BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 21^ST DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. It is the complaint filed under section 12 of C.P.Act, 1986, (herein referred as “ACT”) to 

1. Direct the OPs to pay a sum of Rs.50,000/- towards the harassment and agony caused to the complainant on account of deficiency in service committed by the OPs.
2. Direct the OP1 to refund a sum of Rs.53,983/- being the monetary loss suffered by the complainant as detailed in paragraph (7) above, along with interest at the rate of 10% per annum from the respective dates when the monthly installment amounts were realized till the date of payment.
3. Grant such other relief as this Hon’ble Forum may deem fit.

2. The brief facts of the complaint are  as follows:

In July 2012, complainant approached the OP2 to purchase a Renault Duster RXZ (O) 110 BHP Model car by paying Rs.50,000/- as initial payment on 06.07.2012, but OP2 has wrongly mentioned model as “Renault Duster Diesel RXL (O) 85 BHP”.  Therefore complainant has secured price list of OP2 in respect of the higher model for Rs.11,35,102/-, besides road tax of Rs.2,28,483/-.

3. The complainant applied for loan with OP1 to purchase the vehicle hoping that the delivery of the vehicle will be in the last week of September 2012, but OP2 later informed the complainant on 20.08.2012 that vehicle was ready for delivery.  But OP1 has committed delay in sanctioning the loan.  OP1 has sanctioned loan of Rs.9,69,000/- repayable in 36 monthly installments of Rs.31,660/-.  At the request of the complainant, OP2 had issued a fresh perform invoice on 01.10.2012.  Due to delay on the part of OP1 to sanction the loan, the complainant paid the entire cost to OP2 on 05.10.2012, same was accepted by OP2.  However on 10.10.2012, OP1 addressed a letter to the complainant that about alleged disbursement of the loan.  OP1 has illegally recovered two monthly installments of Rs.31,650/- from the complainant bank account on 08.11.2012 and 07.12.2012.  Thereafter complainant addressed a letter dated 16.11.2012 and 26.12.2012 asking OP1 to return the blank cheques and other documents.
4. It is further case of the complainant, due to the delay and deficiency of service on the part of OPs, the complainant has suffered monitory loss of Rs.53,983/- i.e., even though OP2 issued ex-showroom price of Rs.11,35,102/- but collected Rs.11,40,081/-, road tax of Rs.14,287/- was collected.  He was forced to close the fixed deposit by which he has loss of Rs.33,117/- and OP1 has illegally recovered two EMI of Rs.63,300/- for a period of four months and complainant is entitled to interest of Rs.1,600/-.  Due to illegal act of the OPs, the complainant has suffered mentally.  Therefore this complaint.
5. In response to the notice both OPs appeared and filed separate version.
6. OP1 contends that there is no dispute and complainant being a private limited company is not maintainable.  There was no delay on the part of OP1 to sanction the loan.  The complainant obtained vehicle insurance on his own and submitted other necessary papers.  The loan was disbursed by OP1 to OP2 within 05.10.2012.  The complainant had furnished fresh invoice dated 01.10.2012 for loan of Rs. 11,40,081/-.  Immediately OP1 processed the loan application and released amount in favour of OP2.  The complainant was supposed to take delivery of the vehicle on 04.10.2012 but loan was disbursed on 03.10.2012.
7. The complainant agreed to pay monthly installment of Rs.31,650/- for 36 months. Collection of two months installment is legally correct.  Despite receipt of letter dated 10.10.2012 the complainant remained silent.  The notices were exchanged. Despite reply dated 29.11.2012 the complainant did not come forward to handover the original invoice of the vehicle.  In the meanwhile another installment dated 07.12.2012 was recovered from the account of the complainant.
8. The OP1 also contends that OP2 reversed the disbursed loan only on 03.01.2013 and OP1 was right in collection of two EMIs and it cannot be refunded.  OP1 denied that complainant has suffered any loss due to the act of the OP1.  There is no deficiency of service on the part of OP1 and OP1 requests to dismiss the complaint.
9. OP2 denies that complainant erroneously booked a Renault Duster Diesel RXL (O) 85 BHP instead of 110 BHP.  Even though OP2 made an offered to deliver the vehicle the complainant paid the entire amount on 05^th October 2012 and OP1 committed delay in sanctioning the amount.  Immediately OP2 reversed the loan sanctioned by OP1 on 3^rd October 2012.  There is no deficiency of service on the part of the OP2.  The complainant has not produced any document about alleged loss.  OP2 requests to dismiss the complaint.
10. The complainant files the affidavit evidence of its Managing Director and relies on 11 documents.  The OP1 files the affidavit evidence of its Deputy Manager.  Authorized representative of OP2 has filed affidavit evidence for OP2.
11. Heard the arguments and perused the records.
12. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency in service on the part of the OPs?

