ORDER

Shri. Aswini Kumar Patra,President:

1. Both parties remain absent consistently on the date fixed for hearing. In view of Section 38(3) of C.P.Act 2019 case record is taken up to decide on merits.
2. Perused the material available on record. We have our thoughtful consideration on the contention of both the parties & documents placed on the record.
3. This Complaint is filed by the complainant named above inter alia alleging deficiency in service & unfair trade practice on the part of the Opp.Party for their forceful repossession of the finance vehicle/Ambulance while the vehicle was on roads carrying patient to Vishakhapatanam for treatment.
4. Complainant seeks for an order directing the O.Ps/ Company to release the subject vehicle and to pay Compensation of Rs.50,000/- towards loss of income and Rs 3,00,000/- towards mental agony & to award cost of this litigation.
5. The brief facts as emerged from the complaint petition and documents filed herewith giving rise to present this complainant are that: - the complainant has avail financial assistant from the Op 1 for purchasing of a vehicle/ Mahindra XYLO bearing Regd. No. od-08-K-2622. The complainant was using the vehicle for commercial purpose as Ambulance and earning his livelihood. The complainant had been paying the EMIs to OP 2 & 3 who is the collecting agent of OP1.During the first week of September 2023, the OP 2 & 3 came to the complainant and placed a proposal for settlement of the loan if the complainant would pay   Rs. 1,05,000/- and  thereafter, “NO DUE CERTIFICATE” with respect to the loan  will be issued to the complainant. The complainant agreed with those proposal and on dt.30/09/2023 he has paid agreed amount of Rs,1,05,000/-through PhonePe from his mobile NO.9437224762 vide transaction ID is NB23093016524830496508242 which was well within the knowledge of the OP1. However, on dt. 17.05.2024 when the vehicle/ambulance was on road travelling  to Vishakhapatnam carrying patient for medical treatment, the op2 & 3 took forceful possession of the vehicle from the driver Umesh Chandra Bag. Matter of which was reported to the OP1 with a request to release the vehicle but it was not responded for which a complainant was lodged on dt.20/05/2024 in the Town Police Station at Bhawanipatna, Kalahindi but no avail. Due to such arbitral & illegal acts of the Ops the complainant suffered financial loss & mental agony .Hence, this complainant.
6. To substantiate his claim the complainant has filed the self attested true photo copy of the following documents:- (i)RC  Book of the subject vehicle vide Regd. No. OD08K2622.(ii) Account statement vide Loan A/C No. 5901971,(iii) Acknowledgement of payment of Rs.1,05,000/-to the OP1 made through PhonePe vide Transaction ID: NB23093016524830496508242, (iv) Copy of complaint dt.20/05/2024 made to the IIC, Town Police Station, Bhawanipatna,(v) Copy of Adhar card of the complainant vide Adhar Card No. 8798 9875 8268.(vi) The averment of the complainant is supported by an affidavit of the complainant.
7. On being notice the OPs appeared through their Learned Counsel Shri M.R.Mohanty & associate. Filed their written version denying the complaint allegation on all its material particulars and asked the complainant to strict prove of the complaint allegation. Primarily, the Ops have challenged the maintainability of the complaint taking plea of jurisdiction clause & arbitration clause of the loan agreement and further contended that, complainant is not a consumer as defined under C.P.Act. However, disbursement of loan to the complainant & receiving interest over it is  not disputed .The Ops contended  that, the complainant has paid down payment of Rs.4,20,000/-for purchasing of subject vehicle and rest amount of Rs.7,90,000/-was financed by the Op1 vide Loan-cum-Hypothecation Agreement dt. 25-Dec-2018 & Loan A/C No. 5901971 Customer ID No. 60000959509,Finance Charge is Rs. 368424, Agreed Value is Rs.1158424 repayable in 53 monthly EMIs .The first instalment date was 25 Dec-2018 and last Instalment date was 15-April-2023.The complainant has availed moratorium benefit during Covid-19 where in no payment was made by the complainant.  As per the loan agreement the complainant as on 12/07/2024 is in default of net receivable of Rs. 1,77,033/- along with late fine charge of Rs.1,12,460/- .Account statement annexed as Annexure -“A” of the written version. Therefore, as per the terms of the agreement, the   Ops have all right to repossess the vehicle and sale it to secure its outstanding dues against the borrower and the same shall not construed as deficient service or unfair trade practice. The Ops further contended that, when the complainant become defaulter in regular repayment of loan due, matter is referred to the Arbitrator as per terms of the agreement and learned Arbitrator has already passed an Arbitration Award on 20/03/2024 much prior to filling of this consumer complaint which has been cunningly suppressed by the complainant as such this complaint is not maintainable in the eye of law. The complainant is not in clean hand and not entitled for the relief as claimed. Hence this complaint is liable to be dismissed with cost.
