State Consumer Disputes Redressal Commission
Har Auto Pvt.Ltd; vs Seedhi, Son Of Abdul Rahimen on 24 April, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/514 (Arisen out of Order Dated 10/02/2010 in Case No. CC/10/182 of District Kasaragod) 1. HAR AUTO PVT LTD HAR AVENUE,KANNOTHUMCHAL,KANNUR KANNUR KERALA ...........Appellant(s) Versus 1. RAMESH RAI SALES EXECUTIVE,HAR AUTO PVT LIMITED KANNUR KERALA ...........Respondent(s) BEFORE: HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.514/11
JUDGMENT DATED 24.4.12
PRESENT
JUSTICE SHRI.K.R.UDAYABHANU -- PRESIDENT
HAR Auto Pvt.Ltd;
Har Avenue, Kannothumchal, Kannur,
Reptd. by the Managing Director, -- APPELLANT
P.V.Muhammad Iqubal
(By Adv.Thomas P. Jacob)
Vs.
1. Seedhi, Son of Abdul Rahimen,
Shakkir Manzil, Udayawara,
1st Railway Signal, Manjeshwar P.O,
Kasaragod. -- RESPONDENTS
2. Ramesh Rai
Sales Executive, HAR Auto Pvt.Ltd;
Nuttippady, Kasaragod. (R1 By Adv.C.Mohanan)
JUDGMENT
JUSTICE SHRI.K.R.UDAYABHANU,PRESIDENT The appellant is the second opposite party/dealer in CC 182/10 in the file of CDRF, Kasaragod. The appellant is under orders to refund a sum of Rs.1,62,000/- with interest at 12% from 31.7.10 and also a compensation of Rs.30,000/- and cost of Rs.5000/-.
2. It is the case of the complainant is that on 31.7.10 he entrusted his Maruti Wagon-R car with the opposite parties No.1, Sale Executive for exchanging the same and purchasing a new SWIFT car from the second opposite party outlet. The price of the Wagon-R car was fixed as Rs.1,62,000/- and the price of the SWIFT car as Rs.5,74,313/-. According to him, the opposite parties took possession of the original records of the Wagon-R car and promised to deliver the new car on 6.8.10 and agreed to receiving balance amount after delivery of the new car. On 6.8.10 when he approached the opposite parties they told that the stock is not available. Thereafter he approached the opposite parties on a number of occasions. They also failed to return his old car with the original records or refund the amount of Rs.1,62,000/-. The complainant is a business man and has to bear a lot of inconveniences due to the action of the opposite parties. He has sought for delivery of the SWIFT white car as mentioned in the booking order and to pay interest at 18% for Rs.1,62,000/- till the date of delivery of the new car and also to compensation of Rs.50,000/-.
3. The first opposite party/Sale Executive stood ex-parte.
4. The second opposite party/dealer has filed version admitting that the first opposite party was an employee of the outlet. According to the dealer they are not aware of the transaction alleged between the first opposite party and the complainant. It is contended that the said transaction was outside the company business and purely on personal basis. It is contended that the complainant has never approached the second opposite party. It is stated that first opposite party was a Sale Executive of HAR CARS, Kasaragod till July 2010 and after drawing salary of the month of July he left the company by cheating and committing breach of trust causing huge loss to HAR CARS. The company had published notice dishonoring the actions of the first opposite party in the Notice board of the company and in News papers. A Police complaint was also lodged. It is contended that the appellant/opposite party is not liable for the un-authenticated actions on the part of the above Sales Executive. The outlet is having its own procedures for true valuation of old cars and in which the complainant has to sign. The company will also issue delivery receipt to the consumers. The complainant was not given any such papers. It is alleged that the complainant in collusion with the opposite party No.1 has lodged a false claim against the opposite parties/appellants for unlawful gain. There is a minimum waiting period of 3 ½ months for the delivery of the Maruthi SWIFT car.
