The briefly stated facts of the matter in hand are that, complainant/ consumer, Muhammad Hussain, instituted the above mentioned complaint before this Court against M/S Mobin-Autos/ authorized dealer, Super Power motorcycle ( Sarfraz, known during the trial of the matter) while alleging therein that complainant/consumer had purchased a super power motorbike, bearing Engine No. SP0183113, Chassis No. SP0233378 and Model 2007, fully described in Para No.1, of complaint, through entry No. STL 1304-07, for sum of Rs. 49500/- and a duly executed receipt was handed over to him (whereof original was shown before the Court which was found correct).
According to the complainant, at the time of purchase of disputed motorbike Rs. 16,500/- (Rupees Sixteen Thousand & Five Hundred) were paid, whereas sum of Rs. 30,000/- (Rupees Thirty Thousand) inclusive Rs. 16,500/- were paid through installments but motor-bike was thereafter forcibly, fraudulently and deceitfully taken over by the respondent No.1, which resulted into hardships to the complainant/ consumer. He further maintained that the respondent malafidely and deceitfully, instead of transferring the title of motor-bike in favour of complainant/ consumer, managed its transfer in his own favour. It was further added that respondent deliberately and malafidely failed to mention the name of complainant in purchase receipt and that despite payment of entire value of the motor-bike the Complainant/Consumer was deprived of motor- bike as well as its use alongwith valuable amount besides physical, financial and mental torture and thus, was entitled to recover a sum of Rs. 50,000/- (Rupees Fifty Thousands) as compensation.
As per complaint a requisite legal notice was also given to the respondent, hence, this complaint.
2. While submitting reply respondent No.1 denied the allegations and alleged that he had sold the motor-bike to M/S Moon Motors, Sialkot, (herein added respondent No.2) while issuing valid cash memo in its favour and claimed the dismissal of the fabricated and frivolous complaint. It is also alleged that complainant had no concern, whatsoever, with the disputed motor-bike or alleged transaction, in favour of complainant/consumer.
3. After recording statements of the complainant/consumer and Sarfraz, proprietor/dealer of M/S Mobin Autos/Super-Star motor-bike, this Court required the attendance of M/S Moon-Motors, Sialkot, as necessary party in order to evaluate the true and correct dispute between the parties.
4. Initially M/S Moon Motors was represented through one Qaiser but while recording his statement, it came into light that M/S Moon-Motors was ownership of his father, namely Sheikh Abdul Majeed, whose statement was also recorded after procuring his attendance.
5. While recording the statement of the complainant/consumer, it was transpired that a cash memo bearing No. 113, dated 07-05-2007, (original of which was in the custody of complainant) was issued by M/S Mobin-Autos while showing buyer's/consumer's name as M/S Moon-Motors, Sialkot, for sum of Rs. 38,500/- + 11,000/- and total 49,500/- but advance payment as Rs.16, 500/- and balance Rs. 33,000/- in respect of disputed motor-bike whereas according to the statement of Sarfraz-dealer of M/S Mobin-Autos, it was also depicted that in respect of the same disputed motor-bike, another cash memo bearing No. 245, of the even date, against total payment of Rs.
38,500/- was also issued, however, while scanning the statement of Sheikh Abdul Majeed- proprietor of M/S Moon-Motors and his son Sheikh Qaisar Mehmood, as well as Sarfraz and complainant/consumer, it is reflected that infact disputed motor-bike was purchased by consumer/complainant, on installment basis, from M/S MobinAutos through Sarfraz, where consumer/complainant had paid Rs. 16,500/-, as fully borne out from the bare reading of abovementioned Cash Memos and statements but both respondents while joining hands had twisted the facts in support of their hatched up stories.
6. During the proceeding both sides i.e. Complainant/consumer Muhammad Hussain and respondent No.2 agreed that complainant opted to surrender disputed motor-bike in favour of respondent (Moon-Motors) and further opted to receive cash amount after adjustment / rendition of accounts as a result of which Court directed the complainant/consumer to deliver original parts of motor-bike removed by him, to M/S Moon-Motors.
7. Today complainant/consumer had delivered abovementioned parts comprising of two side boxes (Tappas), two shock covers (Kaan) and seat cover (Original), whereupon both sides opted to assess/fix the present market value of the motor-bike, standing outside the Court, in consultation with Muhammad Mudassar Kaleem, Registrar of this Court. Accordingly both parties and their learned counsels as well as Registrar of this Court, after inspecting/examining the Motor- Bike, and while making their statement before this Court fixed and assessed the present market value of the Motor-Bike as Rs. 20,000/- (Rupees Twenty Thousands) without any objection.
