By: Sri. Mohandasan K., President
Complaint in short is as follows:-
1. The complainant was impressed by advertisement issued by the first opposite party regarding the Datsun ready go car, approached the second opposite party on 15/12/2018 and enquired about the details of the vehicle. The complainant informed the opposite party about her willingness to exchange her car bearing registration No. KL 65 A 7493 Maruti Alto Lxi and to purchase Datsun Ready go automatic gear car. Then the sales consultant of first opposite party namely one Jaffer along with sales manager accompanied the complainant and verified the condition of the vehicle which was stationery outside the first opposite party shop. The said people after test drive convinced the condition of the vehicle and fixed an amount of Rs.1,85,000/- as the value of the vehicle and also offered 21,375/- rupees as bonus. The complainant was asked to pay Rs.35,000/- as advance for booking fresh vehicle and she remitted 35,000/- rupees towards the same. The opposite party issued receipt for the same. The people of the first opposite party came to the residence of the complainant and take over the vehicle of the complainant. Mr. Jaffer and two other employees of the first opposite party approached the complainant at her residence and prepared a sale agreement of the vehicle and as per the agreement the value of the vehicle fixed as Rs.1,85,000/- and the complainant and one Mr. Mohamed Kabeer. K signed in the agreement. They assured the amount of Rs. 1,85,000/- will be adjusted towards the value of the new vehicle and the receipt will be issued at the time of delivery of the vehicle. It was further assured that the first opposite party is prepared to avail financial assistance at their own responsibility. There after the first opposite party informed the complainant that the finance is ready for the vehicle and she was asked to produce 5 cheque leaves and also put signature in certain documents. The opposite party said to the complainant that the value of the vehicle is Rs.4,20,378/- and after deducting exchange bonus Rs.21,376/-, the balance amount will be Rs.3,99,002/- including GST. It was also said that there will be insurance amount of Rs,17,830/-, Road tax Rs.25,223/- and fast tag cost Rs.775/- to be paid in addition to that and in short, the total amount will be Rs.4,42,830/-. It was further told that the advance amount of Rs.35,000/- and value of the exchange vehicle Rs.1,85,000/- will be reduced from the above said total amount and then the balance amount to be paid by the complainant will be around Rs.2,22,830/-. The first opposite party informed the complainant that they will arrange the balance amount of Rs.2,22,830/- from the third opposite party and in due course of availing loan the complainant will be delivered the new vehicle. On 31/12/2018 the opposite party delivered new Datsun ready go car to the complainant. At the time of delivery of the vehicle the opposite party also issued copy of the insurance policy and also 2 GST invoices also along with road tax receipt. At the time of delivery of the vehicle the opposite party said to the complainant that they have received the loan amount from the third opposite party and the complainant is directed to remit monthly installments to the account No.57039213865 maintained by the State Bank of India, Kooriyad branch in the name of complainant. The complainant remitted monthly instalments and also bulk amounts in to the account and she remitted altogether 2,12,333/- rupees towards the loan account.
2. The complainant was prepared to close the entire loan prior to the fixed last installment. The complainant approached third opposite party for the said purpose and on enquiry, it was learned that the first opposite party availed loan of Rs.2,50,000/- from the third opposite party instead of 2,22,830/-. It was further informed that the complainant is bound to pay Rs.1,00,000/- towards the loan amount. The third opposite party issued a statement to that effect and on examining the same it was found that the opposite party had received 2,50,000/-rupees and an amount of Rs.12,455/- received as interest and also an amount of Rs.7,081/- as other charges. The complainant questioned the same and that time the opposite party insulted the complainant before the customers who were present at that time before the opposite party. The complainant submits that the act of the first opposite parties is unfair one. The second opposite party has no relation with complainant but they are made party since GST invoice issued by the second opposite party. The complainant alleges unfair trade practice and deficiency in service on the part of the opposite parties. The prayer of the complainant is that to refund Rs.27,120/- which is received by the first opposite party and interest their own. It is also prayed to refund Rs.7081/- which is collected as other charges from the compliant and also prayed to remit the entire exact balance amount. The complainant further prayed compensation of Rs.1,00,000/- and also direct to issue a loan closure statement to the complainant.
3. On admission of the complaint notice was issued to the opposite parties and on receipt of notice opposite parties one to Three entered appearance and filed version denying the entire averments and allegations in the complaint.
