Tamil Nadu

Ariyalur

CC/7/2022

Mr. Pandiyan, S/o. Sivagi - Complainant(s)

Versus

1)Reginal Manager, Bajaj Auto Finance Ltd, - Opp.Party(s)

17 Mar 2023

ORDER

                                                                                                                                                Date of filing: 28/04/2022

                                                                                                            Date of order: 17/03/2023

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

                                                                  ARIYALUR       

PRESENT:  THIRU DR. V.RAMARAJ.  M.L., Ph.D., PRESIDENT

                                              THIRU        N.BALU           B.A., B.L.  :   MEMBER I

                                              TMT           V.LAVANYA    B.A., B.L.  :   MEMBER II

 

 CC. NO. 7/2022.

Thursday 17^th Day of March 2023.

 

 

Pandian                                                                                                         Complainant

Vs

1. Regional Manager

Bajaj Auto Finance Ltd.,

No.78/3,Bypass Road,

Ponmeni, Madurai- 625 016.

2. The Properitor,

Lingam Automobiles,

Jayamkondam Road,

Valajanagaram,

Ariyalur-621704.                                                                                          Opposite Parties.

 

 

Counsel for the complainant: -          Mr A. J. Thamizmurugan

Counsel for the 1^st opposite party: -  Mr. S. Arunan

 

1.      This Complaint has come before us for final hearing on 08/03/2023. Heard arguments of both the parties.  Complainant filed 9 documents along with P.A. Op1 filed written version, Proof Affidavit along with 7 documents, op2 Set-Exparte on 28/04/2022. Upon perusing the Material facts and exhibits of the complainant and opposite parties and having stood for consideration, this commission passed the following:-

ORDER

Pronounced by the Member II Tmt. V.LAVANYA B.A., B.L.,

Adopted by President Dr.V.Ramaraj M.L., Ph.D., & N.Balu Member I.

 

1.     The complainant has filed this complaint as against the opposite parties under section 35 of the Consumer Protection Act, 2019 and prays to direct the opposite parties to give a new vehicle TN 61S 7815 BAJAJ CT 100 KS ALLOY CBS and sum of Rs. 1,00,000/- compensation for deficiency of service and mental agony.

Brief averments of the complainant.

2.         The Complainant is self employed and for his livelihood he purchased BAJAJ CT 100 KS ALLOY CBS from the 2^nd opposite party. The cost of the vehicle was 43,953/- and on 24/01/2020 the complainant paid Rs.30.000/- as advance to the 2^nd opposite party. The complainant had approached the 1^st opposite party  for getting loan for Rs.16,000/- with 0% interest(Pongal offer).The 1^st opposite party staffs obtained signature of the complainant in the Loan agreement. The complainant received a phone call from the 1^st opposite party that a loan amount of Rs.19, 500/- has been sanctioned to the complainant. The complainant rejected the loan as he had proposed to avail only 16,000/- instead it was sanctioned for 19,500/- Further the 2^nd opposite party has been paid in full amount of Rs. 16,000/- and obtained vehicle Registration within one month.

3.         Further it is learnt that both the opposite parties are hand in glove and created forgery by manipulating the signed Loan agreement. On 23/11/2021 the complainant and his uncle had gone to Kumbakonam govt., hospital and parked the vehicle in the entrance of the hospital, after coming out of the hospital the vehicle was missing, immediately the complainant lodged a complaint before the Kumbakonam East Police Station FIR was registered with No.141/2022.

4.         On 25/11/2021 a letter was received from the 1^st opposite party stating that the vehicle has been seized by them. The letter had no seal and explanation. It is pertinent to state that there was no loan agreement between the complainant and the 1^st opposite party, no communication was intimated to this complainant, if the 2^nd opposite party had availed any loan in the name of the complainant, it is the duty of the 1^st opposite party to intimate to the complainant.  As there was no Loan agreement between the 1^st opposite party and the complainant, so the 1^st opposite party had not taken any initiative to claim any loan amount.

5.         On 11/12/2021 a legal notice was issued to the 1^st opposite party to return back the vehicle along with an apology for committing such vexatious act, when there is no contract between the complainant and the 1^st opposite party, on what basis the act was committed by the 1^st opposite party. Further it is learnt that the 1^st opposite party on 21/01/2022 had sent a notice to the complainant that the vehicle has been sold and balance of Rs. 16,000/- has to be paid by the complainant. All such acts of the 1^st opposite party and 2^nd opposite party have caused mental agony to the complainant, financial loss and deficiency of service.  Hence this complaint.

Authorities relied by the complainant.

1. Citi Corp Maruthi Finance Limited vs S. Vijayalakshmi (NCDRC)

2. ICICI Bank Ltd.,  VS Prakash Kaur And Others

 

 

Brief Averments of the 1^st opposite party

6.         The 1^st opposite party is registered as a Non-Banking Financial Company and operated its business under the strict supervision of RBI. They do not hold any office at mentioned address at the above cause title. It is the case of the 1^st opposite party that the complainant approached the 1^st opposite party and requested to extend financial assistance for purchase of a Two wheeler BAJAJ CT 100 KS ALLOY CBS BS IV, on considering the credentials ,agreeing to all the Loan terms and conditions the complainant signed and executed a loan agreement which was numbered as L2SPRM08209544  which the 1^st opposite party agreed to extend finance to the tune of Rs. 19,608/-. The loan tenure was 12 months with an EMI of Rs. 1634/- starting from 03/03/2020 and loan expired on 03/08/2021.The repayment mode by way of ACH for which the complainant signed and issued bank mandated to repay the loan EMI to the account . The subject vehicle is a security to the said loan and is duly hypothecated to the 1^st opposite parties till closure of the entire loan.

7.         The 1^st opposite party has not received any amount of Rs. 30,000/- dated 24/01/2020 towards down payment. Moreover the down payment does not pertain to the finance amount. It is pertinent to state that due to Pandemic situation the Apex Bank of India had issued circulars dated 27/03/2020 and 22/05/2020 to grant moratorium on payment of all instalmants of loan failing due between 01/03/2020 to 31/05/2020 which was further extended to 31/08/2020. The approved moratorium policy benefit was placed in Board to ensure that all the customers can avail the benefit. The complainant did not opt the benefit. The 1^st opposite party on good faith had granted suo motto moratorium to the complaint’s loan account for the respective month loan EMI March to August 2020, thereby increasing the existing tenure of 12 months of the loan to 18 months.

8.         The statement of accounts dated 01/12/2021clearly cites that the complainant grossly defaulted to repay the EMI and not remitted any amount towards the EMI to the said Loan account and was in due for Rs.19,583/- towards EMI arrear and Rs .!8,618/- towards other overdue charges. Even on repeated request and reminder by this 1^st opposite party the complainant had not taken any interest to regularize the said loan account, hence constrained by this default recalled the loan account vide loan recall notice dated 09/12/2020 and informed them to remit the amount of Rs. 25,196/- failing which to surrender the said vehicle with the 1^st opposite party. Inspite of notices and reminders the complainant did not come forward to repay and close the loan intentionally. The 1^st opposite party has not received any summon or call from any police station or any judicial/quasi judicial body by the complaint, regarding to pay the outstanding loan amount.

9.         Further 1^st opposite party acted as per the agreed terms and conditions of the loan agreement and in the month of November 2021, they took back the peaceful possession of the subject vehicle on as is where basis with due knowledge and consent of the complainant is on 30/11/2021. There was no efforts to clear the dues not objected for the sale of the vehicle. At the time of taking peaceful possession of the vehicle the complainant loan account was in dues. After taking peaceful possession of the subject vehicle in due compliance of law, they issued a pre-sale intimation notice dated 01/12/2021, and informed complainant to remit outstanding dues of Rs. 38,202/- and in turn take back the custody of the vehicle. The complainant did not approach the 1^st opposite party for remittance of outstanding dues and to take back the custody of the vehicle on closure of the said loan nor raised any objection for a sale.

10        Further in order to recover the loan dues, the subject vehicle was sold on as is where is condition on 23/12/ to 2021 to an intending purchaser for Rs. 21,000/- and on adjusting the sale proceed to the said loan account there exist deficit of Rs.17, 202/- to the said loan account which is due and payable by the complainant on which the 1^st opposite party has caused a loss on sale notice dated 21/01/2022.

11.       The vehicle is the subject to hypothecation and is a security to the said loan as per the agreed terms and conditions as per law of contract and a valid loan agreement was executed and signed by the complainant in favor of the 1^st opposite party. It is a settled principle that consumer is merely a trustee of vehicle under Hire Purchase Agreement. Further the 1^st opposite party has not received any legal notice dated 11/12/2021; therefore there is no question of reply notice.  Therefore the complainant is not entitled to any amount whether by way of compensation for deficiency of service hence liable to be dismissed with cost.

 

12.       Authorities relied by the 1^st opposite party

1. Magma fincorp ltd., vs Rajesh kumar Tiwari

2. Charanjeet singh chaddha vs Sudhir Mehra

3. Manipal finance corp vs T. Bangarappa

4.2008 (2) Bharath Mehta vs State inspector of police Chennai.

5. U.G. sampat vs Sh. Ram investment limited

6. Surender Kumar Agarwal Vs Telco Finance Ltd.,

7. Sheela kumara vs Tata Engineering and locomotive company and another.

 

13.       Points for consideration

1.         Whether there is deficiency of service on the part of opposite parties?

2.         Whether the complainant is entitled for the compensation as prayed in the complaint?

            On perusal of Material facts, it is perceived that the complainant has marked exhibits A1 to A9 along with the proof affidavit. 1^st Opposite party has filed exhibits B1 to B7 along with proof affidavit. 2^nd opposite party set –exparte.

Point No 1.

14.       The complainant had purchased a BAJAJ CT 100 KS ALLOY CBS two wheeler from the 2^nd opposite party on 24/01/2020 who are the dealers of the vehicle, the cost of the vehicle as per the pleadings is Rs.43.953/-, for which the complainant had paid Rs.30, 000/- as per the exhibit A1.The 2^nd opposite party are set – exparte in this proceedings. The vehicle has been insured with IFFCO –TOKIO period of insurance from 30/01/2020 to 29/1/2021 for a premium of Rs.4,493/-.Insured Derived Value amount is Rs. 32784/-The Registration No. of the vehicle TN 61S7815. It is observed that the complainant had approached the 1^st opposite party to avail loan on 25/01/2020 described as auto loan agreement for Rs. 19,600/- for a period of 12 months with an interest of  Rs.608/- for a monthly installment of Rs.1634/-  starting due date 03/03/2020 total 19608/-. As per the exhibit B2 of 1^st opposite party the complainant has filled up the application form to obtain loan for two wheeler and have entered all the personal details pertaining to the loan put forth his signature both in the application form and loan agreement accepting the Terms and Conditions. It is a settled principle of law that once the agreement is signed by both the parties, it forms the essence of contract. Both the parties have the contractual obligations in fulfilling the contract.

15.       On the side of the complainant’s A3 exhibit Registration Certificate it is clearly cited that Bajaj Finance Ltd., as Financier name which this commission deems that the complainant has availed loan, which has been denied in their pleadings. Exhibit A4 is the legal notice issued by the 1^st opposite party on 09/12/2020 to the complainant stating the fact that the complainant has grossly violated the loan agreement and a due of Rs.6520/-towards EMI is pending Rs. 5604/- towards overdue charges along with future charges of EMI payable of Rs. 13,072/- and recalling the entire loan by paying Rs.25, 196/- within 7 working days or surrender the hypothecated vehicle immediately from the date of receiving the notice. Exhibit A5 is the Post Repossession intimation letter to the complainant issued by the 1^st opposite party and it is seen that the date and particulars are not filled up. Exhibit A7 is the FIR filed by the complainant for the lost vehicle, there is no details pertaining to the suspects of the stolen vehicle further there seem no proceedings occurred prospectively after the FIR. Further exhibit A8 dated 21/01/2022 Legal notice sent by the 1^st opposite party reminder to pay the balance due amount after repossessing and sale of the vehicle on 01/12/2021 for a tune of 17,202/-. It is seen that the complainant has sent legal notice to the opposite parties dated 11/12/2021, which has been acknowledged by them but not replied. Exhibit B3 is the RBI master circulars to grant Moratorim on payment of all instalments of loan falling due was further extended for more 6 months. It is envisaged that the complainant had ample time to pay the due but failed to do so.

16.       Further in pursuance the statement of account filed as Exhibit B4 by the 1^st opposite party clearly envisages that the complainant had issued Post dated cheques in favor of the 1^st opposite party starting from 3^rd March 2020, the account summary is clear that the complainant total outstanding LPI is 5,543/-.The Account statement from 31 Jan 2020 to 1^st Dec 2021.It is pertinent to note that all the cheques have bounced as per the entry in account statement from 3/03/2020 till 3/04/2021 due to insufficient funds. Exhibit B6 reveals that a pre sale intimation cum demand  letter was issued to the complainant on 01/2/2021 for recalling the loan and taking back the vehicle on payment of the due amount towards final and full satisfaction , it is perceived that the complainant had not paid the due amount hence the 1^st opposite party was constrained to carry on the sale proceed of the vehicle in as is where condition on 23/12/2021 for Rs.21,000/- and after adjustment towards the loan amount there was deficit of Rs. 17,202/-. Thus on 21/01/2022 a legal notice was issued which has been marked as Exhibit B7 and Exhibit A8.Hence on perusing the exhibits and its contents it is clear that the complainant had purchased the vehicle availing loan from the 1st opposite party and has been using it without paying dues. As per the Loan agreement terms and conditions Clause 2(g) Clause 2(d) Clause 5.Clause 6. Are all complied by the 1^st opposite party as per the principal of natural justice and in a liberal manner.  The authority filed by the complainant does not apply to this case. Hence this commission decides that there is no deficiency of service from 1^st opposite party thus complaint is liable to be dismissed. The 1^st opposite party can recover the balance amount through the appropriate court of law.

Point No.2

            From the exhibits of the complainant and the 1^st opposite party it’s envisaged that the complainant has suppressed the fact that they had availed loan from the 1^st opposite party for the vehicle. It is perceived that the loan terms and conditions have been accepted and signed by the complainant. Moreover the loan amount has been disbursed to the 2^nd opposite party the dealer of the vehicle. Once the contract has been signed automatically everything falls into its place. Therefore the complainant is bound to follow the Terms and conditions of Loan agreement and make the payment, but failed to do so.  Hence the 1^st opposite party after following the statutory procedure have acted upon. Therefore we opine that there is no deficiency of service on the part of the 1^st opposite party, hence the complainant cannot claim any compensation from the 1^st opposite party. Regarding 2^nd opposite party as they are the dealer of the vehicle no compensation can be claimed from them. Hence Point No.2 is answered negatively against the Complainant.

 

In the result the complaint is dismissed without cost.

Typed by Member II corrected by Steno and Pronounced by us in the open commission, on Wednesday the 17^th day of March 2023.

 

N.BALU. B.A.B.L                           V.LAVANYA B.A.B.L                         V. RAMARAJ. M.L., PhD.

  MEMBER I                                         MEMBER II                                               PRESIDENT

Complainant side exhibits:-

S.no.	Date	Description	Remarks
Ex-A1	24/01/2020	Receipt issued by Lingam Automobiles	Xerox
Ex-A2	30/01/2020	IIFCO-TOKIO Policy	Xerox
Ex-A3	13/02/2020	Registration Certificate	Xerox
Ex-A4	09/12/2020	Loan Recall Notice	Office copy
Ex-A5		Post Repossession intimation letter	Xerox
Ex-A6	11/12/2021	Legal Notice	Office Copy
Ex-A7	05/02/2022	FIR	Xerox
Ex-A8	21/01/2022	Reminder Notice	Xerox
Ex-A9	11/12/2021	Ad Card	Original

1^st Opposite party side exhibits ;-

S.no.	Date	Description	Remarks
Ex-B1	30/01/2020	Loan agreement terms and conditions	Printed format
Ex-B2	25/01/2020	Loan Application Form	Xerox copy
Ex-B3	27/03/2020,25/03/2020	RBI Circular	Printed copy
Ex-B4	31/01/2020	Account Statement of the complainant	Printed copy
Ex-B5	09/12/2020	Loan Recall Notice	Copy
Ex-B6	01/12/2021	Pre-Sale intimation cum demand	Office copy
Ex-B7	21/01/2022	Reminder Notice	Office copy

 

Complainant side witness:-    Mr. Pandian (Complainant)         

1^st Opposite party witness:-                Mr. Mohamed Harik

 

                                   

N.BALU. B.A.B.L                  V.LAVANYA  B.A.B.L                         V. RAMARAJ. M.L.,PhD.      MEMBER  I                                         MEMBER II                                               PRESIDENT