The Branch Manager, Laxmi Ganapathy Automobiles Pvt Ltd. and Another Vs. B. Swamy and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1148008
CourtAndhra Pradesh State Consumer Disputes Redressal Commission SCDRC Hyderabad
Decided OnMar-24-2014
Case NumberF.A.No. 131 of 2013 Against C.C.No. 368 of 2011 District Forum Warangal
JudgeTHE HONOURABLE MR. THOTA ASHOK KUMAR, MEMBER & THE HONOURABLE MR. S. BHUJANGA RAO, MEMBER
AppellantThe Branch Manager, Laxmi Ganapathy Automobiles Pvt Ltd. and Another
RespondentB. Swamy and Another
Excerpt:
oral order: (thota ashok kumar, member) 1. the opposite parties no.1 and 2 are the appellants. for convenience sake the parties as arrayed in the complaint are referred to hereunder. 2. the brief facts as seen from the complaint are that the complainant booked mahindra scorpio model scorf mdi bs2 2wd tco 7sf rhd by paying booking amount of rs.10,000/- with the opposite parties no.1 and 2 and the complainant was assured that they would deliver the above model manufactured in the year 2010. on road price of the said vehicle was rs.8,78,789/- while ex-show room price was mentioned as rs.7,21,914/-. on 21.05.2010 the complainant obtained loan from andhra bank and paid rs.8,78,789/- through d.d. and the same was acknowledged by opposite party no.2 through receipt dated 21-05-2010. the opposite party no.2 delivered the vehicle through opposite party no.1 and issued tax invoice for an amount of rs.7,21,914/-and form no.22 without mentioning date, month and year of manufacturing of the vehicle at warangal branch office. the opposite party no.1 assured the complainant that he would return the excise duty amount since the complainant purchased the vehicle for taxi purpose. the opposite parties delivered the vehicle manufactured in the year 2009 as against the assurance that they would deliver 2010 model vehicle. the complainant got issued notice on 28-10-2011 for which no reply was received. hence the complainant filed the complaint before the district forum seeking direction to opposite parties to pay rs.1,50,000/- towards variation amount and rs.50,000/- towards central excise duty. 3. the opposite parties no.1 and 2 resisted the complaint contending that thecomplainant had taken the delivery of the vehicle of his choice, knowing fully well its make, model and year of manufacture. the complainant had insisted to deliver the vehicle that was readily available. the invoice was dated 25-05-2010, the manufacturing period was shown as december, 2009, as such there was no deficiency of service on the part of opposite parties 1 and 2 and thus they prayed for dismissal of the complaint. 4. the opposite party no.3 equally resisted the case contending that the vehicle has been sold and delivered to the complainant in working condition by the opposite party no.1. the complainant has not made any specific mention of any manufacturing defect except a vague statement that the vehicle purchased by the complainant was of the year 2009 but not of the year 2010 and as such prayed for dismissal of the complaint. 5. the complainant filed his affidavit and the documents, exs.a1 to a21 were marked. on behalf of the opposite parties no.1 and 2, the branch manager of the opposite epartyno.1 and the deputy general manager of the opposite party no.3 filed their respective affidavits and did not choose to file any documents on their behalf. 6. the district forum based upon the averments in the complaint as well as in the counter, supported by proof affidavits and the documents, allowed the complaint directing the opposite parties to pay rs.87,486 towards excess amount withy interest @ 7.5% p.a., rs.25,000/- towards compensation and costs of rs.5,000/-. 7. aggrieved by the order of the district forum the opposite parties no.1 and 2 filed the appeal contending that the district forum observed that the complainant used the vehicle for a period of 18 months but there is no whisper in the complaint with regard to functioning of the vehicle that there was no documentary evidence to establish that there was any misrepresentation on the part of the opposite parties and that in view of the judgment of the honble national commission in mehsana agro auto machinery pvt ltd., vs baldevbhai patel in f.a.no.693 of 1994 there was no wrong in collecting more price as prevailed on the date of delivery that the national commission in maruti udyog ltd., vs mr.s.bhuvana vishwanathan and others held that in case of sale of goods of simpliciter it does not involve any service for consideration and late delivery is not a deficiency in providing service and that the punjab state commission which was reported in iv 2010 cpj 2008 also held that where there was no complaint about the work of the vehicle/tractor and where a tractor sold in 2000 and not in 2002 as represented by the opposite party then there was no deficiency of service on the part of the opposite parties. 8. heard both side counsel in this appeal. 9. now the point for consideration is whether the order of the district forum is vitiated either in law or on facts? 10. it is not in dispute that the complainant purchased mahindra scorf mdi bs2 2wd tco 7sf rhd by paying rs.8,78,780/- from the opposite party no.1 by obtaining loan from the bank. it is also not in dispute that the vehicle is of 2009 model and took delivery of the vehicle on 21.05.2010. the main grievance of the complainant is that the opposite parties no.1 and 2 collected the amount as per price list dated 03.03.2010 but they have delivered 2009 model vehicle which is not as per the price list prevailing at that timeand thus they have collected excess of rs.87,486/- which they are not legally entitled to. 11. on the other hand it is the main contention of the opposite parties that the complainant had taken the delivery of the vehicle of his choice, knowing fully well its make, model and year of manufacture and that the complainant had insisted to deliver the vehicle that was readily available otherwise the complainant has to wait for two months to get new model vehicle manufactured in the year 2010 and this fact was also informed to the complainant but he insisted the delivery of the vehicle which was readily available. 12. it is specially mentioned in the ex.a11, form-21/sale certificate which was issued in favour of the complainant by the opposite party the year of the manufacturing of vehicle as 12/2009. therefore the contention of the complainant that he was misguided and instead of 2010 model vehicle 2009 model was given to him could not be appreciated. admittedly the vehicle was purchased as seen from invoice on 25.5.2010 and the record disclose that the consumer complaint was filed on 21.11.2011. in between the said two dates the complainant did not allege deficiency in service on the part of the opposite parties. thus there is acceptable force in the contention of the opposite parties that the complainant had used the vehicle for about 18 months and did not dispute the said aspect or any manufacturing or functional defect in the vehicle. 13. the counsel for the opposite party relied upon the decision of the honble national commission in mehsana agro auto machinery pvt ltd., vs baldevhai m.patel in f.a.no.693 of 1994 decided on 24.1.2000 wherein it was held that the price which is prevalent on the date of delivery of car has to be paid by the buyer. 14. in this case, the opposite party no.1 collected the price of the vehicle based on the price list dated 3.3.2010. the complainant booked the vehicle on 12.4.2010 i.e., after issuance of the said price list dated 3.3.2010 and in such circumstances the opposite party no.1 is justified in collecting the price in respect of the subject vehicle basing on the said price list dated 3.3.2010 and the said action of the opposite party no.1 is supported by the said decision. it appears that the complainant to avoid waiting period had purchased the vehicle which was very much available with the opposite party. there is no justification in the order of the district forum in directing the opposite parties to refund rs.87,486/- alleged difference in the price of the vehicle as there is no deficiency in service on the part of the opposite parties. therefore the order of the district forum is liable to be set aside by allowing the appeal. 15. in the result the appeal is allowed setting aside the order of the district forum. consequently, the complaint is dismissed. there shall be no order as to costs.
Judgment:

