Tamil Nadu

South Chennai

678/2009

M.Suresh - Complainant(s)

Versus

M/s. Popular Mega Motors India Ltd., & another - Opp.Party(s)

P.Malliga & M.Sathyan

01 Mar 2019

ORDER

                                                                        Date of Filing  : 29.06.2009

                                                                          Date of Order : 01.03.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP. : MEMBER-II

 

C.C. No.678/2009

DATED THIS FRIDAY THE 01^ST DAY OF MARCH 2019

                                 

M. Suresh,

S/o. Mr. Manickam,

No.27, Yasinkhan Second Cross Street,

Isa Pallavaram,

Chennai – 600 043.                                                     .. Complainant.                                               

 

      ..Versus..

1. M/s. Popular Mega Motors (India) Ltd.,

Commercial Vehicle Dealer,

Represented by its Director,

No.59, Habib Towers, 1^st Avenue,

Ashok Nagar,

Chennai – 600 083.       

 

2. S. Sekar,

S/o. Mr. Sahadevan,

Executive Sales,

M/s. Popular Mega Motors (India) Ltd.,

No.59, Habib Towers, 1^st Avenue,

Ashok Nagar,

Chennai – 600 083.                                              ..  Opposite parties.

          

Counsel for the complainant          : M/s. P. Malliga & another

Counsel for the 1^st opposite party : M/s. T. Sundar Rajan & another

Counsel for the 2^nd opposite party : Exparte

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 prays to return the said advance amount of Rs.20,000/- together with interest at the rate of 18% p.a. from 31.07.2008 till the date of realization and to pay a sum of Rs.2,00,000/- towards compensation for mental agony and stress with cost to the complainant.

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

The complainant submits that on 26.07.2008, he approached the opposite parties for the purchase of TATA ACE Load Body vehicle and paid an advance of Rs.20,000/- through cheque drawn on Indian Overseas Bank, Pammal Branch.   The complainant submits that the opposite party promised to arrange loan for purchasing vehicle through HDFC Bank.  The opposite parties encashed the cheque.  Thereafter, the opposite party did not take any steps for arranging loan through HDFC Bank.   After repeated requests and submitting records, the HDFC Bank also refused to sanction the loan.  Hence, the complainant requested the opposite party to refund of the advance amount of Rs.20,000/-.  But the 1^st opposite party failed and neglected to refund the amount.  The complainant states that thereupon the complainant through Mr. C. Baskaran, Proprietor of R.R. Travels made several requests to refund the said amount but the 1^st opposite party instead of returning the advance amount used to give evasive replies apart from the fact, the 1^st opposite party had instructed the complainant to approach the 2^nd opposite party for return of the said advance amount, in spite of the fact, the 1^st opposite party alone received the said amount and issued the receipt. Further, the complainant had approached the 2^nd opposite party as per the instruction of the 1^st opposite party.  The 2^nd opposite party also given an undertaking letter to refund the amount, but 10 months have been passed away neither of the opposite party repaid the amount. Hence, the complainant sent legal notice dated:05.03.2009 which was duly acknowledged by the opposite parties 1 & 2 but has not sent any reply.   Since the opposite parties are not able to procure the loan, the complainant was not able to take delivery of the vehicle.    The act of the opposite parties amounts to deficiency in service and unfair trade practice which caused great mental agony.   Hence, the complaint is filed.

2.      The brief averments in the written version filed by 1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.    The 1^st opposite party states that the complainant paid a sum of Rs.20,000/- as margin money for purchasing a Tata Ace vehicle.  The complainant approached the HDFC Bank for loan to purchase the vehicle.  Even after sanctioning the loan, the complainant has not availed the loan and failed to take delivery of the vehicle.   The 1^st opposite party states that this case is miserably failed for non-joinder of necessary party the HDFC Bank.   The 1^st opposite party states that the refund of the margin money demanded by the complainant cannot be accepted because HDFC Bank sanctioned the loan and the complainant has not come forward to avail the loan and took delivery of the vehicle.  The HDFC Bank also issued an email to the opposite party for arrears of interest regarding the loan.    The 1^st opposite party states that it is the discretion of the opposite parties to refund the margin amount of Rs.20,000/-.  The 1^st opposite party states that if the complainant  settled the dues to the HDFC Bank, this opposite party is ready to refund the amount.   Therefore, there is no deficiency in service on the part of the 1^st opposite party and hence, the complaint is liable to be dismissed.

3.     In spite of receipt of notice the 2^nd opposite party has not appeared before this Forum and hence, the 2^nd opposite party was set exparte.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A6 are marked.  Proof affidavit of the 1^st opposite party is filed and documents Ex.B1 & Ex.B2 are marked on the side of the 1^st opposite party. 

5.      The points for consideration is:-

1. Whether the complainant is entitled to get return of the advance amount of Rs.20,000/- with interest at the rate of 18% p.a. as prayed for?
2. Whether the complainant is entitled to a sum of Rs.2,00,000/- towards compensation with cost as prayed for?

6.      On point:-

The 2^nd opposite party remained exparte.  The complainant and the 1^st opposite party filed their respective written arguments.  Heard the 1^st opposite party’s Counsel also.   The complainant pleaded and contended that on 26.07.2008, he approached the opposite parties for the purchase of TATA ACE Load Body vehicle and paid an advance of Rs.20,000/- through cheque drawn on Indian Overseas Bank, Pammal Branch is admitted.  Ex.A1 is the receipt dated:26.07.2008 issued by the 1^st opposite party. Ex.A2 is the Bank statement showing the debit of the said amount.   Further the complainant contended that for purchasing the vehicle, the opposite parties arranged loan through HDFC Bank, Chennai.  Inspite of repeated requests and submitting records, the HDFC Bank refused to sanction the loan.  Ex.A3 is the letter issued by the 2^nd opposite party to the complainant proves the said fact of refusal of loan eventhough it is arranged by the opposite parties.  Hence, the complainant requested the 1^st opposite party for refund of the advance amount of Rs.20,000/-.  But the 1^st opposite party failed and neglected to refund the amount.   Hence, the complainant was constrained to issue legal notice as per Ex.A4 dated:05.03.2009 which was duly acknowledged by the opposite parties 1 & 2 but has not sent any reply.  Since the opposite parties are not able to procure the loan, the complainant was not able to take delivery of the vehicle.  On the other hand, the opposite parties failed and neglected to return the advance amount proves deficiency in service and unfair trade practice.

7.     The learned Counsel for the 1^st opposite party would contend that admittedly, the complainant paid a sum of Rs.20,000/- as margin money for purchasing a Tata Ace vehicle.  Due receipts also executed by the 1^st opposite party.  The complainant approached the HDFC Bank for loan to purchase the vehicle.  Even after sanctioning the loan, the complainant has not availed the loan and failed to take delivery of the vehicle.   But the opposite parties has not produced any document to prove that the complainant himself approached the HDFC Bank for loan and the loan was sanctioned in right time.  On the other hand, as per Ex.A3 issued by the executive of the 1^st opposite party, it is very clear that the HDFC Bank refused to sanction the loan.  Further the contention of the 1^st opposite party is that this case is to be dismissed for non-joinder of necessary party the HDFC Bank.  But on a careful perusal of records and pleadings, it is seen that the opposite parties alone initiated the loan in favour of the complainant and was refused by the HDFC Bank as per Ex.A3.  Further the contention of the 1^st opposite party is that the refund of the margin money demanded by the complainant cannot be accepted because HDFC Bank sanctioned the loan and the complainant has not come forward to avail the loan and took delivery of the vehicle.  The HDFC Bank also issued an email to the opposite party for arrears of interest regarding the loan.  But the HDFC Bank has not issued any letter to the complainant who shall be the actual creditor for recovery of the alleged interest amount.   Hence, the HDFC Bank is not a necessary party in this case.  

8.     Further the contention of the 1^st opposite party is that it is the discretion of the opposite parties to refund the margin amount of Rs.20,000/-.  If the complainant  settled the dues to the HDFC Bank, this opposite party is ready to refund the amount; is not acceptable.  Because what is the lien between the 1^st opposite party and HDFC is not explained in this case.  On the other hand, the executive of the 1^st opposite party issued a letter as per Ex.A3 stating that HDFC Bank refused the loan.  The allegation of the 1^st opposite party is that the HDFC Bank issued the cheque also not acceptable because there is no iota of evidence with details furnished in this Forum proves that the opposite parties deliberately withhold the advance amount of Rs.20,000/- proves the deficiency in service.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 & 2 shall refund a sum of Rs.20,000/- being advance amount paid with interest at the rate of 9% p.a. from the date of complaint to till the date of this order with a compensation of Rs.10,000/- towards mental agony with cost of Rs.5,000/-.

In the result, this complaint is allowed in part.   The opposite parties 1 & 2 are jointly and severally liable to refund a sum of Rs.20,000/- (Rupees Twenty thousand only) being advance amount paid with interest at the rate of 9% p.a. from the date of complaint (i.e.) 29.06.2009 to till the date of this order (i.e.) 01.03.2019 and to pay a sum of Rs.10,000/- (Rupees Ten thousand only) towards compensation for deficiency in  service mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 01^st day of March 2019. 

 

MEMBER-II                                                              PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

		Copy of receipt issued by the 1st opposite party
		Copy of the complainant’s Bank Statement
		Copy of undertaking letter issued by the 2nd opposite party
		Copy of legal notice of the complainant to the opposite parties
		Copy of acknowledgement card from the 1st opposite party for the receipt of the above legal notice
		Copy of acknowledgement card from the 2nd opposite party for the receipt of the above legal notice

 

1^ST OPPOSITE PARTY SIDE DOCUMENTS:-

Ex.B1	31.10.2008 and 03.11.2008	Copy of emails from HDFC to the 1st opposite party
Ex.B2		Copy of Customer Order Form

 

 

MEMBER-II                                                              PRESIDENT