Haryana

Karnal

CC/291/2020

Sandeep - Complainant(s)

Versus

Krishna Autos (Authorized Dealer Of TVS Motors Company) - Opp.Party(s)

Naveen Khetarpal

21 Mar 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 291 of 2020

                                                        Date of instt.10.08.2020

                                                        Date of Decision:21.03.2023

 

Sandeep son of Shri Kaptan, resident of house no.3061, village Ballah, District Karnal.

                                               …….Complainant.

                                              Versus

 

1.     Krishna Auto (Authorized Dealer of TVS Motor Company) # G.T. Road, near Namastey Chowk, Karnal through its Manager/Authorized person.

 

2.     IDFC First Bank Branch Sector-12, Karnal through its Manager/authorized person.

                                                                …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Naveen Khetarpal, counsel for the complainant.

                    OP no.1 exparte.

                    Shri Kunal Chopra, counsel for the OP no.2.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs) on the averments that complainant was desired to purchase a two wheeler/scooter for his own use, therefore, the complainant approached to OP no.1 on 29.10.2018. OP no.1 is the authorized dealer of two wheelers made by TVS Motor Company. On visit to the showroom of OP no.1, sales manager showed many vehicles and its different models and also explained about the specifications and prices for the vehicles. After selection of a vehicle TVS Jupiter model name classic, the sale manager made a memorandum/slip of the on road price of the vehicle and told the total prices of the vehicle as Rs.70,946/- including RC, insurance and accessories price and handed over the memo of price signed by Mr. Jitender. The manager of the OP told the complainant, there is a tie up between the OP no.1 and IDFC First Bank i.e. OP no.2 in regard to avail the finance facility and the complainant need not to approached to any other financer/bank for loan. It is also assured that the rate of interest is 12% per annum on the loan amount and same is quite lesser than the rate of other banks. Complainant paid an amount of Rs.16,000/- cash as down payment for the purchase of the said vehicle to the Manager and got financed the balance amount of Rs.54,946/- from the OP no.2 through OP no.1 and purchased the vehicle TVS Jupiter Classic. The sales manager Mr. Jitender assured that the finance formalities would be completed by him and got signed the blank application form for finance of the vehicle and also assured that all the payment expenses for RC and insurance, accessories are including in the said memo of price and now complainant have to pay only installments for the loan amount of Rs.54,946/- including financial charges. Complainant started paying EMIs of Rs.3219/- per month to OP no.2 but the complainant got surprised when it came to the knowledge that the CIBIL score of complainant is below good. Complainant enquired about the CIBIL score from OP no.2 and OP no.2 told that the loan of Rs.63578/- has been sanctioned and disbursed in the loan account of complainant instead of loan of Rs.54,946/-as assured by Mr. Jitender. The complainant was shocked to know that how can a bank finance amount of a vehicle more than its price value. The dealer price as mentioned in the invoice of the vehicle is Rs.59,457/- than how the bank can disburse the amount of Rs.63,578/- i.e. the amount excessive from the value of asset. The complainant has been cheated on the hands of the OPs and both the OPs are in collusion and played a fraud with complainant and had grabbed the amount of Rs.8632/- i.e. the difference of finance amount from the invoice amount. The amount has been financed by OP no.2 and same has been credited to the account of OP no.1, therefore, both the OPs have played a fraud with complainant. Due to this act and conduct of OPs, the CIBIL report of complainant has been come to lower score and now the complainant is unable to get finance facility for any other purpose. Complainant visited the OPs so many times and requested to refund the amount of loan that has been financed by disbursed excessive and also requested to OP no.2 to clear the CIBIL report of complainant but OPs did not pay any heed to the request of complainant. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 did not appear despite service and opted to be proceeded against exparte, vide order dated 22.09.2020 of the Commission.

3.             OP no.2 appeared and filed its written version raising preliminary objections with regard to maintainability; territorial jurisdiction; concealment of true and material facts and as per clause of the agreement entered into between the parties, all disputes, differences, claims and questions whatsoever arising out of this agreement shall be referred to the sole arbitrator, thus this Commission has got no jurisdiction to entertain, try and decide the complaint. On merits, it is pleaded that complainant had availed loan from the OP no.2 and signed the agreement after understanding all the terms and conditions of the agreement. An amount of Rs.63578/- were lend to the complainant to be repaid in monthly installments of Rs.3219/- but complainant did not turn out to be a good borrower, he committed regular and intention default and did never obeyed his commitment of timely payments. There is regular and prolonged delay in the payment of monthly installments. Delay in payment of monthly installments has been more appropriately shown in the attached statement of account which is Annexure-2. The official of the OP requested several times to deposit the installment but no avail. It is further pleaded that OP disbursed the loan amount after deducting file charges, process fee, insurance etc. as per terms and conditions of loan agreement. It is wrong and denied by the OP that complainant came to know that an amount of Rs.63578/- has been financed instead of Rs.54946/-. The complainant signed the agreement after understanding all the terms and conditions. It is also wrong and denied that complainant requested to OP for refund the amount and to clear the CIBIL. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of memo of payment issued by OP Ex.C1, copy of tax invoice Ex.C2, copy of statement of account Ex.C3 and closed the evidence on 27.04.2021 by suffering separate statement.

5.             On the other hand, OP no.2 has tendered into evidence affidavit of Manpreet POA Ex.OP1/A and closed the evidence on 26.02.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased a vehicle TVS Jupiter amounting to Rs.70,946/- including RC, insurance and accessories price. Complainant paid an amount of Rs.16,000/- in cash as down payment and got financed the balance amount of Rs.54,946/- from the OP no.2 through OP no.1. Complainant started paying EMIs of Rs.3219/- per month to OP no.2. Complainant enquired about the CIBIL score from OP no.2 and came to know that the loan of Rs.63578/- has been sanctioned and disbursed in the loan account of complainant instead of loan of Rs.54,946/- only. The price of the vehicle is Rs.59,457/- and bank disburse the amount of Rs.63,578/- i.e. the amount excessive from the value of vehicle  and charged the excess amount of Rs.8632/- and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP no.2, while reiterating the contents of written version, has vehemently argued that complainant had availed loan facility from the OP no.2 and signed the agreement after understanding all the terms and conditions of the agreement. An amount of Rs.63578/- was lend to the complainant which was to be repaid in monthly installments of Rs.3219/- but complainant did not pay the installments timely. He further argued that as per clause of the agreement, all disputes, differences, claims and questions whatsoever arising out shall be referred to the sole arbitrator, thus this Commission has got no jurisdiction to entertain, try and decide the complaint and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           The first question arises for consideration is that whether this Commission has jurisdiction to try and entertain the present complaint or not?

11.           The OP no.2 has taken a plea that as per agreement clause, all disputes, differences, claims and questions arising out shall be referred to the sole arbitrator. OP has not placed on record any agreement or other document to prove its version. Therefore, this plea is not tenable in the eyes of law.  Furthermore, if for the sake of argument it may be considered that an arbitration agreement was executed between the OP and the complainant in that case also this Commission has jurisdiction to try and entertain the present complaint as it is a settled proposition of law that complaint under Consumer Protection Act, being an additional remedy, despite there being an arbitration agreement, the proceedings before Consumer Commission have to go on. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. In this regard, we place reliance on the case titled “M/s Emaar MGF Land Limited Versus Aftab Singh, review petition © Nos.2629-2630 of 2018 (SC), wherein Hon’ble Supreme Court of India held in para no.55 as under:-

“We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.”  

12.           Hence, keeping in view the above discussion and ratio of the judgment, the plea taken by the OP has no force. Thus, this Commission has jurisdiction to entertain and try the present complaint.

13.           Admittedly, complainant purchased the vehicle in question from the OP no.1 and the same was got financed by OP no.2.

14.           The total price of the vehicle was Rs.70,946/- including RC, insurance and accessories price etc. Complainant had paid the down payment of Rs.16,000/- to the OP no.1 and balance amount of Rs.54,946/- was got financed from the OP no.2 but OP no.2 disbursed the amount of Rs.63,578/- in the account of OP no.1 instead of Rs.54,946/-.

15.           The onus to prove his case was relied upon the complainant. To prove his case, complainant has relied upon Ex.C1 i.e. detail of cost of the vehicle in question. As per Ex.C1, complainant had made down payment of Rs.15,000/- to the OP no.1. It is evident from the invoice Ex.C2, the basic price including CGST and SGST of the vehicle in question is Rs.59,457/-. It is also evident from the account statement, the loan amount of Rs.63578/-was sanctioned and disbursed by the OP no.2. It is very surprising, the OP no.2 has sanctioned and disbursed the loan amount beyond the actual price of the vehicle. There is a difference of Rs.8632/-. When as per invoice Ex.C2, the actual price including GST was only Rs.59,457/-, there is no reason to sanction the loan beyond the actual price of the vehicle. It has been proved from the record that OP no.2 in connivance with OP no.1 had got financed the loan beyond the actual price of the vehicle and charged the same from the complainant. To rebut the version of the complainant, OP no.2 has tendered only affidavit of Manpreet Singh. OP no.1 did not appear to rebut the evidence of the complainant, thus the evidence produced by the complainant goes unchallenged and unrebutted and there is no reason to disbelieve the same. Thus, the act of the OPs amounts to deficiency in service and unfair trade practice. Hence, complainant is entitled for refund of Rs.8632/- (excess charged by OPs) alongwith interest, compensation for harassment, mental agony and litigation expenses.

16.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the amount of Rs.8632/- to the complainant with interest @ 9% per annum from the date of sanctioning the loan till its realization. We further direct the OPs to pay Rs.10,000/- to the complainant on account of mental agony and harassment and Rs.5500/- towards the litigation expenses. Both the OPs are jointly and severally liable to pay the awarded amount. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:21.03.2023                                                                       

                                                        President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

      

                (Vineet Kaushik)        (Dr. Rekha Chaudhary)      

                      Member                        Member