Date of Filing: 10-02-2016

                                                                                         Date of Order:29 -05-2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD

P r e s e n t­

HON’BLE Sri P.VIJENDER, B.Sc. L.L.B.  PRESIDENT.

HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER

Wednesday, the  29^th day of May, 2019

C.C.No.92 /2016

Between

K.Naveen Kumar Reddy,

S/o.K.Krishna Reddy

H.No.1-9-295/32/5/1, #405,

Sai Mohan enclave, Vidya nagar,

Hyderabad -44 Ph.9885441172                                                     ……Complainant

And

1. NEXA VARUN MOTORS PVT.LTD

Head office : 1-10-177, Varun towers,

Begumpet, Hyd-16 Ph 040-44607676,

Rep. by Mr.V.Prabhu Kishore,

Owner of Varun group

2. NEXA VARUN MOTORS PVT.LTD

D.No.8-2-120/117/A/2, plot No.83,

Road No.2, Opp KBR Park,

Near Jubilee hills cheak post,

Hyderabad -34, ph:040-49005900,

Rep.  by Mr.Susheel,

G.M.Varun Motors, Ph 9885447055                         ….Opposite Parties

Counsel for the complainant                      :  Party in person

Counsel for the opposite Parties                :  M/s. Indus Law Firm

.                      

O R D E R

(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)

            This complaint  has been  preferred under Section 12 of C.P. Act of 1986 alleging that the  opposite parties collected excess amount of Rs.11,000/- for the  car purchased  by  the  complainant  and thereby caused mental agony and inconvenience, hence  to award  a compensation of Rs.3.7 Lakhs  and refund the excess amount of Rs.11,000/- with interest and the cost of this complaint at Rs.25,000/-.

1. Complainant’s case in brief is that  he booked  the Balino car on 11-11-2015 and paid  a sum of Rs.11,000/- by way of cheque drawn on Allhabad bank , Himayatnagar branch and same was presented for  encashment  by the  opposite parties  on 16-11-2015. At the time of booking of the car the opposite parties   promised to deliver the car within six to eight  weeks time but they have  taken 12 weeks time to deliver it  that too after regular follow up by the complainant. Before delivery of the car and after booking of  the same by the complainant  the opposite parties   have increased  the price of the car for four times. When he  booked  the car  on road price was Rs.8,24,149/- but they have  collected Rs.8,29,541/-.  

                The complainant approached  IndusInd Bank to finance  for the purchase of the  car but the opposite parties    insisted  to take finance from Axis bank and because of that he lost  of Rs.5,000/- as processing and documentation fee  paid too IndusInd bank.  On 28-1-2016 the complainant received a call from the opposite parties   informed that  the car  is ready to deliver to him by  afternoon  time on the same day.  Hence the  complainant went to the  opposite parties   show room   and paid entire price of the car but even then he was made to sit in the show room  till 8.30P.M and told that they were unable to deliver the car on the same day and he will be called later.   Thus the  complainant  lost  several working  days from the date of booking of the car from  the date of delivery of the same to  him and it happened on  account of negligence of the  opposite parties.  Finally on  3-2-2016 one week after payment of the entire cost of the car it was delivered to him and it shows negligence on the part of the opposite parties   towards  customers. 

             The opposite parties   on 3-2-2016 collected a sum of Rs.11,000/- though  he paid entire cost of the vehicle.   One week before  that he was informed  by the opposite parties that Rs.11,000/- is liable to pay towards  advance once again because  the cheque given by him  earlier was not credited into their account.  The attempts  of the complainant  to explain  about payment of booking   advance  on the date of  booking of the car itself were resulted in vain.  Thus at 9.00PM he was constrained to pay Rs.11,000/- by using his  debit card.  The complainant  kept the   amount of Rs.11,000/- for booking of flight tickets  on the next day to travel to Delhi for his personal work  but because of  insistence on the part of  opposite parties   to  pay of Rs.11,000/- he  could not book the flight tickets and later he booked the tickets on 8-2-2016 for which he  incurred  additional expenditure  of  Rs.6,500/-.   For  about three months  the complainant suffered  a lot because of the negligent and irresponsible  attitude of the opposite parties.  Hence the present complaint. 

2. A common written version   has been filed  for both the opposite parties   admitting about  the booking  of  Maruti Suzuki Baleno 1.3 Delta  on 11-11-2015 but denied the  rest of the  complainant’s version.  The defense  of the opposite parties   in the written version  is that NEXA Varun Motors Pvt.Ltd is not a  legal entity  and no order can be passed against it.  It is only brand name of the product  thus the complainant  has not  made  proper  and necessary  party to the complaint.  Maruti Suzuki India .Ltd is manufacturer of  the cars  including one booked by the complainant but the said company is not made as party  though  the necessary  and on this ground  also complaint is  not maintainable.  The opposite parties   are only authorized  dealers of  Maruti Suzuki India Ltd and except implementing  the directives of said company they have no control on the pricing of the  vehicles manufactured by said company. 

           Varun Motors Pvt.Ltd  is the authorized  dealer of Maruti Suzuki India .Ltd and conducting  the business operations under the brand name NEXA.  On 11-11-2015 complainant after due deliberations  decided to purchase  Baleno 1.3 Delta White or Grey colour  vehicle   and on the same  day  the  personnel of Varun Motors  Pvt.Ltd informed the complainant  that the delivery of the car will take 8  to 12 weeks  from the date of booking  and the price also may vary  according to  the norms of  the  manufacturer  and said fact  is also  mentioned in the price list  furnished to the complainant  at the time of booking of the car.  Complainant delivered a cheque for Rs.11,000/- drawn on Allahabad bank  on 11-11-2015 and same was  acknowledged by way of receipt  by opposite parties but due to in advertence  the receipt was issued in the name  of  one Mr.Vijaya Prakash Reddy who is   another customer  of Baleno vehicle.  Even the complainant  also did not notice  the said mistake.  Accounts Department  has credited  the cheque given by complainant for Rs.11,000/- to the account of Mr.Vijaya Prakash Reddy.  Thereafter   the personnel  of Varun Motors Pvt.Ltd themselves   noticed about the error   occurred  and same was informed to the complainant  explaining  account process of Varun Motors Pvt.Ltd and the complainant  was requested to pay Rs.11,000/- so as to  credit the amount  to his account  and the  amount of Rs.11,000/- paid by the complainant  on the date of booking  will be refunded to him by RTGS and was  requested to furnish account details.  The complainant  understood   the bonafide mistake on the part  of the Varun Motors Pvt.Ltd  and volunteered  immediately  to pay the  amount of Rs.11,000/-  through his debit card.  He further  informed  that Varun Motors Pvt.Ltd need  not refund the amount and  he will utilize the said  amount for the purchase of accessories  or for an extended  warranty  which would be   approximately  worth of Rs.10,000/- while taking  delivery of the vehicle .  Accordingly   the receipt  was issued to the  complainant on  03-02-2016. 

             The complainant approached   Axis Bank for loan of  Rs.4,24,000/- and same was disbursed  after deducting  processing and stamp duty fee on 02-02-2016 and the balance amount of Rs.1,00,000/- was paid by the complainant on 23-01-2016 by way of a cash.  He also paid a sum of  Rs.3,00,660/- for  which a   separate  receipt was issued to him on 28-1-2016 and after receiving  the total amount of Rs.8,26,775/- the car  was delivered to the possession of the complainant on 3-2-2016. 

         By the date of the delivery of the car    there was increase in the price of it by Rs.5,401/- and complainant was quite  aware of it.  The  complainant without  any protest  paid the increased price of the car at the time of  delivery.  The complainant was  quiet aware of  the fact about the likelihood  of price variation  at the time of booking of the car itself.  The complainant cannot  attribute  that rising the price of the car was  at the instance of the Varun Motors Pvt.Ltd.  The  increasing the price of the car during intervening  period was on account of  increasing  the price  of the cars by the manufacturer M/s. Maruti Suzuki India Ltd and the opposite parties  have no say in it.  Increased price  of Rs.5,401//- has  been  credited into account of manufacturer  but not into the account of  Varun Motors Pvt.Ltd.

       After taking delivery of the car  the complainant got certain  accessories and when he was reminded about the  extended warranty  he replied that he was happy  with Varun Motors Pvt.Ltd for providing  him car with the  color of his choice  at the last  minute  and  he would  decide about  taking the extended  warranty  and would come back at a later stage. 