4. The first and second opposite party contended that complaint is not maintainable and the complainant is not a consumer and there is no contract between opposite parties and complainant. The opposite party is only a dealer of the manufacturer of Datsun Ready go vehicles and they have no connection with the third opposite party. The relation between opposite parties one and two and the third opposite party is on principal to principal basis. The jurisdiction of any dispute between the complainant and the opposite parties will only be in courts at Cochin. The opposite parties specifically denied the averment in the complaint that the first opposite party made advertisement in news paper and offered an exchange bonus of Rs.21375/-, the complainant contacted the second opposite party on 15/12/2018, there was an agreement to exchange the car of complainant bearing registration No. KL 65A 7493 with Datsun ready go automatic, one sales man Jaffer and one sales manger inspected the car and fixed Rs.1,85,000/-, they offered Rs.21,375/- as exchange bonus etc. It is further denied that they directed to remit Rs.35,000/- on the same day to get exchange bonus Rs.21,375/- and exchange value Rs.1,85,000/- for the vehicle, on specific direction Rs.35000 was paid on the same day, it was promised to take the vehicle on the next day from complainants house, on 21/12/2018 an agreement was executed at the instance of one Jaffer and two persons of first opposite party , one Muhammed Kabeer was also with them , he also signed as second party , the price of Rs.1,85,000/- will be adjusted to the price of the vehicle , the receipt will be given at the time of delivery , the car was taken by them , The first opposite party will arrange fiancé for balance sum of the new vehicle , the first opposite party made the complainant to sign in many sheets to arrange loan , it was represented that the price of new vehicle will be Rs.4,20,378/-, the exchange bonus will be Rs.21,375/-, the balance will be Rs.3,99,002, GST will be payable, insurance amount will be Rs.17,055/-, Road tax will be Rs.25,223/- , Fast tag charge will be Rs.275/-, total amount will be Rs.4,42,530/ , the balance amount will be Rs.222830/-, the third opposite party will finance the vehicle, the vehicle will be handed over after finishing all these formalities, 5 blank cheques were submitted as per direction etc. It is further submitted that the complainant contacted the third opposite party and found that the loan amount payable is Rs.2,50,000/- and not RS.2,22,830/-, the interest will be Rs.1,00,000/-, the said amount is to be paid , it was seen that on many dates without consent of complainant 2,50,000/- is taken by the first opposite party, Rs.12,405/- as interest and Rs.7,081/- as other charges were taken without consent, the opposite party behaved in rude manner, the opposite parties accepted Rs.2,50,000/- instead of Rs.2,22,830/-, the complainant was cheated, the complainant is not having any connection with the second opposite party still GST is collected etc are pleaded with ulterior motive , and so denied by the opposite party .
5. The third opposite party filed version contending they are unnecessary party in the proceedings and there is no specific pleading against the third opposite party. The third opposite party contented that the complainant tis not maintainable against third opposite party and it is filed wholly misconceived, vexatious misleading, misrepresented, unsustainable false, frivolous and are nothing but flagrant abuse of the process of law. There is no cause of action against the opposite party and the dispute is not a consumer dispute as defined under consumer protection act. Third opposite party submitted that the complainant purchased a Datsun ready car from the first opposite party and the cost of the vehicle was Rs.410378/- and the complainant availed loan facilities from the third opposite party to the tune of Rs.2,50,000/- as fixed rate of interest of 9.75% per annum and as per the loan agreement dated 26/12/2018 between the complainant and the third opposite party the loan was to be paid in 36 installments. The monthly installment was fixed as Rs.8037 and the date of the first installment was 05/02/2019 and the last installment was 05/01/2022. The complainant duly signed and executed the loan cum hypothecation agreement on 26/12/2018. But the complainant was irregular in payment of loan amount and as such the third opposite party cannot be made liable for the deficiency on part of the complainant. The complainant had initially credited the monthly installment of Rs.8,037/- on a monthly basis and defaulted in paying all subsequent installment due to which a loan recall notice dated 20/01/2020 was sent to the complainant . As per the notice the complainant was asked to pay the remaining outstanding principal loan amount of Rs.63,630/- as on 16/01/2020 within a period of 7 days. The opposite party submitted that they had issued the for closure statement to the complainant and ask on 18/02/2020 the complainant was required to pay an amount of Rs.66,452/- towards the full and final amount against the loan. The complainant on previous occasions also failed to clear his dues to which the opposite party forced to issue recall notice for the balance loan amount from the complainant. The opposite party further submitted that as per loan agreement there is a clause that in case of dispute arising between the parties would be governed by arbitration and so the commission does not have jurisdiction in the present matter and the appropriate forum for the settlement of dispute is civil court and the commission does not have jurisdiction. The opposite party submitted that they do not have role in the dispute in question. The submission of the opposite party is that the complainant approached the opposite party to avail loan facility to purchase the vehicle in question and the opposite party being the financier after processing the requisite document has processed loan of the complainant and it is submitted that the role of financier as ended there. The financier is no longer liable for any deficiency in service which can occur in the vehicle and for which the manufacturer and the dealer is liable to the complainant. The opposite party further submitted that they have been illegally arrayed, having no role in manufacturing, repair or sale of the vehicle to its customers. So, the opposite parties one and two is responsible for all sale and service-related transactions. The opposite party submitted that one who comes into equity must come with clean hands. The complainant cannot be complaint of deficiency of service against the opposite party when the complainant itself at fault.
