BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                            C.C.No.47/2012

Dated this the 11^th day of October 2016

(Date of Institution:26.12.2012)

N. Kumarasamy, son of Nadesapillai,    

No.46, Kamarajar Street, Muthialpet,

Puducherry – 605 003.

                                       ….     Complainant

Vs

1. The Authorised Signatory

     M/s Valli Motors

     Authorised Dealer: Hero MotoCorp Ltd.,

     No.288, M.G. Road, Muthialpet,     

     Puducherry – 605 003.

2. The Authorised Signatory

     M/s Sri Ram Chits and Finance

    15, 2^nd Floor, Rangapillai Street,

    Puducherry – 605 001.

                    ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B.,

MEMBER

FOR THE COMPLAINANT      :  Thiru S. Savariram, Advocate

FOR THE OPPOSITE PARTIES: OP1 – Tvl. A. Kanniappan and K. Balaji,

                                                          Advocates

                                                        OP2 – G. Murugaiyan, Advocate         

O R  D  E  R

(by Thiru A. ASOKAN, Member)

This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986  to direct the first opposite party to deliver the motor cycle – Hero Maestro Blue (New) Model immediately without any further delay;  to direct the second opposite party not to present any cheques of the complainant until and otherwise the 1^st opposite party delivers the vehicle;  to direct the second opposite party to pay a sum of Rs.220/- which was deducted from the complainant's bank for commission for unauthorised presentation and return of cheque;  to direct the opposite parties to pay the complainant a sum of Rs.75,000/- towards compensation for the hardship, humiliation, harassment, suffering and mental agony suffered by the complainant upon the act of the opposite parties on account of the deficiency of service and unfair trade practice and to pay a sum of Rs.20,000/-  towards cost of this complaint.         

          2. The case of the complainant is as follows:

          The complainant approached the first opposite party on 3.7.2012 for purchase of a Hero Maestro Blue (New) Model motor cycle and the first opposite party gave a proforma invoice for a total sum of Rs.51,350/- and assured to deliver the vehicle within a week from the date of payment and also arranged for finance with the second opposite party.  Accordingly, the second opposite party valued their financial assistance for a sum of Rs.34,232 (Rs.4,279 x 8) and asked the complainant to give eight signed post dated blank cheques, copy of Ration Card, Voter ID, Photos 2 nos., copy of bank pass book etc.  The complainant agreed for the same and paid a sum of Rs.20,000/- by cash to the first opposite vide receipt No. 10981-02-SPAY-0712-2594 dated 3.7.2012, for the balance amount, the second opposite party undertook to pay directly to the first opposite party.  As assured, the first opposite party did not deliver the vehicle within a week and keep on taking time to deliver the vehicle and till date, the vehicle was not delivered to the complainant.  Inspite of repeated demands, the first opposite party was not given proper response and insulted the complainant in the presence of other customers.  The non-delivery of the vehicle by the first opposite party is clear deficiency in service and unfair trade practice.  While the things being so, on 18.09.2012, the complainant approached his banker Indian Bank, Mudaliarpet Branch and on verification of his bank statement, he was put to severe shock and surprise for the reason that on two occasions i.e. on 17.08.2012 and 15.09.2012 and 2^nd opposite party without the complainant's knowledge and consent had deposited the cheques of the complainant and get it dishonoured to that effect necessary deductions also made in the complainant's account to a tune of Rs.70 and 75/- respectively.  The complainant also stated that till the vehicle is delivered to the complainant by the first opposite party, the second opposite party cannot unilaterally deposit the cheque without the complainant's prior knowledge and consent.  Hence, the act of the second opposite party is deliberate and unfair trade practice so as to cheat the complainant.   The complainant further stated that the second opposite party at the time of making payment on 3.7.2012 before 1^st opposite party stated to the complainant that they will deposit the cheque once the vehicle is delivered to the complainant further they arrived a sum of Rs.4,279 x 8 cheques will be the cheque amount for eight EMIs, but now the complainant came to know a sum ofrs.4,510/- has been mentioned in the cheque and the same was deposited by the second opposite party for realisation.  The second opposite party inserting the said amount in the cheque taking advantage of the signed blank cheque of the complainant is highly fraudulent and cheating.  It is highly illegal and unlawful against the established cannon of law.  The complainant issued a legal notice on 28.09.2012 to the opposite parties and the same was acknowledged by them on 1.10.2012 and the first opposite party sent reply on 4.10.2012, however there was no response from the second opposite party till date.  Despite the same,  the second opposite party presented another cheque on 11.10.2012 and thereby get it dishonoured despite issuance of Lawyer's notice.  Hence, this complaint.

