MR. PRAVAT KUMAR PADHI, PRESIDENT :-
Complainant has filed C.C.Case No. 180/2023 U/s-35 of C.P.Act seeking following relief:
The Hon”ble Court may graciously be pleased to admit the complaint case issue notice to the Opp. Party calling upon then to file a show cause regarding seizure of vehicle Swaraj Tractor, Engine No. RNB2KGAO771 and Chasis No.,MBNAS48ABNTFS6541 is legal and vehicle be released in favour of the complainant in accordance with law and pay the compensation as per law.
Brief fact of the Complainant is that ;-
The Opp. party No 1 is the finance company office at Cuttack and the Opp.parties RTO,Kendrapara where the vehicle has not yet been registered due to negligence of Opp.No.1 and deficiency of service of Opp.No.1.
The complainant seeks to challenge the illegal seizure of Tractor by the Opp. partyNo.1 on 04.11.23 of Swaraj tractor, Engine No. RNB2KGAO771 and Chasis No., MBNAS48ABNTFS6541 due to defaulted EMI of Rs.14,464/- per month and total EMI defaulted 4 installments and said Swaraj Tractor 04.11.2023 which was detained by the Opp.Party No1 which is illegal as per the decision of the Hon’ble apex court as well as this Hon’ble Forum.
The Complainant seeks to challenge the illegal action of the Opp. Parties in seizing the vehicle without any notice and any justifiable reason and taking recourse of law without making proper inventory, which amounts to gross deficiency in service and unfair trade practice which is against the observation of the Hon’ble Apex court.
The Complainant approached that vehicle might have been sold to the other person may be mishandled for which he may face financial loss and the complainant apprehends that the cheque may be misutilized.
For the reason stated above needs interference of the Hon’ble Court Commissions the complainant harassed by the Opp.Party and again and suffered financial loss and mental agony and malafide action of the Opp.Party , the Complainant entitled for cost.
Notice to Opp.No.1 & 2 were sent by Regd.Post. The Opp.PartyNo.1 filed his written version ,R.T.O., Kendrapara has not filed any written version. Notice to Opp.Party No.3 was sent as per dtd.10.01.2024 but the Opp.Party No.3 did not appear and in the meantime about 4(four) months has passed and as per the provision of C.P.Act written version should be filed within 45 days from the date of receipt of notice and C,C,case should be disposed of within 90 days. So without awaiting the written version of Opp.Party No.1 we proceed to dispose of C.C.Case on the basis of materials available on record.
The Opp.Party No.1 has filed his written version and stated as under-
That, true facts of the case are that, the complainant is a customer of the Opp.No.1 and purchased a Tractor vide Engine No. RNB2KGAO771 and Chasis No., MBNAS48ABNTFS6541 under the Finance of Opp.No.1 and the Opp.Party No.,1 after accepting the proposal of complainant sanctioned Rs.6,03,402/- (Rupees Six lakhs three thousand and four hundred two) only and accordingly loan cum- Hypothecation Agreement on dtd. 24.08.2023 bearing agreement No. FOO35N470208220306 has been executed in between the complainant and Opp.PartyNo,.1 subject to terms and condition.
The repayment sum is Rs.8,73,840.00 against the said Tractor after calculation with interest and the complainant have to pay the installments and taken 60 months scheme and the repayment schedule also handed over to the complainant by the Opp.Party No.1.
It is out of place to mention here that after taking possession of the SWARAJ -PTL-843 TRACTOR the complainant did not pay the installment dues despite of repeated request and notice sent by the Opp. PartyNo.1 and the complaint committed default in making payment of the loan and the nonpayment of the loan installments on the part of the complainant constituted an event of Default under the agreement and as a consequence the Opp.No.2 has become entitled to recall the entire outstanding under the agreement and shall take possession of the asset, sell the same and appropriate sale proceeds the roof gains the outstanding of the complainants.
The Opp.Partuy No.1 on dtd.22.09.2023 issued a legal notice to the complainant and several times without no contacted over phone to the complainant, but the complainant did not turn off but turned deaf ear .
The Article 9.1.2 of the loan agreement gives power to the financer to repossess she asset in the event of default by the borrower,
The Opp.Party No.1 finding no other alternative was forced to sale the hypothecated vehicle to a third party on dtd.28.11.2023 on auction sale basis. Opp.Party No.1 also intimated (Pre sale notice ) to the complainant by the vide letter dtd.13.11.2023.Calling upon him to pay the balance deficit amount of within 7 days of receipt of the letter.
The counsel for complainant has relied on the order dtd.23.11.2012 of the Hon’ble HIGH Court passed on W.P.(C) No. 18349 to 18356 /2012 where in Hon’ble High Court of Odisha has held that auction of vehicle without following 51(s) of M.V.Act is illegal.
On the contraray counsel for Ops have relied on the decision of Hon’ble National Commission–III 1995 (CPJ) 58 in F.A.No.315/1993 wherein Hon’ble National Court has held
“The Complainant committed defaults in the payment of monthly hire giving a right to the O.P. to terminate the agreement without notice and to forthwith retake and recover possession of the said vehicle. The exercise of right under the Hire Purchase Agreement cannot be construed as a deficiency in service.’
“The exercise of right by the Appellant herein in accordance with the terms and conditions of the Hire Purchase Agreement cannot be considered as any negligence on the part of the O.P. and the Appellant cannot also be branded as being guilty of any deficient in service.”
The counsel for O.P. has further relief on the decision of Hon’ble National Commission -III 1995 CPZ 37 (N.C.) where in Hon’ble National Court held :
- Consumer Protection Act,1986-Section2(1) (g) -Deficiency in Service-Evidence adduced-Whether has any weightage –(No) .
So we have examined both the judgments of Hon’ble National Commission as well as order dtd.22.11.2012 of Hon’ble High Court of Odisha cited above, no doubt auctioning the vehicle without following the procedure stipulated U/s-51 (5) of C.P.Act is illegal but cannot be treated as deficiency in service and our hand are right to give relief where there is no deficiency in service.
We are in complete agreement with the decision of Hon’ble National Commission without regard deficiency in service and proper notice as per the decision cited above and we find no fault on the part of O.P.N/.1.
The O.P. No.3 is the dealer of the vehicle who has sold the vehicle to complainant and not registered the vehicle section 41 of M.V.Act stipulated as under:-
- An application by or on behalf of the owner of the motor vehicle for registration shall be in such form and shall be accompanied by such documents, particulars and information and shall be made within such period as maybe prescribed by the Central Government.
Provided that where a motor vehicle is jointly owned by more persons than one, the application shall be made by one of them on behalf of all the owners and such applicant shall be deemed to be the owner of the motor vehicle for the purposes of this Act.
(Provided further that in the case of a new motor vehicle the applications for registration in the State shall be made by the dealer of such motor vehicle if the new motor vehicle is being registered in the some state in which the dealer is situated.)
So in view of Section-41 of M.V.Act, the O.P.No.3 should have registered the vehicle in favour of the complainant before handling over the vehicle. So the O.P.No.3 has violated the provision of Section 41 of M.V.Act which amounts in deficiency in service and Un fair Trade process as stipulated U/S 2(11) (47) of C.P.Act.2019.
We therefore direct the O.P.No.3 to pay compensation of Rs.50,000/- towards mental agony for not registering the vehicle in violation of Section-41 and we also impose cost of Rs.5000/- towards cost of litigation.
With the aforesaid observation and direction the C.C.Case No.180/23 is allowed and accordingly disposed off.
Issue extract of the order to the parties for compliance.
Pronounced in the open Commission, on this the 1st day of May ,2024
I, agree.
Sd/- Sd/-
MEMBER PRESIDENT
