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General Manager, M/s. Jaikrishnaa Auto Sales Pvt. Ltd., Coimbatore v/s S. Thangamani & Another

    F.A.No. 382 of 2012

    Decided On, 15 March 2019

    At, Tamil Nadu State Consumer Disputes Redressal Commission Chennai

    By, THE HONOURABLE MR. K. BASKARAN
    By, PRESIDING JUDICIAL MEMBER & THE HONOURABLE DR.(MRS.) S.M. LATHA MAHESWARI
    By, MEMBER

    For the Appellant: M/s. O.S. Karthikeyan, Advocate. For the Respondents: R1, M/s. S.V. Srinivasan, Advocate, R2, called absent.



Judgment Text

(This appeal coming before us for final hearing on 21.12.2018 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following:-)

Dr. S.M. Latha Maheswari, Member

1. This appeal has been preferred by the appellant /1st opposite party under section 15 read with section 17 (1) (a) (ii) of the Consumer Protection Act 1986, against the order dated 28.12.2011 passed by the learned District Consumer Disputes Redressal Forum, Coimbatore in C.C.No.92/2011.

2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Forum.

3. The factual matrix giving rise to this appeal is as follows;-

The complainant had placed an order for Maruti Suzuki Swift LDI Silky Silver car with the 1st opposite party who was the dealer on payment of Rs.10,000/- as advance. Proforma Invoice for Rs.5,54,376/- including insurance and road tax was issued to the complainant by the 1st opposite party. As the marriage of the complainant was fixed on 10.09.2010, she expected the delivery of the car before that date, but it was not delivered till filing of the complaint. Meanwhile, there was letter correspondence between the complainant and the 1st opposite party, the complainant by way of cheque dated 17.10.2010 paid the balance amount of Rs.4,71,500/-. However, the 1st opposite party sent a letter stating that the amount paid is only for LDI Model and the complainant had to pay additional amount for the VDI Model. Inspite of the letter by the complainant that he did not demand VDI Model and also after several other correspondences, the complainant was not given delivery of the vehicle. Hence the complaint was filed alleging deficiency of service on the part of the opposite parties in not delivering the car at the time of marriage of the complainant and also thereafter. A compensation of Rs.2,50,000/- towards mental agony was also claimed.

The opposite party filed version denying the allegations and contended that though the vehicle was ready for delivery on 27.10.2010, the complainant did not take the vehicle but insisted for VDI Model of the car. They had stated that they did not encash the cheque given by the complainant. They prayed for the dismissal of complainant. The 2nd opposite party sought for dismissal of the complaint on the ground that there was no privity of contract between them.

The learned District Forum after perusing the pleadings and the documents filed by both parties, framed three points for consideration as to whether the complaint against the 1st opposite party is maintainable, whether the 2nd opposite party indulged in unfair trade practice and committed deficiency of service and whether the complainant is entitled to compensation and partly allowed the complaint directing the 1st opposite party to deliver a Maruti Suzuki Swift LDI Silky Silver car after collecting the prevailing price on the date of invoice less Rs.10,000/- and Rs.50,000/- as compensation holding that there was deficiency in service on the part of the 1st opposite party in not delivering the car. The complaint against the 2nd opposite party was dismissed.

Aggrieved by the order the 1st opposite party had preferred the present appeal.

4. Points for Consideration in this Appeal are as follows:-

1) Whether the 1st opposite party is not guilty of deficiency in service?

2) Whether the appeal has to be allowed?

3) To what relief the complainant is entitled?

5. Before the learned District Forum, the complainant had filed the proof affidavit and exhibits Ex.A1 to Ex.A17 were marked. On the side of the opposite parties, the proof affidavit of opposite parties was filed and exhibits Ex.B1 to Ex.B6 were marked.

6. Point no 1:- Admitted facts are,

a) that the complainant booked a Maruti Suzuki Swift LDI Silky Silver car with the 1st opposite party who is the authorized distributor of the 2nd opposite party by paying a sum of Rs.10,000/- as advance and the 1st opposite party issued pro-forma invoice for Rs.5,54,325/-

b) that the expected period of delivery was 1 months from the date of booking

c) that the complainant had sent a cheque for Rs.4,71,500/- but the same was not encashed by the 1st opposite party

d) that the vehicle was not delivered to the complainant.

Hence the complaint was filed which was partly allowed directing the opposite party to deliver a Maruti Suzuki Swift LDI Silky Silver car to the complainant after collecting prevailing price at the time of invoice less Rs.10,000/- already paid by the complainant on 30.07.2001 and also compensation of Rs.50,000/-.

