CC No.1815.2015

Filed on 31.10.2015

Disposed on 29.05.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 29^th DAY OF MAY 2017

CONSUMER COMPLAINT NO.1815/2015                                                                                                                                                                                                                                                   

PRESENT:

    Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

            PRESIDENT

                 Smt.L.MAMATHA, B.A., (Law), LL.B.

                          MEMBER

                                            V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 31.10.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to pay compensation of Rs.1,00,000/- and other reliefs. 

2. The brief facts of the complaint can be stated as under:-

In the Complaint, the Complainant alleges that the Complainant was an employee in the 2^nd Opposite Party, during the course of employment, the Complainant was intending to purchase a laptop for his personal use and during his tenure a laptop with a model Apple Imac (MD093HN/A Imac 54.61 Complaint 21.5 inch) 2.7 GHz and the said company had offered to sell the same at a discounted price, taking into consideration the employment of the Complainant and it was agreed to be sole in favour of the Complainant at Rs.75,000/-.   The Complainant has paid Rs.25,000/- to the 2^nd Opposite Party Company and the 2^nd Opposite Party Company has assured to assist the Complainant to avail loan from the 1^st Opposite Party.  Accordingly, the 1^st Opposite Party has sanctioned loan of Rs.75,000/- to the Complainant disbursed to the 2^nd Opposite Party Company.  The 1^st Opposite Party officials have came to the 2^nd Opposite Party office and obtained signatures of the Complainant in several forms and obtained a cheque of the Complainant for processing his loan of Rs.75,000/- to be repaid back in 9 monthly equated installment and also obtained ECS mandate of Rs.8,334/- per month.  Due to bonafide reason, the Complainant had to leave the job in 2^nd Opposite Party company, for which the 2^nd Opposite Party has insisted to clear the loan availed from the 1^st Opposite Party as it is sanctioned through the 2^nd Opposite Party, as such the Complainant has made the entire payment of loan from his credit card on 28.02.2014 through credit card amounting to Rs.25,749/- and on 04.08.2014 mounting to Rs.50,000/- and there is no due payable to the Opposite Parties from the Complainant.  The 2^nd Opposite Party has handed over the laptop to the Complainant after having raised an invoice.  The 1^st Opposite Party inspite of having cleared the payment has wrongfully caused loss to the Complainant by misusing ECS mandate for Rs.8,334/- for three months and same is liable to be reimbursed to the Complainant.  When such being the case, on 05.03.2015 the1st Opposite Party have presented ECS mandate and it is only then the Complainant realized that the 1^st Opposite Party has misused the ECS mandate which is given by the Complainant, against the disbursement of loan, neither the loan has been disbursed to the Complainant, but the Complainant came to know that the loan has been disbursed to the2nd Opposite Party company and that the amount paid by the Complainant has not been remitted to the1st Opposite Party Company by the 2^nd Opposite Party company.  As a result, the Complainant is shown as defaulter in the 1^st Opposite Party Company.  Thus the Opposite Parties have jointly and severally have cheated the Complainant and committed deficiency in service.   The Complainant has purchased an Apple IMAC laptop when he was working in 2^nd Opposite Party Company.    Hence this complaint.

