BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No.122/2013
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.) -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA - Member
Smti Usha Das @ Smti Usha Kalita Das - Complainant
W/O Sri Makhan Das
Resident of House No. 16, Krishna Nagar
P.S.Chandmari,Guwahati-3
District Kamrup(M), Assam.
-vs-
I) The Sales/Works Manager - Opposite parties
Bimal Auto Agency, Chandmari, Guwahati-3
P.O.Chandmari, District-Kamrup (M),Assam
2) The Chief Manager, Allahabad Bank,
Panbazar Branch, Branch Code-01546,
C.K.Road,Guwahati-1,
District-Kamrup(M),Assam.
3) Maruti Suzuki India Ltd.
Regd.Office,Plot No. 1,
Nelson Mandala Road,New Delhi-110070
Appearance
Learned advocate Mr.Mainul Haque Saikia for the complainant .
Learned advocate Mr.R.K.Jain & Mr.K.K.Bhatra for the opp. parties
Date of filing written argument:- 18.12.18
Date of oral argument:- 19.2.20, 26.11.20 and 10.12.20
Date of judgment: - 9.2.2021
JUDGMENT
1) This is a complaint filed u/s 12 of the Consumer Protection Act, 1986 by one Smti Usha Das @Smti Usha Kalita Das against (1) The Sales/works Manager (2) The Chief Manager, Allahabad Bank and (3) Maruti Suzuki India Ltd.
2) The fact of the complainant case is that the petitioner approached M/S Bimal Auto Agency for purchasing a Maruti Alto –LX car and on 6.9.2011 she booked the said car by paying an amount of Rs.5,000/- by a cheque of Central Bank of Guwahati which has been received by opp.party No.1 vide M.R.No. 13750.
3) According to the complainant opp.party No.1 received an amount of Rs.67,000/- (Rupees sixty seven thousand)only as down payment from complainant which was acknowledged by issuing money receipt in which the type of the vehicle mentioned was ALTO-LX (S/W). But the same amount was shown in the bank Record as amount of Rs.65,000/- (Rupees sixty five thousand)only against a new vehicle named as K-10-LXI. But the complainant received all documents like registration certificate etc. where it was mentioned as ALTO-LX and the petitioner also got the physical possession of the Alto LX car and was in her possession till date.
4) The complaint petition further reveals that documents as shown in the record received from the Allahabad Bank, Panbazar branch was for Alto –K10-LXI with a proforma invoice dtd. 1.9.2011 and road price of the vehicle was Rs.3,58,455/-Rupees three lakhs fifty eight four hundred fifty five)only . The opp.party No. 2 further informed the petitioner that they have received a money receipt from M/S Bimol Auto Agency for an amount of Rs.65,000/-( Rupees sixty five thousand) only dtd. 1.9.2011 paid by Smti Usha Kalita as down payment against the new vehicle Alto K10 LXI supported by an invoice for Rs. 3,58,455/- (Rupees three lakhs fifty eight thousand four hundred fifty five)only and according to them a loan was granted for Rs.2,80,000/- (Rupees two lakhs eighty thousand)only to the complainant /petitioner which was released to the opp.party No.1 i.e. The Seller M/S Bimal Auto Agency.
5) Here complainant alleged that booking of the car was on 6.9.11 and Bimal Auto Agency submitted a invoice to the bank on 1.9.11 which apparently irregular and it is alleged that the Allahabad Bank, Panbazar branch sanctioned an amount of Rs.2,80,000/- (Rupees two lakhs eighty thousand)only against Maruti Alto K-10 LXI car by making some anomalies.
6) The complainant alleged that bank authority acknowledged sanctioned of a loan amount of Rs.2,80,000/-(Rupees two lakhs eighty thousand)only. The petitioner paid booking an amount of Rs.5,000/- (Rupees five thousand)only and down payment of Rs. 67,000/-(Rupees sixty seven thousand)only, thereby total amount of Rs. 72,000/-(Rupees seventy two thousand)only and on road price of the Maruti Alto LX was Rs.3,17,814/- (Rupees three lakhs seventeen thousand eight hundred fourteen)only.
7) The complainant further submitted that there was an offer under which insurance amounting Rs.9,890/- (Rupees nine thousand eight hundred ninety) and extended warranty amounting Rs.1,790/- (Rupees one thousand seven hundred ninety)only were free at the time of purchasing the car. So the on road price of the purchased car came to Rs.3,06,134/- (Rupees three lakhs six thousand one hundred thirty four) only .
