Tamil Nadu

South Chennai

281/2010

R.Ravishankar - Complainant(s)

Versus

MPL Ford, Managing Director& others - Opp.Party(s)

K.Prabhakaran

06 Mar 2018

ORDER

                                                                                                                           Date of Filing  : 02.03.2010

                                                                              Date of Order : 06.03.2018

 

DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, CHENNAI (SOUTH)

2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L,                    : PRESIDENT

                 TMT. K. AMALA, M.A. L.L.B.                                :  MEMBER-I

         DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

CC. NO.281 /2010

TUESDAY THE 6^TH DAY OF MARCH 2018

                                              

Dr.R. Ravishankar,

Old No.8, New No.17,

Sakthi Vinayagar Koil Street,

MGR Nagar, K.K.Nagar,

Chennai 600 078.                                                     .. Complainant

                                      ..Vs..

 

1. MPL Ford,

Rep. by its Managing Director,

Old no.436, New No.766,

Anna Salai, Opp. YMCA,

Nandanam, Chennai 600 035.

 

2. Ford Credit Kotak Mahindra Ltd.,

“Ceebros Centre”, 1^st Floor,

No.45, Montieth Road,

Chennai 600 006.

 

3.  M/s. Ford India (P) Ltd.,

Rep. by its Managing Director,

SP Koil Street, Maraimalai Nagar,

Chengalpettu 603 204.                               ..  Opposite parties.

 

 

Counsel for complainant         :  M/s.K. Prabhakaran  

Counsel for opposite party-1  :  M/s. M.P. Mohandass  

Counsel for opposite party-2  :  M/s.Anand Abdul &* Vinodh  

Counsel for opposite party-3  :  M/s. R.Senthil kumar     

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section  12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.2,10,420/- as damages and compensation for mental agony and to pay cost of the complaint.

1. The averments of the complaint in brief are as follows:

          The complainant submit that  1^st and 2^nd opposite parties  have made an advertisement which was published in the Hindu on 17^th, 18^th , 22^nd and 25 of July 2003.  In which the opposite parties offered to sell Ford Icon NXT model for a sum of Rs.4,49,000/- with the lowest  rate of interest at 7.9% P.A..    The 2^nd opposite party also assured free insurance and audio would be provided free of cost on 8.8.2003.   Initially 100% finance was assured by the 1^st and 2^nd opposite party and the complainant also asked to bring 60 post dated cheques.  Contrary to the assurance only 90% was offered as loan by the  2^nd and 3^rd opposite parties and four cheques were returned out of 60 cheques issued by the complainant.   An agreement dated 8.8.2003 was entered that the complainant to pay an EMI of Rs.11,100/- and 56 post dates cheques were received by the 3^rd opposite party.  The down payment made was Rs.54,135/-. The four cheques returned is for a total of Rs.44,400/-.  Remaining principal and the interest for it was not deducted.   Further the complainant state that for the loan of Rs.4,79,000/- for an interest of 7.9% the EMI should be Rs.9616/.  Therefore the opposite parties have collected an excess amount of Rs.1484/- on every cheque issued by the complainant 56 cheques were issued by the complainant.  The opposite parties have collected an excess amount of Rs.83,104/-.  Further the complainant also state that the opposite parties have collected a sum of Rs.6000/- for the audio fitted with the car contrary to the advertisement that it would be provided free of cost.   The opposite parties did not furnish any details or particulars about the principal and interest till the last cheque was encashed on 3.3.2008.   The opposite parties sent a statement for the amounts collected.  Only thereafter the complainant was able to understand that an excess amount of Rs.83104/- was collected by the 3^rd opposite party.      As such the act of the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.  

