Date of filing:-21/02/2017.
Date of Order:-12/09/2018.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM(COURT)
B A R G A R H.
Consumer Complaint No. 07 of 2017.
Rajendra Sahu, aged about 54(fifty four) years, Son of late Makardwaj Sahu, R/o-Bandutikra,Ward No.9(nine), P.o/P.s./Dist- Bargarh ………………………Complainant.
Vrs.
Mahindra & Mahindra Financial Service Ltd., through the Branch Manager, 1st floor, Sabat Town, Near Hotel Kaveri N.H.6, Asian High Way 46, Ainthapali, Sambalpur
………………………………………Opposite Party.
Counsel for the Parties:-
For the Complainant :- Sri S.P.Mahapatra, Advocate with other Advocates.
For the Opposite Party:- Sri A.K.Sahoo, Advocate with other Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.12/09/2018. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief facts of the case ;-
The case of the Complainant is that he has purchased one MM Bolero vehicle vide Regd No .OD-17-B-2168 bearing Chessis No. MA 1WG-2GHKD5J96726 and Engine No. GHD4J57199 in the month of November-2013 being financed by the Opposite Party and since then was paying installment till July 2016 but due to his severe illness could not pay further, consequently the Opposite Party forcibly snatched away the same vehicle from his possession in the month of September 2016 .
The further case of the Complainant, thereafter he met the Opposite Party and offered him Rs.50,000/-(Rupees fifty thousand)only and requested him to release the same to which the Opposite Party denied awaiting the approval of their head office .
Subsequently the Opposite Party asked the Complainant through a letter Dt.12.11.2016 to deposit an amount if Rs.1,15,991/-(Rupees one lakh fifteen thousand nine hundred ninety one)only within Dt.31.12.2016 to release the same which was received by the Complainant on Dt.15.11.2016 to which he showed his inability due to the demonetization by then, so again the Opposite Party instructed him to deposit an amount of Rs.1,15,000/-(Rupees one lakh fifteen thousand)only in shape of demand draft on or before Dt.31.12.2016, accordingly the Complainant approached the Opposite Party with a demand draft of the same amount but again he was refused with the same to receive consequently the Complainant served him with a pleader notice but neither he replied to the same nor released the said vehicle but instead of that the Complainant was served with a letter by the Opposite Party vide his letter No-377 Dt. 21.01.2017 that they are intending to sale the same by canceling the certificate of Registration.
And in furtherance to his case as per their agreement the Complainant was supposed to repay the loan in 48(forty eight) installments out of which he has already paid 32(thirty two) numbers of installments till July 2016, further he has submitted 48(forty eight) numbers of cheques in favor of the Opposite Party to facilitate him to draw against his loan and only Rs.2,44,000/-(Rupees two lakh forty four thousand)only was due on him against 16(sixteen) numbers of installments, thus he has filed the case before the Forum claiming the date of cause of action on Dt.30.12.2016 when the Opposite Party refused to release the vehicle and on Dt.14.02.2017, when the Complainant received a notice from the R.T.A. Bargarh regarding the cancellation of the certificate of Registration, and has prayed to direct the Opposite Party to release the Vehicle bearing Regd- No-17-B-2168 on payment of the balance outstanding amount due on him or in the alternative to refund the entire amount of Rs.5,23,000/-(Rupees five lakh twenty three thousand)only to him and has also claimed Rs.50,000/-(Rupees fifty thousand)only towards his mental agony and harassment caused to him along with Rs.15,000/-(Rupees fifteen thousand)only towards litigation expenses.
And also the Complainant has filed an interim petition along with the complaint petition u/s 13 (3)b praying therein to issue a direction to release the said vehicle in his favor and in that case he would pay the entire dues amounting to Rs.2,44,000/-(Rupees two lakh forty four thousand)only.
And in his support the Complainant has relied on the following Documents:-
Xerox copy of form No-37,of R.T.A..
Advocate Notice Dt.21.01.2017.
