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M/s Popular Vehicles & Services Ltd., V.H. Kammath Towers, Kadathy, Muvattupuzha v/s James K. Joseph & Another

    Appeal No. 676 of 2016

    Decided On, 21 August 2019

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, THE HONOURABLE MR. JUSTICE K. SURENDRA MOHAN
    By, PRESIDENT & THE HONOURABLE MRS. A. BEENA KUMARI
    By, MEMBER

    For the Appellant: George Cherian Karippaparambil, S. Reghukumar, Advocates. For the Respondents: --------



Judgment Text

A. Beena Kumari : Member

The appellant is the 2nd opposite party, 1st respondent is the complainant and 2nd respondent is the 1st opposite party before the District Forum, Ernakulam in C.C. No. 296/2013.

2. The case of the complainant in short is that complainant has booked an Ertiga Car on 11.01.2013 by paying booking advance of Rs. 5,000/- with the 2nd opposite party. 2nd opposite party made an offer of exchange of complainant’s Maruti WagonR car with brand new Ertiga car. New car was assured to be delivered on or before 31.01.2013. Accordingly complainant gave his WagonR car for Rs. 1,65,000/- inclusive of Rs. 15,000/- as exchange bonus to the 2nd opposite party. Against the assured date of delivery on or before 31.01.2013 no information regarding the delivery date has been provided by the 2nd opposite party. Meanwhile complainant received a call from the 1st opposite party to enquire about the performance of the car delivered to him. Hence it is clear that 2nd opposite party had overlooked the seniority in booking and delivered the car meant for the complainant to somebody else. 2nd opposite party had also collected the price of the car from the financier M/s Kotak Mahindra Prime on 31.01.2013 itself. The complainant paid first EMI Rs. 12,040/- and Rs. 5,500/- towards the loan processing charge in the month of January 2013 itself. The complainant has been hiring taxi cars for journey ever since the exchange of his car. Complainant has been spending Rs. 1,000/- per day for travelling expenses for journey to his office. Hence complainant filed this complaint claiming refund and compensation.

3. 2nd opposite party filed version contending that booking of Ertiga VXi ABS car stated 11.01.2013 is incorrect. The booking is on 17.01.2013. The allegation that the new car was promised to be delivered on 31.01.2013 is false. Complainant in the order booking form after reading and understanding the terms and conditions had clearly accepted that “I understand that any verbal commitment will not be honoured”. This is the clear understanding when the booking is made by the complainant. Since there was strike in the factory of Maruti Suzuki India Ltd. and consequential waiting for the delivery of the cars the 2nd opposite party was not in a position to commit any date for the delivery of the vehicle on 17.01.2013. Thus in the order booking form second and third column against tentative waiting period and tentative delivery period are kept blank and no commitment regarding date of delivery was given to the complainant. The allegation that 2nd opposite party overlooked the seniority in booking and delivered the car meant for the complainant to somebody else to earn undue benefits are absolutely false. Even before the maturity of complainant’s booking, complainant on 23.04.2013 telephonically cancelled his booking. Hence 2nd opposite party as per letter dated 25.04.2013 addressed the complainant that for refund of the booking amount complainant has to officially communicate the cancellation letter at the earliest. Till today complainant has not issued the cancellation letter enclosing therewith the order booking form and the connected papers. Thus 2nd opposite party is not in a position to refund the booking amount. The allegation that the 2nd opposite party arranged the financier and that the entire price of the vehicle was collected from the financier on 31.01.2013 and further that the price of the vehicle is collected only when the vehicle is ready for delivery etc. are absolutely false and thus denied by the 2nd opposite party. The vehicle loan was arranged by the complainant himself and it is on the basis of the terms of the loan agreement between complainant and his financier the price of the vehicle was transferred by the financier of the vehicle to the account of the 2nd opposite party. 2nd opposite party never insisted for advance payment of the price of the vehicle. The allegation that complainant is incurring Rs. 1,000/- per day towards travelling expenses is incorrect and hence denied.

4. The evidence in this case consisted of the oral testimony of PW1 and DW1 and Exts. A1 to A6 and Exts. B1 to B5. On the basis of the aforesaid pleading and evidence the District Forum partly allowed the complaint and directed the 2nd opposite party to pay Rs. 50,000/- for unfair trade practice and Rs. 50,000/- for deficiency in service on the part of 2nd opposite party. 2nd opposite party was directed to pay cost of Rs. 5,000/- and if the payment is not made within one month 2nd opposite party is directed to pay 18% interest thereon. Aggrieved by the impugned order this appeal is preferred by the appellant.

5. The appellant argued that the District Forum has not exercised its powers judiciously and has taken a biased view, thus deciding the complaint against the principles of natural justice. Complainant has pleaded that the car was offered to be delivered on 31.01.2013 and the entire amount was paid on 31.01.2013. But as per Ext. B4 the price of the vehicle was paid by the financier only on 13.02.2013. This aspect is not seen by the District Forum. The appellant argued that the District Forum ought to have appreciated the fact that complainant has no case in his pleading that he has cancelled his booking, whereas in the proof affidavit complainant deposed that he has cancelled the loan on 12.06.2013. Thus the contention of the appellant that complainant has not cancelled the booking stands proved. The District Forum ought to have appreciated the fact that as per Ext. B1 dated 07.05.2003 complainant wanted the price of his WagonR car Rs. 1,50,000/- and the same was paid as per Ext. B2 on the very same day. Hence the finding of the District Forum that the 2nd opposite party had adopted unfair trade practice and that there is deficiency in service of 2nd opposite party is prima facie wrong. We also accept the argument of the appellant. As per Ext. B3 dated 14.05.2013 the finance amount Rs. 5,49,660/- was refunded to the complainant without any delay. Ext. B5 document prove that the 2nd opposite party had paid Rs. 15,340/- on 07.06.2013 to the complainant. Exts. B1 to B5 documents prove that the appellant had paid the entire amount relating to this transaction with interest to the complainant. The District Forum has failed to note the terms and conditions in Ext. A1 order booking/commitment checklist. In Ext. A1 complainant has agreed in writing that “I understand that any verbal commitment will not be honoured”. Hence the complainant cannot be heard to say that there was a verbal commitment to supply the car on 31.01.2013. There is no agreement with the complainant and opposite parties to deliver the vehicle on 31.01.2013. Hence the complainant cannot claim that the opposite party ought to have delivered the vehicle within 31.01.2013.

6. The 2nd opposite party/appellant specifically stated in the version that since there was strike in the factory of Maruti Suzuki India Ltd. and consequential waiting for the delivery of the cars the 2nd opposite party was not in a position to commit any date for the delivery of the vehicle. Thus in the order booking form 2nd and 3rd column against tentative waiting period and tentative delivery period are kept blank and no commitment regarding date of delivery was given to the complainant. Hence

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the finding of the District Forum that the tentative waiting period and tentative delivery date were kept blank for committing unfair trade practice and deficiency in service is not sustainable. 7. The complainant/1st respondent has received the entire amount with interest from the opposite party and he has not stated the fact in his complaint which shows that he has not come with clean hands. The District Forum ought to have dismissed the complaint on this ground. By Exts. B1 to B5 documents the appellant/2nd opposite party established that there is no deficiency in service and unfair trade practice from their side. In the result, appeal is allowed and the Order passed by the District Forum in C.C. No. 296/2013 is set aside. Parties are directed to suffer their respective costs.
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