Date of filing:      24.06.2019

                                                                                                                                 Date of disposal : 28.04.2023

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                 .…. PRESIDENT

                 THIRU.P.VINODH KUMAR., B.Sc., B.L.,                                                    .....MEMBER-I

                 THIRU.P.MURUGAN,M.Com.ICWA(Inter),B.L.,                                        ....MEMBER-II

 

RBT/CC. No.105/2022

THIS FRIDAY, THE 28th DAY OF APRIL 2023

(CC.No.98/2019 sent from DCDRC, Chennai North)

 

Mr.S.Shaik Asadulla,

S/o.Shaik Dawood Ali,

No.16/33-1, Nammaiah Maistry Street,

New Washermenpet, Chennai 600 081.                                          ……Complainant.     

                                                                          //Vs//

1.M/s.Walters Yamaha,

   Rep. by its Manager,

   A Division of SVD Motors Private Limited,

   No.740, Tiruvottiyur High Road,

   New Washermenpet, Chennai 600 081.

 

2.The Manager,

   M/s.Indusind Bank Limited, Loan Division,

   No.3, East India Chambers,

   2nd & 3rd Floors, Village Road,

   Nungambakkam, Chennai 600 034.                                    .......Opposite parties.

 

Counsel for the complainant                       :   M/s.Y.Mohamed Ghouse, Advocate.

Counsel for the 2nd opposite party             :   Mr.K.Moorthy, Advocate.

Counsel for the 1st opposite party              :   Exparte.

                         

This complaint has been filed before DCDRC, Chennai (North) as CC.No.98/2019 and transferred to this commission by the order of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as CC.No.105/2022 and this complaint coming before us on various dates and finally on 27.03.2023 in the presence of M/s.Y.Mohamed Ghouse counsel for the complainant and Mr.K.Moorthy counsel for the 2nd opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service with regard to the loan obtained by the complainant for the purchase of vehicle along with a prayer to direct the opposite parties to pay a sum of Rs.2,00,000/- towards compensation for the mental agony caused to the complainant. 

Summary of facts culminating into complaint:-

 

It was the case of the complainant that he visited the office of the 1" opposite party for purchase of a brand new YAMAHA motor cycle on 30.06.2017 and they informed that the cost of new YAMAHA motor cycle on Road price would be Rs.96,018/- and further informed that he could avail loan facilities from the 2nd opposite party by making an initial payment of Rs.23,417/- to the 1st opposite party towards cost of the new YAMAHA motor cycle and that the balance amount could be paid through EMI at the rate of Rs.3,366/-per month for a period of 29 months by ECS payments. Accordingly he effected an initial payment of Rs.23,417/- by cash towards total cost price of Rs.96,018/- for a new YAMAHA Motor cycle against Invoice No.V1700855 dated 30.06.2017 and Receipt No. VR1700437 dated 30.06.2017 for Rs.23,417/- duly issued by the 1st opposite party in favour of the complainant, besides making an ECS payment for a sum of Rs.3,366/- as suggested by the 1" opposite party. While this being so, one Mr Lakshmanan from the 2nd opposite party rang up the complainant on 05.07.2017 stating that his loan had not been approved as he was required to pay an additional sum of Rs.4,757/- to take delivery of the YAMAHA motor cycle as the representatives of the 2nd opposite party has erroneously quoted the EMI as Rs.3,366/-. Accordingly he duly paid the additional amount of Rs.4,757/- by cash and also the registration charges of Rs.150/- by cash on 07.07.2017.  The payment  was acknowledged by the 1st opposite party vide Receipt No. VR1700481 and RC 448 both dated 07.07.2017 respectively. Further, the complainant was informed by the 2nd opposite party about the change in EMI payment through ECS as Rs.3,156/- per month instead of Rs.3,366/- per month for a period of 29 months. The above information was provided to complainant rather belatedly by both the opposite parties. When the complainant enquired with the 2nd opposite party as to when he has to effect EMI payment, he was informed by the 2nd opposite party that a message would be sent to the complainant's cell phone 9677074948 about the exact date of commencement of EMI payment to enable him to effect the EMI payment on the stipulated date without any default for subsequent months. One Mr Syed of the 2nd Opposite party rang up on 09.08.2017 to the complainant stating that his ECS payment for Rs.3,366/- had bounced. When the complainant informed the concerned person that he had not at all received any SMS or Call on his phone about the commencement of EMI payment as assured. The said Mr.Syed informed the complainant that the message had already been sent to his son's mobile number. When the complainant informed Mr.Syed that his ECS payment was for Rs.3,156/- only, the said Mr.Syed reiterated that the ECS payment was for Rs.3,366/-. Shocked by the misrepresentation of the 2nd Opposite party, the complainant passed all the bill details of YAMAHA motor cycle through WhatsApp to Mr.Syed's mobile number 9087854045 and rang him at 6.15 pm on the same day i.e.08.08.2017 about the sending of all the relevant details through WhatsApp, to which the said Mr.Syed informed the complainant that he would ring him back. Accordingly, Mr Syed informed the complainant over phone at 8.15 pm on the same day, stating that he received the message sent through WhatsApp and admitted the mistake committed by Mr Lakshmanan of the 2nd opposite party. Due to sheer negligence, dereliction of duty and deficiency in service on the part of both the opposite parties in not informing the complainant properly and promptly about the change in the amount of EMI and commencement of EMI payable by the complainant, both the opposite parties had caused the ECS to be dishonoured thereby causing a lot of hardship and mental agony to the complainant. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to pay a sum of Rs.2,00,000/- towards compensation for the mental agony caused to the complainant. 