2. Whether the complainant is entitled for the reliefs as mentioned in the complaint?

3. What order?

13. The points that would arise for our consideration are as under:

  Point No.1:  Affirmative in part

 Point No.2 : Affirmative in part

 Point No.3: As per final order

REASONS

14. Point Nos.1 & 2:   At the first instance we would like to refer the documents produced by the complainant and by OP1.  Annexure 1 produced by the complainant is the price list of different vehicles, including  Duster (D) RXZ (O)  showroom price Rs.11,35,102/-, insurance Rs.40,986/-, road tax is Rs.2,14,196/-, service charges for registration is Rs.6,900/-, standard accessories  is Rs.3,948/- and grand total is Rs.14,01,131/-.  The document NO.2 is the letter of complainant dated 07.08.2012 requesting for Duster (D) RXZ(O) instead of RXL was required.  Accordingly OP2 issued invoice for Rs.12,44,375/- in respect of Renault Duster (D) RXL (O) 85BHP.   Document No.4 indicates that complainant made payment of Rs.2,72,970/- by means of a cheque on 01.10.2012 to OP2.  Document No.5 is the letter of OP1 to the complainant dated 10.10.2012 about disbursement of loan of Rs.9,69,000/- to the account of OP2.  The repayment schedule which indicates that first installment was to be paid on 07.10.2012.
15. The contention of the complainant that due to delay on the part of OP1 in disbursement of the loan he paid the entire amount to OP2 and OP2 admits this fact.  When the loan of Rs.9,69,000/- was disbursed by OP1 in favour of OP2,  we fail to understand why OP2 failed to reverse the same either on the 7^th or on next date. Admittedly the OP1 has recovered first EMI of Rs.31,650/- on 08^th November 2012 and second EMI of Rs.31,650/- on 7^th December 2012.  It is the definite case of the OP1 that OP2 reversed the payment only on 3^rd January 2013.  Therefore OP1 contends that the recovery of two installments from the account of the complainant prior to 3^rd January 2013 was legally correct.  In order to consider this contention of the OP1, it is necessary to refer other documents.
16. Document No.7 is the letter of complainant dated 16.11.2012 to OP2 and copy to OP1 stating that the complainant approached the dealer for reimbursement and dealer has refused to make reimbursement claiming that he has no advice from your side.  Document No.8 indicates that on 26.12.2012, the complainant addressed a letter to OP1 to recovery was illegal and he requested OP1 bank to return his documents.  Before addressing this letter, OP1 has recovered two monthly installments of Rs.31,650/-.  Subsequently the complainant got issued a legal notice as per document No.9 to both the OPs stating that deduction of two monthly installments by the OP1 bank is illegal.  OP2 has issued replay dated 29.07.2013 stating that the loan disbursed by the bank was reversed on 3^rd October 2012.  Even though this replay contained two annexure, the first annexure is dated 3^rd October 2012, amount whereas second enclosure indicates that OP2 reversed the payment of Rs.9,31,731/- only on 3^rd January 2013.  Therefore OP1 had no occasion to receive reversal amount prior to 07.11.2013.   OP2 also issued reply stating that dealer received the disbursed loan amount on 03^rd October 2012.  Complainant and OP2 have not produced any document to show that OP1 received the reimbursed amount either on 03.10.2021 or prior to 07.11.2012/07.12.2012.  In view of the documents produced by the complainant, OP2 reimbursed the amount to OP1 only on 3^rd January 2013.  The delay on the part of OP2 in reimbursing the amount, OP1 cannot be blamed.
17. OP1 has also produced certain document. Document A is the Power of Attorney, Document B is the loan application of the complainant.  Document C is the invoice issued by OP2.  Document D indicates that OP2 received an amount of Rs.50,000/- from the complainant on 6^th July 2012.  Next document is the change of format without date and signature.  Next document is the agreement for auto loan which is not in dispute.  Subsequent documents are the correspondences.
18. Counsel for the OP1 vehemently argues that there is no deficiency of service on the part of OP1.  In support of his arguments he relies on the decision of Hon’ble Supreme Court of India, reported in 2005(4) Supreme Court cases 605 in the matter between MCD –vs- State of Delhi and another.
19. We carefully perused the facts and ratio involved in the above decision.  When the party suppressed the material facts is not entitled to claim any advantage.  Even though OP2 admits receipt of entire consideration amount from the complainant on 05.10.2012, but OP2 had no authority to receive the double payment.  OP1 disbursed the loan amount in favour of OP2 on 03.10.2012, but OP2 has reversed this payment only on 03.01.2013.  Delay is on the part of the OP2 and no deficiency of service on the part of the OP1.
20. Even though complainant asserts in para 7 of the complaint and para 7 of the affidavit evidence that the complainant has suffered loss to the tune of Rs.53,983/-, but this loss is not substantiated by the complainant.  The OP1 claims Rs.50,000/- as compensation.  The complainant also remains silent for a period of two months from 05.10.2012 without asking OP2 to reimburse the loan amount to OP1 immediately.  OP1 cannot be responsible for recover of two installments to the tune of Rs.63,300/-. The OP2 made the complainant to suffer the loss of Rs.63,300/-.  Document No.7 of the complainant dated 06.11.2012 that complainant had approached the dealer for reimbursement and the dealer has refused to make reimbursement claiming that he has no advise from OP1 bank.  Under such circumstances, OP2 never reimbursed amount to OP1 on 03^rd October 2012 as claimed in para 5 of reply dated 29^th July 2013. Therefore OP2 alone is liable to pay Rs.63,300/- to the complainant with interest at 8% p.a.  Therefore, no deficiency of service on the part of the OP1.
21. Point No. 3: In view of the discussion and reasons assigned on Point No.1 and 2, complaint requires to be allowed in part against OP2 and complaint requires to be dismissed against OP1.  OP2 shall pay Rs.63,300/- with interest at 8% p.a., from 3^rd January 2013 with Rs.5,000/- as cost of the litigation. We proceed to pass the following ;

O R D E R

1. The complaint is Dismissed against OP1.
2. The complaint is allowed in part against OP2.
3. OP2 shall pay Rs.63,300/- with interest at 8% p.a., from 03.01.2013 till realization and also pay Rs.5,000/- towards cost of the litigation.
4. The OP2 shall comply this order within 60 days from this date.
5. Furnish the copy of this order and return the documents to the complainant with extract pleadings.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 21^st day of July, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1: Nil