The instant case was started on the basis of a petition under Section 12 of the Consumer protection act, 1986 which was registered as Consumer Case No. 38/17 in this Forum.
The fact of the case is that the complainant ( Jharna Sarkar) purchased a motor Cycle (Scooty) namely Yamaha Fascino from Yamaha showroom is proforma O.P. No. 3 situated at Sudarshanpur, Raiganj, Uttar Dinajpur.
The complainant at the time of purchase of the Motorcycle, O.P. No.2 who was the agent O.P.No.1 remained present, that while complainant expressed her desires to purchase the motorcycle in finance at that time O. P. No. 2 approached the complainant to take finance from Indusind Bank Ltd. On being influenced of approach of O.P.No.2 petitioner purchases the Motor Cycle (Scooty) after taking finance from O. P. No. 1.
The complainant made a spot payment of Rs. 25000/-(twenty five thousand) as a down payment to proforma O. P. No. 3 and remaining amount financed by the O,P. no. 1 and it was settled that the petitioner have to pay 24 installments @ Rs. 2583/- each.
That at the time of finance the O. P. No. 1 has taken some post dated cheques from petitioner and it was also settled petitioner deposit the amount of installment in her bank account and O.P. No. 1 would collect the same through cheque. Accordingly, that the O.P. No. 1 got first installment through cheque on 7/4/2016.
In the petition it has been stated that the complainant is a illiterate lady and she can only sign her name and her husband is a simple worker in a Hotel. After clearing the first installment the O. P. No. 2 came to the house of petitioner and stated, if petitioner would pay the installment amount and after exhausting the banking process then payment of installment amount became late, if complainant pay the same in cash, then she has avail an option to pay the same as per her capacity.
That thereafter complainant paid Rs. 1000/-(one thousand)on 18.5.2016, Rs. 2000/-(two thousand) on 24.5.2016, Rs. 1300/-(one thousand and three hundred) on 28/5/2016, Rs. 3150/- (three thousand one hundred and fifty)on 14.6.2016, Rs. 3100/-(three thousand and one hundred) on 27.7.2016, Rs. 7800/-(seven thousand and five hundred) on 08-09-2016, Rs. 2500/-(two thousand and five hundred) on 30.11.2016, Rs. 1700/- on 7/12/2016 and Rs. 800/-(eight hundred) on 27/12/2016 in total 23350/- (twenty three thousand three hundred and fifty)by cash to O.P. No. 2 and accordingly, got money receipt from him. The petitioner totally paid Rs. 25950/-(twenty five thousand nine hundred and fifty) (Rs. 2600/-+ Rs. 23350/-) to O.P. No. 1 as installment amount up to December 2016.
That on first part of January, 2017 complainant received a phone call from officials of O.P.No.1.That officials of O.P. No. 1 stated to petitioner got a reward in the lottery of customers of O.P.NO.1 and invite petitioner to attend the program with Motorcycle (Scooty) and all documents of that particular Motorcycle ( Scooty).
The petitioner is an illiterate house wife and her husband is a simple worker as previously stated, therefore, they did not able to attend the program as such they sent their son, who attend the program. That while son of petitioner to the office of O.P.No.1 he found that officials of O.P.NO.1 call him by stating false and fabricated stories. That they also stated him that petitioner was permanent defaulter of repayment of loan amount and snatched away along with key and all documents of the vehicle. There after the son of the complainant requested the officials of O.P.No.1 not to do such type of illegal acts as because they paid installments within due time and he can produce all receipts of amount which paid by her mother through O.P. No. 2. but the O.P. No. 1 did not pay any heed to the request of son of petitioner therefore, finding no other alternatives son of petitioner return back to his home without vehicle and papers.
There after the petitioner and her family members several times requested the O.P. No.1 to return the vehicle along with the papers of the vehicle. But there was no fruitful result came out and thereafter the petitioner sent a legal notice to O.P. No. 1 through her Ld. Advocate on 6/4/2017 and requested O.P. No. 1 to return back the Motor cycle (Scooty) to the petitioner bearing No. W.B. 60N/1172 or make payment of Rs. 25000+ 25950= Rs. 50950/-(fifty thousand nine hundred and fifty) to petitioner within 15 days, after receiving of this letter.
The complainant prays for Rs. 20000/- (twenty thousand) for compensation and Rs. 10000/- (ten thousand) as litigation cost.
