The case of the complainant is that he visited AC World on 28.2.2017 to purchase a split AC of Hitachi brand. So, the complainant entered into an agreement with the AC World to purchase split AC 1.5TR Hitachi Kashikoi 3300i inverter, model No.RSB3181AEA, IDU ESB 311AEA of single quantity of total amount Rs.46,900/-. Out of total amount only down payment of Rs.16,216/-to be paid in cash to the AC World and rest amount will be paid from loan account of the complainant with co-operation with the AC World so the complainant opened a loan account with Capital First Ltd. in monthly installment at the rate of Rs.3909/- per month and the item will be delivered within seven days.  The complainant as per terms and conditions paid Rs.16,216/- on 28.2.2017 as down payment and received the tax invoice from the AC World and entered a loan agreement No.10144082 with Capital First Ltd. The agent of the Capital First Ltd. also present at the shop of the AC World.  After seven days the AC World failed to deliver the said Air Conditioner.  On enquiry the Manager of AC World assured to deliver the same shortly.  That on 29.3.2017 AC World informed this complainant that the said item is out of stock.  So, they unable to deliver the Air Conditioner and requested to terminate the contract between the parties and the down payment will be returned back to the complainant and the loan account will be closed and necessary action will be taken by AC World to close the loan account.  The complainant agreed to terminate to said contract with AC World by return back his down payment amount and closing his loan account and down payment amount of Rs.16,216/- only returned to the complainant through his savings account on 31.3.2017 and informed that they have done all necessary to close his loan agreement with Capital First Ltd.  That on 5.4.2017 Rs.3909/- was debited from the savings account of the complainant by the Capital First Ltd.  Complainant informed 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.  The AC World on 29.4.2017 returned back the debited amount in the account of the complainant.  That on 5.5.2017 further EMI of Rs.3909/- was deducted from the SB Account of the complainant and the complainant informed the Manger of the AC World but the said amount has not been returned into the account of the complainant.  Subsequently on 5.6.2017 the next EMI of Rs.3909/- was deducted from the account of the complainant. Again on 5.7.2017 another EMI of Rs.3909/- deducted from the account of the complainant.  Then the complainant wrote a letter to the Manager of the AC World on 9.6.2017 to return back the deducted amount and close his loan account warning him that the complainant will bound to lodge a complaint before CA and FBP.  The complainant informed the matter to the Assistant Director, CA & FBP and hearing took place on 20.7.2017. On the very date the representative of the AC World appeared and next date fixed on 27.7.2017 for rehearing.  But on 27.7.2017 the O.P. did not appear.  So, the complainant getting no alternative filed the instant complaint before this Forum.  Inspite of repeated request of the complainant the O.P. did not return back the deducted amount of Rs.11,727/-.  So, the complainant filed this case praying  for a direction upon the OP to return a sum of Rs.11,727/- along with interest, a compensation of Rs.2,00,000/- for compensation and litigation cost amounting to Rs.22,000/-.       

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

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

Ex-parte argument advanced by the complainant heard in full.  The complainant filed brief notes of argument which is taken into consideration for passing final order.

 After perusing the complaint petition, evidence on affidavit, written notes of argument and the documents in the case record  it appears that the complainant with the intention to purchase SPLIT Air Conditioner machine of Hitachi brand went to the shop of the OP No.1 with a consideration money of Rs.46,900/- out of which the complainant through an agreement paid a sum of Rs.16,216/- as advance money  and the remaining money is to be paid by the complainant taking loan from the OP No.2 subject to payment of EMI amounting to Rs.3909/-. As per agreement the AC is to be delivered by the OP No.1 within seven days since the date of advance payment on 28.02.2017. After seven days the AC World, OP No.1 failed to deliver the said Air Conditioner.  On enquiry the Manager of AC World assured to deliver the same shortly.  That on 29.3.2017 AC World informed this complainant that the said item is out of stock.  So, they unable to deliver the Air Conditioner and requested to terminate the contract between the parties and the down payment will be returned back to the complainant and the loan account will be closed and necessary action will be taken by AC World to close the loan account. The complainant agreed to terminate to said contract with AC World by return back his down payment amount and closing his loan account and down payment amount of Rs.16,216/- only returned to the complainant through his savings account on 31.3.2017 and informed that they have done all necessary to close his loan agreement with Capital First Ltd. That on 5.4.2017 Rs.3909/- was debited from the savings account of the complainant by the Capital First Ltd. The AC World on 29.4.2017 returned back the debited amount in the account of the complainant.  That on 5.5.2017 further EMI of Rs.3909/- was deducted from the SB Account of the complainant and the complainant informed the Manager of the AC World but the said amount has not been returned into the account of the complainant.  Subsequently on 5.6.2017 the next EMI of Rs.3909/- was deducted from the account of the complainant. Again on 5.7.2017 another EMI of Rs.3909/- deducted from the account of the complainant.  Then the complainant wrote a letter to the Manager of the AC World on 9.6.2017 to return back the deducted amount and to close his loan account. But of no result.

 From the bare reading it is transparent from the complaint petition as well as evidence and written notes of argument that the complainant paid the advance money to the OP No.1 for purchasing the Air Conditioner of stipulated model and made an agreement when the OP failed to supply the said AC then at the option of the complainant, the OP No.2 returned back the advance money but the OP No.2 continued to deduct the  EMI inspite of several requests of the complainant not to deduct the EMI as he already made an appeal to close the loan account before the OP No.1 and the OP No.1&3 agreed to  close the loan account.  It is the duty of the OP No.1 to inform the OP No.2 as they have failed to supply the desired substance so there is no question to deduct EMI from this complainant. It is a bare instance of deficiency of service on the part of the OP for which the complainant suffered a lot. The complainant approached the OP No.1 & 2 to stop the EMI but they ignored the plea of the complainant and continued to deduct. One installment of Rs.3909/- has returned by the OP No.2 but subsequently the OP No.2 deducted the installments for the month of May, June & July of 2017. The complainant put the matter before the Assistant Director of Regional Office Hooghly at Chinsurah, Consumer Affairs & Fair Business Practice and the OP appeared before the mediation cell and showed no gesture to settle the dispute for which this complainant getting no alternative preferred the recourse of this Forum praying for a direction upon the OP. The averment of the complainant is unchallenged as the OP failed to file written version and after perusing the case record there is no question to disbelieve the averments of the complainant. So we can hold that the complainant being a bonafide consumer is entitled to get refund a sum of Rs.11727/- i.e. the EMI of three months @ Rs.3909/- from the OP along with compensation for mental pain & agony.

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  shop & the financier is liable to pay the amount deducted from the account of the complainant with compensation for mental pain and agony.

ORDER

Hence, it is ordered that the complaint case being No.232 of 2017 be and the same is allowed ex- parte against the Opposite Party with a litigation cost of Rs.6,000/- to be paid by the OP No.1&2      

  The Opposite Party No.2 is directed to pay a sum of Rs.11,727/- to this complainant.

  The OP no.1&2 are further directed to pay compensation jointly and/or severally amounting to Rs.10,000/- for mental pain and agony of this  complainant.

 OP no.3 is exonerated from this proceeding.

  All the payments are to be made within 45 days from the date of this order.

 At the event of failure to comply with the order  the Opposite Party No.1&2  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.