BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

  DATED THIS THE 12^th DECEMBER 2019

O R D E R

SMT.PRATHIBHA. R.K., PRESIDENT

            This complaint is filed by the complainant against the Opposite party (herein after called as OP), under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OP to deliver the said vehicle to the complainant, to award cost of Rs.10,000/-, to award Rs.1,00,000/- for damages and grant such other reliefs.

2. The brief facts of the complaint is as under:

The complainant submitted that, he approached the OP showroom to buy Two Wheeler Access 125 (Suzuki) scooter.  The OP quoted sum of Rs.68,759/-.  The complainant has paid Rs.50,500/- through credit card on 19.02.2018 and has agreed to pay balance amount at the time of delivery of the vehicle.  OP staff agreed and informed the complainant to come after 15 days for delivery of the vehicle since there is demand of particular model.

Complainant further submitted that he approached after 15 days at OP showroom and requested for vehicle, but staff informed that the vehicle not yet come which was booked by the complainant and same is going to be delivered soon and the complainant agreed and left.  Again after one week complainant approached to the showroom and requested for delivery of the vehicle but showroom staff given evasive reply to the complainant.  Complainant further submitted that he made all efforts to get his vehicle and decided to write a letter dated 06.08.2018 requesting for the delivery of his vehicle.  OP received letter but not responded.  Thereafter the complainant consulted the OP manager after frustration by the showroom staff’s attitude and rude behaviour.  The manager of the OP also neglected the complainant and given evasive reply.  Hence the complainant issued a legal notice on 12.11.2018 demanding to deliver the vehicle within 15 days by receiving the balance amount.  OP replied to the notice and stated that complainant has falsely claimed a sum of Rs.50,500/- to purchase the said vehicle.  Complainant felt deficiency in service on the part of the OP.  Hence the complainant approached this Forum.

3. After registration of the complaint, notice was issued to OP.  Inspite of service of notice, OP remained absent.  Hence OP called out as absent and has been placed exparte.

4. In the course of enquiry into the complaint, the complainant has filed affidavit evidence reproducing what he has stated in his complaint.  The complainant has produced documents along with complaint.  We have heard the arguments of the complainant and we have gone through the oral and documentary evidence of the complainant scrupulously. 

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OP, if so, whether he is entitled for the relief sought for?

2.  What order?

6. Our findings on the above points are as under:

Point No.1:  Partly in the affirmative

                 Point No.2:  As per the order below

REASONS

7. Point No.1: Complainant had firmly stated oath in his affidavit that the complainant approached the OP showroom with intention to buy Suzuki Access 125 and credited an amount of Rs.50,500/- on 19.02.2018 and the balance amount of the vehicle agreed to pay at the time of delivery of the vehicle.  The complainant alleged that the OP had agreed to deliver the above said vehicle within 15 days.  The complainant approached the OP after 15 days.  The OP staff informed the complainant that the vehicle not yet come.  Hence complainant again approached after one week and requested for delivery of the vehicle.  The showroom staff have given evasive reply to the complainant.  Hence complainant issued letter on 06.08.2018 requesting for delivery of the vehicle.  The OP has not responded to the said letter.  Hence complainant issued legal notice dated 12.11.2018 to deliver the vehicle within 15 days or to refund the amount of Rs.50,500/- along with 21% interest.  The OP had replied to the legal notice given by the complainant and has not admitted the amount paid by the complainant.  Hence complainant approached the Forum for the deficiency of service on the part of OP.

8. To substantiate this contention the complainant has filed legal notice dated 12.11.2018, reply to the legal notice dated 19.12.2018 and credit card statement of the complainant and letter requesting for delivery of the vehicle by the complainant.

9. On perusal of Ex-A3 it shows that the complainant paid an amount of Rs.50,500/- to the OP account on 19.02.2018.  Further on perusal of letter dated 06.08.2018/Ex-A4 it is seen that the complainant requested the OP to deliver the vehicle to the complainant within 15 days.  Inspite of letter issued by the complainant and also several requests OP has not deliver the vehicle to the complainant.  Hence complainant issued legal notice dated 12.11.2018.  For that OP has replied dated 19.12.2018 stating that the payment made by the complainant for the Suzuki Access 125 scooter of Mr.Mohammed Riyaz Pasha.  It is to whom the OP had delivered the vehicle to Mr.Mohammed Riyaz Pasha.  Further the complainant denied reply given by the OP.  Hence complainant approached this Forum. 

10. To rebuttal the evidence of the complainant, the OP has not appeared in the instant case though the notice was duly served and thereby the OP remained absent in the sense the OP either admits the averments of the complainant in toto or they have nothing to say contrary to the complainant’s averments.  If the matter is viewed on this line, it proves that the OP has agreed the same impliedly.  In this regard, the decision reported in 2018(1) CPR 325 (NC) in the case of Kotak Mahindra Old Mutual Life Insurance Ltd., vs. Dr.Nishi Gupta, wherein it is held that, “non-filing of the written version amounts to admission of allegations made by the Complainant in the consumer complaint”. 

11. Admittedly OP has received the advance amount from the complainant hence it is the bounden duty of OP to deliver the said vehicle by receiving the balance amount.  If at all OP could not deliver the vehicle it is the duty of OP to inform the said facts to the complainant and refund the amount.  Not done so, there is a negligence and deficiency in service on their part.  On careful scrutiny of the case of the complainant and on the back ground of oral and documentary evidence, it is vivid and clear that the complainant who comes to Forum seeking relief has proved with clear and tangible material evidence.  Hence OP is directed to deliver the Suzuki Access 125 scooter to the complainant by collecting balance payment within 30 days from the date of this order.  Failing which OP is directed to refund Rs.50,500/- along with interest @ 9% p.a from the date of complaint till the date of realization.  Further OP is directed to pay compensation of Rs.10,000/- together with litigation cost of Rs.5,000/-.  Accordingly, we answered the point No.1 partly in the affirmative.

12. Point No.2: In the result, we proceed to pass the following order.

ORDER

1. The complaint filed by the complainant is allowed in part.

2) OP is directed to deliver the Suzuki Access 125 scooter to the complainant by collecting balance payment within 30 days from the date of this order.  Failing which OP is directed refund Rs.50,500/- to the complainant along with interest @ 9% p.a from the date of complaint till the date of realization.

3) OP is further directed to pay compensation of Rs.10,000/- together with litigation cost of Rs.5,000/- to the complainant.

4) This order is to be complied by the OP within 30 days from the date of receipt of this order.

          Supply free copy of this order to both parties.  

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 12^th day of December 2019)

1. Witness examined on behalf of the complainant by way of affidavit:

Sri.Shaik Suhail

Copies of Documents produced on behalf of Complainant/s:

  Witness examined on behalf of the Opposite Party - NIL

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