FINAL ORDER/JUDGEMENT
MinakshiChakraborty, Presiding Member.
Brief facts of the case: This case has been filed U/s. 12 of the Consumer Protection Act,1986 by the complainant stating that the complainant desired to purchase a new Honda WRV Car after exchanging their old Honda City Car for which the complainant appeared to the Opposite Party no. 1 on 20/07/2017 and the Complainant for his paucity of fund wanted to purchase the car by loan and that was arranged by the Opposite Party no. 1through Opposite Party no. 3 being loan account no. LACSU00036590822 and on the same day i.e. on 20/07/2017 one estimation made by the Opposite party no. 1 and they also assured for the old Honda City Car to be adjusted worth Rs. 45,000/- and the Opposite party will receive the old car and the Complainant paid the down payment worth Rs. 6,00,000/- through his father Dr. ShyamalBaranMandaland brother Dr. Samik Kumar Mandaland the Opposite Party issued receipt for the same.
The Complainant also states that on several times the complainant contacted to the Opposite Party no. 1 for delivering his car but the Opposite party failed todoso, moreover the Opposite Party issued one letter on 18/12/.2017 which was after lapse of five months of the down paymentthat the Opposite Party would deliver the car within 31/12/2017.
The complainant also states that the Opposite party no. 3 deducted the monthly installment through opposite party no. 4 from the month of December, 2017of Rs. 8060/- and loan was sanctioned by the Opposite Party no. 3 and the Opposite Party nos. 3 and 4 made payment to the new car but the Complainant did not get any new car from the Opposite Party No. 1 moreover the Opposite Party did not take the old car from the complainant.
The Complainant also states that then and there he visited the Opposite Party no. 1 and asked for his new car on reply the Opposite Party no. 1 issued one written assurance that the Opposite Party would deliver the new car bythe month of January, 2018 but they failed and on 18/02/2018 the Complainant received the car from the Opposite Party no. 1 along with documents of the car where from it is revealed that the Opposite Party no. 1 willfully harassed the complainant for delivering the car and created huge monetary and mental pressure upon the Complainant and that tax invoice was issued on 07/11/2017by the Opposite Party no. 2 three months earlier before the delivery , and insurance purchased in low price and tax for five years where the Opposite Party told more than five years and moreover the Opposite Party delivered the car after one free service where the Complainant did not ride the car and Opposite Party no. 3 deducted the monthly installment for the new car.
The Complainant further states that after getting the New Honda WRV model car from the Opposite Party no. 1 the complainant narrated the entire allegation through email on 07/03/2018but the Opposite Party no. 1 kept mum.Thus, Opposite Party nos. 1, 2 and 3 are so negligent to provide proper service towards the Complainant.
Complainant has filed the present complaint praying direction upon the opposite party no. 1 to take the Old Honda City Car being no. WB16L9469 or compensate the amount of Rs. 45,000/- and Rs. 24,180/- for EMI of the new car before delivering the same with interest and to produce all the processing documents regarding the new Honda WRV since down payment to deliveryand to pay a sum of Rs. 50,000/- for deficiency in service, Rs. 20,000/-for mentalpainand agony and Rs. 15,000/-for harassment and sufferings and Rs. 15,000/- for litigation cost and to pass any other order or orders as deem fit and proper.
Defense case: The opposite party no. 2 contests the case by filing the written version denying inter-alia all material allegations leveled against him and states that the complainant approached the opposite party no. 1 for purchasing one WRV Car in exchange of his old Honda City car with the financial help from opposite party no. 3 and accordingly the opposite party no. 1 approached the opposite party no. 2 (authorized dealer of Honda car) and deposited booking money of Rs. 51,000/- for WRV VXMT Petrol Golden Brown color on 24.8.2017 vide cheque no. 261969 drawn on Syndicate Bank dt. 7.8.2017 and subsequently the opposite party no. 1 issued another cheque for Rs. 1,00,000/- vide cheque no. 000022 dt. 31.10.2017 drawn on Bandhan Bank but the same has been dishonored after presentation to the bank for encashment and the opposite party no. 2 received payment of Rs. 3,83,030/- from ICICI bank on 1.11.2017 through RTGS and another payment was received for Rs. 2,00,000/- on 29.1.2018 vide cheque no. 000059 dt. 20.1.2018 drawn on Bandhan Bank but again the said cheque has been dishonored. Then the opposite party no. 2 requested the opposite party no. 1 for payment through NEFT or RTGS only.
The opposite party no. 2 subsequently received Rs. 1,40,000/-, Rs. 30,000/- and Rs. 30,000/- on 6.2.2018 followed by Rs. 51,778/- ob 12.2.2018 and Rs. 1,111/- on 16.2.2018 (being paid by DSA for cheque bouncing charge) and thereafter took delivery of the vehicle on 18.2.2018. After proper communication the opposite party no. 1 delayed the matter of payment of the entire price of the vehicle at a time and the opposite party no. 1 did not pay the charges for life time tax payment and therefore the opposite party no. 2 obtained road tax for 5 years after receiving confirmation from the customer. The opposite party no. 2 done temporary registration twice because of the complainant’s confusion of doing permanent registration for 5 years/ life time. Since 1st TCR (temporary certificate of registration) expired on 16.3.2018 there was no alternative left apart from doing TCR once again done on 21.3.2018 and the complainant gave confirmation for 5 years tax on 26.3.2018 and thereafter finally permanent registration done on 28.3.2018.
The entire episode involved with the opposite party no. 1 who is solely liable and responsible for the alleged sufferings of the complainant and the opposite party no. 2 did not commit any fault or deficiency in service in the matter and therefore the complainant is not entitled to claim any amount as compensation from the opposite party no. 2. Thus, the instant case should be dismissed as it is not maintainable.
The opposite party no. 3 contests the case by filing the written version denying inter-alia all material allegations leveled against him and stated that the complainant had approached ICICI bank Ltd. for credit facility/ loan for purchasing of a vehicle no. 4.9.2017 vide preliminary credit facility application form no. 666-6473346 and on the basis of said preliminary credit facility application form the opposite party no. 3 sanctioned loan to the extent of Rs. 390,541/- vide loan account no. LACSU00036590822 and the complainant availed the loan amount from ICICI bank for purchasing of the said vehicle and the said vehicle is hypothecated to ICICI bank as security and the complainant never informed the answering opposite party that the opposite party no. 1 failed to deliver the vehicle to the complainant because the vehicle is hypothecated to bank as security. The credit facility/ loan was sanctioned according to the terms and conditions contained in the loan agreement and the complainant duly admitted and acknowledged by executing security documents and as the loan was already disbursed and availed by the complainant, the monthly installment was deducted by the bank through Axis bank, the banker of the complainant. Bank has disbursed the credit facility/ loan based upon the Tax Invoice and upon execution of the Credit Facility Agreement from which it was clearly captured that the starting date of deduction of EMI amount was 1.12.2017 and the end date is 1.11.2022 which was duly accepted and signed by the complainant and as a borrower the complainant is duty bound to intimate the bank regarding delivery of the hypothecated vehicle by the dealer because the vehicle is the security against the credit facility/ loan. So, the opposite party no. 3 is not a necessary party and so the name of the opposite party should be expunged from the case and the complaint case is not maintainable against the opposite party no. 3 and is liable to be dismissed with exemplary cost against the opposite party no. 3.
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the answering opposite parties.
The answering opposite party no. 2 filed evidence on affidavit which transpires in the averments of the written version so it is needless to discuss.
Opposite party no. 3 files a petition on 27.12.2021 to grant his written version as his evidence on affidavit.
Complainant and answering opposite parties filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.
Argument of both sides heard at length.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get any relief as prayed for?
DECISION WITH REASONS
Issue number 1
In the light of the discussion hereinabove and from the materials on record it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (d) of the Consumer Protection Act 1986.
Issue number 2
Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that those are not exceeding Rs. 20,00,000/- so far as Consumer Protection Act 1986 is concerned. So, this Commission has territorial as well as pecuniary jurisdiction to entertain the present case.
Issue nos.3&4 :
Both the issues are taken up together for the sake of convenience.
On scrutiny of the Brief notes of argument along with evidence of affidavit of O.P-2 and O.P-3 it appears that the complainant approached O.P-1 who, in his turn approached O.P-2 (authorized dealer of Honda car) and the O.P-1 deposited booking money of Rs. 51000/ for WRV Petrol golden brown car on 24/8/2017 vide cheque no. 261969 drawn on Syndicate bank. It further appears that another cheque for Rs. 1,00,000/ vide cheque no. 000022 dated 31/10/2017 drawn on Bandhan bank which was dishonored after presentation. The O.P-2 received payment of Rs. 3,83,030/ on 1/11/2017. It further appears that an amount of Rs. 2,00,000/ was received by O.P-2 on 29/1/2018 drawn on Bandhan bank which was also dishonored as a result of such dishonored cheques on two occasions the O.P-2 requested the O.P-1 for payment through NEFT or RTGS only. On scrutiny of the brief notes of argument of O.P-2 it appears that the said party has subsequently received Rs. 1,40,000/ , Rs. 30,000/ and Rs. 30,000/ on 6/2/2018 followed by RS. 51778/ on 12/2/2018 and Rs. 1118/ by DSA for cheque bouncing charge on 16/2/2018.
A careful scrutiny of the BNA of O.P-2 relating to payment of the total amount has been received by it on different occasions through part payments as a result of which the delivery of the vehicle was deferred till 18/2/18. The entire episode relating to payment on different occasion appears to be responsible for making delay about delivery of the vehicle on 18/2/2018.
The written version of the O.P-2 dated 2/9/18 about delay on different occasions for making payment for purchase of HONDA WRV car by the petitioner has not been categorically challenged by the petitioner himself though he appears to have filed affidavit in chief on 1/4/19.
This commission has made scrutiny of the documents annexure A of which reveals that the same is a document of ICICI bank relating to car loans dated 4/7/17 and annexure B which is a credit facility application form at page 20 that an amount was asked to be drawn not exceeding Rs. 3,90,541/ and the aforesaid amount was asked to be drawn before 1/12/17. Without entering into any other details about drawn of loan amount from the ICICI bank the credit facility was extended upto 1/12/17 for Rs. 3,90,541/, which in a round about way, gives rise to the assumption that there was delay about drawl of money on different occasions for making payment of the entire amount for the purchase of the vehicle and as such gives a go by to the statement of the petitioner that the O.P-1 willfully harassed the petitioner for delivery of the car and created huge monetory and mental pressure upon him.
The BNA on behalf of O.P-3 relates to credit facility for the purchase of one four wheeler and such application has been filed before iton 4/9/17 for sanction of Rs. 3,90,541/ and complainant never informed the O.P-3 about delay in delivery of the car hypothecated to the bank. This O.P makes statement about availing of the car loan by executing security documents for which deduction of EMI started on 1/12/17 and the end date is 1/11/22 which appears to have been accepted and signed none else but the complainant himself which also apparently goes to show that the car loan was no0t ended atleast not before 1/12/17 and as such the prayer of the complainant about delay in delivery of the car appears to have no basis.
Both the issues are thus disposed of.
Hence,
ordered
that the complaint case no. 87 of 2018 be and the same stands dismissed on contest against O.P-2 and 3 and also stands dismissed ex parte against O.P- 1 and 4.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
