Date of filing:- 24/07/2015
Date of Order:- 15/03/2017
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM (COURT)
B A R G A R H.
Consumer Dispute Case No. 45 of 2015.
Sabita Tripathy W/o Rajat Kumar Tripathy, aged about years, occupation - R/o-Gartiapali, P/o-Godbhaga, Dist. Bargarh ..... ..... ..... ..... Complainant.
The Supplier, NARNOLIA MOTORS PVT. LTD, Authorised Dealer of Force Motors Ltd. N.H.6, Gopal-pali Chowk, Remed, Dist. Sambalpur.
Branch Manager, State Bank of India, Attabira, At/Po-Attabira Dist- Bargarh. .... ..... ..... Opposite Parties.
Counsel for the Parties:-
For the Complainant :- Sri A.K. Tripathy, Advocate with other Advocates.
For the Opposite Party No.1(one):- Ex-parte.
For the Opposite Party No.2(two):- Sri B.K.Mahapatra, Advocate with other Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.15/03/2017. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President.
Brief facts of the case: –
The Brief fact of the Complainant is that, she had applied for a vehicle loan from the Opposite Party No. 2(two) amounting to Rs. 4,95,000/- (Rupees four lakhs ninety five thousands)only which was sanctioned and a cheque of the same amount was released in favor of the Opposite Party No.1(one) on Dt.29.09.2008 by the Opposite Party No.2(two) and as per her contention it was released without her consent and counter signature and also on her behalf the Opposite Party No.2(two) paid an amount Rs. 90,000/-(Rupees ninety thousand only) towards down payment to the Opposite Party No.1(one) i.e also without the consent or signature of the Complainant, for supply of vehicle namely KARGO KING pick up van.
Further case of the Complainant is that, though the said loan is said to have been released by the Bank on Dt. 29.09.2008 in favor of the Opposite Party No.1(one) & he has received the same but the vehicle which was supposed to have been supplied to the Complainant immediately has not yet been supplied to her and since then she has been trying to pursue the Opposite Party No.1(one) in several occasion to hand over the vehicle for which he has already taken the payment from her through the Opposite Party No.2(two) but all the time he has been avoiding with different pleas taking advantage of her innocency, about which she has also intimated to the Opposite Party No.2(two) orally in several occasion, but on the other hand the Opposite Party No.2(two) has been putting pressure on her to repay the said loan amount, in stead of taking steps against the Opposite Party No.1(one) for supply of the same to the Complainant and being pressurized she has also repaid a considerable amount of Rs.1,50,000/-(Rupees one lakh fifty thousand)only approximately to the Opposite Party No.2(two).
Further more it is also alleged in the complaint that, the vehicle on the interference of her husband, after his retirement from his service in the year 2014 who was working out-side the district, on his inquiry in the office of the R.T.A. Sambalpur it came to their notice that no vehicle has been registered in her name rather the vehicle which the Opposite Parties claims to have been given to the complainant is actually registered in the name of one Subrat Das of Ward No.8(eight) of Bargarh town and has given a fake registered letter to the Complainant as such has alleged to have played unfair trade practice, and deficient in giving service by both the Opposite Parties and besides that Opposite Party No.1(one) have committed other offences and are liable to be penalized there-under, and as such the Complainant has claimed for refund of her deposited amount from the Opposite Party No.2(two) with interest along with Rs.5,00,000/-(Rupees five lakhs)only as compensation amount from both the Opposite Parties since both of them are jointly and severally liable for her mental agony and torture caused by such an act of unfair trade practice and deficient in giving service. And in her support she has filed some relevant document
Retail invoice copy of the Opposite Party No.1(one) vide No. NMPL/2008-09,VR.67 Dt. 28.10.2008.
Invoice/Letter No-NMPL/526 Dt. 29.09.2008
Money Receipt No.39/08/09 of Opposite Party No.1(one) Dt. 29.09.2008.
Money Receipt No.38/08/09 of Opposite Party No.1(one) Dt. 26.09.2008.
R.C. particulars of vehicle TRAX KARGO KING, Regn. NO.OR-15-N-6819.
Possession notice of SBI, Attabira Branch No. BR/ADV/36/94 to Sabita Tripathy.
The case was admitted on perusal of record and documents filed by the Complainant and on hearing her Advocate by the Forum and notice was served on both the Opposite Parties, the Opposite Party No.2(two) appeared through it’s Advocate and filed it’s version but the Opposite Party No.1(one) did not bother to appear before the Forum even if summon was duely served on him and in spite of sufficient time was given considering lest he would come and appear but to no result consequent upon which he was set ex-party on Dt.17.08.2016.
The Opposite Party No.2(two) appeared through it’s advocate and duely filed their version, summarily denying the case of the Complainant with a plea that the allegation in the complaint, as of a story concocted in connivance with the Opposite Party No.1(one) to avoid the repayment of loan amount and also has taken initiative under the scrutinization and reconstruction of Financial Assets and Security Interest Act -2002 and has served possession notice to the Complainant thereunder with a prayer to dismiss the case in the aforesaid grounds.
Perused the record, the documents filed by the Complainant and the averments made by the Opposite Party No.2(two) in it’s version and keeping the non-appearance of the Opposite Party No.1(one). In our view the following points are to be determined for proper adjudication of the case.
Whether the complainant is a consumer or not and whether any unfair trade practice, deficiencies in service has been caused to the complainant ?
Whether the case is barred by the enforcement of scrutinization and reconstruction of Financial Assets and Enforcement of Security Interest Act – 2002 or not ?
Where the Complainant is entitled for any financial relief or not ?
The Advocate for the Complainant filed his memo of arguments whereas the advocate for the Opposite Party No.2(two) advanced his oral arguments at length. And since the Opposite Party No.1(one) did not turn of even being duely noticed hence he is set ex-party. And in view of such circumstances we are of the view to decide the case on merit basing on the materials available on record.
Having gone through the record, documents pleading and version of the Opposite Party No.2(two) and after hearing at length from both the Advocates of the respective parties, our finding, views and order is narrated as follows.
While dealing with the point No.1(one) for determination, it reveals from the record that the Opposite Party No.2(two) has admitted in it’s version that she has an account in their bank in which such loan account is being dealt with, and as she has paid the amount expecting proper service, has paid an amount of Rs. 1,50,000/-(Rupees one lakh fifty thousand)only approximately against the repayment of the loan along with some interest over the sanctioned amount and has not been denied in any form by the Opposite Party No.2(two) even if it is alleged that she has no knowledge about such disbursement to the Opposite Party No.1(one) and more over the transaction between the Opposite Party No.1(one) have taken place through the Opposite Party No.2(two) and in the absence of any reply from the side Opposite Party No.1(one) even if it is alleged to be a fake transaction as no vehicle has been supplied to her and also being treated as a customer of the Opposite Party No.1(one) & No.2(two) too. So in view of such circumstances according to the provision U/s 2(d) of the Consumer Protection Act 1986, in our considerate view the Complainant is a consumer accordingly our view is answered in favor of the Complainant. And furthermore nonappearance of the Opposite Party No.1(one) before the forum even after being duely served with notice and his non-supply of the vehicle to the Complainant even after receiving the sanctioned amount loan and down payment for supply of the same, from the Opposite Party No.2(two) amounts to unfair trade practice on the part of the Opposite Party No.1(one) and it is also clearly revealed from the entire record that the Opposite Party No.2(two) has not taken any steps against the Opposite Party No.1(one) to ensure the delivery of vehicle to the Complainant against which he has made payment directly on behalf of her(Complainant) for such of his act it can be safely be inferred that he is liable for deficiencies of service hence our answer accordingly goes in favor of the Complainant.
Secondly, while dealing with the question of the applicability of scrutinization and reconstruction of Financial Assets and Enforcement of Security Interest Act- 2002 or not.
We vividly examined the record and the documents to that affect and the contention made by both the counsels of the respective parties it is found that the allegation made by the Complainant regarding non-delivery of the vehicle to her and manufacturing of documents by the Opposite Party No.1(one), it is evident from the inconsistencies in the retail invoice issued by the Opposite Party No.1(one) and the said so called registration certificate that the engine number and the chassis number it does not match with each other, further more when we compared the signature of the Complainant contained in the invoice copy with that in the complaint and vakalatnama it is also visibly not matching in the naked eyes too, which proves the contention of the Complainant to be true against the Opposite Party No.1(one). It is also clear from the letter issued by the Opposite Party No.2(two) to the Opposite Party No.1(one) on Dt.29.09.2008 vide Ref; your PROFORMA INVOICE/LETTER No. NMPL/526 filed by the Complainant that the Opposite Party No.2(two) has instructed the Opposite Party No.1(one) to supply the vehicle in question to the Complainant or else would withdraw the amount of Rs.4,95,000/-(Rupees four lakh ninety five thousand)only which it had issued in his favor on behalf of the Complainant but to that affect there is no rebuttal evidence from the side of the Opposite Party No.2(two) that whether the same is supplied to the Complainant or not rather in it’s version the Opposite Party No.2(two) has contended a confusing version as it might be the conspiracy in between both the Complainant and the Opposite Party No.1(one) and the same is not with in his knowledge which proves his callousness and lack of responsibility towards it’s customer since he being the first owner of the vehicle, had it been supplied to the Complainant till the total realization of the loan amount from her the borrower (the Complainant) but in this case the Opposite Party No.2(two) has not performed it’s duty to ensure that the vehicle against which the said loan was sanctioned in favor of the Complainant was physically delivered or not, on the other hand as per the complaint he did not bother to ascertain the complain of non delivery of the same to her which is his mandatory duty as per it’s own aforesaid letter to the Opposite Party No.1(one). Again it has fortified the allegation of the Complainant regarding the discrepancy in dealing with the case of the Complainant, from the date of the letter i.e 29.09.2008 of the Opposite Party No.2(two) and the date of purchase of the vehicle mentioned in the registration certificate allegedly manufactured by the Opposite Party No.1(one) i.e on Dt. 02.02.2010 which amounts to serious commitment of unfair trade practice on the part of the Opposite Party No.1(one) and also on the part of the Opposite Party No.2(two) as it was his bounden duty to ascertain the delivery of the said vehicle to the Complainant and in that case the loan transaction would have been completed but he has not performed. It’s such duty and such acts of both the Opposite Parties amounts to unfair trade practice & negligence in performing their duty or in other wards are deficient in giving service to the Complainant causing her physical torture & mental agony for which both are equally responsible.
In furtherance to our analysis the record reveals that on Dt. 18.01.2016 the forum has granted the stay of the proceeding directing the Opposite Party No.2(two) not to take any stringent action against the Complainant due to the negligence in filing of objection by the Opposite Party No.2(two) to the petition for stay of the proceeding by the Complainant for a long time. But the Opposite Party No. 2(two) has not preferred any appeal or revision against such order which shows that he was agreed with the said order.
In view of the aforesaid circumstances the Opposite Party No.2(two) should have taken care of it’s duty towards it’s costumer first and should have ascertained that whether it’s sanctioned amount of money remitted to the Opposite Party No.1(one) for supply of the said vehicle is performed or not in stead of taking steps for recovery of the loan from the Complainant, specially when the amount of the said loan is not directly paid to the Complainant, rather it should have taken action against the Opposite Party No.1(one) for it’s intentional default in supplying the said vehicle and mis-utilizing the money or in other ward misappropriation of the same and should have taken steps for recovery of the same from him along with other course of action.
Therefore in view of our aforementioned detail discussion, in our view it is clear that the Complainant is not the borrower of the Opposite Party No.2(two), as such is not liable for any action of recovery of the said loan by the Opposite Party No.2(two) in any form and is not liable to repay any amount to the Opposite Party No.2(two) rather both the Opposite Parties are jointly and severally liable to pay the said deposited amount to the Complainant and to pay compensation towards her mental agony and harassment, as such she is entitled to get back her deposited amount of money amounting to Rs. 1,50,000/-(Rupees one lakh fifty thousand)only with interest @ 6%(six percent) per annum and entitled for compensation amounting to Rs.20,000/-(Rupees twenty thousand)only with interest @ 6%(six percent)per annum from the date of filing of this case within one month of the date of order.
And in view of such circumstances the said scrutinization and reconstruction of Financial Assets and Security Interest Act-2002 is not applicable against the Complainant. And also, in view of the provision U/s 3 of the Consumer Protection Act-1986 it is in addition to and not in derogation of the provision of any other Law for the time being in force. Specially because the Opposite Party No.2(two) has failed to prove that the Complainant is a borrower of the said loan as no vehicle as agreed by both Opposite Parties have yet been supplied to her. Further more we must give due respect to the spirit and the purpose of the enactment of the Consumer Protection Act-1986 i.e to safe guard the interest of the consumer from unfair trade practice and deficiencies of service. As in this case when it is evident that neither the Complainant is given any amount of the said sanctioned amount of loan directly to her nor has been delivered with the said vehicle for which the same amount was sanctioned and disbursed to the Opposite Party No.1(one) by the Opposite Party No.2(two). Hence in our logistic view no law would be applicable against her for recovery of any amount.
Thirdly while discussing the third point of determination, we have already discussed thoroughly about the case at length and have held that the Complainant is a consumer, she has been subject to physical harassment, and has under gone severe mental agony and financial loss due the aforesaid acts of both of the Opposite Parties as such is entitled to refund back his deposited amount of money and compensation for his such suffering, hence it is answered accordingly in her favor for which both the Opposite Parties are jointly and severally liable. Hence order follows.
- : O R D E R :-
Hence the Opposite Party No.1(one)is directed to give delivery of the said vehicle namely TRAX KARGO KING pick up van to the Complainant with in one month from the date of order and also directed to pay interest as per scheduled rate of interest to the Opposite Party No.2(two) on Rs.4,95,000/-(Rupees four lack ninety five thousand) only which he has received from him (Opposite Party No.2(two))and also to pay the same rate interest on Rs.90,000/-(Rupees ninety thousand) only received as down payment, in default of which would accure an interest @ 12%(twelve percent) on Rs.4,95,000/-(Rupees four lakh ninety five thousand)only and Rs.90,000/-(Rupees ninety thousand) per annum on and above the said rate of interest from the date of receipt of the same amount till the date of realization. And in the event of such default on the part of the Opposite Party No.1(one), the Opposite Party No.2(two) is at liberty to take proper course of action as per law..
Further the Opposite Party No.2(two) is directed to refund the deposited amount of Rs.1,50,000/-(Rupees one lakh fifty thousand)only to the Complainant with interest @ 6% (six percent) per annum from the date of deposits in default of which it would accure interest @ 12% (twelve percent) till realization of the same.
In the event of supply of the said vehicle to the Complainant by the Opposite Party No.1(one), the Complainant and the Opposite Party No.2(two) would be binding by their existing loan agreement in respect of the said vehicle.
Thirdly since both Opposite Parties are jointly and severally liable, as such are directed to pay Rs. 10,000/-(Rupees ten thousand)only as compensation for the mental agony and physical harassment caused to her.
Accordingly the case is disposed off.
Typed to my dictation
and corrected by me.
I agree, I agree, ( Sri Krishna Prasad Mishra)
President.
(Sri Pradeep Kumar Dash) (Ajanta Subhadarsinee)
M e m b e r. Member (W)
