BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 57 of 2015.
Date of Institution : 19.3.2015
Date of Decision : 28.02.2017
Harjinder Singh son of Shri Pritam Singh, resident of Pakka Seed Farm, Abohar, District Fazilka.
….Complainant.
Versus.
1. Mahindra & Mahindra Finance Ltd. Mansa Road, Model Town, Near TV Tower, Bathinda, through its Litigation Officer (Legal) Bathinda, through its Manager, 2nd Address: Lal Batti Chowk, above Dena Bank, Sirsa, Tehsil and District Sirsa.
2. Garg Motor Authorized Dealer of Mahindra and Mahindra, 9th K.M. Milestone, Hisar Road, Near Sikanderpur Chowk, Sirsa (Haryana through its authorized signatory).
..…Opposite Parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI S.B.LOHIA ………………………..PRESIDENT.
SHRI RANBIR SINGH PANGHAL ……MEMBER.
Present: Sh. L.S.Srari, Advocate for the complainant.
Sh. Rishi Sharma, Advocate for opposite party no.1.
Sh. A.K. Gupta, Advocate for opposite party no.2.
ORDER
In brief, the case of the complainant is that complainant purchased one vehicle from opposite party no.2 which was financed by op no.1. The op no.2 issued bill no. INV/13A001321 dated 26.11.2012 for a sum of Rs.7,56,951/- and the said vehicle is having seating capacity of 1+7. The complainant was also having an old Bolero Jeep bearing registration No. PB-15E/3733. The said Bolero jeep was got exchanged by complainant from op no.2 for a sum of Rs.4,95,000/- which amount was deducted from the price of new vehicle. The complainant in all obtained Rs.5,00,000/- as finance money from op no.1 and paid the same to op no.2 and he is still paying installments to op no.1. The total price of the new vehicle was Rs.7,56,000/-, out of which an amount of Rs.5,00,000/- financed from op no.1 was paid to op no.2 and Rs.4,95,000/- was the value of the old vehicle which was retained by op no.2 in lieu of new vehicle. In this manner, the op no.2 has received excess amount of Rs.2,38,049/- from complainant. Out of said amount, the op no.2 has returned an amount of Rs.1,45,758/- to the complainant and the op no.2 is still liable to pay remaining amount of Rs.92,291/- to the complainant. The complainant approached the op no.2 several times in this regard but to no effect. It is further alleged that as the ops failed to refund the amount which has been charged in excess by them, hence the complainant filed a complaint before District Consumer Disputes Redressal Forum at Bathinda vide complaint no.221 of 22.5.2013 which was accepted on 26.9.2013 with costs and compensation of Rs.10,000/- and ops were directed to refund the amount of Rs.67,633/- alongwith interest @9% per annum since the date of deposit till the date of realization and were also directed to comply with the order within a period of 45 days from the date of receipt of copy of the order. Feeling aggrieved by the said order dated 26.9.2013, op no.1 preferred first appeal No.1374 of 2013 whereas op no.2 preferred separate appeal no.1316 of 2013 before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh and the Hon’ble State Commission allowed both the appeals vide order dated 17.12.2014 and the complaint filed by complainant before the District Forum at Bathinda was dismissed with the permission to the complainant to file fresh complainant before the appropriate forum. The complainant purchased the new vehicle from op no.2 at Sirsa and old vehicle was delivered to the ops at Sirsa, hence this Forum is having jurisdiction to try and entertain the present complaint. Hence, this complaint seeking a direction to the ops to refund the amount of Rs.92,291/- alongwith up to date interest thereon till the date of payment, to pay a sum of Rs.5000/- as compensation and Rs.2500/- as litigation expenses.
2. On notice, opposite party no.2 appeared and filed written statement raising several preliminary objections regarding maintainability, locus standi, mis joinder and non joinder of necessary parties and that the complainant filed the complaint before the District Consumer Disputes Redressal Forum, Bathinda against Mahindra & Mahindra Finance Ltd. Bathinda, now very cleverly he has arrayed the Mahindra & Mahindra Fincance Ltd. Bathinda by showing the second address at Sirsa in order to file the present complaint at Sirsa. The complainant has not complied with the directions of the Hon’ble State Commission and has field the complaint at Sirsa without jurisdiction and that complainant has concealed the true and material facts from this Forum. It has been submitted that complainant had approached the op for the purchase of a new vehicle Xylo-E4-BS-IV and offered to sell his old vehicle Bolero. The complainant negotiated in this behalf with the answering op and agreed to sell his old bolero vehicle for Rs.4,60,000/- to be deducted from the price of new vehicle to be purchased by him. The op no.2 is also Direct Marketing Agent of op no.1. The complainant had proposed to have a loan of Rs.5,00,000/- from op no.1 against the new vehicle and accordingly as per the application of the complainant, the answering op arranged the finance from op no.1 to the tune of Rs.5,00,000/- and prepared all the loan documents. The complainant was well apprised regarding the charges of Mahindra & Mahindra Financial Services regarding the loan in the shape of first EMI of Rs.13,760/-, Rs.3000/- towards file and documentation charges, Rs.2375/- on account of Mahindra Loan Suraksha and Rs.2500/- towards the logistics and handling charges. These charges were to be paid by the answering op to the op no.1. Besides this, an amount of Rs.34156/- towards insurance premium and Rs.1500/- against the Temporary Registration were to be paid. All the details regarding the charges of finance, insurance, temporary number charges as well as the price of the old vehicle fixed between the parties were duly made clear through a written customer retail form, which was duly signed by the complainant. The complainant purchased the new vehicle on 26.11.2012 against the MRP price of Rs.8,33,884/- and out of this amount exchange bonus of Rs.20,000/- and Rs.56,932/- towards discount as per scheme were given and accordingly the price of the new vehicle purchased by complainant was Rs.7,56,951/-, out of which the op no.1 received Rs.5,00,000/- from op no.1 on account of the finance extended to complainant, Rs.34156/- were charged for payment of premium of insurance of new vehicle for the period from 21.11.2012 to 20.11.2013 and was accordingly paid to the insurance company. An amount of Rs.1500/- was charged for temporary registration number. The answering op also paid Rs.13760/- towards first EMI to op no.1 as per the loan agreement and Rs.3000/- towards the file and documentation charges, Rs.2375/- on account of Mahindra Loan Suraksha charges and in this way total amount of Rs.55,991/- was charged from complainant and after adjusting these amounts and the exchange value of the old vehicle, balance amount of Rs.1,45,758/- was paid to the complainant, out of which Rs.1,21,000/- in lieu of the finance of old vehicle from op no.1 was paid and cheque of Rs.25,000/- was given as full and final settlement. The op has not charged any excess amount. With these averments, dismissal of complaint has been prayed for.
3. Opposite party no.1 appeared through counsel but did not file written statement despite availing several opportunities including last opportunity and therefore, right for filing of written statement by no.1 was closed.
4. By way of evidence, complainant produced his affidavit Ex.C1, copy of bill Ex.C2, copy of sale certificate Ex.C3, copy of certificate of registration Ex.C4, copy of temporary certificate of registration Ex.C5, copy of delivery challan Ex.C6, copy of policy schedule cum certificate of insurance Ex.C7, copy of certificate of registration Ex.C8, copy of loan agreement Ex.C9, copy of schedule-1 Ex.C10, copy of schedule-2 Ex.C11, affidavit of Sh. Jinder Singh Ex.C12. On the other hand, op no.2 produced affidavit of Sh. Basant Garg, Partner Ex.R1, tax invoice Ex.R2, ledger account Ex.R3, sale certificate Ex.R4, copy of balance sheet Ex.R5 and copy of receipt Ex.R6.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. As per complainant’s case, he sold his old vehicle for Rs.4,95,000/- but as per op no.2, complainant sold his old vehicle for Rs.4,60,000/-. There are affidavits from both the sides to support their versions. Regarding the other deductions like insurance charges etc. there is no dispute between the parties. Regarding the price of new vehicle there is also no dispute between the parties. Besides the affidavit of both sides regarding the cost of old vehicle, there is a document which is Ex.R5 duly signed by the complainant himself which shows that amount of old vehicle was adjusted as Rs.4,60,000/- and not Rs.4,95,000/- as alleged by complainant. Now coming to final calculation of amount to be paid by the complainant or to be refunded by the op no.2, the situation is clear from the following calculation:-
Value of new vehicle after exchange bonus and discount=Rs.7,56,951/-
(As agreed by both sides)
First EMI = Rs.13,760/-
File and documentation
Charges of loan file = Rs.3000/-
Mahindra Loan Suraksha = Rs.2375/-
Insurance premium for the
Period 21.11.12 to 20.11.13
as per Ex.C7 = Rs.33,742/-
Temporary number charges= Rs.1500/-
Total of charges = Rs.54377/-
It is also made clear here that in the earlier paras of written statement, op no.2 claimed Rs.2500/- as logistics and handling charges but as per detail given in para No.7 of preliminary objections of written statement, op no.2 not calculated this amount. Hence, op no.2 is not entitled for the said amount of Rs.2500/- from the complainant. The op no.2 has also wrongly claimed that an amount of Rs.34156/- was paid as insurance premium to the insurance company as from certificate of insurance Ex.C7, it is evident that an amount of Rs.33,742/- was to be paid to the insurance company as premium. As such after adding amount of Rs.54,377/- in the price of new vehicle, the total amount comes to Rs.8,11,328/- but the complainant paid the following amounts to the opposite party no.2:-
Rs.5,00,000/- (through finance from op no.1)
Rs.4,60,000/- (adjustment of old vehicle
Total = Rs.9,60,000/-
After above deductions of the price of the vehicle and other charges, Rs.1,48,672/- were to be refunded by the opposite party no.2 to the complainant but op no.2 paid Rs.1,21,000/- towards finance of old vehicle of complainant through Ex.R6 and paid Rs.25,000/- through cheque regarding which there is no dispute. In this way, the opposite party no.2 paid Rs.1,46,000/- to the complainant. After all the calculation as detailed above, in our view, the opposite party no.2 paid less amount of Rs.2672/- to the complainant for which complainant is entitled.
7. Thus, as a sequel to our above discussion, we partly allow the present complaint qua op no.2 and direct the opposite party no.2 to pay a sum of Rs.2672/- to the complainant within a period of one month from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @9% per annum from the date of filing of present complaint i.e. 19.3.2015 till actual payment. We also direct the opposite party no.2 to pay a sum of Rs.2500/- to the complainant as litigation charges. However, no liability of any type of op no.1 is made out. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated: 28.2.2017. Member. District Consumer Disputes
Redressal Forum, Sirsa.
