O R D E R

Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint u/s.12 of the C.P. Act 1986 for getting reliefs from the opposite parties.

         2. The case of the complainant is as follows:  On 22.10.2015 the complainant purchased a Bike DUZWFC 71004 for an amount of Rs.39,960/-.  The registration number of the said vehicle is KL 03 Z 5393.  It is contended that the opposite party made it believe to the complainant that the on road price of the vehicle is Rs.45,500/-.  According to the complainant, in order to buy the new bike he exchanged his Bajaj CT 100 bike to the 1^st opposite party for an amount of Rs.10,000/- and for the remaining price the complainant arranged a new loan with opposite party 2 through opposite party 1.  It is further contended that at the time of the purchase of the vehicle he paid an amount of Rs.5,500/- for the registration of the vehicle and for availing insurance of the vehicle.  It is contended that as per the assurance given by opposite party 1 there is an amount of Rs.30,000/- was sufficient for this transaction. Instead of granting a loan of Rs.30,000/- the opposite parties recorded a loan of Rs.40,100/- against the complainant and take steps to receive instalment on that basis.  According to the complainant, the opposite parties already received an amount of Rs.15,500/- from the complainant as excess payment for the repayment of the above said loan.  Though the complainant approached the opposite parties for the details of the loan transactions they were reluctant to furnish the details to the complainant.  The acts of the opposite parties are clear deficiency in service on their part and they are liable to the complainant.  Hence this complaint, for the refund of the excess amount of Rs.15,500/- from the opposite parties, compensation, cost and for furnishing the statement of account.

          3. This Forum entertained the complaint and issued notice to opposite parties for their appearance.  The opposite parties appeared before the Forum and filed their versions as follows:

          4. The opposite party 1 filed their version as follows:  According to them, this complaint is not maintainable either in law or on facts.  It is admitted that the complainant purchased a Bajaj CT 100 Bike from the 1^st opposite party and denied the price (Rs.45,500/-) alleged by the complainant.  According to this opposite party, the showroom price of the vehicle was Rs.39,910/- and the details of the loan amount and exchange value are as follows:

1. Showroom price of the vehicle                         -  39,910. 00
2. Tax for 15 years                                               -    3,237. 00
3. Insurance                                                        -    1,352. 00
4. Registration etc.                                               -    1,000. 00
5. Accessories separate bills                                 -    3,628. 00
6. Extended warranty as opted by the

complainant                                                    -    1,900. 00

7. Service charges                                                -    1,604. 00

(collected by 2^nd opposite party)

8. Stamp duty                                                      -       350. 00

      (collected by 2^nd opposite party)

1. Bajaj Alliance Insurance                                  -       500. 00

(for 1 year)

10. Processing fees                                                 -       500. 00

(collected by 2^nd opposite party)

11. Advance of instalment                                     -     1,538. 00

(collected by 2^nd opposite party)

        5. It is contended that the loan transaction is purely between the complainant and 2^nd opposite party.  This opposite party remitted the insurance amount collected from the complainant.  It is further contended that this opposite party has collected any cheque or any other document as alleged by the complainant.  There is no deficiency in service on the part of this opposite party hence this contesting opposite party prayed to dismiss the complaint with cost.

          6. Opposite party 2 also filed their version as follows:  According to opposite party 2, the complainant approached opposite party 2 and requested for a financial assistance therefore opposite party extended a financial facility for an amount of Rs.55,404/- including financial charge of Rs.15,304/- to the complainant.  A loan agreement was also executed between the parties with mutual understanding on 23.11.2015.  The instalment payment is Rs.1,539/- and the total instalment was for 36 months which commence from 03.01.2016 to 03.12.2018.  According to this opposite party the road price of the vehicle is Rs.45,580/- and the complainant has paid an initial payment of Rs.8,973/- to opposite party 1.  It is contended that the loan amount allowed as per the agreement is Rs.40,100/- and the initial payment was Rs.3,993/-, which was paid to the complainant to opposite party 1.  It is contended that opposite party 2 is only a financier in the instant case and not at all liable or responsible for the exchange of the vehicle as alleged by the complainant.  The allegation of the complainant that he availed a financial facility of Rs.30,000/- is totally false and the amount finalized was Rs.40,100/-.  According to the opposite party 2, on 12.04.2016 the complainant has a dues of Rs.350/- towards other over dues with feature 31 EMI of Rs.47,709/-.  It is contended that this opposite party 2 has not committed any deficiency in service and unfair trade practice e as alleged by the complainant.  Therefore, opposite party 2 prayed to dismiss the complaint with cost to them and also to direct the complainant to remit the outstanding dues as per their account.

