DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.J.JAYASHANKAR, B.A,B.L., .....MEMBER-I
THIRU.P.MURUGAN,M.Com.ICWA(Inter),B.L., ....MEMBER-II
CC. No.47/2022
THIS TUESDAY, THE 20th DAY OF SEPTEMBER 2022
Mr. L.Karthick, S/o.Loganathan,
No.16, Venugopal Street, Vetri Nagar,
Kolathur, Chennai – 600 082. ……Complainant.
//Vs//
1.JK Automobiles,
Authorised Service Centre for Bajaj Auto Limited,
Rep.by its Authorized Signatory, Vijayshankar,
SG.2, Aishwaryam, 25-A, Redhills High Road,
Kolathur, Chennai -600 099.
2.Mr.Vijayshankar, Proprietor,
JK Automobiles,
Authorised Service Centre for Bajaj Auto Limited,
SG.2, Aishwaryam, 25-A, Redhills High Road,
Kolathur, Chennai -600 099.
3.KLN Bajaj,
Rep. by its Manager,
T98, 3rd Avenue, Anna Nagar West,
Chennai -600 102.
4.Bajaj Finance Limited,
Rep. by its Manager, Bharani Function Hall,
Arcot Road, Vijayaraghavapuram,
Saligramam, Chennai 600 093.
5.Bajaj Auto Limited,
Rep. by its Managing Director,
Mumbai Pune Highways Main Road,
Akurdi, Near Ganpati Mandir,
Pune – 411 035. ..........Opposite parties.
Counsel for the complainant : M/s.M.Murugan, Advocate.
Counsel for the 4th opposite party : Mr.S.Parthasarathy, Advocate.
Counsel for the opposite parties 1, 2, 3 & 5 : Exparte.
This complaint is coming before us on various dates and finally on 12.09.2022 in the presence of M/s.M.Murugan Advocate counsel for the complainant and Mr.S.Parthasarathy, Advocate counsel for the 4th opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service in not registering the vehicle and not returning the same to the complainant along with a prayer to direct the opposite parties to deliver a new Avenger 150 Street Motor Cycle on EMI basis to the complainant at the price which was in force as on 20.02.2017 and to pay a sum of Rs.10,00,000/- as compensation for the mental agony caused to the complainant along with cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-
It was the case of the complainant that he purchased one Avenger 150 Street motor cycle on EMI basis from opposite parties which was delivered on 08.03.2017 bearing Engine No.PDYCHL90580, Chassis No.MD2A85CY4HCL17473. However, even on repeated requet the opposite parties failed to get the vehicle registered from RTO. On 14.04.2017, the opposite parties took the vehicle for registration, but they never returned it after registeration. Several complains were made to all the oppostie parties but all in vain. But the instalments were collected from the complainant and totally the oppostie parties had collected Rs.44,260/- from the complainant. The opposite parties 1 & 2 issued a cheque for Rs.40,695/- towards vehilce cost but the same got dishonoured on 28.06.2017 for the reasons “funds insufficient“. The complainant was cheated by opposite parties and thus aggrieved, after issuing a legal notice the present complaint was filed for the reliefs mentioned below;
To deliver a new Avenger 150 Street Motor Cycle on EMI basis to the complainant at the price which was in force as on 20.02.2017;
To pay a sum of Rs.10,00,000/- as compensation for the mental agony caused to the complainant along with cost of the proceedings to the complainant.
Despite service of notice the opposite parties 1, 2, 3 & 5 did not appear before this commission to file written version within the mandatory period. Hence they were called absent and set exparte on 11.03.2019 & 05.04.2019 respectively for non appearance.
Crux of defence made by the 4th opposite party:-
4th opposite party states that he was only a financier in the present transaction and had only extended financial assistance and not at all liable and responsible for the registration of the vehicle and that he was not a necessary party in the present complaint and their name may be deleted from the complaint and the present complaint deserve to be dismissed against them. The complainant himself mentioned and admitted that opposite parties 1 & 2 were the authorized dealer for 5th opposite party. That 3rd opposite party was the dealer for 5th opposite party at Chennai location and 5th opposite party was selling motor cycles of Bajaj make vehicles and the 4th opposite party was only a financier and the 4th opposite party has no concern, relationship with all other opposite parties. Hence the allegations in the complaint was disputed and denied. The 4th opposite party submits that the amount of Rs.30,000/- remitted by the complainant as down payment was not received by the 4th opposite party and the complainant himself has accepted the said fact. The complainant has obtained financial assistance from the 4th opposite party and on the basis of the request from the complainant the 4th opposite party has extended financial assistance for the purchase of a two wheeler (Avenger 150 Street – BS IV). Considering the request the 4th opposite party agreed to extend financial facility to the tune of Rs.85,560/- (including financial charges of Rs.17,560/- for 24 months). Later, as per mutual understanding on 08.05.2017 a Loan Agreement No.L2ACHE04914897 was executed. The monthly installment to be paid as per loan agreement per month was Rs.3565/-. The contract period was for 24 months starting from 06.07.2017 to 06.03.2019 which was an admitted fact by the complainant. The 4th opposite party was not responsible for the registration of vehicle or for delivery of the vehicle to the complainant as he was only a financier in the present transaction and not at all liable and responsible for any other services. All the allegations in the complaint were against the 2nd opposite party. Hence the 4th opposite party was not a necessary party to the present complaint. The complainant has no any cause of action for filing the complaint against the 4th opposite party as there was no any deficiency of service or unfair trade practice from the part of the 4th opposite party at any point of time. The 2nd opposite party has already remitted the amount to Odisha Motor Vehicle Department towards registration of the said vehicle. Moreover there is no specific allegations by the complainant against the 4th opposite party in the complaint. Hence the complaint deserves to be dismissed.
The complainant has filed proof affidavit and documents Ex.A1 to Ex.A16 were marked on their side. On the side of 4th opposite party proof affidavit was filed and documents Ex.B1 & Ex.B2 were filed on their side.
Points for consideration:
Whether the alleged deficiency in service on the part of the opposite parties was proved by the complainant with respect to the non registration and return of the vehicle purchased from them in spite of payment of entire cost of the vehicle & Registration charges?
If so to what reliefs the complainant is entitled?
Point:1
On the side of the complainant the following documents were filed in support of the complaint allegations;
Cheque for Rs.30,000/- given by the complainant dated 20.02.2017 was marked as Ex.A1;
Cash payment receipt given by the opposite parties 1 & 2 dated 20.02.2017 was marked as Ex.A2;
Motor cycle delivery challan dated 08.03.2017 was marked as Ex.A3;
Complainant’s email complaint to 5th opposite party dated 31.05.2017 was marked as Ex.A4;
Reply by 5th opposite party to the complainant dated 11.05.2017 was marked as Ex.A5;
Complainant’s email complaint to 5th opposite party dated 13.07.2017 &13.07.2017 were marked as Ex.A6 & Ex.A7;
Reply by 5th opposite party to the complainant dated 17.07.2017 was marked as Ex.A8;
Statement of Account of 4th opposite party from 01.03.2017 to 16.05.2017 dated 19.05.2017 was marked as Ex.A9;
Statement of Account of 4th opposite party from 04.03.2017 to 24.07.2017 dated 25.07.2017 was marked as Ex.A10;
Cheque No.000897, Andhra Bank, Villivakkam Branch dated 12.06.2017 was marked as ExA11;
Return memo for cheque No.000897, Andhra bank dated 28.06.2017 was marked as Ex.A12;
Legal notice sent to opposite parties 1 & 2 with AD cards dated 26.07.2017 was marked as Ex.A13;
Complaint in CC.No.1093/2018 dated 05.09.2017 was marked as Ex.A14;
Legal notice issued by the complainant to the opposite parties dated 15.12.2018 was marked as Ex.A15;
Acknowledgement cards of opposite parties for proof of delivery was marked as Ex.A16;
On the side of the 4th opposite party the following documents were filed in support of their contention;
Loan agreement dated 08.03.2017 was marked as Ex.B1;
Cheque bounce memo dated 07.08.2017 & 06.09.2017 was marked as Ex.B2;
Heard the oral arguments and perused the pleadings, evidences and written arguments filed by the complainant and the 4th opposite party.
It was the case of the complainant that he had purchased one Avenger 150 Street motor cycle manufactured by the 5th opposite party and sold by the 3rd opposite party on EMI basis. On 08.03.2017 the vehicle was delivered but without registration and on several request on 14.04.2017 they took back the vehicle for registration but till this date the vehicle was not returned to the complainant. Though several emails and letters were sent by the complainant the opposite parties did not respond. After several efforts the opposite parties 1 & 2 issued a cheque for Rs.40695/- stating that the amount received from him is returned. Since the opposite parties 1 to 3 have not returned the vehicle the complainant did not pay the EMI amount from August 2017 and totally the opposite parties had collected Rs.44,260/- from the complainant. When the cheque was presented for collection it was returned for the reasons “funds insufficient”, for which a Criminal Case under Section 138 of Negotiable Instruments Act, 1881 in CC.No.1093/2018 was filed and the same was pending on the file of II Fast Track Court, Egmore. Thus causing huge mental agony the counsel for the complainant argued that the opposite parties had committed gross deficiency in service and unfair trade practice to the complainant and sought for the complaint to be allowed.
Though the 4th opposite party had filed written arguments they did not appear before this commission to adduce any oral arguments in spite of several chances given to them. Hence, after giving sufficient opportunities this commission decided to consider the written arguments filed by them as oral arguments for the sake of deciding the complaint on merits.
The crux of the written arguments filed by the 4th opposite party is that they did only finance to the transactions and they had no other privity with the complainant and it is only the opposite parties 1 to 3 who dealt with the complainant. It was submitted by them that they extended finance facility to the tune of Rs.85,560/- for the purchase of two wheeler namely Avenger 150 Street motor cycle. Further it was alleged that they were no way response for the registertration of the vehicle and they were not aware of the facts that the vehicle was not returned back to the complainant after registration. Thus alleging that there is no specific allegation against them in the complaint the 4th opposite party sought for the dismissal of the complaint.
On appreciation of the materials produced by the complainant it is seen that totally Rs.98,000/- was spent by the complainant towards the purchase of the vehicle i.e.Rs.30,000/- by way of cheque (Ex.A1 &Ex.A2) and remaining amount by finance. It is also seen that the vehicle was not registered which is evident by the documents Ex.A4, Ex.A6 and Ex.A7 the complains made by the complainant to the 5th opposite party and Ex.A8 the reply given by the 5th opposite party. Further it is seen that the cheque issued for an amount of Rs.40,695/- by the opposite parties as settlement for the vehicle was also returned for funds insufficient (Ex.A11 &Ex.A12). Thus, it is amply proved by sufficient evidences that the vehicle purchased by the complainant from the opposite parties was not registered and returned to him which aspects was corroborated by the non appearance of the opposite parties 1 to 3 & 5 before this commission. The defense raised by the 4th opposite party was to be accepted for the reason that he is a mere financier. Hence we hold that the complainant has successfully proved the deficiency in service and unfair trade practice committed on the part of the opposite parties 1 to 3 & 5 in receiving the amount from the complainant and in not delivering the vehicle along with registration to the complainant. Thus we answer the point accordingly in favour of the complainant and as against the opposite parties 1 to 3 & 5.
Point No.2:
With regard to the relief to be granted to the complainant we feel it is appropriate to direct the opposite parties 1 to 3 & 5 to deliver a new Avenger 150 Street motor cycle or in alternative to pay a sum of Rs.1,00,000/-, the cost of the vehicle along with a compensation of Rs.1,00,000/- which we think appropriate for the mental agony and hardship caused to the complainant by the act of opposite parties and we also award Rs.10,000/- towards litigation expenses to the complainant.
In the result, the complaint is dismissed against the 4th opposite party and partly allowed against the opposite parties 1 to 3 and 5 directing them,
a) to deliver a new Avenger 150 Street Motor Cycle or in alternative to pay Rs.1,00,000/- (Rupees one lakh only), the cost of the vehicle within six weeks from the date of receipt of copy of this order;
b) to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for mental agony and hardship caused to the complainant;
c) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.
d) if vehicle not provided within six weeks from the date of receipt of copy of this order 9% interest to be levied on the refund amount of Rs.1,00,000/- from the date of complaint till realization.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 20th day of September 2022.
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 20.02.2017 Cheque for Rs.30,000/- given by the complainant. Xerox
Ex.A2 20.02.2017 Cash payment receipt given by opposite parties 1 &2. Xerox
Ex.A3 08.03.2017 Motor cycyle delivery challan. Xerox
Ex.A4 09.05.2017 Complainant’s email complaint to 5th opposite party. Xerox
Ex.A5 11.05.2017 Reply by 5th opposite party. Xerox
Ex.A6 31.05.2017 Complainant’s email complaint to 5th opposite party. Xerox
Ex.A7 13.07.2017 Complainant’s email complaint to 5th opposite party. Xerox
Ex.A8 17.07.2017 Reply by 5th opposite party. Xerox
Ex.A9 19.05.2017 Statement of Account of 4th opposite party from 01.03.2017 to 16.05.2017. Xerox
Ex.A10 25.07.2017 Statement of Account of 4th opposite party from 04.03.2017 to 24.07.2017. Xerox
Ex.A11 12.06.2017 Cheque No.000897, Andhra bank, Villivakkam Branch. Xerox
Ex.A12 28.06.2017 Return memo for cheque No.000897, Andhra bank. Xerox
Ex.A13 26.07.2017 Legal notice sent to opposite parties 1, 2 with AD Cards. Xerox
Ex.A14 05.09.2017 Complaint in CC.No.1093/2018. Xerox
Ex.A15 15.12.2018 Legal notice issued by the complainant. Xerox
Ex.A16 ............... Acknowledgement cards of opposite parties for proof of delivery. Xerox
List of documents filed by 4th opposite party:-
Ex.B1 08.03.2017 Loan agreement. Xerox
Ex.B2 0708.2017
&
06.09.2017 Cheque bounce memo. Xerox
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
