Haryana

Karnal

195/2011

Bharam Parkash S/o Amarnath - Complainant(s)

Versus

M/s Bristal Automobile Company - Opp.Party(s)

Naresh Barana

28 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No.195 of 2011

                                                             Date of instt.:06.04.2011

                                                              Date of decision:28.12.2016

 

Bharam Parkash son of Shri Amarnath, resident of Dairy Mohalla Taraori Tehsil and District Karnal.

 

                                                                   ……..Complainant.

                                      Vs.

1. S.M.L. ISUZU Dayal Motors, Sale and Service through its Proprietor Sumit Gupta near Patrol Pump G.T. Road Karnal.

2. M/s Magma Shrachi Finance Limited through its General Manager, above Lg. Showroom, Kunjpura Road Karnal.

3. M/s Magma Shrachi Finance Limited through its Managing Director 24, Park Street Kolkata 7000016.

                                                                        ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh. Naresh Barana Advocate for the complainant.

                    Sh. Umesh Kumar Advocate for the Opposite parties no.2 and 3.

                    Opposite party no.1 already exparte.

                  

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that he purchased Swaraj Majda bearing registration no.HR-37A-5780 from opposite party no.1. The said vehicle was financed by opposite party no.2, who was under control of opposite party no.3. The complainant was to pay interest 5½% in four years and it was also agreed that the amount of Rs.4,88,000/-would be paid in equal monthly installments of Rs.10,167/- each. The vehicle was not running properly on the road as there was defect in the engine alongwith some other complaints. Free services of the vehicle were got done, but the defects were not removed by the opposite party no.1. The opposite parties put the battery of Amron Company and did not give warranty of the battery. Thus, the opposite party no.1 in collusion with the opposite parties no.2 and 3 cheated him and did not provide services in time due to which he could not use the vehicle properly and suffered loss in the business. He had deposited all the installments with the opposite parties no.2 and 3. The last installment of Rs.23,550/-was deposited on 23.2.2008. It was mentioned by the opposite parties on the receipt that all E.M.I.s were received from him. He demanded “No Dues Certificate”, but the opposite parties postponed the matter on one pretext or the other.

                   It has further been pleaded that in the month of March, 2007, on his asking, the opposite party no.2 supplied statement of account calculating the outstanding amount as Rs.42,980/- till March, 2007. On receiving the statement of account, he came to know that opposite party no.2 had mentioned the financed amount as Rs.4,13,515/- instead of Rs.4,00,000/- and received amount as Rs.5,58,440/- instead of Rs.4,88,000/-. When he brought such wrong entries to the notice of officials of opposite party no.2, they insisted upon him to deposit the amount of Rs.42,980/-. Thereafter, he deposited Rs.24,500/- on 24.1.2008 and Rs.23,550/- on 23.02.2008. He had deposited the total amount of Rs.5,58,440/- upto 23.2.2008. However, the opposite parties raised demand of Rs.89,828.14 as per the statement of account issued on 30.01.2010. The opposite party no.2 charged the installment of Rs.12,140/- per month, whereas the agreed installment was of Rs.10,167/- per month. Even the agreement of loan was not provided to him. The purchase value of the vehicle was Rs.4,00,000/-, but for the purpose of insurance more value was mentioned and excess amount of insurance was charged. Some entries in the statement of account were false. In fact, he had paid excess amount of Rs.94,720/- to the opposite party no.2, which is refundable to him. It has also been alleged that he got registered legal notice dated 8.7.2010 upon the opposite parties, but despite that the opposite parties neither issued “No Dues Certificate” nor released the hypothecation. In this way, there was deficiency in service on the part of the opposite parties, due to which he suffered mental tension and agony apart from financial loss.

2.                Notice of the complaint was given to opposite parties. Opposite party no.1 put into appearance and filed written statement disputing the claim of the complainant. Objections have been raised that the complaint is not legally maintainable in the present form; that the complaint is an abuse of process of law; that the complainant has not approached this forum with clean hands; that this forum has got no jurisdiction to entertain and try the complaint and that the complainant is estopped from filing the complaint by his own acts and conduct.

                   On merits, it has been submitted that the authorized dealer of the battery of the vehicle used to carry out the warranty and the opposite party no.1 was not liable for the said warranty. The complainant purchased the vehicle from opposite party no.1 for an amount of Rs.4,72,000/- and he availed the financial help of Rs.4,13,515/-from opposite parties no.2 and 3. As and when the complainant brought the vehicle to opposite party no.1, the same was repaired. The complainant had no dispute with opposite party no.1, but had unnecessarily arrayed the opposite party no.1 in the present complaint. There was no deficiency in service on the part of the opposite party no.1. The other allegations made in the complaint have been denied.

                   Lateron, none appeared on behalf of opposite party no.1 when the case was at the stage of evidence of opposite parties, therefore, exparte proceedings were initiated against it vide order dated 28.9.2015.

3.                Opposite parties no.2 and 3 filed joint written statement controverting the claim of the complainant. Objections have been raised that this forum has got no territorial jurisdiction to entertain the present complaint; that the complaint is not maintainable; that the complainant is not consumer as per definition of consumer under the provisions of Consumer Protection Act, as the vehicle financed by the opposite parties was a commercial vehicle and was being use for commercial purpose; that the complaint is time barred and that the complaint is baseless and flagrant abuse of process of law.

                   On merits, it has been pleaded that on the request of the complainant the opposite parties no.2 and 3 had provided financial assistance of commercial vehicle Swaraj Majda and advanced loan of Rs.4,13,515/- in the year 2004. The financed amount alongwith further interest of Rs.1,44,925/- was to be repaid in 46 monthly installments of Rs.12,140/- each. The complainant had not adhered to the financial discipline and an amount of Rs.1,87,831/-as DPC (delayed payment charges) etc. is due in his Loan account and he had refused to deposit the same and filed this false and concocted complaint just to evade his legal liability. The opposite parties no.2 and 3 would issue “No Dues Certificate” on payment of the entire loan amount. The other allegations made in the complaint have been specifically denied.

3.                In evidence of the complainant, his affidavit Ex.CW1/A  and documents Ex.C1 to Ex.C59  have been tendered.

4.                On the other hand, in evidence of the opposite parties, affidavit of Deepak Kumar Legal Manager Ex.OP2/A and documents Ex.OP2/B and  Ex.OP2/C have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                The complainant purchased one Swaraj Majda vehicle from opposite party no.1 and the said vehicle was financed by opposite party no.2. The financed amount of Rs.4,13,515/- was to be repaid in 46 equal monthly installments. The complainant alleged that the monthly installment was of Rs.10,167/- whereas the opposite parties no.2 and 3 asserted that each monthly installment was of Rs.12,140/-. As per the case of the complainant, he had deposited an amount of Rs.5,58,440/- in his loan account upto 23.2.2008, whereas he was liable to pay total amount of Rs.4,88,000/-. In support of such plea he has produced the copies of the receipt regarding payments Ex.C10 to Ex.C59.

7.                The opposite parties no.2 and 3 have not disputed the factum of payment of loan installments by the complainant, but it has been asserted that the complainant had not adhered to the financial discipline and an amount of Rs.1,87,831/- as delayed payment charges was due in his loan account and he had refused to pay the same. The opposite parties have produced the copy of the statement of account Ex.OP2/B, wherein the details of all the payments made by the complainant have been given alongwith the overdue delay made by the complainant in payment of the installments. The complainant had deposited an amount of Rs.5,58,440/- whereas the amount alongwith interest on delayed payments was calculated as Rs.6,53,081.94 on 26.9.2015. Learned counsel for the complainant could not point any defect regarding calculation of interest by the opposite party as mentioned in the statement of account.

8.                Learned counsel for the opposite parties no.2 and 3 laid emphasis on the contention that the opposite parties were justified in calculating interest on the delayed payment and a total amount of Rs.1,87,831/- was due in the loan account of complainant for delayed payments, therefore, “No Dues Certificate” could not be issued to the complainant till the said amount was paid. In support of his contention he placed reliance upon Manohar Singh Versus Mahindra Finance and others 2010(1) CCC 85 (NC) wherein the complainant took loan of Rs.1,60,800/- from the opposite parties and the loan was repaid in four installments, but the opposite parties did not issue “No Objection Certificate’. It was ordered by the Hon’ble National Commission that the complainant was bound to deposit the amount of Rs.14,680.45 P for delayed payments and thereafter “No Objection Certificate” was ordered to be issued by the opposite party.

9.                Learned counsel for the complainant could not cite any law contrary to the proposition of law laid down in the aforediscussed authority which squarely cover the facts of the present case as well. The complainant had made delayed payments of the installments and as per condition of the loan agreement Ex.OP2/C, the opposite parties no.2 and 3 were entitled to charge additional interest at the rate of 3% per month compounded monthly. Therefore, the complainant is liable to pay the balance amount calculated by the opposite parties as delayed payment charges. After making the payment of the said amount by the complainant, it would be incumbent upon the opposite parties no.2 and 3 to issue “No Dues Certificate” and release the vehicle from hypothecation. Thus, there was no deficiency on the part of the opposite parties no.2 and 3.

10.              The complainant has alleged that there were defects in the vehicle and the opposite party no.1 in collusion with opposite parties no.2 and 3 did not provide services in time, due to which he could not use the vehicle properly and suffered loss in business. However, no documentary evidence worth the name has been produced by the complainant to substantiate such plea. Mere allegations cannot take the place of proof and the bald affidavit of the complainant, which does not find any support from any quarter, cannot be taken into the gospel truth and the same is not sufficient to prove that there was deficiency in service on the part of the opposite party no.1.

11.              As a sequel to the foregoing reasons, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 28.12.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member