The brief facts of the complaint case is that he visited AC World on 28-2-2017 to purchase a SPLIT Air Conditioner machine of Hitachi brand being a bonafide purchaser.

The complainant entered into an agreement with the AC World to purchase Spilt AC-1.5 TR Hitachi ZUNOH 5200f, Model RAU518AVD, IDU- RAS518AD, ODU-RAC518AVD of single quantity  amounting to Rs.42,900/- only including taxes. Out of the total amount of Rs. 42,900/- only down payment Rs.14,840/- only be paid in cash to the AC World and rest amount will be paid from loan account of the complainant. With the co-operation with the AC World the complainant opened a loan account with Capital First Limited in monthly installment @ Rs.3575/- only per month. The item will be delivered within 7 days.

As per the above terms and condition with the AC World the complainant paid Rs. 14,840/- only on 28-2-2017 in cash as down payment and received the Tax Invoice (Invoice No. CHN/16-17/02019 dt. 28-2-2017) from the AC World and entered into a loan agreement Number 10144192 with Capital First Limited. The agent of the Capital First Limited also present at the shop of AC World.

 But after 7 days AC World failed to deliver the said Air Conditioner machine and the complainant asked the Manager of the AC World about his delivery of the said Air Conditioner machine. The Manager assured to deliver the Air Conditioner machine shortly but failed to deliver the same. The complainants repeatedly asked about his delivery of the said Air Conditioner machine and as a response from AC World only get “item will be deliver shortly”. On 29-3-2017 a phone call received from AC World that the said item is out of stock, hence they unable to deliver and request to terminate the contract between the parties and the down payment will be return back to the complainant and the loan agreement will be closed and all the necessary to close the loan account will be performed from the side of AC World.

The complainant also agree to terminate the said contract with the AC World by return back his down payment amount and closing his loan account and the down payment amount Rs.14,840/- only returned to the complainant’s Savings bank Account A/c No. 3089833799 with Central Bank of India, Mahanad Nagarpara Branch on 4-4-2017 and AC World informed the complaint that they have done all necessary to close his loan agreement with Capital First Limited.

On 5-4-2017 Rs. 3575/- only the first EMI debited from the SB Account No. 2187250453 with Central bank of India Mahanad Nagarpara Branch of the complainant by the Capital First Limited. The complainant informed to the Manager of the AC World about his deduction of EMI and the AC World further assured to close Loan agreement and the amount will be return back to the complainant and the AC World on 29-4-2017 the EMI debited amount Rs. 3575/- returned to the SB Account of the complainant A/C No. 3089833799 .

On 5-5-2017 furthers the EMI Rs. 3575/- deducted from the S.B Account NO. 2187250453 of the complainant and the complainant informed to the AC World. The Manager of AC World assured to return the deducted amount but yet not return to the complainant. Further on 5-6-2017 the next EMI Rs. 3575/- deducted from the S.B Account No 218725043 of the complainant and the complainant informed to the AC World. The Manager of AC world assured to return the deducted amount but yet not return to the complainant. Further on 5-7-2017 the EMI Rs. 3575/- deducted from the S.B Account NO. 2187250453 of the complainant.

As the AC World does not return the deducted amount to the complainant and the EMI was deducting from the complainant S.B Account. On 9-6-2017 the complainant noticed to the Manager of AC World through India Post registered with AD about the return back of the deducted amount and to close his loan, alerting him on failure the complainant will bound to complain to the Consumer Affairs & Fair Business Practices and gave AC World sufficient time to return the amount and close the loan amount.

As the AC World does not return the deducted amount to the complainant and the EMI was deducting from the complainant S.B. account. The complainant complained to The Assistant Director, Consumer Affairs & Fair Business Practices, Hooghly Regional Office at Chinsurah about the said financial losses and harassment by the AC World.

The Assistant Director of C.A&F.B.P lodged a Case being Registration No. 1855 of 2017 and sent notice to the AC World for hearing on 20-7-2017. The complainant and the representative of AC World appeared and  fixed next date 27-7-2017 for hearing and on 27-7-2017 the complainant appeared but the Opposite party failed to appear though promised to appear. On 27-7-2017 no due certificate of Loan Agreement Number 10144192 was given to the complainant. But the AC World yet not return the deducted amount in total Rs. 10,725/- only as they have not deliver the item.

The cause of action arose on and from 5-5-2017, 5-6-2017 and 5-7-2017 as the amount was deducted from the S.B. Account of the complainant as EMI of Capital First Limited and on 27-7-2017 as the AC world failed to appear before The Assistant Director of C.A. & F.B.P though promised to appear. The AC World has no legal right to do the same.

The opposite party no. 1 or opposite parties willfully avoided to return the amount which caused unnecessary financial losses, harassment, mental anxiety and agony to the complainant. The complainant has faced mental agony in everyday in his day to day life and accordingly he already suffered a lot and as such they are liable to pay compensation of Rs.2,00,000/-. Otherwise complainant will suffer and irreparable loss.