          3. The reply version filed by the first opposite party briefly discloses the following:

It is stated by this opposite party that the Hero Maestro scooter model was launched in the market only in 2012 and since the manufacturer namely Hero Moto Crop dispatched only limited number of vehicles to the dealers, the first Opposite Party did not and could not hold stock of the vehicle for immediate delivery.  Hence when the Complainant booked vehicle,  the  first Opposite Party clearly and specifically told the complainant that it will take two to three months for delivering the vehicle especially with the blue colour chosen by the complainant.  The Complainant readily agreed for the same and paid Rs. 20,000/- as booking amount.  The first Opposite Party never advised the complainant to go for loan to purchase the vehicle and never arranged for the loan.  It was the complainant’s decision to go for loan to purchase the vehicle.  In order to serve his customers in a better way, the first opposite party has only provided space to accommodate staff of Financing Institutions, in his show room.  The first opposite party has no privity of contract with the financier namely Sri Ram Chits and Finance.  It is the Complainant who voluntarily chosen Sri Chits and Finance to avail loan after comparing the interest rates with others financiers.  Hence the allegation that the first opposite party arranged for finance with Sri Ram Chits and Finance for the complainant is false and baseless and has been made with ulterior motive to fix liability on the first opposite party.  This opposite party further stated that in the absence of any such representation or assurance by the first opposite party about delivery of the vehicle within one week from the date of booking the question of negligence, unfair trade practice or deficiency in service by the first opposite party, does not arise at all.

Further stated that in the month of September 2012 the first opposite party received a load of Hero Maestro scooters and the first opposite party immediately called the complainant to come forward and take delivery of the vehicle.  But it is the complainant who was adamant that he wanted only blue color vehicle.  Hence the first opposite party requested the complainant to wait for some more time and the complainant readily agreed.  Hence the first opposite party has not committed any illegal act nor has he committed any unfair trade practice or deficiency in service.  The complainant has not suffered any mental agony due to the alleged delay in delivery of the vehicle.  The first opposite party and his staff have always been courteous to the complainant and have treated the complainant with utmost respect.  Even now the complainant is in good terms with the first opposite party.  The blue colour hero Maestro scooter is in transit and is likely to reach the first opposite party’s show room within a week which fact was also informed to the complainant and the complainant has also agreed to take deliver as soon as the vehicle arrives.      The first opposite party gave a reply notice dated 04.10.2012 for the legal notice issued by the complainant stating that in the month of September 2012 the first opposite party received a load of Hero Maestro scooters and that the vehicle was ready for delivery and that it is only the complainant who insisted for blue colour vehicle.  The first opposite party has also specifically stated in his reply notice that at the time of issuing reply notice the blue colour maestro scooter was in transit from the manufacturer and that the vehicle would be delivered as soon as it arrived.  The first opposite party submits that the complainant was immediately informed when the blue colour maestro scooter was ready for delivery in the month of October 2012 itself.   But the compliant did not come forward to take delivery of the vehicle. Even now the first opposite party is ready to either deliver the vehicle to the complainant or repay the booking amount of Rs. 20,000/- paid by the complainant provided the complaint withdraws all the imputation and allegation against the first opposite party and also withdraws this complaint by not pressing the same against the first opposite party.    This  opposite party also stated that there is no cause of action against the first opposite party since the first opposite party has always been ready to deliver the vehicle sought by the complainant.  It is only the complainant who was very specific and particular about the colour of the vehicle.  But even after the arrival of blue colour Hero maestro scooter the complainant has not come forward to take delivery in spite of the first opposite party informing him over phone that the vehicle is ready.  Whenever the first opposite party contacted the complainant over phone requesting him to take delivery of the scooter the complainant stated that he will take delivery in a day or two, but he never turned up to take delivery of the vehicle.  The complainant has also specifically stated over phone that his grievance is only against the second opposite party and not against the first opposite party.  But the complainant has wantonly filed the complaint against the first opposite party. The first opposite party has not committed any deficiency in service nor has it indulged in unfair trade practice, the first opposite party is not liable to compensate the complainant in any manner.  Hence, prayed for dismissal of the complaint with costs.

