Ramakanta Jena, S/o:- Late Bhaskar Jena,
Vill:-Bisolsashan, Po:- Kulana,
P.S:- Bhandaripokhari, Dist- Bhadrak. ………. Petitioner.
(Versus)
The Branch Manager.
Hinduja Leyland Finance Co. Ltd.,
Bhadrak Branch, At:- Bypass, Po/Ps/Dist:-Bhadrak, Odisha.
………. Opposite Party.
Counsel for Complainant : Sri N.Sahoo, Advocate & Others.
Counsel for the Opp. Party : SriPradeep Kumar Mishra, Advocate.
Date of hearing : 27.12.2022.
Date of order : 31.01.2023.
J U D G M E N T.
SHRI SHIBA PRASAD MOHANTY, PRESIDENT.
In the matter of an application filed by the complainant alleging deficiency of service against the Opposite Parties under Consumer Protection Act, 2019.
A brief fact of the case is that, the complainant is a simple & an innocent farmer. Complainant determined to purchase a Hero Splendor Plus Motorcycle for his self-convenient for which the complainant consulted with the Hero Dealer, Bhadrak. The Hero Dealer told about the cost of the Hero Splendor Plus Motorcycle of Rs. 55,000/- (Rupees fifty five thousand) only. Staffs of O.P. were sitting near the office of dealer told to finance the vehicle @ 1% interest. Complainant agreed to purchase the said motorcycle through Hinduja Leyland Finance. The staff of the O.P. told to the complainant to arrange Rs. 30,000/- (Rupees thirty thousand) towards down payment & Rs. 4,000/-(Rupees four thousand) towards Processing fee, Registration fees & Insurance fees and also advised to bring Passbook and six numbers of Cheques. On 11.04.2016 complainant took the down payment of Rs. 30,000/-, six numbers of Cheques& Passbook of Allahabad Bank, Manjuri Road Branch & deposited before dealer. The dealer told to the O.P. & the O.P. took the six numbers of Cheques & advised to complainant to sign on the blank printed agreement. The innocent complainant had signed on the said agreement & paid Rs.4,000/- to the staff of O.P. for registration fees, processing fees & insurance fees. The staff of O.P. told to deliver the copy of agreement & registration certificate & insurance certificate within one month. On the same day the dealer delivered the Hero Splendor Plus Motorcycle bearing Engine No. HALOERGHC 34310, Chasis No.MBLHALOCGGHC 32643 & Regd. No.OD-22E-9578. After elapse of one month the O.P. delivered Registration certificate & Insurance certificate& told to deliver copy of agreement by Regd. Post & told to collect 24 EMIs from Bank account. O.P. collected Rs. 2,048/- in first installment & subsequently collected EMI of Rs.1,307/-each from the account of complainant. The complainant has paid 24 EMIs through Bank & O.P. collected extra Rs.12,597/- by given threatening to repossess the vehicle through their agent. The innocent complainant being aggrieved has paid the said amount. O.P. has not delivered agreement copy & statement of loan account to the complainant inspite of several requests. As such complainant could not know the actual EMI of the vehicle so he paid Rs.12,897/- in excess due to fear of threat of repossession of his bike. O.P. in other hand collected EMI of Rs.1,307/- each from the account of complainant. O.P. has received 24 EMI from the account of complainant towards their finance charges. O.P. has not issued No Objection Certificate inspite of several request of complainant.
The O.P. denies all the contentions raised by the complainant except those which are specifically admitted. The O.P. says that the complainant and O.P.has borrower and lender relationship which does not make the complainant a consumer under the ambit of consumer within the definition of consumer under COPRA,2019. The O.P. relies on the authority reported in 2015(4) CPR -148(N.C.) Sunny & Ors Vrs. Rajesh Tripathy, National Commission, New Delhi and III (2006) CPJ-247(N.C.) Ram Deshlahara Vrs. Magma Leasing Ltd, National Commission, New Delhi. The O.P. also files a scanned copy of order made in Consumer Complaint No. 43/2010 marked as Annexure-A decided by State Commission, Odisha. The O.P. also raises the question of jurisdiction of this Commission to adjudicate the dispute as there is specific clause in the agreement for Arbitration for resolution of disputes, differences. The O.P. also alleges of suppression of material facts by the complainant thus accuse the complainant of not coming to court with clean hands. The OP relies on the ratio of the decision by Apex Court in Civil Appeal No.- 6347/2012 M/s Micro Hotel P .Ltd Vrs M/s Hotel Torrento Ltd & others. The O.P. further avers that in fact the installments were decided to be Rs. 2048/- of 24 installments. But the complainant has paid just 1 installment of Rs. 2048/- and paid rest 24 installment of Rs. 1307/- each. So, the complainant has paid Rs. 741/- less in every installment which was to be collected in shape of cash from the complainant. As the complainant has not paid the said residue of Rs.741/- in each EMI for which in total an amount of Rs. 15, 161/- remained as outstanding as on 01/03/2019. In support of his claim, the O.P. files account statement marked as Annexure-B.
After hearing the rival contentions and examining the material evidences available in record these following issues cropped up to be answered before arriving into the rightful conclusion of the dispute:
Issue No.1
Whether complainant fall within the definition of ‘consumer’ ?
Issue No.2
Whether a clause of Arbitration in the Hire-Purchase agreement limits the consumer commission to try the consumer dispute ?
Issue No.3
Whether O.P. has collected Rs.12,597/- in excess from the complainant?
Issue No.4
Whether the O.P. has committed unfair trade practice and deficiency in service ?
Issue No.5
If so, then what relief the complainant is entitled to ?
The answer to Issue No.1 is that when the complainant sought to acquire the vehicle but he did not have adequate fund to purchase the vehicle, he approached the O.P. for financial assistance to purchase the same. As the complainant hirer agreed to pay the finance charges who in turn makes the finance available to him. So the finance charges constitute the consideration paid by the hirer complainant to the financer O.P. So, the complainant is very much a consumer within the meaning of section 2(7) of COPRA, 2019. in 2015(4) CPR-148(N.C.) Sunny & Ors Vrs. Rajesh Tripathy, National Commission, New Delhi, the hire purchaser was engaged in Transport business but in this instant case the case vehicle has been purchased for own use. In III (2006) CPJ-247(N.C.) Ram Deshlahara Vrs. Magma Leasing Ltd, National Commission, New Delhi case, it has been held that hire purchaser does not render any services within the meaning of consumer protection act but in Yogendra Saxena Vrs. Manager Chindwara Tractors & Mahindra & Mahindra Financial Services Ltd Vrs. Ramesh Sawant case (RP No.- 134/2007 & RP No.- 3335/2207), it has been held that hire purchaser is a consumer. So, Issue No.1 is answered in favour of the complainant.
The consumer enactments are in addition to and not in derogation of the provisions of any other law for the time being in force as per section 100 of COPRA, 2019. So, even if there isa clause of Arbitration in the case Hire-Purchase agreement then also that cannot limit the consumer commission to adjudicate the consumer dispute. So, Issue No.2 is answered in favour of the complainant.
The cost of the vehicle was Rs. 55,000/- and the complainant has given down payment of Rs.30,000/- at the time of purchase of the vehicle. So, the complainant has taken a financial assistance of Rs.25,000/- to purchase the vehicle at 1% interest on finance amount which is to be repaid within 2 years in 24 equated monthly installments.It is the admitted case of O.P. that it has collected 1 installment of Rs.2048/- and 23 installments of Rs.1307/- each through ECS mandate (1307 X 23= 30,061)from the complainant i.e. in total Rs.2048/-+ Rs.30,061/-= Rs.32,109/- in addition 16 installment of Rs.741/- in shape of cash amounting to Rs.11,856/-. So, in total the O.P. has collected Rs. 32,109/-+ Rs.11,856/-= Rs.43,965/- from the complainant against a financial assistance of Rs.25,000/- only within a span of 2 years. The agreed rate of interest on finance amount was 1%. So, the amount collected by the O.P. from the complainant is inordinate and exorbitantly high. The O.P. has evasively denied these contentions raised in the advocate notice and complaint petition but failed to specifically deny these with material facts and particulars. Further, the O.P. failed to bring the hire-purchase agreement in its possession into the records to negate the contentions raised by the complainant. So, under these circumstances, the Commission has no other way than to believe in the contentions raised by the complainant that O.P. has collected excess amount from the complainant. Thus, Issue No.3 is answered in favour of the complainant.
The O.P. has neither provided copy of the loan agreement to the complainant nor did it provide the same after receipt of the advocate notice. The O.P. even failed to bring the said agreement into case records to help the court to reach at the just and rightful adjudication of the dispute. In absence of the agreement, this Commission has to believe in the version of the complainant that the agreed rate of interest on financed amount was 1% per annum. So, the claim at 1% rate, the interest becomes Rs.500/- for 2 years. So the O.P. is only entitled to collect Rs.25,500/-.Charging Rs.43,965/- against a financial assistance of Rs.25,000/- within a span of 2 years is unfair trade practice and almost extortion. So, the O.P. has been indulged in unfair trade practice and is found to be deficient in providing service. So, Issue No.4 is answered in favour of the complainant.
The case vehicle is still with the complainant. The O.P. has been restrained through an interim order dtd. 10/08/2022 not to repossess the case vehicle till final disposal of the dispute. The complainant is liable get return of the excess amount collected from him by the O.P. i.e. Rs.43,965/- -Rs.25,500/-= Rs.18,465/-and he is also entitled to get “No Dues Certificate” from the O.P. Thus, Issue No.5 is answered.
O R D E R.
Accordingly the complaint be and same is allowed and O.P. is directed to refund Rs.18,465/- to the complainant and issue “No Dues Certificate” to the complainant against the said loan and pay another Rs.5,000/- (Rupees five thousand) towards harassment and mental agony and Rs.2,000/- (Rupees two thousand) towards cost of litigation within 30 days of receipt of this Order, failing which additional 5% interest per annum shall be charged on the awarded amount from the date of order till the date of payment.
This order is pronounced in the open Court on this the 31st day of January 2023 under my hand and seal of the Commission.
