DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.
CC.No.221 of 22-05-2013
Decided on 26-09-2013
Harjinder Singh aged about 30 years S/o Pritam Singh R/o Pakka Seed Farm, Abohar, District Fazilka.
........Complainant
Versus
1.Mahindra & Mahindra Finance Ltd., Mansa Road, Model Town, near TV tower, Bathinda, through its Manager.
2.Garg Motors authorized dealer of Mahindra & Mahindra Finance Ltd., 9th K.M Milesstone, Hisar Road, Near Sikandarpur Chowk, Sirsa (Haryana), through its authorized signatory.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt.Vikramjit Kaur Soni, President.
Smt.Sukhwinder Kaur, Member.
Present:-
For the Complainant: Sh.Vikas Singla, counsel for the complainant.
For Opposite parties: Sh.K.K Vinocha, counsel for opposite party No.1.
Sh.Amrit Pal Singh, counsel for opposite party No.2.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. Instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). Briefly state the complaint of the complainant is that he has purchased one vehicle XYLO-E4 bearing registration No.PB-22G-1424, make Mahindra & Mahindra from the opposite party No.2 vide bill No.INV/13A001321 on dated 26.11.2012 for Rs.7,56,951/- for his personal use. The complainant is also having one old Bolero car 7 seater bearing registration No.PB-15E-3733 that was retained by the opposite party No.2 and its price deducted from the price of the newly purchased vehicle i.e. Rs.4,95,000/-. The complainant obtained the finance of Rs.5 lacs from the opposite party No.1, it paid the same to the opposite party No.2. The opposite party No.1 is the finance company of the opposite party No.2. The complainant is still paying the said installments to the opposite party No.1. The total price of the vehicle comes to Rs.7,56,000/-. The complainant has paid Rs.5 lacs that has been financed by him from the opposite party No.1 and Rs.4,95,000/- was the value of the old vehicle that was retained by the opposite party No.2 in lieu of the new vehicle, as such the complainant has paid the excess amount of Rs.2,38,049/- to the opposite party No.2. Out of which, the opposite party No.2 has returned an amount of Rs.1,45,758/- to the complainant and after excluding the said amount from the amount of Rs.2,38,049/-, it is still liable to pay Rs.92,291/-. The complainant approached many times to the opposite party No.2 to refund the abovesaid amount but to no effect. Hence the complainant has filed the present complaint to seek the directions to the opposite parties to refund the amount of Rs.92,291/- alongwith interest, cost and compensation.
2. Notice was sent to the opposite parties. The opposite party No.1 after appearing before this Forum has filed its separate written statement and pleaded that the dispute involved in the complaint is between the complainant and the opposite party No.2 as it is clear from the prayer clause, Para Nos.2 and 7 of the complaint itself. The opposite party No.1 has been made party by the complainant wrongly, illegally and with malafide intention to create jurisdiction at Bathinda. The opposite party No.2 is dealer at Sirsa (Haryana) of Mahindra and Mahindra Automobiles i.e. the manufacturer. Both these concern have their own different and individual entities. The opposite party No.1 is a different and independent/individual company. While obtaining the loan, the complainant and his co-executant i.e. co-borrower and guarantor have executed the loan agreement on dated 27.11.2012 after admitting the same to be correct and true. Both the parties are bound by the terms and conditions of the said agreement. As per terms and conditions, enumerated at No.15 under head 'Arbitration', it has been agreed by both the parties voluntarily that all disputes, difference and/or claim arising out of these presents or in any way touching or concerning the same or as to constructions, meaning or effect thereof or as to the right or liabilities of the parties hereunder shall be settled by Arbitration and Conciliation Act 1996 or any statutory amendments thereof and shall be referred to the sole arbitrator to be nominated by the lender. The opposite party No.1 admitted the purchase of one Mahindra XYLO-E4 vehicle, bearing registration No.PB-22G-1424 against the price of Rs.7,56,951/- and the complainant obtained the loan/finance to the tune of Rs.5 lacs from it for the purchase of the abovesaid vehicle. The complainant has agreed to pay Rs.1,58,000/- as finance charges as he has to repay Rs.6,58,000/- in monthly installments in terms of the loan agreement, which the complainant and his co-executants executed after admitting the same to be correct and true.
