Date of Filing             :    30 May, 2018.

Date of Final Order :    29 February, 2024.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Sri Debasis Banerjee, hereinafter called the Complainant, filed a complaint under Section 12 of the Consumer Protection Act, 1986 (the Act) against (1) the Sales Manager of Shree Ganesh Motors, (2) the Regional Manager, Capital First Ltd. and (3) the Manager, Capital First Ltd., hereinafter called the Opposite Parties or OPs, and also against the Managing Director of Honda Motors & Scooters Pvt. Ltd., as the Proforma Opposite Party, alleging deficiency in service occurred from the part of the OPs and Proforma OP  arising out of non-refund of excess EMIs taken by the OPs Nos. – 2 & 3 and also for providing non-solicited principal Loan amount by the OPs Nos.  – 2 & 3.

            The factual matrix of this case as is written in the complaint petition supported by annexed documents is that the complainant purchased a two wheeler Bike named HONDA Dream Yuga Self Drum of the Proforma OP Company having Chassis No. ME4JC58AFGT286158 and Engine No. JC58ET4286253 from the OP – 1 on 18/08/2016.  The price of this Bike was fixed at ₹61,322/- as is written in the Tax Invoice issued to the buyer/complainant bearing number 1617/S000393 dated 18/08/2016.  Complainant paid on that date ₹40,500/-. There were some extra charges amounting to ₹3,390/-  out of which ₹150/- for Reg. cost realisation A/C., ₹100/- for H. P. charges, ₹50/- for Smart Card, ₹700/- for other charges, ₹350/- for High Security Number, ₹800/- for Extended Warranty, ₹200/- for AMC, ₹354/- for Depreciation Insurance and ₹686/- for Front Guard Assembly. Thus, the total cost for purchasing the Bike comes to ₹64,712/-.  Complainant paid ₹40,500/- to the OP – 1 and it was decided that the balance amount would be paid by the OP Nos. – 2 & 3 as a loan to the complainant.  It was decided that the complainant would pay ₹1,498/- as EMI to the OP Nos. – 2 & 3 for 24 months.  Complainant alleged that the OP Nos. – 2 & 3 did not hand over relevant papers in respect of his Loan given to him as financial assistance. He repeatedly requested the OP Nos. – 2 & 3 to hand over the papers relating to his loan and lastly he sent a letter to them on 11/03/217 so that he could calculate the principal loan amount and the interest thereof.  But the OP Nos. – 2 & 3 had not handed over any papers to him.  He then lodged a complaint before the Howrah Office of Consumer Affairs & F B P.  Complainant alleged that for the first time after intervention of the office of the Consumer Affairs & F B P., Howrah, he came across to the fact that he was granted a loan of ₹29,000/- by the OP Nos. – 2 & 3, though they had to pay ₹24,212/- (₹64,712 - ₹40,500) to the OP – 1.  He alleged that the OP Nos. 2 & 3 did not give any satisfactory answers to his questions nor did they submit any papers relating to the loan before the authority of the Consumer Affairs & F B P., Howrah.  Complainant alleged that suddenly on 17/04/2018 the OP Nos. – 2 & 3 sent a mail to him wherein it was stated that they had provided him a loan principal amount of ₹8,448/- with interest of ₹539/- to be paid through EMI from 01/04/2018 up to 31/04/2019.  Complainant then sent a mail to the OP Nos.–2 & 3 on 02/05/2018 opposing such remittance as he had not applied for further loan.  But the OP Nos.–2 & 3 did not response to his mail resulting filing this instant complaint before this Forum/Commission praying to direct : (1) the OP Nos.–2  & 3 to pay compensation of ₹2,00,000/-, (2) to direct the OP Nos.–2 & 3 to refund excess EMI of ₹5,793/- paid by him, (3) to direct the OP Nos.–2 & 3 to cancel the mail dated 17/04/2018 providing principal loan amount of ₹8,448/- and interest of ₹539/- vide Loan A/C No. 7728182, (4) to direct the OP Nos.–2 & 3 to pay simple interest on the due amount till realisation, (5) to pay all costs for filing this complaint and any other relief or reliefs as this Forum/Commission may deem fit as per law and equity.

            Complainant filed copies of (i) the Invoice having No. 1617/S000393 of ₹61,322/0, Booking/Delivery having No. 639 receiving ₹40,500/-, Money Receipt No. 557 for ₹1,354/-, Tax Invoice having Bill No. 1617/S000273 for ₹686/-, Debit Notes bearing Nos. 1617/D000194 for ₹1,350/- & No. 1617/D000195 for ₹1,354/-, Delivery Chalan bearing No. SGH/1617/412, all dated 18/08/2016 issued by the OP–1, (ii) Cover Note issued by IFFCO-TOKIO General Insurance issued on 20/08/2016, (iii) Repayment Schedule generated on 30/06/2017, Account Statement generated on 04/06/2017, both are issued by the OP Nos. – 2 & 3,  (iv) mail dated 17/04/2018 issued by the OP Nos.–2 & 3 and some other documents as annexure to the complaint petition.

            Notice was served upon the OPs after admission to appear and contest the case by filing their written versions.  OP Nos.–2 & 3 jointly appeared first and filed their written version.  OP–1 then appeared filed written version and a petition praying to expunge the OP–1.  But this petition was dismissed for default. Proforma OP also appeared and filed written version. Complainant then filed his Evidence on Affidavit. OPs then filed their questionnaires. Then the complainant filed the replies against the questionnaire filed by OP Nos.–2 & 3 but failed to file replies against OP–1 and OP–4.  All the OPs failed to file their Evidences and subsequently they were restrained to file their respective evidences. In the meantime complainant filed a petition praying to expunge the name of OP–4 from the Cause Title as there was no allegation against the OP–4 which was subsequently allowed. Ultimately argument of the complainant as well as of the OP Nos.–2 & 3 were heard in full and they filed their respective  BNAs. We have now come to the position to deliver the Final Order in this case.  We have to decide whether the OPs are deficient in rendering proper services to the complainant for which he is entitled to get relief as prayed for.  As all the prayers of the complainants are against the OP Nos. – 2 & 3 we now concentrate our mind in this matter.  Original documents of which copies are annexed with the complaint petition are taken into consideration to finalise our decision.

DECISION  WITH  REASONS

                       1.    It is an admitted fact that the complainant purchased a two wheeler Bike named HONDA Dream Yuga Self Drum of the Proforma OP Company having Chassis No. ME4JC58AFGT286158 and Engine No. JC58ET4286253 from the OP – 1 on 18/08/2016. According to his allegation he had to pay a total sum of ₹64,712/-.  He paid ₹40,500/- on that date to the OP–1,  and according to his allegation he had to seek financial assistance from the OP Nos.–2 & 3 for the balance amount which would be ₹24,212/-. It is his allegation that the OP Nos.–2 & 3 sanctioned a loan of ₹29,000/- thereby an excess of ₹4,788/- had been sanctioned by the OP Nos.–2 & 3 and paid to the OP–1.

            2.         In the written version the OP–1 denied all the allegations and the entire responsibility has been given to the complainant to prove the allegations.  OP-1 stated that he had handed over all relevant papers to the purchaser/complainant during the purchase.  As all the allegations are against the OP Nos.–2 & 3, so the OP-1 is nowhere involved in the dispute stated in the complaint petition.

            The OP-1 has not adduced any copy of document with the written version.

            3.         The OP Nos.–2 & 3 through their written version denied all the allegations made by the complainant.  They have stated that there is no deficiency in rendering their service to the complainant. They stated that it was the complainant who approached before them to avail a loan of ₹29,000/- to purchase his desired Bike by applying for this loan. It was decided that the complainant would have to repay the loan amount and interest thereof in 24 EMIs from October, 2016 up to September, 2018 at the rate of ₹1,498/- per month.  They stated in their written version that they have handed over all the documents relating to this Loan.  They have also stated that the mail they have sent to the complaint on 17/04/2018 was related to the balance amount of his loan which was due as on 01/04/2018.

            OP Nos.–2 & 3 adduced some copies of documents related to the loan taken by the complainant along with an invoice and a note issued by the OP-1.

            4.         The OP-4 filed their written version denying their role in the dispute in this case.  As the OP-4 was expunged from this case in later stage we are not going to discuss further on their written version.

            5.         Let us now discuss about the role of the OP-1 in this case.  Complainant stated that the total price of the Bike including additional cost was fixed at ₹64,712/-.  In support of his claim he annexed the Invoice issued by the OP-1 which states that the Net Price of the Bike including VAT had been fixed at ₹54,440/ and the complainant had paid an extra amount of ₹6,882/- totalling ₹61,322/- which is written the Invoice bearing No. 1617/S000393.  Complainant stated that he had to pay another ₹3,390/- totalling ₹64,712/-. The OP-1 issued the Invoice of ₹61,322/-, a Booking/Delivery (chalan) receiving ₹40,500/-, a money receipt of ₹1,354/-, one Tax Invoice of ₹686/-, two Debit Notes of ₹1,350/- and ₹1,354/-.

            The OP Nos. – 2 & 3  annexed copy of Tax Invoice bearing the same number as that was issued to the complainant but here the Net price is written as ₹54,440/- and there is no statement of additional cost of ₹6,882/- as was written in the same Tax Invoice issued to the complainant.  Thus we think the OP-1 issued the same Tax Invoice in two different formats to the two different destinations.  Moreover, a Bill of ₹8,925/- issued by the OP-1 to the complainant is annexed by the OP Nos.–2 & 3.  A money receipt of ₹37,306/- has also been annexed by the OP Nos.–2 & 3 which seems to be issued by the OP-1 to the complainant.

            The above statements clearly show that the OP-1 has taken the role of hide and seek with both the complainant and the OP Nos.–2 & 3.  The OP-1 issued a money receipt of ₹40,500/- to the complainant whereas he issued a money receipt allegedly to the complainant for receipt of ₹37,306/- as annexed by the OP Nos.–2 & 3.  We failed to apprehend the missing amount of ₹3,296/- given by the complainant.

            6.         The documents relating to the loan in dispute, as annexed by the OP Nos.–2 & 3, show that the On Road Price of the Bike is written as ₹63,365/-, Down payment as ₹37,306/- and the Disbursement amount by the OP Nos.–2 & 3 is written as ₹26,059/-. Loan amount was ₹29,000/- out of which ₹2,641/- has been charged as processing and other charges.  There is no explanation of another ₹300/-.

                        7.         In the BNA the OP Nos.–2 & 3 expressed their views tallying with their written version.  Till filing the BNA the OP Nos.–2 & 3 has not clarified to the complainant the fact that the loan application number and the loan account number are the same.  They expressed their concern that double imposition of registration cost realisation account should be strictly verified.  But it was the fault of the OP-1 who has misguided the OP Nos.–2 & 3 to derive such concern.  Both in the written version and in BNA the OP Nos. – 2 & 3 expressed that they have not done any act of negligence or unfair trade practice as alleged by the complainant and they have clarified all the relevant information and terms and conditions to the complainant before granting the loan.  It was the misunderstanding of the complainant that caused him to file this instant complaint.

            An interesting point is here to note that through the loan documents it is written that the Loan Application No. is 7728182 which is written as the Loan Account Number in the mail dated 17/04/2018 sent to the complainant and this had not been clarified to the complainant.  Moreover, the OP Nos.–2 & 3 stated in their written version that the complainant had to pay total ₹66,755/- to the OP-1 whereas the complainant stated that he had to pay a total sum of ₹64,712/-.  This discrepancy in pricing has not been explained by any of the contesting parties.

            8.         Complainant alleged that the OP Nos.–2 & 3 has paid excess loan of ₹4,788/- over the required principal loan amount of ₹24,212/-.  But he failed to notice during signing the loan application that the OP-1 had to be given ₹26,059/- out of ₹29,000/- by the financing authority, i. e. the OP Nos.–2 & 3, and the rest amount was meant for processing and other charges. So question of refund of ₹4,788/- together with interest thereof does not arise.  We have noticed that the complainant failed to understand the actual purpose of sending mail by the OP Nos.–2 & 3 on 17/04/2018 mainly due to failure of these OPs to clarify the similarity between the Loan Application Number and the Loan Account Number.

            In the end we come to the conclusion that mainly the OP-1 and partly the OP Nos. 2 & 3 are liable to create misunderstanding in the mind of the complainant for which he came before this Forum/Commission to resolve the instant dispute.  The OP-1 has taken a major role in creating conflict in the mind of the complainant and the OP Nos.–2 & 3 have stepped into the wrong shoes provided by the OP-1 without verifying with the Invoices and Bills lying with the complainant. The OP Nos.–2 & 3 clearly failed to convince the complainant about the total process of granting loan and repayment process thereof but that does not tantamount to their deficiency in service.   

            The case record shows that it is an admitted fact that the complainant is a consumer of the OPs.  It is also an admitted fact that the OP-1 played a major role in filing this complaint.  But as all the prayers of the complainant are against the OP Nos.–2 & 3 and we think that the OP Nos.–2 & 3 are not deficient in service except the fact that they have not fairly explained their role and activities before and after granting the loan and that does not attract any relief to the complainant.  So, we think that the instant case is liable to be dismissed for want of merit as viewed from the angle of the prayers of the complainant.

            Hence, it is

ORDERED

            That the Complaint Case No. CC/178/2018 be and the same is dismissed on contest and with no cost.

            Let a copy of this order be issued, on demand, to both the parties free of cost.       

Dictated and corrected by me

            Member.