Crux of the defence put forth by the 2nd opposite party:-

The complainant approached the Indusind Bank Limited, Anna Nagar Branch for the financial assistance of Rs.80,000/ by way of Loan cum Hypothecation Agreement No.TCB04228H for the purchase of the vehicle YAMAHA FZ-S FI 150 CC on 12.07.2017. The total Agreement Value was Rs.100980/- which was to be repaid in 30 Equated Monthly Installments at the rate of Rs.3366/- each month from 07.08.2017 to 07.12.2019 on 7th of every calendar month without any delay or default. The 2nd opposite party’s staffs explained the complainant that the invoice price of the vehicle was Rs.96,018/- and the complainant has to pay Rs.23,417/- as initial payment and Rs.3,366/- to be paid as monthly installments for 30 months. Accordingly the complainant had paid the same amount of Rs.23,417/- on the same day itself. The 2nd opposite party deny that the bank asked the complainant to pay additional initial payment and it was submitted that the amount of Rs.4,757/- and Rs. 150/- which are mentioned in the complaint was not received by the bank till date.  It is false to state that the bank  staff informed the complainant that the exact date of EMI would be informed through SMS to the Cell No 9677074948. It was submitted that the complainant provided the cell No 9500170904 as his contact number in the loan agreement and the same number only available in his Statement of Account and the reminder SMS insisting for keeping sufficient balance in the account also sent to the same number prior to the date of EMI. It was further submitted that the date of commencement of EMI and the schedule of repayment was already clearly explained to the complainant on the date of execution of the loan agreement itself and after accepting the same the complainant signed the agreement along with the schedule of repayment of loan and a copy of the same was also provided to the complainant on the date of execution of the agreement itself.  Hence there is no deficiency in service and negligence against the bank. But the act of the complainant clearly exhibits fraudulent and ulterior motive to cheat the bank. It was submitted that the bank had sent the SMS to the complainant‘s mobile number which has been filled by the complainant in the loan application form. The complainant was having Overdue of Rs.7676/- and future due of Rs.6732/- aggregated to Rs.14408/- was pending in his loan account as on 06.11.2019. Further it was submitted that due to fail to pay the overdue, the respondent need to pay the additional interest charges of 3% per month till the amount realization thereof. The complainant has to pay a sum of Rs.5182/- towards additional interest charges as on 06.11.2019. Thus the 2nd opposite party sought for the dismissal of the complaint.

