DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SUBARNAPUR
C.D. Case No. 5 of 2012
1. Biswanath Meher, S/o. Late Ganda Meher, aged about 60 years,
2. Shankar Meher, S/o. Biswanath Meher, aged about 40 years,
Both are having occupation – Self employed, R/o. Panthaipada, P.O./P.S. Subalaya under Birmaharajpur Sub-Divn, District - Subarnapur
………… Complainants
Vrs.
1. TATA MOTORS FINANCE LIMITED, represented through the Branch Manager, TATA MOTORS FINANCE Limited.
2. Sunil Kumar Sahu, Branch Manager Collection, TATA MOTORS FINANCE Limited.
3. Subrat Khuntia, Area Manager, TATA MOTORS FINANCE Limited.
……… Opp. Parties
Advocate for the Complainant …………. Sri B.B.Bidyadhar
Advocate for the O.P No.1 …………. Sri R.N. Sahu
Present
1. Sri S.C.Nayak, President
2. Smt. S.Mishra, Lady Member
3. Sri H.Pradhan Male Member
Date of Order Dt.28.09.2016
O R D E R
By Sri S.C.Nayak, P.
The complainants have filed this complaint case alleging deficiency of service on the part of the O.Ps.
The case of the complainants is that the complainants as borrowers purchased a vehicle dt.01.11.2008 for earning livelihood by way of self employment by incurring finance from the O.Ps. to be repayable by the complainants in 472 installments.
The complainant deposited Rs.41,786/- towards down payment for availing a finance of Rs.2,38,000/-. The complainants alleged that they are law abiding citizen and do not have any intention to make any default in the payment of E.M.Is. As on 23.2.2012 the complainants allege they had deposited Rs.3,08,864/- out of the payment the O.P. deducted Rs.21,872/- on different expenses head and the same is illegal. It is alleged that therein no provision in the loan cum Hypothecation agreement for imposition of retainer charges on the complainant. Similarly the imposition of collection agency charges is also illegal.
The complainants also allege that imposition of over due charges is illegal. The complainant having been paying the E.M.Is. of the aforesaid contract. But to their utter surprise the vehicle has been repossessed at the instance of the O.Ps. on 24.2.2012 by violating the Hon’ble Supreme Court Guide Lines. On account of such illegal repossession the complainants suffered serious mental agony and financial loss to the tune of Rs.500/- per day.
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The complainants allege that the vehicle has been repossessed at the terminated year of the contract for which substantial loss has been caused to the complainants.
Hence they prayed that the O.P. be directed to return the vehicle on payment of Rs.16,400/-. They have also prayed that necessary adjustment in the contract relating to the expenses recovered illegally to be made. The O.D.C. and repossession charges be waived. They have also claimed Rs.95,000/- for deficiency in service and Rs.4,500/- towards cost of litigation.
The O.Ps. were noticed in this case. One Hamid Ashraf S/o. Md. Salam R/o. Kharvel Nagar, Bhubaneswar has filed a written version stating there in that he is duly authorized to sign the version and file the affidavit. But on several adjournments being granted he failed to produce any letter of authority. So the written version filed by him cannot be taken into consideration. Though the O.P. No.2 filed separate Vakalatnama along with some documents he has not filed any separate version although directed by us to that effect. The O.Ps. remained absent on a number of dates and also on 26.9.2016 i.e. the date of hearing. So we have heard the case from the side of the complainants . This case is being disposed of upon examination of the submission of learned counsel for the complainants and basing on the materials available on record.
The moot question that requires consideration in this case is :- Whether there has been deficiency of service by the O.Ps. ?
The advocate for the complainant seriously allege that the repossession of the vehicle is illegal, as repossession has been made without proper police intimation. He has also alleged that repossession has been made by use of muscle power.
We have perused the documents filed by the O.P. No.2 in this case. The letter of Tata Company East 13173 dt.24.2.2012 regarding pre repossession intimation to the police station is there on record. The seal of Sadar police station Sambalpur is there on this letter. So proper police intimation has been given in this case.
Copy of the letter which was sent to borrowers and guarantor on dt.10.10.2011 through Regd. Post with A.D. by Mohit Gadkan and company Advocate is there on the record. In this letter the borrower has also been instructed to pay the late payment charges
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on over due/unpaid installments from the respective due date failing which the company will take appropriate action against them without any further reference including taking back possession of the said vehicle and subsequently to carry out sale of the said vehicle through public auction. For the aforesaid reasons we are not a position to hold that the vehicle has been repossessed by force.
From the contract details of TATA Motors Ltd. Dt.12.4.2012 filed in this case we ascertained that the contract value was Rs.3,85,429/-, due till that date was Rs.336,229/-. The payment received till that date was Rs.2,99,992.42 Paise and an over due installment of Rs.36,235.58 Paise was lying in the account of the complainant.
We have also perused the concerned hypothecation agreement as per clause 7 of the agreement the company is entitled to collect delayed payment charges if any. It is also profitable to refer to clause 18 of the agreement which authorises the company to repossess/seize/recover, appoint a receiver/Manager remove the assets from its place of standing and also be entitled, on such terms as may be deemed fit by the lender, without the intervention of court or authority to sell the asset by public auction or by private contract at the best available price.
For the reasons stated supra we are not in a position to make the O.Ps. liable for deficiency of service.
However we find that the vehicle in question has been released in favour of the complainants vide order of this Forum on 23.3.2012. So we are of the considered opinion that no further relief is required to be given in this case. The decision relied on by the learned counsel is distinguishable from the present case in as much as in the said case the vehicle was sold soon after it was repossessed which has not been done in this case.
In the result this complaint case is dismissed leaving the parties to bear their own cost.
Dated the 28th day of September 2016
Typed to my dictation
I agree I agree. and corrected by me.
Smt. S.Mishra, Sri H.Pradhan Sri S.C. Nayak
Lady Member Male Member President
Dt.28.09.2016 Dt.28.09.2016 Dt.28.09.2016
