IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD AT BERHAMPORE.
CASE No. CC /11/2012.
Date of Filing: 17.02.2012. Date of Final Order: 14.01.2016.
Complainant: Sahajan Shaikh @Sahajahan Shaikh, S/O Samsujoha Sekh,
Vill. Gobindapur(Near Gobindapur Moroipara, Bus-stand), P.O. Palassey,
Gobindapur, Nadia, Pin 741156.
-Vs-
Opposite Party: Lexican Motors Ltd. Prop. Reliance Industrial Consortium Ltd.,
N.H. 34, Balarampore, Berhampore, Murshidabad. Pin 742101.
2. Tata Motors Finance Ltd. Thfl Siliguri Branch, Life Style Hotel, Hill Cart Road,
Siliguri, Pin Code 734001.
3. Tata Motor Finance Ltd, DGP house, 4th Floor, Old Provadevi Road,
Mumbai-400025.
Present: Sri Anupam Bhattacharyya ………………….President.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of the C. P. Act, 1986 praying for refund of Rs.3, 09,599/- plus compensation of Rs.1.90 lac.
The complainant’s case, in brief, is that the complainant purchased a Tata Indica Car for Rs.3,80,366/- from OP No.1 making down payment of Rs.2,09,366/- and taking loan of Rs.1.71 lac by hypothecating the car with OP No.2 Tata Motors Finance Ltd to be repaid the loan by 47 installments of Rs.4,861/- per month. The op No.1 gave delivery of the purchased car on 24.12.2009 to the complainant with the key and TCR only but without giving any documents particularly the registration certificate. The complainant started to play that car on road on 07.01.2010 as a result he had to pay fine of Rs.10, 270/- and since then that care is in the garage. The complainant paid EMI by cheque of Rs.34, 027/- and in cash Rs.66, 572/- in favour of OP No.2 within 27.12.11 and in total the complainant paid Rs.3, 09,599/- . The registration certificate and other documents being not supplied the car is not running since 07.01.2010 and for that the vehicle is not road-worthy and for that the complainant requested the OP No.1 to take return of the vehicle and refund the money but in vain. Hence, the instant complaint case.
The Written version filed by OP No.1 Lexicon Motors Ltd., in brief, is that the OP has denied the entire allegation of the complainant against him. One Rabindra Nath Chatterjee, Director of BMG came to OP for purchasing six cars for them. In total BMG Group paid Rs.8.55 lacs to O.P No.1 time to time to them as down payment towards purchase of those six cars where required down payment was Rs.11,17,000/- . On good faith the OP delivered all those six cars to BM. Group who assured balance down payment but in vain. BMG is the actual owner who is necessary party but BGM Group is not made party in this case and for that this case is bad for defect of parties. Rabindra Nath Chatterjee filed a case No. 125/2011 befor4e this Forum claiming down payment of Rs.8.55 has been paid for six cars including Car No. WB-58M/4782 and the same proves the malafide conduct of the complainant to deceive the OP. There is no deficiency in service of the OP and for that the complaint is liable to be rejected . Hence, the instant written version.
The written version filed by Op No.2 & 3 , in brief, is that the complainant took loan from Op no.2 of Rs.1.71 lac hypothecating the purchased Tata Indica Vista Car to be repaid by 47 monthly installments of Rs.4,861/- within the period from 15.4.10 to 15.01.14 as per terms of agreement No. 5000525473 dt. 24.03.10. As on 22.03.12 the complainant is in total arrears of Rs.8, 566.31. There is no deficiency in service on the part of these Ops and as such the complaint is liable to be dismissed. Hence, the instant written version.
Considering the pleadings of both parties the following points have been framed for disposal of this case.
Points for consideration:-
- Whether the case is maintainable in its present form and law?
- Whether there is any cause of action to file the present case?
- Whether the case is barred by law of limitation?
- Whether the complainant is entitled to get relief as prayed for?
- To what other relief/reliefs the complainant is entitled?
Decision with reasons.
Point Nos. 1 to 5.
All the points are taken up together for the sake of convenience.
The complainant has filed this case for refund of Rs.3, 09,599/- plus compensation of Rs.1.9 lac.
The complainant’s main case is that the complainant purchased one Tata Indica Car for Rs.3,80,666/- from Op No.1 making down payment of Rs.2,09,366/- and taking loan of Rs.1.71 lac from Op No.2 hypothecating the car and the car was delivered on 24.12.2009 without delivering the vital documents the registration certificate of the car and on 01.2010 while the car was plying without document fine of Rs.10270/- had to pay by the complainant and since then the car was lying unused in the garage but the loan was repaying to the OP No.2 Bank. The complainant has prayed for refund of Rs.3, 09,599/- and compensation.
On the other hand the Op No.1 Lexicon Motors has challenged with the plea that for non-payment of down payment, the document was not supplied and for such non-payment the main ground is for bulk purchase of six cars by BMG Gr. including the impugned purchased car of the complainant.
To prove the case the complainant has adduced evidence on affidavit and Xerox copies of relevant documents including delivery memo, contract details in between complainant and Op No.2, Insurance certificate and documents of District Magistrate, Nadia including receipt for payment of fine for plying the car without documents.
On the other hand the OP No.1 –Lexican Motows has not adduced any evidence to prove their case as to bulk purchase of six cars by BMG Gr including the disputed car.
In this regard the settled principle is that the complainant is to prove its case on its own leg without taking any advantage of the weakness of defense case.
To that effect it is clear in this case that the complainant has duly discharged his primary onus by adducing relevant documents such as delivery memo, loan agreement, tax invoice and documents of the District Magistrate , Nadia including receipt showing payment of fine for plying the vehicle on road without document and thus the onus is shifted to the OP No.1 to prove its case where Op No.1 has not adduced any single piece of evidence to discharge its onus as to purchase by BMG Gr. including the disputed car.
Where, the complainant has filed delivery memo and penalty documents for plying the vehicle without documents.
Further from the documents filed by the OP No.2 & 3 Finance Co. Ltd who admitted payment of loan of Rs.1.71 lac to the complainant for purchasing the car it appears from the loan agreement that the purpose of purchasing the vehicle was personal.
From this declaration signed by the complainant in the annexure-I of loan agreement it is clear that the vehicle in question was purchased for personal purpose but not for group purchase or in other words for the alleged bulk purchase by BMG Gr. for their company.
Also in the delivery memo. issued by Op No.1 and in the legal notice issued by Op No.2 and loan agreement in between OP No.1 and the complainant there is signature of the complainant as Sejahan but there is no whisper about BMG Gr for alleged bulk purchase.
The OP No.1 has not adduced any document relating to agreement as well as delivery of the disputed car in the name of BMG Gr. reflecting bulk purchase.
Now, the dispute raised by OP No.1 is that for non-payment of any down payment of the vehicles for Rs.209366/- by the complainant the OP No.1 has not supplied the relevant documents of the vehicle particularly the registration certificate.
The Op Nos. 2 & 3 the finance of the complainant has adduced evidence on affidavit and relevant documents showing repayment of loan, loan agreement and other relevant documents.
The terms of repayment of loan of Rs.1.71 lac was by 47 installments @ Rs.4801/- p.m and admittedly, 46 installments have already been paid.
As per written version as well as evidence-on-affidavit of the signatory of Op Nos. 2 & 3 and from Annexure –I of loan agreement the arrear loan amount as on 22.03.2012 was Rs.8,566/-.
This is not the dispute of this case. This case is for non-supply of relevant documents of the car particularly the registration certificate.
Rather, it is clear that out of 47 installments 46 installments have already been paid.
Further, it is also clear that in this case there is no specific claim of the complainant against the OP Nos. 2 & 3 –the Financer.
Admittedly, the car was delivered on 24.12.2009.
From, the documents of District Magistrate, Nadia and documents along payment of fine it is clear that the complainant had to pay fine of Rs.10, 270/- on 11.1.2010 for plying the car without any documents of the vehicle on 07.01.2010.
Tax Invoice was issued by OP No.1 on 24.03.10 showing value of the car as Rs.3, 80,366/- to be paid within 15 days i.d interest will be charged @ 24%.
CardexI(contract details), Annexure-D issued by Op No.2 shows that invoice Amount Rs.3,80,666/- and initial Hire i.e down payment Rs.2,09,366/- and finance Amount is Rs.1,71,000/- . The same was issued on 22.3.12 in the name of the complainant, not in the name of BMG Group as per case of Op no.1.
The dispute is that down payment was not made by the complainant.
It is true that there is no specific document showing down payment of Rs.2,09,366/- but admittedly ,car was delivered on 24.12.2009 by OP No.1 who issued Tax Invoice on 24.03.10 and this case has been filed on 27.2.2012.
During this period the Op No.1 did not take any steps for realization of the alleged down payment amount of Rs.2, 09,366/- . Also, no document has come before this Forum from the side of OP No.1 showing any steps taken against from BMG Group in this regard as this is the case of Op No.1 that there was proposal of bulk purchase of six cars by BMG Group including the impugned car of this case.
Considering the materials on record and also considering the facts and circumstances of this particular case and for absence of any rebuttable evidence from the side of OP No.1 there is a strong case of presumption that the complainant made down payment of Rs.2, 09,366/- to Op No.1 and as such the complainant is entitled to get relief as prayed for subject to return of the car in running condition.
Considering the f acts and circumstances of this case the complainant is entitled to get compensation of Rs.10, 000/-
On the basis of above discussions the points are disposed of in part in favour of the complainant and as such the complainant will get Rs.3, 09,599/- plus compensation of Rs.10, 000/- from Op no.1 within two months after return of the car in question in running condition and as there is no claim against Op Nos. 2&3 the case is dismissed on contest against OP Nos. 2 &3.
Hence,
Ordered
that the Consumer Complaint No. 11/2012 be and the same is allowed on contest against OP No.1 and dismissed against Op Nos. 2 & 3.
The Op No.1 is directed to pay Rs.3,09,599/- to the complainant within two months subject to return of the car in question in running condition by the complainant , in default the OP No.1 is to pay Rs.100/- as fine for day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