Oral Order: (Thota Ashok Kumar, Member)

1. The opposite parties no.1 and 2 are the appellants. For convenience sake the parties as arrayed in the complaint are referred to hereunder.

2. The brief facts as seen from the complaint are that the complainant booked Mahindra Scorpio model SCORF MDI BS2 2WD TCO 7SF RHD by paying booking amount of Rs.10,000/- with the opposite parties no.1 and 2 and the complainant was assured that they would deliver the above model manufactured in the year 2010. On road price of the said vehicle was Rs.8,78,789/- while ex-show room price was mentioned as Rs.7,21,914/-. On 21.05.2010 the complainant obtained loan from Andhra bank and paid Rs.8,78,789/- through D.D. and the same was acknowledged by opposite party No.2 through receipt dated 21-05-2010. The opposite party No.2 delivered the vehicle through opposite party No.1 and issued tax invoice for an amount of Rs.7,21,914/-and Form No.22 without mentioning date, month and year of manufacturing of the vehicle at Warangal Branch office. The opposite party No.1 assured the complainant that he would return the excise duty amount since the complainant purchased the vehicle for taxi purpose. The opposite parties delivered the vehicle manufactured in the year 2009 as against the assurance that they would deliver 2010 model vehicle. The complainant got issued notice on 28-10-2011 for which no reply was received. Hence the complainant filed the complaint before the District Forum seeking direction to opposite parties to pay Rs.1,50,000/- towards variation amount and Rs.50,000/- towards central excise duty.

3. The opposite parties No.1 and 2 resisted the complaint contending that thecomplainant had taken the delivery of the vehicle of his choice, knowing fully well its make, model and year of manufacture. The complainant had insisted to deliver the vehicle that was readily available. The invoice was dated 25-05-2010, the manufacturing period was shown as December, 2009, as such there was no deficiency of service on the part of opposite parties 1 and 2 and thus they prayed for dismissal of the complaint.

4. The opposite party No.3 equally resisted the case contending that the Vehicle has been sold and delivered to the complainant in working condition by the opposite party No.1. The complainant has not made any specific mention of any manufacturing defect except a vague statement that the vehicle purchased by the complainant was of the year 2009 but not of the year 2010 and as such prayed for dismissal of the complaint.

