` Complaint filed on: 28-07-2021
Disposed on: 31-10-2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU
DATED THIS THE 31st DAY OF OCTOBER 2022
PRESENT
SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT
SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER
SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER
CC.No. 60/2021
Kishin R Roy, A/a 32 years,
S/o Rattan Roy, R/at No.36,
MIG, 2nd Stage, KHB Colony,
Basaveshwaranagara, Bengaluru.
……….Complainant
(By Sri. N.Basavaraju, Advocate)
V/s
1. Vinay Bandi Mane S/o Muddukrishna,
R/at “Nisarga Nilaya”, 2nd Cross,
2nd Block, Kuvempunagara, Tumakuru.
2. Vicky Hyundai, Reptd by its Proprietor,
Manasa Motors Pvt. Ltd.,
Vinay Bandi Mane S/o Muddukrishna,
R/at “Nisarga Nilaya”, 2nd Cross, 2nd Block,
Kuvempunagara, Tumakuru.
(OP1 - by Sri. K.N.Basavaraju, Adv.,)
(OP2 – Ex-parte.)
……….Opposite Party
:O R D E R:
SMT.G.T.VIJAYALAKSHMI, PRESIDENT
This complaint was filed by the complainant against the Opposite Party Nos.1 & 2 with a prayer to deliver the New “Creta SX + AT white car” alternatively if the OP No.1 fails to deliver the new Creta Car direct to settle the claim of complainant for Rs.14,06,948/- along with interest @ 18% PA from the date of payment and further prays to impose heavy cost for deficiency in service and such other reliefs as this Commission deems fit to grant.
2. The brief case of the complaint are as under:-
The OPs are the deal of Hyundai cars having dealership in the name and style of ‘VICKY HYUNDAI” Manasa Motors Pvt. Ltd., Tumakuru. The complainant and OPs are close friends and as per the instruction/advice of OP, the complainant in advance booked the CRETA car and transferred Rs.10,00,000/- to the OP’s Bank account through RTGS on 07.10.2016. The complainant further submitted that the new Creta CRDI was released in the midst of year 2017 and OP informed the complainant that first he has to book the new car and at the time of delivery of car, Rs.10,00,000/- which was paid in advance will be adjusted towards sale price of the car and he will issue receipt for the same and hence on 18.08.2017, the complainant booked Hyundai “Creta SX+AT white” car and paid Rs.25,000/- and requested to deliver the new “Creta SX+AT white car by adjusting Rs.10,00,000/- which the complainant had paid earlier. Thereafter the complainant had paid entire price of the car i.e. Rs.17,56,948/- by obtaining loan of Rs.7,31,948/- from HDFC Bank. Thereafter the OP assured to deliver the “Creta SX+AT CRDI white” car within six months, but the same was not delivered even after expiry of six months and when asked, the OP postponed the same on one or the other pretext.
2(a) The complainant further submitted that when OP failed to deliver the car within time, the complainant requested to deliver the car immediately or to refund the amount paid by the complainant towards car, but the OP did not respond for the same. Thereafter the complainant came to know that the OP was closed the show room and his dealership was cancelled and when he tried to contact the OP through phone, his phone was switched off and finally he contacted the OP and requested to refund the amount with interest and the OP assured the complainant that he will refund the amount, but subsequently OP avoided to meet the complainant. Hence, the complainant issued legal notice on 08.11.2019 and on receipt of the said legal notice, the OP contacted the complainant and assured to pay the amount within two months, but bill today the OP has not paid the said amount and closed his business. But on the request of the complainant, on 11.03.2019, the OP has paid Rs.3,50,000/-, but not paid the remaining amount. Hence, the complainant filed this complaint.
3. In spite of service of notice the OP No.1 appeared through his counsel and filed version, but the OP No.2 remained absent; hence, the OP No.2 was placed Ex-parte.
3(a). In the version, the OP No.1 contended that the complaint is not maintainable either in law or on facts and same is liable to be dismissed in linine and also the complaint is barred by limitation. The OP No.1 further contended that the complainant has given notice with creative story and therefore they have neglected the notice issued by the complainant. The OP No.1 further contended that the complainant has not disclosed any cause of action and as per the alleged complaint the complainant has stated that he has given money on 07.10.2016 and got loan on 30.08.2017 but issued notice on 08.11.2019 which is after lapse of 2 years and hence the complaint is not maintainable. The OP No.1 denied all other allegations in the complaint and prays to dismiss the complaint.
4. The complainant counsel filed affidavit in lieu of evidence, but not marked the documents though produced. The OP No.1 not filed the affidavit evidence in spite of granting sufficient opportunities.
5. The complainant and OP No.1 have not addressed their arguments though granted several opportunities to address their arguments. Hence, their argument is taken NIL. On perusal of complaint, version, affidavit complainant and perusal of the documents filed by the complainant, the points that would arise for determination are as under;
- Whether the complainant proves the deficiency of service on the part of OPs?
- Is complainant entitled to the relief sought for?
- Our findings aforesaid points are as under:
Point No.1: Partly in the affirmative
Point No.2: As per the final order
:REASONS:
7. On perusal of pleadings of the parties, complainant evidence, it is seen that the complainant booked the new car “CRETA” with OP by paying Rs.10,00,000/- as advance before releasing the car. The complainant had transferred Rs.10,00,000/- to the OP Bank account through RTGS on 07.10.2016. The OP issued receipt/acknowledgment for the same. After release of the car, the complainant paid Rs.25,000/- towards booking amount. The complainant submitted that the Bank sanctioned loan of Rs.7,31,948/- and same has been transferred to the OP bank account (HDFC). Afterwards the OP has not shown any interest in delivery of the car to the complainant and went on postponing the same in one or the other pretext i.e. the production has been stopped due to workers strike. Later complainant requesting the OP to deliver the new Creta Car SX.AT White” or cancel the booking of the said car and refund the amount of Rs.17,56,948/-. But the OP has not responded nor delivered the car. Hence, the complainant issued legal notice dated:08/11/2019 and there is no reply from the OP.
8. The OP in their objections stated that the complaint is not maintainable on account of delay. But the complainant issued legal notice on 08/11/2019 and the complaint filed on 28/07/2021. Hence, there is no delay in filing of the complaint.
9. The complainant has failed to produce any documents to show that Rs.7,31,948/- has been sanctioned to the complainant and the same was transferred to the OP’s Bank account i.e. HDFC Bank. Even complainant has not produced loan sanction documents i.e. loan relating documents, payment to OPs by Bank/complainant. Hence, the OPs are not liable to pay Rs.7,31,948/- to the complainant. The complainant produced receipt only for Rs.10,00,000/- and for Rs.25,000/- and also stated in the complaint that the OPs have already paid Rs.3,50,000/- to the complainant on 11.03.2019. Hence, question of delivery of car does not arise. Therefore, the OPs are liable to pay only Rs.6,75,000/- to the complainant with interest. Accordingly, we pass the following:-
:ORDER:
The complaint is allowed in part.
The OPs are directed to pay Rs.6,75,000/- to the complainant with interest @ 8% PA from the date of complaint to till realization.
The OPs are further directed to pay Rs.5,000/- to the complainant towards litigation expenses.
The OPs are further directed to comply the above order within 45 days from the date of receipt/knowledge of this order.
Furnish free copies of this order to both parties.
