Orissa

Kendujhar

135/2007

Lalit Kumar Jaiswal - Complainant(s)

Versus

1. Collection Manager, ICICI Bank Ltd. - Opp.Party(s)

Sri Gyanendra Nath Jena & H.S. Mohanty

10 Dec 2008

ORDER

IN THE COURT OF THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KEONJHAR

CONSUMER DISPUTES CASE NO.135 OF 2007

Lalit Kumar Jaiswal, aged about 48 years,

S/o- Late Pannalal Jaiswal,

At- Joda- Baneikala Basti,

P.O/P.S- Joda, Dist- Keonjhar          ……………………………………………Complainant

                                 Versus

1. Collection Manager, ICICI Bank Ltd.

Home Finance Co. Ltd,

At- Mining Road, Barbil Branch,

P.O - Keonjhargarh, Dist- Keonjhar

2. Collection Manager, ICICI Bank Ltd.

Plot No. 803/804, Padhi Complex,

Bisra Road, 1^st Floor, Madhusudan Marg,

Rourkela- 769011

3. Collection Manager, ICICI Bank Ltd.

Kedarson Building, 185, Janpath,

Unit-III, Kharvel Nagar,

Bhubaneswar- 751001                        ……………………………………………Ops

For the complainant - Sri Gyanendra Nath Jena & H.S. Mohanty

For the O.P- Sri A.K. Pattnaik, R.R. Rana & D.K. Sahoo

Present- Presiding Member- Mrs. Rajeswari Mohanty

                                  Member- Subash Chandra Sahu

                

Date of Hearing: 24.09.2008                                                             Date of Order: 10.12.2008

__________________________________________________________________________________________________________               

Mrs. Rajeswari Mohanty, Incharge President: The brief facts of the case are that the complainant purchased an old used Mahindra Scorpio (Hard Top) vehicle bearing regd. No OR-02W-7588 through Finance provided by the ICICI Bank Ltd. The Opp. Parties are the officials of the ICICI Bank Ltd. an agreement bearing No. LUJDA000-397905 between the complainant and the Opp. Parties- Bank was executed and as per the agreement the complainant paid Rs.50,000/- as down-payment and the rest 4 Lakhs for the consideration amount of the vehicle was paid by the Opp. Parties- Bank and the complainant had given 60 nos. of post-dated Cheques of S.B.I. Joda of Rs.8,595/- each for the monthly E.M.Is to the Opp. Parties- Bank and thereafter the vehicle was delivered to the complainant in the month of June, 05 without the document of the vehicle.

        The complainant when wanted to renew the policy came to know that the vehicle was not transferred in the name of the complainant. Then the complainant requested the Ops- Bank to handover the documents and papers of the vehicle to him but the Ops- Bank even after repeated requested and reminders did not handover the documents and papers of the vehicle to the complainant. In the meantime the vehicle met with an accident and the vehicle sustained heavy damages. The Insurance Company was informed and on the instruction of the Insurance Company the vehicle was repaired at the Mahindra Shop Room, Barbil and the repair charges of Rs.80,000/- to be paid to the work-shop owner could not be paid by the complainant due to want of document in the name of the complainant as the Insurance Company though agreed to pay the amount of the repair charges. So the vehicle is still lying that work-shop and since then the work-shop owner asking the complainant to take back the vehicle on payment of the repair charges and the Ops- Bank are negligent in rendering proper service to the complainant the complainant has requested the S.B.I. Joda to stop payment of the rest of the Cheques.

     The complainant even after payment of Rs.50,000/- as down-payment and 22 nos. Bank Cheques en-cashed by the Opp. Parties- Bank did not handover the papers and documents of the vehicle and due to non-supply of documents and papers of the vehicle the complainant suffered from mental agony and financial loss and also unable to receive the repair charges from the Insurance Company for their unfair trade practice and deficiency in service. So the complainant filed the complaint petition against the Opp. Parties- Bank for certain relief such as for necessary order against the Opp. Parties- Bank to handover the papers and document of the vehicle to the complainant and to pay an amount of Rs.50,000/- as compensation for mental agony and financial loss with costs of the litigation and further to pay Rs.80,000/- the repair charges of the vehicle to be paid to the workshop owner or in the alternative the Opp. Parties- Bank to pay the amount of Rs.3,94,875/- to the complainant. The complainant filed copies of draft of Rs.50,000/- paid towards down-payment, statement of payment of EMIs, Legal notice with A/D, R.C. Book, Insurance papers of the one Mr. Mahendra Jena on whose behalf of the vehicle stands and few letters of correspondence with the Opp. Parties- Bank.

       On service of notice the Opp. Parties for ICICI Bank Ltd. filed written version through Collection Manager, O.P. No.1. In version the Opp. Party- Bank admitted the disbursement of loan amount and delivery of the vehicle and denied other allegations including Deficiency of Service by the Opp. Party- Bank. In version the Opp. Parties- Bank specially challenged the complaint petition that matter is personal contract service and the petitioner is bad for non-joinder of parties and it is not the responsibility of the Opp. Parties- Bank to supply the papers and documents of the vehicle to the complainant as the vehicle was purchased through direct marketing agent of Solution Plus and filed certain documents such as copies of disburse memo(Auto Loan) with Schedule Disbursal Advice and Agreement and partnership Deed of ICICI Bank made with the Solution Plus, Repair bills, Station Diary Entry.

        Already heard the learned counsel for both the parties.

        The learned counsel for the Opp. Party- Bank repeated the statement made in the written version and further submitted that the dispute is not maintainable as bad for non-joinder of parties and alleged contract is for personal service.

       On the other hand the learned counsel for the complainant supported the statement made in the complaint petition and further submitted that the deal with the ICICI i.e. Opp. Parties- Bank by the complainant is not a contract for personal service on free of charges and the Opp. Parties- Bank cannot disown the responsibility putting the blame on the complainant and the agreement made between the Opp. Party- Bank and the Solution Plus is not binding to the complainant as the complainant is not a party to the agreement and there is no occasion or any part taken by the Solution Plus in the deal with the complainant and it is only disclosed in the forum for the first time through written version by the Opp. Parties in the present case.

      On these submissions the points for consideration are:

1. Whether the dispute is maintainable?
2. Whether the complaint petition is bad for non-joinder of necessary parties?
3. If the complaint is entitled for the relief claimed, if so against whom and what extent?

      For the sake of convenience the points 1 and 2 are taken together on perusal of case records it is known that in this finance dealing all the correspondence made by the O.P-Bank and the complainant are to each other. But when the Insurance Company denied to paid the repair charges of the vehicle to the complainant then it was disclosed to the complainant by the Ops-Bank that the D.M.A Solution Plus is to handover the papers and documents to the complainant and not before that. So we are of the views that this agreement is no way binding to the complainant as the complainant is not a party to the Agreement.Even on perusal of the said agreement in clause 5.14 it is known that after submission of all the papers and documents like R.C. Book and Insurance Paper and after Hypothecation noting by the Opp. Parties- Bank, the vehicle to be delivered to the costumer. So it is presumed that the documents are with the Ops-Bank as the loan is not recalled as per the said clause of the agreement.      

         In this present dispute the loan have not been recalled so it is presumed that all the papers and documents of the alleged vehicle are with the Ops-Bank and non-supply of papers and documents of the vehicle, even after such a long period more than 2 years till filing of the complaint petition is in our view nothing but unfair trade practice and also deficiency in service.  

         As the Ops- Bank pretend ignorance of any knowledge of the repair charges of the vehicle for the damage in the accident neither provide any counter to the claim of the amount of Rs.80,000/- and the compensation amount Rs.50,000/- by the complainant with the supporting evidence such as S.D.E. (Station Diary Entry) bills and vouchers of the Utkal Automobiles against the repair of the vehicle we are to accept the statement of the complainant and the complainant unable to receive the amount from the Insurance Company due to want of proper documents and papers in the name of the complainant and the compensation claimed for an amount of Rs.50,000/- also accordingly accepted.

         on these facts and circumstances we are of the view that the dispute is maintainable and the Solution Plus is not a necessary party as the deal of the finance transaction is made between the complainant and the Ops- Bank and the papers and documents of the vehicle are with the Ops- Bank and due to non-supply of papers and documents by the Ops- Bank, the complainant unable to receive the repair charges of the vehicle of Rs.80,000/- and the Ops- Bank is deficient and liable to pay the compensation amount of Rs.50,000/- to the complainant including the repair charges of Rs.80,000/- and costs of the proceedings and further the  Ops- Bank  to hand over all the papers and documents to the complainant.

         Hence it is ordered and Ops- Bank are directed to hand over the papers and documents of the vehicle- Mahindra Scorpio (Hard Top) vehicle having regd. No OR-02W-7588 and to pay the amount of Rs.80,000/- for repair charges and Rs.50,000/-     compensation and Rs.2000/- as costs of litigation within 30 days of receipt of the order to the complainant. And if not possible then to refund the amount already paid by the complainant for down payment of Rs.50,000/-, encashment of 22 numbers of Cheques of Rs.1,89,090/- and three cash receipts amounting to Rs.25,785/- and repair charges of Rs.80,000/- and the litigation expenses with compensation of Rs.50,000/- in total Rs.3,94,875/- to the complainant within 30 days of receipt of the order and Ops is at liberty to take back the vehicle from the work shop and to returned the unused post-dated cheques to the complainant.

        Accordingly the case is disposed of.

                                                      (Sri S.C. Sahoo)                           (Mrs. Raseswari Mohanty)    

                                                             Member                                            I/C President

                                               DCDRF, KEONJHAR                          DCDRF, KEONJHAR

 

                                                                       Dictected & Corrected by me

                                                                          (Mrs. Raseswari Mohanty)

                                                                                          I/C President

                                                                            DCDRF, KEONJHAR

  

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, ODISHA, CUTTACK

FIRST APPEAL NO. 502 OF 2009

(From an Order dated 10.12.2008 passed by the District Consumer Disputes Redressal Forum, Keonjhar in C.D. Case no. 135 of 2007)

 

ICICI Bank Ltd.

Represented through Sri Deepak Kumar,

S/o: Sri Rabi Das, At present serving as

Manager, Legal, ICICI Bank Ltd.

At: OCCF Building, Opp. Sriya Talkies,

Kharvel Nagar, Bhubaneswar

Dist: Khurda                                                                                         …            Appellant

                        Vrs.

Sri Lalit Kumar Jaiswal,

S/o: Late Pannalal Jaiswal,

At: Joda- Baneikala Basti,

P.O/P.S: Joda, Dist: Keonjhar                                                           …           Respondent

 

For the Petitioner                                           : M/s. N.K. Das & Associates

For the Opp. Party                                          : M/s. R.K. Pattnaik & Associates

P R E S E N T:

                           THE HON’BLE SHRI JUSTICE R.N. BISWAL, PRESIDENT,

                                                                       AND

                                                    SHRI G.P. SAHOO, MEMBER

DATED 31^st DECEMBER, 2015

O R D E R

JUSTICE R.N. BISWAL, PRESIDENT

    This appeal has been preferred against the order dated 10.12.2008 passed by the District Forum, Keonjhar in Consumer Disputes Case no. 135 of 2007 directing the appellant- Bank to handover the papers and documents of the vehicle- Mahindra Scorpio (Hard Top) bearing regd. No OR-02W-7588 to the respondent and pay him the repairing charges of Rs.80,000/-, compensation of Rs.50,000/- and litigation cost of Rs.2,000/-.It was further directed that if the same could not be possible, then to refund the down payment of Rs.50,000/-, encashment value of 20 numbers of Cheque amounting to Rs.1,89,090/-, Rs.25,785/- received in cash, repair charges of Rs.80,000/-, litigation cost & compensation of Rs.50,000/- in toto Rs.3,94,875/- to him. The respondent as complainant filed the aforesaid C.D. Case with prayer to direct the appellant-Bank to handover all the material documents of the aforesaid vehicle within a stipulated period along with a sum of Rs.50,000/- as compensation for mental agony, financial loss and litigation cost and repairing charges of Rs.80,000/- and if the same cannot be complied with to direct the appellant-Bank to pay him Rs.3,94,875/- on different heads as mentioned in the complaint petition.

       The case of the respondent in short is that he purchased the aforesaid used vehicle on down payment of Rs.50,000/- and the rest amount of Rs.4,00,000/- was financed by the appellant-Bank on installment as per the agreement entered into between the parties. The down payment was made on 19.5.2005 and the vehicle was delivered to him on the next month. Pursuant to the agreement, respondent gave 60 numbers of post dated Cheque of S.B.I. Joda Branch towards monthly EMI and the appellant-Bank would have given the documents and papers in respect of the subject vehicle after clearance of the earlier hypothecation in respect of the same vehicle entered into between the appellant- Bank and City Crop Maruti Finance Ltd. After expiry of the validity period of the Insurance Policy, respondent renewed it before the Oriental Insurance Company Ltd. Barbil Branch on 29.6.2006, which was valid from 29.6.2006 to 28.6.2007, but he came to know that the vehicle had not been transferred in the name of the respondent till then. He made repeated demands to provide the original documents and papers of the vehicle, but the appellant- Bank instead of providing the same demanded money illegally. Respondent vide letter dated 31.8.2007 requested the appellant to provide the original papers of the aforesaid vehicle, but to no effect. As ill luck would have it, in the month of February, 2007, the vehicle met with an accident causing extensive damage to it. The Insurance Company was informed about it and on the instruction of the Insurance Company, the vehicle was repaired at Mahindra Shop Room, Barbil at a cost of Rs.80,000/-. The Insurance Company ought to have paid the said amount to the respondent, but since the documents were not in his name, The Insurance Company could not pay the amount. So, he filed the aforesaid C.D. Case with prayer as stated earlier.

      On being noticed, appellant filed written version through their counsel stating that the C.D. Case ought to have been dismissed by the District Forum for non-joinder of parties and as the respondent is not a consumer qua the appellant. As per provision enshrined in Rights and Remedies of ICICI Bank one of the parts of the ICICI Bank Limited (All India) standard terms and conditions for facilities for purchase of/against products, the District Forum, Keonjhar has no territorial jurisdiction to entertain the C.D. Case. As per the said provision, the Courts/Tribunals at Mumbai only has jurisdiction to entertain the dispute. The respondent purchased the vehicle with the financial assistance of ICICI Bank Ltd. through Solution Plus, the Direct Marketing Agent. As per the agreement executed between ICICI Bank Ltd., and Solution Plus, ICICI Bank Ltd. shall not be held responsible for the acts, deeds and action in connection with the financed asset. The loan disbursement memo dated 10.6.2005 shows that the loan amount was sanctioned and disbursed in favour of Solution Plus, the Direct Marketing Agent. As per the agreement by the Bank with Direct Marketing Agent, it is responsibility of the latter for delivering the vehicle to the costumer only after completion of all formalities like registration and insuring etc. It is also mentioned in the agreement that the relevant documents would be given to the Bank within 60 days of disbursement of loan. Accordingly, the appellant- Bank disbursed the loan in favour of the Direct Marketing Agent and once disbursement is made, it is the duty of the Direct Marketing Agent to look after the same and act as per the terms of agreement. All acts, deeds and action done by the Direct Marketing Agent would be termed as action done in their individual capacity and ICICI Bank Ltd. would not be held responsible for any of their shortcomings. Since the Direct Marketing Agent was not made a party to the C.D. Case, it ought to have been dismissed by the Direct Forum.

     After hearing the parties, the Direct Forum held that the C.D. Case was maintainable and it was not bad for non-joinder of parties and accordingly, passed the impugned order.                                            

     Being aggrieved with the said order, appellant, who was opposite party before the Direct Forum has preferred the present appeal.

     Learned counsel for appellant submits that the C.D. Case was barred by limitation as the cause of action arose on 11.6.2005 when the loan was sanctioned in favour of the respondent, but the C.D. Case was filed on 22.10.2007 which is beyond the statutory period as prescribed under the C.P. Act.

     Learned counsel for appellant further submits that the case of loan against a second hand or used vehicle, the intending costumer produces the R.C. Book of the concerned vehicle along with a valuation report by the authorized valuer, besides the documents in support of his residence and income proof. Thereafter, the Bank releases the loan amount in favour of the seller of the vehicle. If the used vehicle is hypothecated/ pledged to any other financial institution, then the payment required to be made is paid to the previous financer. The Bank after verification of the documents use to return the documents to the costumers.

         Learned counsel for appellant further submits that after purchasing the vehicle, it is the duty of the costumer to change its registration number to his own name. If he does not do so, then no liability can be fastened to the Bank. It is admitted by the respondent in the complaint petition that the appellant- Bank would provide the documents and papers of the vehicle to the respondent after clearance of the earlier hypothecation agreement of the vehicle from City Crop Maruti Finance Ltd. It is admitted that the accidental claim of the respondent could not be settled due to non-supply of original documents, which shows that after purchasing of the vehicle, the respondent had insured it with Oriental Insurance Company Ltd. Be that as it may, a vehicle can never be insured without the original R.C. Book, but the District Forum could not appreciate all these facts and passed the aforesaid order. So, according to learned counsel for appellant, the appeal should be allowed.

      Learned counsel for the respondent on the other hand contends that since the documents like R.C. Book and Insurance papers had not been given to the respondent till date, the C.D. Case cannot be barred by law of limitation. Admittedly, M/s. Solution Plus is the Direct Marketing Agent of the appellant. In view of the relation of the appellant with the said company and in view of the terms and conditions of the agreement entered into between the parties, non-joining of M/s. Solution Plus as a party in the Consumer Complaint cannot be a ground to dismiss the Case.

