State Consumer Disputes Redressal Commission
M/S. Chennai Ford 423, Poonamallee High ... vs D. Venatesh S/O. K.V. Dakshinamoorthy ... on 19 July, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL) Tmt. VASUGI RAMANAN MEMBER II F.A.NO.411/2010 (Against order in CC.NO.1/2007 on the file of the DCDRF, Vellore) DATED THIS THE 19th DAY OF JULY 2011 1.
M/s. Chennai Ford 423, Poonamallee High Road Arumbakkam, Chennai-600 106
2. A.S. Naresh Senior Sales Consultant Chennai Ford, 43, Katpadi Road Gandhi Nagar, Vellore-632 006 Appellant/ 2 & 3 opposite party Vs.
1. D. Venatesh S/o. K.V. Dakshinamoorthy 17/6, Thayumnavar Street Tirunagar, Gandhi Nagar Vellore- 632 006 1st Respondent/ Complainant
2. The Vice President Marketing & Sales Ford India Ltd., (served absent) Chengalpattu- 603 204 Respondent/ Opposite parts The 1st Respondent as complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to deliver the car, or refund RS.570000/-, alongwith compensation of Rs.50000/- and cost of RS.5000/-. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.10.5.2010 in CC.No.01/2007.
This petition coming before us for hearing finally on 6.7.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellants/ 2 & 3 Opposite parties:
M/s. K.V. Rajan Counsel for the 1st Respondent/Complainant : M/s. A. Rajendiran JUSTICE M. THANIKACHALAM, PRESIDENT
1. The opposite parties 1and 2 are the appellants.
2. The case of the complainants as follows:
The complainant/1st respondent, at the instance of the 3rd opposite part, had booked a car, with the opposite parties 1 and 2, on 14.1.2006, by paying an advance of Rs.10000/-, in order to purchase a model of Moon Dust silver colour car. As per the invoice/estimate, the amount was fixed at Rs.6,99,000/-, and it was assured, there will not be any escalation. On the basis of the estimate or invoice given by the opposite parties 1 and 2, the complainant borrowed a loan of Rs.5,60,000/-, which was paid to the 2nd opposite party, by way of demand draft on 5.5.2006.
3. The opposite parties 1 and 2 have not delivered the vehicle, as agreed and abruptly, they have allotted the vehicle and sold the same to 3rd party, which was questioned by the complainant, by the issuance of a lawyer notice, for which there was no proper reply. The complainant was always ready and willing to pay the balance, as per the proforma invoice, whereas the opposite parties have claimed escalated price, for which the complainant was not willing. Thus, the opposite parties have committed not only unfair trade practice, but also committed deficiency of service, and monopoly trade practice, causing mental agony to the complainant. Hence seeking direction to deliver the vehicle, or to refund the amount of Rs.570000/-, with compensation of Rs.50000/-, a consumer complaint came to be filed on the file of District Forum, Vellore.
4. The opposite parties, admitting the booking of the vehicle, by the complainant, and issuance of receipt for RS.10000/- on 16.1.2000, since 14.1.2000 was a Pongal Holiday, resisted the case, interlia contending that as per the Proforma Invoice price subject to change without notice, and price prevailing at the time of delivery alone are applicable, that they never accepted that vehicle will be delivered as per the Proforma Invoice of the price, that when the vehicle as desired by the complainant was available, informed once, twice, but the complainant failed to take delivery of the vehicle, and therefore the vehicle was sold to third party, which cannot be faulted, that the complainant was always insisting, he should be allowed to pay the price indicated in the Proforma Invoice, to which the opposite parties are not willing, since it is not the term of contract, that at no point of time the complainant was willing to pay the balance, as demanded, thereby he has alone committed default, and the opposite parties have not committed any deficiency, praying for the dismissal of the complaint.
5. The District Forum, by its order dt.10.5.2010, recorded a peculiar finding, against the terms and conditions of the booking, that the opposite parties are not entitled to claim the value of the vehicle, on the date of delivery, whereas vehicle should be sold, as per the proforma invoice price, since failed to do so, that should be construed as deficiency in service, or unfair trade practice. In this view, a direction was issued, as per the order dt.10.5.2010, directing the opposite parties to deliver the vehicle booked by the complainant, after receiving the balance amount, as per the Proforma Invoice (ExA2), or refund the amount with interest, in addition to pay compensation of Rs.25000/-, alongwith cost of Rs.2000/-, which is impugned in this appeal.
6. Admittedly, the complainant had agreed to purchase a Ford Fiesta 1.4 ZXI TDCI Diesel car, from Chennai Ford, for a sum of Rs.7,27,599/-, which includes registration charges, insurance, and the vehicle value alone being Rs.6,99,000/-. It is also an admitted fact, pursuant to the proforma invoice or even prior to that, the complainant had paid a sum of Rs.10000/-, as advance, for which receipt was also issued, as claimed by the opposite parties on 16.1.2006, though receipt is denied by the complainant. Based upon the Proforma Invoice, the complainant approached Karur Vysya Bank, for loan and obtained a loan of Rs.5,60,000/-,which was paid to the 2nd opposite party, by demand draft dt.5.5.2006. Thus it is seen, totally the complainant had paid a sum of Rs.5,70,000/- to the 2nd opposite party, as part of sale consideration, for the purchase of the car.
