Orissa

Sambalpur

CC/57/2017

Pushpita Purohit - Complainant(s)

Versus

1-B.M. cholamandalam Incestment & Finance Company Ltd. - Opp.Party(s)

Sri. P.K.Panigrahi

18 Jul 2022

ORDER

PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

Consumer Case No-57/2017

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

Pushpita Purohit,

W/O-Lokanath Purohit,

R/O-Ainthapali (Near NGTC Petrol Pump),

PO-Budharaja, PS-Ainthapali,

Dist- Sambalpur, Odisha.                                                        …..Complainant

 

Vrs.

1. The Branch Manager,

Cholamandalam investment & Finance Company Ltd.

At/Ps-Ainthapali, Dist-Sambalpur.

2. The Chief Manager,

Cholamandalam investment & Finance Company Ltd.

Dare house, 2 N.S.C. Bose Road, Parrys, Chennai,

•  

Counsels:-

1. For the Complainant      :-Sri. P.K.Panigrahi Advocate & Associates.
2. For the O.P.s                    :- Sri. A.K.Sahoo & R.Gupta, Advocate & Associates.

 

DATE OF HEARING : 04.07.2022, DATE OF JUDGEMENT :18.07.2022

Presented by Dr. Ramakanta Satapathy, PRESIDENT.

1. The case of the Complainant is that the Complainant took a finance of Eicher Truck Model- 10.75bearing regd. No. OD-15B-8567 from the O.Ps vide Hire Purchase Agreement No. XVFPSBR 00001210774. The loan amount is Rs. 7,95,000/- and EMI Rs. 19,600/-. The agreement was executed on 31.05.2014. Since June 2014 the Complainant is paying the EMI regularly

During August 2016 and September 2016 due to some financial difficulties the Complainant could not pay the EMI of two months consecutively On 27.05.2017 the Complainant received one notice. In June 2017 the Complainant paid one EMI before 31.06.2017.

On 12.06.2017 some persons claiming themselves as authorised person of O.Ps repossessed the vehicle from driver while the vehicle was plying on road. On 13.06.2017 when in the office of O.P. No.1 details of loan amount claimed the O.P. No.1 refused. The money receipt and documents inside the vehicle seized has not been mentioned in the inventory.

The O.Ps demanded Rs. 84,481/- without giving any justification. Being Agrieved the Complainant filed this complaint.

2. The O.Ps after appearance filed their version, admitted the finance amount. The O.Ps submitted that as the Complainant is guided under the arbitration clause and jurisdiction clause of the agreement the complaint is not maintainable. The Complainant is not a ‘Consumer’ and there is no deficiency on the part of the O.Ps. The Complainant has suppressed material facts. The Complainant had to pay Rs. 19,600/-, 59 monthly installments. The Complainant failed to pay the installments and defaulted, there by the alleged vehicle was repossessed. Pre-sale notice terminating the agreement demanding fore-closer amount to-wards full and final settlement notice was given but the Complainant not complied. As a result through auction sale vehicle was sold. This Commission has no jurisdiction to try the case and the O.Ps prayed for dismissal of the case.
3. After Perusal of the documents filed by the Complainant and O.Ps the following issues are framed:

 

103606587.  

1. Is there any ‘deficiency’ on the part of the O.Ps providing service to the complaint?
2. Is there any bar for the Complainant to file complaint under the Consumer Protection Act, when there is any arbitration clause in Hire-Purchase Agreement?
3. What relief the Complainant is entitled to get?

ISSUE NO.1 Is there any ‘deficiency’ on the part of the O.Ps providing service to the complaint?

The Complainant entered in to hire-purchase agreement vide Agreement XVFPSBR 0000-1210774 dated 31.05.2014, availed a loan of Rs. 7,95,000/-. The Complainant agreed to pay Rs. 19,600/- per EMI to the O.Ps. From the account statement submitted by O.Ps it reveals that 1^st installment paid on 10.07.2014. since June 2017 there is no any payment made by the Complainant. Further since August 2016 to June 2017 there is irregularity in payment to the O.Ps.

The O.Ps have issued demand notice to the Complainant and it is admitted by the Complaint. When no any payment was made the O.Ps constrained to repossess the vehicle basing on the hire-purchase agreement. On 30.06.2017 an amount of Rs. 3,50,000/- was adjusted vide cheque No. 001087 and receipt No. B10006902446.

In the present case only one point of determination is that whether the procedure adopted by the O.Ps for repossession of the vehicle is in accordance with hire-purchase agreement or not?

As per clause-II of the hire-purchase agreement no any single document has been filed by the O.Ps like the 7 days notice for repossession, post repossession notice of 7 days etc. When the auction sale was made, who were the bidders, the total documents are lacking. No doubt the Complainant has violated the agreement but since from execution of agreement till repossession, paid a number of installments. Further the demand of O.Ps for Rs. 84,481/- to the Complainant has not been explained by the O.Ps. The O.Ps failed to provide the signed and receipt of the agreement paper as alleged by the Complainant. Keeping the consumer in darkness is not a fair practice adopted by the O.Ps.

Accordingly the issue is answered against the O.Ps.

ISSUE NO.2 Is there any bar for the Complainant to file complaint under the Consumer Protection Act, when there is any arbitration clause in Hire-Purchase Agreement?

          The Consumer comes to the Forum/Commission for Redressal of their grievance. The Arbitration and Conciliation Act, 1996 is based on a contract between the parties and for settlement of dispute. Under the arbitration clause of the agreement no grievance can be redressed by the Arbitrator. In the instant case the O.Ps have not filed any arbitral award. Accordingly there is no bar for the Complaint to file complaint under the consumer protection Act. Relating to Jurisdiction the Branch of the O.Ps situated at Ainthapali under the jurisdiction of this Commission and accordingly the issue is answered against the O.Ps

ISSUE NO.3 What relief the Complainant is entitled to get?

          The O.Ps in their version submitted that the vehicle alleged has already been sold and amount has been adjusted in loan account. Accordingly, direction cannot be made to release the vehicle. Alternatively the agrieved Consumer/Complainant can be given relief. As due procedure of repossession, auction sale has not been followed, the Complainant is entitled for alternation relief and accordingly it is ordered:

ORDER

          The Complainant is allowed on contest against the O.Ps are directed to re-pay the installments paid by the Complainant starting from 10.08.2014 to 30.06.2017 as per account statement filed by the O.Ps. As the Complainant has used the vehicle, there is no any order on the interest and harassment compensation.

          In case the O.Ps failed to repay the amount within one month the amount will carry 8% interest P.A. till realisation.

Order pronounced in open court on this 18^th day of July 2022.

Supply free copies to the parties.