IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

                          Thursday the 12^th   day of  May, 2022

                             Filed on . 4.01.2021

                                               Present

1. Sri.S.SanthoshKumar  BSc.,LL.B  (President )

2.Smt.P.R.Sholy, B.A., LLB (Member)

                                                                In

                                                      CC.No. 03/2021

between

O R D E R

SMT. SHOLY.P.R (MEMBER)

Complaint filed u/s 35 of  the  Consumer Protection Act, 2019

1 . Material averments in briefly stated is as follows:-

 The complainant, an ex-serviceman and a formerly police official, for fulfilling his long standing dream of purchasing a car, attracting the advertisement promises of TATA among other things, unmatched performance, unmatched product quality and unmatched service experience approached the 1^st opposite party on 14/6/2019 where the sales executive Sri. Abhilash gave a detailed description of various models, its features and its prices.  The complainant decided to purchase  TATA NEXON-XM. When asked about the details of the final amount to be paid, the sales executive gave a primary information sheet which explained as follows:-

Ex-Showroom price    -        Rs.7,37,381

Accessories                            -        Rs.      3000

 Insurance                     -        Rs.   38,189

Road Tax                               -        Rs.   67,334

Fast tag                                   -        Rs.        600

Last rate                                  -        Rs.8,46,504

          Thereafter the complainant had purchased the product NEXON XM 1.2 PETROL model on 24/7/2019 on payment of Rs. 7,47,231/- by availing a loan from ICICI Bank dtd. 22/7/2019. The principal amount of the loan was Rs.6,86,754/- the tenure was 84 months and rate of interest was 10.75%. The  product was delivered from KCS Motors, Arattuvazhy and invoice was issued by NCS TATA, Cherthala. The vehicle was hypothecated to ICIC Bank.

          The offer price of the car was Rs.8,46,504/-.  The loan sanctioned was Rs.6,86,754/-.  As such the complainant is bound to pay only the balance amount of Rs.1,59,750/-to the bank. However the dealer has collected Rs.1,80,965/- as margin money from the complainant as follows:-

Amount towards booking

          Thus, the dealer has collected an excess amount of Rs.19,750/- from the complainant.

          Out of the sanctioned loan amount of Rs.6,86,754/- the Bank has paid only Rs.6,65,539/- to KCS Automobiles leaving a balance amount of Rs.21,215/- with the bank.

          When the complainant enquired about the amount with the bank officials, they informed that there is an insurance policy by ICICI, LOMBARD in the name of the  complainant in respect of this purchase.  The policy insures the complainant during the 84 months of the loan repayment tenure.  When asked about the company, the opposite party explained that the company is one among  the seven companies of ICICI group of companies.  The dealer also replied similarly when asked about the excess amount of Rs.19,750/-.

On hearing the details above the complainant informed both the dealer and bank that he has not yet received the policy document. The bank officials informed that the policy document  would be made available immediately  via ICICI LOMBARD.  Eventhough the complainant waited anxiously for the policy document, the same was not received as offered by the manager of NCS Automobiles and the sales executive Sir. Abhilash.  Thereafter the complainant contacted Sri.Rajendra Babu, the official of ICICI LOMBARD ever phone for making available the policy document. However, even after frequently requesting for the last one year, the same has not yet been made available.

          The above problems have created a lot of difficulties to the complainant and put him in mental agony, distress and disappointment.  As such, by not making available the policy document yet even after contacting the bank and  the dealer and also approaching directly several times, the opposite parties have cheated him. According to the complainant since the bank has collected Rs.21,215/- and since the dealer has collected Rs.19,750/-, the total amount collected being Rs.40,965/- towards the policy, the action on the part of the opposite parties in not making available the policy document even after 15 months of the  invoice amounts to deficiency of service and unfair trade practice.  Hence this complaint directing the opposite party bank (1) either (a) to issue the insurance policy document  to the complainant or (b) to  re-calculate the EMI, considering the loan amount to be only Rs.6,65,539/- as on the date of sanction of the loan and arrive at the actual EMI, taking into consideration the remittance till date.

2) to direct the dealer to refund Rs.19,750/- with interest to the complainant as collected an excess amount from the complainant.

3) Rs. 3 lakhs as compensation and;

4) Rs. l lakh as cost.

          In response to the complaint opposite parties 1 and 3 filed version.  Opposite parties 4 and 5 were set exparte.

2. Version of the 1^st opposite party is as follows:-

          Complaint is not maintainable either in law or on facts.  The complainant is not a consumer as defined u/s 2(7) of the Consumer Protection Act, 2019.  The complainant has no case there has been any deficiency in service on the part of this opposite party. This opposite party has unnecessarily been made a party to the proceedings.

           The complainant had booked for and subsequently taken delivery of the TATA Nexon car after personally inspecting the same and being fully satisfied with the said vehicle.  Hence there is no merit or basis in the allegation of the complainant that he was persuaded by the officers of this opposite party to purchase the car.

          The complainant had booked for the car on 15/6/2019 after paying the booking amount of Rs.5,000/- and duly singing on the order booking form after going through the same and accepting the terms and conditions specified therein.  The order booking form contained the entire price payable for the car booked by the complainant.viz.

Ex-showroom Price                        -        Rs.7,47,231

Bumper to Bumper Insurance        -        Rs.38,540

Registration & Fast Tag                 -        Rs. 600

Basic Accessories                            -        Rs.3,000

Road Tax                                         -        Rs. 68,221

        Thus, the on-road price of the car booked by the complainant and payable by him and  shown in the order booking form was Rs.8,57,592/-.  It is submitted that even though in the order booking form an amount of Rs.38,540/- had been shown towards insurance coverage for the car, the actual amount determined was only Rs.30,132/- and also accessories worth Rs.1000/- was only bought by the complainant. Thus, as against a total amount of Rs.8,57,592/- for the car that was payable by the complainant, what was payable was only Rs.8,47,184/-.  Bank had  on 18/7/2019 sanctioned a loan amount of Rs.6,65,539/-. The complainant had thereupon remitted a total amount of Rs.1,60,900/- as cash deposit to the SBI Current Account (A/c No. 37832209447, IFSC: SBIN0070094) of this opposite party viz. an amount of Rs. 1, 14,000/- on 20/7/2019, an amount of Rs.17,000/-  on 22/7/2019 and an amount of Rs.29,900/- on 23/7/2019.  Thus after deducting the amount of Rs.6,65,539/- received from the bank towards the loan amount the amount paid by the complainant in cash was Rs. 1,65,900/- which takes in the amount of Rs.5000/- paid as booking amount on 15/6/2019. It is submitted that on 23/7/2019 an amount of Rs.15,500/- had been given as discount to the complainant in the following manner:

Exchange offer                                -        Rs.7,500/-

Cash Discount-SM Limitation      -        Rs.2,500/-

Gold coin                                                  -        Rs 3000/-

Rural Discount –Dealer                           -        Rs.2,500/-

                                                                             Rs. 15,500/-

        Thus, a further a  amount of Rs.245/- was payable by the complainant. The complainant had duly paid the said amount on 29/7/2019 and  taken delivery of the car after personally inspecting the same and expressing full satisfaction over the same. At the time of taking delivery of the car the complainant had been provided with the entire receipts for the payments effected by him as well as all other relevant records in respect of the car purchased by him and which had been duly acknowledged by him. Other than the amounts stated as received from the complainant/ his bank and referred herein above, this opposite party had not received any additional amount from the complainant.

          As this opposite party had only received an amount of Rs.6,65,539/- from the ICICI bank towards the loan amount availed by the complainant for the purchase of the car, this opposite party is not in the know how as to whether the said bank had sanctioned an amount of Rs.6,86,754/- as alleged by the complainant.   This opposite party is not in the  knowhow with respect to the alleged insurance policy.  The fifth opposite party is no more in the service of this opposite party and the opposite party is not in the knowhow of the present location of the fifth opposite party.  There has been no deficiency  in service or unfair trade practice on the part of this opposite party.  Hence this opposite party is in no way liable or responsible to compensate the complainant.  The complaint is not entitled either in law or on facts to the reliefs sought for  in the complaint.

3. Version filed by  the 3^rd opposite  party is as follows:-

 The complaint is liable to be dismissed as there is Non Jointer of necessary parties. The dispute of the complainant revolves around the non receipt of the insurance policy. So, the accepted case of the complainant is that he had purchased policy to cover his life in case of any eventuality to the extent of loan amount.   But even though the complainant had impleaded the  4^th opposite party who had collected Rs.8,000/- as premium amount for covering death. The complainant had sought for such a relief without impleading his insurer in the party array.

          The complaint needs to be dismissed as the case is pertaining to dispute between two parties pertaining to “settlement of account” which is outside the purview of Consumer Protection Act, 2019, which envisages “Summary Trial”. As the “Settlement of Account” disputes requires the elaborate scrutiny of volumes of records.

