Orissa

Jajapur

CC/117/2013

Subrat Kumar Jena - Complainant(s)

Versus

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

Ld.Adv

11 Sep 2015

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 11th day of September,2015.

                                        C.C.Case No.117 of 2013

 

Subrat Kumar Jena,  S/O Rahasbihari Jena

At . Kanpur, Ramachandrapur,

Dist. Keonjhar .                                                                                   …… ……....Complainant .                                                        .                                     (Versus)

1. Branch  Manager /branch head,Shriram Transport Finance Co.Ltd,Near

  Saraswati Theater,Chorta Bye pass Road, Infront of Kalinga Xavier,Hostel

   Jajpur Road,Jajpur.

2. Shriram Transport Finance Co.Ltd,123,Angappa Naicken street,Chennai. 

                                                                                                                    ……………..Opp.Parties.                                                                                                                                                                                                                                                                                                                                          

 

For the Complainant:                      Mr. D.P. Tripathy, Sri P. Mishra, Advocates.

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

                                                                                                                 Date of order:   11. 09. 2015.

SHRI  PITABAS  MOHANTY, MEMBER .

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

                                The brief facts as stated by the petitioner in his complain petition shortly are that the petitioner in order to maintain his livelihood purchased second hand Truck bearing Regd. No.0R-09-E-8195 by availing refinance loan of Rs.4,20,000/- from the O.Ps. In availing such loan the petitioner has executed hypothecation agreement with the O.Ps. . As per term and condition of hypothecation agreement after availing the loan the petitioner has paid Rs.3,45,710/- in between 04.12.2009  to August-2011 regularly within the specific period   . It is stated by the petitioner that as against such payment due to closure of mining operation the petitioner was unable to make payment of monthly installment, for which the petitioner became defaulter. Accordingly the petitioner intimated the O.Ps. to allow him some time to clear up the defaulted installments. There after as per advice of the O.Ps though the petitioner has paid Rs. 50,000/-  towards  over dues but the O.Ps. have  not issued a single

scrape of paper to the complainant .Now it is a matter of great regreat that the O.Ps. are  trying  to repossess the vehicle without any prior notice . After that the complainant rushed to the office of O.P no.1 and requested them to  issue a statement of account , copy of agreement and  copy of demand notice . But the O.P no.1 always took several protest that  “ the system is out of order and net failure etc “ and reluctant to give the copy of agreement , account statement  even any demand notice also .

                                That all on a sudden on dt.20.08.2013 the complainant received a phone call from the O.P no.1 where the O.P no.1 arbitrarily and whimsically demanded  Rs.3,78,000/- . The petitioner also alleged that the O.Ps. are charging 36% interest instead of 9% per annum which violates the guide line of Hon’ble Supreme Court and Odisha High Court reported in AIR-2001-SC-3095, W.P(C) No.17720 /2008 respectively for delay in payment. This action of O.Ps. violates the principle of natural justice and it is not tenable in the eye of law. Accordingly the petitioner has filed this present dispute with the prayer to direct the O.Ps

1. not  to claim the un lawful amount of Rs.3,78,000/-

(b) Direct the O.Ps. to give a copy of agreement and account statement.

(c)To pay compensation.

(d)To direct the O.Ps. to issue N.O.C against the above cited vehicle.

                                The O.Ps after appearance have filed the written version denying the allegation of the petitioner . In the written version the O.Ps. have taken the following pleas.

1.This Fora gets no jurisdiction to adjudicate the present dispute since as per arbitration clause in the agreement any dispute to this transaction  shall be decided by Sole Arbitrator.

2.The vehicle is still with the borrower / complaint and as such no cause of action has arisen so far.

3.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-1429 ( Laxmi Engineering Vrs. PSG)

4.As regards taking signature in blank papers , it is stated by the O.P.s that the petitioner herself has signed the same keeping her eye open without any objection as well as not supplying the A/C statement as raised by the petitioner is also false.

5.Further it is stated by the O.Ps. 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 after dt.20.08.2011 but also the payment made are irregular and have been made as per his sweet will .

6.That  there is no illegality in asking the complainant to clear his legal liabilities particularly when the agreement period is over since long. Similarly by asking the complainant to make payment otherwise the vehicle will be repossessed is also  no illegality on the part of the O.Ps.

Similarly the story that the copy of demand notice or agreement was not supplied to the complainant is completely baseless and false allegations. That there is no need to issue any demand notice for making payment by the O.P. when the complainant is very much aware about his loan liabilities. Besides this the so called “ threatening to repossess the vehicle is not supported by any cogent evidence.

                                In view of the aforesaid facts and circumstances of the case O.Ps. 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 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 ?
3.  
2. Whether this Fora gets jurisdiction to adjudicate the present dispute since as per arbitration clause in the agreement any dispute to this transaction lies at Chennai ?
3. Whether there is deficiency in service on the part of the O.P no.1?
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.4,20,000/- 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 .

Answer to issue no.2- The stand taken by O.Ps 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 judiciously not sustainable 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.Ps. 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 without giving repossession notices the O.Ps. trying to take possession of the vehicle. Further the petitioner also has alleged that the O.Ps. have failed to supply of statement of account, copy of agreement and copy of demand notice .In this contest we verify the documents in details. There is no single scrap of paper on the record that the petitioner approached the O.Ps. for the same which will prove his allegation .Similarly it is also a fact that the petitioner was a defaulter as well as contract period has already been over.

                                Like wise though the O.Ps are entitled to charge D.P.C on delayed  payment of installment but such charging of D.P.C can not be 36% interest 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.Ps. are directed to re-calculate only the D.P.C amount charging 9% interest instead of 36% 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 dues if any within one month ( 30 days) after receipt  copy of  the outstanding statement from the O.Ps. Further the O.Ps. are also directed to issue N.O.C in respect of the alleged vehicle within 15 days after receipt of the outstanding dues if any .

                                Pronounced in the open Forum on this the 11th day of September ,2015. under my hand and seal of the Forum.                                                                                          

                  

 

(Shri Biraja Prasad Kar )                                                        (Shri Pitabas Mohanty)                                                         

           President.                                                                                             Member.                                                                      

                                                                                             Typed to my dictation & corrected by me                                                                                                                                                            

 

 

 (Miss Smita Ray)                                                                            (Shri Pitabas Mohanty)                                                          

        Member.                                                                                              Member.