Punjab

Rupnagar

CC/15/51

Saurav Verma - Complainant(s)

Versus

M/s Bhakra Service Station Pvt.Ltd. - Opp.Party(s)

Sh. Gurpreet Singh Adv.

03 Nov 2015

ORDER

ORDER

                                       MRS. NEENA SANDHU, PRESIDENT

                   Sh. Saurav Verma has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for issuance of the following directions to them:-

i)       To refund the excess amount of Rs.51,505/- (Rs.24032/- on account of lesser amount shown in the down payment & Rs.27,473/- on account of discount as assured to him) along with interest @ 24% P.A. from the date of receipt till the date of refund,   

 

ii)      To pay Rs.1,00,000/- as compensation on account of mental agony & harassment caused to him, 

 

iii)     To pay Rs.21,000/- as litigation expenses,

 

iv)     To grant any other relief, which this Forum may deem fit, keeping in view the facts & circumstances of the case.

 

 

2.                 In brief, the case of the complainant is that on 10.12.2014, he had booked a I-20 Sports Diesal Car with the O.P. No.1 by paying an amount of Rs.10,000/- vide receipt No.4416 dated 10.12.2014  At the time of booking of the car, the officials of the O.P. No. 1 assured him that various discounts would be given to him, which would include free insurance of the said car, worth Rs.21,338/- and accessories worth Rs.6740/-. At that time, the officials of the O.P. No. 1 had shown the cost of the car as Rs.7,21,968/- and after deduction of the amounts on account of aforesaid discounts, the net price of the car had come to Rs.6,94,495/-.  Keeping in view the assurance given in writing by the officials of the O.P. No.1, he had decided to purchase the car in question. On 12.12.2014, he had paid another amount of Rs.1,46,500/- vide receipt No. 4421 to O.P. No. 1. The balance amount was to be got financed through the O.P. No.1 from Magma Fincorp Limited, for which the officials of the O.P. No. 1 got all the formalities done/completed from him, while sitting in the office of the O.P. No.1. On 12.12.2014, the O.P. No.1 had delivered the car in question to him. On 09.01.2015, he received an intimation/letter from Magma Fincorp Limited, Mohali, showing therein schedule of the installments regarding repayment of the loan amount. He was surprised to notice that the total cost of the vehicle was shown as Rs.7,21,968/- instead of Rs.6,94,495/- and down payment was shown as Rs.1,31,968/- instead of actually paid amount of Rs.1,56,000/- and Rs.4828/- was shown as other finance charges and total amount was shown as Rs.5,94,028/-, meaning thereby that neither any discount, as assured by the officials of the O.P. No. 1, was given to him nor the down payment, which was actually paid by him, was deducted from the total cost of the vehicle. The O.P. No. 1 has, thus, charged an excess amount of Rs.51,505/- ( i.e. Rs.24,032/- on account of lesser amount shown in the down payment & Rs.27,473/- by not giving discounts, as assured to him). He had visited the office of the O.Ps. & complained about the same, on various occasions, but nothing has been done by them to redress his grievance. The O.Ps. are legally bound to refund the excess amount charged from him and also to pay compensation for undue mental agony & harassment caused to him.

He had also served a legal notice dated 5.2.2015 upon the O.Ps., but they have not replied the same. Hence, this complaint.

 

3.                 On being put to notice, the O.P. No. 1  filed written version taking preliminary objections; that the complaint is not maintainable against the answering O.P. in the present form; that the complainant is not consumer of the answering O.P. and he has no cause of action & no locus standi to file the present complaint against it and the same does not lie; that the complainant has not come to the Forum with clean hands as he has concealed the material facts from this Forum; that the complainant is not a consumer of the answering O.P.; that there is no deficiency in service or adoption of any unfair trade practice on the part of the answering O.P.; that this Forum has no jurisdiction to entertain & try the present complaint and that the complainant is liable to be burdened with heavy costs for dragging the answering O.P. into this unnecessary & uncalled for litigation. On merits, it is stated that no excess amount has been charged by the answering O.P. from the complainant. He has been given the benefit of free insurance worth Rs.21,338/- and free accessories worth Rs.6740/-. The value of the car in question was Rs.7,21,968/-. Apart from that an amount of Rs.4500/- was charged as logistic charges and another amount of Rs.124/- was charged for temporary number from him. The benefit of free insurance worth Rs.21,338/- and free accessories worth Rs.6740/- had been given. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof with heavy costs, the same being without any merit.

 

4.                The O.P. No. 2 filed a separate written version taking preliminary objections; that the complainant has suppressed the material facts from this Forum, as such, the same is liable to be dismissed on this ground alone; that the complaint is baseless and flagrant abuse of process of law to harass and blackmail the answering O.P.; that the relationship  between the complainant and the answering O.P. is that of the creditor and the borrower and the conducts & acts of the parties are subject to and regulated by the Hire Purchase Finance agreement dated 07.01.2015 entered into between the parties at the time of taking of loan amount; that as per the terms & conditions laid down and accepted by the complainant, the courts and Tribunal at Kolkotta only have the territorial jurisdiction to entertain & try the dispute arising out of the said Hire Purchase Finance Agreement, ousting the jurisdiction of any other court; that as per the said agreement dated 07.01.2015 entered into between the parties hereto, all disputes, differences, claims and questions whatsoever arising out of this agreement are to be referred to the arbitrator and this Forum does not have the jurisdiction to entertain the present complaint, which is the subject matter of Arbitration Clause of the Agreement; that the complainant in the entire complaint has nowhere contended or averred that the answering O.P. has, in any manner, breached or violated any of the provisions and/or conditions of the contract; that even otherwise, the complaint, if any,   regarding breach or violation of the terms of the contract, is not maintainable under the Act before this Forum, for which the complainant would have remedy elsewhere; that complicated questions of facts & law along with the account disputes cannot be decided by this Forum in the summary proceedings and adjudication of the same requires proper adducing and appreciation of evidence; that the complainant is not ‘consumer’ of the answering O.P. and he has no cause of action & no locus standi to file the present complaint; that the present complaint has been filed against the answering O.P. with malafide intention, just to harass him and to get undue advantage; that the complainant has not approached this Forum with clean hands and has suppressed the true & material facts; that he is estopped by his own act, conduct, acquiescence & silence to file the present complaint; that this Forum has no jurisdiction to try & decide the present complaint as the answering O.P. has no office/branch within the jurisdiction of this Forum and the disputes involved in this complaint relate to money transactions and it involves complicated questions of law & facts, as such, the complaint is liable to be dismissed. On merits, it is stated that neither there is any deficiency in service nor adoption of any unfair trade practice on the part of the answering O.P.  The complainant had approached the answering O.P. for financial assistance for purchase of I-20 Sports Diesal Car, for which loan-cum-Hire Purchase agreement No.PG/0038/C/13/000365 dated 07.01.2015 was executed and a loan of Rs.5,94,028/- was granted, which was to be repaid on or before 31.12.2019 by way of 60 equal monthly installments of Rs.13,500/- each. It is admitted that the answering O.P. had sent repayment schedule to the complainant, but it is stated that the same was as per the sanctioned loan. It is further stated that by filing this false, frivolous & vexatious complaint, the complainant has lowered down the image of the answering O.P. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, with exemplary costs.

 

5.                On being called upon to do so, the learned counsel for the complainant tendered affidavit of the complainant Ex. C1, photocopies of documents Ex.C2 to Ex.C8, and closed the evidence. On the other hand, the learned counsel for the O.P.  No.1 tendered affidavit of Sh. S.K. Chawla Ex.OP1/A, photocopies of documents Ex.OP1/B to Ex.OP1/J and closed the evidence whereas the learned counsel for the O.P. No. 2 tendered photocopies of documents Ex.OP2/A and Ex.OP2/B and closed the evidence. 

 

6.                We have heard the learned counsel for the parties and gone through the record of the file, including written arguments filed by the learned counsel for the complainant, carefully.