2. The brief averments in the written version filed by the  1^st opposite party is as follows:

The  1^st  opposite party deny each and every allegations except those that are specifically admitted herein.  The 1^st opposite party state that the newspaper which deals with the Marathon runner Ford Icon Diesel  the price starting from Rs.4.49 lakhs lowest interest rate 7.9 % with asterisk mark showing that the offer only indicates that “1.3 CLX PAS Endura condition apply.   Hence 4.49 lakh price point and the interest rate of 7.9% is applicable only for the 1.3 Endura Engine whereas the complainant only opted 1.3 Rocam (NXT) engine with finance.   The free insurance and Audio system only apply to the models not with finance.  The 1^st opposite party also state that  the complainant fully agreed the terms and conditions of the opposite party in the Order form dated 6.8.2003.  The complainant had agreed the charges by this opposite party with his signature.  Hence there is no deficiency in service on the part of the 1^st opposite party and the complaint is liable to be dismissed.

3. The brief averments in the written version filed by the  2^nd  opposite party is as follows:

The  2^nd   opposite party deny each and every allegations except those that are specifically admitted herein.  The 2^nd  opposite party state that the complainant approached the dealer and purchased the Ford Icon 1.3 NXT (Rocam Engine) Petro variant of the vehicle in the month of August 2003 on which there was no offer on price interest or free audio system.    Further nowhere in the said advertisement was stated that 100% financing will be provided and the 2^nd opposite party has never promised such 100% financing as alleged by the complainant.  Further the 2^nd opposite party also state that  they have not charged or collected any excess amount by EMI and was not liable to pay the sum of Rs.83,104/- as alleged by the complainant.   Hence there is no deficiency in service on the part of the 2nd opposite  party and the complaint is liable to be dismissed.

 

 

4. The brief averments in the written version filed by the  3^rd   opposite party is as follows:

The  3^rd opposite party deny each and every allegations except those that are specifically admitted herein.  The 3^rd opposite party state that it is clear from the advertisement on which the complainant had based his claim that offer was only on Ford Icon Diesel CLXI PAS Endura cars and there was no offer on the Ford Icon 1.3 NXT (Rocam Engine) of the car purchased by the complainant.   Further the 3^rd opposite party also state that the complaint is not maintainable as it is in absolute violation of the dispute resolution clause contained in the terms and conditions of loan agreement dated 8.8.2003.  Further the 3^rd opposite party submit  that the agreement contained Clause No.29 regarding the arbitration is as follows:

        Clause No.29 – Arbitration : All disputes differences and / or claim arising out of these presents or in any way touching or concerning the same or as to constructions meaning or effect hereof or as to the right and liabilities of the parties hereunder shall be settled by arbitration to be held in accordance with the provision of the Arbitration and  Conciliation Act, 1996 or any statutory amendments thereof and shall be referred to the sole arbitrator to be nominated by the lender… and the award shall be binding on all parties concerned.  The arbitration proceedings shall be held in Mumbai. “ Hence there is no deficiency in service on the part of the 3^rd opposite  party and the complaint is liable to be dismissed.

5.   In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex. marked.  Proof affidavit of the opposite parties filed and Ex.B1 to Ex.  marked on the side of the  opposite parties.

6.   The points for consideration is :

1. Whether the complainant entitled to refund a sum of Rs.83104/- collected by the opposite parties in excess as prayed for ?

2. Whether the complainant is entitled to a sum of Rs.2,10,420/- towards compensation for mental agony with cost as prayed for ?