3. The opposite party No.2 after appearing before this Forum has filed its separate written statement and pleaded that the complainant has concealed the material facts to derive undue benefit by misleading this Forum. The complainant approached the opposite party No.2 for the purchase of new vehicle XYLO-E4-BS- IV and offered to sell his old vehicle Bolero bearing registration No.PB-15E-3733 and after the negotiations held between the complainant and the officials of the opposite party No.2, he agreed to sell his old Bolero vehicle against the price of Rs.4,60,000/- and this amount was agreed to be deducted from the price of the new vehicle to be purchased by him. The opposite party No.2 is an authorized dealer of Mahindra & Mahindra Ltd., for the sale and service of the vehicle manufactured by said company as tie up with Mahindra & Mahindra Financial Services Ltd., for extending the loan against the vehicles sold by it as per the terms and conditions of the said finance company. The opposite party No.2 arranged the finance for the complainant to the tune of Rs.5 lacs for the purchase of the vehicle XYLO-E4-BS-IV. The opposite party No.2 sold the vehicle XYLO-E4-BS-IV bearing chassis No.C2K50482m and engine No.KJC4K51193 to the complainant on dated 26.11.2012 against the exchange of his old vehicle Bolero bearing registration No.PB-15E-3733 vide invoice No.INV13A001321 dated 26.11.2012 against the price of Rs.8,33,883/-. Out of this amount an amount of Rs.20,000/- on account of exchange bonus and Rs.56,932/- towards the discount totaling to Rs.76,932/- was deducted from the price of the new vehicle i.e. Rs.8,33,883/- the price of the new vehicle came to Rs.7,56,951/-. The opposite party No.2 received the loan amount of Rs.5 lacs from the said financial company extended to the complainant, this amount was further deducted from Rs.7,56,951/- that came to Rs.2,56,951/-. Thereafter Rs.34,156/- towards the insurance for the period from 21.11.2012 to 20.11.2013; Rs.13,760/- towards first EMI on behalf of Mahindra & Mahindra; Rs.3000/- towards file and documentation charges, Rs.2375/- on account of Mahindra loan Suraksha, Rs.1500/- towards temporary registration number and Rs.2500/- towards logistics charges were charged and added in the amount of Rs.2,56,951/- and total amount came to Rs.3,14,242/-. The exchange value of the old vehicle of the complainant was Rs.4,60,000/- and the said amount of Rs.3,14,242/- was deducted from Rs.4,60,000/- and balance amount of Rs.1,45,758/- has been paid to him which is admitted by the complainant. The vehicle was delivered to the complainant on 21.11.2012 and the abovesaid deductions and calculations were brought to his knowledge, he duly signed on the detail sheet and took the delivery of the said vehicle, as such no excess amount has been charged from him. The opposite party No.2 denied the exchange value of the old vehicle of the complainant was Rs.4,95,000/-, rather its exchange value was settled to Rs.4,60,000/-.
4. The parties have led their evidence in support of their respective pleadings.
5. Arguments heard. The record alongwith written submissions submitted by the parties perused.
6. Admitted facts of the parties are that the complainant has purchased one vehicle make Mahindra & Mahindra bearing registration No.PB-22G-1424 from the opposite party No.2 vide bill No.INV/13A001321 on dated 26.11.2012 for Rs.7,56,951/- and obtained the loan of Rs.5 lacs from the opposite party No.1.
7. The submission of the learned counsel of the complainant is that he purchased one new vehicle XYLO-E4 bearing registration No.PB-22G-1424, make Mahindra & Mahindra from the opposite party No.2 for Rs.7,56,951/- for his personal use. The opposite party No.2 retained the old vehicle of the complainant Bolero bearing registration No.PB-15E-3733 for Rs.4,95,000/- with the commitment that the price of Rs.4,95,000/- will be adjusted in the price of the new vehicle i.e. Rs.7,56,951/-. The complainant obtained the loan of Rs.5 lacs from the opposite party No.1, the same was paid to the opposite party No.2. The total amount was paid to the opposite party No.2 to the tune of Rs.9,95,000/-, in this way the complainant has given the amount of Rs.9,95,000/- against the amount of Rs.7,56,951/-, as such the excess amount of Rs.2,38,049/- has been paid to the opposite party No.2. Out of the said amount, the opposite party No.2 has returned an amount of Rs.1,45,758/- to the complainant and has not refunded the amount of Rs.92,291/- to him till date.
8. On the other hand the submission of the learned counsel of the opposite party No.1 is that the complainant has obtained the loan from the opposite party No.1, the agreement for the purchase of the vehicle has been done between the complainant and the opposite party No.2. On the legal side the opposite party No.1 submitted that this Forum has no jurisdiction to try and decide the present complaint as the matter is to be decided in the arbitration as per the terms and conditions, enumerated at Clause No.15 under head 'Arbitration'. The other legal objection on the part of the opposite party No.1 is that the opposite party No.1 has been impleaded to create the jurisdiction at Bathinda as the dispute involved is between the complainant and the opposite party No.2. The complainant has agreed to pay Rs.1,58,000/- as finance charges and he has to repay the loan of Rs.5 lacs in monthly installments and the total amount that is to be paid by the complainant turned out as Rs.6,58,000/-.
9. The submission of the learned counsel of the opposite party No.2 is that the complainant approached the opposite party No.2 for the purchase of new vehicle XYLO-E4-BS-IV and offered to sell his old vehicle Bolero bearing registration No.PB-15E-3733 and agreed to sell his old Bolero vehicle against the price of Rs.4,60,000/- and this amount was agreed to be deducted from the price of the new vehicle to be purchased by the complainant. The opposite party No.2 arranged the loan of Rs.5 lacs for the complainant for the purchase of the vehicle XYLO-E4-BS-IV. The opposite party No.2 sold the vehicle XYLO-E4-BS-IV bearing chassis No.C2K50482m and engine No.KJC4K51193 to the complainant on dated 26.11.2012 against the exchange of his old vehicle Bolero bearing registration No.PB-15E-3733 vide invoice No.INV13A001321 dated 26.11.2012 against the price of Rs.8,33,883/-. Out of this amount, an amount of Rs.20,000/- on account of exchange bonus and Rs.56,932/- towards the discount totaling to Rs.76,932/- was deducted from the price of the new vehicle i.e. Rs.8,33,883/- that came to Rs.7,56,951/-. The opposite party No.2 received the loan amount of Rs.5 lacs from the said financial company and this amount was further deducted from Rs.7,56,951/- and the remaining amount was Rs.2,56,951/-. Thereafter Rs.34,156/- for insurance of the new vehicle for the period from 21.11.2012 to 20.11.2013; Rs.13,760/- towards first EMI on behalf of Mahindra & Mahindra; Rs.3000/- towards file and documentation charges, Rs.2375/- on account of Mahindra loan Suraksha, Rs.1500/- towards temporary registration number and Rs.2500/- towards logistics charges were charged and added in the amount of Rs.2,56,951/- and the total amount became Rs.3,14,242/-. The exchange value of the old vehicle of the complainant was Rs.4,60,000/- and the said amount of Rs.3,14,242/- was deducted from the same and the remaining amount of Rs.1,45,758/- has been paid to him. The opposite party No.2 submitted that the exchange value of the old vehicle of the complainant was Rs.4,60,000/-, not Rs.4,95,000/-.
10. The legal objection taken by the opposite party No.1 is that this Forum has no jurisdiction to try and decide the present complaint as the vehicle has been purchased from Sirsa. The opposite party No.1 has been impleaded to create the jurisdiction only and in case of any dispute arising between the complainant and the opposite parties, the same will be referred to sole arbitrator, but the contention of the opposite party No.1 is not tenable, as the opposite party No.1 is impleaded being necessary party as it is the financier and the matter involved is regarding charging of an excess amount on the part of the opposite party No.2. Regarding the second objection, the remedy available under the Consumer Protection Act is additional and alternative remedy and not in derogation with any other law for the time being inforce. Section 3 of the 'Act' is referred hereunder:-
“3) Act not in derogation of any other law-The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”
The complainant has the option either to approach this Forum or to get his case referred to sole arbitrator, but he preferred remedy under the 'Act', hence again the objection of the opposite party No.1 is not tenable.
The opposite party No.2 has given the details that the price of the XYLO vehicle was Rs.8,33,883/-, out of this amount, the discount of Rs.20,000/- was given as exchange bonus, Rs.56,932/- was further discounted, as such the total discount of Rs.76,932/- was given to the complainant and the price of the new vehicle came to Rs.7,56,951/-. The loan amount of Rs.5 lacs has been deducted from Rs.7,56,951/- and the remaining amount of Rs.2,56,951/- was adjusted in the price of the old vehicle i.e. Rs.4,60,000/-, in this Rs.34,156/- towards the insurance for the period from 21.11.2012 to 20.11.2013; Rs.13,760/- towards first EMI on behalf of Mahindra & Mahindra; Rs.3000/- towards file and documentation charges, Rs.2375/- on account of Mahindra loan Suraksha, Rs.1500/- towards temporary registration number and Rs.2500/- towards logistics charges. After adding the abovesaid amount in the amount of Rs.2,56,951/-, the total amount came to Rs.3,14,242/-. The exchange value of the old vehicle of the complainant was Rs.4,60,000/- as per the version of the opposite party No.2 and the said amount of Rs.3,14,242/- was deducted from Rs.4,60,000/- and the remaining amount of Rs.1,45,758/- has been paid to him.
11. A perusal of document placed on file by the opposite party No.2 Ex.OP2/2 shows that EMI has been deducted to the tune of Rs.14,000/-; surcharge:-Rs.3000/- and MLS:-Rs.4677/- and the total amount deducted to the tune of Rs.21,677/- on dated 22.11.2012. A further perusal of Ex.OP2/3 shows that Rs.34,156/- has been added as Bima A/c i.e. insurance; EMI:-Rs.13,760/-; surcharge:-Rs.3000; MLS:-Rs.2375; No. Plate & TRC charges:-Rs.1500/- and vehicle for delivery/diesel & other charges:-Rs.2258/-. Ex.OP2/5 shows that the total value of the vehicle was Rs.8,33,883/-; discount of Rs.76,932/-; total Rs.7,56,951/-; less finance Rs.5 lacs; M/money:-Rs.2,56,951/-, insurance Rs.34,156/-; EMI Rs.13,760/-; EC:-Rs.3000/-; M.L.S:-Rs.2375/-; TRC:-Rs.1500/-; logestic:-Rs.2500/-(old vehicle Bolero-Rs.4,60,000/-), total amount of Rs.3,14,242/- was deducted from the price of the old vehicle i.e. Rs.4,60,000/- and the remaining amount of Rs.1,45,758/- has been returned to the complainant. This document Ex.OP2/5 further shows that 'balance IF:-Rs.24,758/-. A perusal of file shows that the complainant was never conveyed about the charges which are to be added towards the insurance, file and documentation charges on account of Mahindra & Mahindra loan Suraksha or Rs.2500/- towards the logistic charges. No such document has been provided to the complainant or placed on file to show that these things are to be charged from the complainant. Moreover no bill has been issued to the complainant.
12. If for the arguments sake it is believed that the amount of Rs.34,156/- has been deducted towards the insurance and Rs.13,760/- towards the first EMI on behalf of Mahindra & Mahindra; Rs.1500/- towards the temporary registration number, even then the amount of Rs.3000/- towards the file and documentation charges+Rs.2375/- towards the logistic charges are charged in excess from the complainant. On Ex.OP2/5 it has been specifically mentioned 'Balance IF' Rs.24,758/- but as the complainant has already paid in excess, there is no balance towards him, the balance if any shown that the opposite party No.2 has to pay the balance of Rs.24,758/- to the complainant. The opposite party No.2 has specifically pleaded that the exchange value of the old vehicle was Rs.4,60,000/-, whereas the averment of the complainant is that the exchange value of the old vehicle was Rs.4,95,000/-. A perusal of documents show that nothing has been given by the opposite party No.2 to the complainant to show that what deductions are to be made towards the old vehicle and what benefits are to be given to the complainant against the new vehicle and moreover there is no affidavit of the surveyor from whom the opposite party No.2 got assessed the price of old vehicle as Rs.4,60,000/-. Furthermore there is no evidence placed on file by the opposite party No.2 to show that how the value of old vehicle was assessed/calculated, no document of the old vehicle Bolero, its insurance to show its IDV, age of the vehicle etc. has been placed on file, this shows the malafide intention of the opposite party No.2 that it has not intentionally supplied any document to the complainant to show that for how much amount his old vehicle has been adjusted and what other benefits are given to him, thus we are of the considered opinion that the complainant's averments are true that he has sold his old vehicle for Rs.4,95,000/-. The opposite party No.2 has not returned the amount of Rs.35,000/- from the value of old vehicle+3000/-+Rs.2375/-+Rs.2500/-, thus the amount of Rs.42,875/- has not been refunded by the opposite party No.2 to the complainant. As per Ex.OP2/5 the balance amount of Rs.24,758/- is also yet to be refunded to the complainant.
13. Thus from the facts, circumstances and evidence placed on file it is clear that the amount of Rs.35,000/-; Rs.3000/-; Rs.2375/-; Rs.2500/- and Rs.24,758/-, the total amount of Rs.67,633/- has not been refunded by the opposite party No.2 to the complainant so far, whereas the amount of Rs.1,45,758/- has been refunded to the complainant even prior to filing of this complaint.
14. Therefore in view of what has been discussed above we are of the considered opinion that there is deficiency in service on the part of the opposite parties. Hence this complaint is accepted with Rs.10,000/- as cost and compensation against the opposite parties. The opposite parties are directed to refund the amount of Rs.67,633/- alongwith interest @ 9% per annum since its deposit till realization.
15. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.
16. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.
Pronounced in open Forum
26-09-2013
(Vikramjit Kaur Soni)
President
(Sukhwinder Kaur)
Member