3.    In response to the notice, the Opposite Party No.1 put his appearance through his counsel and filed his version.  In his version pleaded that the Complainant has entered into a Loan Proposal No.404SCE04097962 on 20.08.2015 and availed finance of Rs.75,000/- repayable in 9 monthly installments of Rs.8,334/-.  The Complainant towards payment of loan installment dues has issued Auto Debit/ECS Mandate and also signed the Loan Term Sheet and also executed a Promissory Note.  The ECS mandate towards the payment of the installment Nos.3, 4 and 5 got dishonoured due to the reason of “Insufficient Funds” and an amount of Rs.25,002/- besides penal charges stands due by the Complainant.  As per the Terms and Conditions, Loan Terms Sheet, Promissory Note, the Complainant should make the payment to the Opposite Party No.1.  This Forum does not have Jurisdiction to entertain the complaint by virtue of Clause 31 of the Terms and Conditions.  Clause 31 directs both parties to refer the matter to Arbitration in an event of a claim arising, a dispute or a difference, and therefore the Complainant is in violation of the Terms and Conditions by approaching this Hon’ble Forum to seek redressal for his alleged grievance.  The Complainant has taken a stand that amount to be paid to the Opposite Party No.1 must be recovered from the Opposite Party No.2.  However, there is no such undertaking given by the Opposite Party No.1, “In case of default by the Complainant, amount should be paid by the Opposite Party No.2 to Opposite Party No.1”.  Such undertaking is not available in the proceeding and in the absence of such undertaking it will not be lawful to request Opposite Party No.2 to pay the dues to the Opposite Party No.1.  In this manner, the Opposite Party states that the allegations of defect deficiency in service are wholly misconceived, groundless, false, untenable in law.    Hence, prays to dismiss the complaint against Opposite Party No.1. 

4. Even though the Opposite Party No.2 put his appearance through his Counsel, but fails to file his version in time.  For that reason, on 05.03.2016 this Forum has taken as Opposite Party No.2 fails to file the version. Thereafter, the Opposite Party No.2 filed an application on 10.06.2016 Under Section 151 and prays to receive the version of the Opposite Party No.2.  But that application was rejected by this Forum on 04.07.2016. 

5. The Complainant, Sri.Prathap S.Raj has been filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party No.1, the affidavit of Mrs.Priyanka Khare has been filed.  On behalf of the Opposite Party No.1, the affidavit of Sri.Raakesh Ramanand has been filed.   Heard the arguments of both parties.

6.      The points that arise for consideration are:-

1. Whether the Complainant has proves the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

7.     Our findings on the above points are:-

                POINT (1):- Affirmative

                POINT (2):- As per the final Order

REASONS

8. POINT NO.1:- As looking into the averments made in the complaint and the version filed by the Opposite Party No.1.  The Complainant was an employee in the 2^nd Opposite Party, during the course of employment, the Complainant was intended to purchase a laptop for his personal use and model Apple Imac (MD093HN/A Imac 54.61 Complaint 21.5 inch) 2.7 GHz and the said company had offered to sell the same at a discounted price for a sum of Rs.75,000/-. The Complainant has paid Rs.25,000/- to the 2^nd Opposite Party Company and the 2^nd Opposite Party Company has assured to assist the Complainant to avail loan from the 1^st Opposite Party.  Accordingly, the 1^st Opposite Party has sanctioned loan of Rs.75,000/- to the Complainant disbursed to the 2^nd Opposite Party Company.  The 1^st Opposite Party officials have came to the 2^nd Opposite Party office and obtained signatures of the Complainant in several forms and obtained a cheque of the Complainant for processing his loan to be repaid back in 9 monthly equated installment and also obtained ECS mandate of Rs.8,334/- per month. In order to substantiate this, the Complainant in his sworn testimony, reiterated the same and produced the Loan Letter.  As looking into this document, the Opposite Party No.1 sanctioned loan amount of Rs.75,000/- and the said loan is repayable on monthly installment of Rs.8,334/-  in 9 months and further reveals that out of the said amount of Rs.75,000/- deducted advance EMI amount of Rs.25,002/- and also produced the Loan Term Sheet, it reveals that the said loan is for the purpose of purchasing the Apple IMAC Laptop and also produced the Disbursement Information.   This document reveals that the amount of Rs.75,000/- was disbursing infavour of the Opposite Party No.2 and also produced the Statement of HDFC Bank of the Complainant.    By looking into this document, on 28.02.2014 the Complainant had paid Rs.25,749/- to the Opposite Party No.1 and also on 04.08.2014 the Complainant have paid Rs.50,000/- to the Opposite Party No.1 and further produced the Invoice issued by the Opposite Party No.2.  As looking into this document, it is in the name of the Complainant had purchased the Apple Laptop for a sum of Rs.75,000/-.  From this evidence, it is clear that the Complainant being an employee purchased the laptop through 2^nd Opposite Party by availing finance from the Opposite Party No.1 for a sum of Rs.75,000/- and as per the terms of the agreement of the Complainant with Opposite Party No.1, he had paid a sum of Rs.75,000/- that is the total cost of the laptop to the Opposite Party No.2, but the Opposite Party No.2 fails to paid that amount to Opposite Party No.1.  This is further clear as looking into the mail produced by the Complainant.  This evidence of the Complainant has not been challenged by the Opposite Parties, to discard his evidence, therefore it is proper to accept the contention of the Complainant that the Complainant has repaid the entire amount of Rs.75,000/- which was the total value of the laptop to the Opposite Party No.2.  Since he has obtained loan from the Opposite Party No.1 through his Opposite Party No.2, even though the Opposite Party No.2 received the said amount, but the Opposite Party No.2 fails to pay that amount to the Opposite Party No1, thereby there is a deficiency of service on the part of the Opposite Party No.2, but there is no evidence to show that there is deficiency of service on the part of the Opposite Party No.1.  Hence, I answer point No.1 holding that the Opposite Party No.2 there is a deficiency of service on the part of the Opposite Party No.2.    

9. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is dismissed against Opposite Party No.1.

The complaint is allowed holding that there is deficiency of service by the Opposite Party No.2.

The Opposite Party No.2 is directed to clear the Loan Account No.404SCE04097962 in the name of the Complainant to the 1^st Opposite Party Bank.

The Opposite Party No.2 is directed to pay a sum of Rs.5,000/- as cost to the Complainant. 

 Supply free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 29^th day of May 2017)

         MEMBER                                            PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Prathap S.Raj, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Letter confirming sanction of Loan to 2^nd Opposite Party
2. Copy of the Loan Term Sheet with Promissory Note
3. Letter of Disbursement from Opposite Party No.1 & Opposite Party No.2
4. Statement of HDFC Payment made to Opposite Party No.2 dt.28.02.2014 Rs.25,000/-
5. Statement of repayment made to Opposite Party No.2 dt.04.06.2014 for Rs.50,000/-
6. Copy of the Tax Invoice issued by the 2^nd Opposite Party.
7. Copy of the envelop exchanged between Opposite Party No.1 & 2.
8. Copy of the Legal Notice dt.25.03.2015 issued by the Opposite Party No.1.
9. Copy of the Reply Notice dt.30.03.2015.

Witness examined on behalf of the Opposite Party:

1. Mrs.Priyanka Khare, the Asst Manager and Power of Attorney Holder of the Opposite Party No.1.

List of documents filed by the Opposite Party:

1. Application Form
2. Loan Term Sheet
3. Standard Terms and Conditions-Consumer Durables and IT Products
4. Statement of Account

Witness examined on behalf of the Opposite Party:

2. Sri.Rakkesh Ramanand, the Managing Director of the Opposite Party No.2.

List of documents filed by the Opposite Party:

1. MF266HN/A Iphone 4s white 8 GB Apple-iPhone under Invocie No.INDcpr/240, dt.05.04.2014 for a sum of Rs.31,500/-.
2. M25 4, BT HEADSET/89348 09-PLANTRONICS-BLUETOOTH under Invoice No.INDcpr/4766, dt.22.08.2014 for a sum of Rs.1,260/-
3. MIDR-FL-RED/Ipad MINI RD Red-Sketch-IPAD case under Invoice No.INDcpr/3575, dt.18.07.2014 for a sum of Rs.1,105/-.
4. DSII-VMOG-METTO/GREY CAPDASE-CABLES/ADAPTER AD00-CK02-EU DUAL USB CAPDASE-CABLES/ADAPTER under Invoice No.INDcpr/2781, dt.21.06.2014 for a sum of Rs.2,926/-
5. Ledger/account extract of the Complainant.
6. Apology Letter.

     MEMBER                                             PRESIDENT