5. The complainant filed his affidavit and the documents, Exs.A1 to A21 were marked. On behalf of the opposite parties no.1 and 2, the Branch Manager of the opposite epartyno.1 and the Deputy General Manager of the opposite party no.3 filed their respective affidavits and did not choose to file any documents on their behalf.

6. The District Forum based upon the averments in the complaint as well as in the counter, supported by Proof Affidavits and the documents, allowed the complaint directing the opposite parties to pay Rs.87,486 towards excess amount withy interest @ 7.5% p.a., Rs.25,000/- towards compensation and costs of Rs.5,000/-.

7. Aggrieved by the order of the District Forum the opposite parties no.1 and 2 filed the appeal contending that the District Forum observed that the complainant used the vehicle for a period of 18 months but there is no whisper in the complaint with regard to functioning of the vehicle that there was no documentary evidence to establish that there was any misrepresentation on the part of the opposite parties and that in view of the judgment of the Honble National Commission in Mehsana Agro Auto Machinery Pvt Ltd., vs Baldevbhai Patel in F.A.No.693 of 1994 there was no wrong in collecting more price as prevailed on the date of delivery that the National Commission in Maruti Udyog Ltd., vs Mr.S.Bhuvana Vishwanathan and others held that in case of sale of goods of simpliciter it does not involve any service for consideration and late delivery is not a deficiency in providing service and that the Punjab State Commission which was reported in IV 2010 CPJ 2008 also held that where there was no complaint about the work of the vehicle/tractor and where a tractor sold in 2000 and not in 2002 as represented by the opposite party then there was no deficiency of service on the part of the opposite parties.

8. Heard both side counsel in this appeal.

9. Now the point for consideration is whether the order of the District Forum is vitiated either in law or on facts?

10. It is not in dispute that the complainant purchased Mahindra SCORF MDI BS2 2WD TCO 7SF RHD by paying Rs.8,78,780/- from the opposite party no.1 by obtaining loan from the bank. It is also not in dispute that the vehicle is of 2009 model and took delivery of the vehicle on 21.05.2010. The main grievance of the complainant is that the opposite parties no.1 and 2 collected the amount as per price list dated 03.03.2010 but they have delivered 2009 model vehicle which is not as per the price list prevailing at that timeand thus they have collected excess of Rs.87,486/- which they are not legally entitled to.

11. On the other hand it is the main contention of the opposite parties that the complainant had taken the delivery of the vehicle of his choice, knowing fully well its make, model and year of manufacture and that the complainant had insisted to deliver the vehicle that was readily available otherwise the complainant has to wait for two months to get new model vehicle manufactured in the year 2010 and this fact was also informed to the complainant but he insisted the delivery of the vehicle which was readily available.

12. It is specially mentioned in the Ex.A11, Form-21/Sale Certificate which was issued in favour of the complainant by the opposite party the year of the manufacturing of vehicle as 12/2009. Therefore the contention of the complainant that he was misguided and instead of 2010 model vehicle 2009 model was given to him could not be appreciated. Admittedly the vehicle was purchased as seen from invoice on 25.5.2010 and the record disclose that the consumer complaint was filed on 21.11.2011. In between the said two dates the complainant did not allege deficiency in service on the part of the opposite parties. Thus there is acceptable force in the contention of the opposite parties that the complainant had used the vehicle for about 18 months and did not dispute the said aspect or any manufacturing or functional defect in the vehicle.

13. The counsel for the opposite party relied upon the decision of the Honble National Commission in Mehsana Agro Auto Machinery Pvt Ltd., Vs Baldevhai M.Patel in F.A.No.693 of 1994 decided on 24.1.2000 wherein it was held that the price which is prevalent on the date of delivery of car has to be paid by the buyer.

14. In this case, the opposite party no.1 collected the price of the vehicle based on the price list dated 3.3.2010. The complainant booked the vehicle on 12.4.2010 i.e., after issuance of the said price list dated 3.3.2010 and in such circumstances the opposite party no.1 is justified in collecting the price in respect of the subject vehicle basing on the said price list dated 3.3.2010 and the said action of the opposite party no.1 is supported by the said decision. It appears that the complainant to avoid waiting period had purchased the vehicle which was very much available with the opposite party. There is no justification in the order of the District Forum in directing the opposite parties to refund Rs.87,486/- alleged difference in the price of the vehicle as there is no deficiency in service on the part of the opposite parties. Therefore the order of the District Forum is liable to be set aside by allowing the appeal.

15. In the result the appeal is allowed setting aside the order of the District Forum. Consequently, the complaint is dismissed. There shall be no order as to costs.