JUDGEMENT

          Complainant Bikash Kumar Nandi by filing this complaint has submitted that op no.3 a dealer of Motor Cars manufactured by TATA under the brand name Indica and all the ops for mutual gain are engaged in the business of selling brand new cars of TATA make others to prospective customers under Hire Purchase Scheme with finance provided by the op no.2.  With objectto promote the sale of Cars of TATA Make Indica Model (DSL), amongst the prospective customers, the ops, as agent, dealers and financers, for common and individual gain, jointly formulated and announced a scheme and issued public notice thereof, offering sale of new cars against exchange of old cars under Hire Purchase scheme with finance provided by op no.2.

          The complainant possessed motor car of TATA Make, Model Indica DLS, bearing Chasis No. P-8 2142, Engine No. P-7978IV having Motor vehicle registration No.WB-02 S 0942.  Being induced by the much publicized scheme and offer for sale of brand new car in exchange of old running car under Hire Purchase scheme with finance provided by the op no.2, the complainant approached the op no.1 the sales agent of op no.2 & 3 to avail of the offer of purchase of brand new motor car of TATA, Indica Model (DSL) against exchange of the said complainant’s car with finance provided by op no.2.

          The officers of the ops after inspection of the complainant’s scheme represented and explained to the complainant the details and of the benefit of the scheme offered, the gist and as per said sale offered scheme the total sum of the TATA Motor, Model Indica (DSL) was fixed at a price of Rs.4,16,000/- whereas the assessed value of the old car of the complainant was Rs.2,00,000/- and also the down payment of Rs.16,000/- and in exchange along with payment of Rs.16,000/- being a total sum of Rs.2,16,000/- would be treated as down payment adjusted against the fixed price and balance Rs.2,16,000/- is payable for the new car.

          So, as per said scheme for getting new car against exchange of his old car he is liable to pay only to Rs.2,00,000/- for the new car and said amount shall be repaid with the interest in equally 36 monthly installments of Rs.6,860/- by issuance of postdated cheques and offer for sale of the brand new car in exchange of old car with finance provided by the op no.2 would be under Hire Purchase scheme to be entered in between the complainant and the op no.2.

          The complainant without suspecting any ill motive of the ops accepted the offer and agreed to purchase the brand new car of TATA make Model Indica (DSL) offered for sale by the ops against exchange of the complainant’s old car under Hire Purchase agreement to be entered with the op no.2 on the terms as produced by the ops and complainant accepted the offer to purchase under the said scheme of ops and handed over the complainant’s said old car to op no.1 and the sum of Rs.16,000/- in cash which was duly received under delivery note signed and sealed by op no.1 on 24.08.2007 at 7:00 PM.

          In terms of the said scheme the complainant on delivery of the old car and the payment of Rs.16,000/- in cash had done his part in making the down payment of Rs.2,16,000/-.  Op no.2 acknowledged the payment of Rs.2,16,000/- by the complainant under the said scheme on account of down payment sanctioned and disbursed the balance part payment of the price of the brand new car agreed to be sold under the said scheme being Rs.2,00,000/- as loan repayable by the complainant with interest in 36 equal monthly installment.  After the down payment of Rs.2,16,000/- in the manner as aforesaid, the complainant as directed signed printed forms bearing blank spaces and also subscribed his hand in blank Demy papers and Stamp papers in the office of op no.2 on the representation that the same would be required for preparing the Hire Purchase agreement and supporting documents and copies thereof on completion would be supplied to the complainant at the time of completing the sale and handing over the new motor car selected for purchase by the complainant.

          As directed by the op no.2, the complainant issued 36 postdated cheques of Rs.6,860/- on account of the balance price of Rs.2,00,000/- of the brand new car offered for sale favouring the op no.2 with interest.  Complainant having done and complied all the terms of the scheme of the offer of the ops as aforesaid stated became entitled to have the brand new car of TATA make, Indica Model (DSL) with registration and insurance made in his name, with full paid up Road Tax and the ops were jointly and severally liable to deliver the brand new car of TATA make model as selected with registration, insurance cover and paid up road tax to the complainant with all right, title and interest to hold, possess and use the said brand new car subject to realization of the balance price by encashment of the postdated cheques issued in favour of the op no.2

          The op no.2 to confuse and cheat the complainant in the deal of purchase of the car under the said scheme of exchange and Hire Purchase, provided a unregistered car of TATA make model Indica, marked for show room display for test drive on 23.08.2007 and the same in course of test drive due to mechanical defect met with an accident.  The ops as owners of the said display car took back the said display car provided for test drive and assured delivery of brand new car free from defect with all papers and documents of title, registration, insurance and paid up road Tax in the name of the complainant bearing the endorsement of hypothecation with the op no.2.         

          The ops after taking delivery of the complainant’s old car given in exchange and appropriating down payment of Rs.2,16,000/- on account of the part payment of the price of the car encashed 3 postdated cheaues of Rs.6,860/- each issued on account of payment of the balance price of the car, without delivery and sale of the brand new car of TATA make, Indica Model (DSL) with registration, in favour of the complainant, with paid up road tax and insurance, in utter disregard of fair trade practice committed encashed three of the postdatedcheques out of the 36 post Cheques issued on account of repayment of the financed balance price of the car agreed to be sold being Rs.2,00,000/- along with interest.

          The complainant being confronted with the fraudulent encashment of the postdated cheques intimated the Bank on which the said postdated cheques were drawn to stop payment and not to honour the cheques any further.  On intimation of the non-delivery of the brand new car agreed to be sold under the said scheme against the down payment of Rs.2,16,000/- as aforesaid and the objection raised for illegal encashment of the free postdated cheques, the op no.2 acknowledged the non delivery of the brand new car agreed to have been sold under the said scheme, was pleased to refund the amount covered under the said 3 postdated cheques which were encashed.

          Subsequently the complainant issued a letter on 17.04.2008 through his Advocate to the op nos. 1 & 2 demanding delivery of the brand new car sold and or refund of the money paid on account of purchase of the car under the said scheme and the assessed value of the old car given in exchange under the scheme.  It is further alleged that ops’ acts and omission of non-delivery of the brand new car of TATA make model Indica (DSL) under the said exchange and Hire Purchase scheme despite down payment of Rs.2,16,000/- in the manner as aforesaid and execution of the purported blank stamp paper and other printed form bearing blank spaces on account of preparation of hire purchase agreement and issuance of postdated cheques on account of payment of the balance price of the card agreed to be sold with interest, financed by op no.2 under purported agreement is unfair trade practice and deficiency of service for which the complainant as consumer is entitled to file this complaint against the ops jointly and severally for the relief as prayed for.

          Further the complainant has alleged that due to the deficiency of service and for adopting unfair trade practice and for non-delivery of the new brand TATA car including encashment of 3 cheques without delivery of the car complainant suffered mental pain, agony, harassment and also huge loss and services of his old car and for which complainant has prayed for compensation and relief and also interest etc.

          Op no.2 HDFC Bank Ltd. by filing written statement submitted that in terms of loan agreement between the op and the complainant, complainant is liable to pay the EMIs and the dues and the present complaint is not maintainable against the op no.2 and further submitted that in or about August, 2007 the complainant approached the op no.2 for a car loan and represented to the op that the complainant desired to purchase a TATA Indica Diesel Motor Vehicle under an exchange scheme propounded by the op no.1 and complainant agreed to repay all his dues against such loan agreement without any objection and clarification or protest.  Accordingly an agreement was executed in between the op nos. 1 & 2 on 01.09.2007 and the op no.1 granted the said loan of Rs.2,00,000/- to the complainant and the requisite disbursement would be made directly to the op no.1 and the said loan would be secured by the hypothecation for new brand motor vehicle.  Subject to repayment of same in equal 36 EMIs commencing on and from 07.10.2007 and it is admitted by the op that op no.2 made the requisite disbursement to the op no.1 on account of complainant.  But the complainant inspite of being bound and obliged to duly make payment of his dues under the said agreement, refused, failed and/or neglected to make payment of 30 installments which fell due on 07.02.2008 and all subsequent installments.

          So, up to 18.10.2011 the sum of Rs.3,61,550/- is due and payable by the complainant to the op and it is further alleged that the complainant is fully aware of the fact and in course of circumstances and observation of material fact of this case attempted to avoid making payment of his dues to the answering op no. 2 bank. 

          Further it is submitted that there was no privity of contract with the op nos. 1 or 3 with the op no.2 because op no.2 advanced the requisite sum on account of the complainant as per agreement and complainant is solely responsible for refunding the same to the op no.1.  So, the present complaint is not maintainable against the op no. 2 and same should be dismissed.

          Further op no.2 denied all allegations and also alleged that suspected delivery of motor vehicle is clearly between the complainant and the concerned dealer and also submitted that only to avoid payment of dues against loan account complainant brought frivolous allegation for which the present complaint should be dismissed against op no.2.

          But anyhow in this case other ops that is op nos. 1 & 3 have not appeared even after service of the notices duly upon them and also have not confronted the allegation of the complainant as made in the complaint against op nos. 1 & 3 and accordingly after accepting the material evidences on record including the document etc. as filed by the complainant against the op nos. 1 & 3 the case is closed finally after argument from both the sides and the case is heardexparte against op nos. 1 & 3.

Decision with reasons

          After taking in to account of the entire fact of the complaint including the written version of op no.2 and also considering the argument as advanced by the Ld. Lawyers of both the parties and further on overall assessment and evaluation of the evidence in chief and the material documents as filed by the complainant it is found that complainant no doubt for the purpose of purchasing one car of TATA make model Indica (DSL) from Pryam Motors Sales Pvt. Ltd. against package offer for getting such a new car against exchange of old one complainant had handed over one TATA Make, Model Indica DLS, bearing Chasis No. P-8 2142, Engine No. P-7978IV having Motor vehicle registration No.WB-02 S 0942   and fact remains as per said package offer complainant delivered his old car of TATA Make, ModelIndica DLS Registration No.WB02 S 0942 to the op Pryam Motors Sales Pvt. Ltd. on 24.08.2007 which was acknowledged by the op Pryam Motors Sales Pvt. Ltd. under acknowledgment receipt issued by the said Pryam Motors Sales Pvt. Ltd. and the valuation of the said old car was fixed Rs.2 lakhs and further complainant was asked to deposit of Rs.16,000/- and in such a manner complainant paid Rs.2,16,000/- to the op Pryam Motors Sales Pvt. Ltd. and total valuation of the new car was fixed Rs.4,16,000/-.  So, in respect of the balance amount of Rs.2 lakhs he took loan from HDFC Bank as per such package policy and that amount was paid by HDFC Bank against loan sanctioned by the HDFC Bank in favour of the complainant in respect of Rs.2 lakhs and thereafter op Pryam Motors Sales Pvt. Ltd. agreed to deliver the said new car and Pryam Motors Sales Pvt. Ltd. expressed that their business associates R.D. Motors on 23.08.2007 provided the details of the car placed in showroom to the complainant for trial.  But despite complainant’s representation to complete the sale, transfer and registration no step was taken to complete registration and transfer as per Motor Vehicle Act and in spite of payment of full consideration of new brand vehicle in his name was not handed over.  Moreover vehicle which was allotted to him for delivery was found that the said vehicle met with a road accident on 07.10.2007 and was totally damaged.  The accident was reported to Kamardanga Police Station and the damaged car is remained in the custody of R.D. Motors and fact remains against the consideration received in full for a brand new car with full insurance coverage was the contractual obligation both the of HDFC Bank and Pryam Motors Sales Pvt. Ltd.  But anyhow Pryam Motors Sales Pvt. Ltd. or R.D. Motors never handed over a brand new car of TATA Make, Model Indicafree from defects and no doubt Pryam Motors Sales Pvt. Ltd. or R.D. Motors have not challenged that fact.  But only the op no.2 HDFC Bank appeared and submitted that there was a contract in between the complainant and HDFC Bank op no.2 regarding sanctioned of loan and loan was sanctioned and that was paid to the op no.1.

          So, apparently considering the entire episode and factual aspect in between the complainant and op no.2 it is clear that complainant no doubt handed over his old car to Pryam Motors Sales Pvt. Ltd. and valuation of the old car was fixed at Rs.2 lakhs and as per advice and direction op no.1 he paid another Rs.16,000/- I.e. total he paid Rs.2,16,000/- as down payment and exchange of old car and also paid balance of Rs.2 lakhs by taking loan from HDFC Bank and that was also paid to HDFC Bank op no.2.  But no new brand car was handed over and it is also proved from the documents and materials that op nos. 1 & 3 tried to hand over a damaged car which faced an accident during trial by the op nos. 1 & 3.  In support of that practically that op nos. 1 & 3 did not take such step and did not try to defy this allegation by any means.

          In the above situation and also considering the testimony of the complainant and also some support of the op no.2 regarding payment of Rs. 2 lakhs by the complainant through op no.2 by taking loan from op no.2 in favour of op no.1 is well proved because op no.2 the HDFC Bank claimed repayment of the loan amount by complainant.  But truth is that up to date op nos. 1 & 3 have not handed over the new car to the complainant.  So, invariably in such a situation complainant is entitled to get back a new car or get refund of the entire amount of Rs.4,16,000/- with interest @ 12% p.a. over the same from op nos. 1 & 3 jointly.

          In this case it is to be mentioned that the TATA Motors had already declared by general publication in AnandabazarPatrikavery recently that R.D. Motors dealership is cancelled for adopting unfair trade practice by R.D. Motors and in this case it is also found that R.D. Motors through his business associates op no.1 also did not hand over new car in favour of the complainant with connivance of op no.1 even after receipt of old car by op no.1 whose value was fixed at Rs.2 lakhsand also Rs.16,000/- and another Rs.2 lakhs from HDFC Bank as loan disbursement loan amount in favour of the complainant which had been deposited to the account of op no.1.

          So, it is proved both op nos. 1 & 2 have adopted unfair trade practice and cheated this complainant in so many manners and most interesting factor is that the op nos. 1 & 3 did not think for a moment to return the amount or deliver a new car of TATA Make, Model Indica DSL.  But as because they are dishonest business men in the market and they have their no moral courage as honest business men to contest this case,so they did not contest even after receipt of the summons of this case which reflects that op nos. 1 & 3 deceived the complainant in so many manners and harassed and at the same time complainant has also failed to use his old car and in the light of the above observation we are convinced to hold that deficiency and negligence on the part of the op nos. 1 & 3 is well proved and at the same time it is proved that op nos. 1 & 3 jointly and connivance with each other have been running an unfair trade practice and they are deceiving different customers in different manners and they have no doubt deceived the present complainant by adopting unfair trade practice.

          In the view of the above findings and observation and decision the complaint succeeds.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed exparte against op nos. 1 & 3 but cost of Rs.10,000/- shall be paid by op nos. 1 & 3 each to the complainant.

          Op nos. 1 & 3 are hereby directed either to handover a new car of TATA Make, Model Indica DSL with recent manufacturing year in favour of the complainant within one month from the date of this order or to pay or refund sum of Rs.4,16,000/- with 12 % interest per annum in favour of the complainant and also for causing harassment and mental pain and agony op nos. 1 & 3 shall have to pay compensation of Rs.50,000/- in favour of the complainant.

          For adopting unfair trade practice by the op nos. 1 & 3 each shall have to pay punitive damages of Rs.25,000/- each to this Forum.

          Op nos. 1 & 3 shall have satisfy the decree and to pay the entire decretal amount as per spirit of this order within one month from the date of this order failing which or each day’s delay penal interest @ Rs.250/- shall be assessed till full satisfaction of the decree by the op nos. 1 & 3.        

          But the present complaint is dismissed against op no.2 because op no.2 advanced loan. So, complainant shall have to pay the loan amount and dues to the op no.2 HDFC Bank as per agreement of loan.