Complainant has been suffering from financial losses, mental agony, anxiety which caused to be mental torture since 5-5-2017 due to deducting money without delivering the Spilt AC-1.5TR of Hitachi ZUNOH 5200f brand and non-performing of the performance of the opposite party no. 1 as assured.

 Getting no alternative the complainant filed the instant complaint before this Forum praying directions upon the opposite party to return a sum of Rs.10,725/- along with interest, a compensation of Rs.2,00,000/- for compensation and litigation cost amounting to Rs.22,000/-.   

 Despite receiving notice the opposite party No.1&3 did not turn up so the proceeding run ex-parte against the opposite party vide order No.6 dated 31.5.2018.

Opposite party No. 2 filed written version denying the allegations leveled against him and averred that the opposite party no.2 has already given the no due certificate to the Complainant and as such there is no prima facie case and/or allegation against the opposite party no. 2. So, the prayers as prayed by the complainant in the Complaint Petition does not stands against the opposite party no. 2.

The complainant filed affidavit in chief which is nothing but the replica of complaint petition.

The complainant in his written notes of argument stated that he intended to purchase Spilt AC 1.5TR Hitachi branded costing Rs. 42,900/- including taxes. Out of the total amount the complainant paid Rs. 14,840/- in cash to the opposite party No. 1 and received tax invoice dt. 28.2.2017 and he also entered a loan agreement with capital First Ltd, opposite party No.1 assured the complainant to deliver the same within 7 days but he failed to deliver the same within the period and informed that the article is out of stock. As the opposite party no. 1 failed to deliver the item so the down payment amount of Rs. 14,840/- as returned back in the savings account of the complainant on 4.4.2017 and also assured to close the loan account with Capital First Ltd. That on 5.4.2017 a sum of Rs. 3575/- as debited from the account of the complainant as first EMI. The complainant informed the Manager of AC World about his deduction of EMI and the AC World further assured to close the loan account. That on 29.4.2017 the EMI of Rs. 3575/- returned into the account of the complainant. That on 5.5.2017 further EMI of Rs. 3575/- deducted from the Savings account of the complainant and the complainant informed the opposite party no. 1. Similarly, on 5.6.2017, and 5.7.2017 the opposite party no. 2 further deducted the EMI amount of Rs.3575/- from the account of the complainant. Complainant informed the matter to the opposite party no.1 but opposite party no.1 assured to return the deducted amount. In total the opposite party no. 2 deducted a sum of Rs. 10,725/- for 3 EMIs from the account of the complainant. Then the complainant filed a complaint before the Assistant director CA & FBP stating his grievances but the opposite party did not turn up. Thereafter the complainant repeatedly requested the opposite party to make the money return to the complainant but his request being unheeded by the opposite party. So the complainant filed the instant complaint before this Forum praying directions upon the opposite party as incorporated in the prayer portion of the complaint petition.

The opposite party no. 2 is contesting the case by filing written version. In his written notes of argument the opposite party no.2 also assailed that complainant has purchased one AC from the opposite party no.1 and has taken a loan facility from the opposite party no.2. Before delivery of the same article the opposite party no. 1 informed the complainant that the product is not available and hence they are terminating the contract with the complainant. The complainant accepted the termination of the contract and opposite party no. 1 refunded the advanced amount to the complainant. The EMI has already been started and the opposite party no. 1 has also refunded the first EMI to the complainant and has promised to refund the other EMI payments and in the meanwhile the opposite party no. 2 issued NOC in favour of the complainant. The opposite party no. 2 assailed that neither the complainant nor the opposite party no. 1 has ever informed the opposite party no.2 regarding such termination of the agreement between the complainant and the opposite party no. 1. He also stated that the loan amount of the complainant is Rs. 42,900/- and the complainant had made payment of 4 advance EMIs amounting to Rs. 14,300/-(Rs. 3575*4) and some other dealer charges and as such the balance amount is to be paid in monthly installments. The EMIs is fixed at Rs. 3575/- for tenure of 12 months but as 4 EMIs are paid in advance so the complainant has to pay Rs. 3575/- as EMI for 8 months. The complainant has paid 4 EMIs up to July, 2017 to the op no. 2 amounting to Rs. 14,300/- but during this time no intimation has been received as to termination agreement. Thereafter on July, 2017 the balance EMI of Rs. 14,300/- have been paid to the opposite party in cash as such the loan account of the complainant is closed on receiving the full and final loan amount. The opposite party no. 2 also issued NOC in favour of the complainant. The complainant prayed no relief from the opposite party no. 2. So, the complaint petition is liable to be rejected.