      Learned counsel for the respondent further contends that as per Clause 5.14 of the agreement, after submission of all the papers and documents like R.C. Book, Insurance paper etc by the appellant- Bank, the vehicle has to be delivered to the costumer. So it was the duty of the appellant to deliver the said documents to the respondent. So according to learned counsel for the respondent, The District Forum rightly passed the impugned order.

      There is no dispute that loan was sanctioned in favour of the respondent on 11.6.2005, but till the date of filing of the Consumer Dispute Case i.e. on 20.10.2007, the relevant documents pertaining to the vehicle had not been handed over to the respondent. So sale of the used vehicle was not complete by then. Accordingly, in our considered opinion, the Consumer Dispute Case was filed within time. There is no denial to the fact that M/s. Solution Plus is the Direct Marketing Agent of the appellant. So they are vicariously liable for the act and omission of the said agent. Accordingly, we are of the view that the Consumer Disputes Case was not made for non-joinder of party.

    There is no dispute that the respondent has already paid Rs.50,000/- towards down payment, Rs.1,89,090/- in the shape of Cheques, Rs.25,785/- in cash to the appellant. Clause 5.14 of the agreement entered into between appellant and their agent M/s. Solution Plus stipulates that the agent shall deliver the vehicle to the costumer only after completion of all the formalities like registration of vehicle, noting of the appellant/ Bank charge in the registration book in terms of the loan agreement signed between the costumer and them (ICICI Bank) insuring the vehicle etc. are completed. It further stipulates that a copy of the Registration Certificate with endorsement in favour of the appellant/ Bank, the Insurance Policy with the Hypothecation noting and invoice with the lien favouring ICICI Bank and all other collateral security documents as may be specified by ICICI Bank from time to time shall be delivered to ICICI Bank within 60 days of disbursement of the loan by ICICI Bank, Unless the said documents are submitted to ICICI Bank within 60 days of disbursement of the loan, the entire loan would be payable forthwith and the Direct Sales Agent would be responsible for the foreclosure of all such loans. In the event of non-submission of such documents, the Direct Sales Agent authorized ICICI Bank to set off all such sums against any payouts due to the Direct Sales Agent from ICICI Bank.

      In the present case as per the case of the respondent, the subject vehicle was handed over to him in the month of June, 2005 without any document relating to the vehicle. Moreover, as found from the irrevocable power of attorney executed by the respondent in favour of the appellant- Bank, the latter was authorized to register the subject vehicle, but they did not take any step for registration in the name of the respondent. There is no dispute that the respondent has sustained loss and the loss would not be indemnified by the Insurance Company because of absence of documents with the respondent. So, there was deficiency of service on the part of appellant.

      The District Forum after going through the documents relating to the vehicle held that a sum of Rs.80,000/- would be spent towards repairing of the vehicle. The order passed by the District Forum with regard to payment of compensation of Rs.50,000/-, in our view, is somewhat exorbitant. It is required to reduce the same so far the first part of the order. If the same could not be complied with, then as per the impugned order, the appellant shall refund the down payment of Rs.50,000/-, encashment of 20 numbers of Cheque amounting to Rs.1,89,090/-, Rs.25,785/- received in cash, repair charge of Rs.80,000/-, litigation cost and compensation of Rs.50,000/- in toto Rs.3,94,875/-. If whatever amount is paid by respondent is refunded to him by the appellant, then the appellant cannot be saddled with the repair charge, cost of litigation and compensation amounting to Rs.50,000/- is also in the higher side. Moreover, the vehicle was to be given to the appellant by respondent.         

      Accordingly, the appeal is allowed in part with modification of the impugned order to the exrent that the appellant shall handover the papers and documents relating to the vehicle Mahindra Scorpio (Hard Top) bearing regd. No OR-02W-7588 to the respondent and pay him the repairing charges of Rs.80,000/- and compensation of Rs.25,000/- so far first part of the operating portion of the impugned order is concerned. If it cannot be complied with then the appellant shall refund the down payment of Rs.50,000/-, encashment of 20 numbers of Cheques amounting to Rs.1,79,090/-, Rs.25,785/- received in cash, and litigation cost and compensation of Rs.25,000/- in toto Rs.2,79,875/- to the respondent on condition that the latter shall deliver the subject vehicle to appellant.   

      Records received from the District Forum be sent back forthwith.

 

                                                                                           S/d-                                               S/d-

                                                                                  (G.P. Sahoo)                         (Justice R.N. Biswal)

                                                                                      MEMBER                                     PRESIDENT

        State C.D.R. Commission

                Odisha, Cuttack