6. The opposite party specifically denied the averments in the complaint. It is submitted that the complainant as per loan account had initially credited the monthly instalment of Rs.8,037/- on a monthly basis but defaulted in paying all subsequent instalments due to which a loan recall notice dated 20/01/2020 was sent to the complainant asking the complainant to pay the remaining outstanding principal loan amount of Rs.63,630/- as on 16/01/2020. The foreclosure statement was given to the complainant requesting Rs.66,462/- as on 18/02/2020. The complainant is liable to clear the dues of the opposite party as per the loan agreement. Opposite party submitted that the claim submitted by the complainant is totally untenable exorbitant and fanciful. Hence the prayer is to dismiss the complaint with compensatory cost.
7. The complainant filed affidavit and documents. Documents marked as Ext. A1 to A3. Ext. A1 is customer order booking form dated 18/12/2018. Ext. A2 is bank receipt for Rs.35,000/- dated 15/12/2018. Ext. A3 is GST invoice dated 28/12/2018. Opposite party filed affidavit and documents. The documents on the side of opposite party marked as Ext. B1 to B6. Ext. B1 is copy of GST invoice dated 28/12/2018. Ext. B2 is copy of loan agreement. Ext B3 is copy of vehicle inspection notice dated 06/01/2020. Ext. B4 copy of loan re call notice dated 20/01/2020. Ext. B5 is copy of foreclosure statement dated 18/02/2020. Ext. B6 is copy of loan account statement from 25/12/2018 to 18/02/2020.
Heard complainant and opposite parties, perused affidavits and documents.
The following points arise for consideration: -
- Whether there is unfair trade practice from the side of first and second
opposite parties?
2) Relief and cost?
8. Point No.1
The complainant approached the first opposite party to purchase a Datsun Ready go car the complainant booked the car on advance payment of Rs.35,000/- on 15/12/2018 as per Ext.A2. The complainant produced Ext.A1 customer order booking form which shows ex showroom price Rs.4,20,378/- and the final offer price of the car Rs.4,50,000/-. The complainant produced Ext. A3 GST invoice which also reveals show room price as Rs.4,20,378/- which is dated 28/12/2018. The Submission of the complainant is that she was having a Maruti Alto Lexi car bearing registration No. KL 65 A 7493 and for the exchange purpose the people of first opposite party physically verified the condition of the vehicle and it was valued as Rs.1,85,000/- rupees. She further submits that there was a further offer of exchange bonus of Rs.21,375/-.
9. The first and second opposite party parties produced a document GST invoice which is marked as Ext.B1 and that also reveals the actual ex-showroom price Rs.4,20,378/-. The complainant also produced Ext.A3, which is also is GST invoice dated 28/12/2018. Both Ext. B1 and A3 are supposed to be same document. Both document there is foot note that original for the buyer and duplicate to be retailed with the seller. Ext. A3 bears the seal of the first opposite party and also signature of the authorized signatory. But the close verification the net value and the tax amount entered in both documents are different. The net value shown in Ext. B1 is Rs.3,09,304 and in Ext. A3 it is 3,25,874/- the tax amount entered also is different. So, the commission referred the documents Ext. B1 and A3 to the state goods services tax department and they submitted a report as follows: - “Here the goods sold being vehicle will be taken delivery by the buyer itself. Hence the duplicate and triplicate of the invoice shall be with the supplier (seller). Also as the invoice is prepared in triplicate, the original, duplicate and triplicate shall be the same. “In the given Ext’s the entry is in Ex. A1 and B3 are different.” So, Ext. B1 and A3 are supposed to be same but there are contradictory entries, so what can be inferred is that the opposite party has indulged in unfair trade practice by manipulating GST invoice. Hence the version of the opposite party cannot be taken as trustworthy. The third opposite party contended that there is no role for the opposite parties in availing financial assistance to the complainant from the third opposite parties. But the document shows that the third opposite party availed loan up to rupees 2,50,000/- only. The complainant submit that her old vehicle was valued Rs.1,85,000/- . It is also submitted that there was an offer of bonus Rs.21,375/- .she advanced Rs.35,000/- as per Ext. A2. If that being the case of the complainant availing a loan of Rs.2,50,000/- from the third opposite party does not arise. The first and second opposite parties submitted that the complainant made arrangements to sell her old car as her own. The first opposite party sales executives were not involved in the same. The price of the car sold by the complainant is unknown to the opposite parties. The complainant deposited some amount to the third opposite party and third opposite party paid price of the vehicle to the first and second opposite party after deducting the amount paid as initial booking amount. The third opposite party hired the vehicle to the complainant as per their hire purchase agreement. The third opposite party and other opposite parties are not having any arrangement between them. The opposite parties first and second are not party to the hire purchase agreement and they are not aware of the conditions between complainants and third opposite party. It is further submitted that the first and second opposite party is one and the same, the GST account stands in the address of the second opposite party and the first opposite party out let is also a delivery point The first opposite party further submitted that they have not accepted rupees Rs.27,170/- in excess. It is further submitted that the order booking form will show approximate amount and the final bill will be the correct figure since the complainant is bound to pay the price prevailing at the time of delivery. In this complaint the order booking form and tax invoice reveals the ex-showroom price as Rs.4,20,378/-. The complainant has not produced to show that the agents of first opposite party involved in the sale transaction of old car. But the fact remains the manipulation of GST invoice from the side of first and second opposite parties. So we do not consider the submission of the first and second opposite parties as trust worthy but the submission of the complaint is more acceptable. So we find that there is unfair trade practice from the side of fist and second opposite parties.
10. The complainant, a lady who was present in person before the commission submitted that she was prepared to close her vehicle loan in advance and to verifying the due amount approached the third opposite party and only that occasion she could realize some exorbitant amount has been availed as loan from the third opposite party on account of purchasing the new vehicle. All the transactions of the complainant were between first and second opposite parties and all the facilities for finance was made through the first and second opposite parties. The first and second opposite parties through the unfair trade practice availed more amount which is not authorized by the complainant to avail from the third opposite party. Hence she approached first and second opposite parties to refund the amount collected by the first and second opposite parties which is not authorized by the complainant. The complainant was insulated before other customers on questioning the opposite parties about the unfair trade practice. She submitted that due to the act of the opposite parties sustained mental agony and harassment. But the prayer of the complainant is that she is prepared to pay the actual amount due to the third opposite party. But she demands for the refund of excess amount collected by first and second opposite parties without any authorization and also additional charges those were not properly communicated to the complainant. We find there is sufficient reason to allow the prayer of the complainant. The prayer of the complainant is that to refund Rs.21,170/- which is collected from the complainant in excess by the first and second opposite parties with interest and also to refund Rs.7,081/- as collected other charges from the complainant. We find that the prayer to refund Rs.21,170/- by the first and second opposite parties is genuine and we allow the same. It is also directed the first and second opposite parties to refund Rs.7,081/- collected from the complainant as other charges to the complainant. The complainant prayed further amount of 10,0000/- rupees towards the compensation on account of unfair trade practice and thereby caused inconnvence and hardship to the complainant. We consider Rs. 50,000/- as reasonable amount towards the compensation on account of unfair trade practice and thereby caused inconnvence and hardship to the complainant. It is further clarify that the third opposite party is entitled the due amount as per agreement till date of filing this complaint. The complainant is liable to pay the due amount to the opposite party as per the loan agreement till filing this complaint. The third opposite party is not entitled for any sort of penal interest or other expenses pending this complaint before this Commission.
11. The opposite parties contend that the complaint not maintainable due to various reasons. But we have gone through the entire averment in the complaint and version and there is no valid reason to hold the contention of the opposite parties that the complaint is not maintainable, we find the complaint is maintainable before the commission.
In the alight of above facts and circumstances we allow this complaint as follows
- The first and second opposite parties are directed to refund to the complainant, the excess amount Rs 21,170/- collected from the complainant.
- The first and second opposite parties are directed to refund to the complainant Rs.7,081/- collected from the complainant as other charges.
- The first and second opposite parties are directed to pay Rs.50,000/-as compensation on account of unfair trade practice and thereby caused inconvenience and hardship to the complainant.
- The third opposite party is directed to issue loan closure statement to the complainant on receipt of due amount as per loan agreement considering the last installment date of 05/01/2022, excluding penal and other expenses during the pendency period of this complaint before this commission.
The opposite parties 1 and 2 shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled 9% interest per annum for the entire above amount from the date of receipt of copy of this order till date of payment from the first and second opposite parties.
Dated this 5th day of January, 2023.
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A3
Ext.A1: customer order booking form dated 18/12/2018.
Ext.A2: bank receipt for Rs.35,000/- dated 15/12/2018.
Ext A3: GST invoice dated 28/12/2018.
Witness examined on the side of the opposite party: DW1 and DW2
Documents marked on the side of the opposite party: Ext. B1 to B6
Ext.B1: copy of GST invoice dated 28/12/2018.
Ext.B2: copy of loan agreement.
Ext.B3: copy of vehicle inspection notice dated 06/01/2020.
Ext.B4: copy of loan re call notice dated 20/01/2020.
Ext.B5: copy of foreclosure statement dated 18/02/2020.
Ext. B6: copy of loan account statement from 25/12/2018 to 18/02/2020.
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V., Member
