Delhi

North East

CC/116/2015

Sh. Jitendra Kumar - Complainant(s)

Versus

Dev Enterprises - Opp.Party(s)

22 Nov 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

 

                                                  Complaint Case No. 116/15

 

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

 

In the matter of:

 

		Shri Jitender Kumar S/o Shri Late Shri Kali Mandal R.o:- H.No. 1/9207, West Rohtash Nagar Shahdara, Delhi-110032		Complainant
		Versus
	1.         2.             3.             4.	Dev Enterprises (The Two Wheelers World) 1/6643, Near GreatwayTallors Hanuman Road, Shahdara Delhi-110032   Hero Moto Corp Ltd. 34, Community Centre, Basant Lok, Vasant Vihar, New Delhi-110057 Corporate & Registered Office(Deleted as per order dated 31.05.19 )   M/s Aman Motor Opposite B-Block, Yamuna Vihar, Brijpuri Delhi-110094( Later on, It is Opposite Party No.2)   HDFC Bank Ltd. B-6/3, Safdarjung Enclave, DDA Commercial Complex, Opp. Deer Park, New Delhi-110029.(Deleted as per order dated 31.05.19 )		Opposite Parties
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:                           DATE OF ORDER:		01.04.2015 24.08.2022 22.11.2022

 

 

ORDER

      Anil Kumar Bamba, Member

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that on 09.09.14, he booked a motorcycle of Hero Company amount to  Rs. 54,600/- and paid Rs. 26,000/- cash to Opposite Party No.1. The Opposite Party No.1 issued a cash receipt cum delivery challan receipt no. 495 dated 09.09.14 of Rs. 25,400/- and signed blank papers for loan purpose of the balance amount of Rs. 28,600/- through Opposite Party No.4 with 18 EMI of Rs. 2,168/-, hence the Complainant had to pay Rs. 39,024/- through ECS facility for 18 EMI. The Complainant stated that on 29.09.14, Opposite Party No.1 and  Opposite Party No.3 delivered the motor cycle to Complainant bearing registration no. DL5SAL8841. The Complainant received a receipt from Opposite Party No.3 dated 29.09.14 against registration, road tax/charges and insurance papers. The Complainant stated that on 10.12.14 he received an sms from Opposite Party No.4 confirming the loan vide loan no. 29924974 through enquiry from his savings account in State Bank of India he came to know that the amount debited was Rs. 2,876/- Instead of Rs. 2,168/- by Opposite Party No.4 and on 23.12.14, EMI of Rs. 2,870/- is debited from his account against his loan and the Complainant had paid Rs. 26,000/- as down payment. The Complainant stated that he did not expect the motorcycle of Rs. 54,600 with down payment of Rs. 26,000/- further had to pay  Rs. 18×2,870=51,660/-. On 20.12.14, the Complainant lodged a written complaint in P.S Shahdara, Delhi, but no avail. The Complainant made persistent demand to refund the amount with Opposite Party No.1 and Opposite Party No.3. On advise of Opposite Party No.3, Opposite Party No.1 issued a cheque bearing no. 081650 dated 21.09.14 of Rs. 24,900/- drawn at Axis Bank, Shahdara in favour of Complainant. The Complainant also visited Opposite Party No.1 on 23.09.14 for taking back the amount of Rs. 26,000/- or alternative cheque of Rs. 24,900/- but the Opposite Party No.1 did not pay the amount in cash and advised to present the said cheque as on dates for encashment. The Complainant present the said cheque for encashment but it was returned unpaid with a reason of funds insufficient vide returning memo dated 23.09.14. The Complainant immediately approached Opposite Party No.1 told that the cheque was dishonoured and further requested him to pay the amount in cash and the Opposite Party No.1 flatly refused to make the payment to Complainant.  The payment of the cheque amount is still towards him. The Opposite Party No.1 sole purpose and object was to defeat the payment of amount, this amounts to cheating and embezzlement of the above said amount of the Complainant. The Opposite Party No.1 abovesaid act of issuing the cheque in discharge of his liability against the Complainant and not making arrangement for its encashment in his account is illegal, unlawful. The above said facts also made it abundantly clear that Opposite Party No.1 mischievously and intentionally issued the aforesaid cheque with ulterior design to cause wrongful gain to it and wrongful loss to the Complainant. The Complainant submitted that he made very clear to all the Opposite Parties to adjust his amount of down payment in loan account or to reduce the amount of EMI but all in vain. The Complainant sent legal notice dated 15.01.15 through speed post to all the Opposite Parties but despite receiving the notice only Opposite Party No.4 had replied dated 03.02.15 but no result. Hence, this shows deficiency on the part of Opposite Parties. Complainant has prayed to direct the Opposite Party No.1 to refund an amount of Rs. 26,000/- with interest thereon from the payment till its realization and Rs. 50,000/- on account of mental agony, harassment. He has also prayed for Rs. 11,000/- for complaint cost.
2. As per order dated 31.05.19, Complainant submitted that he has no grievance against Opposite Party No.2 i.e. Hero Moto Corp Ltd. and Opposite Party No.4 i.e. HDFC Bank Ltd. As per submission of the Complainant, Opposite Party No.2 and Opposite Party No.4 deleted from the array of parties. Complainant has also filed amended memo of parties in this respect in which Opposite Party No. 3 became Opposite Party No.2.

