Orissa

Cuttak

CC/34/2018

Sangita Tripathy - Complainant(s)

Versus

Associate Vice President, Tata Finance Ltd - Opp.Party(s)

N S Panda

28 Nov 2019

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.34/2018

 

Sangita Tripathy,

W./O: Nira Sundar Panda,

At:Paikapada Patana,

PO/PS:Narasinghpur,Dist:Cuttack.                                              .… Complainant.

                                                                  

Vrs.

1.         Associate Vice President, Office of the Customer,

TATA Finance Ltd., I-Think Techno Campus Building A,

                   2^nd Floor of Pokhran Road-2,

Thane West-400601.

 

2.        General Manager,TATA Motors Finance Ltd.,

TATA Finance Ltd., I-Think Techno Campus Building A,

                  2^nd Floor of Pokhran Road-2,

Thane West-400601.

 

3.         Branch Manager, TATA Motors Finance Ltd.,

Bhubaneswar Branch,1^st Floor Kesari Talkies Complex,

Kharvela Nagar,Bhubaneswar.… Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    03.04.2018

Date of Order:  28.11.2019

 

For the complainant           :           Sri N.S.Panda,Adv. & Associates.

For the O.Ps.                        :           Sri D.P.Tripathy,Adv. & Associates.

 

Smt. Sarmistha Nath,Member(W).

 

                The complainant has filed this complaint before this Forum against the O.Ps for redressal of his grievances Under Section-12 of the Consumer Protection Act,1986(Act in short) in terms of his prayer made in the complaint petition  alleging deficiency in service provided and unfair trade practice adopted by the O.Ps.

1. The case of the complainant in brief is that the complainant purchased a TATA Magic vehicle from TATA Motors Ltd.,Manguli,Cuttack by incurring loan of  Rs.2,00,000/-(Rupees two lakhs) in the year 2015 from TATA Finance Ltd.  with certain terms and conditions to repayment of loans.

As per the terms and conditions of repayment of loan, E.M.I started from 11.1.16 and was to end on 11.10.18 with 34 installments.The complainant attached her Savings Bank account to deposit her E.M.I amount in each month in due time to avoid the default and the E.M.I amount due is 11^th day of each month.It was agreed between parties that the pattern of monthly installment i.e. the total loan will be recovered in 34 installments in four patterns.In 1^st pattern there are 12 installments @ Rs.10,722/-, in the 2^nd pattern 12 installments @ Rs.9,222/- , in third pattern there are 9 installments @ Rs.3,750/- and in the fourth pattern only installment Rs.3,584/- and in the said statement the insurance provision has been mentioned in details.The 1^st insurance amount was paid at the time of purchase of vehicle, in the 2^nd year the insurance amount is Rs.21,189/- and in the 3^rd year it is Rs.20,373/-.A xerox copy of the said statement is annexed as Annexure-1.The complainant has attached his Savings Bank account for recovery of the loan amount to avoid the default.Accordingly, the O.Ps have withdrawn the E.M.I amount from the Savings Bank account of the complainant each month on due date.All of a sudden without knowledge of complainant in the month of November,2017 the O.Ps have withdrawn two E.M.Is in one month instead of one E.M.I i.e. instead of Rs.9,222/- ,O.Ps have withdrawn Rs.18,444/- on dt.13.11.17 and 22.11.17.Thereafter in the month of January,2018 O.Ps have withdrawn two E.M.Is instead of one E.M.I in one month.Instead of Rs.3570/- O.Ps have withdrawn Rs.7140/- on 11.1.18 and 20.1.18 and thereafter in the month of February 2018 O.Ps have also withdrawn two E.M.Is instead of one E.M.I i.e. instead of Rs.3570/- O.Ps have deducted Rs.7140/-.Again on 11.3.2018 and 15.3.2018 the O.Ps have deducted two installments instead of one even after receiving the legal notice.When the complainant update her bank account, she came to know that the finance company has withdrawn excess amount of Rs.19,932/-/- in four excess installments without knowledge of either the complainant or the co-borrower in unfair manner and violating the terms and conditions of the loan agreement withdrawn two E.M.Is instead of one E.M.I.Copy of the bank pass book is annexed as Annexure-2.

The complainant through her husband contacted the finance company by phone regarding withdrawn of excess amount illegally from her savings bank account without her knowledge, the O.Ps told him to send the photo copy of bank pass book immediately in whatsApp and we will sort out the matter within 48 hours.The complainant provided the whatsApp number but the O.Ps neither solve the problem and nor refunded the money.The complainant issued a legal notice to the O.Ps on 7.3.18 vide Aannexure-3.

The O.Ps received the legal notice but further deliberately withdrawn two E.M.Is in the month of March without any intimation only to harass the complainant.The complainant further issued another legal notice to O.Ps on 16.3.18 vide Annexure-4.

The complainant has prayed before this Forum to direct the O.Ps to refund excess amount of Rs.19,932/- withdrawn from her Savings Bank account with flat interest @ 14% within a stipulated time and to direct the O.ps to give compensation to the complainant for her mental agony, harassment for the illegal activities of the O.Ps.

2. The O.Ps appeared and filed their joint written version.  The O.Ps averred that the complainant had taken a loan of Rs.2,00,000/-(two lakhs only) from the O.P vide loan-cum-hypothecation agreement no.5001926412 dt.11.1.16 for purchase of a TATA Magic vehicle bearing No.OD-05R-6398 and had agreed upon all terms and conditions of the said agreement interalia agreeing to repay the loan in 34 installments amounting to Rs.10,722/- as twelve installments, Rs.9,222/- as installments for second year, Rs.3,570//- as next nine installments and Rs.3,584/- for the last installment, starting from 11.1.16 to 11.10.18.  The terms and conditions of the said agreement clearly provide that the monthly installments due are to be paid regularly on monthly basis and any delay or default in paying the monthly installment is a breach in the terms and conditions of the agreement, thereby giving O.P No.1,2 & 3 a legal right to terminate the loan account and repossess the said equipment to secure the loan payment.

The O.Ps raised the question of the maintainability on the ground that the complainant and O.Ps are borrower and lender as such consumer dispute is not maintainable, rather it is essentially a civil dispute.The further plea of the O.Ps is that as per the terms and conditions of the Loan-cum-Hypothecation agreement entered into between the parties, the claim arising under this agreement or any matter incidental thereto shall be subjected to Mumbai jurisdiction.The clause clearly provides that in the event of Arbitration is opted; it shall be referred to the sole arbitration of a person to be nominated by the lender.

The plea of the O.Ps is that the complainant purchased the vehicle and was using the same for commercial purposes and not for earning his livelihood.The complainant has suppressed the above facts in his pleadings.In case of hypothecated vehicle the law is well settled that the ownership lies with the financier till the last E.M.I is paid.Provision of the Motor Vehicle Act enables a person to run the vehicle on road without any hindrance.The ownership of the vehicle does not pass to him until all the conditions in an agreement are fulfilled or he opts to purchase the vehicle.It would be the financier who would be entitled to the possession of the vehicle when the same is subject of Loan-cum-Hypothecation agreement.The O.Ps have all rights to repossess the vehicle and sale it to secure its outstanding dues against the borrower.The O.P can exercise the right of repossession by virtue of the agreement and same cannot be construed as deficiency in service or unfair trade practice.

The complainant has defaulted in repayments of the installment E.M.Is.The default, late payment and part payment by the complainant have resulted in addition of the delayed payment charges or accrued overdue charges along with remaining balance towards the installments.Thus, it is apparent that the complainant by way of late, part and defaulted payments has violated the terms of the agreement and hence there cannot be any complaint of deficiency in service against the O.P.

The complainant has opted to repay the installments through cheques and has deposited post dated cheques with the O.P No.1,2 & 3 towards the repayment of the loan installments.The cheques issued by the complainant towards the repayment of the loan have been dishonoured regularly due to insufficient funds maintained in the bank account by the complainant, which proves the malafide conduct on his part.

The O.Ps have deducted the amount twice that is on 13.11.17 and 22.11.17 as per statement of accounts. The O.Ps have deducted only an E.M.I amounting to Rs.9,222/- and Rs.3750/- towards insurance provisions and retainer charges.The O.P had given insurance provisions of Rs.41,562/- which was included in E.M.I amount, but after the renewal of insurance, excess amount of Rs.10,002/- was showing in the books of accounts towards insurance provisions and Rs.6,855/- was showing towards retainer charges which was amounting to Rs.17,459/- and after adjusting the amount of Rs.12,792/-, the complainant is yet to pay Rs.4,667/- towards insurance and retainer fees and is also due with Rs.4021/- towards overdue installments and Rs.2689/- towards overdue charges.The above said amount is as per said terms of agreement and the complainant while entering the agreement had agreed that he is liable to pay excess amount towards insurance and other charges, the O.Ps have not taken any excess amount from the complainant/O.Ps also denied that they have received any text in whatsApp from any number and also denied that the they have deducted two E.M.I in the month of March.The O.Ps have not committed any deficiency in service or unfair trade practice and have not collected any excess amount from the complainant.

3. We have heard from the advocates of the parties, went through the documents and papers filed by respective parties.  Admittedly the complainant purchased a vehicle on hire purchase basis taking loan from O.P No.1 to 3 with condition to repay the loan in 34 installments.    The complainant has alleged that the O.Ps1,2 & 3 have withdrawn two E.M.Is instead of one on 13.11.17 and 22.11.17 amounting to Rs.18,444/- instead of Rs.9,222/-.  Again the said O.Ps have withdrawn two E.M.Is instead of one in the month of oJanuary,2018 on 11.1.2018 and 20.1.18 and in the month of February,2018  and again two installments in the month of March,2018 thereby the O.P No.1,2 & 3 have withdrawn excess amount of Rs.19,932/- in four excess installments behind the back of the complainant and without her consent and knowledge.  The O.ps phave admitted to have deducted the amount twice i.e. on 13.11.17 and 22.11.17 towards insurance provisions and retainer charges but the O.Ps have neither satisfactorily explained about the deduction of amount twice in a month nor filed any document to substantiate their averments.  Besides that after receiving the pleader’s notice served by the complainant, the O.Ps 1,2 & 3 have preferred to remain silent and did not take steps to settle the matter which amounts to deficiency in service and unfair trade practice adopted by the O.Ps.

                 ORDER

The case of the complainant is allowed on contest against the O.Ps 1,2 & 3 and  said O.Ps  are directed to refund the excess amount of Rs.19,932/-(Rupees nineteen thousand  and nine hundred thirty-two only) and pay a compensation of Rs.20,000/(Rupees twenty thousand only) to the complainant within a period of 45 days from the date of receipt of copy of this order.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 28^th day of November,2019  under the seal and signature of this Forum.

 

 ( Smt. Sarmistha Nath )

                                  Member (W)                                                                                                                                                                                                                                                                                                                                              (Sri D.C.Barik)

                                                                                                                       President.