BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 13/2012 Filed on 11.01.2012
Dated : 30.11.2012
Complainant :
P. Krishnan Nair, T.C 29/830(1), Sarika, Palkulangara, Vallakkadavu P.O, Thiruvananthapuram-8.
(Party in person)
Opposite parties :
Senior Sales Manager, Cordial Towers, Indus Motors, Pattom, Thiruvananthapuram.
(By adv. P.K. Aboobacker for OP 1 & 3))
M/s Maruti Udyog Limited, New Delhi.
M/s Indus Motors Co. Pvt. Ltd. Cordial Towers, Pattom P.O, Thiruvananthapuram-4.
This O.P having been heard on 30.10.2012, the Forum on 30.11.2012 delivered the following :
ORDER
SMT. S.K. SREELA, MEMBER
The case of the complainant is as follows: Complainant had booked for a Maruti SX 4 VDI (M) on 26.08.2011 by paying an amount of Rs. 50,000/-. The total amount, including tax, registration etc. of the vehicle on that day was Rs. 8,67,416/-. Though the delivery date was mentioned as 26.09.2011, the same was not made available on that day. On enquiry, they assured that the vehicle will be delivered immediately. That on 10.11.2011, complainant was informed that the vehicle has arrived and was asked to remit the entire payment deducting the advance amount and accordingly, complainant on 10.10.2011 remitted Rs. 8,60,000/-. But the opposite parties did not deliver the vehicle till 15.11.2011 and on that day over phone informed the complainant that from that day onward the price of the vehicle has been increased by Rs. 10,000/- and told that the vehicle will not be sent for registration unless the said amount is paid. This according to the complainant is illegal. Hence this complaint for refund of excess amount collected along with compensation and costs.
Opposite parties 1 & 3 have filed their joint version contending as follows: The complaint is not maintainable in law and facts. That the complainant had booked a Maruti SX 4 VDI car with these opposite parties as per the terms and conditions of the Order Booking form dated 26.08.2011 issued to the complainant. The said transaction was as per the terms and conditions of Order Booking form issued to the complainant. At the time of booking, the complainant had paid Rs. 50,000/- towards the advance payment for booking. The allegation that these opposite parties had promised to deliver the vehicle within 26.09.2011 is not true or correct and hence denied. 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 very due to different reasons and the complainant had agreed to that and he had signed the order booking form after knowing that. These opposite parties had never assured the complainant that they will deliver the car on 26.09.2011 or any specified date. These opposite parties could not deliver the vehicle within the tentative period shown in the order booking form only due to lack of supply of vehicles by the manufacturer. The complaint that these opposite parties had breached the terms of purchase and committed unfair trade practice, delay and collected excessive price are absolutely false and unsustainable. These opposite parties had never violated any of the terms mentioned in the terms and conditions printed on the over leaf of the order booking form. The allegation that the complainant had paid the full payment on 10.11.2011 and these opposite parties had purposefully delayed the registration till 15.11.2011 and told that the vehicle price was enhanced from 15.11.2011 onwards and insisted the complainant to pay the enhanced price of Rs. 10,000/- are not true or correct and hence denied. In fact the vehicle was ready for delivery before 10.11.2011 and this fact was informed to the complainant, but he had not remitted the full payment as alleged. After booking the vehicle the price was increased and the same was informed to the customer. But he did not pay the full payment till 15.11.2011. There was a shortage of Rs. 8,000/- from the complainant on 11.11.2011 and the same was informed to the complainant but he demanded some more time to make the said payment. Then these opposite parties had informed the complainant that without receiving the entire payment these opposite parties cannot invoice the vehicle and without invoicing the same these opposite parties cannot hold the vehicle. But complainant did not make the payment till 15.11.2011. But in the meanwhile the price of the vehicle was again increased. Then these opposite parties informed the customer that since the vehicle was not invoiced due to the non-payment of the total price of the vehicle, he has to pay the increased amount of Rs. 10,000/- also. Accordingly the complainant paid the amount even without raising any objection. These opposite parties had issued receipts for every payments made by the complainant. The contra allegations are not true or correct and hence denied. The price of the vehicle was enhanced before invoicing the vehicle and this fact was informed to the complainant. The complainant had not paid the full price of the vehicle on 10.11.2011. The complainant is entitled to pay the price at the time of invoicing the vehicle. The allegation of the complainant that these opposite parties had collected the full price of the vehicle before delivering the vehicle and kept the vehicle in the go down waiting the price hike is absolutely false. No loss had been sustained by the complainant as stated in the complaint. No mental agony had been caused to the complainant and the same had been mentioned only for the purpose of this case. Complainant is not entitled for any relief sought for in the complaint.
