Date of Complaint Filed: 22.06.2016                                            

                        Date of Reservation       : 25.05.2022

                                    Date of Order                 : 16.06.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

Present:    TMT. B. JIJAA, M.L.,                                             : PRESIDENT

                   THIRU. T.R. SIVAKUMHAR, B.A., B.L.,            :  MEMBER I 

                   THIRU. S. NANDAGOPALAN., B.Sc., MBA.,      : MEMBER II

CONSUMER COMPLAINT No.240/2016

THURSDAY, THE 16^thDAY OF JUNE 2022

D. Kamalraj,

S/o. M. Dhanasekaran,

2, Alamelu Mangapuram,

Sengundram Road,

Singaperumal koil,

Kanchipuram District.                                                  … Complainant

-Vs-

1.M/s. Bajaj Finance Ltd.,

   Rep. by its Authorised Signatory,

   Consumer Durable Division,

   Raheja Towers (2^nd Floor),

   177, Anna Salai,

   Chennai – 600 002.

2.M/s. Bajaj Finance Ltd.,

   Rep. by its Authorised Signatory,

   Survey: 208/1-B, 4^th Floor,

   Viman Nagar, Pune,

   Maharastra – 411 014.                                          … Opposite Parties

******

Counsel for the Complainant        : M/s. S. Guru Moorthy

Counsel for the Opposite Parties   : M/s. M. Arunachalam

        On perusal of records and after having heard the oral arguments of Complainant and on endorsement  having treated the Written Arguments of Opposite Parties as Oral Arguments of Opposite Parties, we delivered the following:

ORDER

Pronounced by the President TMT. B. JIJAA, M.L.,

1.   The complainant has filed this complaint as against the Opposite Parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to pay a sum of Rs.1,00,000/- to the Complainant towards the mental agony and physical sufferings along with cost.

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

        The Complainant had received a phone call from Ms.Monica of 1^st Opposite Party  who offered loan and requested to come to M/s Vasanth & Co.,T.Nagar Branch for loan approval. Upon believing her assurance, the Complainant went there on 23.08.2015, where she collected the Complainant’s cheques, photo copies of Pan Card, Pay slip, rental agreement and Voter Identity Card. She had swiped the Complainant’s Credit Card for a sum of Rs.100/- who requested to wait 1 week for loan approval. After a lapse of 1 week not even a single rupee has been credited to his bank account. Hence, he called Ms.Monica regarding loan approval, but she failed to respond. To his surprise, on 9.09.2015, he received SMS to his phone from the 1^st Opposite Party demanding EMI  of Rs.3,570/- out of total amount of Rs.49,980/- for alleged purchase pf SAMSUNG LED through A/c No.4030CD14720345. Upon suspicion on Ms.Monica who collected documents from him and then realized that the same were misused by them. The Complainant caused legal notice to the Opposite Parties on 21.12.2015 to initiate appropriate criminal proceedings against Ms.Monica and to stop sending reminder for the alleged EMI payment for loan A/c No.4030CD14720345, which was acknowledged on 23.12.2015 by the Opposite Parties and also Ms.Monica was arrested by Inspector of Police (crime), R1-Mambalam Police Station in F.I.R.No.416/2016. Even after acknowledgment of legal notice, the 1^stOpposite Party was sending sms and making calls to the Complainant demanding the alleged EMI which reveals an unfair trade practice causing great hardship and mental agony to the Complainant. Hence this complaint is filed.

3.        Written Version of the Opposite Parties in brief:-

        The Complaint is defective as no company exist in the name of “Bajaj Finserv Ltd” and the name of the company is “Bajaj Finance Limited and hence the complaint deserves to be dismissed at the outset. The Complainant purchased a SONY LED from M/s Vasanth and Co., T.Nagar for Rs.32,125/-. The monthly EMI to be paid is Rs.32,125/-. and the contract period is for 18 months vide Loan No.4030CD14720345. The loan has been disbursed. Further the said Ms.Monica is not at all connected with the answering Opposite Party instead she is broker who helps the customers in availing the loan by collecting the KYC Documents.  The said Monica has no right to represent or solicit the business for the answering Opposite Party. That the product has not been delivered to the Complainant house nor any loan amount has been credited in the Complainant’s account and after there was a suspicion towards the said Monica who collected the documents from the Complainant and as on date there was already an FIR registered and the said Ms.Monica has been arrested by the Inspector of Police (Crime), R1 Mambalam Police Station by FIR No.416/2016. There has been a fraud committed by the said Ms.Monica and the loan has been raised as per the  documents provided by the dealer, hence the dealer should be made a party. There is Dealer Agreement between the Opposite Party and M/s Vasanth and Co. As per the Dealer Agreement, the dealer does the activities of Sourcing the Customer, executing the Loan Agreement, preparation of invoice and delivery of product. The entire documents with regard to the Complainant’s loan is made by the dealer and on the basis of the said documents the Opposite Party has disbursed loan amount of Rs.32,125/- to the dealer and therefore the Complainant with regard to the product delivery and loan disbursement, the issues shall be raised with the dealer and not with this Opposite Party. This Consumer Forum does not have jurisdiction to entertain this complaint by virtue of Clause No.32 of the Terms and condition-Consumer Durable and IT Products which has been signed by the Complainant, as per the said Clause, in case of dispute all claims will be referred to the Sole Arbitrator appointed by the Complainant. As on date the net receivable with regard to  the said loan account No. 4030CD14720345 is Rs.49,980/-. The Opposite party denied the receipt of legal notice date 21.12.2015 and the allegation of defect / deficiency in service is untenable and hence requested to dismiss the complaint.

4.     The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-4 are marked. The Opposite Parties had submitted Proof Affidavit and Written Arguments and on the side of the Opposite Parties documents Ex.B-1  and Ex.B-2 are marked.

5.       The Points for consideration are:-

1. Whether there is any Unfair trade practice on the part of the Opposite Parties?

2. Whether the Complainant is entitled to get reliefs as claimed in the complaint?

3.To what relief, the Complainant is entitled to?

6.      Point No.1

The contention of the Complainant is that on 23.08.2015 one Ms.Monica had assured the Complainant of getting loan from the Opposite Parties and collected cheques, photo copies of Pan Card, Pay slip, rental agreement and Voter Identity Card from the Complainant and also swiped the Credit Card for a sum of Rs.100/-. Later when the Complainant contacted Ms.Monica she failed to respond. However, without obtaining any loan, the Complainant received an SMS demanding EMI for a sum of Rs.3,570/- out of the loan amount of Rs.49,980/- . Hence, the Complainant had sent Ex.A-1, legal notice  to the Opposite Parties to initiate appropriate criminal proceedings against Ms.Monica and Mr.Karthikeyan and not to demand payment towards Loan A/c 4030CD14720345. Even after receipt of the legal notice the Opposite Parties had not given any reply. It was contended that Ms.Monica was arrested by Inspector of Police (crime), R1-Mambalam Police Station in F.I.R.No.416/2016.

The Opposite Parties contended that the Complainant had purchased a Samsung LED from M/s Vasanth and Co., T.Nagar for Rs.32,125/-. vide Loan No.4030CD14720345. The monthly EMI to be paid is Rs.1,785/-. and the contract period is for 18 months. The loan has been disbursed. Further the said Ms.Monica is broker who helps the customers in availing the loan by collecting the KYC Documents.  There has been a fraud committed by the said Ms.Monica and the loan has been raised as per the  documents provided by the dealer, hence the dealer should be made a party. As on date the said net receivable with regard to Loan No.4030CD14720345 is Rs.49,980/-.

Mere allegation made by the Opposite Parties that this Commission does not have jurisdiction to entertain this complaint by virtue of Clause No.32 of the Terms and conditions-Consumer Durable and IT Products and as per the said Clause, in case of dispute all claims will be referred by the Sole Arbitrator appointed by the Complainant, without producing the Agreement alleged to have been executed by the Complainant, and even otherwise the existence of Arbitration clause in an Agreement would not preclude this Commission from entertaining the Complaint.