Letter to R/T.A. Bargarh dt.20.02.2017.
Letter to R.T.A.Bargarh Dt.06.01.2017.
Xerox Copy of the R.C.Book.
Xerox copy of Insurance.
Loan statement.
Notice from Mohindra finance, Sambalpur. Dt.12.11.2016.
Bank statements of Oriental bank Bgh,Branch .
Xerox copy of bank Draft of Rs.1,15,000/-(Rupees one lakh fifteen thousand)only Dt.30.12.2016.
Having gone through the complaint and the documents filed by the Complainant and on hearing his Counsel, the case was admitted and notice was served on the Opposite Party to appear and file his version and to release the said vehicle in his favor by receiving an amount of Rs.2,44,000/-(Rupees two lakh forty four thousand)only, in response he appeared through his Advocate and filed his version but did not comply with the said order of the Forum yet.
So far as the version of the Opposite Party is concerned it is all an only an evasive one stating therein that the Complainant is not a consumer hence is not maintainable in the Forum and further has denied to have any deficiencies in rendering service on his part, having saying that the Complainant has obtained a loan amounting to Rs.5,00,000/-(Rupees five lakh)only from the Opposite Party with a condition to repay an amount of Rs.6,78,860/-(Rupees six lakh seventy eight thousand eight hundred sixty)only (including interest ) in 48(forty eight) installment by executing a loan agreement bearing No-2858442 on Dt.26.10.2013, wherein he has agreed to repay loan with an additional charges of 3% (three percent) if installments remains outstanding.
And accordingly the Complainant was supposed to pay 31(thirty one) installments on or before Dt.12.09.2017, but he has only paid 30(thirty) numbers of installments hence was liable to pay an amount of Rs.86,260/-(Rupees eighty six thousand two hundred sixty)only with an additional late payments charges of Rs.23,461/-(Rupees twenty three thousand four hundred sixty one)only and future receivable installments amounting to Rs.1,58,180/-(Rupees one lakh fifty eight thousand one hundred eighty)only along with Rs.2,600/-(Rupees two thousand six hundred)only towards return of cheque charges, to which on their demand the Complainant expressed his inability for which the Opposite Party took away the said Vehicle with an information to the Police and also asked the Complainant to deposit the said dues amount and take back the same. Hence has claimed not to have caused any deficiencies in rendering service in any manner and further has made an averments that on Dt.28.11.2017, issued him with a notice to pay the said amount and to take back the Vehicle but as he did not take any step as such on Dt.27.12.2016 sold away the same for an amount of Rs.3,63,000/-(Rupees three lakh sixty three thousand)only and served him with a notice to pay the rest differential amount and in support of his case has relied on some documents as envisaged in Annexture A to E.
In the mean time on Dt.20.09.2017 the complainant filed an affidavit as evidence in support of his case as stated therein to which the Opposite Party filed his objection on Dt.06.12.2017 praying therein for cross examination of the deponent and was allowed for the same and accordingly on Dt.18.12.2017 was cross examined ,again subsequently there after the complainant filed another affidavit of one Haradhana Sahu to substantiate his case and was cross examined by the advocate for the Opposite Party on Dt.18.07.2018.
Having gone through the Complaint his evidence in the shape of affidavits of the Complainant and one witness in support of his case, the version and the documents filed by the Parties and on hearing their respective counsels. We are of the view that the following issues are to be examined to properly adjudicate the case .
Whether the complainant is a consumer and whether the case is maintainable in the present Forum in accordance with the Consumer protection Act 1986 ?
Whether there is deficiencies in rendering service to the Complainant on the part of the Opposite Party ?