7.                From the price list (Ex.OP1/B) issued by Hyundai Company pertaining to the year 2013-14 (WEF 01.11.2014), it is evident that at the relevant time, the total cost of the i20 Sport Diesel car was Rs.7,47,806/- (i.e. Rs.7,21,968/- as ex-showroom price + Rs.4500/- as logistic charges + Rs.21,338/- insurance charges). As per the offer the O.P. No.1 was to give benefit of free insurance worth Rs.21,338/- and that of free accessories worth Rs.6740/-. As such, the complainant was to pay a sum of Rs.7,26,468/-. He was also liable to pay a sum of Rs.124/- towards temporary number, as per copy of ledger account (Ex. OP1/E). Thus, in total, the complainant was to pay Rs.7,26,592/-. It has been proved on record that the complainant had paid a sum of Rs.10,000/- & Rs.1,46,500/- vide receipts (Ex. OP1/B1) bearing No. 4416, 4421 respectively, and a sum of Rs.5,70,700/-(paid by the O.P. No.2 as loan amount to the O.P. No.1) vide receipt No.4523 (Ex. OP1/B1), thus, in total the O.P. No.1 had received a sum of Rs.7,27,200/-.  As per version of the O.P. No. 1, it had refunded a sum of Rs.27,473/- vide discount voucher, Ex.OP1/F, to the complainant, who had also appended his signatures on the revenue stamp affixed thereon, whereas, the learned counsel for the complainant had vehemently denied the fact regarding receipt of amount of Rs.27,473/- by the complainant and submitted that the copy of discount voucher, placed on record by the O.P. No. 1 as Ex.OP1/F, is a fake/forged one, as the signatures put on it are not of the complainant. It is further the grievance of the complainant that the dealings of the O.P. No. 2 were not fair enough because he had made down payment of Rs.1,56,000/- (i.e. Rs.10000/- & Rs.1,46,500/- vide receipts, Ex. OP1/B1, bearing No. 4416, 4421 respectively), but the said O.P. in the schedule-2 attached alongwith the Hire Purchase Agreement (Ex. OP2/B) had malafidely mentioned the down payment as Rs.1,31,968/- only.

 

                   The questions that need determination in this case are—as to whether the signatures of the complainant have been forged by the O.P. No. 1 on the discount voucher (Ex.OP1/F) and as to how the amount of Rs.1,31,968/- was shown towards down payment in the schedule-2 attached alongwith the Hire Purchase Agreement (Ex.OP2/B) by the O.P. No. 2, especially when it is proved on record that the complainant had made down payment of Rs.1,56,000/- to the O.P. No.1 for the purchase of the car in question . It may be stated that the material placed on record is not sufficient for adjudication of the controversy, involved in this case, in just & proper manner, and in fact, it requires leading of voluminous evidence, examination and cross-examination of the witnesses & detailed investigation, which is not possible in this Forum, as the proceedings before this Forum are summary in nature. In 1995 (1) (AP) 307, ‘K.P. Leela versus Aneja Finance Consultancy’ it has been held by the Hon’ble Andhra Pradesh Commission, that where complicated questions, regarding cheating is involved the jurisdiction of the Consumer Forum is ousted. In 1994(1) CLT NC 195, ‘S.S. Marthandam versus New India Assurance Co. Ltd.’, it has been held by the Hon’ble National Commission, that it may not be possible, for this commission to satisfactorily undertake, a detailed investigation, into complicated questions of fact and law, arising for determination in this case, having regard, to the time frame specified by the Act, for the disposal of cases by Consumer Forums.

 

9.                In view of the above discussion, we dispose of the complaint, with liberty to the complainant to avail remedy before the appropriate court or any other appropriate forum, for redressal of his grievance and to seek condonation of delay, for the period, his complaint remained pending in this Forum, as permissible under Section 14 of the Indian Limitation Act, 1963.

 

                   The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed & consigned to the Record Room.

 

ANNOUNCED                                                                       (NEENA SANDHU)

Dated 03.11.2015                                       PRESIDENT

 

 

                                                (SHAVINDER KAUR)

                                                                     MEMBER.