This is a complaint filed under section 12 of consumer protection act for an order directing the opposite parties to refund `1,14,888 along with `1,000 as compensation and cost.

          The complainant contended that he had booked for a Nano Lx car by paying `4349 through 1^st  opposite party by way of DD with a promise that the vehicle will be delivered within 6 months.  

He had paid another sum of `15,000 by way of cheque dt. 30.7.09 along with 36 signed cheque leaves as security for granting loan of `1,27,000. But at the time of delivery on  checking it was found that the vehicle has so many defects such as weak brake system, weak horse power etc. and hence he declined to take delivery and informed 1^st opposite party to cancel booking and demanded for refund of the amount  and for the return of cheque leaves already collected. But instead of returning the same, the opposite parties  encashed the cheques and the same tactic was adopted even during May 2011 disregard to specific warning not to make use of those cheque leaves and `1,10,548 is already collected by opposite parties. The opposite parties have no authority to encash those cheques leaves after cancellation and there is no justification in delaying repayment. So the complainant issued a lawyer notice dated 9.6.11 demanding the amount colected by opposite parties. No refund is made even now and nor issued any reply instead they continued their attempt to grab money illegally by encashing the cheque leaf even in last month. Hence this complaint.

          In pursuance to the notice issued by the Forum both opposite parties appeared and filed their version.1^st opposite party filed version contending that the complainant is not a consumer and there is  neither any unfair  practice or nor any deficiency in service. The complainant is a chronic defaulter of instalments within prescribed time. So he had violated the terms of the agreement. It is admitted that complainant deposited post dated cheques with 1sst opposite party and were regularly dishonoured due to  insufficient funds in the account  of the complainant.     The complainant makes out no relief as contemplated under section 14 for the deficiency in service. The complainant had entered into a loan –cum-hypothecation agreement dt. 31.7.09 for a financial assistance of `1,27,000 for the purchase of Tata Nano LX vehicle along with finance charges of `29,299. The complainant agreed to pay `4399. The complainant agreed to pay `4399 as first installment and `4340 in remaining 40 installments. So as per contract value the complainant was liable to pay `1,56,299 to opposite party as per agreement. Since there is default in repayment, he is liable to pay overdue charges also. The 1^st opposite party is not liable for any defect in the vehicle. The complainant has filed the complaint making false allegations with respect to manufacturing defect in the vehicle just to counter blast the claim of outstanding amount of `3,00,128.27. There is no cause of action rise to file the complaint. Since there is no merit in the complaint, the complaint is liable to be dismissed.

          The 2^nd opposite party also filed version contending that the complainant is not a consumer. The complainant has no case that thee is deficiency of service on the part of opposite party. The alleged reason for cancelling the booking made by him, are not within the knowledge of 2^nd opposite party. The allegation that the Tata Nano Cars manufactured by opposite party suffer from manufacturing defect are denied as incorrect and against the facts. The 2^nd opposite party till date not found any Tata Nano Vehicle having any inherent defect nor has any customer approached the 2^nd opposite party with any complaint. The complainant has raised the allegation without any bonafides and with ulterior motives. This opposite party has not received the alleged cheque leaves nor has encashed the same after the cancellation of booking. So the complainant is not entitled to any relief as prayed and hence the complaint is liable to be dismissed.

          On the above pleadings the following issues have been raised for consideration.

1. Whether there is any deficiency on the part of opposite

     Parties?

2. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral testimony of PW1 and Exts.A1 to A4 and Ext.B1.

Issue Nos. 1 to 3

          The complainant contended that the opposite parties had extracted `1, 14,888 from the complainant, by way of EMI even though the complainant has not taken delivery of the Nano car booked  by him due to mechanical defects. In order to prove his case he was examined as PW1 and produced documents such as copy of lawyer notice dt. 9.06.11, acknowledgement cards, pass book of the complainant and advance receipt for `15,000 dt. 15.7.09. In order to disprove the case opposite party also produced repayment schedule. The opposite parties admit that the complainant had booked for a Tata Nano car and availed loan from 1^st opposite party for `12,700 for the same.  The Ext.A1 is a copy of lawyer notice issued by complainant to opposite parties for return of the cheques, amount paid etc. and Ext.A2 shows that the opposite parties have received the same on 13.06.11. But they kept mum without issuing any reply. Moreover in the version filed by the opposite party, they have not denied the booking and non-delivery of the vehicle by the complainant. On the other hand 1<sup>st</sup> opposite party admits that the complainant had availed a loan for a Nano car. So the non denial and non issuance of reply to notice strengthened the claim of the complainant that he has not taken delivery of the vehicle. So we are of the opinion that even though she had applied for loan, he has not taken the delivery of the vehicle. So he has no liability to repay the loan amount. But the Ext.A3 shows that they have deducted `4340 through 21 installments and `4399 through one installment and hence a total amount of  `95,539 was withdrawn by opposite party through the cheque issued by the complainant. Even after Ext.A1 lawyer notice opposite party has withdrawn the EMI through the cheque. So we are of the opinion that there is deficiency of service on the part of opposite parties and hence they are liable to compensate the complainant by repaying the amount. Ext.A4 shows that opposite party has received `15,000 on 30.7.09 from the complainant. So the opposite parties are liable to refund `1,10,539 to the complainant. The complaint is also entitled to get an amount of `5000 as compensation and `1000 as cost of the proceedings and the complainant is entitled to receive the same and hence order passed accordingly.

                    In the result, the complaint is allowed directing the opposite parties to refund  `1,10,539 (Rupees One lakh Ten thousand and Five  hundred and Thirty Nine  only)  along with `5000 (Rupees Five Thousand  only) as compensation and `1000 (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant can execute the order as per the provisions of consumer protection act.

                           Sd/-                     Sd/-                             

                     President                Member    

  APPENDIX

Exhibits for the complainant

A1. Copy of the lawyer notice sent to Ops

A2.Postal AD

A3.Copy of the pass book(Bank of India)

A4.Copy of the receipt dt.30.7.09 issued by OP

Exhibits for the opposite parties:

B1.Copy of the repayment schedule

Witness examined for the complainant

PW1.C.Ranjith Kumar

Witness examined for the opposite parties

Nil

                                                       /forwarded by order/

                                                          Senior Superintendent

Consumer disputes Redressal Forum, Kannur.