2nd opposite party in their version contended as follows: That the complainant is not a consumer under Sec. 2(1)(d) of the Consumer Protection Act, 1986. That the present complaint is bad for misjoinder of party and is not maintainable against 2nd opposite party as there is no privity of contract executed between the complainant and 1st opposite party or 3rd opposite party. That the 2nd opposite party being manufacturer does not earmark or sell vehicles so manufactured to any individual customer directly. The relationship between 2nd and 3rd opposite parties are based on principal to principal and is governed by the Dealership Agreement as enumerated in Clause C of recitals of the said agreement. That the 2nd opposite party has not committed any deficiency in service or unfair trade practice as defined under the Act. The complainant has executed an order booking dated 22.03.2011 form with the 3rd opposite party. The complainant has not paid alleged amount to 2nd opposite party. The entire alleged sale transaction has taken place between the complainant and 3rd opposite party and the 2nd opposite party is not privity of the alleged sale contract. 2nd opposite party is not liable for any act of omission of commission on the part of opposite parties 1 or 3. It is denied that the 2nd opposite party has forced the complainant to pay additional amount of Rs. 10,000/-. The 2nd opposite party has not caused any mental agony to the complainant as alleged. The price of vehicle in question has been amicably settled between the complainant and 3rd opposite party and the 2nd opposite party is not involved at all. There is no deficiency in service or unfair trade practice on the part of answering opposite party. The complainant is not entitled to any relief as prayed for against the answering opposite party under the Act. There is no cause of action in favour of the complainant and against the 2nd opposite party. The present complaint is, therefore, liable to be dismissed with costs in favour of 2nd opposite party.
Complainant has been examined as PW1 and marked Exts. P1 to P9. Ext. D1 has been marked on behalf of opposite parties 1 & 3. 2nd opposite party has filed their affidavit. Opposite parties 1 & 3 have not filed affidavit in support of their case.
The issues for consideration are:-
Whether the act of the opposite parties amounts to deficiency in service and unfair trade practice?
Whether the complainant is entitled for any reliefs as claimed in the complaint?
Points (i) & (ii):- The contention of opposite parties is that since NOC has not been obtained they could not invoice the same. As per Ext. P1/Ext. D1, it has been mentioned that 'exchange bonus' is nil. Opposite parties contend that the allegation of the complainant that the complainant was already the owner of the vehicle as he had paid the full price of the vehicle on 10.11.2011 and these opposite parties had delayed the registration of the vehicle awaiting the information from Maruti about the price hike till 15.11.2011 is not correct. The complainant had not paid the full price of the vehicle on 10.11.2011 and so he was not the owner of the vehicle on 10.11.2011. The complainant is liable to pay the full price at the time of invoicing the vehicle. The vehicle can be invoiced only after receiving the full price of the vehicle. We have perused the records and it is found that opposite parties have failed to establish and have not corroborated their contention that the complainant had delayed the same as he had to exchange the vehicle.