8. Arguments have been heard, record also perused.
9. After having considered the arguments, statements of the parties and their respective counsels as well as gone through the record inclusive above mentioned both cash memos, allegedly in favour of M/S Moon-Motors and affidavit, at the instance of consumer/complainant, in favour of M/S Moon-Motors (Service provider) dated 07-05-2007, it is crystal clear that M/S MobinAutos, an authorized dealer of "SUPER-STAR" motor-bikes, vide receipt No. 113 dated: 07-05-2007, in favour of M/S Moon-Motors but malafiedly received Rs. 16,500/- as advance payment out of total consideration Rs. 38,500/- and entered consumer/ buyer's name as M/S Moon-Motors while joining hands with M/S Moon-Motors (also service provider) showed Rs. 11,000/-, without mention of nature of this amount (can be legally inferred as hidden and undefined charges) and also issued another cash memo No.245, of the even date, in favour of proprietor of M/S Moon-Motors (Sheikh Abdul Majeed) while showing total payment of the disputed motor-bike. All these facts indicate a clean picture of foul game/trap thrown by both M/S Mobin-Autos and M/S Moon-Motors against simple consumer without disclosing the real transaction. Surprisingly, M/S Mobin-Autos is only an authorized dealer by N.J Autos Industries Private Ltd but M/S Mobin-Autos (Service Provider) without disclosing the real facts to the common consumers is also in league with M/S Moon- Motors, Sialkot, and had managed the printing of two different cash memo books i.e. One, in pink color, for the purpose of transaction of installment and another in yellow color, for the absolute sale of motor-bikes in favour of dummy service provider, who is used to sell Motor-Bikes and Rickshaws, on installment-basis, to the common consumers. The wisdom behind this foul game appears to be not other purpose than evasion of Govt. Taxes and also for the purpose of looting the undefined money from the public/common consumers.
10. Sarfraz, an authorized dealer/proprietor of M/S Mobin-Autos has not only mis-stated, twisted and concealed the true and real facts but had also spoken contrary to the contents of cash memo books produced before the Court in order to mislead the Court in as much as the cash memo book (termed as disputed in pink color) wherein shown four columns for i) Quantity priee, ii) Advance payment, iii) Balance and iv) Total are embodied/provided which do not convince the mind of this Court that it is really a cash memo book, rather this book can safely and certainly be used for lease of motor-bikes, on installment basis whereas doubtlessly other in yellow color, statedly transmittable to Excise Office for registration of papers of motor-bikes is of course cash memo book. It will be favorable to reproduce the sketches of both memo books which are as under; On interrogation of Court, Sarfraz also made himself bound to restrain from the use of disputed cash memo book (termed as A) in future vide his statement dated 08-04-2008.
It is also visible that he was acting authorized dealer of Super-Power motor-bikes under an expired dealership certificate w.e.f. 31-12-2005, however, after seeking time a renewed certificate ending on 31-12-2008 was produced before the Court. Thus, it will be fruitful to direct the companies/motor- bike manufacturer industries, to intimate the grant of dealership certificates as well ex-factory rates thereof to Provincial Govt. /local Administration for better management, control of prices and good governance. A copy of this order be sent to M/S NJ Autos Industries Private (Ltd).
11. While adding to it and having minutely examined the statement of Sheikh Abdul Majeed of M/S Moon-Motors, it is revealed that he appears to invest/lend the money on behalf of the common consumers and this situation can be safely and fairly gathered from the statements of Sheikh Abdul Majeed of M/S Moon-Motors and that of consumer/complainant that after the payment of 16,500/- by consumer/ complainant in favour of M/S Mobin-Autos, Sheikh Abdul Majeed, proprietor of M/S Moon-Motors suddenly jumped and appears to have paid Rs. 22,000/- to M/S Mobin-Autos on behalf of consumer/complainant and thus, in broader sense it can be legally inferred that he had lent the money to the complainant/consumer.
12. No doubt two contracts were executed between M/S Moon-Autos and consumer/complainant but not a single word was ever expressed as to what was the nature of Rs. 11,000/- or what was the rate of interest etc. In any way both contracts/agreement were vague and ambiguous containing therein hidden and undefined terms of rate of interest etc, which are not only unacceptable by the Court, but also were also meant to deceive the laws of land.
