the District Forum, the State Commission, or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. A review of the records reveals that there was a seven -day delay in filing this complaint. Ongoing through the affidavit filed along with the petition, we are of the opinion that the complainant has stated sufficient reason to condone the delay caused in filing this complaint. Moreover, the delay caused in filing this complaint is negligible, and the Consumer Protection Act is benevolent legislation. Thus, we find point number one in favour of the complainant.
Point number 2
Jobin Abraham who is the power of attorney holder of the complainant filed proof affidavit and was examined as PW1. He deposed before the commission that the complainant had booked a Hundyai Creta model SUV from the first opposite party on 18-7-2016 who is authorised dealer to sell the vehicle in question, and paid an advance booking amount to the tune of Rs.25,000/-. He further deposed that consideration amount to the tune of 14,02,419 was paid by the complainant to the first opposite party bank account being the total cost of the vehicle.
It is proved by Exhibit A3 that Rs.14,02,419/- was credited to the first opposite party’s bank account from the Marangattupaaly Branch of SBT from where the complainant had availed the loan assistance to purchase the car. The specific case of the complainant is that opposite party No.1 assured him that
delivery of the vehicle in question would be given on 8-9-2016 but the same was delivered on 19-9-2016.
Opposite party No.1 contended that the vehicle was allotted without any delay to the complainant. However, when the representatives of the opposite party contacted the complainant, he informed them that he didn’t want the vehicle immediately as he was abroad, and he requested the first opposite party to place the order in the next allotment. The first opposite party submitted in version as well as proof affidavit that there was a delay in allotting the vehicle in the second stage and the vehicle arrived only on September 12, 2016, and that due to the Onam holidays in between, the first opposing party was unable to complete the process for temporary registration. According to the first opposite party, the temporary permit was obtained on September 17, 2016, i.e. the next working day, and the vehicle was delivered to the complainant on September 18, 2019.
However, exhibit A4, which is the insurance cover note issued by the United Insurance Company, proves that the said policy cover was issued on 8-9-2016. On an examination of exhibit A4 cover note and exhibit A5 sale certificate, we can see that in both documents, the engine number and chassis number of the vehicle are recorded as G4FGGu887552 and MALC381CLGM154874. Thus, we cannot accept the contention of the first opposite party that they have received he vehicle only on 12-9-2016.
On perusal of exhibit A1, which is a carbon copy of the order booking form issued by the first opposite party we can see that on the top corner of the document there is an endorsement as ‘delivery date as Sep: 8, 2016.’. Thus, it is clear that the first opposite party has promised to deliver the vehicle on 8-9-2016. It is the bounden duty of the first opposite party to retain the vehicle with them for delivery on 8-9-2016 to the complainant.
Furthermore, the first opposing party fails to disclose the date on which the vehicle was assigned to the complainant in either the version or the proof affidavit, as they contend. Opposite party No. 1 did not adduce any evidence to show that a courtesy vehicle was offered to the complainant, and that no assurance was given to the complainant to the effect that the vehicle in question would be delivered on 8-9-2016 after payment of the advance booking consideration amount.
According to Section 2(1)(g) of the Consumer Protection Act 1986, deficiency is any sort of fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner which is obligatory to be maintained and regulated as per the laws and statutes in function or any agreement/contract claimed by the seller, with respect to any service.
Therefore, we are of the opinion that non delivery of vehicle in question as promised after receiving booking amount to the tune of Rs.25,000/-(Twenty Five thousand) amounts to deficiency in service on the part of opposite party No.1.
It is contended by opposite party No. 3, i.e., the manufacturer, that there was no privity of contract between the complainant and the manufacturer and the complainant did not pay any consideration amount to the manufacturer directly, and when there is a delay of delivery of vehicle, the manufacturer company is not liable but only the dealer is liable, as is decided accordingly. The Hon’ble National Consumer Commission held in the case reported in 2009(II) CPJ 295 NC titled Maruti Udyog Ltd. Versus Nagender Prasad Sinha & Anr. that if there is a delay in delivery of a vehicle, liability is of the authorised dealer only and not of the manufacturer in view of the dealership agreement between the dealer and the manufacturer executed on the concept of ‘principal to principal’. In view of above stated facts, point No. 2 is decided accordingly.
Pw2, the driver of the vehicle with the registration number KL 35 A 9554, deposed that he issued Exhibit A6 bills to the complainant for Rs.19,500/- towards the taxi owed by the complainant between September 13 and August 17, 2016. The complainant has a specific case in this complaint and proof affidavit is that he had to hire the taxi for a period from 09-09-2016 to 18-09-2016. But Ext.A6 series do not corroborate the case of the complainant.
No doubt due to the deficiency in service committed by the first opposite party the complainant suffered much mental agony , loss and hardship for which the first opposite party is liable to compensate . On the basis of the above discussed evidence, we are of the opinion that the complainant has succeeded in proving his case and the complaint is to be allowed. Thus, we allow this complaint and pass the following order.
- We hereby direct the first opposite party to pay Rs.25,000/- as compensation for the deficiency in service on the part of the first opposite party.
Order shall be complied within 30 days from the date of receipt of copy of this Order. If not complied as directed, the amount shall carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 30th day of November, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – Jobin Abraham
Pw2 – Joby K. Boby
Exhibits marked from the side of complainant
A1 – carbon copy of order booking form
A2 – Copy of receipt for Rs.25,000/- dtd.18-07-16
A3-Copy of letter issued by SBT to opposite party
A4 – Copy of insurance certificate issued by United India Insurance
A5- Photocopy of sales certificate by MGF Motors
A6-Taxi bill (3 nos.)
A7- Copy of complaint filed before the CDRF, Kottayam
A8 series – Postal receipts (3nos,)
A9-Power of attorney
Exhibits marked from the side of opposite party
B1 – Authorisation letter
B2 – Copy of dealership agreement
By Order
Sd/-
Assistant Registrar