          4. The reply version filed by the second  opposite party briefly discloses the following:

          The complaint is not maintainable either in law or on facts.  Apart from denying all the allegations made in the complaint by the complainant, it is admitted  by this opposite party that the first opposite party arranged finance assistant to the complainant through them.  It is also admitted by this opposite party that they have received 8 cheques from the complainant and the complainant agreed to pay the instalment dues at the rate of Rs.4510/- only in terms of loan agreement for the loan amount of Rs.36,080/- to the first opposite party.  This opposite party has no knowledge of the non-delivery of the vehicle and the delay caused by them.  Since there was no written agreement or contract between the opposite parties 1 and 2 regarding the financial assistance to the customers, the second opposite party is nothing to do with the delay and non-delivery of vehicle to the complainant.  This opposite party further stated that once they have given loan to the customers, they are entitled to present the cheque as agreed by the complainant.  Further, there is no written contract or agreement between the parties that for presentation of cheque for every month, the opposite party has to get necessary consent and knowledge from the complainant.  From the date of receipt of loan amount, the complainant is bound to pay the instalment amount.  Hence, there was no delivery and unfair trade practice by the second opposite party.  This opposite party further stated that after receipt of lawyer's notice dated 28.09.2012, the complainant informed the second opposite party and stated that he had agreed to take the vehicle from the first opposite party and conveyed his willingness to deposit the cheque for realisation.  Only as per the terms of the loan agreement, the cheques

were deposited.  If at all the complainant had any grievances, he could have settled the same with the first opposite party and could not compel this opposite party to withhold the cheques.  Since this opposite party has never violated the terms of the loan agreement, the question of deficiency in service, negligent and unfair trade practice does not arise as regards the second opposite party.  Hence, prayed for dismissal of the complaint with costs. 

5. The complainant was examined as CW1 and marked Exs.C1 to C14 and one R. Palanivelu Murugan, Legal Officer was examined as RW1 on the side of  second opposite party through an Authorisation Letter and marked Exs.R1 to R3 and the first opposite party have not chosen to examine them to let in evidence and no documents were produced on behalf of them. 

6.       Points for determination are :

          1. Whether the complainant is a consumer?

2. Whether the opposite parties has attributed to any act of deficiency of service and unfair trade practice?

3. Whether the complainant is entitled for any relief?

            7. Point No.1:

           The complainant has booked a Hero Maestro Motor cycle with the first opposite party for a total value of Rs.51,350/- vide Ex.C1 and paid an advance amount of Rs.20,000/- on 03.07.2012 vide Ex.C2.  The complainant also availed loan to the tune of Rs.36,080/- vide Ex.R2 the loan application and Hypothecation agreement for the purchase of a motor cycle from the first opposite party.  Hence, the complainant is held to be a Consumer as against the first and second opposite parties as per sec.2 (1) (d) (i) and 2 (1) (o) of Consumer Protection Act.   

           8. Point No.2:

           It is submitted by the complainant that he approached the first opposite party for purchase of a Hero Maestro (blue colour) Motor cycle on 03.07.2012 and the first opposite party gave a proforma invoice dated 03.07.2012 vide Ex.C1 for a total value of Rs.51,350/-  and on the same day itself and the complainant paid a sum of Rs.20,000/- by cash to the first opposite party for the alleged motor cycle.  The balance amount was paid by the second opposite party on behalf of complainant to be recovered in eight equal monthly instalments at the rate of Rs.4510/- vide Ex.R1.  It is further submitted by the complainant that at the time of booking vehicle, the first opposite party orally assured that the vehicle will be delivered within one week from the date of payment made.  But, the vehicle was not delivered even after two months which caused monetary loss and mental agony to the complainant. 

           9. On the otherhand, it is submitted by the first opposite party that the alleged motor cycle was launched in the year 2012 and a limited number of vehicles were dispatched to them and  it was informed to the complainant that it will take two to three months for delivering the vehicle.  Thus the said Hero Maestro (Blue colour) motor cycle was ready for delivery in the month of October 2012, but the complainant did not come forward to take delivery of the vehicle.