8.  To substantiate their claim the Ops have filed the following documents with their written version :-(i) photo copy  of loan account statement from of Loan A/C No. 5901971 as on dt. 12 July-2024 vide   Annexure -“A” of the written version. (ii) Photo copy of the Arbitration Award on 20/03/2024 vide as annexure “B” of written version. The averment of the written version is supported by an affidavit of one Sri. Abhisek Dash ,Manager Defence at Mahindra and Mahindra Finance Services Lt., Rasulgarh, Bhubaneswer. 
9. Here, in this case it is not disputed that, the complainant has availed financial assistances/loan of   Rs.7,90,000/-from the Ops for purchasing of the subject vehicle vide Loan-cum-Hypothecation Agreement dt. 25-Dec-2018 Loan A/C No. 5901971 Customer ID No. 60000959509 . Finance Charge is Rs. 368424 and the Agreed Value is Rs.1158424 repayable with interest in 53 monthly EMIs. As such, this Commission may safely conclude that, the complainant is a consumer of the ops .
10. The Ops have relied on the Arbitration Award on 20/03/2024 and filed the photo copy of the same vide annexure “B” of their written version is not authenticated one as such reliance shall not be placed on it so also it is not  acceptable  as evidence.
11. Law is well settled that, photo copy of documents without authenticated by fundamental evidence that, the photo copy is in fact a true copy of the original may not be accepted as evidence,(Reliance placed on the ratio of judgement of Honourable Supreme Court in M.Chandra Vrs. M. Thangamuthu & another ,reported in 2010(ii) CLR (SC) 746 :(2010) 9 SCC 712.
12. Nothing placed on record to hold that, the complainant was well aware or informed about the proceeding before the Arbitral Tribunal and more specifically on the Arbitration Award on 20/03/2024 filed by the Ops vide annexure “B” of the written version. This Commission is unable to hold that, matter is refereed to Arbitral Tribunal and that, an   Arbitration Award is passed on  20/03/2024 well within the knowledge of the complainant there by oust the jurisdiction of this Commission to adjudicate this consumer dispute.
13. Law is well settled that, arbitration and jurisdiction clause of the loan agreement does not bar the jurisdiction of the consumer Fora /Commission to entertain the complaint. Hence, the primarily objection raised by the learned counsel for the Ops on the maintainability of the complaint taking plea of jurisdiction & arbitration clause of the loan agreement is not acceptable rather,  rejected.
14. The self attested true copy of documents relied by the complainant and placed on record such as :(i) RC  Book of the subject vehicle vide Regd. No. OD08K2622.(ii) Account statement vide Loan A/C No. 5901971,(iii) Acknowledgement of payment of Rs.1,05,000/-to the OP1 through PhonePe vide Transaction ID: NB23093016524830496508242, (iv) Copy of complaint dt.20/05/2024 made to the IIC, Town Police Station, Bhawanipatna relied remain undisputed . Rather, the copy of loan account statement from of Loan A/C No. 5901971 as on dt. 12 July-2024 vide   Annexure -“A” of the written version is not certified/authenticated one as such it is not reliable to accept as   evidence.
15. The Ops, mentioned that, as per the clause 8 of the loan agreement it is specifically mentioned that, upon occurrence of event of default and any time thereafter ,the lender shall without prejudice to its rights in law, be entitled to take custody of hypothecated Asset on notice, to declare all sums due and to become due hereunder for the full term of agreement including foreclosure charges calculated at the rate of 3% on the principal outstanding, along with other dues  including unpaid instatements, service taxes, late charges etc, as due and payable by giving 10 days  notice and upon such demand if the Borrower fails to make the said payment in full within 10 days thereof, Lender shall have the right to do any or all of the following:- To take custody of hypothecated asset on notice with inventory and on such notice, borrower shall hand over hypothecated asset peaceful to the lender after obtaining copy of inventory. The Op further contended that, as per clause 14 of the Loan Agreement the borrower expressly gives consent that in case of default the lender shall be absolutely entitled to exercise all or any of its right, including taking possession, disposal and holding NOC of the product there of under the borrower agreement (including this agreement) with the lender at the sole discretion of the lender. 
16.   This Commission is agreed with the contention of the Ops that, in case of Hypothecated vehicle, the ownership lies with the financer till the all the dues are cleared and NOC receiver. Law is well settled that, the Ops/financer has all right to repossess the vehicle and sale it to secure its outstanding dues against the borrower as per loan- cum- Hypothecation Agreement but following procedure as prescribed. 
17. The Ops have not denied repossession of the subject financed vehicle. It is also not specifically denied by the Ops that, on dt. 17.05.2024 while subject vehicle was going to Vishakhapatnam carrying patient for medical treatment, the op 2 & 3/ the agent of the Op1 took forceful possession of the vehicle from the driver Umesh Chandra Bag.
