Tamil Nadu

South Chennai

CC/60/2016

B.M.Sornamurthy - Complainant(s)

Versus

The Branch Manager, Chellamani & Co - Opp.Party(s)

M/s.Murugan

06 Jul 2022

ORDER

Date of Complaint Filed : 08.02.2016

Date of Reservation      : 23.06.2022

Date of Order               : 11.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                : MEMBER  I 

                        THIRU. S. NANDAGOPALAN., B.Sc., MBA.,         : MEMBER II

 

CONSUMER COMPLAINT No. 60/2016

MONDAY, THE 11^th DAY OF JULY 2022

B.M. Sornamurthy,

Associate Professor of physics,

A-2, Best Nest Homes,

Plot No. 3, Govidasamy Street,

Palavanthangal, Chennai - 114.                                           ... Complainant             

 

..Vs..

1) The Branch Manager,

    Chellamani & Co.,

    33, Pillaiyar Koil Street,

    Pallavaram,

    Chennai - 43.

 

2) The Branch Manager,

    Bajaj Finserve Limited,

    Unit No. 209, 210, 2^nd Floor,

    Delta Wing, Raheja Towers,

    177, Anna Salai,

    Chennai-2.

 

3) The Senior Manager (Legal)

    General & Corporate Litigation,

    Bajaj Finserve Corporate Office,

    3rd Floor, Panchshil Tech Park,

    Viman Nagar, Pune-411 014.

    Maharastra.                                                             ...  Opposite Parties

 

*****

Counsel for the Complainant                    : M/s. S. Murugan

Counsel for the 1^st Opposite Party           : Exparte

Counsel for the 2^nd & 3^rdOpposite Party    : M/s. J. Ranjani Devi

        On perusal of records and after having heard the oral arguments of the Opposite Parties 2 and 3 and having treated the written arguments of the Complainant as oral arguments, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to pay the Complainant a compensation of Rs.1,25,000/- for the mental agony and harassment caused to him by their acts of deficiency in services and dereliction of their duties and to return to the Complainant a sum of Rs.95,216/- with 18% interest from the date of the bill for the wrongful recovery made from the Complainant on their part and to pay a sum of Rs.5000/- to the Complainant towards cost.

2.     The averments of Complaint in brief are as follows:-

        The Complainant had placed an order on 28.06.2015 for the following items from Chellamani & Co, stall at Chennai Trade Centre Exhibition, held at Nandambakkam in Chennai and its main shop, is at 33, Pillaiyar Kovil Street, Pallavaram, Chennai – 600 043.

Sl.No	Description	Quantity	Rate in Rupees
1	Leather Recliner sofa (R-S+R) + full depth (R+O+R) +3R	1	1,20,000
2	Marble dining table with 6 chairs	1	36,000
3	Seat cover (Hussain)	6	2,000
		Total Amount	1,58,000

It is further stated that the Complainant had paid Rs.21,584/- initially and a sum of Rs.1,03,416/- was paid by five consumer loans arranged to the Opposite Party No.1 through Bajaj Finserve stall in the Chennai Trade Centre Exhibition itself in the same day and the remaining balance of Rs.33,000/- would be paid to the Chellamani & Co., to the Opposite Party No.1 while the delivery of the items at the Complainant's residence. Consumer loans are as follows:

Sl. No.	Loan No.	Installment Amount in Rupees
1	403 SCE 1100 6978	4,855
2	403 SCE 1100 8698	1,500
3	403 SCE 1100 8762	1,500
4	403 SCE 1100 8867	1,500
5	403 SCE 1100 8406	2,917
6	Total EMI	12,272

It is stated that the Opposite Party No.1, has not so far delivered the said articles mentioned in the order form dated 28/06/2015 to the Complainant's residence. It is further stated that the Opposite Party No.1, is paying scant attention to the Complainant's repeated demands for the non-delivery of the articles ordered and he never turned up even after lapse of seven months time. It is stated that the opposite parties No. 2 and 3, have recovered six EMI installments of Rs. 12,272/- each per month from August 2015 for the above said five consumer loans granted by them, in the Chennai Trade Centre stall, whereas they have not bothered whether the above said consumer articles were delivered to the Complainant or not till this date. The break-up details of recovery of EMI made, from the Complainant’s savings bank account no. 1037309418 at Central Bank of India, Triplicane Branch, are given below:

Sl.No	Date of recovery	EMI amount in rupees
1	05.08.2015	12,272
2	09.09.2015	12,272
3	05.10.2015	12,272
4	05.11.2015	12,272
5	05.12.2015	12,272
6	05.01.2015	12,272
7	Total Recovery	73,632

It is further stated that the delivery time of the above-said articles to the Complainant, was one month from the bill date (28-06-2015). Moreover, it is also the prime duty of the opposite parties No.2 & 3 to enquire about the delivery of the said ordered articles within the stipulated due date to the Complainant by the Opposite Party No.1 in-as-much-as the said consumer loans were granted by them. Moreover, it is also their important duty to inspect whether the assets were created or not from the proceeds of their consumer loans granted to the Complainant. If the opposite parties No.2 and 3, exercised their duty of inspection of asset creation on the due date of delivery of the ordered items, then the non-delivery of the assets by the Opposite Party No.1,would have come into the lime light and they would see the articles to be delivered in the right time and they could have also taken steps for it. But unfortunately, no stone is turned up by them.It is stated that the Complainant is penalized to the tune of Rs. 95216 /- (i.e. 73,632/ EMI recovered + Rs. 21584 / debit card payment) where there is no fault on his side and he is suffered by the non-accomplishment of duties of the opposite parties. The non-compliance of the delivery of the ordered articles in the prescribed form to the Complainant, and moreover received the advance payment of Rs. 1,25,000/- (Loan granted Rs. 1,03, 416/- plus debit card payment of Rs. 21584/-) by the Opposite Party No.1 and the recovery of six EMI installments of Rs. 73, 632 /-, without the supply of prescribed, ordered consumer durables/articles, by the opposite parties 2 and 3, amount to the dereliction of duties, negligence and unfair trade practice as well as the deficiency of services on the part of the opposite parties. It is stated that the Complainant sent legal notice on 4-01-2016. Only the third Opposite Party sent a reply to the legal notice to the Complainant's advocate and a copy marked to the Complainant on 11-01-2016 stating that they were investigating the matter at their end and further they would try to give a reply shortly. But whereas the Opposite Party No.2 told the Complainant on 8-01-2016 that they were ready to refund the six installments recovered by them. But on a couple of days, the Opposite Party No.2 had reversed his stand and advised the Complainant to visit to the Opposite Party No.1 and to cajole him for the refund of the advance already paid to him on 28-06-2015, otherwise, it is very hard for them to recover the loan proceeds from the Opposite Party No.1. When the Complainant contacted the Opposite PartyNo.1, they have neither delivered the articles nor refunded the advance paid. While the Complainant conveyed these to the Opposite Party No.2, he was also reluctant to refund the six EMI installments recovered unauthorisedly from the Complainant. So, the Complainant sent a letter to the Opposite Party No.2 dated 19-01-2016 stating the termination of the hire purchase agreement because they did not have any mandate to recover the EMI installments due to the non-delivery of consumer articles to him. Even after it, the opposite parties 2 and 3, did not turn up. These illegal and inhuman acts of them show that they are in collusion with each other in order to avoid to execute their contractual obligations. Moreover, has given a letter on 25-01-2016 to Central Bank of India, Triplicane branch not allow further debit in his account in this regard. It is stated that normally, it is the practice of the non-banking financial companies to seize the vehicles/consumer articles from the borrower even for the non-payment of one installment. But, in this case, they kept silence for more than seven months for the non-delivery of the ordered articles by the Opposite Party No.1. Hence, it reflects that the opposite parties No.2 and 3 have will fully neglected to verify that the assets were created or not. It is stated that there is a clear case of deficiency in services and the dereliction of duties on the part of the opposite parties which not only made the Complainant but also his family suffered mental agony and harassment for the past seven months and, hence, the Complainant estimates the compensation for severe mental agony to the tune of Rs.1,25,000/ (Rupees one lakh and twenty five thousand). So, the Complainant has come forward to redress this grievances before this Honourable forum.

3.   Written Version filed by the 2^ndand 3^rdOpposite Parties in brief is as follows:-

        It is submitted that the complaint is defective, the reason being the Complainant has made "BAJAJ FINSERV" as Opposite Party whereas, there is no company in existence by name "BAJAJ FINSERV". It is further submitted that "BAJAJ FINSERV" is a Brand name whereas the name of the company is "Bajaj Finance Limited". The Complainant has not made Bajaj Finance Limited as party to the complaint and hence the complaint be dismissed only on this ground.The Opposite Party states that the Complainant has entered into a Loan and the details are as below.

Sl.No	Loan Agreement No.	Loan Account No.	Status	Amount Outstanding
1	403SCE11008678	Rs.35,000/-	Active	Rs.12,000/-
2	403SCE11008698	Rs.18,000/-	Active	Rs.6,000/-
3	403SCE11008762	Rs.18,000/-	Active	Rs.6,000/-
4	403SCE11008867	Rs.18,000/-	Active	Rs.6,000/-
5	403SCE11008406	Rs.35,000/-	Active	Rs.10,251/-

 

The Opposite Party No.2 and 3 are not an agent of Opposite Party No.1. Thus, Opposite Party No.1 being financier is not at all responsible or liable for vicarious liability. For the sake of convenience, and for further clarity, Opposite Party No.1 is reproducing some important Clause of standard Terms and Conditions Consumer Durables & IT Products executed between the said Complainant and Opposite Party and the same is as follows:

Clause No. 14:- The Borrower(s) shall be exclusively responsible for delivery of the product from the dealer/manufacturer/ seller, as the case may be and the company shall not be liable for any delay in delivery or non-delivery of the product and or with respect to the quality, condition, fitness, suitability or otherwise whatsoever of the said product. The Complainant had sent a legal notice to the Opposite Party dated 04.01.2016 which was replied by the Opposite Party dated 01.02.2016 and the same was being intimated to the Complainant that the Opposite Party being the financier is not responsible for the same and will continue to deduct the EMI's as the loan is in progress. It was further submitted by the Opposite Party that the said issue was also taken up with the dealer i.e. the Opposite Party No.1 by the Opposite Party referred herein and after the intervention the dealer had confirmed us that the product was delivered at the Complainants place and it was also informed to the Complainant under the suggestion of the Opposite Party No. 1 that if the said product is returned to the Opposite Party No.1 the amount which according to the complaint memo alleged by the Complainant will be refunded back, but till date the same has not yet been worked upon. The Opposite Party further submits that the Hon'ble Court does not have jurisdiction to entertain this complaint by virtue of Clause No.32 of the Terms and Conditions-Consumer Durable and IT Products which has been signed by the Complainant, as per the said Clause, in case of dispute, all claims will be referred to the Sole Arbitrator appointed by the Complainant. Thus, the Consumer Forums are debarred from entertaining such Complaints.

4.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-7  were marked.   

The 2^nd and 3^rd  Opposite Parties have submitted his Proof Affidavit and Written Arguments. On the side of the 2^nd & 3^rd  Opposite Parties documents Ex.B-1 to Ex.B-3  were marked.

5.    The 1^st Opposite Party did not appear  before this Commission even after sufficient notice to them. Hence the 1^stOpposite Party was set exparte.

6.     Points for Consideration:-

1. Whether there is deficiency in service on the part of the Opposite Parties?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Upon perusal of Ex.A-1, it is evident that on 28.06.2015 the Complainant had purchased Leather Recliner sofa (R-S+R) + full depth (R+O+R) +3R, Marble dining table with 6 Chairs and seat cover (Hussain) totalling amounting to a sum of Rs.1,58,000/-, wherein the Complainant had paid Rs.21,584/- by card and it is not in dispute that a sum of Rs.1,03,416/- was paid to the 1^st Opposite Party by arranging 5 Consumer Loans on the same day repayable in 10 EMI of Rs.12,272/- the remaining balance of Rs.33,000/- to be paid to the 1^st Opposite Party while delivering the said goods. The details of Consumer Loans granted by the 2^nd Opposite Party are as follows:-

Sl. No.	Loan No.	Installment Amount in Rupees
1	403 SCE 1100 6978	4,855
2	403 SCE 1100 8698	1,500
3	403 SCE 1100 8762	1,500
4	403 SCE 1100 8867	1,500
5	403 SCE 1100 8406	2,917
6	Total EMI	12,272

        The dispute is that the 1^st Opposite Party had not delivered the items mentioned in Ex.A-1 even after the expiry of due date. The Complainant vide Ex.A-2 has issued legal notice dated 04.01.2016, detailing the payments made to the tune of Rs.82,944/- (Rs.61,630/- EMI recovered and Rs.21,584/- Debit Card payment) and delivery of article by the 1^st Opposite Party to the Complainant and the dereliction of duty on the part of the 2^nd Opposite Party to inspect whether the asset is created or not from the proceeds of their loan before recovering the EMI’s from the Complainant and called upon the Opposite Parties for delivery of the said articles with compensation. Ex.A-3 is the reply given by the 2^nd Opposite Party on 11.01.2016 stating that they would investigate and get back shorly. Further the Complainant had on 19.01.2016 vide Ex.A-4 addressed to 2^nd Opposite Party had terminated the Loan Agreements and sought for return of 6 EMI’s so far recovered. Even after their communications the Opposite Parties did not turn up and hence the Complainant had issued a letter to the Central Bank of India, Triplicane Branch not to deduct further EMI from the account of Complainant in respect of the loans availed. The 1^st Opposite Party had not chosen to appear before ths Commission even after sufficient notice to them.

        The contention of the 2^nd Opposite Party is that they are not agent of 1^st Opposite Party. They being financier is not vicariously liable. The Opposite Party being the financier is not at all responsible for any delay in delivery of non delivery of the product and the matter be taken up with the dealer or manufacturer, the 1^st Opposite Party. Further the Opposite Parties had taken the issue to the dealer the 1^st Opposite Party who had confirmed them that the products was delivered at the Complainant’s place and it was also informed that the 1^st Opposite Party suggested that if the said product is returned to the 1^st Opposite Party, the amount would be refundable.

        Though the Opposite Parties 2 and 3 contend that they are not responsible for the delivery of product, it is seen that on 28.06.2015, when the Complainant had placed order with the 1^st Opposite Party at Chennai Trade Centre Exhibition at Nandambakkam they had in glove with the 1^st Opposite Party had arranged 5 Consumer loans to the 1^st Opposite Party on the same day, the 2^nd and 3^rd Opposite Parties are also responsible to ascertain about the delivery of goods and more so when there was a complaint from the Complainant about the non-delivery of product the 2^nd and 3^rd Opposite Parties having made investment ought to have inspected whether the assets were created.

        The 2^nd and 3^rd Opposite party by their reply dated 01.02.2016, Ex.B-3 had stated that the Complainant should approach the dealer for any quality or service issue, and as a good will gesture they had taken up the matter with the dealer, who had visited the Complainant’s place, inspected the product and the dealer had confirmed to refund the amount of the product after the return of the product. It was also contended that the Complainant had not returned the product, to return of product and take back the money, when the whole issue is for the non delivery of product, return of product and taking back of the money would not arise.

The contention of 2^nd and 3^rd Opposite Parties that there is no company as “Bajaj Finserv” and “Bajaj Finance Limited” has to be made as a party to the Complainant will not hold good as in Ex.A-1 and also the Statement of Account, Ex.B-1 of the Opposite Parties is generated in the name of Bajaj Finserve.

The contention that this Commission does not have jurisdiction to entertain the complaint by virtue of Arbitration clause No.32 of the terms and conditions, Consumer Durable and IT products is not sustained as the Complainant is not a signatory to terms and conditions Consumer Durable and IT products. Moreover, the Arbitration clause in the Agreement does not preclude this Commission in entertaining the consumer disputes.

        Considering the facts and circumstances of the case, this commission is of the considered view that the act of 1^st Opposite Party in not delivering the products to the Complainant as described in Ex.A1 after receiving payments and the 2^nd and 3^rd Opposite Party in not ascertaining the delivery of product by the 1^st Opposite Party to the Complainant but having recovered the 7 EMIs from the Complainant’s Account would amount to deficiency in service and unfair trade practice. Accordingly Point No.1 is answered in favour of the Complainant. 

Point No.2:-

        As discussed and decided on Point No.1 that the Opposite Parties have committed deficiency in service, the Opposite Parties are liable to refund a sum of Rs.95,216/- being the EMI recovery (Rs.73,632/- plus debit card payment of Rs.21,584/-) with interest at the rate of 9% per annum from the  date of filing of Complainant i.e., 08.02.2016, to pay Rs.1,00,000/- towards deficiency in service, which had caused mental agony to the Complainant along with a cost of Rs.5,000/- towards cost.

In the result the complaint is  allowed in part. The Opposite Parties  1 to 3 are jointly and severally directed to  refund a sum of Rs.95,216/- (Rupees Ninety Five Thousand Two Hundred and Sixteen Only) being the EMI recovery of Rs.73,632/- (Rupees Seventy Three Thousand Six Hundred and Thirty Two Only) plus debit card payment of Rs.21,584/- (Rupees Twenty One Thousand Five Hundred and Eighty Four Only), with interest at the rate of 9% per annum from the date of filing of complaint i.e., 08.02.2016 till the date of order, to pay Rs.1,00,000/-(Rupees One Lakh Only) towards deficiency in service, which had caused mental agony to the Complainant along with a cost of Rs.5,000/- (Rupees Five Thousand Only) towards cost to the Complainant,  within 8 weeks from the date of this order, failing which the above amounts shall carry interest at the rate of 6% p.a from the date of this order till the date of payment.

          In the result the complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 11^th day of July 2022.

 

S. NANDAGOPALAN                                                                 T.R. SIVAKUMHAR                                                          B.JIJAA

       MEMBER II                                                                                 MEMBER I                                                              PRESIDENT

List of documents filed on the side of the Complainant:-

 

Ex.A1	28.06.2015	Copy of the order of Chellamani & Co
Ex.A2	04.01.2016	Copy of the legal notice issued to the Opposite Parties
Ex.A3	11.01.2016	Copy of the reply given by the Bajajfinserve, Corporate Office
Ex.A4	19.01.2016	Copy of the Termination Agreement letter to Opposite Party No.2 by the Complainant
Ex.A5	25.01.2016	Copy of the letter given to the Central Bank of India, Triplicane Branch by the Complainant
Ex.A6	06.01.2016	Copy of the Postal acknowledgement received from the Opposite Party NO.1
Ex.A7	23.01.2016	Copy of the Professional Courier bill for sending the letter to Opposite Party No.2

 

List of documents filed on the side of the 2^ndOpposite Party:-

 

 

Ex.B1	-	Copy of the Statement of Account
Ex.B2	-	Copy of the terms and condition
Ex.B3	-	Copy of the Reply Notice

 

 

 

 

S. NANDAGOPALAN                                                               T.R. SIVAKUMHAR                                                                 B.JIJAA

       MEMBER II                                                                              MEMBER I                                                                     PRESIDENT