Complainant is absent without step.
OP Company is represented by learned counsel.
We have heard learned counsel of both sides on the point of maintainability of the petition and perused documents submitted by the parties.
The case of the complainant, Sri Tapan Barkakati, in brief is that the complainant purchased a vehicle (TATA SUMO GOLD) from the dealer i.e. SBM Motors Pvt. Ltd. The complainant purchased the said vehicle under hire purchase agreement executing a loan agreement dated 31.01.2013 with OP, Finance Co. Ltd. Complainant took a loan of Rs. 4,15,000/- from the OP for purchasing the vehicle. As per terms and conditions of the agreement complainant paid an amount of Rs. 1,66,654/- as down payment and it was agreed to pay an additional amount of Rs. 2,000/- per month for next 29 months towards insurance for four years. Complainant states that he took possession of the vehicle on 31.12.2013 and that the OP Finance Company is liable to maintain insurance of the vehicle for a period of four years as per agreement. He claims to have been paying EMI at the rate of Rs. 14,400/- per month as per hire purchase agreement to the OP Company. It is further stated that on 20.02.2015 the said vehicle was stolen away. The said incident of theft occurred at Bamunimaidam, Guwahati and on the next day complainant lodged an FIR at Chandmari Police Station which was registered as Chandmari Police Station case No. 107/15 u/s 379 IPC. That the complainant informed the incident of theft to the OP Finance Co. Ltd. and also the Insurance Company (Royel Sundaram General Insurance Company) for needful action. Insurance Company denied to accept any liability, since the vehicle was not insured covering the material period. That the OP-Finance Company failed to renew the insurance policy and thus OP Finance Company is deficient in service towards the complainant. That the petitioner approached the OP office at Barpeta and also Regional office at Guwahati for settlement but they insisted for payment of balance EMI. Hence this petition with the following prayers :-
- That an order be passed in favor of the petitioner directing the opposite parties No. 1 and 2 to deliver a new vehicle as a part of liability.
- An order directing the opposite parties to provide an amount of Rs. 10,00,000/- (Rupees Ten Lacs) only as compensation for mental harassment.
- An amount of Rs. 50,000/- as litigation cost and other relief for the end of justice.
In response to the notice issued Opposite Party, Mahindra & Mahindra Financial service Ltd. contested the case filing written objection contending, inter alia, that the present complaint under reply is misconceived one and is barred under the principle of estoppel, waiver and acquiescence, that the present petitioner cannot be considered as “Consumer” as defined under the section 2(1)(d) of the Consumer Protection Act , 1986; that in the four corner of the petition, under reply, no deficiency or negligent in service is apparent as defined under sec 2(1)(g) or any other provision of the Consumer Protection Act and as such the present complaint case is neither maintainable, nor it is fit case to be adjudicated by this Forum.
That upon the request of the complainant for availing financial assistance for purchase of a vehicle, the OP had provided loan to the tune of Rs. 4,15,000/- (Rupees Four lacs fifteen thousand) only to the complainant, along with agreement value (including interest) to be repaid by the complainant was totaling Rs. 5,81,000/- (rupees five lacs eighty one thousand ) Only. Accordingly, the complainant executed a loan agreement in acceptance to the terms and conditions of the loan transection bearing No. 2437523 on dated 31.01.2013 . The complainant purchased a vehicle i.e. TATA SUMO GOLDCX, bearing Registration No. AS01 BD6871 from the dealer i.e. SBM MOTORS PVT. LTD. That the agreement value of Rs. 5,81,000/- only was to be repaid by the complainant in 47 (Forty Seven) periodical instalments, EMI of Rs., 14400/- per month starting from 27.02.2013 and ending on 27.12.2016. The borrower agreed that his obligation to repay the loan will not be subject to any change on account of any product failure or its ultimate use and failure to make payment of the periodical instalments in time shall amount to event of default.
It is specified that the complainant committed a breach of the loan agreement by non-payment and jeopardizing the security. That, the complainant has not come before this Forum with clean hands, as he has suppressed and concealed the material facts. As per arbitration clause of the agreement, the complainant has agreed to refer all the disputes to the Arbitrator and that the answering OP has initiated arbitration proceeding as per terms of the agreement for the recovery of its dues against the complainant. There is provision of appointment of Arbitrator in respect of the dispute, as such the present application or case is not maintainable in this Forum and also not within the provision agreed by and between the parties. As per loan agreement, the borrower (complainant) is supposed to make the payment of the periodical instalments in time and on failure of the borrower to do the same, the lender (OP) shall be entitled to the remedies as available under the said agreement.
“ The Borrower agrees that so long as the loan shall continue the Borrower shall:
- Repay the Loan Amount with the interest in periodical installments (PI) on the fixed due dates as specified in schedule 1 of the Loan Agreement.
- Pay Late Payment charges on the amount which are due in the event of the amount not being paid on the said due dates, and the same will be calculated from the date of default on the amount of default, till the date of payment. “
That the OP denied with reference to the averments made in para No. 5 to 12 of the petition first year insurance was done by the customer through dealer SBM MOTORS PVT. LTD, further as a proposal requested by the customer upon agreeing to make regular payment of EMI’s with Rs. 2000/- towards insurance for 30 months wherein it is required that he makes regular payment and there remains no outstanding of EMI’s, accordingly vehicle 2nd year insurance was done by the company i.e. policy year 14-15, thereafter the customer has defaulted his regular EMI’s and there was an outstanding of dues amounting to Rs. 1,16,185/- (EMI due of Rs. 86400/- & AFC due of Rs. 29,785/-) as of 31st Dec 2014, as the vehicle 3rd year insurance was due from 31.01.2015 having an Overdue of Rs. 1,00,800/- with AFC of Rs. 32,768/-. The company in the event of outstanding dues has intimated the customer on his mobile no. 8822870223 in month of 31.01.2015 and a letter to this effect has also been sent in 2015, clearly mentioning that due to default in EMI’s and there being Over Due amount, company will not be renewing the insurance for the vehicle from 31st Jan 2015 onwards and accordingly the amount is being credited to your loan account as per the agreed terms. The complainant has violated the terms and conditions of loan agreement.
That the complainant purchased the vehicle for commercial purpose and as such, this Forum has no jurisdiction to adjudicate upon this case as per provisions of Consumer Protection Act and so, this complaint filed by the complainant is liable to be rejected. The complainant has suppressed the above facts in his pleading. Therefore, the complainant does not come within the definition of a consumer as defined in sec-2(d)(ii) of the Consumer Protection Act, 1986. The said vehicle was used for commercial purpose and not for livelihood.
The OP categorically submits that out of the agreement value of Rs. 5,81,000/- complainant has paid only 19 installments. Last date of payment was made on 20.02.2015. Thereafter Loan recall notice was sent on date 03.12.2015 but complainant failed to clear the dues. As on date current outstanding due is Rs. 3,23,534/- along with Accrued Financial Charges of Rs. 2,75,956. Complainant has also failed to appear before learned arbitrator, thus with no option left as per terms and conditions of the loan agreement. The OP has recalled the loan on 03.12.2015 and the proceedings before the learned arbitrator initiated and award was passed on dated 07.05.2016. Consumer complaint case is not maintainable in a case where an arbitrator case is initiated and award is passed. The present consumer complaint was filed on 29.12.2018 whereas Arbitration was passed on 07.05.2016.
In view of the above facts and circumstances, OP prays for dismissed of the instant petition with exemplary cost since the complainant has failed to make out a prima facie case against the OP.
It is stated in the petition that the vehicle was stolen away on 20.02.2015 and an FIR was lodged on the next day which was registered as Chandmari PS Case No. 107/15 u/s 379 IPC. Complainant has not produced any document in support thereof.
From the petition itself it appears that the insurance policy, in respect of the vehicle, was not renewed covering the material period and as such Insurance Company cannot be made liable in any manner, in the instant case.
Complainant asserts in the petition that the OP-Finance Company failed to renew the insurance policy, in respect of the vehicle, as per terms and conditions of the hire purchase agreement. It is the version of the complainant that the OP Company is responsible for renewal of the insurance for the vehicle as per loan agreement. There is no averment in the petition that the complainant used to make regular payment of EMI’s with Rs. 2000/- towards insurance and there remains no outstanding of EMI’s and the complainant was not a defaulter in making regular payment of EMI’s for the material period. On the other hand, the OP-company, in its written objection contended, inter alia, that since the borrower/complainant defaulted his regular EMI’s, in violation of loan agreement and there was an outstanding of dues, which was intimated to the complainant, 3rd year insurance was not renewed. It is not asserted in the petition that the complainant has satisfied his part of the loan agreement. It is also not specified in the petition as to how and from which date cause of action arose.
In view of the foregoing discussion we are of the considered opinion that the petition does not disclose a cause of action and accordingly the same is rejected.
This case stands disposed of accordingly.