7. The complainant had a desire to have Moon Dust Silver colour car, for which at that time there was demand. When the vehicle was received by the 2nd opposite party, from the manufacturing company, he informed, but the complainant, admittedly, has not paid the balance amount, and taken delivery of the vehicle, which can be seen even from paragraph 8 of the complaint, since it is said, though the complainant was ready to pay the balance amount, as per the proforma invoice, the opposite party was claiming escalated price, which was prevailing at present, which is contrary to law. Therefore, we have to see, whether the 2nd opposite party or opposite parties as the case may be, had agreed to deliver the vehicle, as per the proforma invoice price, or the price was subject to variation.
The proforma invoice viz. Ex.A2 is not in dispute. As per the proforma invoice, the vehicle cost alone comes to Rs.6,99,000/-. As the dealer, generally it is the duty of the dealer to register the vehicle, and handover, for that insurance is a must.
Thus even as per the Proforma Invoice, the total amount payable for the car was Rs.7,27,595/-. On the date of the information regarding the availability of the car, the complainant had paid only a sum of Rs.5,70,000/-, and the remaining amount he has not been paid, or he has not agreed to pay the price prevailing on the date of delivery.
8. In the proforma invoice itself, they have made it clear Price subject to change without notice and price prevailing at the time of delivery alone are applicable . Therefore, it is not open to the complainant to say that the opposite parties have agreed to deliver the vehicle, after registering and taking insurance, only for Rs.699000/-, and it is the practice of every company, that the price is subject to change, without notice, as available on the date of delivery alone.
Therefore, it is futile on the part of the complainant to contend, that he is entitled to take the vehicle, as per the original proforma invoice price, forgetting the note, closing his eyes to read the condition, which was unfortunately followed by the District Forum also, as if the 2nd opposite party should deliver the vehicle, for the price agreed as per the proforma invoice. The term proforma invoice itself, would indicate the price quoted there, is not a final price, and it is subject to variation, and that is why under the heading note, it is specifically stated, price is subject to variation without notice. Admittedly, the complainant has not offered to pay the value of the vehicle, on the date of delivery, and therefore the non-delivery of the vehicle, by the opposite parties, cannot be termed as unfair trade practice, or negligent act, or deficiency in service, as the case may be, as available under the Consumer Protection Act.
9. It is most unfortunate, on the part of the District Forum, in directing to deliver the vehicle, and to receive the amount, as per the price mentioned in Ex.A2, which cannot be correct also, branding the same as unfair trade practice, but the fact remains, the complainant had paid the sum of Rs.5,70,000/-, and car has not been delivered. Then we have to think, what is the remedy available to the complainant, irrespectively alleged deficiency in service.
10. For the forgoing reasons, we are of the considered opinion, the opposite parties have not committed any unfair trade practice, or deficiency in service, and therefore it is not our duty, to issue any such direction for payment, and even we may say, the parties can workout their remedy, approaching the proper forum.
If we do so, the parties have to start another round of litigation, which we are not willing to do, and therefore, in order to settle the dispute between the parties, taking into the admitted facts, we are inclined to give a proper remedy, only in order to meet the ends of justice, and not on the basis of merit, as claimed by the complainant legitimately. Except a sum of Rs.10000/-, the balance amount of Rs.560000/- was paid by the bank, and the bank is entitled to have a lien, or hypothecation, over the vehicle, if the vehicle had been delivered. In this case, the vehicle cannot delivered, since the complainant is not willing to pay the balance. Therefore, if we order the amount paid by the bank, to the complainant, the bank may be in problem, in realizing the amount, and at the same time, it is not fair on the part of the opposite parties, especially the 2nd opposite party to retain the amount. Taking into account, all these facts, we are inclined to pass an appropriate order, modifying the order of the District Forum, only in order to avoid further litigation, not accepting the case of the complainant as such.
11. In the result, the appeal is allowed, modifying the order of the District Forum in CC.1/2007 dt.10.5.2010, directing the 2nd opposite party to return a sum of Rs.10000/- to the complainant directly, and the remaining sum of Rs.560000/- to the Karur Vysya Bank, under intimation to the complainant, who is directed to workout his remedy, if any, if any, with the bank, if he has paid any initial payment/ instalment therein, ordering no cost, and interest, since the non-refund of the amount, or non-delivery of the vehicle, are due to fault committed by the complainant, and therefore we refrain to give any interest.
The above exercise, by the 2nd opposite party, should be completed, i.e. the return of the money, within two months, from today, failing which the 2nd opposite party shall pay the interest @12% p.a., not only to the complainant for Rs.10000/-, but also to the bank, on Rs.5,60,000/-. Complaint against opposite parties 1 & 3 dismissed, complaint against opposite parties 1 to 3 dismissed .
12. On compliance of the above order, and proof, the opposite party shall receive the mandatory deposit, with accrued interest, from this commission, on filing petition.
VASUGI RAMANAN A.K.ANNAMALAI M.THANIKACHALAM MEMBERII JUDICIALMEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Miscellaneous