Orissa

Jajapur

CC/86/2014

Kamiruddin Khan - Complainant(s)

Versus

Branch Manager Shri Ram Transport Finance Co.Ltd - Opp.Party(s)

Alok Kumar Pane

28 Apr 2017

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 28th day of April,2017.

                                                      C.C.Case No.86 of 2014

Kamiruddin Khan  S/O Late Belo Khan

Vill . Bindhan , P.O /P.S/Dist. Jajpur.

                                                                                                                             …………....Complainant .                                                                       

                          (Versus)

  Branch Manager, Sriram Transport Finance Co. Ltd, By-pass Road,  Jajpur Road,

   At/P.O/Dist. Jajpur.                                                                                        …………………..Opp.Party.

                                                                                                                                                     .                                                            

For the Complainant:                                     Sri A.Ku.Pani,Advocate.

For the Opp.Party   :                                      Sri A.Ku.Pahil,, Advocate.                                                                                    

                                                                                                      Date of order:   28. 04. 2017.

SHRI  JIBAN BALLAV DAS,PRESIDENT .

Deficiency in financial service is the grievance of the petitioner.

            The facts  as stated by the petitioner in the complaint petition  shortly  is that the petitioner had  purchased a 10 wheeler truck bearing Regd. No.0R-04-F-5976 to maintain his livelihood taking financial assistance from the O.P under Loan –cum-Hypothecation Agreement  bearing No.33PURO2122003 which is  required to be paid with interests  in 45 installments starting from 20.01.13 to 20.09.16 .Thereafter the complainant was paying the installments regularly which was reflected in the account statement till 09.07.14 .

            That unfortunately the truck was stolen by some unknown criminals from Kianali Chhak on dt.2/3.04.14 mid night. Thereafter the petitioner  reported the matter before the I.I.C,Jajpur police station subsequently informed the theft to the O.P /insurer and basing upon which the claim No.10000/31/15/C/003912 was registered with Shriram General Insurance Company Ltd which is a sister company of O.P .Accordingly surveyor was  deputed by the Insurance Company  and after completion of all formalities the insurer being the sister company of O.P without intimating anything to the petitioner sent a cheque of Rs.5,35,500/- to the financer/ O.P and after some days intimated the matter to the petitioner  .

            Thereafter the petitioner  inquired about the Insurance  claim amount .  The O.P handed over a computer generated statement i.e on 22.10.14 wherein  the O.P  adjusted the entire claim amount of Rs.5,35,500/- to the loan account on 25.08.14 without giving any prior intimation to the petitioner . The O.P has also adjusted the future installment which was due up to 20.09.16 .The O.P has also calculated the delay payment charged more than 9% per annum which is in  violation of  the direction of Hon’ble Appex Court /Supreme Court of India  and High Court of Odisha. The action of O.P in adjusting the entire Insurance amount by  calculating DPC more than 9% per annum is nothing but unfair trade practice and  also deficiency in service .That as per repayment schedule the petitioner was required to pay Rs.2,83,000/- up to 20.08.14 .The petitioner has already paid 1,84,970/- and balance over dues amount up to 20.08.14 was Rs.98,030/- After adjustment ,of  over due amount the O.P was required to return Rs.4,37,940/- to the petitioner .

            Accordingly finding no other way the petitioner knock the door of this Fora with a prayer to direct the O.P to return the Rs.4, 37,940/-  as well as  to pay compensation of Rs.50,000/-

            After appearance the O.P has  filed the written version through their learned advocate  taking the  following stands :-

The petition as laid at the instance of the complainant is not maintainable  in the eye of law . That the complainant come to the office of the O.P for the loan to purchase the 10 wheeler truck . The petitioner and his guarantor after understanding the terms and condition of hypothecation agreement in favour of the O.P bearing Agreement No. Jajpur RO212200003 to clear up the loan amounts installments basis ,  if failed the payment of installments the petitioner will pay the delay payment charges as per terms and conditions of hypothecation agreement . That the vehicle of the petitioner was stolen away on dt.2/3.04.14 while the above said vehicle was  parked near Kianali Chhak .The petitioner lodged the FIR on 03.04.14 before Jajpur P.S . 

Subsequently the petitioner  informed the matter to  the Shriram General Insurance Company about the theft  of  the vehicle . The said insurance company intimated to the O.P/financer and to the petitioner  as loanee  and settle the claim of the petitioner at the time of settlement . The petitioner as per the sweet will has cleared up the dues of the O.P which was outstanding as pr terms and conditions of the hypothecation loan agreement .The petitioner can  not go back from the terms and condition of hypothecation agreement as per the provision of contract Act . It is contended that the present claim of the petitioner is vague and absurd after clearance of the loan dues . Thus the petitioner  is no more a consumer under the O.P as per C.P.Act . It is almost the duty of the petitioner to clear up the outstanding dues, rather the petitioner by admitting the same  has cleared up the loan after getting the claim amount from the concerned Insurance company . The O.P has no power to receive excess money or recedual  amount  of outstanding dues as per terms and condition of hypothecation loan agreement .  The petitioner prior to filing of  this case before the Hon’ble Forum ,  has not protested before the management of M/S shriram Trasport Company . Therefore it is prayed by the O.P  to dismiss the case .

            On the date of hearing we heard the arguments from both the sides. After perusal of the record with the documents from both the sides in detail we are inclined to dispose of the dispute in view of the  observation stated below:

1.In the initial stage we made it clear that we are going to decide the dispute as per facts and circumstance of the present dispute in view of the  observation of the Hon’e Appex court reported in 2001(2)CPR-108-SC

2.It is undisputed fact that the petitioner has availed the loan from the O.P and against such loan as per hypothecation agreement and repayment scheduled the petitioner is required to repay the loan in 45 monthly installments which includes the principal  amount and flat rate of  interest . Accordingly the O.P is not entitled to charge DPC during the period of repayment of  the amount scheduled as per observation of Hon’ble National Commission reported in 2015(2) –CPR-584-(N.C).

Similarly soon after the Insurance claim of the alleged vehicle was settled the O.P is only entitled to adjust the outstanding amount of the loan from the settled Insurance claim. But as observed the O.P has adjusted the future installment of the loan of the petitioner  which includes future interest , similarly charging morethan 9% interest  on DPC on over dues  which violates the guide line of Hon’ble Supreme Court and  Odisha High Court reported in AIR-2001-3095-S.C and W.P(C) No.17720/2008 .  Such action of O.Ps is illegal and arbitrary.

            In view of the above observation from our side,  it is cristal clear that the O.P is liable  for its mis-conduct  and as such without drawing any adverse inference ,the matter is disposed  of  as per direction stated below:

Hence this order :-     

            The O.P is directed to  only adjust the principal loan amount without charging any interest up to 20/09/16 from the date of receipt of the Insurance claim.       The balance amount shall be refunded to the petitioner with 9% interest per annum from  the date of receipt of the Insurance Claim  till its realization. The O.P also directed to refund the amount taken from the petitioner morethan 9% as on DPC on over due  amount within one month after receipt of the order.                                                                                                                                                                                                                                                             

This order is pronounced in the open Forum on this the 28th day ofApril,2017. under my hand and seal of the Forum.