5. The evidence adduced consisted of the testimony of PW1, DW1, Exts.A1 & A2 and B1 to B6.
6. PW1 is the complainant and DW1 Sales Officer of the opposite parties at Kasaragod who have testified. The second opposite party is a branch at Kannur of the Har Cars. Ext.A1 is the order booking form. The counsel for the appellant has point out that Ext.A1 is not filled up properly. The number of old car is mentioned at the column against number of the demand draft etc. It is contended that Ext.A1 Form is not used for exchange of old cars. It is further pointed out that in Ext.B1 itself, it is specifically mentioned that if any amount is paid the receipt for the same should be collected immediately. It is also mentioned that there should be a stamped payment receipt failing which the booking Form is not valid. The opposite parties have produced Ext.B2 blank file produced as to the documentation required the exchange of old cars and various forms with respect to the above procedure including the delivery receipt of Maruti True Value. None of the above formalities were complied with by the complainant. It is further contended that the complainant is an educated man and that his deposition is in English. It is further contended that PW1 has admitted that his vehicle hypothecated with Mahindra Finance Company. With respect to the same there is endorsement in Ext.A2 copy of the RC of Wagon-R car. Hypothecation has not been closed. It is pointed out that the hypothecation is still seen noted in Ext.A2 and that without lifting the above endorsement in the RC the opposite parties would not accept the old car. It is also pointed out that it is highly improbable that the complainant would be keeping the spare key of the vehicle as has been stated by him. The appellant has also produced additional documents before this Commission which are the advertisements in the Mathrubhumi Newspaper dated 8.8.10 containing the photograph of the first opposite party and mentioning that he has been absconding since 4.8.10 and declaring that the company would not be liable for the actions of the first opposite party. A publication in the Kannada Newspaper has also been produced. The appellant has also produced the copy of the complaint filed before the Circle Inspector of the local station and the receipt obtained from the police station with respect to the above complaint. The same is dated 19.10.10. The above complaint is with respect to another transaction on the basis of which the company received a lawyer notice. What has happened subsequent to the police complaint is not within the knowledge of the counsel. The matter has been disposed of by the Forum on 10.10.11. The opposite parties ought to have pursued the investigation by the police as evidently without the prompting by the complainant it is likely that the police might have kept the complaint dormant.
7. On the other hand, the complainant has specifically stated that he entrusted the Maruti Wagon-R with the opposite parties' show-room and that the value arrived at for the old car was Rs.1,62,000/- and that they have taken possession of the old car. The evidence of PW1 that he has approached the opposite parties a number of times also stands not discredited. The procedure with respect to valuation of the old car and the documents required to be signed for the exchange of the old car are only matters within the knowledge of the opposite parties and that the complainant need not be aware of the same. It was pointed out by the counsel for the respondent that the complainant is not a literate person in English and that it is the practice in Kasaragod Taluk that the evidence is recorded in English translating the same from the local language which can be Kannada/Tulu etc. The fact that the deposition is recorded in English will not show that the complainant has spoken in English. Of course there are lapses on the part of the complainant also as he has not got Ext.A1 which is in English explained to him by somebody else and obtained a proper receipt etc. But the same is not sufficient to disbelieve the case of the complainant that he entrusted the Wagon-R car with the opposite party for exchanging the same for a new Maruti Swift Car. It has also to be noted that Ext.A1 is the order booking form of the dealer. Ext.A1 is also signed by the first opposite party, who was admittedly the Sales executive of the dealer. The failure on the part of the opposite parties in pursuing the investigation by the police is also a serious lapse on the part of the opposite parties. What has happened to the vehicle of the complainant entrusted with the opposite party is not evident. The counsel for the appellant has sought for remitting the matter back to the Forum for adducing evidence with respect to the matter connected with the police investigations. We find that the matter was contested before the Forum. There is no case that the appellant had no sufficient opportunity to adduce evidence in this regard. In the circumstances, we find no reason to disbelieve the evidence of the complainant as such. Hence no interference in the order of the Forum is called for with respect to the direction to refund to Rs.1,62,000/-. All the same, the direction to pay a compensation of Rs.30,000/- is set aside as interest has been ordered. In the circumstances, the rate of interest is reduced to 9%. The rest of the order of the Forum is sustained. The opposite parties are directed to make the payment within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 24.4.2012, the date of this order. Appeal is allowed in part as above.
Office will forward the LCR along with a copy of this order to the Forum below urgently.
JUSTICE K.R.UDAYABHANU -- PRESIDENT [HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT