DATE OF DELIVERY                                             

OF  JUDGMENT                         :  26^th September, 2016

:    J U D G M E N T    :

The petitioner, Sujit Kumar Kundu has filed the instant case against Manager, Lexus Motors Ltd., Krishnagar, Kotwali, Dist. Nadia herein No. 1, Managing Director, herein OP No. 2 and Branch Manager, I.C.I.C.I. Bank Ltd., herein OP No. 3 under Section 12 of the Consumer Protection Act, 1986.

Case of the petitioner in brief:-

            The petitioner runs a business of readymade garments under the name & style of M/S Maa Sharada Blouse Museum and used to travel a lot for collection of money and expansion of his business in his personal vehicle which was a four wheeler namely Tata Sumo Victa being registration No.  WB-28T-4383 dtd. 25.02.09.  A person namely Joydeb Biswas one of the agents of OP Nos. 1 & 2 proposed the petitioner orally on 25.08.14 to buy a new car exchanging the existing one and for this deal the complainant would get a discount on the price of the new car along with alter offers.  The petitioner went to the showroom of OP No. 1 and decided to purchase TATA Moveus LX (BS-IV) (a four wheeler vehicle) for his private use for Rs. 7,51,496/- by exchanging his old car i.e., TATA Sumo Victa ( Reg No. WB-28T-4383 dtd. 25.02.09) which was valued to be Rs. 3,10,000/- by OP No. 1 & 2 and the petitioner was allured by the OPs offer that this price will be adjusted with the price of the new car and the balance money would be returned to the petitioner.  The OPs also agreed a free registration scheme of the new car and all these offers allured the petitioner to go for the deal.  Finally petitioner paid Rs. 50,000/- on 26.08.14 to the OPs as booking money and the OPs in turn took the old vehicle on 29.08.14 through the agent named Joydeb Biswas.  Again on 20.09.14 the petitioner paid Rs. 58,700/- in favour of OP 1 as part payment of the vehicle and got the delivery of TATA Moveus LX (BS-IV) along with the delivery challan.  The complainant took a auto loan of Rs. 4,00,000/- from OP 3 for purchasing the said vehicle.  OP, took Rs. 21,446/- from the petitioner towards insurance coverage of the new car and also handed over the Insurance Policy certificate (bearing No 154001/31/14/63/00007128 dtd. 22.09.14) and the issuing office of this certificate was in National Insurance Co. Ltd.   Though OP Nos. 1& 2 promised to register the new car in the name of the petitioner free of cost but the OPs demanded Rs. 45,040/- from the petitioner  and the latter was compelled to pay that sum for the purpose of road tax, but neither the sales certificate nor the registration certificate  was handed over to the petitioner till the filing of the case.   Moreover for the exchange of the old car with the new one the OPs promised to pay Rs. 1,06,652/- but they later agreed to pay only Rs. 15000/- on 20.01.15 and that too within 10.02.15.  The petitioner had to face a lot of financial hardship for non-availability of the sales certificate & registration certificate as I.C.I.C.I. Bank Krishnagar Branch herein OP 2 compelled the petitioner to clear the loan amount at once as the above mentioned certificates of the vehicle could not be supplied by the petitioner within mandatory in case of such loan.  On the top of that OPs also charged Rs.20,761/- towards prepayment / early payment charges though this prepayment had to be made by the petitioner under a compelling situation created by the OPs.  Petitioner went to the office of the OP No. 1 & 2 several times for those documents / certificates as well as the balance money several times but every time he returned with bare hands. 

            Finding no other alternative he has come to this Forum for getting redressal with the following prayer:-

1. Direction upon the OP No 1 & 2 to refund the exchanged value of Rs. 1,06,652/-
2. Direction upon the OP No. 3 to refund Rs. 20,261/- taken from the complainant forcefully towards prepayment charges.
3. Direction upon the OPs to pay Rs. 80,000/- towards compensation and Rs. 20,000/- towards litigation cost. 

            The case is running ex parte against OP No. 1 & OP No. 2 (Lexus Motors Ltd.) OP No. 3 (ICICI bank) has contested the case by filing written version.  Both the petitioner and of OP No 3 have filed their affidavits-in-chief which was also challenged by the opposite party.  The interrogatories were made by the parties, by way of reply.

            OP No. 3 in his written version has denied most of the allegations brought by the petitioner and has hold the view that case is not maintainable in this Forum as the petitioner is not a consumer as per C P Act 1986. OP3 also admits that the petitioner approached before the bank for an auto loan of Rs. 4,00,000/- and it was subsequently sanctioned by the banking authority to be repaid in 36 EMIs of Rs. 13,286/- each. Before sanction the loan some documents like Credit Facility Application Form, deed of Hypothecation and Irrevocable Power of Attorney (dated 26/8/14) executed between the petitioner and the OP3 were submitted in the office of OP No. 3, ICICI Bank.  Later petitioner approached the bank sometimes in the month of January 2015 with a request to foreclose the loan a/c and he paid the entire sum of Rs. 3,81,632/- and according to their version there is no illegality in charging such amount because it was a precondition of such loan that if any customer wants to foreclose any loan before the expiry of the tenure of such loan then the borrower has to pay the prepayment charges to the financer and this clause was mentioned in the loan agreement.  So there is no point blaming the bank (OP3) for charging such extra payment from the petitioner. So OP3 claims that they are not deficient in providing services to the petitioner and refund the prepayment charges.  OP No. 3, therefore, prays for dismissal of the case with exemplary cost.

            From the pleadings, Written version of OP3, documents of both parties as well  as affidavits-in-chief we frame the following points for proper adjudication of the case:

POINTS FOR DECISION

1. Point No. 1:   Is the complainant a consumer?
2. Point No. 2:   Are the OPs deficient in their service?
3. Point No. 3:   What relief the complainant is entitled to get?

REASOND DECISIONS

            For the purpose of brevity and convenience all the points are taken up together for discussion.

Point No 1:

The petitioner is a consumer under all the opposite parties. He purchased a vehicle, Tata Moveus Lx (BS IV) from OP 1 & 2  by paying a consideration money  of Rs.7,51,496/- as per Tax Invoice dated 23/09/2014, OP3 sanctioned the auto loan of Rs.4,00,000/- in lieu of a charge and hence the petitioner is a consumer under OP 3.  The point No. 1 is thus decided. 

The complainant has filed the following documents in support of his case:-

1. Annexure – 1 to 1/b – Copy of Quotation of Lexus Motors Ltd. – 3 pages
2. Annexure – 2 – Copy of road tax
3. Annexure – 3 – Copy of Papers of Lexus Motors Demo / Display,
4. Annexure 3/a – copy of Tax Invoice,
5. Annexure 3/b – Copy of Sale in voice
6. Annexure 3/c – Copy of temporary certificate of registration
7. Annexure – 4 to 4/e – Copy of Loan pay in slip and loan documents
8. Annexure – 5 – Copy of National Insurance Co. Ltd.
9. Annexure – 6 to 6/c – Copy of Papers of State Transport Authority
10. Annexure – 7 – Copy of Certificate of Registration

      Keeping in view of the above documents and the pleadings of the parties we have to find whether the OPs that means Lexus Motors and ICICI Bank were deficient in service or not.

      At the time of argument Ld. Advocate for the complainant has filed the following calculations in order to strengthen his argument against the OPs:-

Price of Tata Movus LX                        =      7,51,496/-

Bank Loan                                   = (-) 4,00,000/-

                                                 3,51,496/-

Valuation of Tata Sumo Victa Rs.  3,10,000/-

                  (WB/28/4383) Rs.    41,496/-

Payment made by complainant:-

On 26.08.2014 (Booking money)          = Rs. 50,000/-

On 20.09.2014                              = Rs. 58,700/-

Road Tax                         = Rs. 45,040/-

Insurance (cancelled)                 = Rs. 21,445/-

                                          Rs. 1,75,185/-

Extra money paid by the complainant = 1,75,185/  -  Rs. 41,496/- = Rs. 1,33,689/-.

It has been further argued that the OP No. 3, ICICI should not have taken 20241/- for pre-matured loan payment when the loan is repaid before the time agreed.  It is argued that no charges should have been made for early payment of the loan amount to the ICICI bank.

      It has been strongly argued that the OP No. 3, Branch Manager, ICICI bank should be directed to pay back above amount.  No further relief has been stressed or agitated at the time of argument against OP No. 3.

      It has been argued that although the OP No. 1 and OP No. 2 agreed to get the private insurance of the vehicle’s cover insurance was taken to the tune of Rs. 22,000/-.  Moreover, on the document we find the refund of Rs. 15,000/- was not paid as agreed by Lexus Motors on 20.01.2015 vide No. 2073/- of the receipts of Lexus Motors.

      We have meticulously gone through the pleadings, affidavit evidence, interrogatories and replies and we find that although orally agreed by the OP No. 1 & 2 they did not get the vehicle registered. 

      It is admitted that as per Annexure – 1 complainant paid Rs. 50,000/- on 26.08.2014, as per Annexure – 1/a Rs. 58,700/- on 20.09.2014.   It is fact that the road tax of Rs. 45040/- has been paid as against the vehicle being No. WB 52 X 0290 and the complainant compelled to pay the said amount though the OP Nos. 1 & 2 has promised to prepare the documents of Road Tax with free of cost.  The OPs 1 & 2 have failed to challenge the said allegations mentioned in the plaint and the plaint was made by way of affidavit.  There is an ample opportunity to file written version against the plaint, but no written version has been filed by the OP Nos. 1 & 2, so the case runs ex parte against them and as such the allegation mentioned in the plaint remains unchallenged by OP Nos. 1 & 2.

      As per plaint case OPs 1 & 2 took Rs. 21,446/- from the petitioner towards insurance coverage and handed over the policy being No. 154001/31/14/63/00007128 dtd. 22.09.2014.  So it is clear that insurance policy has been made properly in the name of Sujit Kumar Kundu, the complainant in the instant case.  So the insurance amount of Rs. 21,446/- should not be returned to the complainant.

      From the above analysis in details, we come into conclusion that the complainant is entitled to get only Rs. 50,000/- Plus Rs. 58,700/- plus Rs. 45,040/- i.e., total of Rs. 1,53,740/- from the OP nos. 1 & 2 (Lexus Motors). 

            It is admitted position that the price of TATA MOVUS LX is Rs. 7,51,496/-, the bank loan of Rs. 4,00,000/-.  It is also admitted that the vehicle of old car (TATA Sumo Victa) is Rs. 3,10,000/- (unchallenged by OP Nos. 1 & 2).  So the OP Nos. 1 & 2, Lexus Motors are entitled to get Rs. 7,51,496/- minus Rs. 4,00,000/- minus Rs. 3,10,000/- = Rs. 41,496/-.  So as per our view the complainant is entitled to get Rs. 1,53,740/- minus Rs. 41,496/- =  Rs. 1,12,244/- from OP Nos. 1 & 2, Lexus Motors Ltd.

            As per credit facility application form, it is correct proposition that the OP No. 3, ICICI Bank is entitled to take of Rs. 20,241/- for pre-payment charge.  On the said agreement the complainant had put his signature.  So the agreement is binding between the parties.   Thus , as per said agreement, the complainant is not entitled to claim of Rs. 20,241/- from OP No. 3, ICICI Bank.  There is no negligence or deficiency in service on the part of OP No. 3 bank.  There is a clear gross negligence and deficiency in service on the part of the OP Nos. 1 & 2 and the complainant is entitled to get relief against OPs No. 1 & 2 only.  Point Nos. 2 & 3 are thus decided.   The case succeeds. 

Hence,

Ordered,

That the case No. CC/2015/25 be and the same is allowed on ex parte against OP Nos. 1 & 2 with cost of Rs. 1,000/- and dismissed against OP No. 3 without cost.

The OP Nos. 1 & 2 both are jointly and severally liable.  Both are directed to pay Rs. 1,12,244/- towards awarded amount plus Rs. 1,000/- towards litigation cost i.e., total of Rs. 1,13,244/- to the complainant within 30 days from the date of order, in default, the awarded amount shall carry an interest @ 10% p.a. till full realization.  

Let a copy of the order be supplied to the parties free of cost.