BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 22^nd DAY OF MAY 2024

ORDER

SMT. SUMA ANILKUMAR, MEMBER

The complaint filed U/S 35 of Consumer Protection Act 2019, complainants seeking direction towards OP for the following reliefs:-

a) To direct the OP to pay a sum of Rs.62,234/- and a sum of Rs.3,03,600/-being 60 months EMI of Rs.5060/- and also to pay a sum of Rs.1,00,000/- to the complainant towards the damages and the mental harassment caused to the complainant, in all Rs.4,65,834/-as compensation towards the negligence, deficiency in service and for mental agony, hypertension and inconvenience caused to the complainant.

b) To Award the cost of this proceedings including advocate fee, and legal charges etc.

c) To pass such other order or orders as this Hon’ble Forum deems fit under the facts and circumstances of the case, in the interest of justice and equity.

2. Brief facts of this case are as follows:-

The complainant submits that, she had booked a Jawa Bobber 42 Jasper Red on 31.03.2023 with the OP and paid a token advance of Rs.10,000/- paid through Phone-pay to Nandish Kumar CE (UTR: 309042657272). As per the instructions of the OP, she had also made down payment on 14.04.2023 for Rs.62,234/- (transaction ID: 310300350767) from ICICI bank to Skanda Motors and settled the full payment through auto loan from IDFC bank with a monthly EMI of Rs.5,060/-. After booking the said vehicle and even after receiving the entire sale price amount, for the reasons best known to the OP, they had postponed the same and after the complainant’s repeated requ,ests and demands, the OP delivered the vehicle on 02.01.2023 without any registration or vehicle documents.

3. Further even after repeated requests and demands made by her through phone calls and reminders, the OP have not got the registration complete. Hence the complainant had to return the bike in July first week and asked to cancel the booking and refund the amount as the OP kept on giving false, commitment on registration process. The complainant further submits that on the occurrences seen by the OP, the complainant had availed loan of Rs.2,12,654/- and has agreed to repay the said amount in 60 monthly installments of Rs.5,060/-. The said amount being deducted from the account of the complainant, even till today. AS the OP has not given the vehicle and the booking is cancelled, the OP is liable to pay the said EMI amount to the complainant. The said EMI amount is Rs.3,03,600/- .  The complainant received E-mail from th July showing inclination towards cancelling the buying process and agreed to refund the booking amount and EMI amount deducted and assured that, the same will be directly credited to her bank account and accordingly on 21.07.2023 the complainant has sent all banking detail to refund the amount. But till date, there is no refund initiated and EMI as getting debited from her account on a monthly basis.

4. The negligence of the OP she has suffered a lot mentally and hence, the OP is liable to pay compensation to the complainant. Therefore, the complainant caused a legal notice dated 02.09.2023 calling upon the OP to immediately refund the above said amount of Rs.62,234/- and a sum of Rs.30,360/- being the installment amount already deducted from her account and also to pay a sum of Rs.1,00,000/- to my client towards the damages and mental harassment caused to the complainant, in all Rs.1,92,594/- within 15 days from the date of receipt of this notice. The said legal notice is duly served on the OP on 08.09.2023. Even after receipt of the legal notice, the OP has neither complied to the demands made in the said legal notice nor replied to the said legal notice. Hence this complaint by the complainant.

5. On issue of notice to the OP, the OP has failed to appear before this commission hence place Ex-parte. The complainant has filed affidavit evidence along with 7 documents which are marked as Ex.P.1 to Ex.P.7. Complainant has submitted written and oral arguments. Hence, we perused the materials on record.

6. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant proves the deficiency of service on the part of OP’s?

ii) Whether complainant is entitled for the relief?

iii) What order?

7.  Our answers to the above points are as follows:-

Point No.1:-Affirmative.

Point No.2:-Partly Affirmative.

Point No.3:- As per the final order.

REASONS

8. Point No.1&2:-These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

9. On perusal of the documents submitted by the complainant, the Ex.P.1 which is the account statement issued by ICICI bank holding the account in the name of the complainant, we see that the complainant has paid towards IDFC bank, the monthly EMI of  Rs.5,060/- on the dates i.e. 03.05.2023, 03.06.2023,  03.08.2023, 04.09.2023, 03.10.2023, 03.11.2023. This clearly shows that the complainant has promptly paid the EMI towards the loan issued to him. Ex.P.6 is the ICICI bank statement of the account of the complainant in which it is clearly seen that the complainant has paid the amount of Rs.62,234/- towardsSkanda Motors dated 13.04.2023 as downpayment for the vehicle booked. Ex.P.7 is the copy of Phonepay transaction made by the complainant in which it is clearly seen that the complainant has paid the amount of Rs.62,234/- towards Skanda Motors and an amount of Rs.10,000/- paid towards Nandish Kumar C.E dated 13.04.2023 and 31.03.2023 respectively.

10. Looking into the above documents, it is true that the complainant has paid a token advance of Rs.10,000/- to Nandish Kumar C.E and made a down payment of Rs.62,234/- towards Skanda Motors through Auto loan from IDFC with a monthly EMI of Rs.5,060/-. Further the complainant has also paid 6 monthly installments of Rs.5,060/- towards the IDFC bank which is the total sum of Rs.30,360/-. Ex.P.2 is a legal notice issued by the complainant to the OP requesting for the refund of the amount that the complainant has paid, even after the cancellation of the said bike. The complainant in their modified complaint mention that the monthly EMI of Rs.5,060/- is been deducted from the complainant’s account till date which is a sum total of Rs.3,03,600/-, but the complainant has shown no evidence towards the same. The complainant has also not submitted any evidence regarding the return of the vehicle to the OP.The OP has failed to appear before this commission and submit   evidence in his contention, which infers that the OP admits to the claim of the complaint.The OP has also failed to respond to the complainant, and has failed to repay the total amount paid by the complainant, even after the cancellation of the booking of the said vehicle and the return of the vehicle to the OP by the complainant as mentioned by the complainant in his complaint. This shows the deficiency in service and Unfair Trade Practice by the OP. Hence the OP is liable to repay an amount of Rs.62,234/- which is the down payment towards the vehicle, an amount of Rs.10,000/- paid as token advance and a sum total of Rs.30,360/- paid towards the EMI of the said vehicle. OP is also liable to pay an amount of Rs.3,03,600/- if the EMI has been deducted from the complainant’s account. The OP is further liable to pay an amount of Rs.20,000/- towards compensation and Rs.5,000/- towards litigation charges. Hence, we answer Point No.1&2 accordingly.

11. Point No.3:-In view of the discussion referred above, we proceed to pass the following:-

ORDER

1. Complaint filed by the complainant U/S 35 of Consumer Protection Act, is hereby allowed in part.
2. OP is liable to pay an amount of Rs.62,234/-, Rs.10,000/- and Rs.30,360/- with an interest of 10% p.a. from the date of cancellation i.e. 17.07.2023 till realization.
3. The OP is liable to pay the sum of Rs.3,03,600/-, if the EMI has been deducted from the complainant’s account.
4. The OP further liable to pay an amount of Rs.20,000/- towards compensation and Rs.5,000/- towards litigation charges. The OP shall comply this order within 45 days from the date of order failing which, shall have to pay interest at the rate of 12% p.a. on the total Award amount till realization.
5. Furnish the copies of the order and return the extra copies of pleadings and documents to the parties, with no cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 22^nd day of May 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL