Quadros Motors, Through Evancio Quadros Vs. Smita Sawant @ Smita Wadikar and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1147981
CourtGoa State Consumer Disputes Redressal Commission SCDRC Panaji
Decided OnMar-26-2014
Case NumberFA No. 02 of 2014
JudgeN.A. BRITTO, PRESIDENT & THE HONOURABLE MR. JAGDISH PRABHUDESSAI, MEMBER
AppellantQuadros Motors, Through Evancio Quadros
RespondentSmita Sawant @ Smita Wadikar and Another
Excerpt:
n.a. britto, president: 1. this appeal is filed by opposite party no.1 in c.c. no. 03/2010, and is directed against order dated 13/02/2013 of the south goa district forum, margao by which the consumer complaint filed by the complainant has been allowed. 2. some facts are required to be stated to dispose off this appeal and for that the parties to this appeal will be referred to in the names as they appear in the cause title of the complaint. 3. the complainant visited the showroom of op no.1 on 25/04/2009 and obtained a quotation for purchase of suzuki access 125 for rs.51,338/-. the complainant desired to have the said scooter on 27/04/2009, that being akshay tritiya day, and, on being told by mr. quadros that in case she paid the entire money on that day she could get the said scooter on the said akshay tritiya day. mr. quadros also impressed on the complainant that he would provide a red colour scooter which would be elegant for a lady. the complainant, therefore, immediately paid rs.10,000/- and returned home and went back with a balance of rs.41,338/- and thus paid the entire sum of rs.51,338/-. 4. the complainant then went to collect the scooter on 27/04/2009. however, there was no scooter to be given to the complainant and the complainant was told that on account of delay in transport the vehicle had not arrived and that they would arrive in the evening. the complainant claims that she went on the next day i.e. 28/04/2009 to collect her scooter and she was told that although the scooters had arrived they were not checked by the rto and the complainant was told that she would be informed as to when she should come. the complainant claims that she went to the showroom on 6/05/09 in the morning to inquire about the scooter and she was told by mr. quadros of op no.1 that the complainant should come and collect the scooter at 5.30 p.m. on that day. 5. shri mendonca, the lr. advocate of op no.1, submits that the complainant could not be delivered the scooter on akshay tritiya day on 27/04/2009 because the scooters had not arrived from op no.2. however, it is to be noted that the complainant was assured that she would get the scooter on that day in case she had made the entire payment on 25/04/09 itself. op no.1 was unable to keep the assurances given to the complainant and that would be deficiency in service, on the part of op no.1. 6. the complainant claims that she went to the showroom on 6/05/09 at 5.30 p.m. and contacted mr. quadros of op no.1 who told her to meet the receptionist. according to op no.1, the complainant reached on that day at about 6 p.m., around closing time and persistently started demanding possession of the scooter from the receptionist and as the complainant came late and as the paper work would take a long time the scooter could not be delivered to the complainant and therefore the complainant was requested to come on 07/05/2009. 7. the complainant claims that she went to the showroom on 7/05/2009 at around 10 a.m. to collect the scooter and contacted the receptionist and asked her whether the scooter was ready and the complainant was told that her red colour scooter was parked at the back of the showroom. the complainant claims that she went to see the said scooter and saw it in damaged condition and came back and told the receptionist about the same and the receptionist neglected her and then she approached mr. quadros to tell him that the scooter was damaged and that she would not take the delivery of a damaged scooter and mr. quadros told her that he was busy and that she should meet him on the next day. 8. as per op no.1, on 7/05/09, the receptionist was occupied with other customers and seeing that, the complainant got aggressive, and started hurling abuses and threatening the receptionist and then the complainant trespassed in the workshop and took photographs of the scooters kept there and again came back and threatened the receptionist and told her that she was going to file a consumer case whereupon mr. quadros walked up to the complainant and tried to make her see sense and the complainant grew more aggressive and went to the showroom glass frame wall and hit it with her fist breaking the showroom glass worth about rs.9,720/-. 