Case of the Opposite Party No. 1

3. Despite giving last opportunity none has appeared on behalf of Opposite Party No. 1 to contest the case. Therefore, Opposite Party No.1 proceeded against Ex-parte vide order dated 11.12.15

Case of the Opposite Party No. 3 (Later on, Opposite Party No.2)

4. Opposite Party No. 3 contested the case and filed its written statement. Opposite Part No. 3 submitted that complaint filed by the Complainant is based on false, fabricated and concocted facts, hence is liable to be dismissed with heavy cost. It is alleged that Complainant concealed that he came to Opposite Party No. 3 for purchasing a motorcycle Splendor (self-start). The cost of the said motorcycle was Rs. 53,127/- and he gave a sum of Rs. 14,650/- vide receipt no. 4508 on 29.09.2014 and Rs. 1,472/- was refunded to the Complainant through refund voucher on 29.09.2014 and the rest amount of amount of Rs. 39,949/- was financed by HDFC Bank Ltd. It is alleged that the dispute related in the present complaint is between the Complainant and Opposite Party No. 1 and Opposite Party No. 3 has no role in this complaint. It is alleged that Complaint made a complaint in P.S. Shahdara, Delhi vide D.D. No. 37-B on 26.12.2014 in the name of Opposite Party No. 1 only. It is alleged that Complainant has claimed the relief only against the Opposite Party No. 1 hence Opposite Party No. 3 is not the necessary party in the present complaint. Opposite Party No. 3 submitted that on 01.02.2015 Complainant issued a letter and apologized that due to some misunderstanding he sent a legal notice to Opposite Party No. 3 and Opposite Party No. 4 in the said letter Complainant accepted that there is no fault on part of the Opposite Party No. 3 & Opposite party No. 4. Opposite Party No. 3 denied that on its advice Opposite Party No. 1 issued a cheque bearing no. 081650 on 21.09.2014 of Rs. 24,900/-.

Rejoinder to the written statement of Opposite Party No. 3 (Later on Opposite Party No.2)

5. Complainant filed rejoinder to the written statement of Opposite Party No.3 (Later on, Opposite Party No.2) and he has reiterated the assertions made in the complaint.

Evidence of the Complainant

6. The Complainant in support of his complaint filed his affidavit wherein he has supported the averments made in the complaint.

Evidence of the Opposite Party No. 3(Later on, Opposite Party No.2)

7.  In order to prove its case Opposite Party No. 3 filed affidavit of Shri Jai Shankar Sharma, S/o Shri R. N. Sharma, Manager at M/s Aman Motors, Office at: 3 ½  Pusta, Kartar Nagar, Delhi-110053.

Arguments & Conclusion

8. We have heard the Complainant and the Manager for the Opposite Party No.3(later on, Opposite Party No.2). We have also perused the file. The case of the Complainant is that he had booked a motorcycle of Hero Company with Opposite Party No.1 and paid him Rs. 26,000/- in cash. The Opposite Party No.1 issued a cash receipt cum delivery challan receipt no. 495 dated 09.09.14 of 25,400/-. Further it is stated by the Complainant that Opposite Party No.1 did not fulfil his commitment for delivering of motorcycle or refunded his money as advanced paid to Opposite Party No.1. When the Complainant approached the Opposite Party No.1 for refund of money Opposite Party no.1 issued a cheque of Rs. 24,900/- which were dishonoured by the bank with reason of insufficient fund. The case of Opposite Party No.3 (later on Opposite Party No.2) is that Complainant approached them for purchasing a motorcycle. The cost of the said motorcycle was Rs. 53,127/- and he gave a sum of Rs. 14,650/- vide receipt of 4508 on 29.09.14 and Rs. 1,472/- was refunded to Complainant through refund voucher on 29.09.14 and rest amount of Rs. 39,949/- was financed by the HDFC Bank ltd. It is further submitted by Opposite Party No.3 the dispute related in the present complaint is between the Complainant and the Opposite Party No.1 and Opposite Party No.3 has no role in this complaint. Complainant is not denying that he had received the delivery of the motorcycle from Opposite Party No.3 and he has not produce any document regarding payment of Rs. 26,000/- to Opposite Party No.3. Hence, the case is of refund of 26000/- from the Opposite Party No.1.
9. Opposite Party No.1 has proceeded against Ex-parte vide order dated 11.12.15.
10. In view of the above discussion, the complaint is allowed. Opposite Party No.1 shall pay an amount of Rs. 26,000/- to the Complainant along with interest @ 6 % p.a. from the date of filing the complaint till realization and Rs. 10,000/- on account of mental harassment, litigation expenses with interest @ 6 % p.a. from the date of this order till recovery.
11.  Order announced on 22.11.2022.

Copy of this order be given to the parties free of cost.

File be consigned to Record Room.

 

(Anil Kumar Bamba)           Member

(Surinder Kumar Sharma) President