7.   POINTS 1 & 2:

        Heard both sides.   Perused the records (viz.) complaint, written version, proof affidavits and documents.  Admittedly, the complainant purchased Ford Icon NXT Model for a sum of Rs.4,49,000/- from the opposite party.  The learned counsel for the complainant contended that the 3^rd opposite party is a manufacturer of the car; the 1^st opposite party is the dealer of the 3^rd opposite party.  The 2^nd opposite party is the financier.  As per the advertisements in Chennai Edition of the Hindu Newspaper Ex.A1 dated: 17, 18, 22 and 25^th July 2003 by the opposite parties 1 & 2 offered to sell Ford Icon NXT Model for a sum of Rs.4,49,000/- with lowest rate of interest at 7.9% p.a. as ford centenary offer.  According to the advertisement as per Ex.A1 to Ex.A4 the opposite parties assured free insurance and free Audio.  The complainant booked a car on 8.8.2003 with the 1^st opposite party.   The price of the vehicle was Rs.5,53,155/-.   Initially the opposite party assured to finance 100%; the opposite party offered only 90% as loan.  The complainant had also issued 60 post dated cheques out of which, four cheques were given back.  Since the complainant was forced to pay 10% of the car, an agreement Ex.A5 dated:8.8.2003 also executed.  Further the contention of the complainant is that the opposite party asked to pay a sum of Rs.11,100/- towards EMI and collected 56 cheques for 56 installments.  The complainant made down payment of Rs.54,135/- towards four installments.  The value of the four returned cheques was only Rs.44,400/-.  On calculating interest for the loan of Rs.4,79,000/- EMI comes only Rs.9616/-.  The opposite party collected a sum of Rs.1484/- excess for each EMI; thereby the opposite parties collected excess amount of Rs.83104/- proves unfair trade practice adopted by the opposite parties.         

8.     Further the contention of the complainant is that in the advertisement the opposite party stated that the audio would be given free of cost; but the opposite parties collected a sum of Rs.6000/- towards the Audio.  Further the contention of the complainant is that the last cheque issued to the opposite parties dated 3.3.2008 was enchased; but the opposite parties has not furnished any details for the amount for what purpose it is collected.   Further the contention of the complainant is that a sum of Rs.6,268/-was collected  by the opposite party and was acknowledged by letter dated 28.2.2000 as per Ex.A6.  But on a careful perusal of Ex.A6 the said amount and letter deserves no importance because the transaction of purchase of car arise only on 8.8.2003.   Further the contention of the complainant is that by way of letter dated 10.4.2008 the opposite parties are requested to refund a sum of Rs.83104/- collected excessively and the cost of audio Rs.6000/- and compensation for mental agony.  Further the contention of the complainant is that the allegation of 1^st opposite party that the advertisement Ex.A1 to Ex.A4 was not applicable to 1.2 Rocum (NXT) engine and it was applicable for 1.3 CLXPAS Endura is not acceptable since it is apparently clear in Ex.A1 that “Prices starting Rs.4.49 lakhs Lowest interest rate -7.9% 1.3 NXT, FREE Insurance & Audio”.

9.     The contention of the 1^st opposite party is that the newspaper dated 17.7.2003, 22.7.2003 with the “Marathon runner” Ford Icon Diesel; the price starting from Rs.4.49 lakhs lowest interest rate 7.9.% with asterisk mark showing that the offer only indicates that 1.3 CLX PAS Endura condition apply.    But on a careful perusal of Ex.A1 to Ex.A4 it is very clear that “Prices starting Rs.4.49 lakhs Lowest interest rate 7.9%”. Hence the car purchased by the complainant is squarely applicable for such offer.  Further the contention of the 1^st opposite party is that the interest rate is 7.9% is applicable only for the 1.3 Endura engine for Rs.4.49 lakhs.   The complainant opted 1.3 Rocam (NXT) engine with finance.   But on a careful perusal of Ex.A5 schedule it is seen that the Ford icon 1.3 neither Rocam (NXT) engine nor 1.3 CLX PAS Endura has been noted.  Hence the complainant availed loan for Ford Icon 1.3 Rocam NXT engine vehicle.  Further the contention of the 1^st opposite party is that the 1^st opposite party issued sales invoice dated 9.8.2003 which indicates all the details of the charges of the audio fixed by the opposite party without any labour charges.  But no sales invoice produced before this Forum.  On a careful perusal of Ex.A1 to Ex.A4, Audio is free of cost. 