On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A7. On the side of the 2nd opposite party proof affidavit was filed and documents Ex.B1 &Ex.B2 were filed by them. The 1st opposite party was called absent and set exparte on 20.09.2019 for non appearance and for non filing of written version within the mandatory period as per the statute.

Points for consideration:

Whether the complaint allegations with regard to the loan obtained by the complainant towards the purchase of vehicle from the opposite parties has been successfully proved by the complainant by admissible evidence?

If so to what reliefs the complainant is entitled?

Point No.1:-

The following documents were filed on the side of complainant in support of his contentions;

Performa invoice by the 1st opposite party dated 30.06.2017 was marked as Ex.A1;

Tax Invoice by the 1st opposite party dated 30.06.2017 was marked as Ex.A2;

Receipts issued by the 1st opposite party dated 30.06.2017were marked as Ex.A3 & Ex.A4;

Vehicle booking Receipt by the 1st opposite party dated 07.07.2017 was marked as Ex.A5;

Legal notice issued by the complainant to the opposite parties dated 11.08.2017 was marked as Ex.A6;

Reply notice of the opposite party dated 30.08.2018 was marked as Ex.A7;

On the side of 2nd opposite party the following documents were submitted in support of their defence;

Copy of loan agreement dated 12.07.2017 was marked as Ex.B1;

Copy of Statement of Accounts and Settlement dated 05.01.2023 was marked as Ex.AB2;

The crux of the arguments advanced by the learned counsel appearing for the complaint is that for the purchase of a brand new YAMAHA MOTOR CYCLE he approached 1st opposite party on 30.06.2017 who informed that the Road price of the vehicle would be Rs.96,018/-.  Thus vehicle was purchased by paying Rs.23,417/- as initial payment and the balance to be paid by way of EMI at Rs.3366/- per month for a period of 29 months favouring the 2nd opposite party.  One Mr.Lakshmanan from 2nd opposite party/Bank contacted the complainant and sought for an additional amount of Rs.4757/- to take delivery of the vehicle.  The additional amount was paid and it was informed by the said person that his EMI was modified from 3366/- to Rs.3156/-per month.  Also informed that the date of payment of EMI would be informed to him by way of message sent to complainant’s cell phone No.9677074948.  On 09.08.2017 the 2nd opposite party called the complainant and informed that his ECS payment of Rs.3366/- has bounced. When enquired about the intimation it was stated by them that it has been sent to the complainant’s son phone number.  When the complainant informed that he was earlier stated that the EMI was only Rs.3156/- the 2nd opposite party reiterated that the ECS payment is only Rs.3366/-.  When the same was enquired there was no response.  Thus due to the negligent attitude of both parties the complainant‘s cheque got bounced which caused mental agony and hardship to the complainant and thus he sought for the complaint to be allowed.

On the other hand, the 1st opposite party remind exparte and the counsel appearing for 2nd opposite party argued that for the complaint allegations a suitable reply was given on 30.08.2017 and still there is due of Rs.9,590/- to be paid by the complainant.  On merits it is argued that it is submitted that the total agreement value is Rs.1,00,980/- which is to be paid in thirty EMIs at Rs.3366/- each month from 07.08.2017 to 17.12.2019 on seventh of every month.  Further the amount of Rs.4757/- and Rs.150/- paid by the complainant was not received by the Bank till today.  As the complainant had provided the cell number 9500170904 as his contact number in the loan agreement, the same is available in the Statement of Account for sending SMS reminder, for which the EMI reminder was sent. The loan agreement has been clearly read over to the complainant who affixed his signature in the same.  Thus they sought for dismissal of the complaint.

On appreciation of the entire pleadings and materials the factum of purchase of vehicle from 1st opposite party with the financial assistance from the 2nd opposite party on hire purchase was not denied by the complainant and the 2nd opposite party.  However, the main dispute was with regard to the EMI amount and the initial payment.  It is seen that apart from the initial payment of Rs.23,417/-, the complainant had made payment of Rs.150/- (Ex.A4) and Rs.4757/-(EX.A5) for which the 1st opposite party had issued valid receipts.  However, it is the argument of the 2nd opposite party that they have not received the same.  The loan agreement was not produced by the complainant. However the same was produced by the 2nd opposite party. Negating the version of the opposite party that no phone number ending with ‘948‘ was produced by the complainant, the loan agreement (Ex.B1) contains the phone number ending with ‘948‘.  It proves that the version of 2nd opposite party that the information regarding EMIs was sent to the complainant’s son mobile number is false.  Under the first schedule of the loan agreement the loan amount was mentioned as Rs.80,000/-and the number of installments as 30.  In the second schedule it is seen that for 29 months the installment was written as 3360/-. However, the complainant disputed the signature in the loan agreement . Though the Consumer Commissions conduct proceedings in summary manner, comparison of signature could be easily done and hence this commission compared the signatures. This commission when verified the signatures of the complainant with the admitted signatures, even with the naked eyes we could found that the signature varies.  Hence we accept the version of the complainant that they are forged signatures.  

 On total analysis, this commission was of the opinion that the change in EMI was not properly intimated to the complainant.  Though the complainant was made to know that the EMI was 3366/- per month later after receipt of an additional amount of Rs.4757 and Rs.150/- he was informed that the EMI was reduced to 3156/-.  However they had collected Rs.3366/-.  The amount collected Rs.4757/- and Rs.150/-whether given to the 2nd opposite party or not has to be elucidated by the 1st opposite party who remind exparte in the present proceedings.  The defence of 2nd opposite party that no mobile number was given by the complainant for intimation about the EMIs and other account details was also proved to be false as the Tax Invoice, loan agreement etc. contains the complainant’s mobile number.  In such circumstance this commission of view that the complainant’s case has to be accepted and we find that both opposite parties had committed deficiency in service in the matter of fixing the EMIs and in not giving a clear picture with regard to payment of EMIs resulting in dishonour of cheque.

Point No.2:

 With regard to the relief to be granted the complaint had sought for Rs.2,00,000 as compensation. However, we feel the same is an exorbitant amount.  Further the 2nd opposite party had also stated that the complainant has to pay certain amount to complete the loan transaction.  In such circumstances we award a compensation of Rs.50,000/- to be jointly paid by both opposite parties and we direct the 2nd opposite party to accept the pending amount from the complainant and to issue NOC and RC Book of the vehicle.  We also award Rs.5,000/- as cost.

In the result, the complaint is partly allowed against opposite parties 1 & 2 directing 

a) the 2nd opposite party to accept the pending amount from the complainant and to issue the No Objection Certificate and Registration Book of the vehicle to the complainant within six weeks from the date of receipt of copy of this order;

b) Opposite parties 1 & 2 to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) Opposite parties 1 & 2 to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 18th day of May 2023.

 

   Sd/-                                                             Sd/-                                             Sd/-

MEMBER-II                                              MEMBER I                               PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 30.06.2017 Performa Invoice. Xerox

Ex.A2 30.06.2017 Tax Invoice. Xerox

Ex.A3 30.06.2017 Receipt. Xerox

Ex.A4 30.06.2017 Receipt. Xerox

Ex.A5 07.07.2017 Vehicle Booking Receipt. Xerox

Ex.A6 11.08.2017 Legal notice issued by the complainant. Xerox

Ex.A7 30.08.2018 Reply noitce of the oppostie party. Xerox

 

List of documents filed by the 2nd opposite party:-

 

Ex.B1 12.07.2017 Copy of loan Agreement. Xerox

Ex.B2 05.01.2023 Copy of Statement of Accounts and Settlement. Xerox

 

 

   Sd/-                                                         Sd/-                                                    Sd/-

MEMBER-II                                          MEMBER I                                       PRESIDENT