Date of Filling     :  22.06.2015.

                                                                                           Date of Disposal :  31.03.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                    TMT. S.  SUJATHA, B.Sc.,                           …    MEMBER - I

Consumer Complaint No.33/2015

(Dated this the Thursday the 31^th day of March 2016)

Mr. Thangathurai,

S/o. Ponnaiyah,

No.2, Gurushanthi Nagar,

Kavankarai,

Puzhal,

Chennai - 600 066.                                                             … Complainant.

                                                          / Versus /

1. Pavithra Bikes,

PSP Complex,

No.139, GNT Road,

Chennai - 600 066.

2. Mr. Adaikalaraj,

No.169, GNT Road,

Ponneri Taluk,

Thiruvallur District.

Chennai - 600 066.

3. Mr. K. Amirtharaj,

No.169, GNT Road,

Ponneri Taluk,

Thiruvallur District.

Chennai - 600 066.                                  … Opposite parties.

This complaint is coming upon before us finally on 18.03.2016 in the presence of Thiru. A.R. Poovannan, Counsel for the Complainant and the  opposite parties are Set Exparte for non appearance and for non filing of Written Version and upon hearing arguments, having perused the documents and evidences of the Complainant,  this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite parties  seeking relief  that to direct the opposite parties to pay a sum of Rs.7,000/- to the complainant which the opposite parties are liable to refund and compensation for the vehicle damage with interest at 12% p.a. till the date of filing of this complaint, to pay a sum of Rs.75,000/- towards compensation for mental agony and loss with cost.

1.      The brief averments of the complaint as follows:-

The complainant approached the 1^st opposite party for buying a new bike.  The 1^st opposite party is having a tie up with the 2^nd and 3^rd opposite parties for selling new two wheelers.  The opposite parties agreed to issue a new Bajaj Discover 125 CC Bike in exchange of his old two wheeler for a sum of Rs.8,000/- and demanded to pay them a sum of Rs.58,000/-.  The opposite parties have taken the complainant’s vehicle after proper verification of the documents by checking and fixed a value to the tune of Rs.8,000/- and took possession of it on 18.01.2014.  After receiving Rs.29,000/- from this complainant, the opposite party issued him a bike and instructed him to pay the balance in hire purchase system.  The complainant also signed all the documents as required by them for the purchase of new vehicle and the balance is agreed to be paid in installments in hire purchase with the suitable guarantor.

2.       The complainant has given his ration card, voter ID, driving license, 6 photos and also a guarantor to pay the balance in installments under the Hire purchase to the opposite party’s satisfaction.  The opposite parties further demanded a sum of Rs.2,100/- for opening a bank account in Indian overseas Bank in the complainant’s name and in turn on payment of Rs.2,100/- by the complainant  for opening a new bank account for the  reasons best known to them.

3.       The opposite parties also demanded to open a new bank account in Punjab National bank for a sum of Rs.1,000/- only by taking away the rest of the amount of Rs.1,100/- illegally.   The complainant submits that the said vehicle is in good running condition and they used it on road till 24.02.2014 for about 37 days.  The complainant has paid the money as required by the opposite parties, and he had signed all the papers required by the opposite parties for their satisfaction and hence there is no default in the side of the complainant.  On full satisfaction, the opposite parties delivered a new bike on 30.01.2014 to the complainant without registration number and insurance.  But on 27.02.2014 the opposite parties have taken back the vehicle forcibly without any reason.  The complainant submits that the complainant has not plied the vehicle during that period since there was no registration number and valid insurance for the same during that period.  The complainant submits that the opposite party also abused the complainant affecting his dignity without any reason or rhym.

4.       The complainant submits that on 27.02.2014 the opposite parties arbitrarily on their own cancelled the purchase of the new vehicle, eventhough the complainant acted as to the fullest satisfaction of the opposite parties in all aspects.  The opposite parties damaged the vehicle of the complainant during their custody and returned the same in a poor condition.  Further, the opposite parties have not returned the money of Rs.21,000/- paid by the complainant for the reason best known to them and they made the complainant to move pillar to post.  The complainant thus gave a police complaint on 24.02.2014.

5.       The opposite party does not oblige the words of the police and rather they started threatening the complainant.  Thus the complainant on 14.04.2014 again lodged a complaint and the opposite parties paid only a sum of Rs.17,000/- by retaining a sum of Rs.4,000/- illegally.  The complainant spent a sum of Rs.1,670/- to rectify the repairs and make the old vehicle in the road worthy condition which the opposite parties are liable to pay.  The conduct of the opposite parties in repossessing the new vehicle is arbitrary without ascertaining any reason and further failed to repay the balance amount and the damage amounts to deficiency in service.  Hence, the complaint.

5.       In order to prove the case, on the side of the complainant the proof affidavit submitted as his evidence and Exhibit A1 to A12 are marked. 

7.       At this juncture, the point for the consideration before this Forum is:

1. Whether there is any unfair trade practice and deficiency of service on the part of the opposite party as alleged in the complaint?
2. Whether the complainant is entitled for any relief as prayed for in the complaint?

8.       In spite of sufficient time given to the complainant, the complainant has neither come forward to file written arguments nor to appear for adducing oral arguments.  Though the opposite party remained Exparte, this Forum wants to dispose this case on merits available on record.

9.       Point  No.1:-

As per the averments made in the complaint, the complainant seeks relief from the opposite party to refund the amount of Rs.7,000/- towards the balance amount including the cost of repairs incurred by the complainant and a sum of Rs.75,000/- towards compensation for mental agony, hardship and monetary loss suffered by the act of the opposite parties.  At this juncture, the foremost duty of this Forum is to consider as to whether the complainant has proved the allegations made in the complaint by means of relevant and acceptable evidence since the burden of proof is on the shoulders of the complainant.   

10.     At the outset, on careful perusal of the proof affidavit submitted by the complainant, it is learnt that on arriving the terms and conditions between the complainant and 1^st and 2^nd opposite parties to purchase a new Bajaj Discover 125 CC Bike in exchange of the old two wheeler belongs to the complainant for a sum of Rs.8,000/- and to pay Rs.58,000/- for the remaining cost of the new vehicle.  It is further learnt that after fixing the value of the old vehicle to the tune of Rs.8,000/- of the 1^st opposite party took possession of the old vehicle on 18.01.2014.  The visiting card and the cash receipt dated 18.01.2014 is marked as Ex.A1 and Ex.A2 respectively.  On receiving an additional amount of Rs.29,000/- from the complainant, the opposite parties issued him a new Bajaj Discover 125 CC Bike and thereby the complainant also signed all the documents as requested by the opposite parties for the purchase of a new vehicle and agreed to pay the in installments in the hire purchase.

11.     Further, in continuation of the above said agreement the opposite parties further demanded a sum of Rs.2,100/- for opening an account in Indian Overseas Bank and also demanded to open a new bank account in Punjab National Bank for a sum of Rs.1,000/- only by taking away the  rest of the amount of Rs.1,100/- illegally.  It further learnt that, on 30.01.2014 the complainant paid Rs.14,000/- through Ex.A3 and entered into the hire purchase agreement with the 1^st  opposite party which is marked as Ex.A7 for the purchase of the new vehicle from the 1^st opposite party.  The 1^st opposite party had delivered a new bike on 30.01.2014 without registration number and insurance and the delivery note is marked as Ex.A4.  The complainant is further stated that, on 27.02.2014 the opposite parties have taken back the new vehicle forcibly without any valid reason and infact in between the period from 30.01.2014 to 27.02.2014.  The complainant has not actually plied the vehicle since there was no registration number and valid insurance.  While so, the opposite parties used the old  vehicle of the complainant and damaged the same and returned in poor condition and hence the complainant was constrained to repair the vehicle by spending to the tune of Rs.1,670/-.  The receipts are marked as Ex.A8 and Ex.A9. 

12.     When the opposite party had taken back the new vehicle, they have not returned the amount of Rs.21,000/-.  Hence, the complainant gave a Police complaint Ex.A5 and again on 14.04.2014, which is marked as Ex.A6 and then only the opposite parties paid only a sum of Rs.17,000/- by retaining a sum of Rs.14,000/- illegally.    In such circumstances, the conduct of the opposite parties in repossession the new vehicle is arbitrary without ascertaining any valid reason clearly amounts to deficiency in service and therefore, the complainant issued legal notice Ex.A10 to the 1 to 3 opposite parties and the State Human Rights Commission and the acknowledgement cards of the 1^st  opposite party & the State Human Right Commission are marked as Ex.A11 series.  The refused returned covers by the 2^nd and 3^rd opposite parties are marked as Ex.A12.

13.     At this juncture, it is crystal clear from the foregoing facts and circumstances the complainant has proved the attitude of the opposite parties and thereby they caused mental agony, strain, inconvenience and also hardship to the complainant beyond all doubts.   But at the same time, regarding the repair expenses incurred by the complainant the Ex.A8 and Ex.A9 are only pertaining to the total amount of Rs.620/- only not as narrated by the complainant in his proof affidavit as of Rs.1,670/-.  Therefore, in respect of the repair expenses incurred by the complainant, he is only entitled for Rs.620/- not as prayed in the complaint.  Regarding the amount collected by the opposite parties, to open the Bank Account, no concrete evidence is available and so that it is not sustainable.

14.     Such being so, in spite of notice served to the opposite parties and sufficient opportunities given to the opposite parties they did not come forward before this Forum to put forth their contention to disprove the allegations of the complainant.  Therefore, there is no evidence to disprove the case of the complainant and thereby it can be easily drawn the adverse inference against the opposite parties.  Thus, point no.1 is answered accordingly.

15.     Point no.2:-

In view of the conclusion arrived in point no.1, this Forum concludes without any hesitation that the complainant is entitled for the refund of Rs.4,620/- from the opposite parties and reasonable compensation with cost.

16.     In the result, this complaint is allowed in part.  Accordingly, the 1  to 3 opposite parties are jointly or severally directed to pay a sum of Rs.4,620/- (Rupees Four thousand six hundred and twenty only) with interest at the rate of 9% per annum from the date of filing of the complaint i.e. from 04.06.2015 to the date of order (31.03.2016), to pay a sum of Rs.10,000/- (Rupees Ten thousand only) towards compensation for causing mental agony and hardship due to the deficiency of service on the part of the 1 to 3 opposite parties and to pay Rs.3,000/- (Rupees Three thousand only) towards cost of litigation of this complaint.

The above amounts shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9.5% till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 31^th March 2016.

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MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

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MEMBER - I                                                                             PRESIDENT