7. The appellant/1st opposite party contended that by letter dated 25.10.2010 (Ex.A4) it had intimated to the complainant regarding the ranking position for the delivery of the vehicle for which the complainant’s father replied vide Ex.A5 that there was delay in delivery and had claimed a sum of Rs.2 Lakhs as compensation. The 1st opposite party alleged that the proposed period of delivery of the car indicated in the booking form was only tentative and was based upon the instructions from the 2nd opposite party and therefore, he could do nothing with the delivery of the vehicle. The 1st opposite party would also admit that though the cheque drawn in favour of Jayakrishna Auto Sales Pvt. Ltd., (Ex.A9) was sent by the complainant the same was not encashed by them as the name was wrongly mentioned and also the amount was lesser than the admitted amount of Rs.5,44,375/-. The 1st opposite party further argued that the delay was caused only due to the act of the complainant in demanding a different vehicle i.e., Swift VDI car though the initial booking was made only for LDI Swift.

8. The 1st opposite party also vehemently contended that the complaint itself was not maintainable as only an initial payment of Rs.10,000/- had been made by the complainant as an advance by submitting a judgment of the Hon’ble National Commission reported in (2009) I CPJ 263 wherein it was held that payment of token amount towards registration does not amount to consideration for hiring charges and hence the person who paid the advance amount would not be considered as a consumer.

9. However the respondent/complainant submitted that the car Maruti Suzuki Swift LDI Silky Silver car was booked only for the purpose of marriage of the complainant and the delivery of the vehicle was expected prior to her marriage i.e., before 10.09.2010. The complainant also submitted that even after the expiry of three months the car was not delivered. Even after the exchange of letters and making clear to the 1st opposite party that she did not insist for change of model of the car vide letter dt.18.11.2010, the first opposite party failed to deliver the vehicle under in some pretext or other by stating reasons which were not proved. Complainant further argued that she had promptly paid the balance amount of Rs.4,75,500/- vide cheque No.011062 dated 17.11.2010 infavour of the 1st opposite party and also made clear that she booked only LDI model and the car was not delivered. Hence the complainant contended the non-delivery of the car during the time of marriage as promised by the 1st opposite party caused mental agony and the same amounted to deficiency in service on the part of the 1st opposite party.

10. The argument of 1st opposite party that the complaint was not maintainable for the reason that complainant had paid only the initial booking amount was not acceptable as receipt of initial payment amounts to receipt of part of the consideration fixed for availing the services of the 1st opposite party. Therefore, we have no hesitation in holding that the complaint was maintainable. However it was admitted by both parties that only an initial payment of Rs.10,000/- was made by the complainant and the further amount paid vide cheque for a sum of Rs.4,75,500/- was not encashed by the 1st opposite party. It was found that the total price of the car was not paid to the 1st opposite party as the cheque issued by complainant was not encashed. The 1st opposite party had vehemently contended that the delivery of the vehicle was made according to the available ranking done which was intimated promptly to the complainant and the period for delivery of the car was under the control of the 2nd opposite party who was the Manufacturer of the vehicle. From the above contentions we could find that the 1st opposite party had nothing to do with the delivery of the vehicle and the delay caused as alleged by the complainant was not due to the act of the 1st opposite party. Hence, we conclude that no deficiency in service could be attributed upon the 1st opposite party. Accordingly point no.1 is answered in favour of 1st opposite party holding that there is no deficiency in service on their part.

11. Point No.2:- On the strength of the above discussions and finding the appeal has to be partly allowed and the findings of the learned District Forum is liable to be set aside with regard to the direction given to the 1st opposite party to deliver the Maruti Suzuki Swift LDI Silky Silver car to the complainant after collecting the prevailing price at the time of booking of the car less Rs.10,000/- paid by the complainant as advance.

12. Point No.3:- As the receipt of the advance amount of Rs.10,000/- on 30.07.2010 was admitted by the 1st opposite party, it is to be held that the complainant is entitled to the said amount. The comp

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lainant could have approached the Civil Court for refund of the said amount. However, the Consumer Protection Act, 1986 being a social welfare legislation driving the consumer to the Civil Court at this stage will cause huge inconvenience due to lapse of considerable period of time in prosecuting this complaint. Therefore, we deem fit to award some relief to the consumer in the present complaint itself and feel appropriate in the interest of justice to direct the 1st opposite party to repay the amount of Rs.10,000/- received by them with 12% interest to the complainant from the date of receipt of the amount. In the result, the appeal is partly allowed. The direction given to the 1st opposite party to deliver the Maruti Suzuki Swift LDI Silky Silver car to the complainant after collecting the prevailing price at the time of booking of the car minus Rs.10,000/- is set aside, however the 1st opposite party shall pay Rs.10,000/- (Rupees Ten Thousand only) with interest @ 12% p.a. from the date of receipt of the amount to the complainant. No order as to cost.
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