          7. This Forum peruse the complaint, versions and the records before us and we framed the following issues:                   

1. Whether the petition is maintainable before this Forum?
2. Whether the opposite parties committed any deficiency in service against the complaint?
3. Regarding the relief and costs?

      6.  In order to prove the case of the complainant, the complainant filed a proof affidavit in lieu of his chief examination and examined him as PW1.  Through PW1 Ext.A1 to A3 and Ext.B1 to B3 were also marked.  Ext.A1 is the agreement dated 22.10.2015.  Ext.A2 is the cash receipt dated 13.11.2015 for Rs.5,500/-.  Ext.A3 is the copy of motor insurance.  On the other side, the 1^st opposite party’s Manager he who filed a proof affidavit in lieu of chief examination and examined him as DW1.  Through him Ext.B4 and B5 are also marked.  As discussed above, Ext.B1 to B3 were already marked through PW1.  Ext.B1 is the copy of loan application form.  Ext.B2 is the copy of Auto Loan Agreement dated 23.11.2015.  Ext.B3 is the copy of Group Personal Accident Policy.  Ext.B4 is the retail invoice dated 16.11.2015 for Rs.39960/-.  Ext.B5 is the vat invoice cash bill dated 22.10.2015 for Rs.3,628/-. After the closure of evidence we heard the complainant.  Even if this Forum granted several postings to hear opposite parties they did not turn up for hearing.  

          7. Point No.1:- The main contentions of both the opposite parties are to the effect that the case is not maintainable either in law or on fact.  When we evaluate the evidence on record it can be seen that the complainant he who purchased a motor bike from the 1^st opposite party by paying the whole consideration to him.  It is also admitted that through opposite party 1 the complainant availed a financial assistance from opposite party 2 for the payment of the total consideration to 1^st opposite party.  As a dealer and a financier the opposite party 1 and 2 are service providers and the complainant is the consumer of opposite parties.  Therefore, we can easily found that the complaint is maintainable before the Forum.  Hence Point No.1 found in favour of the complainant.

          8. Point Nos. 2 & 3:-  For the sake of convenience, we would like to consider Point No.2 and 3 together.  As stated above, it is come out n evidence to the effect that the complainant he who purchased a motor bike from opposite party 1 by paying its whole consideration.  Opposite party 2 also admitted that there is a loan transaction agreement between the complainant and opposite party 2 and opposite party 2 has granted a loan to the complainant for the purpose of purchase of the said bike.  The disputed issues are the actual price of the vehicle and the actual loan amount necessitated for this transaction.  When we peruse the evidence adduced by PW1, it is clear that an amount of Rs.10,000/- was valued for the old Bajaj Motor Bike of the complainant for the bike transaction.  This can be proved by Ext.A1.  As per Ext.A2, it is also proved that opposite party 1 received an amount of Rs.5,500/- as preliminary advance from the complainant for the sale of the bike.  As per Ext.A3, it is proved that the bike bearing Registration No. New 0001 Engine No. DUZWFC 71004 has availed an insurance policy from 16.11.2015 to 15.11.2016.  It is true that at the time of cross-examination of PW1 as stated earlier Ext.B1 to B3 were also marked.  As per Ext.B1, the amount financed is Rs.40,100/- and an initial payment of Rs.8,973/- can also be seen.  When we refer Ext.A1, it is also clear that an exchange value of Rs.10,000/- was calculated by opposite party 1 for the old bike of the complainant.  As per Ext.A2, it is also evident to see that the complainant paid an amount of Rs.5,500/- to the 1^st opposite party.  If so, the complainant paid an amount of Rs.15,500/- to the 1^st opposite party as preliminary payment for the purchase of the bike and the remaining amount has to be arranged as vehicle loan from opposite party 2.  When we refer Ext.B2 Page No.7 and as per Ext.B1 Page No.2 it shows that an amount of Rs.40,100/- was availed as loan by the complainant from opposite party 2 and also shows that an amount of Rs.15,304/- ‘was charged as financial charges’.  As discussed earlier, Ext.B3 is a group personal accident policy in favour of the complainant and Ext.B4 is the retail invoice of the said vehicle.  As per Ext.B4, it is also proved that the total amount of the vehicle including vat 14.5% is for Rs.39,960/-.

            9. On the basis of the above fact we can easily inferred that an amount of Rs.15,500/- is charged by opposite party as financial charge.  The opposite party 2 had failed to prove the relevancy of charging the financial charge before us.  Anyway, this fact is not at all an issue to be decided here.  As discussed above, we would like to calculate the details of the transaction between the parties as shown below:

The price of the vehicle as per Ext.B4               Rs.34,899/-

Tax as per Ext.B4                                            Rs.  5,060/-

Insurance premium as per Ext.B3                   Rs.     500/-

                                  Total                               Rs. 40,459/-

The amount necessitated for the purchase

of the vehicle by loan                                            Rs. 40,459/-

The amount paid by the complaint                      Rs. 15,500/-

(Exchange of bike Rs.10,000/- and direct

Cash Rs.5,500/-)                                       

                                  Balance                          Rs. 28,999/-

                8. When PW1 is examined in cross the defence counsel suggested, “വാഹനത്തിൽ  3,628/þ രൂപയുടെ extra fitting ചെയ്തിട്ടുണ്ട് എന്നു പറയുന്നു ? ശരിയല്ല. (A).  When DW1 is also examined in chief, he also deposed that at the time of the purchase of the bike opposite party 1 handed over sari guard, side stand and caste guard to the complainant as accessories.  In order to prove the case of opposite party 1 with regard to the entrustment of accessories kit opposite party 1 produced and marked Ext.B5 the vat invoice/cash bill dated 22.10.2015 for an amount of Rs.3,628/-.  Though PW1 strongly opposed the purchase of accessories at the time of the purchase of the bike there is no evidence to show that opposite party 1 prepared this Ext.B5 cash bill with fraud or coercion etc.  Therefore, the opposite party 2 has a right to get an extra amount of Rs.3,628/- for the sale of the bike to the complainant.  Therefore, it is to be inferred that a loan amount of (Rs.24,959/- + Rs.3,628/-) = Rs.28,587/- is required as a loan for the purchase of this vehicle.  When we refer Ext.B2, it is so clear that opposite party 2 has granted an amount of Rs.40,100/- as loan to the complainant and as stated earlier a finance charge of Rs.15,304/- is also charged as finance charge/interest for the above amount.  When we refer the deposition of DW1 in cross he answered to a question, “ഈ കേസിൽ  loan  ഇനത്തിൽ എത്ര പറ്റിയെന്ന് എനിയ്ക്കറിയില്ല.  loan  ഇടപാടുമായി ബന്ധപ്പെട്ട ഒരു കാര്യത്തെക്കുറിച്ചും എനിയ്ക്കറിയില്ല”.  He adds, “Ext.B5þ ൽ  ഏതൊക്കെ സാധനങ്ങള് ആണ് അക്സസ്സറീസ് ആയി നൽകിയതെന്ന് ഇനംതിരിച്ച് പറയുന്നില്ലല്ലോ”? ഇല്ല (A).  “കൊടുത്ത സാധനങ്ങളും അതിൻറെ വിലയും അറിയാം.  Sari guard, cost guard, side stand, number plate  എന്നിവയാണ് നൽകിയത് ”.  On the basis of the above

