FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay     President.

Brief fact of this case:-This case has been filed U/s. 12 of the Consumer Protection Act    1986 by the complainant stating that the complainant has his bank account being A/C no. 30433938804 from where the complainant has been paying his EMI in favour of the financer    the op no. 2 and at the very inception of agreement    the complaisant paid advance money through the op no. 3. The complainant met with op no. 1 who is the distributor of different models of cars of “Mahindra and Mahindra” company and the complainant wanted to purchase a “Scorpio- Ex-B.S. IV” through the op no. 1 and for this he advance a sum of Rs. 20   000/- by cheque being no. 782984 drawn on SBI on 8.1.2014 and the op no. 1 informed that Ex-show room price of aforesaid Model will be Rs. 8   24   212/- and the chasis no. of that model will be a MAITH 2 GN KEA 16221 and engine no. will be 04M84616 and the op no. 1 issued a receipt being receipt no. BSIP 37954 dt. 8.1.2014 in favour of the complainant and on 10.1.2014 issued proforma invoice challan and the said cheque was credited on 9.1.2014. Then the op no. 1 arranged for financial assistance and the op no. 2 also agreed to give loan and they executed loan agreement as usual. Then the complainant applied before the State Transport Authority W.B. Writers Buildings for granting permit in respect of particular vehicle for contract carriage and said transport authority on 29.1.2014 by issuing letter granted permission for the same mentioning the said chasis no. and engine no. of proposed purchased vehicle. Before 2 days of delivery of the vehicle said Shree Automotive informed the complainant over telephone that the chasis no. and engine no. which was supplied to the complainant was sold out and he requested the complainant to change the said numbers in offer letter as well as in transport permit and he assured that he would compensate it by paying a sum of Rs. 4000/- to the complainant and then it puzzled the complainant compelled and to change the chasis no. and engine no. in his permit letter issued by transport authority as it will be his only source of income.

As per direction of the show room    the complainant contacted with op no. 2 and the said bank being financer issued D.O. dt. 6.2.2014 in the name of Shree Automotive but in the said delivery order dt. 6.2.2014    the bank intentionally mentioned that total price of the vehicle is Rs. 8   22   755/- and also show as if the complainant paid in cash and in the tax invoice it was mentioned that price of the vehicle is Rs. 8   33   765/- through the complainant knew that tax invoice is for Rs. 8   24   212/-. The Shree Automotive supplied quotation invoice for Rs. 8   24   212/- but it supplied the financer showing the purchased price of the said vehicle is Rs. 8   33   765/- and also shown that the complainant in cash deposited a sum of Rs. 9553/- and the complainant came to know that the show room deducted said amount from Rs. 20   000/- without consent of this complainant.   The said Shree Automotive never informed that the purchased price of the said vehicle increased.  On the other hand    as the said supplier made contract earlier and had taken advanced money    so he has no right to enhance price of the contracted vehicle.  Actually the OP no.1 in connivance with financer practiced fraud upon this poor petitioner. The OPn.1 for enhance the price of vehicle changed the original performance Invoice    tax invoices and booking slip in the Indusind bank    i.e. OP no.1 in connivance with OP no.2 fraudulently changed the aforesaid papers to substantiated their illegal claim and the total amount of the said vehicle is Rs.8   24   212/-. This complainant made down payment of Rs.2   56   830/- (agreement charge of Rs.7770/-    as advanced installment Rs.44   848/- and down payment of Rs.2   04   212/-) and remaining due amount is payable in 46 equal monthly installment i.e. per month Rs.16   830/- and this petitioner has been paying in E.M.1’s regularly up to date and when this petitioner booked the vehicle it was declared by the Shree Automotive Pvt. Ltd    that this petitioner is entitled to get a discount facility of Rs.15   000/- from the company and another extra discount of Rs.5000/- as he was previous customer of said company.  This petitioner is entitled to get a sum of Rs.40   000/- (Advanced Rs.20000/- discount Rs.15   000/- and special discount of Rs.5000/-) from the company.

The OP no.1 at the time of delivery of the said vehicle paid a sum of Rs.22   500/- as road tax and registration    handling charge of Rs.4   500/-    Hypothecation charge of Rs.1100/- i.e. total sum of Rs.28   100/- on behalf of this petitioner but the petitioner is entitled to get a sum of Rs.40   000/- and after payment of Rs.28   100/- this petitioner is entitled to get back Rs.11   900/- from the OP no.1  Besides this    the petitioner was compelled to expense extra sum of Rs.4000/- for changing the engine no. and chassis no. in getting permission from State Transport Authority    West Bengal.  The defendant no.1 also agreed to give excess discount of Rs.4000/- to this petitioner and this petitioner is entitled to get a sum of Rs.19000/- from the OP no.1. (Rs.11900/- + Extra expenses for changingnumbers inpermit Rs.4000/- and extra discount of Rs.4000/-) and this complainant had got delivery of the vehicle as he has no other alternative but this petitioner over telephone informed his claim amount and requested the OP to pay him (complainant) a sum of Rs.19900/- as claim amount.  This petitioner is entitled to get back a sum of Rs.19   900/- plus compensation and cost of this proceeding from the OP no.1. and the OP no.1 thereafter over telephone requested this petitioner to meet with him and as per said information this petitioner went to the OP no.1’s show room but they misbehaved with this petitioner and for this    this petitioner was compelled to leave that show room and thereafter on 25.1.2016    the General Manager of Shree Automotive (P) Ltd    sent a letter requesting this petitioner to take a cheque of Rs.8380/- (excess amount in lieu of Rs.19   900/-.  The Head Office of Mahindra and Mahindra at Park Street    Kolkata over telephone agreed to solve the problem and for this a seating was held on 11.2.2016 at the office in presence of Visal Sharma and after hearing both the petitioner and the OP no.1 said Mr. Sharma informed this petitioner that he would solve the problem but upto date he did nothing    and for this petitioner did not accept that proposal and having no other alternative this petitioner is compelled to file this case for redress.

Complainant filed the complaint petition praying direction upon the opposite party no. 1 to return a sum of Rs. 19   900/- and to pay a sum of Rs. 2   00   000/- for compensation and to pay a sum of Rs. 10   000/- as litigation cost.

Defense Case:-    The opposite party No.1contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant approached the OP no.1 for purchasing one scorpio car and deposited Rs.20   000/- as booking money on 10.01.2014.  The complainant approached the OP no.2 for bank loan.  The OP no.1 issued two proforma invoice dated 10.01.2014 and 29.01.2014.  The reason for issuance of two proforma invoices was initially the proforma invoice dated 10.01.2014 issued for immediate bank loan but the complainant committed some delay for sanction of bank loan and therefore again another proforma invoice has been prepared where present price of the vehicle has been mentioned and because of escalation of price of the vehicle during this period cost price of the vehicle has  enhanced.  The OP no.2 sanctioned loan on 10.02.2014 and disbursed amount to the OP no.1 and car was delivered to the complainant on 10.02.2014.  As the complainant committed delay in payment of  total price of the car market value of the car enhanced and the OP no.1 after receipt of entire price delivered the vehicle with its present market value.  Regarding issuance of chassis number and engine number of the vehicle for permit the OP no.1 submits that until and unless the complainant paid the entire cost of the car it is irrelevant to ;issue any such number and fixed a particular car to a particular customer.  Because in the automobile market cost price enhanced as per the manufacturer’s discretion and being dealer is only to follow the same and therefore a dealer cannot fix a car for a customer for indefinite period otherwise dealer is to suffer with the enhanced price of the vehicle.  Therefore the story of the complainant regarding issuance of chassis no. and engine no. has no legs to stand and is baseless.  That apart the complainant purchased the car on 10.02.2014 and after the lapse of so many moneys and year filed this baseless case just to earn some money in an illegal manner.  The complainant did not raise any objection during this period or raise any voice and accepted the issue and now come up with this false plea which is not tenable as time barred and liable to be rejected and the OP no.1 submits that the allegations labeled by the complainant are all baseless and therefore is liable to be dismissed with cost.

The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that on or about January 2014 the complainant approached the Indusind bank Limited    consumer finance division at its office at 41    Shakespeare Sarani    Kolkata-700017 showing his desirous of purchasing one numbered Mahindra & Mahindra Scorpio EX vehicle and approached the bank for financial assistance of Rs.6   20   000/-.  The complainant was ready and willing to pay interest as required for availing the loan facility.  The complainant also agreed to abide by the terms of the contract and the complainant obtained financial assistance from the petitioner and executed one loan agreement dated 10^th February 2014 one loan agreement was entered into between Indusind Bank Limited as the hirer    the complainant as the borrower and one Rajkumari Sharma as the co-borrower/guarantor.  In terms of the loan agreement bearing no.WCS00763C    dated 10^th February 2014    the parties of the loan agreement willfully agreed to resolve all disputes arising and touching by and under the agreement through arbitration under Arbitration and Conciliation Act    1996 and accordingly parties thereto agreed to refer their dispute to the sole arbitrator.  The parties thereto agree that the venue of the Arbitration is to be at Chennai. 

The complainant purchased one Mahindra & Mahindra Scropio Ex vehicle bearing Engine no.GNE4A81435 and Chassis no. E2A23543.  The vehicle was hypothecated and charged in favour of the petitioner in terms of the said agreement and the said Deed of Hypothecation cum Loan agreement dated 10^th February 2014 and by way of first and paramount charge over the said vehicle and in terms of the said agreement the complainant was required to pay the principal sum of Rs.6   20   000/- alongwith interest @6.90% per annum in 47 equated monthly installments and the complainant failed and neglected to repay the installments in terms of the said agreement.  In view of the default committed by the OP    although the agreement stood terminated ipso facto    however the consumer division    Indusind Bank Ltd has issued one notice terminating the loan agreement dated 10^th February 2014 and it became entitled to recover the entire remaining balance which was payable by the complainant in terms of the said agreement and the bank made several requests and reminder to the complainant to make payment but the complainant deliberately ignored such requests and reminders of the bank.  The complainant did not make further payments.  The complainant    however refused to pay the aforesaid sum or any art of portion thereof though the complainant is liable to pay and the bank is entitled to recover the same and the said agreement dated 10^th February 2014 contains an arbitration clause wherein all ;disputes and differences arising out of or touching the issues arising out from this agreement    shall be referred to arbitration in accordance with the said agreement under Arbitration and conciliation Act    1996.  This is hereinafter referred to as the said Act of 1996.  The OP carves leaves to refer the relevant clause at the time of hearing    if necessary.

Issues/points for consideration

On the basis of the pleading of the parties    the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

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 opposite parties.

           The answering opposite party nos. 1 and 2 filed separate evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party nos. 1 and 2 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

           Argument as advanced by the agents of the complainant and the opposite party nos. 1 and 2 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction    cause of action and whether complainant is a consumer in the eye of law    are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version    have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point    jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chinsurah    Hooghly and op no. 3 has it’s office at Bandel    Hooghly which are lying within the territorial jurisdiction of this District Commission. Moreover    this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus    the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover    u/s 11 of the Consumer Protection Act    this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24 A of the Consumer Protection Act    1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act    1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act    1986. Complainant is a consumer in the eye of law. At the time of argument ld. Lawyer for the opposite parties argued that there is arbitration clause in the higher purchase agreement and loan agreement executed in between the parties but the complainant without availing the arbitration has filed this complaint case which is pre-matured and so it is liable to be dismissed. In this regard it is the settled principle of law that arbitration clause in the agreement does not bar the jurisdiction of Consumer Forum/ Commission to entertain the complaint. This legal principle has been observed by Hon’ble National Consumer Disputes Redressal Commission    New Delhi and it is reported in 2022(2) CPR 50(NC). Over this issue similar view was adopted by Hon’ble State Consumer Disputes Redressal Commission    Delhi and it is reported in 2022(2) CPR 75(Del.). Thus it is crystal clear that the above noted point of the argument on the part of the opposite parties cannot be accepted. In course of argument it is also argued by the ld. Advocate of opposite parties that the vehicle was granted and/ or released on the basis of higher purchase and loan agreement executed in between the complainant and opposite parties and it was given for commercial purpose. Now the question is whether this case shall come under the ambit of commercial purpose as per sub Clause (i) of Section 2(1)(d) of Consumer Protection Act    1986. In this regard it is very important to note that the explanation of the above noted Section depicts that any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment    such purchase of good is not a commercial purpose. So    the question therefore is whether the complainant has been using the said vehicle for self-employment?  The word “self-employment” has not been defined. Therefore it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that vehicle was used for only self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis    it would therefore be self-employment. This legal principle has been observed by the Hon’ble Apex Court in the case of Sunil Kohli Vs. M/S Purearth Infrastructure Ltd. and it is held on 1 October    2019. Over this issue it is also the settled principle of law that when any person avails service for commercial purpose to come within meaning of consumer as defined in the  Act    he will have to establish that services were availed exclusively for purposes of earning his livelihood by means of self-employment. This legal principle has been observed by Hon’ble Apex Court and it is reported in II (2022) CPJ 9 (SC). In this regard after going through the evidence on record finds that the complainant in his evidence has categorically stated that he had taken the said vehicle for earning his livelihood but this part of evidence has not been rebutted by the opposite parties by giving any satisfactory evidence and so it cannot be said that the complainant is not a consumer and this case is not maintainable. Thus    the above noted point of argument of the opposite parties also cannot be accepted.

All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus    the above noted three points of consideration are decided in favour of the complainant.

The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions    there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that complainant has his bank account in the op no. 3    bank.
2. It is also admitted fact that the said account no. is 30433938804.
3. There is no controversy over the issue that the complainant had been paying EMI in favour of the op no. 2 through op no. 3 bank.
4. There is no dispute over the issue that the complainant had come across with op no. 1 distributor for purchasing a vehicle.
5. It is admitted fact that the complainant purchased “Scorpio- Ex-B.S. IV” vehicle through op no. 1.
6. It is also admitted fact that in the matter of purchasing the said vehicle the complainant had given advance of Rs. 20   000/-.
7. There is no controversy over the issue that the said advance of Rs. 20   000/- was given by way of cheque being no. 782984 drawn on SBI on 8.1.2014.
8. There is no dispute over the issue that the model of the vehicle will be a MAITH 2 GN KEA 16221 and engine no. will be 04M84616.
9. It is admitted fact that op no. 1 credited the above noted cheque on 9.1.2014.
10. It is also admitted fact that the op no. 1 arranged for financial assistance in favour of the complainant.
11. There is no controversy over the issue that op no. 2 of this case also agreed to give loan and to that effect a loan agreement was executed in between op no. 2 and the complainant.
12. There is no dispute over the issue that the complainant thereafter applied before the State Govt. Transport Authority for granting permit.
13. It is admitted fact that the West Bengal State Transport Authority issued permit in respect of the above noted vehicle for contract carriage on 29.1.2014.
14. It is also admitted fact that the op no. 1 thereafter informed the complainant over telephone that the vehicle containing above noted chasis no. and engine no. has been sold to the third party and so the complainant was requested to purchase another same type of vehicle.
15. There is no controversy over the issue that the op no. 2 financer issued delivery order on 6.2.2014 in the name of the op no. 1 but the price of the said vehicle was enhanced than that of the earlier price.
16. There is no dispute over the issue that the complainant had made down payment of Rs. 2   56   830/- in favour of the op no. 1 and it was settled that remaining amount is payable in 46 equal monthly installments.
17. It is admitted fact that the rate of monthly installment of EMI was Rs. 16   830/-.
18. It is also admitted fact that according to the case of the complainant he is entitled to get refund of Rs. 19   900/- from the op no. 1 but op no. 1 has not paid the said amount.
19. There is no controversy over the issue that the complainant thereafter issued legal notice in favour of op no. 1 for refund of the amount of Rs. 19   900/- and compensation of Rs. 2   00   000/-.
20. There is no dispute over the issue that op has not given any reply of the legal notice.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

          On the background of the above noted admitted facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant alleged that due to fault of the op no. 1 he had to pay excess amount to his financer op no. 2 and so the complainant is entitled to get refund of Rs. 19   9000/- along with compensation of Rs. 2   00   000/- and litigation cost. But on the other hand the op no. 1 has adopted the plea that this case is not maintainable as there is arbitration clause in the hire purchase agreement and so this case is liable to be dismissed. The op no. 2 has taken the defence alibi that the complainant has failed to pay the monthly installment and so this case is not maintainable.

           In the matter of arriving at the decision regarding above points of difference and/ or apple of discords it is the settled principle of law that Reserve Bank of India has issued a guide line on 1.7.2006 for the recovery of loan by the private banks    in view of clause 3 of the guide lines    a prior notice of minimum 60 days is required to be delivered. In this regard this legal principle has been observed by the Hon’ble Apex Court in the case of Manager    ICICI bank vs. Prakash Kaur which is reported in (2007) 2 SCC page 711. Hon’ble Apex Court in the case of M/S Magma Rincrop Ltd. vs. Rajesh Kumar Tewari has also been pleased to held that in a case where the requirement to serve notice before repossession is implicit in the hire purchase agreement    non-service of prior notice would tantamount of deficiency of service for breach of hire purchase agreement.

In view of the principle of law which is observed by the Hon’ble Apex Court it is crystal clear that the act of the op nos. 1 and 2 is illegal and it amounts to deficiency of service.

             A cumulative consideration of the above noted discussion goes to show that the complainant has proved his case in respect of all the points of consideration and so he is entitled to get relief in this case.

In the result it is accordingly

ordered

that the complaint case being no. 199 of 2016 be and the same is allowed on contest but in part against op nos. 1 and 2 but it is dismissed against op no. 3.

It is held that complainant is entitled to get refund of Rs. 19   900/- and also entitled to get compensation of Rs. 50   000/- and litigation cost of Rs. 5000/- from the op nos. 1 and 2.

Opposite party nos. 1 and 2 are directed to pay the noted amount of Rs. 74   900/- equally within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

           In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C.    Hooghly which is to be utilized for the purpose of poor litigant public.

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.