After perusing the complaint petition, written version, evidence on affidavit, written notes of argument, documents in the case record and hearing the arguments of the advocate of the complainant it appears that inspite of issuing tax in voice the opposite party No.1 failed to supply the air conditioner to the complainant on the plea that the said article is out of stock and the complainant agreed to get back the advance money. The dispute cropped up between the complainant and the opposite party when the opposite party No.2 deducted the EMI from the savings account of the complainant amounting to Rs.3575/- each in every month. The complainant informed the matter of deduction to the opposite party No.1 and requested to refund the deducted amount as the loan agreement has been terminated. Then the opposite party no.1 refunded the deducted amount to the complainant. Similarly the three EMIs of Rs.3575/- each has been deducted from the account of the complainant on 5.6.2017, 6.6.2017 & 7.6.2017 by the opposite party No.2. The complainant requested the opposite party no.1 to get back the deducted amount but the opposite party No.1 returned one of the installments but other three installments are not returned. So the complainant filed the instant complaint before this Forum praying directions upon the opposite party. The opposite party no.1&3 did not turn up & failed to file written version  so the proceeding run ex-parte against them. The opposite party No.2 in his written version as well written notes of argument assailed that neither the complainant nor the opposite party no. 1 has ever informed the opposite party no.2 regarding such termination of the agreement between the complainant and the opposite party no. 1. He also stated that the loan amount of the complainant is Rs. 42,900/- and the complainant had made payment of 4 advance EMIs amounting to Rs. 14,300/-(Rs. 3575*4) and some other dealer charges and as such the balance amount is to be paid in monthly installments. The EMIs is fixed at Rs. 3575/- for tenure of 12 months but as 4 EMIs are paid in advance so the complainant has to pay Rs. 3575/- as EMI for 8 months. The complainant has paid 4 EMIs up to July, 2017 to the opposite party no. 2 amounting to Rs. 14,300/- but during this time no intimation has been received as to termination agreement. Thereafter on July, 2017 the balance EMI of Rs. 14,300/- have been paid to the opposite party in cash as such the loan account of the complainant is closed on receiving the full and final loan amount. Opposite Party No.2. by producing an account statement showed that they deducted the 4 installments from the complainant through auto debit on 07.04.2017, 06.05.2017,06.06.2017 & 06.07.2017 and on 18.7.2017 he received a sum of Rs.14,300/- and closed the account. Thereafter he issued NOC towards the complainant. Now the case record speaks that the complainant paid a sum of Rs.14,840/- on invoice date 28.2.2017 to the opposite party No.1 but the opposite party No.2. received the same on 15.3.2017 amounting to Rs.14300/-. So it is palpably clear that there is a role of the opposite party No.1 in respect of collection from the complainant and receiving the sanctioned loan amount from the opposite party No.2. It is clear that the opposite party No.2. is fully unaware regarding the termination of agreement in between complainant and the opposite party No.1.  but he sanctioned the loan of the complainant and disbursed the same to the opposite party No.1. The role of the opposite party No.1 is not satisfactory as he terminated the agreement with the complainant but did not inform the opposite party No.2 and also failed to direct the opposite party No.2 to stop the deduction of installments. The money which the opposite party No.2 deducted from the complainant is in the custody of the opposite party No.1 as the opposite party No.1 already received the sanctioned amount of the complainant from the opposite party No.2. as such the complainant is entitled to get the amount of Rs.10,725/- from the opposite party No.1 alongwith interest.            

It has been provided in the preamble of the Consumer Protection Act, 1986 as well that the objective of enacting the said legislation is to ensure better protection of the interests of the consumers. Once it is proved from the face of the case record as well as from the iota of evidence that the complainant did not receive the money which he has given during the purchase of any goods from the seller and if the seller fails to supply the said goods within the agreed period then the seller / service provider is under liability to give compensation in view the facts & circumstances of the case.

Considering all the facts and circumstances we may hold that the complaint petition deserves to be allowed.

From the above discussion we can safely conclude that the complainant proved his case by producing sufficient documents. 

The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove his case and the Opposite Party No.1&3 are liable to pay the amount deducted from the account of the complainant alongwith interest and compensation for mental pain and agony.

ORDER

Hence, it is ordered that the complaint case being No.233 of 2017 be and the same is allowed on contest against the opposite party No. and ex-parte against the Opposite Party No.1&3 with a litigation cost of Rs.8,000/- to be paid by the OP No.1&3.      

The Opposite Party No.1 &3 are directed to pay jointly and/or severally a sum of Rs.10,725/- alongwith interest @ 10% from the last date of collection of EMI i.e.6.7.2017.

 The opposite party no.1&3 are further directed to  pay jointly and/or severally a sum of Rs.10,000/- for unfair trade practice in the account of Consumer Legal Aid Account.

Opposite party No.2 is exonerated from this proceeding.

  All the payments are to be made within 30 days from the date of this order.

 At the event of failure to comply with the order  the Opposite Party No.1&3  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer Legal Aid Account.

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 & necessary action.