In the District Consumer Disputes Redressal Forum, Murshidabad
Berhampore, Murshidabad.
Case No. CC/20 /2015
Date of filing: 11/02/2015 Date of Final Order: 30/05/2017
BabluSk.,S/O- Lt. Nabai Sk.
Vill.- Madhai pur, P.O.-Malihati.
P.S.- Salar, Dist- Murshidabad, PIN.-742401……………………………...Complainant
- Vs-
1). Proprietor S.N. Motors, Kadbeltala, Jalangi Rd.
P.O.& P.S.- Berhampore. Dist.- Murshidabad.PIN.-742101
2). Manager, Sriram Transport Finance Co. Ltd.
At Kadbeltala Jalangi Rd.,P.O.& P.S.- Berhampore.
Dist.- Murshidabad.PIN.-742101.……….………. Opposite Party
Before: Hon’ble President, Anupam Bhattacharyya.
Hon’ble Member, Samaresh Kumar Mitra.
FINAL ORDER
Samaresh Kumar Mitra, Presiding Member.
This complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for an order in favour of the complainant for Rs.140000/- and Rs.1,09,000/- against OP Nos. 1&2 respectively including accrued interest thereon.
The case of the complainant, in short, is that on 05.10.2010 he purchased a Mini Truck bearing No. WB-57/A-7941 from OP No.1 with the financial assistance from Sriram Finance (O.P. No.2 herein) at a cost of Rs.3,08,200/-. It was also stated by the OP that Insurance Premium and Registration fee are included with the price of the Truck. The complainant paid Rs.91,684/- as down payment. The balance amount of the Truck has been financed by the Financer i.e. OP No.2.The OP No.2 served delivered payment schedule where the total amount has been written as Rs.3,15,142/-. The complainant has paid Rs.3,10,678/- as price for the Truck. So, this complainant paid excess price of Rs.2678/- for the Truck. On 7.12.14 the OP No.2 has got possession of the Truck forcefully on the plea that the installments were due. Thereafter, the OP No.2 sent a letter to the complainant claiming total dues of Rs.31,932/-. Thereafter, the complainant paid Rs.38000/- and Rs.2500/- for taking possession of vehicle but in vain. The OP No.2 has no right to take possession of the Truck. The vehicle was kept to OP No.2 for 14 days and the complainant suffered heavy loss. The truck is his only source of income to maintain his livelihood. Hence the instant complaint petition.
The OP No.1, by filing written version, denies all most all the allegations rose against him by the complainant. The specific case of the OP No.1, in brief is that he sold the vehicle in question to this complainant and received full payment from the OP No.2 and he provided free stipulated services to vehicle as there is no allegation against this OP so he is unnecessary party in this proceedings and entitled to get compensation for defending this proceedings from this complainant and the complainant has no grievance against this OP. So, the case against this OP is liable to be rejected with cost.
The OP No.2, by filing written version, states that this OP gave financial assistance for the sum of Rs.2,30,000/- to the complainant to purchase a Truck and an agreement was executed between the parties that the total agreement value was Rs.3,15,142/-. As per agreement the complainant was bound to pay the loan with interest at 47 installments. The complainant did not pay the installments in time. After repossessing the Truck on 7.12.14 this OP served a notice to the complainant for non-payment of Rs.31,932/- but the complainant did not pay the installments. The complainant, with an ulterior motive, filed this complaint. After getting the notice complainant came to the office of the OP No.2 and paid entire dues in a tune of Rs.38, 000/- on 15.12.14 and after receiving the same this OP issued NOC in favour of the complaint on 12.01.15. As per agreement courts under Kolkata jurisdiction are alone have exclusive jurisdiction to try this case. The complainant has no right to file this case before this Forum as there is Arbitration Clause in the agreement which was signed. The instant complaint is liable to be rejected.
The complainant filed evidence by way of affidavit on 04.12.15 where he admitted his case in line of his complaint.
Argument as advanced by the agent of the complainant and opposite parties heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant Bablu Sk. ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for paying compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
- Whether the Complainant Bablu Sk. ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1) (d) (ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the OP, as he purchased the vehicle in question from the OP No.1 as seller and OP No.2 is the financier.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/carrying on business within the district of Murshidabad. The complaint valued Rs.2,49,000/- in total, claimed Rs.1,09,000/- from the OP No.2 and Rs.140,000/- from the OP No.1 alongwith interest therein for deficiency of service and unfair trade practice on the part of the OP and other reliefs ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The complainant purchased a mini truck from the OP No.1 with the financial assistance of the OP No.2. During the period of purchase the complainant paid a sum of Rs.91684/- for the price of said vehicle and the rest amount has been financed by the OP No.2. The delivered payment schedule of OP No.2 written as Rs.315142/-but the price was fixed Rs.3,08,200/-. The complainant paid a sum of Rs.3,10,678/- so the complainant paid Rs.2078/- in excess. As the complainant failed to pay a sum Rs.31,932/- so the vehicle was repossessed by the OP No.2. The complainant for getting the vehicle in his possession compelled to pay Rs.38000/- instead of dues amount Rs.31932/-. Being aggrieved at the act and attitude of the OP No 1&.2 the complainant filed the instant complaint praying redressal from this Forum as prayed in the prayer portion of the complaint. The OP No.1 by filing written version denied the allegations and argued that he sold the vehicle in question to this complainant and received full payment from the OP No.2 and he provided free stipulated services to vehicle as there is no allegation against this OP so he is unnecessary party in this proceedings and entitled to get compensation for defending this proceedings from this complainant. The OP no.2 by filing written version assailed that this answering OP gave financial assistance for the sum of Rs.2,30,000/- to the complainant to purchase a Truck and an agreement was executed between the parties that the total agreement value was Rs.3,15,142/-. As per agreement the complainant was bound to pay the loan with interest at 47 installments. The complainant did not pay the installments in time. After repossessing the Truck on 7.12.14 this OP served a notice to the complainant for non-payment of Rs.31,932/- but the complainant did not pay the installments. The complainant, with an ulterior motive, filed this complaint. After getting notice the complainant came to the office of the OP No.2 and paid entire dues in a tune of Rs.38, 000/- on 15.12.14 and after receiving the same this OP issued NOC in favour of the complainant on 12.01.15. As per agreement courts under Kolkata jurisdiction are alone have exclusive jurisdiction to try this case. The complainant has no right to file this case before this Forum as there is Arbitration Clause in the agreement which was signed.
The agent on behalf of the complainant assailed that during the period of delivery of vehicle the personnel of OP No.2 calculated loan amount and other details in which he showed the interest rate 8.5% and showed total interest amounting to Rs.78,200/- and each installment was fixed Rs.6,557/-. But the Final Data Sheet of OP No.2 dated 08.07.2015 transpires that the rate of interest taken as finance charges @9.57144% p.a. for 47 months and aggregate value Rs.315142/-.From the documents as well as argument advanced by the agents of the parties we can come into this conclusion that the OP No.2 collected Rs.315142/- instead of Rs.3,08,200/- from this complainant. So the excess amount of Rs.6942/- has been collected excess by the OP No. 2 from this complainant. The complainant in entitled to get the excess amount of Rs.6942/- including interest at the rate of 10% since 15.12.2014 from the OP No.2.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come to a conclusion that the Complainant has abled to prove his case and the Opposite Party No.2 is liable to pay the excess amount including interest @ 10% since 15.12.2014 to this complainant within the time framed. The Opposite party is not liable to pay any compensation to this complainant as interest has already allowed in the excess refundable sum.
ORDER
Hence, it is ordered that the complaint case being No.20/2015 be and the same is allowed on contest with a litigation cost of Rs.4000/- against the opposite parties No.2.
The Opposite Party No.2 is directed to pay a sum of Rs.6942/- including interest @10% p.a. to the complainant since 15.12.2014 within 45 days from the date of receiving this order.
The OP No.1 is exonerated from this proceeding.
At the event of failure to comply with the order the Opposite Party No.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 fund of ‘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 forthwith, for information & necessary action.
Dictated and corrected by me.
Member, President,