deposition it can be inferred that though DW1 deposed for opposite party 1 he has no idea with regard to the loan transaction with opposite party 2.  But at the same time, he categorically pointed out that the complainant purchased accessories as stated above.  DW1 also admitted that the price of the vehicle is including the tax amount Rs.39,960/-.  Though opposite party 2 filed a version before us he did not adduce any oral evidence on their side.  Though opposite party 2’s counsel cross-examined PW1 in detail nothing brought out to disbelieve the credibility of PW1 in this case.  Though the learned counsel asked so many questions with regard to the loan amount sanctioned to him, all the answers of PW1 again confirmed his stand.  It is to be noted that opposite party 2 failed to substantiate their claim of sanctioning a loan amount of Rs.40,100/- as per Ext.B2 is justifiable or not.  Opposite party 2 is further failed to corroborate the evidence as per loan application and loan agreement as per Ext.B1 and B2 respectively.  Therefore, we find that opposite party 2 has granted an excess loan amount to opposite party 1 for an amount of Rs.24,959/ + Rs.3,628/ = Rs.28,587/-.  It may be true that the opposite party sanctioned and paid a loan amount of Rs.40,100/- to opposite party 1 on request of the complainant for the purchase of the vehicle.  It is seen that the opposite party 1 is the dealer of the motor bike and opposite party is doing its business by advancing loan for the financial transaction of opposite party 1 the dealer of the vehicle.  The complainant also requested before the Forum to direct the opposite parties to produce certain document before the Forum.  For this purpose the complainant filed an I.A.No.40/16 which was allowed in favour of the complainant and the opposite parties complied the order.  Therefore, the request for the production of document before the Forum is now become infructus.  Anyway, we can presume that opposite party 1 and opposite party 2 jointly and severally liable to the complainant.  Hence Point No.2 and 3 found accordingly.

                   In the result, we pass the following orders:

1. Opposite party 1 and 2 are directed to refund the excess loan amount of Rs. 28,587/- (Rupees Twenty Eight Thousand five hundred and eighty seven only) to the complainant with 10% interest from the date of order onwards.
2. The opposite parties are also directed to pay a compensation of Rs.5,000/- (Rupees Five Thousand only) and a cost of Rs.2,500/- (Rupees Two Thousand Five hundred only) to the complainant with 10% interest from the date of order onwards.

          Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 29^th  day of April, 2017.

                                                                                    (Sd/-)   

                                                P. Satheesh Chandran Nair,

                                                               (President)

Smt. Sheela Jacob (Member)           :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  : Binoj. K.K

Exhibits marked on the side of the complainant

A1 :  Agreement dated 22.10.2015 between the complainant

        and opposite parties. 

A2 :  Cash receipt dated 13.11.2015 for Rs.5,500/-. 

A3 :  Copy of motor insurance.

Witness examined on the side of the complainant:

DW1  : Shibu Muhammad

Exhibits marked on the side of the complainant

B1 :  Copy of loan application form. 

B2 :  Copy of Auto Loan Agreement dated 23.11.2015. 

B3 :  Copy of Group Personal Accident Policy. 

B4 :  Retail invoice dated 16.11.2015 for Rs.39,960/-. 

B5 :  Vat invoice cash bill dated 22.10.2015 for Rs.3,628/-.                                                                               

                                                                                              (By Order)

Copy to:- 1. Binoj. K.K, Kuttikkattu Kizhakkekkara Veedu,

                   Oonnukal.P.O., Chenneerkkara Village,

                   Kozhencherry Taluk, Pin – 689 647.

     2.  The Manager, Geo Bajaj, Govt. Hospital Road,

          Pathanamthitta P.O., Pin – 689 645.

     3.  The Manager, Bajaj Finance Ltd., 3^rd Floor, DD Trade Towers,

          Kaloor – Kadavanthra Road,

          Pin – 682 017, Kochi,

     4.  The Stock File.