10.    Further the contention of the opposite parties is that as per the agreement the accepted EMI of Rs.11,100/- alone is recovered no amount in excess much less a sum of Rs.83104/- was not collected from the complainant.    But on a careful perusal of the calculation statement filed by the opposite parties reveals that the rate of interest is 11.99%.  On the other hand as per Ex.A1 to Ex.A4 interest rate is 7.9%.  Hence the said amount of Rs.83104/- was collected by the opposite parties in excess is proved.  Further the contention of the opposite parties is that the agreement contained Clause No.29 regarding the arbitration is as follows:

        Clause No.29 – Arbitration : All disputes differences and / or claim arising out of these presents or in any way touching or concerning the same or as to constructions meaning or effect hereof or as to the right and liabilities of the parties hereunder shall be settled by arbitration to be held in accordance with the provision of the Arbitration and  Conciliation Act, 1996 or any statutory amendments thereof and shall be referred to the sole arbitrator to be nominated by the lender… and the award shall be binding on all parties concerned.  The arbitration proceedings shall be held in Mumbai. “

But admittedly all the transactions  related to this case happened at Chennai.   The arbitration proceedings may be initiated either by the complainant or by the opposite parties.  The complainant filed this case under Consumer Protection Act with an allegation of deficiency in service and unfair trade practice and this Forum having jurisdiction.  Further the contention of the opposite party is that this case is  barred by limitation.  But on a careful perusal of the records it is very clear that the last cheque issued on 3.7.2008 and was encashed by the opposite parties is not denied.  Considering the facts and circumstances of the case this forum is of the considered view that the1 to 3 opposite parties are jointly and severally liable to  pay a spsum of Rs.83,105/- towards excess amount collected and also shall pay Rs.6,000/- collected towards Audio and also shall pay a compensation of Rs.20,000/- for mental agony with cost of Rs.5,000/- and the points are answered accordingly.

In the result the complaint is allowed in part.  The  opposite parties 1 to 3  are jointly and severally liable to pay a sum of Rs.83,105/- (Rupees Eighty three thousand one hundred and five only) towards excess amount collected and also shall pay Rs.6,000/- (Rupees Six thousand only) towards amount  collected for Audio and also shall pay compensation of Rs.20,000/- (Rupees Twenty thousand only)  for mental agony with cost of Rs.5,000/-  (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

Dictated  by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 6^th day of March 2018. 

 

MEMBER –I                       MEMBER-II                              PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1	17.07.2003	Copy of the Hindu paper advertisement by the 2nd O.P
Ex.A2	18.07.2003	Copy of the Hindu paper advertisement
Ex.A3	22.07.2003	Copy of the Hindu paper advertisement
Ex.A4	25.07.2003	Copy of the Hindu paper advertisement
Ex.A5	08.08.2003	Copy of agreement between 3rd OP and the complainant
Ex.A6	28.02.2000	Copy of the opposite party letter to the complainant
Ex.A7	10.04.2008	Copy of the letter of the complainant to the 2nd opposite party
Ex.A8	26.02.2010	Copy of legal notice
Ex.A9	08.11.1999	Copy of receipt issued by the 3rd OP
Ex.A10	23.04.2008	Copy of letter given by the 2nd Opposite party
Ex.A11		Copy of the EMI Chart of the State Bank of India
Ex.A12		Copy of the statement of accounts furnished by the complainant

 

OPPOSITE  PARTIES SIDE DOCUMENTS:  

Ex.B1	17.07.2003	Copy of the paper advertisement of the 1st OP
Ex.B2	22.07.2003	Copy of the paper advertisement of the 1st OP
Ex.B3	06.08.2003	Copy of order form of the 1st OP
Ex.B4	07.08.2003	Copy of sales invoice of the 1st OP
Ex.B5	07.08.2003	Copy of the Debit note of the 1st OP
Ex.B6	07.08.2003	Copy of the Sales invoice of the 1st OP
Ex.B7	09.08.2003	Copy of the Sales invoice of the 1st OP
Ex.B8	26.02.2010	Copy of legal notice
Ex.B9	06.03.2010	Copy of reply notice
Ex.B10		Copy of agreement
Ex.B12		Copy of statement of accounts.

 

 

MEMBER –I                       MEMBER-II                              PRESIDENT