Orissa

Jajapur

CC/41/2015

Biswambhara Parida - Complainant(s)

Versus

B.M Shriram Transport Finance Co.Ltd - Opp.Party(s)

Pabitra Kumar Kar

27 Jan 2016

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Biraja Prasad Kar, President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.

                                              Dated the 27th day of January,2016.

                                                      C.C.Case No.41 of 2015

Biswambara Parida  S/O Krushna Chandra Parida

Vill/ Krushna chandrapur , P.O.Saragada mukundapur

P.S.Dharmasala,Dist.Jajpur.

                                                                                                                                                        ……....Complainant                                                                  

                   (Versus)

   B. M. Sriram Transport Finance Co.Ltd, Chandikhole, At.P.O. Chandikhole

   Dist. Jajpur.

                                                                                                                                                 …………………..Opp.Party.                                                            

For the Complainant:                    Sri P.K. Kar , Sri S. Panda, Advocates.

For the Opp.Party:                          Mr. P.K. Ray, Sri A.R. Sethy, Advocates.

                                                                                                                                             Date of order:   27. 01. 2016.

SHRI  PITABAS  MOHANTY,   MEMBER .

                                The petitioner has come with this complaint  petition  alleging deficiency in service as well as unfair trade practice on the part of the O.P.

                                The brief facts as stated by the petitioner in his complaint petition shortly are that the petitioner in order to maintain his livelihood purchased a Truck bearing Regd. No.0R-04-C-5352 by availing a loan amounting to Rs.2,50,000/- from the O.P. In availing such loan the petitioner has executed an hypothecation agreement with the O.Ps. As per term and condition of hypothecation agreement after availing the loan the petitioner is liable to pay Rs.3,79,774. But the petitioner already paid Rs.3,90,300/- till dt.05.06.2014.

                                That when the petitioner visited the office of the O.P. for issuance of the N.O.C. The O.P demanded further amount of Rs.50,000/- for issuance of  N.O.C.

                                That the petitioner also alleged in his written note of argument  that the O.P has charged 36% interest instead of 9% per annum as D.P.C which violates the guide line of Hon’ble Supreme Court  and Odisha High Court reported in AIR-2001-SC-3095  and W.P(C) No.17720/2008 respectively . This action of O.P violates the principle of natural justice and it is not tenable in the eye of law. Accordingly the petitioner filed the present dispute with the prayer to direct the O.P.  to issue N.O.C against the above cited vehicle in favour of the petitioner.

                                After notice the O.P  appeared through his learned advocate and  filed the written version denying the allegation of the petitioner . In the written version the O.P. have taken the following pleas.

1This Fora gets no jurisdiction to adjudicate the present dispute since as per arbitration clause in the agreement any dispute to this transaction is within the jurisdiction of  sole Arbitrator .

2.The petitioner is not a consumer since the petitioner has purchased the vehicle for commercial purpose .Accordingly the petitioner is not a consumer as per observation of Hon’ble Supreme Court reported in AIR-1995-SC-1428 ( Laxmi Engineering Vrs. PSG)

3.The dispute of the instant consumer complaint relates to account dispute and law in this regard is well settled that the Consumer Forum lacks the jurisdiction to decide such dispute as per observation of  the Hon’ble  S.C.D.R.C, Odisha, Cuttack,  C.D. Case No.53/2004.

4. That there is no illegally in asking the complainant to clear his legal liabilities particularly when the  statement of account shows a sum of Rs.1,23,989.98 still outstanding against the petitioner till 05.05.2015. Similarly by asking the complainant to make payment  and unless  the dues are cleared by the complainant  the company is not obliged to issue the no objection certificate in favour of the petitioner . The demand of Rs.50,000/- if any is not at all illegal as the complainant is liable to pay more than 12,3000/-. It is humbly submitted that law is well settled that the borrower is liable to pay the AFC / DPC in term of agreement.

5.Further it is stated by the O.P that since the petitioner was the defaulter according to his own admission  it is evident that not only he has failed to pay any installment in time  but also the payments made are irregular and have been made as per his sweet will .

                                In view of the aforesaid facts and circumstances of the case, the  O.P.  prayed this Fora that in exercise of the power conferred U/S 26 of the Act, complaint may be dismissed as frivolous.

                                After hearing we have perused the record and along with the documents including agreement copy in detail and inclined to frame the following issues so as to come to our conclusion:

1. Whether the petitioner is a consumer who is entitled to maintain the dispute in this Fora ?
2. Whether this Fora gets jurisdiction to adjudicate the present dispute  as per arbitration clause in the agreement .
3. Whether there is deficiency in service on the part of the O.Ps.
4. Whether the petitioner is entitled for the relief as prayed in the complain petition ?

                                At the initial stage we make it clear that we are going to decide the dispute as per facts and circumstances of the present dispute as per observation of Hon’ble Supreme Court reported in 2001(2)CPR-108-SC.

Answer to issue no.1- It is undisputed facts that the petitioner has availed the loan of Rs.2,50,000/- from the O.Ps. for purchasing the above cited vehicle. As against such loan the petitioner is paying interest which is covered in the expression of service and the interest so paid by the petitioner in repayment of loan is consideration. As such the petitioner is a consumer as per observation of Hon’ble Supreme Court reported in 1995-2-SCC-150  (Consumer Unit & Trust society Vrs. Chairman and M.D Bank of Borada), 2001 (1) CPR-7-Supreme Court.)

b. As regards commercial  purpose as raised by O.Ps. the same is also not sustainable in the eye of law as per observation of Hon’ble Supreme Court reported in –2009(4)-113-SC( Madan Kumar Singh Vrs. Dist. Magistrate  & Others) since the petitioner has stated in the complain petition that she has purchased the vehicle for her livelihood .

since the petitioner vide para-2 of the complain petition has stated that he has purchased the vehicle to maintain her livelihood.

Answer to issue no.2- The stand taken by O.P. vide para-2 of the written version that owing to Arbitration Clause in the agreement this Fora gets no jurisdiction to entertain the present dispute  is also not sustainable judiciously as per observation of Hon’ble Supreme court reported in 2004-CTJ-1-S.C- ( Secretary Thirumurugan co-operative Agriculture society- Vrs. M.Lalitha, wherein it is held that

“ arbitration clause is no bar for entertaining the dispute by the Fora.  As such this Fora  has no hesitation to decide the present dispute .”

Answer to issue No.3 and 4 – These  are the vital issues wherein we have to verify whether there is any deficiency in service on the part of the O.P. and if so whether the petitioner is entitled  for  the relief  as prayed in his complain petition.

1.It is alleged by the petitioner that when he paid the entire loan amount along with interest     in due time, the O.P did not issued N.O.C against the alleged vehicle and illegally charged higher interest on D.P.C . Secondly it is also a fact that the petitioner has not paid the EMIs as per agreement and the statement of account shows that the total amount shows as outstanding against the petitioner reflected as AFC / DPC.

                                Like wise though the O.P. is entitled to charge AFC / D.P.C on delayed  payment of installment but such charging of D.P.C can not be 36%  instead of 9% as per observation of Hon’ble High Court vide W.P(C) No.17720/2008 since it is contrary to constitution bench of Hon’ble Supreme Court reported in AIR-2001-3095-S.C.

                                 In view of the above observation from our side it is cristal clear that both the parties are jointly and severally liable for the alleged occurrence and as such without drawing any adverse inference we dispose of the dispute as per the direction stated below .

O R D E R

                                In the result the dispute is disposed of.  The O.P. is directed to re-calculate the AFC / D.P.C amount charging 9% interest per annum and after re-calculation the statement of outstanding amount if any shall be served to the petitioner by R.P within one month after receipt of this order. The petitioner is also directed to repay the revised outstanding (if any) dues within one month ( 30 days) after receipt of the outstanding statement from the O.P. Further the O.P is also directed to issue N.O.C in respect of the alleged vehicle within 15 days after receipt of the outstanding dues if any . No cost.

          This order is pronounced in the open Forum on this the 27th day of January,2016. under my hand and seal of the Forum.                                                                                             

 

 

 

                                            

                                                                                                

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