District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.468/2020.
Date of Institution: 09.12.2020.
Date of Order: 07.06.2022.
Yatendra Singh, aged about 60 years, son of late Shri Vir Singh, resident of House No. 546, Sector-9, Faridabad, District Faridabad . Mobile No. 9811537544
…….Complainant……..
Versus
1. M/s. Bajaj Finance, Ist floor, Above RBL Bank, New Tikona Park, Near ICICI Bank Ltd., NIT, Faridabad – 121001 through its Authorised person/Principal Officer.
2. M/s. Sky Connect, SCF 52, Basement, Main HUDA Market, Sector-15, Faridabad. Through its proprietor/Authorised person.
3. Kamal Aggarwal, Sales Man, M/s. Sky connect, SCF 52, Basement, Main HUDA Market, Sector-15, Faridabad.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Sh. J.B.Panchal, counsel for the complainant.
Sh. K.S.Rathore, counsel for opposite party.
Sh. O.P.Gaur, counsel for opposite parties Nos.2 & 3.
ORDER:
The facts in brief of the complaint are that the complainant purchased one mobile phone make Oppo A-53, White 4GB/64GB, EMEI 864517059495174 from opposite party No.2 on 03.09.2020 for Rs.12,990/- vide invoice No. GST-2020-21/4188. At the time of purchasing the above noted handset by the complainant and getting financed the same with the opposite party No.1, opposite party No.3 asked the complainant, whether he would get the mobile phone insured but at that time the complainant completely refused to get insure his mobile phone from any insurance company. Even thereafter, the complainant never approached opposite parties Nos.1 & 2 to get insured his mobile phone/handset with any insurance company, whereas the financed amount was to be returned back by the complainant to opposite party No.1 in Seven Equal Monthly Instalments of Rs.1444/- each. At the time of withdrawing the monthly installment of the above noted handset/mobile phone, the opposite party No.1 withdrew an excess amount of Rs.1872/- instead of Rs.1444/- on account of wettled for EMI. The opposite party No.1 again withdrawn another sum of Rs.1719/- from the account of complainant. The complainant enquired his bank account with his banker and became surprised to know that opposite party No.1 had withdrawn excess payment form the account of the complainant. Hence, he immediately approached opposite party Nos2 & 3 and enquired about the withdrawal of excess payment from the account of the complainant, on account of EMI., thereafter, the opposite party No.3 called the representative of the opposite party No1 who stated that the mobile phone in question had been insured on the request of the complainant. On the other hand, the complainant never asked to get insured his mobile phone at any point of time, but it was the opposite party No.1, who in collusion with the opposite parties Nos. 2 & 3 got insured the mobile phone of the complainant, without the consent and request of the complainant. After coming to know about the same, the complainant immediately approached the representative of opposite party No.1 not to deduct any amount on account of insurance charges from the bank account of the complainant and to refund back the excess payment, already received by them immediately, then the representative of opposite party No.1 asked the complainant that the complainant would have to sent request online through registered mobile number. Accordingly, the complainant sent/registered a complaint on the site of opposite party No.1 and even the opposite party nO.1 assured the complainant to resolve the complainant of the complainant and he received a text message “that the problem has been resolved” but the opposite party No.1 neither stop to withdraw the excess amount nor had refunded back the same to the complainant. Opposite party No.1 withdrew the next EMI of Rs.1719/- instead of 1444/- for which the opposite party No.1 had no right to do so. The complainant sent legal notice dated 19.11.2020 to the opposite parties but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) not to deduct/withdrew any amount on account of insurance charges from the bank account of the complainant , in respect of mobile phone make Oppo A-53 White 4GB/64GB, IMEI 864517059495174, in any manner whatsoever, with a further direction to the opposite parties to refund back the excess amount already withdrawn by them form the bank account of the complainant, on account of alleged insurance alongwith interest @ 24% per annum from the date of its withdrawl till realization of whole amount.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs.11,000/ - as litigation expenses .
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that the answering opposite party had received the legal notice dated 19.11.2020 from the complainant and the answering opposite party had duly replied to the legal notice dated 04.12.2020 wherein the answering opposite party had informed the complainant to share the details of the loan account or the pan card number in order to validate the records since no loan account details were mentioned in the legal notice. The reply to the legal notice was sent to the complainant, but inspite of receiving the reply, the complainant had chosen not to respond. The complainant’s main dispute was with regards to the excess amount of EMI being deducted from the account of the complainant. The answering opposite party submitted that the excess amount of EMI which was being deducted from the account of the complainant was towards the insurance loan accounts which was booked in the name of the complainant wherein by agreeing to the terms and conditions and giving the consent over the telephonic call to the tele caller agent of the opposite party, the complainant agreed at avail the said loan account vide loan account No. 579DTBGF565948 for Rs.1924/- dated 11.09.2020 with a monthly tenure of 07 months with an EMI of Rs.275/- commencing from 02.10.2020. The answering opposite party submitted that the certificate of insurance was also duly sent by the insurance company to the complainant on 22.09.2020 at 10:54 AM in the registered email IF yatendrsinghadv$gmail.com and registered mobile NO. 9811537544 through the Bitly Link. Answering opposite party submitted that after the complainant had given the consent over the call which was made by one of the tele caller agents of the opposite party, the insurance loan had been booked in the name of the complainant. Opposite party submitted that the complainant ahd raised an email to the back end term of the opposite party for the cancelattion of the insurance loan account on 19.11.2020 and the opposite party had duly replied to the said query in the registered email id of the complainant on 19.11.2020 stating that since the Free Look period is over, the insurance cancellation cannot be done. Further inspte of raising the issue of the cancellation of the loan the complainant had kept on paying the EMI of Rs.275/- on the due date without any fault, this itself shows that the complainant was not serious with the issue and had filed the complaint with malafide intention and just to waste the time of Hon’ble Consumer Commission. Opposite party No.1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite parties Nos.2 & 3 put in appearance through counsel and filed written statement wherein Opposite parties Nos.2 & 3 refuted claim of the complainant and submitted that the present complaint was misplaced, misconceived, misrepresented, unwarranted, uncalled for, devoid of any merits, travesty of truth and unsustainable in law and the facts prevailed in this behalf. It was submitted that the complainant had suppressed and concealed the true material and vital facts & information from this Commission in lodging the present complaint , which constitute misrepresentation and misleading the material facts. The complainant neither had any cause of any action nor locus standi in lodging the present complaint, the same nowhere discloses the basic element of deficiency in service as formulated under the provisions of the Consumer Protection Act, 2019. As such, the complaint was liable to be dismissed with costs. The complainant cannot approbate and reprobate the both, in the same breath. Moreover, the complainant had taken paradoxical pleas and allegations in the complaint, which itself goes t show that the entire story set up by the complainant against the replying opposite parties was false & fabricated. In the light of above, the Commission may appreciate the case law reported in AIR 1993 SC-352. The complainant had approached this Commission without his clean hands, resultantly the complainant had suppressed & concealed the true, vital and material information in lodging the present complaint before this Commission. Thus, the complainant was guilty of “Suppression very and suggestion falsi”. Opposite parties Nos.2 & 3 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties – Bajaj Finance & ors. with the prayer to : a) not to deduct/withdrew any amount on account of insurance charges from the bank account of the complainant , in respect of mobile phone make Oppo A-53 White 4GB/64GB, IMEI 864517059495174, in any manner whatsoever, with a further direction to the opposite parties to refund back the excess amount already withdrawn by them form the bank account of the complainant, on account of alleged insurance alongwith interest @ 24% per annum from the date of its withdrawl till realization of whole amount.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs.11,000/ - as litigation expenses .
To establish his case the complainant has led in his evidenceEx.CW1/A – affidavit of Yatender Singh,, Ex.C1 – Tax invoice, Ex.C-2 – wardsapp message, Ex.C-3 – legal notice, Ex.C4 to C6 – legal notices
On the other hand counsel for the opposite party No.1 strongly agitated and opposed. As per the evidence of the opposite party No.1, Ex.RW1/A – affidavit of Shivani Garg, Legal Manager, Bajaj Finance Limited, Mumbai, Ex.R1 - reply to legal notice, Ex.R2 – CD recording, Ex.R-3 - letter dated 18.09.2020 regarding membership.
On the other hand counsel for the opposite party No.2 strongly agitated and opposed. As per the evidence of the opposite party No.2, Ex. RW2/A – affidavit of Shri Neeraj Kundra, Proprietor M/s. Sky Connects, SCF-52 (Basement) HUDA Market, Sector-15, Faridabad.
On the other hand counsel for the opposite party No.3 strongly agitated and opposed. As per the evidence of the opposite party No.3, Ex. RW3/A – affidavit of Shri Kamal Aggarwal, Salesman for Oppo Mobile Set stand at: M/s. Sky Connects, SCF-52 (Basement) HUDA Market, Sector-15, Faridabad, Ex.RW3/1 – conversation with Deepak form Bajaj Financer and Yatinder complainant.
7. It is evident from Tax Invoice vide Ex,C1, the complainant purchased one mobile phone make Oppo A-53, White 4GB/64GB, EMEI 864517059495174 from opposite party No.2 on 3.09.2020 for Rs.12,990/-. At the time of purchasing of the above said mobile, opposite party No.3 asked the complainant at the time of completing the finance/hypothecation formalities, whether the complainant would got the mobile insured, but the complainant refused to insure the mobile set from any finance/insurance company, hence at the time of issuance of the receipt of the mobile, the mobile set was not insured and thereafter the complainant never requested for the insurance of the mobile set to the opposite party No.1 at any point of time and EMI per month was settled as Rs.1444/- for 7 months. At the time of withdrawing installment of the mobile the opposite party No.1 withdraw the exceed amount of Rs.1872/- instead of Rs.1444/- as wettled for EMI and again withdraw Rs.1719/-. The complainant approached the representative of opposite party No.1 not to deduct any amount on account of insurance charges from the bank account of the complainant and to refund back the excess payment, already received by them immediately, then the representative of opposite party No.1 asked the complainant that the complainant would have to sent request online through registered mobile number. Accordingly, the complainant sent/registered a complaint on the site of opposite party No.1 and even the opposite party No.1 assured the complainant to resolve the complainant of the complainant and he received a text message “that the problem has been resolved” but the opposite party No.1 neither stop to withdraw the excess amount nor had refunded back the same to the complainant.
8. After going through the evidence led by the parties, the commission is of the opinion that the complaint is allowed.
9. Opposite party No.1 is directed to refund the excess amount of insurance to the complainant. There are no order as to costs.. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on:07.06.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