8) As per claim of the complainant after payment of Rs. 72,000/- (Rupees seventy two thousand) only to the opp.party No.1 the balance amount of the vehicle should be Rs.2,34,134/- (Rupees two lakh thirty four thousand one hundred thirty four)only , but the bank sanctioned a loan amount of Rs. 2,80,000/- (Rupees two lakh eighty thousand)only against the aforesaid vehicle. So an excessive amount of Rs.45,866/- (Rupees forty five lakhs eight hundred sixty six)only was sanctioned as a loan amount in favour of the petitioner by the aforesaid bank by some unwholly nexus with the M/S Bimal Auto Agency against a Alto K 10-LXI model of Maruti whereas the said auto agency delivered to the petitioner A Maruti Alto LXI which is a cheating done by M/S Bimal Auto Agency and the bank authority amounting to restrictive trade practice u/s 2(1)(nn) of Consumer Protection Act 1986 as amended in the year 1993 for which petitioner suffered mental agony and financial loss by paying higher EMI to her bank beyond the actual price of the vehicle.
9) The petitioner further making the Maruti Suzuki India Ltd. as a party as M/S Bimal Auto Agency as a car selling agency under Maruti Suzuki India Ltd.. According to the complainant she several time intimated above anomalies to M/S Bimal Auto Agency, Allahabad Bank authority and legal notice was also sent to them on 12.11.2013 where the bank authority gave the reply in respect of the above legal notice and have not taken any responsibility and M/S Bimal Auto Agency have not responded to the legal notice sent by the petitioner. Under the above circumstances the petitioner came up with the present complaint by claiming compensation amounting to Rs. 4,50,000/- along with adjustment of overdues amount of Rs.45,866/- (Rupees forty five thousand eight hundred sixty six)only.
10) The contested party appeared and filed their written statement. The opp.party No.1 stated in their written statement that the complaint petition is not based on correct facts but is based on own conjectures of the complainant . It is specifically denied by them getting an amount of Rs.67,000/- (Annexure-1) as down payment and Rs.65,000/- (Annexure-II) directly from the complainant. The opp.aprty No. 1 stated that both the annexures are forged and fabricated documents.
12) The opp.party No.1 further stated that Alto-LX was delivered to the complainant on receipt of Rs.3,04,078/- only in total i.e. Rs.5,000/- only from the complainant as booking amount of Rs.2,98,000/- from the Allahabad Bank and Rs.1078/-from the complainant . They are not concerned with the amount of loan sanctioned by the bank as the fixation of loan amount was a matter between the complainant and bank. Opp.party No. 1 states that complaint petition is liable to be dismissed with cost.
13) The opp.party No.2 submits in their written statement that allegations made in the complaint are false, baseless and motivated as loan application reveals that the complainant applied for a loan of Rs.2,80,000/- for purchasing a new car costing Rs.3,58,455/- from the opp.party No.1 and accordingly they sanctioned a loan of Rs. 2,80,000/- in her favour and released the amount to the oopp.party No.1 i.e. the seller M/S Bimal Auto Agency.
14) The contesting opposite party No.2 in his written statement categorically mentioned that loan application submitted by the complainant reveals the fact that complainant applied for a loan of Rs.2,80,000/(Rupees two lakhs eighty thousand) only for purchased a new car costing Rs. 3,58.455/- (Rupees three lakhs fifty eight thousand four hundred fifty five)only from M/S Bimal Auto Agency , opp.party No.1 and accordingly opp.party No.2 sanctioned a loan of Rs.2,80,000/- (Rupees two lakhs eighty thousand) in favour of the complainant and release the said amount to M/S Bimal Auto Agency. It is submitted that opp.party No.2 vide letter dtd. 20.8.2012 asked the complainant to provide invoice copy , money receipt, copy of R/C , booking copy insurance policy etc., but these were not received by the opp.party No. 2 as yet.
15) The cross examination of C.W.1 reveals the same fact that after making down payment to opp.party No.1 and also paying the booking amount the bank has sanctioned an amount of Rs.2,80,000/-(Rupees two lakhs eighty thousand) only to the complainant. Admittedly down payment was not made to the bank by the complainant and on Ext.6 in the proforma invoice it was written as Alto K10 LXI and an amount of the price was also mentioned on Ext.6 . It is further admitted by C.W.1 that on Ext.6 it was mentioned about the model of the car as Alto-K10-LXI and bank sanctioned Rs.2,80,000/- (Rupees two lakhs eighty thousand) only as a loan to the complainant as per Ext.8. But the version about the loan amount to the tune of Rs.2,80,000/- (Rupees two lakhs eighty thousand) only is false as per C.W.1 . It further reveals from the cross examination of C.W.1 that there were some dispute regarding payment of bank dues and process of settlement was going on which are not a subject of the present dispute. It is admitted clearly that bank have sanctioned a loan to purchase Alto –K10-LXI, but C.W.1 purchased Alto LX which they have claimed to inform the bank (opp.party No.2). It is admitted position of fact that complainant lodged a criminal case against the bank and the result was not known to her. Mere denial of the loan amount orally by C.W.1 does not impeaches the credibility of the documents available on record.
16) Having such clear evidence on record we do not like to discuss further about the involvement of the bank in respect of the purchase of the vehicle by the complainant from opp.party No.1. It is clear from the above discussion that bank have sanctioned the loan on the basis of a particular invoice issued by the seller (Opp.Party No.1) and hence it is the obligation and the duty of the op.party No.1 to deliver the said vehicle (model) to the complainant as per sanctioned amount as mentioned in the invoice . Beyond that the bank have no role to play to aforesaid transaction and we found no deficiency in service on the part of the bank and hence there is no merit in the matter of dispute against opposite party No. 2.
17) The opp.party No.3 stated in their written statement that the complainant is not a consumer as the complainant did not enter into any contract for sale or hire any service for consideration with opp.party No. 3 . The present complaint is not maintainable against opp.party No. 3 as they are the manufacturer only does not sell the vehicles directly to any individual customer. The Hon’ble National Commission in the matter of Maruti Udyug Limited –Vs- Arjun Singh and in another two judgments held that the relationship between Maruti Udyog Ltd. and its dealer was based on principal to principal and therefore, present complaint is liable to be dismissed.
18) We have heard argument from both sides. We found in the submission and pleading taken by opp.paty No.3 , the manufacturer of the Maruti Car. It is undisputed that the manufacturer does not sell the vehicle directly to individual customer and it is the dealer and the consumer and hence the case against op.party No.3 is without merit and is dismissed.
19) Now from the entire evidence on record we need to determine whether there is any deficiency in service on the part of the opp.party No.1 i.e. M/S Bimal Auto Agency. Apparently it was a transaction between the complainant and M/S Bimal Auto Agency, (opp.party No.1) who had undisputedly delivered a vehicle Alto LXI car which was booked by the complainant on 6.9.2011 and paid a booking amount of Rs.5,000/- and it is not disputed as well as not denied by the opp.party No.1 that they have received the said amount . But the opp.Party No.1 repeatedly denied the fact of receiving Rs.67,000/-(Rupees sixty seven thousand) only as down payment or another amount of Rs.65,000/-(Rupees sixty five thousand)only from the complainant. Although money receipt for Rs.67,000/- i.e. Ext.2 and another money receipt for Rs.65,000/- (Rupees sixty five thousand)only available with record is claimed to be as forged and fabricated document submitted by the complainant , but in this regard op.party No. 1 neither approached any court nor filed any F.I.R. in any police station and in the absence of any experts opinion we are unable to hold any view that these two documents are forged or genuine.
20) We have found in the evidence of the parties that opp.party No. 1 never denied issuance of two documents by them. Ext.6 i.e. the proforma invoice for Alto-K-10—LXI, Rs.3,58,455/- (Rupees three lakhs fifty eight thousand four hundred fifty five)only and Ext.7 i.e. the check list where the name of the car is mentioned as Alto-LX different from Ext.6. Therefore, we hold a view that opp.party No. 1 knowingly issued the said documents and on the basis of the Ext.6 the bank i.e. opp.party No. 2 sanctioned the loan in favour of the complainant . If loan amount was sanctioned for Alto K10 LXI then question arises why opp.party No.1 delivered another model of vehicle of lesser value.
21) We have found that the complainant in her cross examination stated that in Ext.6 i.e. the proforma invoice, the model of the car is written as Alto-K10-LXI and the price is also mentioned therein as Rs.3,58,455/- (Rupees three lakhs fifty eight thousand four hundred fifty five)only . C.W.2 Sri Makhan Das , husband of the complainant stated in his cross examination that the bank rightly sanctioned the loan on the basis of proforma invoice dtd. 1.9.2011 .
22) It has come to our notice that op.party No.2 have denied of receiving any amount to the extent of Rs.67,000/- or Rs.65,000/- by vouchers (Annex.II) which has been denied by opp.party No.1 as a forged documents. Similarly there is another money receipt exhibited and submitted with record as Annex.III which was money receipt claimed to be issued by M/S Bimal Auto Agency is also denied categorically by contesting opp.party No.1.
23) In such a situation the transaction between the complainant and the op.party No.1 the seller of the car appears to be a business transaction and in such a case it is very difficult to determine by this forum about any misdeed or fraudulent Act omitted or committed by the parties in transaction . In our humble opinion such dispute of the entire case only to be taken before the appropriate authority for the remedies of criminal or civil liability if any .
24) The evidence of C.W.1 and C.W.2 as well as Ext.1 , Ext.2 shows that there were payment made for booking a vehicle by the complainant along with down payment of Rs.67,000/-. This part of evidence is not rebutted by the opp.party to dis-belief the fact that there was no such booking of the vehicle by the complainant. But another document submitted as an annexure for an amount of Rs. 65,000/- shown as down payment which is denied by the opp.party and cannot safely accepted for the purpose of determining any fact about financial transaction between the complainant and the opp.party No. 1.
25) Our considered and thoughtful analysis of the entire episode is that there should be a fairness and transparency in dealing with business or trade with the consumer. So far the present complaint is concerned the complainant was kept in dark about the sanction of actual amount by issuing sanction letter whereas the vehicle handed over to her which was not Maruti K 10, but Maruti Alto LXI. Undisputedly there is a difference of price amounting to Rs.45,866/- (Rupees forty five thousand eight hundred sixty six)only sanctioned by the opp.party No.2 in favour of the opp.party No.1 which became an extra burden on the shoulder of the complainant .
26) We have gone through the provision of section 2(e) (nnn) which is read as under,
“ restrictive trade practice ” means a trade practice which tends to bring about manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include-
a) Delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price.
b) Any trade practice which requires a consumer to buy , hire or avail of any goods or , as the case may be, services as condition precedent to buying, hiring or availing of other goods of services,
27) Having such a law relating to unfair trade practice as defined under the Act we found the following fact which can be derived from our foregoing discussion.
i) The allegation of not making down payment is not explained by adducing any material evidence by op.party No.1.
ii) The difference prices of Alto-LXI and Alto K10 is amounting to Rs.45,866/- (Rupees forty five thousand eight hundred sixty six)only which is not explained by opp.party No.1 nor contradicted the same showing the reason for not delivering Alto K10 LXI to the complainant for which loan was sanctioned.
iii) The denial of down payment either Rs.67,000/- (Rupees sixty seven thousand)only or Rs.65,000/-(Rupees sixty five thousand)only by opp.party no.1 is not substantiated by adducing believable evidence. There is no evidence or shown reason by opp.party No.1 why he had not filed any FIR for alleged forgery of the documents produced by the complainant.
28) The above facts are found irregular and unfair trade practices while a vehicle was sold to the complainant by opp.party No.1. The complainant was compelled to take over a vehicle Alto LXI which is lesser in value by Rs.45,866/- (Rupees forty five thousand eight hundred sixty six)only against the sanction of a loan for a car model No. Alto K10-LXI. Hence opp.party No.1 have caused suffering and loss to the complainant and there is a deficiency of service on the part of the opp.party No.1.
29) In the result the complaint petition is dismissed against opp.party No.2 & 3 and is decreed against opp.party No.1 only with the following direction.
ORDER
30) The opp.party No.1 M/S Bimal Auto Agency is directed to refund back the excess amount of Rs.45,866/-(Rupees forty five thousand eight hundred sixty six)only received from the opp.party No.2 to the complainant along with interest @ 6% per annum from the date of filing the complaint petition till the date of judgment.
The opp.party No.1 is further directed to pay a compensation amounting to Rs. 30,000/- ( Rupees thirty thousand ) only along with cost of the proceeding amounting to RS.5,000/-(Rupees five thousand ) to the complainant within 45 days from the date of the judgment failing which the opp.party No.1 have to pay an interest @ 12% per annum on the entire decreetal amount till realization.
Given under our hand and seal of the District Commission, Kamrup, this the 9th day of February/2021.
Smti A.D.Lahkar Md J.Islam Shri A.F.A Bora
Member Member President
Dictated and corrected by me
Shri A.F.A Bora
President
District Consumer Commission, Kamrup.
Typed by me
(Mrs J.Borah)
Stenographer, District Consumer Commission, Kamrup.
