KUNDAN KUMAR KUMAI
Appellants being the Opposite Parties 1, 3 & 4 in CC No.72/S/2011, have preferred these appeals, being A/16/21, against the judgement passed by Ld. DCDRF, Siliguri in CCNo.72/S/2011 on 21/9/2011. The O.P. No. 5 is the Appellant in A/13/2021 and the judgement of this appeal would also decide the prayer of A/13/2021.
In brief, the Appellant’s Case is that, the Respondent No.1/complainant had preferred a complaint before the Ld. DCDRF, Siliguri on the ground of being influenced by the offers, by the Appellant / O.P. No.3, had decided to book one Tata Nano Car for his own use and enjoyment. In this respect, he had visited the office of the Respondent No.2/O.P. No.2 and collected one Application Form being No.113166293 and deposited the same with the Respondent No.2/O.P.No.2, on 18-04-2009. He had further requested for finance to purchase the said Nano Car and the official of Respondent No. 2/O.P. No 2, had managed to arrange the Appellant, in A/13/2021, for financing. On 07/06/2009 he received one email from the Appellant/O.P. No.1 in which one Unique Identification No. 9jh9d8 had been provided to Respondent No.1/Complainant, accepting their booking, from Respondent No.2/O.P. No.2. In the said email, it was further mentioned that the Appellant/ O.P. No.1 would provide interest @ 8.5% per annum, to the Respondent No. 1/ complainant, for the booking amount as per the terms and condition. On 20/06/2009, the Appellant/ O.P. No.4, by a letter accepted the booking and allowed one Tata Nano CX Sample Gold BS 3 car to the Respondent No.1/ complainant, with an assurance to deliver, within January to March, 2011 through Respondent No.2/OP No.2.
The Respondent No.1/ Complainant thereafter visited the office of the Respondent No.2/O.P. No.2, for making enquiries and on being shown the Unique Identification No., the Respondent No.2/OP No.2, issued one quotation on 08/7/2009, in the name of the Appellant, in A/13/21. In the said quotation dated 08/7/2009 Respondent No.2/O.P. No.2, clearly mentioned the price of Tata Nano Car along with the description and the total cost of insurance registration.
Thereafter, the Appellant in A/13/2021, after considering the loan application of the Respondent No.1/ Complainant, sanctioned the sum of Rs.1,50,000/- as car loan, to the Respondent No.1/ Complainant, by a letter dated 28/07/2009. The Respondent No.1 / Complainant, then, paid a sum of Rs.1,20,000/-, by Demand Draft in favour of the Appellant/ O.P. No. 1, through Respondent No.2/ O.P. No.2 on 09/10/2009.
On 19/10/20009 the Appellant/ O.P. No.4, again issued a letter with an assurance to deliver the Tata Nano Car earlier, within the period of October to December, 2010, instead of the period January to March, 2011. On 24/10/2009 the Appellant/ O.P. No. 4, issued a letter indicating that the Respondent No.1/ Complainant would get interest, on the booking amount i.e., Rs.1,20,000/- @ 8.5% per annum, for the period June to September, 2009 and also issued a Cheque No.060530 amounting Rs.2489.50 paise, through a forwarding letter dated 04/11/2009. On 15/07/2010, the Appellant/ O.P. No.4, issued another letter, regarding the increase of price of the said Tata Nano Car, from Rs.1,56,797/- to Rs.1,63,009/- and also instructed the Respondent No.1/ Complainant, to contact the Respondent No.2/OP No.2, for depositing the balance amount within 15/08/2010. The Respondent No.1/Complainant, deposited the amount of Rs.43009/- to the Respondent No.2/OP No.2, by Cheque being No.409905 dated 14/08/2010, against the money receipt, being no. 855 dated 14/08/2010 and the said Cheque had been encashed, by the Appellant O.P. No.1.
On 13/08/2010, one Niraj Srivastava Head-Car Product Group of Tata Motors Limited, confirmed that the Tata Nano Car booked by the Respondent No.1/ Complainant, was ready for delivery and to keep in touch with the Respondent No.2/O.P. No.2, for the balance payments and also intimated that the last quarter interest would be reimbursed. Thereafter, the Appellant/ O.P. No.1, issued another Cheque being No.201534, amounting to Rs.4248/- along with the forwarding letter as interest on the advance booking amount.
Thereafter, on several occasions the Respondent No.1/ Complainant, visited the office of the Respondent No.2/O.P. No.2, but the officials started avoiding him. The Respondent No.1 /Complainant, also made calls to the number of the Appellant/O.P. No.1, but on all the occasions, he was simply suggested to wait and be in touch with Respondent No.2/O.P. No.2. Further, the Appellant/O.P. No.1, had assured the Respondent No.1/ Complainant, that the booked Tata Nano Motor was ready for delivery, vide the letter dated 13/08/2010. But, after a lapse of 9 months also, the Appellant/ O.P. No.1, failed to deliver the said car or pay any further amount of interest, on the booking amount, for non-delivery of the car, within their assured time. Even after contacting the Appellant /O.P. 1,3 & 4 over telephone, they were very reluctant and the Respondent No.1/ Complainant, had to pay monthly instalments to the Appellant in A/13/21, which caused him immense mental pain and agony.
Following which the Respondent No.1/ the Complainant, became disinterested, in purchasing the said Nano Car, as the Appellants/ O.P. No.1, 3 & 4, failed to give delivery of the said car even after a lapse of about one year from the date of assurances and the Respondent No.1/ Complainant, filed a complaint praying for interest @18% per annum, along with compensation for his continuous harassment, mental pain and agony. On 13/05/2011 the Respondent No. 1/Complainant, was forced to write a letter by Registered post with AD to the Respondent No.2/O.P. No. 2, for delivery of the Tata Nano car, but the Respondent No.2/O.P. No.2, did not respond, as such the Appellant/ O.P. No.1, 3 & 4, had deliberately and willfully failed to deliver the said Nano car within the assured period keeping the amount of Rs.1,63,009/- intentionally, most illegally and unethically and depriving the Respondent No.1/ Complainant, the use and enjoyment of the said Nano car, thereby causing deficiency in service and unfair trade practice.
During the pendency of the said Case the Respondent No.1/the Complainant came to learn that the Appellant had refunded the sum of Rs.1,20,000/- directly to the Appellant/O.P. No.5, without disclosing anything else and the same amount was credited in the account of the Respondent No.1/Complainant by the Appellant/O.P.No.5 on 20/12/2010.
As the Appellant/O.P.No.1, 3 & 4 had illegally kept the amount of Rs.1,20,000/- the Respondent No.1/the Complainant was entitled to get interest @ 18 per cent from 01/09/2010 to 20/12/2010 and also get back the sum of Rs.43009/- from the Appellant/O.P. No.1,3 & 4 along with interest 18% per month on and from 14/08/2010 till its realization. As such, as the Appellants1,3 & 4 had no authority or right to cancel the booking of the Respondent No.1/ Complainant and without the consent of the Respondent No.1/ Complainant. Appellant/ O.P. No.5 is also liable to pay Rs.53129/-. The Respondent No.1/ Complainant filed this complaint before Ld. DCDRF, Siliguri along with necessary prayers. Hence this case.
The Appellant in A/13/21, on the other hand, had charged a sum of Rs.53,129/- only as interest from the Respondent No.1/Complainant, since the date of disbursing the loan till 28/07/2012.Whereas the Appellant in A/13/21, was liable to charge interest from the disbursement of loan amount of Rs.1,20,000/- only, till 20/12/2010.Therefore, the Respondent No.1/Complainant was legally entitled to get back the interests charged by the Appellant in A/13/21. The Respondent No.1/ Complainant had further claimed, that he was legally entitled to interest @ 18% per annum, on the sum of Rs.1,20,000/- on and from 20/12/2010 to 28/07/2012 from the Appellant in A/13/21.
Appellants/O.P. No.1, 3 & 4 appeared to contest the claim by filing the written version, wherein they had stated that the Appellant/O.P. 1,3 & 4, were renowned manufacturers of various types of commercial vehicles and passenger’s car which were widely traded for its class and quality and the cars were subjected to stringent quality checks and road trials, before the actual commercial production and only after being approved by the Automotive Research Association of India. After subjecting the car to such checks, then only the vehicles were dispatched to the authorized dealers.
It was also stated that the complaint filed by the Respondent No.1/ Complainant was an abuse of the process of law and the same was not maintainable, as the Respondent No.1/Complainant, had approached by suppressing material facts. It is further submitted that the Complainant/Respondent No.1 had paid booking of Rs.1,20,000/- for Tata Nano CX Sample BS3 which he intended to buy on 09/10/2009 by Demand Draft in favour of the Appellant/O.P. No.1 to Respondent No.2/O.P. No.2 and the Appellant/ O.P. No.4 had assured the Respondent No.1/ Complainant, to deliver the vehicle by October-December, 2010 and had also assured the Respondent No.1/ Complainant that he would be paid interest @ 8.5% per annum, on the booking amount, for period of June 23, 2009 to 30th September, 2009. On 15-07-2010, Appellant/O.P. Nor. 4, informed the Respondent No.1/ Complainant, by a letter that, the price of the vehicle had increased from Rs.1,57,797/- to 1,63,009 and requested the Respondent No.1/ Complainant, to clear the dues by 15/08/2010. The Respondent No.1/ Complainant, had duly paid the balance amount of Rs.43009/-, to the Respondent No.2/O.P. No.2, vide Cheque No.4009905 dated 14/08/2010. The Respondent No.1 / Complainant, had also been given interest amounting to Rs.4248/- vide Cheque No.201534, on the initial advance booking amount. Thereafter the statement in the complaint is denied.
It is also submitted that relationship between the Appellants/O.P.No.1,3 & 4 and the Respondent No.2/ O.P.No.2, was on ‘principle to principle’ basis and as such the Appellants/Respondent No.1,3 & 4, could not be held liable for any independent act, committed by the Respondent No.2/O.P. No.2, as for the acts of one Opposite Party, another Opposite Party should not be held liable. In this regard, the Hon’ble Supreme Court of India had observed that reliance has to be placed on circumstances, documents and conduct of the Party to prove that the relationship of the Parties is of ‘principle’ and ‘agent’ or of one of ‘principal to principal’ basis, in Indian Oil Corporation Vs. Consumer Protection Council, Kerala and other (1994) 1) Supreme Court cases 397. In Maruti Udyog Limited Vs. Nagender Prasad Sinha and Another, II (2009) CPJ 295 the Hon’ble National Commission had observed that Consumer Protection Act, 1986, Section 21(b) Motor Vehicles could deliver delayed interest @ 18% per annum on deposited money along with the compensation awarded to manufacturer and dealer both held liable. Hence, revisions and contentions, relationship between the petitioners and the O.P. No.2 both on ‘principle to principle’ basis the dealer did not have no authority to control the Company by contract- Order holding petition liable to pay interest set aside the Complainant No. 1 had to realize the awarded amount from authorized dealer for which reason the Appellant could not be held liable for the acts done by the Respondent No.2/OP No.2.
Moreover, as the Respondent No.1/the Complainant admitted financial assistance, the Respondent No.1/the Complainant was not a consumer and had no locus standi for file the complaint. In case, the vehicle had been delivered to the Respondent No.1/the Complainant, would still have no locus standi to file the instant case, since they said would have been hypothecated to the financier as decided in 2005 (2) Alt 15 NC (CPA). As such the Complainant was not maintained by the Consumer Protection Act, 1986. Moreover, the Respondent No.1/ Complainant after signing the contract the document was borne by systems and conditions and the owner would be to brief the terms and circumstances laid down in Bharti Company Vs. DHL Worldwide Express Courier (1996) 4 SCC 704. Furthermore, the Respondent No.1/the Complainant had not served any Demand Notice n the Appellant OP No.1, 3, 4. Before filing the present contest which was in violation for the mandatory provisions of the Consumer Protection Act, 1986 as well as the rules the Appellant therefore prayed for allowing the Appeal.
The Respondent No.2/OP No.2, also prayed to contest the claim by filing written version, wherein they have denied the complaint case. It is also stated that the Respondent No.2/OP No.2 was unnecessarily implicated, as the transaction and contract was between the Appellant O.P.No.1,3 & 4 and the Respondent No.1/ Complainant, as such the Respondent No.2/OP No.2 was an unnecessary Party. It is also prayed that the complaint filed by the Respondent No.1/ Complainant be dismissed.
The Appellant/Respondent No.5 has also appeared to contest the Case by filing written version, wherein they have admitted, that the Respondent No.1/ Complainant, had withdrawn Rs.1,20,000/-, from the sanctioned amount of Rs.1,51,000/- and had deposited monthly instalments till 04/02/2012. But the Respondent No.1/ Complainant, for making wrongful gains, had suppressed the material fact, that he had written to the Appellant/OP No.5, on 28/07/2012 to credit the excess amount and liquidate his car loan account, being No.30900272297 to his cash credit account being No.11168837548. Moreover, it is further stated that after the disclosure of details of deposited amount by the Appellant/Respondent No.1, amounting to Rs.7,39,800/- to the Appellant/OP No.5 on 20/12/2010, vide his unique identification no.118766293, the Appellant OP No.5 had informed the same to Respondent No.1/ Complainant and on the direction of the Respondent No.1/ Complainant, vide letter dated 28/07/2010, had credited the said amount to the aforesaid loan amount and the rest was denied.
After going through the evidence produced by both the sides and on perusal of the documents filed by both the sides, the Ld. DCDRF, Siliguri passed the impugned Order in the Case No.72 of 2011, directing the Respondent No.2/OP No.2, to pay Rs.43009/- with interest @ 18% Per Annum since 14/08/2010 till realization and the Appellants/Respondents No. 1,3,and 4, to pay an amount of Rs1,20,000/- with interest @ 18% Per Annum from 01/09/2010 to 19/12/2010 and also directed the Appellant/Respondent No.5 to pay interest @ 12% Per Annum and Rs.1,20,000/- from 20.122010 to 28/07/2012. It was further directed that the Appellants/Respondents nos. 1,3 & 4, Respondent No.2/O.P.No.2 and the Appellant/Respondent No.5 to pay amount of Rs. 35,000/- each with interest @ 18% Per Annum, since the date of filing of the Case till the date of realization and pay the above amount within 45 days from the date of the Order.
Being aggrieved by the above Order, the Respondent nos. 1,3 and 4, as well as the Appellant/Respondent No.5, preferred the Appeals against the Order impugned.
Decisions with reasons
At the time of final hearing the Ld. Advocate on behalf of the Appellant/Respondent No.5 submitted that during the pendency of the Case, before the Ld. Lower Forum the Respondent No.1/ Complainant, had alleged that the entire amount had been returned to the Appellant/Respondent No.5. The Appellant/Respondent No.5, had credited the amount in the account of Respondent No.1 on 28/07/2012, without intimating the Respondent No.1/the Complainant, but the Ld. Forum below had erroneously opined that as the Appellant/Respondent No.5 had not produced the letter, requested by the Respondent No.1/ Complainant, for liquidating the car loan account to his cash credit account and therefore had done the same without any knowledge of the Respondent No.1/ Complainant and the money had been lying with the Appellant/Respondent No.5, since 20/12/2010. But the Respondent No.1/the Complainant never denied the letter dated 28/07/2012 and on the other hand admitted the same during the cross- examination Question No.26. As such the error committed by the Ld. Forum below should not be sustained. That apart, the Respondent No.1/ Complainant, had alleged that the sum of Rs.53,129/- had been charged from him as interest, but had not provided any evidence to that effect. Moreover, there is no evidence for charging the interest @ 18% from 20/12/2010 to 28/07/2012. Under the circumstances, he prays for an allowing appeal.
Ld. Advocate for the Appellants No.1,3 and 4 has stated that they are mainly the manufacturers of the vehicle and vehicles had been sold by the Respondent No.2/O.P.No.2, on ‘principle to principle’ basis. It was further argued, that the Complainant/Respondent No.1, had booked the vehicle with financial assistance from the Appellant/Respondent No.5, through the Respondent No.2/O.P.No.2 and therefore the Complainant/Respondent No.1, was not a consumer of the Appellants/Respondents no.1,3 and 4. Moreover, the allegations were of civil nature and should be decided by the Civil Court. That apart, the Complainant/ Respondent No.1, had been bound by a contract, on the ground, amongst which was laid in Section 4 of the Terms and Conditions. The Complainant/ Respondent No.1, was willing to accept interest @ 8.5% per annum, in case of retention for more than one year but less than two years and 8.75% per annum, in case of retention for more than two years. He had received interest @ 8.5% for the period from 01/04/2010 to 31/08/2010 and he had not made any grievance, but had clarified that the additional interest for period, be transferred to the bank account in the Appellant Bank/Respondent No.5 and thereby accepted the offer, of the Appellant/Respondent No.1. That apart the Ld. Forum below had erred by directing interest @18% per annum for the period from 01/09/2010 to 19/12/2010 which was beyond the terms agreed upon. Furthermore, the Ld. Commission also discriminated when interest was imposed @18% per annum on the Appellant/Respondent 1, 3 and 4, whereas, interest @ 12% had been imposed upon the Appellant Bank/Respondent No.5. The Appellant/Respondent No.1 had received the same from the Respondent No.1/the Complainant on 09/10/2009 and the same had been refunded on 20/12/2010. It was further argued that the dispute between the Appellant/Respondent nos.1,3 and 4, the Respondent No.1/ Complainant was not a consumer dispute under the Consumer Protection Act, as there was no deficiency in service being established and only a delay of 110 days was there.
Moreover, the Respondent No.1 had in the para 16 of the complaint had shown his disinclination to own, the said booked Nano Car, as the Appellant/Respondent nos. 1,3 and 4, had failed to deliver the car after a lapse of one year from the date of assurances of delivery and therefore it could very well be presumed that the Respondent No.1/the Complainant had also cancelled the booking knowing fully well, that his name was selected as a successful customer. Furthermore, it is also clarified that the sum of Rs.1,20,000/- had been refunded to the Appellant/Respondent No.5, on 20/12/2010, by the Appellant/Respondent Nos. 1,3 and 4, against the unique identification no. 113166293. Moreover, the Respondent No.1/ Complainant had not raised any question or made any demand for refund of money from the Appellant/Respondent No.1, either in the complaint neither in the amended complaint nor in the evidence. The Ld. Forum below also passed Order directing payment of interest @ 18% per annum, on the amount of Rs.1,20,000/- from 01/09/2010 to 20/12/2010.Therefore, even though the Respondent No.1/ Complainant was bound by the terms and conditions of sale between the Appellants/Respondents 1,3 and 4, but the Ld. Forum below without taking into account such relation, had without assigning any reason-imposed interest @ 18% per annum. It is therefore prayed, that the instant Appeal be allowed.
Ld. Advocate on behalf of the Respondent No.2 has taken us through the complaint, page 4, wherein he has pointed out in the third paragraph, the amount of Rs.43,009/- had been paid vide cheque no.409905 dated 14/10/2010 to the Respondent No.2 who had issued a money receipt being no.855 dated 14/08/2010 and the said cheque had been duly encashed, by the Appellant/Respondent No.1. The earlier complaint also finds mention about the above in identical terms. Therefore, it was argued, that the Ld. Forum below erred, while passing the direction upon the respondent no. 2/O.P.No.2, to pay Rs. 43,009/- along with interest @18% since 14/08/2010 till realization. He, therefore, prays for setting aside the said direction.
After hearing the Ld. advocate for the parties and on perusal of the material on records , its transpires, that the case is mainly about the booking of the Tata Nano Car by the Respondent no.1 / complainant, as per the terms and the conditions of which Section 4 of the Terms and Conditions is the important one whereby, the respondent no. 1/ complainant, had agreed to accept interest @8.5% per annum in case of retention being more than 1 year but less than 2 year, and 8.75% in case the retention being more than 2 years. In this regard the respondent no.1/ complainant had deposited a DD amounting to Rs. 1,20,000/- on 09/10/2009 in favour of the appellant/OP No. 1 through respondent no. 2/ OP No. 2. In return the appellant/ OP No. 4, had assured delivery of the vehicle within October- December 2010 and also interest on the booking amount for the period of 23/06/2009 and 30/09/2009. In this connection, the respondent no. 1/complainant, also received interest amounting to Rs. 2489.58 vide one cheque bearing no. 060530. Thereafter, the appellant/ respondent no. 4, informed in writing, that the price of the vehicle had increased from Rs. 1,57,797 to Rs. 1,63,009, with a direction to deposit within 15/08/2010.Thereafter, the respondent no. 1/ complainant, had deposited the balance amount of Rs. 43,009/- to the respondent no. 2/OP No. 2, vide cheque being no. 409905 dated 14/08/2010 and the said cheque had been duly encashed by the appellant/respondent no. 1. The appellant / respondent no. 4 had further intimated that they would pay the last quarter interest till 31/08/2010 and issued a cheque being no. 201534 amounting to Rs. 4,248/-. But the appellants/ respondent no. 1, 3 and 4, failed to deliver the Tata Nano Car, even though the respondent no. 1 / complainant, had visited the office of the respondent no. 2/OP no. 2, on several occasions. Thereafter, the respondent no. 1/ complainant, became dis-interested, as the appellants/ Ops no 1, 3 and 4 had failed to deliver the car and lodged the instant complaint with the prayer to return the entire paid money with interest @18% per annum, along with just compensation, for continuous harassment, mental pain and agony.
During the pendency of the above complaint, before the Ld. lower Forum, the respondent no. 1 complainant came to know, that the appellant/ OP no. 1, 3 and 4, had illegally, unauthorizedly, arbitrarily and behind his back, refunded the sum of Rs. 1,20,000/- on 20/12/2010, directly to the appellant bank/ OP no. 5, without intimating the respondent no. 1 / complainant. The respondent no. 1 /complainant, was thus entitled to get interest @18% per annum on and from 31/08/2010 to 20/12/2010 from the appellants / OP no. 1, 3 and 4. The respondent no. 1/ complainant, was also entitled to get back the sum of Rs. 43,009/- with interest @18% per annum on and from 14/08/2010 till realization. Moreover, the appellants / OP no. 1, 3 and 4, had illegally withheld the above amounts and there by committed unfair trade practice.
In this connection, the appellant/ OP No. 5 had also charged interest, amounting to Rs. 53,129/- from the respondent no. 1 /complaint, since the date of disbursing the loan amount till 28/07/2012 and the respondent no. 1/ complainant, was also entitled to the interest on the amount of Rs. 1,20,000/- from 20/12/2010 till 28/07/2012 from the appellant bank / OP no. 5.
In view of the above facts, the allegation of the respondent no. 1 /complainant is twofold, one against the appellants/ Op no. 1, 3 and 4 and the other against the appellant bank/OP no. 5. The allegation against the appellant /OP no. 1 3 and 4 is that, they failed to deliver the Tata Nano Car, as promised by them and had unauthorizedly cancel the booking and withheld, the booking amount of Rs. 1,20,000/- from 01/09/2010 till 20/12/2010 and also, the amount of Rs. 43,009/- from 15/08/2010, thereby, committing unfair trade practice.
As regards the allegation by the respondent no. 1 /complainant against the appellant bank/op no. 5, is that, the appellant bank/OP no. 5, had charged interest amounting to Rs. 53,129/- from the date of the disbursing the loan amount, till 28/07/2012 and also with held the amount of Rs. 1,20,000/- from 20/12/2010 till 28/07/2012.
It has been argued at the time of final hearing, on behalf, of the appellants/OP No. 1, 3 and 4, that the instant case was not Consumer Dispute, but a Civil Dispute. In this regard, it can be argued, that, even though, the appellants/OP No. 1, 3 and 4, do not have direct relation with the respondent no. 1/complainant, but as the appellant/ OP No. 1, 3 and 4, are the manufacturers of the Tata Nano Car, which the respondent no. 1/ complainant, indicated his interest to purchase the same, but as he could not do so directly from the appellants/ Op no. 1 3 and 4 and he had to complete the formalities through respondent no. 2/ Op no. 2, who was nothing but a conduit and therefore, for all practical reasons, the respondent no. 1/ complainant, was a Consumer of the appellant/ OP no. 1, 3 and 4, even though, the appellant / Op no. 1, 3 and 4, have tried to deflect by espousing the principle of “principal to principal” basis. Even the respondent no. 1/ complainant, has not sought for any reliefs against the respondent no. 2/OP No. 2 and rather absolved, the respondent no. 2/ OP no. 2, when in third paragraph of para 11 of the amended complaint, wherein, it is stated, that the respondent no. 1/ complainant had deposited the amount of Rs. 43,009/- vide cheque no. 409905dated 14/08/2010 with the respondent no. 2/ OP no. 2, who had issued a money receipt being no. 855 dated 14/08/2010 and the said cheque had been encashed by the appellant/ respondent no. 1, further vindicating the above observation. Hence, where the respondent no.1/complainant, himself has not made any allegation of misappropriation against the respondent no. 2 / OP No. 2, the Ld. Lower Forum had without any reason passed the direction of refunding Rs. 43,009/-, with interest @18% per annum upon respondent no. 2/ OP No. 2. This finds consonance in the ruling passed by the Hon’ble National Consumer Dispute Redressal Commission, New Delhi in M/S Fiat Ltd. Vs. M/S Amardeep Motors Ltd. & Anr reported in (2005) 2 WBLR (CPNC) 359. Therefore, the above argument forwarded on behalf of the appellant/OP no. 1, 3 and 4 cannot be sustained.
As far as the factual aspects are concerned, most of it is not disputed, the dispute is mainly with regard to the intent of the parties. The respondent no. 1 /complainant, became disinterested in acquiring the Tata Nano Car, after delay was caused in delivering the Tata Nano Car, within the period promised by the appellants/ OP No. 1, 3 and 4. In other words, the respondent no. 1 / complainant had been promised delivery within the period October- December 2010. But the appellants/ OP no. 1, 3 and 4 had refunded the amount to the appellant bank/ OP no. 5 on 20/12/2010. There is no evidence forthcoming from their side, justifying such action on their part. Therefore, this can be adversely interpreted that, once they failed to deliver the vehicle, they returned the booking amount. Therefore, the appellants/ OP No. 1, 3 and 4 committed a breach of the Terms and Conditions, when they returned the amount of Rs. 1,20,000/-, without consent of the respondent no. 1/ complainant. They are, therefore, liable to pay interest to the respondent no. 1 / complainant, for the period 01/09/2010 till 20/12/2010. However, the Ld. Lower Forum has without assigning any reason-imposed interest @18% per annum perhaps relying on the citations, but the citation is mainly in cases of flats and not in cases of cancellation of vehicles. On this ground itself, the impugned direction upon the appellants/OP No. 1, 3 and 4, needs to be modified. The normal rate of interest being imposed in such cases is @ 9% per annum which appears to be just and normal.
It is another matter, that the appellant/ OP No. 5 bungled while transferring the amount transferred by the appellant / OP no. 1, 3 and 4, to the account of the respondent no. 1 / complainant. No reasons have been ascribed by the appellant/ OP no. 5 with regard to the delay in transferring the amount of Rs. 1,20,000/- to the account of the respondent no. 1 / complainant, on 28/07/2012, when the transfer had occurred around 2 years back, on 20 /12/2010. The Ld. Forum below, in this respect also appears have been swayed by the citation while imposing the interest component, as the appellant / OP no. 1, 3 and 4 had been imposed interest @18% per annum, whereas, the appellant/ OP No. 5 had been imposed @ 12% per annum, which again is discriminatory. Therefore, this direction upon the appellant/ OP no. 5, also needs to be modified, by imposing the interest @9% per annum.
The appellants/ OP no. 1, 3 and 4, had received the amount of Rs. 1,20,000/- which they had refunded on 20/12/2010, but in a similar fashion when the transaction, for Rs. 43,009/- had been received by them, as per the third paragraph of para 11 of the complaint, the appellant/ OP no. 1, 3 and 4, not only failed to acknowledge the same, but ought to have refunded the same also, but there is no evidence forthcoming from either of the parties to show that the above amount had been refunded. Under the circumstance, the order passed by the Ld. Lower Forum, directing the respondent no. 2/ OP no. 2 needs to be set aside and a fresh direction needs to be passed, directing the appellant / OP No. 1, 3 and 4 to refund the amount of Rs. 43,009/- to the respondent no. 1 / complainant, with interest @9% per annum, from 15/08/2010 till realization, exonerating the respondent no. 2/ OP no. 2 from such liability.
As regards the interest amounting to Rs. 53,129/-, there is no piece of evidence forthcoming from the respondent no. 1 / complainant, who was legally bound to produce such evidence and therefore, the contention of the respondent no. 1/ complainant cannot be acceded. However, the appellant bank / OP No. 5 has failed to provide any evidence to prove, that interest had been paid on the amount of Rs. 1,20,000/- from 20/12/2010 till 28/07/2012, when the amount had been remitted to the account of the respondent no. 1 / complainant and such act of the appellant bank / OP No. 5 cannot be absolved, simply by citing that the same was not prayed by the respondent no. 1/ complainant, when the letter dated 28/07/2012 had been issued. As such a direction in this regard, also needs to be issued with the interest component settled at @9% per annum. Hence, the appellant bank / OP No. 5 is also directed to refund the interest upon the amount of Rs,1,20,000/- from 20/12/2010 till compliance.
The remaining portion of the impugned order does not need interference with the directions upon the respondent no. 2/ OP no. 2, being set aside.
As a result, the instant appeals succeed in part.
It is therefore
Ordered
That the instant appeals being A/16/2021 and A/13/2021 succeed in part.
The impugned order stands modified to the extent mentioned in the body of the judgement.
Copy of this order be delivered free of cost to both the sides.
Copy of this order be also sent to the Ld. DCDRF, Siliguri.
