DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __153_ _ OF ___2016
DATE OF FILING : 20.12.2016 DATE OF PASSING JUDGEMENT:18 .2.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Arun Kumar Mukherjee, Vill. Subuddhipur (Beltala) , P.O & P.S B aruipur, Kolkata-144.
O.P/O.Ps : 1. ACE Marketing, 25/1, Chinar Park, Near Haldiram, Kolkata-157.
2. Bajaj Finance, Infinity Bench Marg Bldg., (Opp. R.D.B Cinema hall), Block-EP & GP, 12th Floor, SDP More, Salt Lake.
3. ACE Marketing, Baruipur Station Road, Near 4 No. Railway Platform (Adjacent to South Center Schoold), Kolkata- 144.
4. Mithuram Kanu, Phultala, Near Dudnai Scho0ol, Baruipur, Kolkata-144
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J U D G M E N T
Sri Ananta kapri, President
Facts leading to the filing of the instant case may be epitomized as follows.
Having been conned by the O.p nos. 3 and 4 on 6.6.2016, the complainant agreed to purchase a water purifier for a total price of Rs.18000/-. O.P nos. 3 and 4 lulled him into believing that he would get a considerable amount of discount if purchased by 12O’Clock (noon) next day. Accordingly, complainant booked the purifier having paid Rs.500/- and also by delivering cancelled printed cheque of his passbook and filled up form to O.P nos. 3 and 4. Thereafter, he i.e the complainant decided not to purchase the goods and, therefore, he informed the O.P nos. 3 and 4 of his decision. He also submitted a written application to this effect before them. They assured that the transaction would be cancelled. On 17.8.2016 , to his utter surprise, he came to know by having his passbook updated that the EMI of Rs.1500/- was deducted from his account. Then and then, he contacted with the O.P nos. 3 and 4 , but to no effect. In the meantime, Rs.1500/- was again deducted from his account. No delivery of the goods has been made to him, but EMI has been deducted. He has been made a victim of contrived unfair trade practice of all the O.Ps. He has filed the instant case now, praying for refund of Rs.3500/- and also for payment of compensation to the tune of Rs.8000/- for mental agony and harassment caused to him by the O.Ps. Hence, this case.
None of the O.ps except O.p-2 has entered into appearance to contest the case , inspite of service of summons upon them vide postal track report ,kept in the record. The case is ,therefore, heard exparte against them.
It is the O.P-2 i.e the alleged Financer of the complainant has filed written statement ,wherein it is contended inter alia that the complainant has availed a loan of Rs.18000/- for the purpose of purchasing a water purifier from the O.P-1, the manufacturer and dealer of the said goods. The said loan was repayable by 12 monthly installments of Rs.1500/- each. Loan account number of the complainant is 4100CD24451240. The complainant issued ECS mandate for repayment of installments ; installment no. 2,4,5,6 got dishonoured and Rs.9400/- stands due from the complainant to the O.P-2. O.p-2 is not the agent of O.p-1 and, therefore, it has no liability towards the complainant. The product has been delivered to the complainant and the invoice copy is filled with them. According to O.P-2, invoice copy is not generated until the product is delivered to the customer. The case of the complainant is baseless and, therefore, it should be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service and unfair trade practice ,as alleged by the complainant ?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Petition of complaint is treated as evidence of the complainant vide his petition dated 14.5.2018. The evidence on affidavit is led by the O.P-2 and the same is kept in the record.
DECISION WITH REASONS
Point no.1 & 2 :
It is the case of the complainant that he was deceived by the O.Ps ,as he has no intention to purchase the water purifier. According to him, he submitted application before O.P nos. 3 and 4 with a request to cancel his booking and they assured that the booking was cancelled. It is the further submission of the complainant that no delivery of goods has also been made to him and still, O.p-2 has deducted two installments of Rs.1500/- each from his account. To prove it, the complainant has placed on record a copy of relevant portion of his passbook maintained with Allahabad Bank and it is seen therefrom that two installments of Rs.1500/- each have been deducted by O.P-2. It is the case of the O.p-2 that product has been delivered to the complainant and when the product is delivered, an invoice is generated. Copy of such invoice has been filed on record by the O.p-2 to prove that the product has been delivered to the complainant.
Now to see, whether the transaction has been conducted at ease or whether it stinks any foul trade practice. O.p-2 only is contesting the case. According to him, a loan has been sanctioned in the name of the complainant in order to enable him to purchase the product from the O.p-1. From this averment of O.P-2, it appears that the transaction is in the nature of hiring agreement. In case of such kind of transaction the Financer has some bounden obligation. The financer has to be satisfied about the delivery of the goods to the borrower and then, the financer will disburse the loan amount to the dealer for payment of consideration price.
In the instant case, the O.P-2 i.e the financer has not taken any delivery mandate from the complainant. He should have taken information from the complainant as to the delivery of the goods to him .Without taking such information from the complainant, he has disbursed the loan amount to the dealer i.e O.P-1 and it so transpires in the written version filed by the O.P-2. He has presented a fine argument to the effect that an invoice is generated as soon as the product is delivered. So, by placing an invoice on record, he wants to prove that the product was delivered to the complainant. Invoice does never prove that the product was delivered to the complainant. The delivery of the product is made by the company i.e O.P-1.The O.P-1 could have collected a signature of the complainant while delivering the product to him. We cannot understand what debarred the company i.e O.p-1 to collect such signature of the complainant at the time of delivery of the product to him. The invoice does not bear any endorsement to the effect that the product was delivered to the complainant. It does not bear any signature of the complainant. O.P-2 has banked upon greatly upon Clause 14 of their terms and conditions. Clause 14 of their terms and conditions lays down that the borrower shall be exclusively responsible for delivery of the product from the dealer/manufacturer/seller and the company shall be liable for any delay in delivery or non-delivery of the product . The terms and conditions of the agreement appear to be self contradictory. Clause 14 says that the company is not liable for non-delivery of the product to the complainant. Clause no.19 thereof makes it clear that the product is made a security to the payment of loan. If the product is not delivered, the product can never be made a security to the payment of the loan. So, it appears to us that the terms and conditions of the agreement upon which the loan has been granted by the O.P-2 to the complainant are self contradictory and unconscionable and such terms and conditions cannot be relied on.
That apart, these terms and conditions have not been read out to the complainant nor have they been brought to the notice of the complainant. There is a column for collecting signature of the applicant’/complainant at the end of the terms and conditions. No signature of the complainant has been collected thereon. This implies that terms and conditions have not been brought to the notice of the complainant. The O.P-2 could have filed the application which was made by the complainant for the purpose of availing the loan. They could have filed sanctioned letter ,whereby the loan was sanctioned to the complainant. But nothing has been filed by them. It appears that everything has been done in hush-hush manner by the O.P-2. The parties are not ad idem on the subject matter; the matter was never negotiated between them.
Regards being had to the totality of the transaction, we feel no hesitation to say that there is want of transparency in the dealings of the O.Ps. All the O.Ps appear to be tinged with the same colour. It also appears that they all have hatched a trap and it is the complainant who has been caught in that trap of the O.Ps. The complainant is ,therefore, entitled to relief as prayed for.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.p-2 and exparte against the rest of the O.Ps with cost of Rs.5000/-.
The O.Ps, who will remain jointly and severally liable to the complainant, are directed to refund a sum of Rs.3500/- to the complainant and also a sum of Rs.8000/- as compensation for harassment and mental agony sustained by the complainant due to their foul act, within a month of this order, failing which, the refund amount, cost and the compensation amount will bear interest @12% p.a till full realization thereof.
President
I / We agree
Member
Dictated and corrected by me
President