13. It is manifest and also not disputed that proprietor of M/S Moon-Motors is doing the business of money lending, as per terms of money lending ordinance 1965 but in order to avoid the obtaining of valid license from Competent Authority (District Collector) or paying taxes to the Govt. Turned the transaction as leasing of motor-bikes, even, if the transaction is taken as leasing of motor- bikes, it is revealed that M/S Moon-Motors is not observing any rule or regulation as a result of which consumers are being deprived of heavy amounts on the exclusive whims and discretion of such cruel money lenders/lessors. Accordingly, the act of M/S Moon-Motors is not persuaded by this Court whose action in any way is not only exorbitant and capricious but also callous, unlawful and not approvable.
14. Careful examination of the affidavit sworn, dated 07-05-2007, at the instance of consumer/ complainant Muhammad Hussain, in favour of M/S Moon-Motors, it appears that disputed motor- bike was never handed over to the consumer/complainant, however, this foul game is repelled and negated by the statements of both parties whereby it is admitted that motor-bike was undisputedly delivered to the complainant, thus, this Court while noticing, this is constrained to express that proprietor of M/S Moon-Motors is also keeping blank stamp papers of the date of transaction and after snatching of leased motor-bike wrote down the surrender deed/affidavit to satisfy his whims, accordingly, the statements of Sh. Abdul Majeed of M/S Moon-Motors that disputed motor-bike was surrendered by consumer himself is, hereby, disbelieved and repelled. It will be pertinent to express over here that stamp-vendor and oath commissioners are also playing havoc while selling blank stamp papers to lessors in the name of lessee/consumer and attesting affidavits on ante dated stamp papers, respectively, resulting into above discussed painful picture.
15. No doubt consumer/complainant had used disputed motor-bike for a sufficient period, after payment of huge amount, in favour of respondents service-providers but it was recklessly used by him which brought its current value to the tune of Rs. 20,000/- (Rupees Twenty Thousands) as disclosed by him and others, however, total devaluation in status of motor-bike, in any way, cannot be attributed to him in as much as disputed motor-bike alongwith its key was captured and impounded by service provider- M/S Moon-Motors, Sialkot, since January 2008 and it cannot be believed that M/S Moon-Motors had not used during this period and had not shared the act of devaluation of motor-bike.
16. It is not disputed that like other developed countries, Consumer Banking is introduced and in progress in Pakistan, since recent past as a result of which huge amounts with the maximum markup of 16% alongwith other necessary and defined charges/expenses fines etc, as provided in the prescribed schedules, brushers etc are charged but subject to rules and yardstick fixed by State Bank of Pakistan, as read today, after requiring from different banks, however, the influential persons, having aim of amassing the money and knowing the skill of looting the huge money from pockets of simple consumers, have also started parallel business, without prior permission/license of any authority or without following any rule or regulation. As revealed from the circumstances of this case such private Consumer Banking, by influential and business minded persons are charging high rate of markup, fines or expenses, without describing their nature in their lease agreements etc nor are used to disclose to their customers/ consumers nor are being displayed in their shops, in order to reach consumer/customers at decision as to whether they are intended/ready to enter into transaction of lease or not as per terms of Sec.11 read with Sec. 23, 25 and 31. Of PCP Act, 2005 and thus, are grossly violating the provisions of law, hence, both service providers/respondents are fined in sum of Rs. 5,000/- (Rupees Five Thousands) each, depositable in State Treasury, within twenty five days, positively, failing which each of them will be dealt in accordance with law.
17. Apart from above discussed circumstances, it is not un deniedable situation that heavy rate of mark up/interest 50% alongwith other expenses, as spell out from lease deed dated; 07-05-2008, arrived at between consumer/complainant and M/S Moon-Motors as well as Mobin- Autos (both respondents herein) is/was levied/charged, which cannot be accepted, thus this Court while considering and following the rules and schedule settled by State Bank of Pakistan and consumer Banks, deems it fit to fix maximum rate of interest/markup in this case as 16%, which come to 1750/- alongwith other expenses and fines etc to the tune of Rs. 2400/-, part and parcel of Rs. 22,500/- (Rupees Twenty Two Thousands & Five Hundreds) paid by consumer/complainant to the respondent No. 2. Thus, keeping in view all above mentioned circumstances, of this, particular, case this Court directs M/S Moon-Motors (Sh. Abdul Majeed) the return of Rs. 4, 500/- (Rupees Four Thousands Five Hundreds) to complainant/consumer from the actual value of motor-bike, after its capture (reportedly, surrendered) in favour of consumer/complainant. Both respondents i.e M/S Moon-Motors and M/S Mobin-Autos are also directed to pay legal expenses in sum of Rs. 1500/- (Rupees Fifteen Hundreds) each, payable to consumer. Accordingly the claim of consumer/complainant is answered in above stated terms. Both respondents are also burdened with costs in sum of Rs. 2,000/- in equal share payable to the complainant/consumer within above stated period. As discussed above the disputed Motor-bike is already in custody of M/S Moon- Motors, whereas, it's removed articles/parts have been delivered to Sheikh Abdul Majeed.
18. During the arguments, it also came into notice of this Court that numerous lease holders are running identical business of motor-bikes/MotorCars/Electronics, in Sialkot district and other cities of Province, like mushrooms, with the object to amass money and to deprive consumers from huge amount but no authority is attending or addressing this dreadful propensity/practice, accordingly, these circumstances have not only emerged an alarming situation but has also grown a perception in the mind of the Court to lay down some necessary guidelines for curbing down this painful tendency, whereby motorbike dealers and retail shops offer motor-bikes/electronic articles to consumers/ customers and in turn earn sizable profit through undefined and hidden terms i.e. Various burdensome ghostlike and hidden charges and on default of payments/installments by capturing the motor-bikes and sell them to other customers, which has necessitated a well defined and standardized procedure governed by rules under the cover of necessary legislation or some rules and regulations parallel to settled by State Bank of Pakistan; prevailing in consumer Banking, while keeping in view following factors; 1) While offering sale of motorbike, it should be ensured that customer/consumer has the capacity of repayments and his repayment source or cash flow should be substantiated by the consumer and it should be on record with the dealer.
2) Down payment of 10 to 20% shall keep a pressure on the customer to keep the repayments regular.
3) Return should not more than 14% for 1 year repayment period and 16% exceeding 1 year.
4) After down payment remaining liability should be amortized as per return rate and amortization schedule should be given to the customer/consumer.
5. In case of non-payment of installments, before capturing the motorcycle, two notices should be sent to the customer/consumer. And only in case of 3 installments in arrear the motorcycle should be captured. After capturing the motorcycle, the customer/consumer should be given the opportunity to pay the outstanding liability. In the context customer should be given sometime to repay the liability.
6) Repayment before the maturity should cover the principal amount and the markup occurred till the repayment date and it should not be till the maturity period.
7) All the terms should be incorporated in an agreement which should be signed by the customer/consumer and the motorcycle dealer.
Hence, the Punjab Govt. Is directed to initiate immediate and reasonable steps for appropriate legislation or formulation of some reasonable rules and regulations (identical and parallel to State Bank of Pakistan for consumer Banking/companies/firms) within short period, in order to save consumer/customers right.
19. While further dilating on this aspect, this Court deems it necessary to ask the Chief Secretary, Punjab to direct the Authorities (DCOs) of all district of Punjab, to initiate immediate stern steps to streamline/control this alarming tendency prevailing in the motor-bikes/electronics dealers or business, who deal on installment basis, in the above mentioned guidelines, for the interim period, till the new legislation or formulations of rules and regulations or may direct the running of such like business while governed or regulated by the rules already laid by State Bank of Pakistan for Consumer Banking/ companies/firms, while issuing permits/licenses through local Authority (DCO) of respective district. It is further suggested that list of dealers be immediately prepared by local authorities to control and manage this limb under strict measures, conducive for protection of rights of consumer/customers.
Copies of this order be immediately sent to the Chief Secretary and Authority (DCO) Sialkot, for necessary action and initiation of reasonable and appropriate stern steps for elimination of above quoted alarming trend prevailing among motorbike and electronics dealer in order to alleviate and subside the hardships, agonies and difficulties, faced by consumers/customers as well as for needful action towards new legislation or formulation of appropriate financial rules, to achieve the positive results so that the consumers rights can be reasonably protected at all levels, with iron hand, under intimation under intimidation to this Court within thirty days positively. The Chief Secretary is further expected to pass appropriate directions to all Authorities (DCO,s) of all districts, through out Province of Punjab, in the light of above stated guidelines. File be consigned to the record room, after its due compilation.