11.03.2016

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 is directed by the Complainant assailing the judgment and order dt. 17.9.2013 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas in Complaint Case No. 247/2013, directing the OP No. 1 to pay to the Complainant Rs. 40,000/- in all with a liberty to the OP No. 1 to realize from the OP No. 2 Rs. 4,000/- which was deducted by the OP No. 2 from the account of the Complainant for ‘bouncing’ of EMIs.

          Facts of the case, as emanating from the materials on records, are, in short, that the Appellant/Complainant made an arrangement on 26.9.2012 with the Respondent No. 1/OP No. 1 for purchase of a new car ‘Hyundai Eon Magna (+) (S) LPG/White’ for Rs. 3,83,486/- against exchange of his pre-used/second-hand car of ‘Hyundai Getz Prime CRDI (Diesel)’ which was valued by the Respondent No. 1/OP No. 1 at Rs. 2,43,000/- and accordingly, the Appellant/Complainant handed over his pre-used/second-hand card worth Rs. 2,43,000/- to the Respondent No. 1/OP No. 1 and paid Rs. 6,000/- on 26.9.2012 by Credit Card.  The new car was assured by the Respondent No. 1/OP No. 1 to be delivered on 9.10.2012.  The new car was planned to be purchased by a new car loan from the Respondent No. 2/OP No. 2, as was done earlier (Loan A/c No. 17656072) in case of purchase of the pre-used/second-hand car under the mode of exchange in question, upon liquidating the previous car loan.  At the time of such negotiation the outstanding amount of the previous car loan was Rs. 2,49,000/- which was assured to be settled by the Respondent No. 1/OP No. 1 taking into account the value being Rs. 2,43,000/- of the pre-used/second-hand car so handed over to the Respondent No. 1/OP No. 1 together with the payment of additional amount of Rs. 6,000/- by Credit Card. 

Thereafter, when the Appellant/ Complainant had been receiving Notices from the Respondent No. 2/OP No. 2 for repayment of the previous car loan, the Appellant/Complainant came to know that the Respondent No. 1/OP No. 1 ‘mistakenly’ issued Loan-repayment Cheque in the name of one Mr. Ankur Roy, Doltala (A/c No. 16210224) instead of Mr. Ankur Kumar Roy (Loan A/c No. 17656072) being the Appellant/Complainant.  As a result, the Respondent No. 2/OP No. 2-Bank closed on 20.10.2012 the loan account of Mr. Ankur Roy instead of the loan account of Mr. Ankur Kumar Roy being the present Appellant/Complainant. 

Noticing such mistake on behalf of the Respondent No. 1/OP No. 1 the Respondent No. 2/OP No. 2-Bank issued letter dt. 14.5.2013 to Mr. Ankur Roy, the Loan Account of whom was mistakenly closed,  along with copies to the present Appellant/Complainant and the Respondent No. 1/OP No. 1 requesting the Mr. Ankur Roy, who is not related to the Loan Account in question, to repay the unpaid loan amount, but no  response was received from the said  Mr. Ankur Roy.  Then the Respondent No. 2/OP No. 2-Bank reversed the account of Mr. Ankur Roy and credited the same in favour of  Mr. Ankur Kumar Roy being the Appellant/Complainant and closed the Loan A/c No. 17656072 on 19.6.2013 as averred by the Respondent No. 2/OP No. 2-Bank in its Written Version (Running Page-97 of Memo of Appeal) supported by Bank Statement dt. 18.7.2013, marked as Annexure-D. 

Consequent upon such circumstances, the Appellant/Complainant was severely harassed and was denied the use of both the second-hand car, which was handed over to the Respondent No. 1/OP No. 1 on 26.9.2012 as part of exchange scheme, and the new car as well, which was not delivered to the Appellant/ Complainant by the Respondent No. 1/OP No. 1 because of non-sanction of loan as averred in the Petition of Complaint.  With this factual background of alleged deficiency in service on the part of the Respondents/OPs,  the Complainant moved the Complaint concerned before the Ld. District Forum with prayer for compensation of Rs. 4,00,000/- in total on account of mental agony, harassment and negligence apart from legal expenses.  The Ld. District Forum passed the order impugned in the manner stated at the outset.  Dissatisfied with such order the Complainant preferred the present Appeal with prayer for enhancement of compensation to a reasonable extent.

The Ld. Advocate for the Appellant/Complainant submits that the Respondent No. 1/OP No. 1 admitted in their letter dt. 5.1.2013, as available on records, to the effect that the Respondent No. 1/OP No. 1 mistakenly closed the Car Loan Account of one Mr. Ankur Roy instead of the Car Loan Account of  Mr. Ankur Kumar Roy being the Appellant/Complainant.

The Ld. Advocate continues that the Respondent No. 1/OP No. 1 despite having detailed particulars about the identity of the Appellant/Complainant as the earlier Car Loan related to the second-hand car now put in exchange was also obtained through the Respondent No. 1/OP No. 1, issued cheque in relation to closure of the car loan of the Appellant/ Complainant in favour of one Mr. Ankur Roy having different loan account (No. 16210224), different model of car and registration number.

The Ld. Advocate also submits that as a result of non-closure of car loan of the Appellant/Complainant, the Appellant/Complainant was not provided with the car loan for the second time related to the new car under exchange scheme, which resulted in immense mental agony and harassment of the Appellant/Complainant and injury to social status as also denial of use of both the second-hand cars which was already handed over to the Respondent No. 1/OP No. 1 and the new car  under exchange scheme  which was not supplied by the Respondent No. 1/OP No. 1 to the Appellant/Complainant because of non-sanction of the loan for the second time for the new car.

          The Ld. Advocate further submits that the aforesaid facts and submission clearly indicate gross deficiency in service mainly on the part of the Respondent No. 1/OP No. 1 in collaboration with the Respondent No. 2/OP No. 2.

           The Ld. Advocate finally submits that in view of the magnitude of deficiency in service on the part of the Respondent No.1/OP No. 1, as revealed from the aforesaid submission, the compensation awarded by the Ld. District Forum appears to be considerably unreasonable and hence, the same should be enhanced duly to recompense the Appellant/Complainant as also to bring about the qualitative change in the manner of performance of service by the Respondents/OPs, particularly the Respondent No. 1/OP No. 1.  In this connection, the Ld. Advocate relies on a decision of the Hon’ble National Commission in C.L.Khanna Vs. Dena Bank, decided on 2.9.2005 in Original Petition No. 70 of 2012.

          On the other hand, the Ld. Advocate for the Respondent No. 1/OP No. 1 submits that ‘Mukesh Hyundai’ being a brand-name but not a juristic person, the Complaint concerned is not maintainable in the name of the Respondent No. 1/OP No. 1.

          The Ld. Advocate also submits that the mistake in the cheque related to closure of the Car Loan Account, as was issued in the name of one Mr. Ankur Roy instead of Mr. Ankur Kumar Roy being the Appellant/Complainant, was a bonafide typographical mistake and hence, the same does not constitute deficiency in service on the part of the Respondent No. 1/OP No. 1.

          The Ld. Advocate for the Respondent No. 2/OP No. 2 submits that the Respondent No. 2/OP No. 2-Bank closed the Loan Account of one Mr. Ankur Roy following the mention of the name of the payee in the cheque concerned as the Respondent No. 2/OP No. 2-Bank was duty-bound, and that for any mistake in the mention of the name of the payee in the cheque concerned by the Respondent No. 1/OP No. 1, the Respondent No. 2/OP No. 2-Bank should not be held responsible.

          The Ld. Advocate adds that despite no mistake on their part in closing the Car Loan Account of unrelated Mr. Ankur Roy, the Respondent No. 2/OP No. 2-Bank by their letter dt. 22.4.2013 informed the unrelated Mr. Ankur Roy to regularize the Loan Account or else the Respondent No. 2/OP No. 2-Bank shall reverse the amount of Rs. 2,49,998/- in favour of Mr. Ankur Kumar Roy being the Appellant/Complainant and accordingly, closed the Car Loan Account of Mr. Ankur Kumar Roy being the Appellant/Complainant on 19.6.2013 (Running Page-102 of Memo of Appeal) by way of reverse credit of the same without getting any response from the unrelated Mr. Ankur Roy.

          We have heard both the sides, considered their respective submission and perused the materials on record.

          The letter dt. 5.1.2013 (Running Page-43 of Memo of Appeal) issued by the Respondent No. 1/OP No. 1 in the letter-pad of its name to Mr. Ankur Roy, unrelated to the Car Loan Account in question, clearly reveals the admission by the Respondent No. 1/OP No. 1 about its mistake in closing the Car Loan Account No. 16210224 instead of the Car Loan Account No. 17656072 which was in the name of the Appellant/Complainant.  No evidence is adduced by the Respondent No. 1/OP No. 1 about the bonafide of such mistake.   As against it, it transpires that the Respondent No. 1/OP No. 1, despite having detailed particulars of the Appellant/Complainant as the earlier loan of the second-hand car put in exchange in question was also obtained through the Respondent No. 1/OP No. 1, issued cheque in favour of unrelated Mr. Ankur Roy instead of Mr. Ankur Kumar Roy, the Appellant/Complainant.

          The Bank Statement dt. 18.7.2013 (Running Page-94 of Memo of Appeal), as available on records, reveals that the Car Loan Account No. 17656072 of the Appellant/Complainant was closed by the Respondent No. 2/OP No. 2-Bank on 19.6.2013, i.e. after expiry of almost eight months when counted from the date of handing over the second-hand car and payment of Rs. 6,000/- by Credit Card being 4.10.2012 and the assured date of delivery of the new car in exchange being 9.10.2012.

          Despite such closure of the Car Loan Account of the Appellant/Complainant the Credit Information Bureau India Limited is still showing the Appellant/Complainant as a defaulter which is an injury to the social status of the Appellant/Complainant.

          As regards the argument of the Respondent No. 2/OP No. 2-Bank that ‘Mukesh Hyundai’ being a brand-name but not a juristic person the instant Complaint is not maintainable, it is suffice to say that such argument at this stage does not stand to reason as the Delivery Challan dt. 28.11.2010 (Running Page-23 of Memo of Appeal), Money Receipt No. 922 dt. 4.10.2012 (Running Page-36 of Memo of Appeal), Receiving Delivery Note (Running Page-37 of Memo of Appeal) and other allied documents, as available on records, had been issued only in the name of ‘Mukesh Hyundai’ suggesting thereby that ‘Mukesh Hyundai’ was concerned with the transaction in question.

          The aforesaid facts, the evidence on records and the submission on behalf of the Ld. Advocate for the Appellant/Complainant undisputedly establish the great magnitude of the deficiency in service as well as negligence on the part of the Respondent No. 1/OP No. 1 and the compensation awarded by the Ld. District Forum appears to be an unreasonably meagre.

          Therefore, we are inclined to modify the impugned judgment and order by enhancing the compensation to Rs. 4,50,000/-, which appears to be reasonable and equitable on account of abysmal mental agony, harassment, denial of use of  both the cars in question and also injury to social status of the Appellant/Complainant, to recompense the sufferer as also to bring about a qualitative change in the attitude of the Respondent No. 1/OP No. 1 in case of a proven deficiency in service as in the present case.  In this context, reliance is placed on a decision under the Consumer Protection Act, 1986 by the Hon’ble Supreme Court decided on 20.9.2000 in Civil Appeal No. 767 of 2000 (Charan Singh Vs. Healing Touch Hospital and others) wherein it has been held, “While quantifying damages, Consumer Forums are required to make an attempt to serve ends of justice, so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider”.

          The Appeal is allowed in part.  The Respondent No. 1/OP No. 1 is directed to pay compensation of Rs. 4,50,000/- to the Complainant/Appellant.

          The Respondent No. 2/OP No. 2-Bank is also directed to inform the Credit Information Bureau (India) Limited about the closure of the car loan of the Appellant/Complainant in order to correct its records.

          The other directions of the Ld. District Forum are set aside.  The impugned judgment stands modified accordingly.