BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.47/2017

Dated this the 9^th day of February 2018

(Date of Institution:  24.11.2017)

Geetha, S/o Santhanasamy                        

No.166, Kamatchi Amman Koil Street      

Puducherry – 605 001.                 

                                                ….     Complainant

vs

Sathya Agencies (P) Ltd., rep. by its

Manager            

No.220, J.N. Street, Pondicherry – 605 001.

                                                                    ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A.,  LL.B.,

           MEMBER

Tmt. D. KAVITHA, B.A.,  LL.B.,

           MEMBER

FOR THE COMPLAINANT            :  Thiru. U. Mohan Ilayaraja, Advocate

FOR THE OPPOSITE PARTY:          :  Exparte

O R  D  E  R

(By Thiru. A.ASOKAN, President)

This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 praying to repay the advance amount of Rs.20,491/- along with interest at 24% per annum from 23.09.2017 till date of payment;  to pay the entire loan amount in loan Account No. 2950122 by the opposite party paid by the HDB Financial Services Ltd., Puducherry to an amount of Rs.36,568/- with interest at the rate of 24% per annum along with other applicable charges and also pay a sum of Rs.2.00 lakh as damages and compensation for the mental agony suffered by the complainant due to the opposite party negligence and malpractice with interest at the rate of 12% per annum from the date of complaint as compensation and to pay a cost of Rs.10,000/- towards this complaint. 

2.  The case of the complainant is as follows:

          The complainant approached the opposite party on 07.08.2017 and selected O-General Air Conditioner of 2 Ton capacity.  The price of the Air Conditioner has been communicated by the opposite party as Rs.54,850/- and also arranged for loan with the HDB Financial Services Ltd., Puducherry who got signatures in the loan agreement on the same day itself.  On 16.08.2017, the complainant received SMS that the loan application was under process.  The opposite party advised the complainant to pay the remaining amount after approval of the loan.  Thereafter, the complainant approached several times before the opposite party for delivery of the Air Conditioner and the opposite party stated that the loan process by the HDB Financial Services Ltd., is delayed and thus after the approval from the HDB Finanancial Services Ltd., Puducherry only the opposite party will deliver the Air Conditioner and asked the complainant to wait until further communication arrives from the opposite party.   Doubting the evasive replies from the opposite party, on 20.09.2017 the complainant approached the HDB Financial service Ltd., Puducherry  who stated that the loan has been disbursed long back in loan account No. 2950122 and the loan amount has been credited to the opposite party account.  On 23.09.2017 the complainant gave a written complaint to the opposite party and also mailed to the customer case of the opposite party.  After receipt of the complaint, the opposite party had directed the complainant to pay a sum of Rs.20,491/- for the initial payment and the remaining amount had been credited from the HDB Financial Services Ltd., Puducherry in the account of the opposite party.  The said amount also paid by the complainant and got the invoice copy dated 10.08.2017.  Thereafter, the opposite party assured that the Air Conditioner will be delivered in two days.  But, till date, the Air Conditioner has not been delivered by the opposite party, however, the HDB Financial Services Ltd., Puducherry sent a SMS over phone on 29.09.2017 that an EMI amount of Rs.4,571/- in loan account No. 2950122 is been due for payment.  The complainant also stated that the opposite party had been enriched with the amount paid by the complainant for Rs.20,491/- and also Rs.34,850/- being the loan amount paid by the HDB Financial Services Ltd., Puducherry to the opposite party which is gross negligence and insufficiency in service and unfair trade practice.  The complainant issued a legal notice dated 09.10.2017 to the opposite party and the HDB Financial Services Ltd., Puducherry, both of them had received the legal notice on 10.10.2017, for which, there was no reply from the opposite party.  On 10.10.2017 the complainant sent the legal notice to the opposite party through email for which they had sent an evasive email reply.  Hence, this complaint. 

3.       The opposite party remained absent and set exparte.

4.       On the side of the complainant, the complainant himself examined as CW1 and Exs.C1 to C13 were marked through him. 

5.       Points for determination are:

1. Whether the complainant is the consumer?
2. Whether the opposite party attributed deficiency in service and unfair trade practice?
3. To what relief the complainant is entitled for?

6.  Point No.1:

          The complainant has offered to purchase a 2 ton O General Air Conditioner worth about Rs.54,850/- from the opposite party by availing loan from the HDB Financial Services Ltd., Puducherry for Rs.36,568/- and the complainant paid an advance of Rs.20,491/- to the opposite party vide Ex.C3.   Hence, the complainant is the consumer to the opposite parties.

7.       Point No.2:

          We have perused the complaint, evidence of complainant, documents marked as Exs.C1 to C13 and also heard the learned Counsel for the complainant.  The opposite party was duly served but, remained absent and set ex parte.  It is alleged by the complainant that she had paid to the opposite party a sum of Rs.20,491/- as initial payment for the purchase of Air Conditioner worth about Rs.54,850/- and the remaining amount of Rs.36,568/- was paid by the HDB Financial Services Ltd., as loan availed by the complainant.   To prove the above fact, the complainant produced the copy of Tax Invoice dated 10.08.2017 issued by the opposite party vide Ex.C3 and the copy of Tax invoice given to the HDB Finance vide Ex.C2.    Since the product was not delivered by the opposite party, the complainant approached them for delivery of the same, but the opposite party evaded to deliver the product stating that the loan process was not completed.  The complainant further alleged that on 20.09.2017, she enquired with the HDB Financial Services Ltd., Puducherry who informed that the loan has been disbursed long back in loan Account No.2950122 and the amount has been credited to the opposite party's account.  On 23.09.2017 the complainant sent Ex.C4 letter and mail to the customer care of the opposite party.  Even then, the opposite party did not deliver the product to the complainant.  However, on 29.09.2017 she has received a SMS over phone from the Finance company requested for EMI amount of Rs.4,571/- vide Ex.C9.  Since the material was not delivered by the opposite party  after getting full payment and upon receiving the SMS from the Finance Company, the complainant issued a legal notice to the opposite party and also through Email  vide Exs.C10 and C13.  Though the same was received by the opposite party vide Ex.C11, neither the Air Conditioner was delivered to the complainant nor the amount was returned back to her.  Moreover, no reply was also sent by the opposite party.    Having no other option, the complainant has filed this complaint seeking remedy. 

8.       No doubt, the complainant intended to purchase a two ton O General Air Conditioner from the opposite party on 10.08.2017 for a sum of Rs.54,850/-with the financial assistance from HDB Financial Services, Puducherry duly arranged by the opposite party.   It is the allegation of the complainant that she has paid the initial amount of Rs.20,491/- to the opposite party and the remaining amount of Rs.34,568/- was sent to the account of the opposite party by the said HDB Financial Services towards the loan disbursed in the name of the complainant.  Even after receipt of the entire sale consideration, the Air Conditioner was not delivered to the complainant by the opposite party.   It is further alleged by the complainant that whenever she enquired about the non-delivery of the said Air Conditioner, the opposite party stated that the loan process was not completed and once it was sanctioned, they assured to deliver the product to the complainant.  But, when the complainant enquired with the HDB Financial Services, they have informed that the loan amount was credited to the account of the opposite party.  Inspite of several requests made through letters and emails, the opposite party did not deliver the Air Conditioner to the complainant.  The opposite party though received the notice Ex.C10  did not come forward to send any reply to the complainant.  Moreover, even after receipt of summons from this Forum, the opposite party did not cause appearance.    

             9. Hence, this Forum observed that even though the opposite party received the entire sale consideration for the alleged Air Conditioner from the complainant, did not deliver the Air Conditioner to the complainant.  The complainant was forced to pay the EMI amount to the Finance company without receiving the Air Conditioner from the opposite party.  The act of the opposite party caused mental agony, loss and injury to the complainant.  The complainant has established her claim with material evidence.    

          10. Now, the point that has to be decided is whether the complainant is liable to pay the EMI to the HDB Financial Company Limited, if so, to what extent?  According to Ex.C9, it is clear that the HDB Financial Services Ltd., had sanctioned loan in the name of the complainant and released the amount directly to the account of the Opposite Party.  It is evident through Ex.C3, the Tax Invoice.  Hence, the complainant is under obligation to repay the loan sanctioned by the Financier with interest and other charges without receiving the Air Conditioner.  Since the sanctioned loan amount was sent to the opposite party directly by the HDB Financial Services Ltd. and the opposite party has not delivered the Air Conditioner machine to the complainant, the opposite party is liable to settle the dues of the complainant with HBD Financial Services Limited., Puducherry. 

11. From the above facts and circumstances, this Forum is inclined to coming to a conclusion that the opposite party has committed deficiency in service, and also indulged in unfair trade practice, which caused the complainant the mental agony and the monetary loss and the complainant has to be compensated.

12.     Point No.3:

          In view of the decision taken in point No.2, this complaint is hereby allowed and

1. The opposite party is hereby directed to return back Rs.20,491/- the initial payment to the complainant;
2. The opposite party is hereby directed to settle the entire dues with interest and charges, if any, in loan Account No. 2950122 disbursed by the HBD Financial Services Limited., Puducherry within one month from the date of receipt of this order.
3. The opposite party is directed to pay a sum of Rs.20,000/- towards compensation for the mental agony and monetary loss caused to the complainant due to deficiency in service and unfair trade practice.
4. The opposite party is hereby directed to pay a sum of Rs.5000/- as cost of the proceedings.

Dated this the 9^th  day of  February 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

(D. KAVITHA)

MEMBER

COMPLAINANT'S WITNESSES:  

CW.1          22.01.2018           Geetha        

OPPOSITE PARTY'S WITNESSES Nil

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: Nil

LIST OF MATERIAL OBJECTS: NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

     MEMBER

(D. KAVITHA)

MEMBER