Orissa

Jajapur

CC/80/2013

Bijay Kumar Nayak - Complainant(s)

Versus

Branch Manager Shri Ram Transport Finance Company 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.80 of 2013

 

Bijay Kumar Nayak  S/O Sankarsana Nayak

At . Khadikshul, Madanpur,Ramchandrapur

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.Party No.1:                 Sri J. Patnaik, S.R. Subudhi, R.K.Sahu, Advocates.

For the Opp.Party No.2:                 None.                                                                                                                        

                                                                                                                 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 by executing Hypothecation Agreement  No.JJPUR0007060001 for availing refinance loan of Rs.2,10,000/- from the O.Ps. In availing such loan the petitioner has executed hypothecation agreement with the O.Ps. on dt07.07.2010  . As per term and condition of hypothecation agreement after availing the loan the petitioner has paid Rs.1,66,500/- in between August-2010 to June-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  and approached for reschedulement  his loan account  in order to extend the repayment of loan only to enable the petitioner to clear up the loan amount.  But  it is a matter of great regreat that the O.Ps.  without looking to the approach of the petitioner at present are  trying to repossess the vehicle . Accordingly  the complainant rushed to the office of O.P no.1 and requested them to issue a statement of account , copy of agreement . But the O.P no.1 always took several pretest that  “ the system is out of order and net failure etc “  as well as  reluctant to give the copy of agreement , account statement  even any demand notice  .

                                That all on a sudden on dt.15.05.2013 the complainant received a demand notice from the O.P no.1 where the O.P no.1 arbitrarily and whimsically demanded  Rs.3,18,827/- . 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-S.C-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.

(a)not to claim the un lawful amount of Rs.3,18,827/-

(b)To give copy of agreement and account statement to the complainant .

(C)To pay compensation.

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

                        In the present dispute there are two numbers of O.Ps, ,out of which only O.P no.1 appeared through their advocate and filed their written version . O.P no.2 has been set-exparte vide order dt.02.12.2013.

                                The O.Pno.1 after appearance has filed the written version denying the allegation of the petitioner . In the written version the O.P.no.1 has taken the following pleas.

1This 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 and arbitration proceeding has already been initiated against the borrower . In view of initiation and pendency of Arbitration proceeding the present complaint is also not maintainable which has been indicated on the notice dt.15.05.2013

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

3.The petitioner is not a consumer since the petitioner has purchased the vehicle for commercial purpose .

4.Further it is stated by the O.P.no.1 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 regularly but also the payments made are irregular and have been made as per his sweet will .

5.That there is no illegally 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 other wise  the vehicle will be repossessed is also no illegality on the part of the O.Ps.

6.It is further submitted by the O.P.no.1 at no point of time the complainant had asked for re- schedulement .

 Similarly the storey that the copy of accounts statement  or agreement was not supplied to the complainant is completely baseless and false allegations .  

                                In view of the aforesaid facts and circumstances of the case the  O.P.no.1 prayed to dismissed the dispute treating the same as frivolous .  

                                After hearing we have perused the record  along with the documents and agreement copy 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 ?
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.Ps. ?
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 basing on the  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(a)- It is undisputed facts that the petitioner has availed the loan of Rs.2,10,000/- from the O.P.no.1 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.P.no.1 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.P.no.1 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.”

Another observation of Hon’ble National Commission reported in CLT-2014(3) –p-373 (Beverly park maintenance service Ltd Vrs. Kashmir Feb styles Pvt. Ltd, wherein it is held that

“ once complainant participated in proceeding for before the Arbitrator for the same relief ,proceeding for similar relief could not been initiated before consumer Fora “.

But in the present arbitration proceeding the petitioner has not participated as well as award by the Learned Arbitrator has not been passed. 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 the O.P.no.1. without considering for re-schedulement of loan account is trying  to take possession of the vehicle arbitrarily and demanding Rs.3,18,827/-              vide notice dt. 15.05.13. Further  the petitioner also has alleged that the O.P.no.1 has  failed to supply of statement of account, copy of agreement .  In this contest we verify the documents in details. There

is no single scrape of paper  in the record which will prove  that the petitioner has approached  the O.P.no.1 for the same in support of  his allegation. Similarly it is also the fact that the petitioner was a defaulter as well as contract period has already been expired.

                                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.P.no.1 is 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 of the copy of  outstanding statement from the O.P.no.1 Further the O.P.no.1 is 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.