           10. This Forum carefully perused the complaint, reply version of both opposite parties, evidences of both complainant as well as opposite Party No.2 and also heard the arguments of both the parties.  Even though the first opposite party filed reply version, they have not chosen to come forward to let in oral evidence.    The allegation of the complainant is that he has booked a Hero Maestro Blue Colour motor cycle with the first opposite party on 03.07.2012 by paying a cash payment of Rs.20,000/- vide Ex.C2 and the balance amount was paid by the second opposite party being the Financier directly to the first opposite party.  It is  further alleged by the complainant that after receipt of full payment, the first opposite party told that they would deliver the vehicle within one week, on contra the first opposite party did not deliver the vehicle in time as assured to the complainant.  On perusal of Ex.R2, the second opposite party had paid a sum of Rs.31,863/- as detailed in Disbursement Memo.  Hence, the first opposite party has totally received a sum of Rs.51,863/- on 09.07.2012.  The first opposite party was also admitted in their reply statement that the vehicle was made ready in the month of October 2012 only.   It is alleged by the first opposite party that the Hero Maestro motor cycle was introduced in the year 2012 and there was limited number of vehicles dispatched to the dealers they could not immediately deliver the vehicle to the complainant.  If the first opposite party is not in possession of particular colour of vehicle, it should be intimated to the complainant when the initial deposit of Rs.20,000/- was made.  On perusal of Ex.C1 the proforma invoice, the opposite party has deliberately omitted to fill in the column of the period of delivery.  The first opposite party has received down payment of Rs.20,000/- on 03.07.2012 and the balance amount of Rs.31,863/- from the second opposite party on 09.07.2012.  It is also alleged by the first opposite party that they have informed the complainant that the delivery of the vehicle will be possible only after two to three months.  If it is so, nothing prevented to note down in proforma invoice, to enable the complainant as well as the financier.  i.e. second opposite party to know the date of delivery of the vehicle.  The second opposite party realized the instalment amounts from the account of the complainant for the undelivered vehicle.  Further, the first opposite party even failed to produce any document that the alleged colour of vehicle was dispatched to them by the manufacturer in October 2012.  Neither the vehicle was delivered to the complainant nor any communication was sent as to why there is a delay in delivery of the vehicle.  Even though the first opposite party and the second opposite parties are different establishments, in the business activities, the first opposite party has a business tie-up with the financiers and hence, it is the bounden duty of the first opposite party to inform the second opposite party that the vehicle was not delivered to the complainant due to non-availability of stock to enable the second opposite party to withheld the cheque for such periods and thereby the monetary loss could be avoided to the complainant.  The complainant examined as CW1 who in his cross examination has stated that "When I approached, the OP1 had Hero Maestro Scooter.  When I visited OP1, OP1 had blue colour scooter."   To refute the contention, though the first opposite party has filed reply version, they have not come forward to adduce any oral or documentary evidence to substantiate their plea. 

          11. As far as the allegation of the complainant as against the second opposite is concerned, it is alleged by the complainant that the second opposite party has realized the dues from the account of complainant by presenting the cheques given by him.  The complainant further alleged that inspite of the intimation to the second Opposite Party that the vehicle was not delivered to the complainant by the first Opposite Party, the second opposite party presented the cheques for realisation of the amounts.  There is no dispute about the availing of loan by the complainant from the second opposite party.  On perusal of Ex.R1, it is crystal clear that the complainant entered into a hypothecation agreement with the second opposite party and availed loan of Rs. 36,080/- to be deducted in eight equal monthly instalments of Rs.4510/- per month and even the agreement entered into between the complainant and the second Opposite Party does not provide any such condition that only on the delivery of the vehicle by the first Opposite party, the second Opposite Party has to present the cheque for realisation of the loan amount.  The second opposite party acted as per the direction and the contract entered between them and the complainant.  The second opposite party sanctioned the loan and disbursed the same to the first opposite party to enable the complainant to get delivery of the vehicle.   The second opposite party rendered their service promptly as per the direction of the complainant.  There is no privity of contract between first opposite party and the second opposite party.  The second opposite party presented the cheque to  realize the monthly instalments amount from the account of the complainant as per instruction of the complainant, but got returned as dishonoured.  Admittedly, even now the complainant having due to the second Opposite Party.  The dispute of realising the cheque amount by the second opposite party from the account of the complainant should be dealt with by separate proceedings according to law.   Hence, this Forum observed that the second opposite party has not committed any deficiency in service and unfair trade practice as against the complainant and therefore, the second opposite party is not liable to pay any compensation to the complainant.   

12. This Forum further observed that the non-delivery of the vehicle by the first opposite party to the complainant in time resulted in mental agony and caused loss and injuries to the complainant and the same has to be compensated by the opposite party No.1.

          13. In the result, this complaint is allowed.  The opposite party No.1 is directed to

1. Return the amount of Rs.20,000/- paid by the complainant as advance.
2. To pay a sum of Rs.30,000/-  being compensation for the loss and sufferings caused to the complainant.
3. To pay a sum of Rs.5000/- being the cost of this complaint. 

Dated this the 11^th day of October 2016.

                                                                                                                                   (A.ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

    MEMBER

COMPLAINANTS' WITNESS:

CW1           17.03.2014           Kumarasamy            

OPPOSITE PARTIES WITNESS:

RW1           07.08.2015           R. Palanivelu Murugan, Legal Officer of OP2

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   

LIST OF MATERIAL OBJECTS:      NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

                                      MEMBER