BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.453 of 2015
Date of institution: 09.09.2015
Date of Decision: 01.03.2016
Raman Jain son of Anil Jain, resident of House No.1339, Village Burail, Chandigarh.
……..Complainant
Versus
1. M/s. Shivam Autosales Pvt. Ltd., SCO 50-51, Phaswe-VI, Mohali through its Director Neeraj Mahajan.
2. Neeraj Mahajan, Director M/s. Shivam Autosales Pvt. Ltd., SCO 50-51, Phaswe-VI, Mohali.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Shri Sunil K. Chindaliya, counsel for the complainant.
OPs ex-parte.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following directions to the Opposite Party (for short ‘the OP’) to:
(a) refund him booking amount of Rs.3,000/- alongwith interest @ 24% per annum.
(b) pay him Rs.10,000/- for causing mental torture and harassment.
(c) pay him Rs.5,000/- as litigation expenses.
The OPs are authorized dealer of Suzuki company. In March, 2015 the complainant approached the OPs for purchase of new motor cycle and paid the booking amount of Rs.3,000/-. At that time the OPs assured that the motor cycle would be made available to the complainant within a month. The complainant visited the OPs number of times after one month but they delayed the matter on one pretext or the other. Then in May, 2015 the OPs flatly refused to deliver the motor cycle booked by the complainant. Under these circumstances, the complainant had purchased another motor cycle from M/s. EM PEE Motors & Scooters (P) Ltd. However, the complainant continued to visit the OPs for refund of the booking amount and ultimately, the OPs issued cheaue No.449215 dated 26.06.2015 for Rs.3,000/- drawn on Punjab National Bank with the request to present it on 01.07.2015. The complainant presented the cheque on 01.07.2015 for encashment to his banker but it was received back unpaid with the remarks ‘funds insufficient’. The complainant immediately contacted OP No.2 but OP No.2 instead of making payment started making false excuses. Till date the OPs have not refunded him Rs.3,000/- which has caused mental tension and harassment to him. With these allegations the complainant has filed the present complaint.
2. Notices issued to the OPs were duly served but none appeared on behalf of them despite repeated calling. Thus both the OPs were proceeded against ex-parte vide order dated 18.11.2015.
3. To succeed in the complaint, the complainant tendered in evidence his affidavit Ex.CW-1/1 and copies of the documents Ex.C-1 to C-6.
4. We have heard learned counsel for the complainant and gone through the written arguments filed by him.
5. The complainant has booked a Suzuki motorcycle with the OPs in the month of March, 2015 and paid Rs.3,000/- as advance. The OPs promised to deliver the motor cycle within a month. However, the OPs could not arrange the delivery of motorcycle and, therefore, on 22.05.2015, the complainant purchased a new motor cycle from some other seller. The complainant thereafter approached the OPs for refund of Rs.3,000/- and the OPs issued a cheque dated 26.06.2015 Ex.C-5 in favour of the complainant which upon presentation, had been returned by the bank with the remarks ‘insufficient funds’. Therefore, the complainant has filed the present complaint against the OPs alleging unfair trade practice as the cheque issued by the OP had been dishonoured upon presentation and this fact was fully in the knowledge of the OPs when they issued the cheque in discharge of their liability of refund of the deposited amount of Rs.3,000/- which the OPs have accepted as an advance booking amount for the sale of motor cycle. The dishonouring of the cheque upon presentation vide Ex.C-5 is an act of deficiency in service and unfair trade practice which is writ large on the part of the OPs. There is no rebuttal evidence from the Ops as they have chosen to remain absent from the proceedings before this Forum despite proper and effective service.
6. In fact it was the duty of the drawee of the cheque i.e. OPs to ensure sufficient funds in their bank account at the time of issuance of the disputed cheque Ex.C-5. The OPs have failed to discharge their obligation and on presentation of cheque, the same having been returned by the banker as per return memo with the remarks funds insufficient. The act of the OPs in issuing the disputed cheque knowing fully well that it would not be honoured by the banker due to insufficient funds, is an act of unfair trade practice and deficiency in service and due to the acts of the OPs the complainant has been deprived of the use and benefits its valuable property of Rs.3,000/- causing him financial loss and mental agony. Therefore, the complainant deserves the refund of Rs.3,000/- alongwith interest and further for mental harassment and agony the complainant deserves to be compensated. Thus on the basis of material placed before us the complainant has proved his case of deficiency in service and unfair trade practice on the part of the OPs and as per the judgment of Hon’ble National Commission in New India Assurance Co. Ltd. vs. M/s. Kamboj Ultra Sound & Diagnostic Pvt. Ltd., 2014(4) CLT 33 the complainant is entitled to refund of the deposited amount alongwith interest and compensation for harassment and mental agony.
7. Hence the complaint is allowed against both the OPs with the following directions:
(a) to refund to the complainant Rs.3,000/- (Rs. Three thousand only) with interest @ 9% per annum from the date of receipt till actual payment.
(b) to pay lump sum compensation of Rs.10,000/- (Rs. Ten thousand only) for mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
March 01, 2016.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