The contention of the Opposite Parties that the loan has been sanctioned as per the documents provided by the dealer and hence the dealer M/s Vasanth and Co., should have been made as a party to the Complaint is not sustainable as the whole case of the Complainant is that he has not received any product from the dealer nor any proof has been filed by the Opposite Parties to that effect. While so, as the Opposite Parties had demanded payment of EMI for the alleged loan, this complaint came to be filed. Hence the dealer M/s Vasanth & Co., is not a necessary party to the Complaint.

        Ex.B-1 is the Statement of the Account of the Opposite Party, which reveals that on 07.11.2015, for the instalment due of Rs.1,785/- Post Dated Cheque received for a sum of Rs.3,570/- was presented for clearance and the same was dishounoured as Insufficient funds. Subsequently payment of instalment amounts vide Post Dated Cheques were dishonoured and received through cash. The Statement of Account filed by the Opposite Party reflects net receivable as on 04.10.2016 with regard to Loan No.4030CD14720345 is Rs.43,330/-. It is not clear as to how for EMI of Rs.1,785/- Post Dated Cheques for Rs.3,570/- was issued by the Complainant.

Except the Statement of Account, the Opposite Party has not produced any Sanctioned letter issued in favour of the Complainant, Loan Agreement  entered into with the Complainant and other connected documents to prove that the Complainant had entered into a Loan Agreement with the Opposite Parties. Even the Statement of Account reveals that for the EMI of Rs.1,785/- Post Dated Cheques for Rs.3,570/- was alleged to be issued by the Complainant, which would clearly show that the Opposite Parties without verifying the details of the customer in person had disbursed the loan amount to a wrong person other than the Complainant.

When the Complainant had issued Ex.A-1, legal notice to the Opposite Parties on 21.12.2015 not to demand payment towards Loan A/c 4030CD14720345,  for which no reply was issued by the Opposite Parties. It is improbable for the Complainant to issue Post Dated Cheques for Rs.3,570/- as against the instalment due of Rs.1,785/-. Further the Opposite Parties themselves had admitted that fraud has been committed by the said Ms.Monica and the criminal proceedings was initiated against the said Ms.Monica  which would also clearly show that the Opposite Parties had disbursed the loan amount to a wrong person other than the Complainant.

The Opposite Parties for the purpose of promoting their Finance business has adopted unfair method by falsely misrepresenting the Complainant that loan would be sanctioned and collected vital documents, consequently fake account was created in the name of the Complainant, without even producing any authenticated proof for sanctioning of loan to the Complainant, had filed statement of Account Ex.B-1 as if the loan was sanctioned and Post Dated Cheques issued by the Complainant towards instalments would clearly amounts  to Unfair trade practice.

7.      Point Nos.2 and 3:-

In view of the discussions above, the Opposite parties 1 and 2  are liable to pay compensation of Rs.25,000/- for the unfair trade practice committed by the 1^st and 2^nd Opposite Parties and also towards  mental agony and pains suffered by the Complainant, and to pay a sum of Rs.5,000/- towards litigation cost. Accordingly Point No.2 and 3 are answered.

In the result, this complaint is allowed in part.  The Opposite Parties 1 and 2 are jointly and severally directed to pay compensation of Rs.25,000/- (Rupees Twenty Five Thousand Only) for the unfair trade practice  committed by the 1^st and 2^nd Opposite Parties and also towards  mental agony and pains suffered by the Complainant, and to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards litigation cost,   within 8 weeks from the date of this Order, failing which the above amounts shall carry interest at the rate of 6% per annum from the date of this Order till date of realization.

In the result this complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 16^th of June  2022.

S. NANDAGOPALAN                T.R. SIVAKUMHAR                B.JIJAA

     MEMBER II                           MEMBER I                         PRESIDENT

List of documents filed on the side of the Complainant:-

List of documents filed on the side of the Opposite Parties:-

S. NANDAGOPALAN                T.R. SIVAKUMHAR                B.JIJAA

     MEMBER II                           MEMBER I                        PRESIDENT