18. Nothing placed on record to hold that, the Ops have ever recalled the subject loan facility or have ever properly served loan recall notice to the borrower/complainant or have ever issued demand notice properly served to the complainant/borrower or have served any notice 10 days before the date of repossession of the subject vehicle and that, authenticated copy of Arbitration Award on 20/03/2024 has ever served to the complainant.  So also nothing placed on record to hold that, the Ops have took custody of the subject hypothecated asset/vehicle on notice with inventory and, on such notice, borrower has hand over the hypothecated asset/vehicle peacefully to the lender/OPS after receiving of copy of the inventory.
19. Nothing material placed on record to hold that, the Ops have ever followed the above mentioned procedure contended in clause 8 of the loan agreement as stated in their written version. No notice of pre-possession & copy of inventory of the subject vehicle are placed on record for perusal. Nothing placed on record to hold that, on being notice, borrower /the complainant has hand over hypothecated asset peaceful to the lender after obtaining copy of inventory. Rather, the contention of the complainant supported by an affidavit that, on dt. 17.05.2024 when the vehicle was on road moving  to Vishakhapatnam carrying patient for medical treatment, the op2&3/agent of the Op1  took forceful possession of the vehicle remain un-rebutted which caused mental agony & financial loss to the complainant cannot be denied .
20. The complainant has categorically pleaded that, during  the first week of September 2023 ,the OP 2 & 3 came to the complainant and placed a proposal for settlement of the loan if the complainant would pay   Rs.1,05,000/- and thereafter , “NO DUE CERTIFICATE” with respect to the loan  will be issued to the complainant and that, he  agreed with that proposal and  paid agreed amount of Rs.1,05,000/- through PhonePe from his mobile NO.9437224762 vide transaction ID is NB23093016524830496508242 dt.30/09/2023 which was well within the knowledge of the OP1 is not specifically denied/disputed . On perusal of the undisputed account statement of the subject loan account filed by the complainant it is found that, said payment of Rs.1,05,000/- dt.30/09/2023 reflected in the  received column as such, we are  is unable disbelieve that, the complainant has acted upon the proposal of the Op2&3/the agents of the Op1 and said  amount is paid towards  full & final settlement of the loan with a hope to obtain the “NO DUE CERTIFICATE”.As such this commission is of this Commission is of the opinion that the Complainant is entitled to get restore of the possession of the subject vehicle with” No Due Certificate”.
21. Based on above facts & circumstances and in the light of above discussion, this Commission is of the opinion that, repossession of the Hypothecated vehicle when it was on road moving to Vishakhapatnam carrying patient for medical treatment without following the procedure as prescribed under the Loan-Cum-Hypothecated Agreement is a matter of concern squarely attribute unfair trade practice & deficient service there on the part of the Ops which certainly caused financial loss & mental agony to the borrower /complainant cannot be denied. However, the complainant has failed to prove suffering of financial loss in any manner .Mental agony suffered cannot be assess but award of sum monetary compensation as claimed may heal the injuries to some extent.  The claim of the complainant is at higher side. Hence, this complaint is allowed in part on contest against the Ops with the following direction. -

ORDER

The Ops are hereby directed to release the subject vehicle in good condition as it was on the date of possession and to issue ‘No Due Certificate’ and, further directed to pay Rs.3,00,000/- as compensation towards mental agony suffered and Rs.10,000/- towards    cost of this litigation to the complainant.

Further, the Op 1/Mahindra Finance Ltd   is directed to pay Rs. 2,00,000/- as punitive damages to the Odisha State  Consumer Welfare Fond and, restrain themselves from such a deficient service & unfair trade practice.

This order is to be complied within four weeks from the date of receiving of this order failing which the Op shall be liable to pay compensation of Rs.500/-per day till compliance.

The Pending application if any is also disposed off accordingly.

          Dictated and corrected by me.

                        Sd/-

                                  President

                                                     I   agree.

                                                                                       Sd/-

                                                                                   Member  

Pronounced in open Commission today on this 27^th  November   2024 under the seal and signature of this Commission. The Pending application if any is also disposed off accordingly. This complaint could not be decided on time in want of quorum of the Commission.

        Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly.