This appeal is preferred against the Final order and Judgment dated 28/06/2019, delivered by Ld. DCDRF Alipurduar in CC No. 2 of 2018.
The fact of the case is that one Sanjib Das of village Salsalabari, P.S- Alipurduar lodged a consumer complaint U/S 12 of CP Act, 1986 against Bussan Auto Finance Guider Ltd. and R.N auto
The complainant case in a nutshell is that the complainant has purchased one Yamaha Motor Cycle bearing Regd. No. WB 70F 1556, Engine No. E3PIE0015672, Chassis No. MEIRE1216F0015943, color - Red, model – 2015, key no. 2524, HP/CC 8.1/125CC under Invoice No. 111 on 04/10/2015 from OP No. 2 for consideration of RS. 54,600/- including Rs. 7,917/- towards vat and OP No. 2 accordingly issued a valid bill bearing no. 111 dated 04/10/2015 along with a manual Book-cum- Warrenty card in respect of his motor cycle. The complainant out of the said consideration paid Rs. 31,340/- to the Ops and the rest amount was financed by the OP no. 1 under loan account no. TW1071NR00411506 and the monthly installment was fixed a sum of RS. 1,676/-. Accordingly, after purchase the Motor Cycle the complainant has been re-paid fifteen numbers of EMI through his bank account Bearing No. 42850100001883 Under Bank of Baroda, Alipurduar branch and re-paid another nos. of EMI by cash after valid receipts but the OP No. 1 did not disclose the complainant that how many EMI is to be paid by the complainant.
The further case of the complainant is that of several requests made by the complainant the OP No. 1 did not supply any statement of loan account. Ultimately on 02/11/2017 the complainant made written petition to the Ops but the Ops did not pay any heed to it. Beside that OP No. 1 frequently visiting the house of complainant and made pressure upon him for EMI otherwise they would take over possession of the said Motor Cycle. Hence, this case has been filed by the complainant against the Ops with a prayer to direct the OP no. 1 to issue NOC in respect of the said Motor Cycle and also made a prayer to direct The Ops to pay Rs. 30,000/- towards his mental agony and sufferings and also prayed to direct the OPs to pay a sum of Rs. 10,000/- towards litigation costs.
Both the Ops have appeared before the Ld. Forum and contested the case by filing written version separately. Both the Ops have denied the allegations as leveled by the complainant against them. It is categorically stated by the OP No. 1 in his written version that he had made the payment of necessary amount to the OP No. 2 on behalf of complainant upon entering into an agreement with the complainant as such under no circumstances the OP No. 1 has also averred that complainant applied for financial assistance for purchasing one Yamaha Motor Cycle from OP No. 2 and basing upon the documents submitted by the complainant the said loan was disbursed by the OP No. 1 on good faith basing upon the fiduciary relation and purporting upon the documents submitting by the complainant. But OP No. 1 did not deny non-supply of statement of account to the complainant. OP No. 1 side stated that the complainant has filed this case for illegal gain. Both the Ops have prayed for dismissal of the case.
Both the Ops have filed evidence-on-affidavit and the complainant also filed the evidence-on-affidavit. The complainant and OP No. 1 filed written argument. The OP No.2 did not file any written argument as per his submission the written version filed by him has been treated as written argument.
Ld. Forum after hearing both sides came to a conclusion that OP No.1 Bussan Auto Finance Pvt. Ltd has unlawfully collected excess payment of Rs. 27030/- which was treated to be deficiency of service and unfair trade practice and for that reason total Rs. 45,030/- was awarded in favor of the complainant.
Being aggrieved with the Final Order this appeal follows on the ground that observation and decision of Ld. Forum was full of errors and misconception of facts and prayed for set aside the impugned order under appeal.
Appeal was registered in due time and admitted on merit, the complainant (respondent) and OP No. 2 R.N. Auto has contested the appeal through Ld. Advocates and submitted WNA.
Ld. Advocate Barnali Das, A. Sengupta has represented the appellant. The respondents have conducted the hearing through Ld. Advocate Debsmita Sarkar and others.
Decision With Reasons
After hearing both sides and on perusal of material documents placed in this appeal, it has well established that the complainant in order to purchase a motor bike from respondent no.2, took financial assistance from appellant in a loan transaction.
As per statement of complainant the showroom price of the bike was settled at Rs. 54,600/- only of which Rs. 31,340/- was paid in cash by complainant as down payment and rest amount was paid by the appellant. The complainant never says how much amount of loan he had obtained.
While, the appellant in WV before the Forum also did not mention as to what amount was sanctioned as loan.
Ld. Forum in final order opined that out of total price of Motorbike, the OP no. 1 (appellant) extended the financial support by loan the rest amount i.e. (54,600 - 31,334) = 23,266/- while the OP no. 1 recovered the loan amount from the complainant ( 33520 + 16776) = Rs. 50,246/- i.e excess amount (50296 – 23,266) Rs. 27,030/- was illegally recovered.
The appellant in memo of appeal mentioned that showroom price of the said Motor bike was Rs. 66,200/- the complainant paid cash Rs. 27234/- and appellant provided loan of Rs. 42000 which to be repaid by the complainant in 3 years by way of 36 EMI of Rs. 1,676/- i.e total Rs. 60,336/- to be recovered while the complainant has paid Rs. 50,296/- and still remained out standing with late payment charge Rs. 16,808/-. In support with the contention the appellant has placed the material documents but curiously enough such documents could not be produced by the appellant before the Ld. Forum perhaps the appellant was not so vigil to conduct the case before the Ld. Forum and when the award was passed in favour of the complainant on seeing one side documents, the appellant has approached this commission to set aside the order.
The complainant has produces Tax invoice which has shown that the price of the vehicle including VAT of 14.5% was fixed at Rs. 54,600/-. But the showroom price certainly was not confined to Rs. 54,600/- The registration cost, M.V. Tax and one year 1st parte compulsory insurance premium also was realized as per system of sale or vehicles. So, the actual cost of taking delivery of the bike was Rs. 66,200/- and the document (Sl. No. 13 of memo of appeal) speaks the same.
The loan agreement and incidental papers produced by the appellant show that actually Rs. 42,000/- was paid by the appellant which was the loan amount agreed by the complainant, the appellant as financial company guided by the rules and regulation of RBI and SEBI was empowered to recovery the outstanding loan with interest and other charges.
So, it has become crystal clear that no excess amount was recovered by the appellant from the complainant and some amount still reminded out standing. Ld. Forum had no opportunity to come to a right decision for want of documents and the appellant had latches on its part. It is alleged that the loan documents and statement of loan recovery was not handed over to the complainant but this allegation is not substantiated as because the factual proposition that the appellant company also conceded the fact established by the complainant that total loan recovery was held to the tune of Rs. 50,296/-.
However, for the ends of justice, the order of Ld. Forum should not be sustained in factual aspect.
On the other hand, the appellant due to its own fault should not withheld the N.O.C anymore and no further controversy is expected in this dispute.
Thus, the appeal is found to have some merit.
Hence it is ordered,
That the appeal be and the same is partly allowed on contest without cost. The final order of Ld. Forum dated 28/06/2019 in CC No. 2 of 2018 is partly modified to the extend that the order of Ld. Forum in respect of excess payment amounting to Rs. 27,030/-, RS. 13,000/- for mental agony and sufferings and Rs. 5,000/- awarded as litigation cost in favour of the complainant is here by set aside. The order of Ld. Forum in respect of issuing N.O.C in favour of the complainant within 30 days remains intact and for the failure in complying this order on the part of the appellant a compensation to the tune of Rs. 10,000/- shall have to be paid by the appellant and the respondent No. 1(complainant) will be liberty to put the order in to execution before this bench. The appellant can not claim any outstanding of the same loan amount at the time of issuing N.O.C. The copy of order be supplied to the parties free of cost and the same to be communicated to the LD. DCDRF, Alipurduar.