The petition has been contested by the O.P.No.1 by filling W.V. denying all the material allegations as leveled against the O.P. No. 1 contending inter alia that the instant case is not maintainable in law and facts. This forum has got no jurisdiction to try the case and the dispute does not come Under section 26 of the Consumer Protection Act.
The complainant after understanding and accepting all the terms and conditions had executed a Loan agreement dated 14/3/2016 bearing No. WBSO4314H with the bank and availed a sum of Rs. 50000/- (fifty thousand) and the said amount is repayable with interest charges of Rs. 12000/- ( twelve thousand) and other applicable charges in 24 equated monthly installments (EMI) each on 7th of every month without any delay or default.
The complainant has submitted the cheques for the purpose of payment of EMI as the complainant had issued ECS mandate for payment of the EMI and she had also agreed to maintain sufficient balance in her bank (savings) account on the date of EMI. It is pertinent to mention here that the complainant has committed the breach of the agreement as she failed to maintain the balance in her (Savings) account for which she has issued the PDC’s/ECS mandate. It is submitted that since the Loan account of the complainant is closed and NOC is also generated on 4/2/2017 and the vehicle was released to the petitioner. The further defence case is that the transactions between the O.P.No. 2 and the complainant is personal matter. The opposite party No. 1 submits that bank is willing to abide by the directions of the Hon’ble forum and hand over the vehicle to the complainant to repayment of yard charges imcurred by it, and the opposite party No. 1 is holding the said vehicle in the capacity of a trustee in its yard incurring parking yard charges. So considering the facts and circumstances the instant case is filled by the complainant is likely to be dismissed.
During the trial the complainant was examined herself as PW 1 and he was cross examined and filed some documents. On the other hand the O.P. did not adduce any evidence to their defence.
Now the point for determination as to whether the complainant is entitled to get any order of compensation from this forum or not.
DECISION WITH REASONS
At the time of the argument the Ld. Lawyer of the complainant submitted that the complainant has paid the entire dues to the O.P.No.2 who is the agent of O.P. No. 1. The Learned Lawyer of the O.P .No. 1 argued that there is no relation between the O.P. No. 1 and O.P. No. 2. What amount was paid by the complainant to the O.P. No. 2 is completely gross violation of the agreement between the bank and the complainant. It is a fact that the amount was paid by the complainant to the O. P. No. 2. Unless and until the bank received the amount but why the bank issued the NOC. Moreover, on perusal of the record that the Indusind Bank received the money through the collector Subhankar Barman. From the cross examination it is found that there was an agreement between the complainant and O. P. No .2. The Ld. Lawyer of the O. P. No. 1 wants to argue that the oral agreement between the complainant and O. P. No. 2 is in gross violation of the agreement between the complainant and O. P. No. 1. It is a fact that such agreement is in violation between the complainant and O. P. No. 1. But why the O. P. No. 2 collected money on behalf of the bank as the receipts bear that the name of Indusind Bank and also the amount of the installments. Moreover, in the W.V. the O. P. No.1 has stated that the O. P. NO. 1 is willing to hand over the vehicle to the complainant. So considering facts and circumstances it is found that the complainant cleared the dues as such NOC was issued. It has been reported by the Supreme Court and the Hon’ble High Court that the Bank Authority cannot recover any amount or any vehicle for nonpayment of loan amount without the recourse of Law. It is also found that the loan amount has not been paid and the bank authority should approach for recovery of loan taking the recourse of Law. The bank Authority has taken away the vehicle by fraudulent way which cannot be considered to this Forum. So considering such facts and circumstances that when the complainant is entitled to get an order as prayed for. The O. P. No. 2 has no liability because he was acting as agent on behalf of the bank and the receipts were issued by the O. P. No. 2 and instance of O. P. NO. 1.
C.F. paid is correct
Hence, it is
ORDERED
That the complainant case being No. CC-38/17 be and the same is allowed on contest against the Ops but without any cost.
The complainant gets Rs. 50950/- (fifty thousand nine hundred and fifty) towards the value of the vehicle and Rs. 20000/- (twenty thousand) for compensation and Rs. 10000/-(ten thousand) as litigation cost and the total amount come to Rs. 80950/- (eighty thousand nine hundred and fifty). The OP is directed to pay the amount within one month from the date of order failing which it will carry interest at the rate of 5% per annum from the date of default of payment till recovery.
Let a copy of this order be given to the parties free of cost.