          There is no fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by the  3^rd opposite party in pursuance of a contract or otherwise in relation to any service.   There is no ‘deficiency’ in service rendered by the 3^rd opposite party as per section 2(11) of the  Consumer Protection Act, 2019.  So the complainant is not a ‘consumer’ as defined under Section 2(7) of the Consumer Protection Act, 2019.  So the complaint is not a “consumer” as defined u/s 2(7) of the Consumer Protection Act, 2019 and therefore the dispute alleged is not a “Consumer Dispute”. Moreover, the complainant has neither hired the services nor has purchased any goods from the opposite party.  The relationship between this complainant and the opposite party is that of a debtor and creditor relationship based on admitted and written agreements executed between the complainant and Opposite party.

          The complainant had alleged that the actions of the opposite parties in not providing the policy document had amounted to cheating and that “the opposite parties have cheated him”. In the relief portion of the complaint clause No.3 (g) the complainant had sought for compensation “Considering the depth of the cheating and deep injustice to the complainant”. Hence the complaint filed by the complainant will not come under the definition of “Consumer Dispute”. 

          The complainant had approached the 3^rd opposite party with a demand for an auto loan for the purchase of a new Nexon XM vehicle. He had also expressed his desire to cover his loan with a Super Protect Credit policy, offered by 4^th opposite party and ICICI Prudential Life Insurance Company for a total premium amount of Rs.16,000/-.  It is accepted by the 3^rd opposite party that, the principal amount of loan was Rs.6,86,754/- to be repayable in 84 months, with 10.75% interest.  It is also accepted that, the vehicle is hypothecated to 3^rd opposite party.

          Pertaining to the transactions of the complainant with the 1^st and 2^nd opposite parties, the 3^rd opposite party is unaware of the same and are specifically denied by the 3^rd  opposite party.  For availing the benefit of loan, even though, the complainant was bound to remit Rs. 3,835/- towards processing fee of the loan and Rs.200/- towards stamp duty and Rs. 17,180/- towards  the premium amount for covering his life and health, during the loan period  along with GST (Rs.16,000 + 1,180/-) he had failed to remit those amounts. So , the 3^rd opposite party had collected these amounts from the loan amount , as per the consent and knowledge of the complainant.  Hence, even though, he had availed a loan amount of Rs.6,86,754/- from the 3^rd opposite party, the amount credited towards the 1^st and 2^nd  opposite parties was Rs. 6,65,539/-. So the contention of the complainant that, the 3^rd opposite party had left a balance amount of Rs.21,215/- with the bank while disbursing Rs.6,65,539/- is specifically denied by the 3^rd opposite party, as the same is utter falsehood. It is alleged solely with an intention to mislead this  Commission.

          His contention that 4^th opposite party had collected premium for covering his death is with an intention to mislead this Commission. Actually 4^th opposite party had collected Rs. 8,000/- as premium for covering disability and medical claim of the  complainant and ICICI Prudential Life Insurance Company had collected Rs.8,000/- as premium amount for writing off the balance amount due towards the 3^rd opposite party, in the eventuality of death of the complainant. Since, the communications of the complainant with the 3^rd parties are not within the knowledge of the 3^rd opposite party. 

          Since the age limit of the proposer of the insurance policy being above 60 years (DOB is 12/10/1957) as per the business policy of the 4^th opposite party and ICICI Prudential Life Insurance Company, they could not generate a policy for covering the risk of the complainant.  Hence, they returned the amount collected for and on behalf of the complainant.  In order to provide benefit of the reimbursement of the amount to the complainant, the 3^rd opposite party had adjusted the amount towards the principal amount of the loan.

          Rs. 8000/- was received from the 4^th opposite party on 4/12/2019 and same was credited in the loan account of the complainant, as “Pre Payment” on 11/12/2019. In the same manner, Rs.8000/- received from ICICI Prudential Life Insurance Company on 11.3.2020  was credited in the loan account of the complainant, as “Pre Payment” on 13.3.2020.  As a result of this prepayment, the loan tenure was reduced from 84 instalments to 82 instalments.  So, in effect  the complainant had benefited 2 instalments, equaling to Rs.23,456. Over and  above this on 5/11/202, an Ex gratia  amount of Rs.790/- was credited in loan account as per RBI guideline No. RBI/2020-21/61 DOR No. BP. BC.26/21/04.048/2020-21 dtd. 26/10/2020. Out of  Rs.790/-, after adjusting Rs. 590/- towards cheque bouncing charges, due to the 3^rd opposite party, the balance amount of Rs.200/- was also adjusted in principal on 14/12/2020 as Prepayment.  The complainant was updated about all these matters when contacted by him. Even though, the complainant is aware of all the benefits enjoyed by him, he had appeared before this  Commission with untenable contentions. 

          The 3^rd opposite party is a banking company. It  had supported the complainant by forwarding the proposal form of the complainant along with the premium amount to 4^th opposite party and ICICI Prudential Life Insurance company. But 4^th opposite party and ICICI Prudential Life  Insurance Company are having discretionary  power to cover the complainant for the risks of the complainant or not since, the insurance companies, which were approached by the complainant  had declined to cover the complainant and had duly returned the premium amount; the  complainant cannot sustain a claim towards the 3^rd opposite party demanding for this insurance company and proposed insured the 3^rd opposite party is a stranger to that contract.  The 3^rd opposite party had not collected Rs.21,215/- towards policy. The filing of the complainant after enjoying the benefit of  re-fund of the premium amount from both the insurance companies and enjoying the further benefit of crediting the amount as prepayment of the principle amount, the attempt of the complaint is to gain unlawful gain from the opposite parties.

          The 3^rd opposite party being a banking company is bound by the rules and regulations of Reserve Bank of India and is not an Insurance company bound by the rules and regulations of Insurance Regulatory and Development Authority (IRDA).  So the demand of the complainant towards the 3^rd opposite party to issue the insurance policy documents is not sustainable.  The complaint is trying for unlawful enrichment, by suppressing the material facts mentioned. The complaint is a frivolous and vexatious one.  May kindly dismiss the complaint with cost of the 3^rd opposite party.

4.     On the above pleadings the points raised for consideration are:-

1. Whether the complainant is maintainable before  this Commission?

2. Whether the complainant is entitled to get the reliefs  sought for in the complaint?

3. Reliefs and costs?

 5.       Evidence in this case consists oral evidence of PW1 and  Ext.A1 to Ext.A4 from the side of the complainant and oral evidence of RW1  and RW2 and Ext.B1, B2 series, Ext.B3 to B6 from the side of opposite parties in which Ext.B3 to 6 were marked with subject to proof. Heard both sides.

 6.     Point No. 1 and 2:-

         PW1 is the  complainant. He filed an affidavit in tune with the  complaint and got marked Ext.A1 to A4.

7.       Rw1 is the sales head of 1^st opposite party. He filed an affidavit in tune with the version of 1^st opposite party and got marked Ext.B1 and B2 series.

8.     RW2 is the legal Manager of 3^rd opposite party. She filed an affidavit in tune with the version of 3^rd opposite party. Though RW2 produced some documents with respect to the loan transaction it was objected by the counsel appearing for the complainant since the execution of the document was denied by PW1 while the same was confronted during cross examination. Admittedly the complainant had purchased a vehicle model Nexon XM 1.2 pertrol from 1^st opposite party.  The complainants case is that when he approached the 1^st  opposite party showroom the 5^th opposite party gave a detailed description of the prize and its features and as per Ext.A2 the rate of the said model vehicle was Rs.8,46,504/- including  Accessories, insurance, road tax, Fast tag in which ex showroom price mentioned was Rs. 7,37,381/-.  As per Ext.A1 the complainant remitted Rs.7,47,231/- for purchasing the said vehicle availing a loan from 3^rd opposite party.  The principal amount of loan was Rs. 6,86,754/- with an interest rate of  10.75% per annum. The complainant further contented that as per Ext.A2, preliminary information sheet the offer price of the car was Rs. 8,46,504/- in which an amount of Rs.6,86,754/- was sanctioned by 3^rd opposite party, as such the complainant was bound to pay only the balance amount of Rs. 1, 59,750/-.  However the dealer has collected Rs. 1,80,965/-. As per Ext.A3 a total amount of Rs.1,79,500/- received from the complainant, thus an amount of Rs.19,750/- had received in excess by the dealer.

 Another contention is against 3^rd opposite party regarding the loan transaction. The loan amount sanctioned was Rs. 6,86,754/- in which an amount of Rs.6,65,539/- only had paid to the dealer leaving a balance amount of Rs. 21,215/- with 3^rd opposite party bank. When the complainant enquired about  the amount as mentioned above the 3^rd opposite party informed that there is an insurance policy by ICICI, LOMBARD in the name of the complainant in respect of the purchase of the car. Similarly the dealer also replied when enquired about the amount of Rs.19,750/- regarding the policy of insurance. But according  to the complainant no documents of insurance yet received. Alleging deficiency in service from the part of both the dealer and bank this complaint filed.  Per contra the  1^st opposite party contented  that an amount of Rs.15,500/- had been given to the complainant as discount and he had taken  delivery of the car expressing  full satisfaction.

According to 3^rd opposite party for availing the benefit of loan the complainant was bound to remit Rs. 3,835/- towards processing fee of the loan and Rs. 200/- towards stamp duty and Rs. 17,180/- towards premium amount for covering his life and health, during the loan period along with GST(Rs.16000 + Rs.1180). Since the complainant had failed to remit those amounts, the 3^rd opposite party had collected those amounts from the loan amount as per the consent and knowledge of the  complainant.   The 3^rd opposite party further contented that though the 4^th opposite party and ICICI Prudential  Life Insurance Company had collected  Rs. 8000/- each as premium for covering disability and medical claim of the complainant and  as premium amount for writing off the balance amount due towards the 3^rd  opposite party, in the eventuality of death of the complainant respectively, since the age limit of the complainant being above 60 years, as per the  business policy of both the company they could not generate a policy for covering the risk of the complainant. Hence they returned the amount collected for and on behalf of the complainant and 3^rd opposite party had adjusted the amount towards principal amount of the loan. As a result of this prepayment the loan tenure was reduced from 84 instalments to 82 instalments.  3^rd opposite party also contended that the  dispute is with regard to the settlement of account between the complainant and opposite parties which is outside the purview of Consumer Protection Act, 2019 which envisage “Summary Trial”

        Admittedly the dispute between the complainant  and opposite parties  is with regard to the collection of amount in connection with the insurance policy and non issuance of policy documents as per the acceptance of said amount. At this point of time it is pertinent to note that though Ext.A2 shown the ex showroom price of the  car as Rs. 7,37,381/- dated on 14/6/2019, in Ext.A1 the ex-showroom price of the car is Rs. 7,47,231/- and the same was paid by the complainant on 24/7/2019.  Considering the said amount the calculation made in Ext.A1 and A3 was not tallied.  Moreover no evidence adduced by the complainant  with regard to the acceptance of excess amount by the opposite parties.  Moreover the documents  produced by the opposite parties with regard to the  calculation was not admitted by the complainant by disputing its execution. Further it is to be noted that during cross examination of PW1 by the  learned counsel appearing for the 3^rd opposite party though PW1 denied the policy of insurance company with regard to the age limit of the complainant, when questioned the prepayment of Rs. 8000/- each on 11/12/2019 and 13/3/2020 he answered that not verified. Further answered the question regarding the refund benefit of 2 instalment as not known. PW1 had not specifically denied the same even objected the marking of documents entering the said transactions.  Ofcourse, as contended by the opposite party it is to be purely decided by settlement of account adjudicated in an authority concerned.  Since the settlement of account dispute requires the elaborate scrutiny of volumes of records and  outside the purview of the Consumer Protection Act, 2019,which envisages Summary Trial,  hence the complaint is not maintainable before the Commission. These points are found accordingly.

9.        Point No.3:-

        In the result complaint stands dismissed. Both parties shall bear their respective cost.

 Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 12^th  day of May, 2022.

         Sd/-Smt. Sholy.P.R(Member)

                                                Sd/-Sri.S.Santhosh Kumar(President)

Appendix:-Evidence of the complainant:-

PW1                     -  P.B.Rameshan (Complainant)

Ext.A1                -  Tax Invoice dtd.  24-7-2019

Ext.A2                -   Preliminary Information Sheet dtd. 14-6-2019

Ext.A3                  -    Statement dtd. 19/7/2019

Ext.A4                  -    Auto Loan Account  statement from ICICI bank

                                 Two additional documents.

Evidence of the opposite parties:-

RW1                      -  Manoj Kumar (Sales Head)

RW2                             -  Shenu.K.V(Witness)

Ext.B1                   -  Delivery Order

Ext.B2                 -   Receipt Voucher

Ext.B3                 -   Copy of Proposal Form

Ext.B4                 -   Customer Consent /Declaration Form.

Ext.B5                 -   Delivery Order

Ext.B6                 -   Loan Account Statement

///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                 Assistant Registrar

Typed by:- Br/-

Comp.by: