DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 16th day of May, 2019
C.D Case No. 86 of 2016
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Gangadhar Kuanar
S/o Bauli Kuanar,
Vill: Bhimnathpur,
Po: Dungura,
Ps: Khaira,
Dist: Balasore
……………………. Complainant
(Versus)
1. Sangeeta Motors
At: Bonth Chhak,
Po/Ps/Dist: Bhadrak
2. Branch Manager,
HINDUJA LEYLAND FINANCE Ltd.,
Near Hotel Tarini Continental,
N.H- 5, At: Dahanigadhia,
Po: Charampa,
Dist: Bhadrak
…………………………..Opp. Parties
Advocate For the Complainant: Sri J. B. Agasti & Others
Advocate For the OP No. 1: Ex-parte
Advocate For the OP No. 2: Sri G. P. Mohanty & Associates
Date of hearing: 28.03.2017
Date of order: 16.05.2019
SRI RAGHUNATH KAR, PRESIDENT
That, the complainant has alleged against the O.Ps having aggrieved with their deficiency in service. That, the complainant has purchased a Auto Rickshaw passenger vehicle bearing Regd. No- OD-22C-2391 on dt. 20.10.2014 by finance through OP No. 2 further the complainant states that he has purchased the said vehicle by loan for maintaining his livelihood. That, the complainant has firstly deposited money Rs 41,180/- to OP No. 1 as down payment for the said vehicle but the OP No. 2 has shown in account slip that Rs 37,500/- has paid down payment for the said vehicle. So the OP No. 1 has grabbed the rest money Rs 3,680/- and OP No. 1 for the said activities has committed & serious deficiency in service by suppressing real truth. So the complainant has sent a legal notice to OP No. 2 on dt. 16.02.2016 for the same. But the OP No. 2 has not given clear picture with regard to same. That, the complainant has also given another complaint on dt. 17.11.2014 that the said vehicle is not running smoothly due to default of the said vehicle engaged and no water service is supplied properly as per the terms and conditions. Now due to machinery defect the said vehicle is not running smoothly and the said vehicle is standing in front of the complainant’s house. So the complainant has sent a legal notice on dt. 16.022.106 for return the excess amount and to repair the said Auto Rickshaw. But the OP No. 2 remained silent. So again the complainant approached the OP No. 1 and 2 on dt. to return the said Rs 3,680/- to the complainant. But the O.Ps did not listen the request of the complainant. So having no alternative way the complainant has filed this dispute case before this Forum for getting relief. That, the cause of action arose on 16.02.2016 when the complainant sent legal notice and further the cause of action arose on 16.07.2016 when the complainant refused to return the said excess money and refused to repair the said.
The complainant has sought for the following reliefs:-
1. The O.Ps be directed to return the said amount Rs 3,680/- to the complainant.
2. The O.Ps be directed to replace the said Auto Rickshaw or any suitable order be passed in favour of the complainant.
3. The cost of the proceeding be given to the complainant.
4. The O.Ps be directed to pay Rs 10,00000/- (Ten Lakhs) for his mental agony and other tension.
5. Any other relief the complainants entitled to be given.
Documents relied upon by the complainant.
1. Xerox copy of money receipt.
2. Xerox copy of receive of amount slip.
3. RC Book bearing Regd. No OD-22C-2391.
4. Xerox copy of legal notice sent on 16.02.2016.
5. Xerox copy of postal receipt dt. 16.02.2106.
On the other hand the O.Ps appeared in this Forum through his concerned advocate along with their written version without any document. The OP No. 1 has not appeared in spite of receiving the notice. Hence he has been set ex-parte on 05.11.2016. The OP No. 2 has averred that the entire story of the case is false, frivolous, vexatious and not maintainable in the eyes of law. He has also averred that the complainant has no cause of action of this case. So the OP No. 2 has denied the averments of the complainant described in the complaint. He has also averred that the complainant has failed to make out the deficiency of service of OP No. 2. The complainant has submitted the money receipt which is Annexure- 1 vide amount Rs 41,180/- towards down payment of the vehicle. The OP No. 2 who is defying receiving such amounts as down payment. But he is admitting that the complainant has deposited Rs 37,500/- towards down payment. The OP No. 2 has suppressed the fact that who has kept the rest amount Rs 3,680/-. In this case the OP No. 1 have neither appeared in this Forum nor he has filed his written version. So the OP No. 1 has set ex-parte. OP No. 1 has suppressed the truth because of non filing and non appearance of this Forum. So we have held that there is clear evidence that the OP No. 1 has grabbed the residual amount Rs 3,680/-. It is a clear case of deficiency of service caused by the O.Ps. Had the OP No. 1 appeared and filed his written version the truth would have been come out to the lime light. The complainant has also made the complaint that the said Auto Rickshaw is suffering from manufacturing defects. So the cause of action of this case arose on 16.07.2016 when the complainant sent legal notice and the O.Ps refused to return the excess money.
OBSERVATION
On perusal of complaint, written version submitted by the O.Ps, material available on record and evidences adduced by the parties at the time of hearing it is observed as follows.
1. The complainant has claimed that he has paid a sum of Rs 41,180/- to Sangeeta Motors towards down payment as fixed by the O.Ps but it is reflected in loan account statement issued by the OP No. 2 that the financing agency has received only Rs 37,500/- towards down payment, service charge and documentation charges. It is therefore demanded by complainant to pay back the excess amount of Rs 3,680/- by OP No. 1. The complainant has also served notice through his advocate to pay back the amount which is not responded by O.Ps. On the contrary OP No. 2 responded in stating that the complainant has paid the amount to OP No. 1 but demanding to receive the amount from OP No. 2 which is in-genuine and illegal.
On perusal of materials on record it is observed that the complainant has paid the amount of Rs 41,180/- to OP No. 1 vide money receipt No. 86 on 20.10.2014 but has demanded before OP No. 2 for paying back the amount. Therefore OP No. 2 is not liable to pay back the amount to the complainant rather OP No. 1 is liable to pay the amount. But OP No. 1 has neither appeared before the Forum nor has submitted any written version for which it was set ex-parte. Therefore OP No. 1 is found guilty for remitting lesser amount to OP No. 2 which amounts to unfair trade practice.
Secondly the complainant has claimed for replacement of the vehicle in discussion as it suffers from various manufacturing defects. But the complainant has not included the manufacturer of the vehicle as a party to this case and therefore the allegation brought against the manufacturer is not sustainable. Hence it is ordered;
- ORDER
The complaint be and the same is allowed ex-parte on part against OP No. 1. The OP No. 1 is directed to pay an amount of Rs 3,680/- together with interest @ of 10% P. A and Rs 1,000/- as cost of litigation within a period of 30 days from the date of order failing which additional interest @ 7% shall be charged on the ordered amount.
This order is pronounced in the open Forum on this day of 16th May, 2019 under my hand and seal of the Forum.
