Indus Motor Co Pvt Ltd vs Aneesh S

REVISION Petition No.2840 of 2012 has been filed against the order dated 28.3.2012, passed by Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (short, "State Commission") in First Appeal No.581 of 2011.

THE brief facts of the case as per the respondent/complainant are that the respondent booked a pre -owned ALTO LXI 2006 model car with the petitioner/opposite party by paying the price of Rs.2,09,000/ - on 23.4.2010. The vehicle selected by the respondent is having the Registration No.KL -7BD -3032. The amount was entrusted with Mr.Ali who was the in -charge of pre -owned car counter. After receiving the amount, he had issued the pre -owned car booking form. He offered to deliver the vehicle within three days. The vehicle kept in the showroom was shown to the respondent and he was satisfied with the vehicle after inspection and he made the payment. On 26.4.2010, the respondent visited the showroom of the petitioner for taking delivery of the vehicle. On that day, the respondent was told to come on 29.4.2010 after completing the repairing work. When the respondent reached with the petitioner/Showroom on 29.4.2010, the petitioner refused to deliver the vehicle stating that the said Ali, who had accepted the money had committed suicide.

ON 30.4.2010, the respondent filed a complaint before the Circle Inspector of Police and he was told that several others had also filed similar complaints and all of them to be considered jointly. Since, no action was taken by the police in this regard, another complaint was filed before the C.I. of Police on 27.5.2010. But no action was taken by them so far as to redress the grievance of the respondent. The respondent had booked the car by remitting Rs.2,09,000/ - only because of the fact that the vehicle was kept in the showroom of the petitioner and the petitioner being a reputed dealer of M/s Maruti Udyog Ltd. Since, the amount was collected by the employee of the petitioner/firm. The petitioner being the employer of the deceased Mr.Ali was vicariously liable to compensate the respondent. The refusal on the part of the petitioner to deliver the vehicle after collecting the price amounts to deficiency on their part. The respondent was entitled for the delivery of the vehicle bearing No.KL -7BD -3032 or in the alternative to get back Rs.2,09,000/ - alongwith interest at the rate of 15% p.a. from the date of booking till realization.

IN their reply, the petitioner/opposite party stated that "The allegation that the complainant had booked an ALTO LXI car with registration No.KL7 -BD/3032 with opposite party on 23.4.2010 is not correct and hence denied by this opposite party. The practice by this opposite party and by all other dealers, who are dealing with the pre -owned cars is that when a customer comes up to purchase a preowned car and if he requests to issue a car booking form, the same will be issued to him showing the value and other details of the vehicle. If the customer is satisfied and ready and willing to purchase a particular pre -owned car, an advance will be collected from him and the required repair works, polishing and touch up will be done by the dealer. Receipts will be issued to the customer if any amount is received from him by way of advance or sale consideration. The vehicle will be released to the customer after completion of the said works and on receipt of the balance amount. The opposite party does not collect more than Rs.5,000/ - towards advance booking. After completing all the works only the vehicle will be delivered to the customer and that time only he has to pay the balance amount. Here in this case as per the same was not received to the opposite party. The contra allegations are not true and are false and hence denied.

The allegation made in paragraph 2 of the complaint that he had visited the showroom on 26.4.2010 to take delivery of the vehicle and at that time he was told to come on 29.4.2010 is not correct. If the statement that the complainant had come to take delivery of the vehicle on 29.4.2010, he would have made the advance amount before that date. But no amount was received by this opposite party and no such assurance was given to him as alleged. It any amount was received by the opposite party, valid receipt would have been issued to the complainant and corresponding records would have seen in the office.

It is true that one of our stall Mr.Ali had committed suicide for the reasons best known to him only. The allegation of the complainant that he had filed complaints before the Circle Inspector of Police on 30.4.2010 and27.5.2010 is not within the knowledge of this opposite party.

The allegation that since the amount was collected by the employee of the opposite party firm in their counter, the opposite party being the employer of the deceased Ali is vicariously liable to compensate and that the refusal on the part of the opposite party to deliver the vehicle after collecting the price amount to deficiency on their part are not true or correct and hence, denied by the opposite party. The deceased Ali did not collect the amount from the complainant in the counter of the opposite party as alleged and the said Ali was never authorized to collect money on behalf of this opposite party. The concerned cashier is authorized to collect money from the customers and on receiving the payments the receipt also will be issued for the same. In the case of complainant, the opposite party never received any amount from the complainant as alleged by him. The opposite party issued receipts for all the payments received in its office and Mr.Ali was never worked as a cashier of this opposite party. The contra allegations are false and hence, denied by the opposite party.

DISTRICT Consumer Disputes Redressal Forum, Ernakulam (short, "District Forum") vide their order dated 27.5.2011, allowed the complaint and passed the following order ; "It is evident from Ext.A1 pre -owned car booking form that there is no provision to show whether the acceptance of the amount is as advance or in full settlement of the price. The opposite party has categorically admitted that they do not accept more than Rs.5,000/ - as advance so evidently the transaction was contractually for consideration of the full amount of the same. The opposite party does not have a case that the said Ali was not their employee. Therefore, the opposite party is liable either to deliver the vehicle in question to the complainant or to refund Rs.2,09,000/ - to the complainant.

In the result, we allow the complaint and direct that the opposite party shall deliver the car as per Ext.A.1 order booking form or refund Rs.2,09,000/ - to the complainant. The order shall be complied with, within a period of one month from the receipt of a copy of this order failing which the above amounts carry interest @ 12% p.a. till payment."

AGGRIEVED by the order of the District Forum, the petitioner filed an appeal before the State Commission. Vide their order dated 28.3.2012, State Commission dismissed the appeal and gave the following order : - "In the result, this appeal is dismissed and confirmed the order passed by the forum below. The appellant/ opposite party is directed to pay Rs.500/ - as cost of the appeal proceedings."

HENCE , the revision petition.

WE have heard learned counsel for the petitioner and gone through the record.

LEARNED counsel for the petitioner has contended that : - "The forum below had failed to consider the fact the DW1 had specifically stated in his evidence that no person including the Manager was empowered to obtain cash from the customers. Moreover, the evidence of the DW1 makes it clear that a customer who is satisfied with a particular vehicle was required to pay an advance amount at the cash counter of the workshop cum showroom and obtain a receipt for the said payment after being issued a car booking form by the sales person. It was further made clear in the evidence that even for taking delivery the customer was required to show the receipt issued by the cash counter for having made the balance payment towards the cost of the vehicle. In absence of such a receipt the case of the respondent was only an experimental case of a fraudster in guise of consumer trying to make unlawful gains at the expense of a deceased employee.

The Consumer Forum had wrongly found that there is no provision in the pre -owned car booking form to show whether the acceptance of the amount is as advance or in full settlement of the price. There is a specific column in Ext. A1 form for the total price of the vehicle, advance received and balance to be paid etc. and no amount was written in the Ext.A1 against the advance received.

The Consumer Forum ought to have found that the Ext.A1 is only a booking form and anybody can collect the same by enquiring about the price and features of the vehicle and it is not a receipt for the payment. The Forum had gone wrong in finding that the appellant/opposite party is liable to compensate the complainant only on the sole reason that the opposite party had admitted that Shri Ali was their employee and the liability was fixed on them without any evidence. The respondent/complainant even could not establish any case or failed to produce any document to show that he had made payment to Ali or any other person.

The Consumer Forum did not consider the fact that in a company like the petitioner, receipts will be issued to its customers if any amount received from them by way of advance or sale consideration. The Forum ought to have considered the fact that a nominal advance amount only will be collected from the customers and the balance amount to be paid by the customers and the balance amount to be paid by the customers after the required repair works, polishing and touch up done by the dealer. Here in this case no documents or evidence to prove that any amount was collected from the respondent/complainant and no receipt was issued by the petitioner/opposite party.

WE have carefully gone through the pre -owned car booking form. It is apparent that the District Forum has erred in concluding that in the pre -owned car booking form there was no provision to show whether the acceptance of the amount is as advance or in full settlement of the price. There are specific columns in Ext. A1 form for the total price of the vehicle, advance received and balance to be paid. The columns relating to advance received and balance to be paid are blank. Further, there is no evidence in the car booking form that any advance was taken by the petitioner or its Authorized Representative. The respondent has also failed to produce a receipt. It is difficult to believe that the respondent would hand over Rs.2,09,000/ - to a person even he was an employee of the petitioner, without insisting on a receipt or without even ensuring that the amount so given is mentioned in the car booking form. A perusal of the complaint as also the documents on record to show that apart from the statement of the respondent/complainant that he made a payment of Rs.2,09,000/ -, there is nothing on record to support the same. We also find from the complaint that the respondent was aware on 23.4.2010, when he saw the vehicle, that it required some repairing work. On 26.4.2010, the respondent visited the showroom of the petitioner for taking delivery of the vehicle but he was told that it was still not ready and he was asked to come on 29.4.2010 so that repairing work can be completed. The respondent has nowhere in the complaint stated as to how and why instead of giving a token advance to book the car made full total cost of pre -owned car which was under repair on 23.4.2010 and that too without ensuring mention of the same in the pre -owned car booking form and without even ensuring that he got an official receipt for the payment made. Further, he has also not mentioned as to whether he has paid a sum of Rs.2,09,000/ - in cash or by cheque. As per Section 40A of the Income Tax Act and Rule 6A of the Income Tax Rules, no recognition is taken of payments and receipt otherwise. Hence the important issue to be decided is not whether Mr. Ali was an employee of the petitioner but whether the respondent had made full payment for the vehicle on 23.4.2010 and as mentioned above, the respondent has failed to support his statement that he had made full payment on that date.

HENCE , in view of the above, we allow the revision petition, set aside the orders of the fora below and dismiss the complaint.