Delhi

East Delhi

CC/318/2013

ASHOK KUMAR - Complainant(s)

Versus

NISHANT MOTORS - Opp.Party(s)

08 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. 318/2013

 

1.	Sh. Ashok Kumar S/o Sh. Pali Singh R/o B-125, Kondli Colony Delhi-110096	….Complainant 1
Versus
1.	Nishant Motors Office at; 106, Main Road Village Khichripur Delhi-110091	……OP 1
2.	Fairdeal (Bajaj Auto Authorised Dealer) C-1, South Canesh Nager, Main Patparganj Road Delhi-110092	……OP 2
3.	Bajaj Finanace Ltd. B-60, & B-61, Nariana Industrial Area-II New Delhi-110028	……OP 3

 

Date of Institution: 17.04.2013

Order Reserved on: 31.01.2023

Order Passed on: 08.02.2023

                       

QUORUM:

Sh. S.S. Malhotra (President)

Ms. Rashmi Bansal (Member)

Sh. Ravi Kumar (Member)

 

Order By: Sh. S.S. Malhotra (President)

JUDGMENT

The complaint pertains to deficiency in service on the part of OPs w.r.t sale and repossession of complainant’s bike.

Brief facts as stated by the complainant in the complaint are, that the complainant visited the office of OP1 to purchased a Bajaj Bike and was informed that the cost of bike was Rs.52,592/- inclusive of insurance, road tax etc.

He deposited of Rs. 15,000/- with OP1 and received a receipt. He was also assured that the balance amount of Rs.37,592/- would be financed and the monthly installment would come to Rs.1,279/-. All necessary documents were provided by the complainant to the OPs and the loan was granted. He took the delivery of bike on 29.4.2011 having registration No.DL-7S-BL-5570. 

It is alleged that OP2 did not provide any accessory with the bike despite charging the consideration from complainant for the same.  Further, he was shocked when OP3, the finance company, debited a sum of Rs.1,685/- as its first installment. The complainant then immediately contacted OP1 and asked about the particulars of the amount financed. He was assured by OP1 that he will provide all the details within 30 days and the complainant meanwhile continued to pay the installment amount of the bike. When the installments was not given by OP, then the complainant visited OP3 on customer care number and was informed that the bike was financed for Rs.44,500/-. It is further alleged that the complainant visited the office of OP with the complaint that the bike should have been financed for Rs.37,500/- but no proper response /written reply was given by OP3 and then the complainant stopped paying the installment. He lodged a complaint with Police Station Kalyanpuri on 18.10.2012. He also lodged a complaint in mediation centre on 5.2.2013.    

On 24.3.2012, some recovery agents with two head constables visited the residence of complainant and tried to snatch the bike. The complainant and the said recovery agent then went to PS Ghazipur to meet the SHO. The recovery agent showed document of arbitration court of Pune. The SHO then handed over the bike to the recovery agents of OP3. It is alleged that complainant did not receive any notice of arbitration proceedings. The complainant prays for release of bike by OP3, return of all excess amount charged by OP1, furnish all details regarding the cost of bike and financed amount and compensation of Rs.10,00,000/- and litigation cost of 25,000/-. 

OP1 in its reply has denied all the allegations. It is submitted that the OP1 is a dealer of motor cycle. The complainant approached OP1 in April, 2011 to purchase one motor cycle, Bajaj Discover 150. OP1 arranged the said motor cycle through OP2 who is an authorized dealer. Complainant paid Rs.15,000/- to OP1 for which a receipt dated 13.4.2011 was issued on 14.4.2011, OP1 and the complainant visited the showroom of OP2 and made a payment of Rs.14,097/- towards part payment of motor cycle, 300/- for file charges and Rs.100/- towards helmet. OP1 specifically denied for having taken any excess amount w.r.t. the said motor cycle.

OP1 has further submitted that since the complainant was willing to get the balance amount financed, therefore OP2 arranged a meeting of the complainant with the representative of OP3. It is further submitted that OP3 had informed the complainant about details of financed amount and monthly installment through letters and mobile massages. OP1 prays for dismissal of complaint against it. 

Notice was issued to OP2 to appear on 11.9.2013.  The copy of the Complaint was given to OP2 but no written statement was filed by OP2 and right to file written statement by OP2 was closed on 19.11.2013. The relevant portion of order sheet as follows:

“No WRITTEN STATEMENT filed by OP2.  The submission made by Counsel for OP2 that he has not received the copy, whereas the copy of complaint received on 11.09.2013.  In these circumstances, when the WRITTEN STATEMENT has not been filed it shall be appropriate to close their opportunity. 

We provide an opportunity to both the parties to file their evidence on 13.01.2014.”

OP3 in its reply has denied the allegations made by complainant and states that the complainant had approached OP3 for financial assistant to purchase the vehicle. After fully understanding and agreeing to the terms and conditions, he signed and executed a loan agreement cum schedule on 23.4.2011 wherein he was extended a loan of Rs.60,660/- including financial charges of Rs.16,160/-. The said loan was to be repaid in 36 monthly installments of Rs.1685/- each from 12.6.2011 to 12.5.2014. Copy of all document and papers relating to the loan were immediately handed over to the complainant. The complainant cleared 13 installments and thereafter started defaulting in payment of monthly installment. OP3 than relied on Arbitration clause in the loan agreement.      

OP3 admits that a call was made by complainant to OP3 call centre on 17.5.2012 for knowing foreclosure amount of loan. OP3 sent repeated reminder to complainant for regularizing the said loan account.  OP3 also approached mediation centre and a notice was also issued by Delhi Government Mediation and Conciliation Centre to complainant there by asking complainant to appear on 20.2.2013. OP3 then sent loan recall notice on 22.2.2013 for regularizing of loan account. By March, 2013, the complainant was in default of 9 loan installment along with overdue charges of Rs.11550/-. It is denied the complainant was not aware of installment amount.    

As per agreed terms and conditions of the loan agreement, OP3 referred the dispute to sole Arbitrator on 12.3.2013 with interim prayer for taking interim custody of subject vehicle. It is stated that the vehicle was legally taken in position vide order dated 13.3.2013 passed by the Arbitrator. Due notice of appearance of the complainant was served on 21.3.2013. It is submitted that the vehicle was surrendered by the complainant himself as per the interim order. It is alleged that the complainant requested OP3 that he will arrange a buyer/purchaser for purchase of the said vehicle to get a better price and ensured that he would try to clear the loan from the sale proceeds. It is further stated that the complainant permitted and authorized OP3 to sale the vehicle on “As is where is basis” and to adjust the sell proceeds towards the loan account by submitting that  any short fall would be cleared by the complainant. Complainant also requested OP3 not to continue with Arbitration proceedings. Thereafter the complainant did not came to OP3 for clearance of loan account.      

OP3 issued a presale notice dated 28.3.2013 informing the complainant to pay the full outstanding dues. It is stated that the complainant then approached this Commission instead of approaching OP3 or Arbitration tribunal. OP prays for dismissal of complaint by referring the dispute to the Arbitration Tribunal or by directing the complainant to pay the total outstanding amount of Rs.53430/- and to take back his vehicle with NOC.

The complainant has filed his evidence by way of affidavit. He has filed receipt issued by OP1 and OP2, bank statements, Notice of appearing dated 5.2.2013 by Delhi Government Mediation and Concillation Centre, A letter dated 11.12.2012 from consumer care centre       .  A letter dated 18.10.2012 to Consumer Ministry, Notice dated 20.2.2013. 

OP1 and OP3 have also filed the respective evidence.

The Commission has perused the record.  Certain facts are admitted that the complainant intended to purchase a Bike and in fact purchased it and it was financed by OP3, certain loan was taken by complainant and even 13 installments were also paid by the Complainant.  It is also not disputed that OP3 on account of not receiving of the installments/ amount took the possession of the financed vehicle. 

The controversy is that the complainant submits that he was not informed as to what is the loan amount and even the vehicle was taken forcibly by the OP3 which amounts to deficiency in service.  OP3 on the other hand has submitted that the complainant was aware of the loan amount given to him and he in fact had paid 13 installments and then he stopped the payment for the reason that he was not informed as to what were the exact financed amount.  This contention of the complainant cannot be appreciated and even in its Written Statement OPs had stated that a loan of Rs.60,660/- including the financial charges of Rs.16,160/- were advanced to the complainant which he has to repay in 36 installments of Rs.1685/- and he paid even 13 installments.  The Commission is of the opinion that whoever takes loan is aware on the very first day as to what is the loan amount and what installments per month (EMI) would be payable and therefore contention of complainant prima facie cannot be appreciated that he was not informed as to how much amount of loan has been granted by OP3.  On this account there appears to be no deficiency on the part of OP3.  As far as OP1 and OP2 are concerned, OP1 is the seller of the Bike and OP2 is the distributer and No deficiency against OP1 and OP2 has been proved and even no relief has been claimed against them.     

Now, coming to the second contention that the muscle men of OP3 took the possession of the Bike forcibly.  This contention of complainant is also not well found.  The OP3 has placed on record that he had filed certain arbitration proceedings against the complainant and the bike was taken in possession by the officials of OP3 after adopting due process of law and not only this the bike was handed over by the complainant himself in the Police Station concerned and documents of that extent has been placed on record. 

There is no denial by the complainant that the possession of the bike was not given in Police Station.  The Complainant has not lodged any formal complaint in the Police Station despite having been present in the Police Station itself that bike is being taken on forcibly.  Even as per the report of the Police official, bike has been given to the officials of OP3 in the Police Station itself as per the order of the arbitrator.    

Therefore, this contention of complainant also is not well found, particularly in the circumstances when the complainant admittedly had to pay certain installments to the OP3. 

Now, coming to the prayer clause, the Complainant has sought relief that Respondent No.3 be ordered to the bike and also furnish  all details regarding cost of the bike and also be directed to return the excess amount/charges.  The Commission has perused these prayers.  Once the vehicle has been taken by the OP3 by adopting due process of law, this Commission is of the opinion that there is no deficiency in service on the part of OP3 so as to direct him to release the vehicle until and unless the complainant makes the total payment and as far as the prayer with respect to return the excess amount/charges to the complainant is concerned there is no calculation filed by the complainant.  Therefore both these two prayers cannot be granted by holding that there is no deficiency in providing services by the OP3. 

As far as prayer with respect to furnishing the details of the cost of the bike is concerned, prayer is too vague to be considered. 

Keeping in view all these facts and circumstances, the Commission is of the opinion that there is no deficiency on the part of OPs and as such complaint of the complainant is liable to be dismissed. 

Copy of the Order be supplied/sent to the Parties free of cost as per rules.

File be consigned to Record Room.

Announced on 08.02.2023. 

DELHI