DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD<br /> <br /> Dated this the 15th day of November 2007.<br /> <br /> Present : Prof.O.Unnikrishnan, President in charge <br /> Smt.K.P.Suma, Member<br /> <br /> <br /> C.C.No.158/2006<br /> <br /> Ramachandran Nair<br /> S/o. N. Vasudevan<br /> Divyam Vihar<br /> Korathuparambu<br /> Vadavannur (P.O)<br /> Palakkad - Complainant<br /> <br /> V/s<br /> <br /> T. Henry James<br /> L G Cyber Shoppe<br /> (Opp. Imagine Menzew Textiles)<br /> Near Alukkas Jewellery<br /> Palakkad - Opposite party <br /> <br /> O R D E R<br /> By Prof. O. Unnikrishnan, President in charge <br /> The complainant in this complaint had approached the opposite party on 12.02.2005 and paid Rs.4,000/- as advance amount for purchasing a computer. For balance payment he has applied for a personal loan from Bajaj Auto Finance and handed over 8 cheque leaves to the opposite party. It is alleged in the complaint that the opposite party did not deliver the computer on 3 occasions as ironized. Moreover he was facing financial crisis during the said period. When he contacted the finance company for the return of cheques, he came to know that loan was availed in his name and opposite <br /> <br /> - 2 -<br /> party arranged the said loan to a third party for purchasing the computer. The complainant further submits that opposite party did not refund the advance amount and the finance company, under pressure from opposite party caused a lawyer notice to the complainant for non-payment of installments.<br /> <br /> The averment of the complainant is that a sum of Rs.5,000/- is still due as outstanding balance towards the loan amount on the date of filing this complaint. It is also submitted in the complaint that the complainant was threatened by the opposite party with the help of dishonoured cheques handed over by him. Feeling aggrieved he has approached before this forum seeking an order directing the opposite party to close down the loan sanctioned in his name, to refund Rs.4,000/- paid as advance and to pay a sum of Rs.2,000/- as interest along with Rs.40,000/- as compensation for the mental agony and financial loss suffered by the complainant. <br /> <br /> Complaint was admitted and notice was issued to opposite party for appearance. Opposite party entered appearance through counsel and filed version stating the following contentions. <br /> <br /> Opposite party in their denied all the averments in the complaint. They contented that this case is not maintainable either in law or on facts and it is filed on an experimental basis with a view to extract money from the opposite party by one way or the other. It is further contented that the allegation of the complainant that he paid Rs.4,000/- on 12.02.05 to the opposite party towards advance for purchasing a computer with the financial assistance of Bajaj Auto Finance (Finance Company) and that he handed over 8 cheque leaves to the opposite party are false and hence <br /> <br /> - 3 -<br /> denied. They admitted that the complainant has handed over the cheque leaves to the finance company and the finance company had issued a lawyer notice to the complainant for the dishonoured cheques. It was further submitted that the allegation that the opposite party did not deliver the computer is baseless, incorrect and denied. But they admitted that the complainant could not purchase the computer due to his financial capacity. Opposite party further contented that the complainant approached the opposite party and intimate about his financial situation, requested for refund of the advance amount, and intimated the said fact to the finance company and that they agreed to give back the cheque leaves but the opposite party sold the computer to somebody else with the computer loan and that the opposite party induced the finance company to send notices to the complainant after keeping arrears of loan installments and that the opposite party still had kept Rs.5,000/- towards loan, loan was passed by cheating him and the opposite party threatened the complainant are false, baseless and hence denied. <br /> <br /> It is further contented that opposite party is a highly reputed dealer of L.G Electronics Ltd. They submits that the complainant approached them for purchasing a DM3 (G.G.D.C) and represented that he is not in a position to pay the price of the computer and hence he has applied to Bajaj Auto Finance for financial assistance. Accordingly the finance company passed loan for an amount of Rs.31,630/- subject to the payment of Rs.10,544/- towards advance and Rs.1,303/- towards the processing and one Divya stood as the surety. But the complainant was not in a position to pay the processing charges and advance amount and requested to pay back Rs.7,847/- being the balance amount and Rs.4,000/- which was already given to the opposite party. Accordingly the loan was passed. Since the opposite party is the authorised <br /> - 4 -<br /> dealer the finance company disbursed the amount to the opposite party directly. Then the opposite party sent the advance amount along with the loan amount to L.G. Electronics Ltd.<br /> <br /> Opposite party contented that cheques issued by the complainant towards the repayment of the loan amount was dishonoured one after the other for the reasons insufficient funds. But by the time the computer reached the opposite party's office. Opposite party submits that due to the non payment of the dues the finance company approached the opposite party to seize the computer. Further when the opposite party informed all those matters to the complainant, as usual he apprised the opposite party about his financial incapacity and requested to pay all the arrears of monthly installments as a guarantor. Opposite party contented that all the cheques issued by the complainant was dishonoured except one cheque bearing No.728953 dt.15.6.03 for Rs.2,636/-.<br /> <br /> Opposite party further submits that he has received a lawyer notice dt.6.1.06 from the complainant demanding immediate delivery of the computer and the opposite party sent reply notice dtd.26.1.06 stating all the true facts and expressed their willingness to hand over the computer at the earliest provided the complainant pays all the amount towards the loan and also Rs.1,000/- towards the loss sustained by him. Opposite party submits that the complainant remained idle till filing this petition but the opposite party was waiting for the complainant till date. Opposite party alleged that the complainant has conveniently suppressed all this materials facts and has not approached this forum with clean hands but has rather approached with his unscrupulous tactics. Opposite party vehemently denied the allegation that he sold the computer along with the loan since the same is absolutely incorrect, <br /> - 5 -<br /> baseless and highly defamatory. Moreover the opposite party submits that he could not sell the computer and thus he has sustained huge loss for which the complainant is liable to compensate the loss. Further opposite party contented that the complainant is liable to pay Rs.31,632/- towards loan installments, Rs.1,303/- towards the processing charges, Rs.10,544/- towards and the penalty towards the dishonoured cheques along with 18% interest and Rs.50,000/- towards compensation suffered for mental agony and frequent harassments. Opposite party submits that absolutely there was no deficiency of service on their side and this forum lacks jurisdiction to entertain this nature of complaint. Opposite party prayed to accept their contentions and to dismiss the complaint with compensatory costs.<br /> <br /> Complainant filed affidavit along with documents. Opposite party also filed affidavit. Opposite party filed an application to call for the document from the finance company. Exhibts A1 to A4 and Exbt C1 was marked.<br /> <br /> It is clear from the Exhibit A1 that the complainant had advanced an amount of Rs.4,000/- to the opposite party for purchasing the computer. Opposite party has also admitted in his version as well as affidavit that he has received a sum of Rs.4,000/- from the complainant towards advance amount for the purchase of computer.<br /> <br /> There is no doubt that the complainant had applied for financial loan and the same was sanctioned as per Exhibit C1. The allegation of the complainant is that he had not been delivered with the computer. The said fact was also admitted by the opposite party in his affidavit. It is evident from Exhibit A4 that the finance institution has caused a lawyer notice to the complainant stating that on 12.03.2005 after executing the Hire purchase finance <br /> - 6 -<br /> agreement and promissory note the product is delivered to the complainant and the finance has been granted under the strength of the computer as security. Admittedly the opposite party is the custodian of the computer and is remitting EMIs to the financial institution. The opposite party ought to have intimated the finance institution about the non-delivery of computer to the complainant.<br /> <br /> It is not just and proper on the part of opposite party to suppress the said facts to the finance institution. Hence we attribute deficiency of service on the part of opposite party. In the above circumstance, the complaint is partly allowed.<br /> <br /> Hence we direct the opposite party to refund an amount of Rs.4,000/- to the complainant within a period of one month from the date of communication of this order failing which the complainant is entitled to get 8% interest for the aforesaid amount from the date of order till realization. Parties shall bear their respective costs.<br /> <br /> Pronounced in the open court on this the 15th day of November, 2007 <br /> President in charge (SD)<br /> <br /> Member (SD) <br /> <br /> <br /> <br /> <br /> <br /> <br /> - 7 -<br /> APPENDIX<br /> <br /> Exhibits marked on the side of the complainant<br /> Ext.A1 – Receipt dated 12.02.2005 for payment of Rs.4000/-<br /> Ext.A2 – Letter send by opposite party to complainant dated 06.01.2006<br /> Ext.A3 – Letter send by Bajaj Auto Finance Ltd to complainant dated 01.02.06<br /> Ext.A4 – Copy of Lawyer notice issued by opposite party to complainant<br /> <br /> Exhibits marked on the side of the opposite party<br /> Nil<br /> <br /> Forums Exhibit <br /> <br /> Ext. C1 – Customer statement produced by Bajaj Alliance Ltd dtd 26.07.07 <br /> <br /> <br /> Forwarded/By Order<br /> <br /> Sd/-<br /> <br /> Senior Superintendent<br /> <br /> <br />