The opposite parties 1 & 3 have contended in their version that in the terms and conditions printed on the overleaf of the printed booking form, Clause (1) says, “At the time of booking, customers are required to deposit booking amount of the vehicle”. Likewise clause (2) of the terms and conditions of the sale says, “Vehicles will be allotted on the basis of priority of booking and remittance of full payment of the vehicle”. 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 despatching of the vehicle from the manufacturer as mentioned in the order booking form.
2nd opposite party has contended that 2nd opposite party does not sell vehicles so manufactured to any individual customer directly. That they sell the vehicles to its authorized dealers under the Dealership Agreement against C form under the Central Sales Tax Act. The authorized dealers including the 3rd opposite party sell the vehicles to their customers under their own invoice and sales certificate as per Motor Vehicles Act, 1988. The 2nd opposite party has not received payment towards price of vehicle from the complainant. The relationship between the 2nd opposite party and its dealers including 3rd opposite party 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 3rd opposite party has no authority to represent 2nd opposite party as enumerated in clause 5 of the said Dealership Agreement. The 2nd opposite party is not liable for any act of omission of commission on the part of opposite parties 1 or 3. That this fact was well supported by the Hon'ble National Commission in its Revision Petition No. 2677 of 2006 tilted “V.K. Gupta & sons (HUF) vs. Maruti Udyog & others” vide its order dated 01.09.2011 has held “In view of clause 5 of the agreement which relates to limit of authority and the judgment of this commission in Maruti Udyog Ltd. Vs. Nagender Prasad Sinha & Anr.(Supra), we are of the opinion that the relationship between the Maruti Udyog Ltd. and the dealer was on principal to principal basis. In view of the above, we do not find any merit in these revisions and the revisions are hereby dismissed with no order as to costs”. Hence prayed that on this score, the present complaint is liable to be dismissed.
The opposite parties 1 & 3 have contended that the complainant is not entitled to get back the said amount of Rs. 10,000/- with or without interest as the complainant is liable to pay the price at the time of invoicing the vehicle. Opposite parties 1 & 3 have not filed affidavit in support of their contentions. From the evidence on record, we find that the opposite parties 1 & 3 after accepting the full amount has deliberately delayed the delivery of the vehicle, which is a definite case of unfair trade practice and deficiency in service as the opposite parties 1 & 3 have failed to corroborate the reason for delay with cogent evidence.
In the above circumstance, this Forum finds that, the act of the opposite parties 1 & 3 in collecting the entire amount of the vehicle on 10.11.2011 and not delivering it till 15.11.2011 and further claiming Rs. 10,000/- on 15.11.2011 is not justifiable since the entire amount has already been accepted by the opposite parties 1 & 3. Hence we find that the complainant is entitled for refund of excess amount of Rs. 10,000/- collected from him.
In the result, complaint is allowed. Opposite parties 1 & 3 shall jointly and severally refund Rs. 10,000/- along with an amount of Rs. 5,000/- towards compensation and costs. Time for compliance one month from the date of receipt of the order failing which the entire amount shall carry interest @ 9% from the date of receipt of the order till realization. 2nd opposite party is exempted from liability.
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 30th day of November 2012.
Sd/-
S.K. SREELA : MEMBER
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
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C.C. No. 13/2012
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - P. Krishnan Nair
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of Order Booking /Commitment Checklist issued
by Indus Motors Co.
P2 - Copy of receipt dated 26.08.2011 for Rs. 50,000/-.
P3 - Copy of receipt dated 07.10.2011 for Rs. 2,30,000/-.
P4 - Copy of receipt dated 10.10.2011 for Rs. 4,00,000/-.
P5 - Copy of receipt dated 15.11.2011 for Rs. 18,000/-.
P6 - Copy of Possession Letter.
P7 - Copy of Lok Adalath notice dated 20.12.2011
P8 - Copy of Lok Adalath notice dated 02.12.2011
P9 - Copy of pass book of complainant
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Copy of Order Booking /Commitment Checklist issued
by Indus Motors Co.
Sd/-
PRESIDENT
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