         There was no negligence on the part of the Varun Motors Pvt.Ltd in  effecting  delivery of the car.  The  subject car was in huge demand  and for the same reason  the complainant was  informed that  waiting  period   for delivery  of the car    was ranging from  8 to 12 weeks.  If really  complainant had several issues to be sorted out he would  not have collected the vehicle.   While taking delivery   of car the complainant did not  register  any protest either for the delay or for payment of amount  in excess, hence he is estopped  now to raise  any  issue.  The complainant    obtained loan   from Axis bank as per his own choice and there was no involvement  on the part of  Varun Motors Pvt.Ltd.  There was no privity of contract either  with the  complainant or with  financial institutions  for the opposite parties  for availment of the loan by the   customers of the  opposite parties. 

         Initially  the complainant  preferred white or grey colour to the vehicle  and later he requested for Urban blue color.  When the said colour was ready for delivery  complainant  raised the issue stating that he did  not like  the colour and insisted  to handover    the Silver coloured car.  Since  the said coloured car was not ready the complainant was  asked to come on 03-02-2016 for arranging  his choice coloured car.  The last minute  change about the  color of the car was complied with great difficult.  Even then the complainant  instead of  appreciating  efforts of Varun Motors  Pvt.Ltd for delivering his choice  colored  car attributing  negligence  and carelessness.  At no point of time  there was a demand  from the complainant  for payment  of earlier  advance amount of Rs.11,000/-.  But  after noticing  the allegations  made in the complaint  Varun Motors Pvt.Ltd understood the schematic attack  of the complainant  for a wrongful  gain hence they issued a cheque bearing No.151310  for Rs.11,000/- and same   has dispatched  to him to his postal address, hence  nothing  is due  now to the complainant from Varun Motors Pvt.Ltd.

         Regarding the claim of the complainant  that he kept  the money to book flight tickets on the next day because of  payment of excess amount of Rs.6,500/- to the Varun  Motors Pvt.Ltd he could not book the tickets  and subsequent  booking resulted  in  excess  cost  are all  baseless.  Also the claim of the complainant that he lost several working days on account of negligence   of the opposite party  personnel   and entitled  for the compensation are all false.  Hence the complaint is liable to be dismissed with exemplary costs. 

          In the enquiry stage the complainant has got  filed his evidence affidavit reiterating the  material  facts  of the complaint and to support the same got exhibited  Ten  (10) documents.  For the  Opposite Parties  evidence affidavit  of  their General Manager  is got filed and the substance of the said evidence affidavit  is in line with the defense taken   in the written  version. The opposite parties also got exhibited Five (5) documents.  Complainant submitted written arguments also. Both sides made oral submissions. 

            On a consideration of material available on the record the following points have emerged for consideration .        

1. Whether   the complainant could make out a case of either deficiency of service   or unfair trade practice on the part of the opposite parties?
2. Whether the complainant is entitled for the amounts claimed in the complaint?
3. To what relief?

Point No.1:  Booking of  subject car by the complainant  on 11-11-2015 paying an advance amount of Rs.11,000/- by  a cheque drawn on Allahabad Bank and encashing  of the said cheque  are not in dispute.  The main allegation of the complainant is at the time of booking of the car he was informed by the personnel of the opposite parties  that the   car will be delivered  in about  six  (6) to eight (8) weeks   time. But   this claim of  him is being denied by the   opposite parties.  Though  the complainant  could exhibit  as many as 10 documents  in  none of the document   there is  a mention  that the car booked by  the complainant  will be delivered within six to eight weeks  time.  In the light of the specific   plea of the opposite parties that they never made a promise to the complainant that the booked vehicle will be delivered  within a span of six (6) to eight (8) weeks  because  of   heavy  demand for this class of vehicle  he was informed  that it will take  10 to 12 weeks time,  it is incumbent upon the complainant  to  substantiate   his claim that   a  promise was made to him that the car booked  by him will be delivered within six  to eight weeks time but he miserably failed  on this scope.  

             The   second allegation of the complainant  is the opposite parties  have increased price of the subject car  for  four times from the date of booking of the car to the date of deliver and  an amount of Rs.5,401/- was collected extra.   Admittedly  the opposite parties  are only dealers  of  Maruthi Suzuki India .Ltd the manufacturer of the subject car and they will have no control over the price of the product.  As per Ex.A4 price list of  the cars manufactured  by Maruthi Suzuki India Ltd  the vehicle  price/scheme  prevailing  at the time of invoicing shall be applicable. The same fact is also mentioned  in Ex.A5 and admittedly both Ex.A4 and A5 were furnished by the opposite parties  to the complainant  and they are not denying the  terms and conditions  stipulated  in this price list.

          At the time of booking of the car rate was not fixed.  The invoicing of the product is at the time of delivery after payment of entire cost of the product. In the light off this specific clause the complainant cannot allege that the opposite parties have increased the price of the cars  after booking of the same by him cannot sustain.  It is not the case of the complainant that the price list in Ex.A4 and A5 were not delivered to him on the date of booking of the car.  Hence the complainant cannot allege  that he is liable to pay only the price  which was prevailing  as on the date of booking of the car  as such  this  allegation  of the complainant  also has no legs to stand. 

           Now coming to the aspect  collecting of Rs.11,000/- again at the time of delivery  of the car is concerned the opposite parties have clearly  explained that the cheque  of Rs.11,000/- drawn on  Allahabad  Bank  delivered  by him was in advertantly   credited  into the  account of the  another customer by name  Mr. Vijaya  Prakash Reddy who also booked same Baleno car and they have issued a receipt to the  complainant  mentioning the name of Mr. Vijaya Prakash Reddy but the complainant  also did not  notice  this mistake.  These facts  as stated by the opposite parties  in the written version  are not denied by the complainant in his evidence affidavit.  So it goes to show that  the  opposite parties   have not deliberately  credited the said amount into the account of another customer.  When a receipt was delivered to the complainant he  ought to have gone through  then he could  have  noticed  mentioning  of  a 3^rd party name instead of his.  So there was  mistake on the part of  the   both the parties.  It is also categorically  stated by the opposite parties that when the fact of refunding of Rs.11,000/- was brought to his  notice he   advised them not to refund  as he will purchase accessories  which fact  has  is also not denied  by the complainant in his evidence  affidavit.   So having asked the opposite parties  to retain the  amount  for the  purchase of accessories  by him worth of  Rs.10,000 and odd  it is not open  to the complainant  to allege that  the opposite parties  deliberately  retained  of Rs..11,000/-  after collecting  the same earlier.  It  is specifically  mentioned by the opposite  parties in the written version  that   having seen  the complaint  and allegation of the complainant with regard to collecting of Rrs.11,000/-   immediately  they prepared a cheque for Rs. 11,000/-  and dispatched  to the complainant’s postal address but nowhere it is mentioned by the complainant  that he did not  receive the said cheque  and not encashed  it.  For a  bonafide mistake  of  crediting the amount in the name of the other customer  the complainant cannot claim a compensation.  Thus this allegation  made by the complainant is no force to sustain.  Complainant failed  to substantiate    any of the  allegations  made against the opposite parties and thereby could not make  out a case of either unfair trade practice  or deficiency of service on the part  of the opposite parties.    Accordingly point is answered in favour of the opposite parties and against the complainant.

Point No.2:   In view of the  complainant’s failure to substantiate  his allegations he is not entitled for any of the amounts claimed in the complaint.

Point No.3: In the result, the complaint is dismissed without costs.

                        Dictated to steno, transcribed and typed by her, pronounced  by us on this the  29^th  day of May , 2019

MEMBER                                                                                            PRESIDENT

APPENDIX OF EVIDENCE

Exs. filed on behalf of the Complainant:

Ex.A1- Mandate form

Ex.A2-delivery challan

Ex.A3- Price W.E.F.23^rd January, 2016 issued by Varun Motors Pvt.Ltd

Ex.A4- Price W.E.F.18^th November, 2015 issued by Varun Motors Pvt.Ltd

Ex.A5- Price W.E.F.18^th  January, 2016 issued by Varun Motors Pvt.Ltd

Ex.A6- copy of cheque  for Rs.11,000/-

Ex.A7- receipts (2) issued by Varun Motors

Ex.A8- Bank Statement

Ex.A9-Air tickets bill

Ex.A10 -Air tickets to Delhi

Exs. filed on behalf of the Opposite party  

Ex.B1- customer history card

Ex.B2-receipt

Ex.B3 receipt

Ex.B4 ledger account

MEMBER                                                                                            PRESIDENT