STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(First Appeal No.319 of 2009)

M/s Iqbal Motors, Civil Hospital Road, Kharar, Tehsil Kharar, District Mohali, through its Managing Director Mohammad Iqbal, Resident of Ward No.9, VPO Dhaga Mill Khanpur, Tehsil Kharar, District Mohali.

                   ..…Complainant

V E R S U S

1.                 Shri Gurbinder Singh Son of Shri Bhag Singh, r/o House No.1282, Sector-28-B, Chandigarh.

2.                 M/s Zeal TVS (Zimidara Engineering and Autos Pvt. Ltd.), SCO No.441-442, Sector-35-C, Chandigarh, through its Manager Mr. Kohli and Managing Director Mr. Vivek Ahuja. (H.No.26, Sector-9-A, Chandigarh).

3.                 HDFC Bank Limited, Plot No.20, Industrial Area, Phase I, Chandigarh through its Branch Manager (As per amended title).

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:      HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by: None for the appellant

                   Respondent No.1 exparte.

                   Sh. Sandeep Suri, Adv. for respondents No.2 & 3.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.                           This appeal is directed against the order dated 5.3.2009, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it accepted the complaint and OPs 1 & 2 were directed to pay full sale price of the motorcycle i.e. Rs.37,660/- alongwith interest @ 9% per annum w.e.f. the date of repossession, i.e.  14.2.2005 till realization alongwith Rs.20,000/- as compensation on account of physical harassment and mental agony and Rs.5,000/- as litigation costs.  It was further directed that if the OPs failed to comply with the order within a period of six weeks, they were to pay the aforesaid amount with penal interest @ 18% per annum w.e.f. 14.2.2005 till realization. 

2.                           The facts, in brief, are that the complainant purchased one TVS Centra Motor Cycle for a sum of Rs.37660/- on 13.11.2004, which was hypothecated with Centurion Bank.  Temporary No.PB05-T-8854 was issued by M/s Zimidara Engineering & Autos Private Limited near Railway Bridge, Ferozepur (OP-2 in the original complaint). The complainant initially paid a sum of Rs.4049/- on 30.11.2004 as down payment to OP No.1 in the presence and at the premises of OP-2, M/s TVS Zeal, Sector 35-C, Chandigarh.  The receipt had been issued by OP-1/appellant on 30.11.2004 to the complainant which is Annexure C-1. It was further stated that the said vehicle had been financed through Centurion Bank Limited (OP-3 in the original complaint).  OP-3 (now respondent No.3) had made the payment in favour of OP No.2 i.e. M/s Zeal TVS and the OP No.2 had received an amount of Rs.33,749/-. It was further stated that on 10.02.2005 OP-2 had credited the amount aforesaid in the account of OP-1/appellant vide receipt No.84 issued by it to him. On 14.02.2005, one representative of OP No.1 alongwith three or four musclemen visited the house of the complainant and stated that he did not make the full and final payment towards the TVS Motor Vehicle. The said representative, as well as the musclemen, had threatened the complainant that they will take over the vehicle.  They opened the lock of the vehicle  with duplicate key, forcibly and ran away from that place.  It was stated that OP-1/appellant, possessed the vehicle in a wrongful manner.  When OP-1 was requested to deliver back the vehicle, it refused to do so. A legal notice dated 9.3.2005 was served upon the OPs, but to no avail.  A complaint was also lodged with the SSP, Chandigarh, but no action was taken.  OP-1 filed a suit for declaration claiming the relief against OPs 2 & 3.  It was further stated that OPs were deficient, in rendering service, and also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed.

3.                           In the written reply filed by OP-1 (now appellant), it was pleaded that the complaint was not maintainable.  It was stated that the vehicle, in question, was purchased by the complainant from OP-1 who is the sub dealer of OP-2.  A sum of Rs.4,4049/- was paid by the complainant to OP-1 on 30.11.2004 as down payment.  It was further stated that after obtaining quotation of the sale price from OP-1, the complainant wanted to get the vehicle financed from OP-3.  OP-3 issued quotation in respect of the said Motor Cycle and issued D.O. letter in the name of OP-1.  It was further stated that OP-2, in connivance with the complainant and OP-3 took the remaining price of his Motor Cycle i.e. Rs.33749/- and got the draft or pay order encashed.   It was further stated that OP-3 was supposed to issue demand draft or pay order in favour of OP-2 and the same amount was again supposed to be credited in the account of OP-1, but OP-2, instead of doing so, got the same encashed itself.  It was further stated that OP-1 filed a civil suit before the Court of Civil Judge, Kharar, giving all the details of the transactions.  OP-2 filed reply stating that he had credited the amount of Rs.33749/- in the account of OP-1.  It was further stated that despite repeated requests no detail in regard thereto was provided.   It was further stated that OP-1 which sold the motorcycle to the complainant never received the remaining amount of Rs.33,749/-. It was further stated that there was neither any deficiency, in service, on the part of OP-1 nor did it indulge into unfair trade practice.

4.                           OP-2, in its written statement, admitted that it provided temporary number to the vehicle in question.  It was stated that as per the normal course of business dealings between OPs 1 & 2, in case of any sale of vehicle for which financing was required to be done, the payment could be made directly to OP-1 or routed through OP-2, being the authorized main dealer of TVS Company Ltd., by the finance company in case of loan having been availed of by the customer. It was further stated that as per the information of OP-1, OP-2 came to know that the complainant had purchased the vehicle on 30.11.2004.  It was further stated that, in the month of February 2005, OP-2 came to know that the loan of the complainant had been sanctioned by OP-3 on 27.1.2005 and that an amount of Rs.33,749/- had been credited to the account of the complainant by the bank.  It was further stated that on verification, it was found that, the disbursal of loan in favour of OP-2 had been made, though the final sale had been made by OP-1 on 30.11.2004. Thus, OP-2, credited the same vide credit advice No. 2 dated 10.02.2005, for a sum of Rs.33,749/- into the running, open and mutual account of the OP-1, being maintained by it (OP-2).  It was further stated that there was no deficiency in service on the part of OP-2 nor did it indulge into unfair trade practice.

5.                           OP-3, in its written reply, pleaded that the dispute was already pending in the Civil Court and, as such, the consumer complaint was not maintainable. It was stated that the complainant availed of a loan of Rs.33,749/- repayable in 30 equated monthly installments of Rs.1,417/- each, starting from 10.2.2005. It was further stated that as per the normal course, the bank released the amount of Rs.33,749/- in favour of OP-2.  It was further stated that if OP-1 did not receive the full amount of price towards the sale of vehicle, then it should not have released the vehicle.  It was further stated that the financed amount of Rs.33,749/- was disbursed to OP-2 as per instructions of the complainant. It was further stated that an illegal methodology was adopted by OP-1, as even after receiving the full amount of price of the vehicle, it illegally and in contravention of law took away the possession of the vehicle from the complainant.  It was further stated that the complainant stopped making payment of the installments to OP-3.  It was further stated that if any loss was caused on account of the acts of the complainant, the bank reserved its right to institute necessary civil or criminal proceedings.  It was further stated that there was neither any deficiency, in service, on the part of OP-3 nor did it indulge into unfair trade practice. 

6.                           The parties led evidence, in support of their case. 

7.                           After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum accepted the complaint, in the manner, referred to in the opening para of this order.

8.                           Feeling aggrieved, the instant appeal, was filed by the appellant/OP-1

9.                           Today, when the appeal was fixed for arguments, none put in appearance on behalf of the appellant.  The perusal of the appeal file showed that on 7.3.2011, 24.3.2011 and 4.5.2011, neither the appellant nor anybody, on its behalf, was present.  Thus, we came to the conclusion that the appellant was not interested in pursuing the appeal.  We were, however, of the considered opinion that the appeal should be decided on merits, than by default.

10.                       We have heard the Counsel for respondents No.2 & 3 and, have gone through the evidence, and record of the case carefully.

11.                       Undisputedly, the vehicle in question was purchased by the complainant for a sum of Rs.37,660/- from OP-1 (appellant) after the same was financed by OP-3/respondent No.3, Centurion Bank.  OP-2 was the main dealer of the said vehicle.  It issued the temporary number to the vehicle in question.  It is also admitted that a sum of Rs.4,049/- was paid as down payment by the complainant to OP-1 (appellant) vide receipt No.15 dated 30.11.2004.  It was the clear-cut case of OP-3, the Centurion Bank, the financier of the vehicle, that the amount of Rs.33,749/- towards the price of the vehicle (after deduction of Rs.951/- towards the documentation charges, out of the total financed amount of Rs.34,700/-) was disbursed to OP-2 as per the instructions of the complainant and as per the normal business procedure. According to OP-2, this amount was credited to the account of OP-1, which was maintained by it.  Whether this amount was actually credited to the account of OP-1 by OP-2, or not, hardly mattered.  Under no circumstances, the vehicle, in question, which was in possession of the complainant, and which had been financed by the Centurion Bank, could be illegally repossessed by the representatives and musclemen of the OP-1/appellant.  In case, any amount was allegedly due, to OP-1 from OP-2, or the complainant, in respect of the price of the vehicle, in question, it was required of it, to resort to the method provided by law.  By taking law into its own hands, the representative and the hooligans of OP-1, illegally snatched the vehicle, from the complainant.  The District Forum was, thus, right in holding that such an act, on the part of OP-1 (sub dealer) and OP-2 (the main dealer), amounted to deficiency, in service and indulgence into unfair trade practice.    Since the claim of OP-3/Bank stood already settled, the complaint against it was dismissed.   The District Forum was, thus, right in holding that on account of the acts of OPs 1 & 2, a lot of harassment, as also financial loss and mental agony was caused to the complainant.  The order passed by the District Forum does not suffer from any illegality or perversity, warranting the interference of this Commission. 

12.                       For the reasons recorded above, the appeal, being devoid of merits, must fail and the same is dismissed with costs quantified at Rs.5,000/-.

13.                       Copies of this order be sent to the parties free of charge.

Pronounced.

19^th May, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

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