Ld. Advocate(s)

            For Complainant          .. Makbul Rahaman

                        For OP/OPs                  .. Subhankar Sanyal

Date of Filing           : 27.03.2019

Date of Disposal      : 28.01.2020

:    JUDGMENT & ORDER  dtd. 28.01.2020   :        

The case of the complainant, in brief, is that the complainant purchased a mobile set on 14.12.2017 from the shop of the OP No. 1.  When the said Finance Company was giving the IMEI No. of the said mobile set the date entry system of OP No. 2 was reversed that the IMEI No. of the said mobile set is already used.  Thereafter, the complainant refused to take the said mobile set but the OP No. 1 assured the complainant to take the said mobile set and also assured that the finance of the said mobile set would be started.  Thereafter, the EMI started from 03.07.2018 amounting to Rs. 2150/- and tenure of EMI was 10 months.  Thereafter, the complainant noticed that according to purchase Memo of the said mobile set the EMI amount is Rs. 2930/- and tenure was 8 months but the 1^st EMI debited from his account is Rs. 2150/-.  Thereafter, the complainant went to the shop of the OP 1 and OP 1 enquired the said matter from OP No. 2 and the OP No. 2 gave a loan statement to the complainant.  Thereafter, the complainant noticed that in the loan agreement No. 16043621 the loan amount was Rs.21,500/- and tenure was 10 months and purchased asset was Sumsung Washing Machine.  Thereafter, the complainant informed to the matter to OP No. 1 and OP No. 2 and requested to rectify the asset purchased part of the said loan agreement.  After waiting a few days, the complainant again informed the matter to OP No. 1 & 2 and requested to rectify the asset purchased part of the said loan agreement and thereafter, the complainant stopped the EMI.  Due amount of the complainant is Rs.21,990/- as the price of the mobile and the present loan EMI is Rs. 2150/- but according to purchased bill his EMI amount is Rs. 2,930/- and tenure is 8 months, so there is a difference.  Thereafter, the complainant went several times to the OPs but to no effect.

The cause of action arose on and from 28.02.2018 and its continuing day by day.  Finding no other alternative, the complainant has filed this case and prayed before the Forum to pass an order against the OP to correct the asset purchased part of the said loan agreement or to refund of Rs. 2150/- and take back the mobile set and cancel loan agreement, refund the paid EMI of Rs. 2150/- with 12 % interest, Rs. 50,000/- as compensation for loss, damages, harassment and mental agony and Rs. 15,000/- as litigation cost to the complainant. 

The complainant has filed some documents in support of his case which are in the record are as below:-

1. Annexure – 1 – Copy of purchase bill

2. Annexure – 2 – Copy of loan agreement

3. Annexure – 3 – Advocate Letter

4. Annexure – 4 – Notice of DLSA

5. Annexure – 5 – C.A.B. Letter

On the other hand, OP No. 1 and OP 2 have contested this case separately by filing separate written versions wherein they have denied the entire allegations brought by the complainant.

The specific contention of the OP No. 1 is that the complainant had purchased one mobile set on 14.12.17 from the OP No. 1 and took a loan facility from OP 2.  As the complainant has not any specific allegations against the OP No. 1, so the OP No. 1 prays before the Ld. Forum to dismiss the case without any cost. 

The OP No. 1 has filed a document to defend his case which is below:-

1. Original Tax Invoice of one mobile set.

The specific contention of the OP No. 2 is that the complainant has never taken any loan from the OP No. 2 for purchasing a mobile set but instead the complainant has taken a loan facility from the OP No. 2 for purchasing a Washing Machine on 03.07.2018 and EMI was fixed at Rs. 2150/- for 10 months.  Thereafter, the 1^st EMI was fixed on 05.08.18.  As the complaint is related to the purchase of a mobile set which the OP No. 2 is totally denying so the instant case may be dismissed against the OP No. 2 without any cost.

Points for discussion

1.  Whether the complainant is a consumer under the CP Act, 1986?
2. Whether there was any deficiency in service from the side of the OPs?
3. Whether there was any unfair trade practice on the part of the OPs?
4. Whether the complainant is entitled to get any relief /reliefs as prayed for?

Decision with reasons

Point No. 1:

The relationship of consumer and service provider is not denied between the complainant and the OPs.  So, the complainant is a consumer within the purview of Consumer Protection Act, 1986. 

This point goes in favour of the complainant. 

Point Nos. 2 and 3:

Both the points are taken up together for the sake of brevity and convenience of discussion. 

The contention of the OP No. 2 is that the complainant availed loan for purchasing a washing machine not for purchasing a mobile set but in support of his contention the OP No. 2 has failed to produce any cogent documents like cash memo etc. of Washing Machine so issued by the OP No. 1 to the effect duly shown the EMI Statement which by any stretch of imagination does not prove the fact of purchasing Samsung Washing Machine as alleged by the OP No. 2. 

On the other hand, it is admitted by the OP No. 1 that one VIVO mobile set was purchased by the complainant from the OP No. 1’s showroom i.e., Khosla Electronics on 14.12.17 by availing loan from the OP No. 2. 

On the basis of above observation, we are of the view that entire activities of the OPs are willful inaction and latches on their part and both the OPs are solely responsible for unnecessary suffering and harassment of the complainant.  Thus, it is clear case of deficiency in service and also unfair trade practice on the part of both the OPs. 

Point No. 3:

On scrutiny of the documents produced by both the parties as well as submission by the respective parties we are of the considered view that the complainant is not entitled to get any other relief as claimed for, as the complainant did not suffer any type of loss.

In the net result the case succeeds in part. 

Hence, it is                                       

O R D E R E D,

That the case be and the same is allowed in part against the OPs No. 1 & 2.

The OP No. 2 is hereby directed to refund the EMI of Rs. 2150/- so deposited by the complainant on 05.08.2018 as 1^st EMI and to issue NOC to the complainant against the mobile loan so availed by the complainant on return of the disputed mobile set to the OP No. 1 within 30 days from the date of this order, failing which, the complainant is at liberty to put execution as per Consumer Protection Act, 1986.

No order as to compensation and litigation cost. 

            Let a plain copy of this judgment/order be supplied to the parties forthwith free of cost.