Whether the Complainant is entitled to any relief
Firstly while dealing with the question as to whether the Complainant is a consumer and that the case is maintainable in the Forum, it reveals from the materials available in the record, that it is an admitted fact that the Complainant has obtained a loan from the Opposite Party with certain condition as has been envisaged in the agreement and also it reveals from the record that for any act of the Complainant he has been charged with some service charges in addition to the installments, thus he acquires a right of a consumer and service thereto, which it’self is factum of him being a consumer and any dispute arises in between them is to be sorted out by the Consumer Protection Act if it comes to it’s notice thus the case filed by the Complainant is a prerogative in his hands hence the same is very much maintainable in the Forum having being empowered with the provision of the Act, thus our answer to the issues is expressed in favor of the Complainant.
Secondly while dealing with the question as to whether the Opposite Party is deficient in rendering service to the Complainant. It has been observed that initially at the time of the admission of the case an interim order was passed by the Forum on the petition of the Complainant to release the vehicle in his favor but the order was not Complied with by the Opposite Party even though the Complainant was ready with cash to pay in accordance with same order neither took any initiative from his side to apprise the Forum regarding then status of the Vehicle.
In furtherance to our observation the complainant has prepared a demand draft in favor of the Opposite Party and has gone to the Opposite Party to pay the same but he did not receive and on the contrary asked him to deposit the entire amount of outstanding dues pending against him without assigning any reason to the same of course it is found from the copy of demand draft issued in favor of the Opposite Party is amounting to Rs.1,15,000/- (Rupees one lakh fifteen thousand)only though he was directed to pay Rs.2,44,000/- (Rupees two lakh forty four thousand)only but however it can be presumed as good gesture on the part of the Complainant to deduce that he is intending to pay the dues pending against him, to which he has clarified in his cross examination that he was not aware of the amount ordered to pay but on the other hand the Opposite Party has tried to play foul play with him by not responding him and by selling the same immediately without giving a reasonable opportunity to repay and instead has claimed to repay the differential amount which seems to be an arbitrary act on his part ,which amounts to deficiencies of service and unfair trade practice, further more to our scrutiny to the cross examination made to the Complainant and one of his witness no materials could be elucidated from them to substantiate their case as such keeping in view the very purpose of the enactment of the Act , since it is a benevolent provision to safe guard the interest of the consumer, our answer in the issue concerned is assertive to the case of the Complainant .
Thirdly to the issues No-3(three), since it is learnt from the Letter Dt. 28.02.2017 of the Opposite Party that the said Vehicle is already sold to somebody for an amount of Rs.3,63,000/-(Rupees three lakh sixty three thousand)only vide his Annexure-E though the Complainant was ready to repay his outstanding dues and also it has been observed from the account statement furnished by the Opposite Party that the Complainant has been paying the fixed installments till July 2016 and the failure of his subsequent payment was delayed for two months caused by his illness which he has apprised of to the Opposite Party. And in spite of his visit to the office of the Opposite Party with a demand draft worth of Rs.1,15,000/-(Rupees one lakh fifteen thousand)only with the direction of the Forum the Opposite Party has not taken care of, therefore taking care of all the episode of the facts and circumstances of the case we are of the view that the Complainant is entitled to the relief as sought for in the following manner, hence the order follows .
O R D E R.
Hence the Opposite Party is directed to refund the money paid by the Complainant against his 31(thirty one) numbers of Installments @ Rs.14,380/-(Rupees fourteen thousand three hundred eighty)only against the Loan obtained by him amounting to Rs.4,45,780/- (Rupees four lakh forty five thousand seven hundred eighty)only after deducting 10 % (ten percent) from such amount against the depreciation value and also directed to pay an amount of Rs.5,000/-(Rupees five thousand)only against his mental and physical harassment and Litigation expenses with in thirty days of the receipt of the order and in default of which the entire amount would carry an interest @ 9%(nine percent) per annum till the actual realization of the same.
The order is pronounced in the open Forum ,in the result the Complaint is allowed against the Opposite Party and the same is disposed off to-day i.e on Dt.12.09.2018.
Typed to my dictation
and corrected by me.
( Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree,
( Ajanta Subhadarsinee)
M e m b e r (W)
