Delhi

East Delhi

CC/517/2014

MANOJ - Complainant(s)

Versus

HOME CREDIT - Opp.Party(s)

31 May 2018

ORDER

 DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 517/14

 

Shri Manoj Kumar

S/o Shri Ram Bachan

R/o 7/35, Block-7

Trilokpuri, Delhi – 110 091                                                         ….Complainant

 

Vs.

 

1. Home Credit India Finance Pvt. Ltd.
3.  

DLF Gurgaon – 122 002

 

2. SETCO

Authorized Dealer of

India Yamaha Motor Pvt. Ltd.

A-2, Pandav Nagar, Opp. Mother Dairy,

Delhi – 110 092                                          Opponents

 

Date of Institution: 04.06.2014

Judgment Reserved on: 31.05.2018

Judgment Passed on: 06.06.2018

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By : Ms. Harpreet Kaur Charya (Member)

 

JUDGEMENT

            This complaint has been filed by Shri Manoj Kumar, against Home Credit India Finance Pvt. Ltd. (OP-1) and SETCO, authorized dealer of India Yamaha Motor Pvt. Ltd. (OP-2) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service. 

2.         The facts in brief are that the complainant purchased a new Yamaha motorcycle FZS from OP by paying a sum of Rs. 20,000/- cash.  OP valued his previous old motorcycle bearing no. DL-7SB-2108 worth Rs. 14,500/- and agreed to adjust the same amount as exchange value of the old motorcycle with the price of new motorcycle.  Hence, the complainant entered into a valued contract with OP by paying Rs. 34,500/- (Rs. 20,000/- cash and        Rs. 14,500/- exchange value) against the entire value of the new motorcycle i.e. Rs. 83,755/-. 

            It was stated that OP-2 delivered the new motorcycle Yamaha FZS, Engine no, 21CJ085489, Chasis no. ME121C0J4E2035472 without registration number and RC.  The complainant was assured that the same would be provided within a week, but nothing was done.      

            The complainant was surprised when OP-1 issued a letter of sanction of loan amount of Rs. 83,755/- against the new motorcycle vide contract no. 3401517603 dated 01.05.2014 and there was no mentioning regarding the adjustment of Rs. 34,500/- (Rs. 20,000/- cash and Rs. 14,500/- exchange value).  The complainant approached the OP and requested to adjust the amount of Rs. 34,500/-, but all in vain.

            It was further stated that as per letter of sanction of loan, OP have burdened the complainant with monthly customer care fee of Rs. 200/- per month till the fulfillment of all EMIs.

            Complainant sent a legal notice dated 13.05.2014 through registered post on 15.05.2014 which was not replied.  Hence, complainant has prayed for directions to OP to issue the Registration Certificate (RC) of the vehicle and adjust Rs. 34,500/- in the value of new motorcycle; Rs. 90,000/- compensation on account of harassment and mental agony and Rs. 9,000/- towards litigation cost.

            The complainant has annexed copy of delivery receipt dated 02.05.2014, receipt of Rs. 20,000/- cash dated 02.05.2014, Loan Sanction letter dated 01.05.2014, copy of motor vehicle insurance cover note dated 02.05.2014, copy of letter dated 06.05.2014 written by the complainant to   OP-1 and OP-2 also, copy of legal notice and its postal receipts alongwith complaint.

3.         In the written statement, filed on behalf of OP-1, the forum did not have jurisdiction to entertain the present complaint as per clause 14.8 of terms and conditions of Loan-cum-hypothecation agreement, the courts of Haryana had exclusive jurisdiction.  Secondly, as per clause 14.7, the arbitration clause also barred the jurisdiction of this forum. 

            They have denied that the complainant paid Rs. 34,500/- to OP-1.  It was stated that complainant paid only Rs. 31,713/- to OP-1 which was adjusted towards payment of EMIs agreed to be paid in advance and processing fee.  It is denied that complainant received the possession of motorcycle from OP-1 as OP-1 is engaged in the business of granting loans for the purchase of two wheeler, laptops and mobile phones.  Hence, OP-1 had no role in providing the registration number and RC of the motorcycle.  The same reply was given to legal notice dated 05.06.2014. 

            It was further stated that after receipt of application for grant of loan from the complainant, OP-1 issued the sanction letter, which was valid for 24 hours from the date of issuance.

            It was also stated that the complainant only after being satisfied with the calculations and terms and conditions of the loan, accepted the sanction letter and Loan-cum-Hpothecation Agreement on the basis of which the loan was disbursed in favor of the complainant.  Other facts have also been denied.             

4.         The complainant has filed evidence by way of affidavit where he has examined himself.  He has narrated the facts which have been stated in the complaint.  He has got exhibited documents such as copy of delivery receipt dated 02.05.2014 (Ex.PW1/1), receipt dated 02.05.2014 (Ex.PW1/2), loan sanction letter (Ex.PW1/3), copy of insurance (Ex.PW1/4), copy of complaint with courier receipt (Ex.PW1/5 colly.) and copy of legal notice alongwith its postal receipts (Ex.PW1/6 colly.). 

            In defence, OP-1 have examined Shri Rajat Goel, Asstt. Manager-Legal of OP-1, who has deposed on affidavit.  He has narrated the facts which have been stated in the written statement.  He has also got exhibited documents such as authorization letter issued by the company (Ex.R2/1), copies of consent form and application form (Ex.R2/2 and R2/3), Loan-cum-Hypothecation Agreement (Ex.R2/4), copy of ECS mandate form (Ex.R2/5) and copy of Fair Practice Code issued by Reserve Bank of India (Ex.R2/6).  

5.         We have heard the complainant and have perused the material placed on record.  Firstly, on the jurisdiction point, whether this Forum can entertain the present complaint or not, it is settled principle of law that parties by agreement cannot confer jurisdiction on a particular court. In the present case, the cause of action arose within the territorial jurisdiction of this Forum, it is stated by OP-1 that it’s representative are stationed at various shops/dealers and contact the customer; thus, the process/online application for loan was initiated within our jurisdiction as OP-2 is within the territorial jurisdiction of this Forum.  Thus, this Forum can entertain the present complaint.

            Secondly, Hon’ble Supreme Court has held in M/s. Emaar MGP Land Ltd. & Anr. vs. Aftab Singh that arbitration clause in agreements cannot circumscribe the jurisdiction of a consumer fora.  Thus, this objection is also decided against OP.

            Now, coming to the merits of the complaint, the complainant has stated that he had paid Rs. 34,500/- (Rs. 20,000/- cash + Rs. 14,500/- exchange value) which was not adjusted in the cost of new motorcycle. 

            If we look into the sanction letter dated 01.05.2014 which is Ex. PW1/3, it bears loan amount as Rs. 83,755/- with EMI amount as Rs. 2,920/- and monthly customer care fee as Rs. 200/-, thus making monthly payment as    Rs. 3,120/-.  The said letter has been duly signed by the complainant and also bears his photograph.

             Further, under the head ‘Imp. Information’, the detailed terms and conditions too have been given.  Once the complainant has put his signature on the sanction letter, he is bound by the same.  It’s nowhere the case of the complainant that there was concealment of facts / loan amount.  That being so, the allegations leveled against OP is mere an afterthought.  The letters dated 06.05.2014 also do not come to the aid of the complainant, as he has placed nothing on record to prove that they were duly delivered/received by OP’s.  

            However, we observe that if the complainant had paid Rs. 34,500/- then said amount should have been adjusted against the cost of new motorcycle, which has not been done.  So, the loan amount should have been Rs. 51,768/- (Rs. 83,755/- (-) Rs. 31,987/-) and after calculating interest @ 6.55% p.a. for 34 months EMI would have been Rs. 1806/- p.m. instead of Rs. 2,920/-.  Thus, complainant has paid Rs. 37,904/- in excess to the OP.  Therefore, we direct OP to refund Rs. 37,904/- alongwith 6% interest from the date of order.  We further award compensation of Rs. 7,500/- inclusive of litigation expenses. 

            This order be complied within a period of 30 days.  If not complied, the amount of compensation of Rs. 7,500/- will also carry interest @ 6% from the date of order.

            Copy of the order be supplied to both the parties as per rules.

File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

Member                                                                                Member    

 

            (SUKHDEV SINGH)

             President