9. the complainant claims that she went again to the showroom on 8/05/09 at 10 a.m. and mr. quadros was in his cabin and she told the receptionist to tell mr. quadros that she had come to collect the scooter and she was waiting to meet him and she waited to meet mr. quadros till 12 noon but he did not meet the complainant and she went again to the rear side to see the scooter and again at that time clicked photographs of the damaged red colour scooter. the complainant claimed that she told the receptionist that she was sitting in the office for two hours and they had no courtesy to attend to her and upon hearing this, the receptionist insulted her and told her not to speak to her and the complainant told her that she had paid entire amount for the scooter and in case they delayed any further, the complainant would lodge a police complaint and the receptionist gave a call to mr. quadros, who came out and told the complainant in abusive language that he would not give the scooter and she could do whatever she liked and even she could complaint to the sp as he was not bothered because he was taking care of the police officers.  10. the op has denied this part of the story of the complainant and has stated that the complainant did not pay for the showroom glass, the op decided to file a police complaint on the same day to recover the damage of rs.9,720/-. op no.1 also claims that they suffered a huge loss of reputation and goodwill. 11. in support of the complaint, the complainant produced a copy of the complaint filed by her to dy. sp, margao stating that op no.1 had registered the vehicle without showing the vehicle to her before registration and when the complainant saw the vehicle it was in damaged condition and the complainant therefore refused to take delivery. it appears, that eventually, the complainant was told by the police that she should approach the consumer forum. op no.1, as noted by lr. district forum, did not file their written version within the prescribed time but filed the same only on 16/02/2012 and the delay appears to have been condoned by the lr. district forum, op no.1 having filed an application for condonation of delay on 27/04/2010. op no.1 did not file their affidavit in evidence, as noted by lr. district forum inspite of having been given ample opportunities and on 11/03/20913, the evidence of op no.1 was closed and an application filed on 12/03/2013 to reopen the same was dismissed by order dated 21/06/2013. 12. shri mendonca, the lr. advocate of op no.1, would submit that the complainant did not collect the scooter because the complainant had a problem with the receptionist. lr. advocate next submits, that the complainant came late on 6/05/2009 and was told to come on 7/05/2009 on which date the complainant trespassed into their premises and took more photographs and later the complainant got agitated and broke their glass. lr. advocate submits that the complainant did not collect the scooter on 7/05/09 on the allegation that the scooter was damaged but infact lr. advocate submits that the complainant did not collect the scooter because of ego problem. lr. advocate would submit that the reliefs sought for by the complainant show her stubborn mindset. lr. advocate would submit that the op no.1 has produced photographs which show the damage caused by breaking of the glass. lr. advocate would submit that they had suggested for appointment of a commissioner to find out if there was any damage to the scooter but no commissioner was appointed. 13. we are not impressed with the submissions made by shri mendonca, the lr. advocate of op no.1. it is interesting to note that op no.1 did not file their written version during the time prescribed by the consumer protection act, 1986 but the fact remains that the complainant has not challenged the order dated 16/02/2012 by which op no.1 was granted time to file written version beyond the time contemplated by c.p. act, 1986. 14. the lr. district forum has observed more than twice, in the impugned order, that there was no evidence before them to show that the vehicle was damaged, and, if that be the case we are unable to understand as to on what basis the complaint has been allowed. it was for the complainant to prove that the scooter which she went to take possession was damaged and not for the ops to show that the vehicle was in perfect condition. complainant has produced the photographs and so also her complaint to the police. that the complainant had taken the photographs is an admitted position. the record does not show that op no.1 had applied for a commissioner to be appointed to verify the damage. op no.1 has also not produced any complaint filed by them to the police against the complainant for breaking the glass. the lr. district forum appears to have seen only the xerox copies of the photographs produced by the complainant and got confused. the originals of the said photographs were produced before us and from the same it can be clearly seen that the scooter of the complainant was damaged, and, if that be so, the complainant could not have been expected to take possession of a damaged scooter. in our view, the reasoning of the lr. district forum can certainly be faulted, but not the conclusion. 15. as far as the damage caused by the complainant to op no.1, by breaking the glass the lr. district forum has held, and in our view rightly, that the forum has no powers to look into the same and that op no.1 will have to address that issue before the proper forum/ authorities. it may be noted that the forum is meant only for consumers and not to others. 16. we therefore find there is no merit in this appeal and accordingly we proceed to dismiss the same with costs of rs.5,000/- to be paid by op no.1 to the complainant.
Judgment:

N.A. Britto, President:

1. This appeal is filed by Opposite Party No.1 in C.C. No. 03/2010, and is directed against order dated 13/02/2013 of the South Goa District Forum, Margao by which the consumer complaint filed by the Complainant has been allowed.

2. Some facts are required to be stated to dispose off this appeal and for that the parties to this appeal will be referred to in the names as they appear in the cause title of the complaint.

3. The Complainant visited the showroom of OP No.1 on 25/04/2009 and obtained a quotation for purchase of Suzuki Access 125 for Rs.51,338/-. The Complainant desired to have the said scooter on 27/04/2009, that being Akshay tritiya day, and, on being told by Mr. Quadros that in case she paid the entire money on that day she could get the said scooter on the said Akshay Tritiya day. Mr. Quadros also impressed on the Complainant that he would provide a red colour scooter which would be elegant for a lady. The Complainant, therefore, immediately paid Rs.10,000/- and returned home and went back with a balance of Rs.41,338/- and thus paid the entire sum of Rs.51,338/-.

4. The Complainant then went to collect the scooter on 27/04/2009. However, there was no scooter to be given to the Complainant and the Complainant was told that on account of delay in transport the vehicle had not arrived and that they would arrive in the evening. The Complainant claims that she went on the next day i.e. 28/04/2009 to collect her scooter and she was told that although the scooters had arrived they were not checked by the RTO and the Complainant was told that she would be informed as to when she should come. The Complainant claims that she went to the showroom on 6/05/09 in the morning to inquire about the scooter and she was told by Mr. Quadros of OP No.1 that the Complainant should come and collect the scooter at 5.30 p.m. on that day.

5. Shri Mendonca, the lr. advocate of OP No.1, submits that the Complainant could not be delivered the scooter on Akshay tritiya day on 27/04/2009 because the scooters had not arrived from OP No.2. However, it is to be noted that the Complainant was assured that she would get the scooter on that day in case she had made the entire payment on 25/04/09 itself. OP No.1 was unable to keep the assurances given to the Complainant and that would be deficiency in service, on the part of OP No.1.

6. The Complainant claims that she went to the showroom on 6/05/09 at 5.30 p.m. and contacted Mr. Quadros of OP No.1 who told her to meet the receptionist. According to OP No.1, the Complainant reached on that day at about 6 p.m., around closing time and persistently started demanding possession of the scooter from the receptionist and as the Complainant came late and as the paper work would take a long time the scooter could not be delivered to the Complainant and therefore the Complainant was requested to come on 07/05/2009.

7. The Complainant claims that she went to the showroom on 7/05/2009 at around 10 a.m. to collect the scooter and contacted the receptionist and asked her whether the scooter was ready and the Complainant was told that her red colour scooter was parked at the back of the showroom. The Complainant claims that she went to see the said scooter and saw it in damaged condition and came back and told the receptionist about the same and the receptionist neglected her and then she approached Mr. Quadros to tell him that the scooter was damaged and that she would not take the delivery of a damaged scooter and Mr. Quadros told her that he was busy and that she should meet him on the next day.

8. As per OP No.1, on 7/05/09, the receptionist was occupied with other customers and seeing that, the Complainant got aggressive, and started hurling abuses and threatening the receptionist and then the Complainant trespassed in the workshop and took photographs of the scooters kept there and again came back and threatened the receptionist and told her that she was going to file a consumer case whereupon Mr. Quadros walked up to the Complainant and tried to make her see sense and the Complainant grew more aggressive and went to the showroom glass frame wall and hit it with her fist breaking the showroom glass worth about Rs.9,720/-.

9. The Complainant claims that she went again to the showroom on 8/05/09 at 10 a.m. and Mr. Quadros was in his cabin and she told the receptionist to tell Mr. Quadros that she had come to collect the scooter and she was waiting to meet him and she waited to meet Mr. Quadros till 12 noon but he did not meet the Complainant and she went again to the rear side to see the scooter and again at that time clicked photographs of the damaged red colour scooter. The Complainant claimed that she told the receptionist that she was sitting in the office for two hours and they had no courtesy to attend to her and upon hearing this, the receptionist insulted her and told her not to speak to her and the Complainant told her that she had paid entire amount for the scooter and in case they delayed any further, the Complainant would lodge a Police complaint and the receptionist gave a call to Mr. Quadros, who came out and told the Complainant in abusive language that he would not give the scooter and she could do whatever she liked and even she could complaint to the SP as he was not bothered because he was taking care of the Police officers.

 10. The OP has denied this part of the story of the Complainant and has stated that the Complainant did not pay for the showroom glass, the OP decided to file a Police complaint on the same day to recover the damage of Rs.9,720/-. OP No.1 also claims that they suffered a huge loss of reputation and goodwill.

11. In support of the complaint, the Complainant produced a copy of the complaint filed by her to Dy. SP, Margao stating that OP No.1 had registered the vehicle without showing the vehicle to her before registration and when the Complainant saw the vehicle it was in damaged condition and the Complainant therefore refused to take delivery. It appears, that eventually, the Complainant was told by the Police that she should approach the Consumer Forum. OP No.1, as noted by Lr. District Forum, did not file their written version within the prescribed time but filed the same only on 16/02/2012 and the delay appears to have been condoned by the Lr. District Forum, OP No.1 having filed an application for condonation of delay on 27/04/2010. OP No.1 did not file their affidavit in evidence, as noted by Lr. District Forum inspite of having been given ample opportunities and on 11/03/20913, the evidence of OP No.1 was closed and an application filed on 12/03/2013 to reopen the same was dismissed by order dated 21/06/2013.

12. Shri Mendonca, the lr. advocate of OP No.1, would submit that the Complainant did not collect the scooter because the Complainant had a problem with the receptionist. Lr. advocate next submits, that the Complainant came late on 6/05/2009 and was told to come on 7/05/2009 on which date the Complainant trespassed into their premises and took more photographs and later the Complainant got agitated and broke their glass. Lr. advocate submits that the Complainant did not collect the scooter on 7/05/09 on the allegation that the scooter was damaged but infact lr. advocate submits that the Complainant did not collect the scooter because of ego problem. Lr. advocate would submit that the reliefs sought for by the Complainant show her stubborn mindset. Lr. advocate would submit that the OP No.1 has produced photographs which show the damage caused by breaking of the glass. Lr. advocate would submit that they had suggested for appointment of a Commissioner to find out if there was any damage to the scooter but no Commissioner was appointed.

13. We are not impressed with the submissions made by Shri Mendonca, the lr. advocate of OP No.1. It is interesting to note that OP No.1 did not file their written version during the time prescribed by the Consumer Protection Act, 1986 but the fact remains that the Complainant has not challenged the order dated 16/02/2012 by which OP No.1 was granted time to file written version beyond the time contemplated by C.P. Act, 1986.

14. The Lr. District Forum has observed more than twice, in the impugned order, that there was no evidence before them to show that the vehicle was damaged, and, if that be the case we are unable to understand as to on what basis the complaint has been allowed. It was for the Complainant to prove that the scooter which she went to take possession was damaged and not for the OPs to show that the vehicle was in perfect condition. Complainant has produced the photographs and so also her complaint to the Police. That the Complainant had taken the photographs is an admitted position. The record does not show that OP No.1 had applied for a commissioner to be appointed to verify the damage. OP No.1 has also not produced any complaint filed by them to the Police against the Complainant for breaking the glass. The Lr. District Forum appears to have seen only the xerox copies of the photographs produced by the Complainant and got confused. The originals of the said photographs were produced before us and from the same it can be clearly seen that the scooter of the Complainant was damaged, and, if that be so, the Complainant could not have been expected to take possession of a damaged scooter. In our view, the reasoning of the Lr. District Forum can certainly be faulted, but not the conclusion.

15. As far as the damage caused by the Complainant to OP No.1, by breaking the glass the Lr. District Forum has held, and in our view rightly, that the Forum has no powers to look into the same and that OP No.1 will have to address that issue before the proper Forum/ authorities. It may be noted that the Forum is meant only for consumers and not to others.

16. We therefore find there is no merit in this appeal and accordingly we proceed to dismiss the same with costs of Rs.5,000/- to be paid by OP No.1 to the Complainant.