Orissa

Cuttak

CC/54/2019

Dharanidhar Biswal - Complainant(s)

Versus

Branch Manager,Hinduja Leyland Finance Ltd - Opp.Party(s)

U N Sahoo & associates

26 May 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                                   C.C.No.54/2019

Dharanidhar Biswal,

S/O: Ratnakar Biswal,At:Ghaisanthpur,

P.O:Bainchua,Via:Kotsahi,PS:Tangi,

Dist:Cuttack.                                                                             ... Complainant.

 

                                                Vrs.

1.        Branch Manager,Hinduja Leyland Finance Ltd.,

Cuttack Branch Office,Manisha Plaza,

Arunodaya Market,Cuttack.

 

2.        Regional Manager,Hinduja Leyland Finance Ltd.,

3^rd Floor,Samsung Plaza,392,BJB Nagar,

Lewis Road,Bhubanenswar,Dist:Khurda,

Odisha.,... Opp. Parties.

                       

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    19.08.2021

Date of Order:  26.05.2022

 

For the complainant:          Mr. U.Sahoo,Adv. & Associates.

For the O.Ps.       :                Mr. A.K.Samal,Advocate.

 

Sri Debasish Nayak,President.

 

            The case of the complainant as made out from the complaint petition in short is that he had purchased a Pick Up Van by incurring loan which was seized by the recovery squad of the O.P at Nakhara near Cuttack.  The complainant alleges that the O.P had committed gross deficiency in service by taking forcible possession of the vehicle bearing Regd. No.OD-05-AE-2824.  The complainant in order to earn his daily livelihood and for his self-employment had purchased the said Pick Up Van by obtaining financial assistance from the O.P Company after executing an agreement vide contract no.ORCUCUSV00333 dt.9.11.17.  The complainant had incurred loan of Rs.5,16,000/- and interest thereto Rs.2,14,140/- .  The total agreement value is thus Rs.7,30,140/- which is to be cleared in 59 instalments @ Rs.12,431/- per month.  The expiry of the agreement was on 15.10.2022.  While getting the vehicle and plying it, the complainant fell ill for which he could not be able to pay three of  the E.M.Is and had made a request to that effect to O.P No.1 & 2.  But the O.Ps without giving any prior notice or intimation had seized the said Pick Up Van of the complainant on 14.5.19 at Nakhara.  It is for this, the complainant was deprived of his livelihood and inspite of his efforts he could not get back the vehicle.  According to him, the arrear E.M.Is outstanding is Rs.24,571/- till 29.1.19 for which he had deposited Rs.39,510/- on 30.1.19,13.3.19,18.4.19 and 30.4.19 and only three more instalments are to be paid to the O.Ps.  As such, when the vehicle was not released by the O.Ps, the complainant has filed this case praying for a direction to the O.Ps to pay Rs.1,00,000/- towards compensation for his mental agony and harassment together with Rs.50,000/- towards litigation expenses.

2.         The O.Ps have contested this case and have filed written version.  The O.Ps have averred that as there was no deficiency in service the complaint petition being not maintainable and is liable to be dismissed.  They admit about the purchase of the Pick Up Van by the complainant and the loan incurred by him.  They also admit about the total amount payable in 59 instalments i.e. Rs.7,30,140/- @ Rs.12,431/- for 11 months, @ Rs.12,375/- for 47 months and also Rs.12,394/- for one month.  The complainant had paid some of the instalments regularly but started defaulting in paying the E.M.Is.  Thus he was liable to pay the arrear E.M.Is along with delay payment charges and other charges to the O.P Company.  According to them, the vehicle was earlier taken to possession but by virtue of the order dt.1.7.19 of this Commission, the same was released and in the said order, the complainant was directed to clear the outstanding dues.  But till 26.8.19 the complainant had not paid any outstanding dues for which the O.P Company had sent a registered letter to the complainant demanding the outstanding dues of Rs.63,281/- which was arrear by then.  But still the complainant remained silent.  Thus, the O.Ps have prayed to dismiss the complaint petition as filed.

3.         From the averments as available in the complaint petition and the written version in this case, this Commission feels it proper to settle the following issues in order to arrive at a proper conclusion.

            i.          Whether the case as filed is maintainable?

            ii.         Whether the complainant had any cause of action to file this case?

            iii.        Whether there was any deficiency in service on the part of the O.Ps.

            iv.        Whether the O.Ps had adopted any unfair trade practice?

            v.         Whether the complainant is entitled to the relief as claimed by him?

Issue No.3 & 4.

            For the sake of convenience issues No.3 & 4 are taken up together first for consideration in this case.  Admittedly the complainant had purchased his Pick Up Van to earn his livelihood and had incurred loan from the O.Ps.  It is also admitted that the complainant was to clear a total amount of Rs.7,30,140/-.  It is also admitted by the complainant that he was a defaulter in paying the E.M.Is as agreed upon.  The complainant claims that without any notice inspite of his request, the O.Ps had repossessed his vehicle forcibly while his vehicle was plying at Nakhara area near Cuttack.  In this regard, the O.Ps have draw attention towards a pertinent decision of the Hon’ble Apex Court in the case of Magma Finance Corporation Ltd. Rs. Rajesh Kumar Tiwari, reported in 2020(4) CPR 197(SC) in which the Hon’ble Supreme Court of India has held as follows:-

            “Repossession of a vehicle under hire, in accordance with terms and conditions of a hire purchase agreement, upon default in payment of hire instalments and refusal to release the same on mere assurance of complainant to clear outstanding arrears of hire instalments and pay future instalments in time, does not constitute “deficiency in service”.

            It was also observed by the Hon’ble Supreme ?Court that “Hire-purchase agreement- Default in payment of instalments-Repossession and sale of vehicle by financer-Goods are let out on hire under a Hire-Purchase Agreement, with an option to purchase, in accordance with the terms and conditions of the Hire-Purchase Agreement- Hirer simply pays for use of the goods and option to purchase the them-Until option to purchase is exercised by hirer, upon payment of all amounts agreed upon between hirer and financer, financer continues to be owner of gods being subject of hire purchase- Till such time hirer remains a trustee and/or bailee of goods covered by Hire Purchase Agreement-Financer continues to remain owner of a vehicle, covered by a hire purchase agreement till all hire instalments are paid and hirer exercises option to purchase-When Financer takes repossession of a vehicle under hire, upon default by hirer in payment of hire instalments, Financer takes repossession of Financer’s own vehicle- When agreement between financer and hirer permits Financer to take repossession of a vehicle financed by financer, there is no legal impediment to financer taking repossession of vehicle-When possession of vehicle is taken, Financer cannot be said to have committed theft-Even a loan transaction, secured by right of seizure of a financed vehicle confers license to Financer to seize the vehicle”.

In an another decision of Hon’ble National Consumer Commission , New Delhi in M/s. Indusind Bank Ltd. Vrs. Shri Avtar Singh, reported in 2013 (2) CPR 548 has held as follows:-

            “Fact of Forcibly possessing of vehicle has been denied by the O.P in its written statement and there is no evidence on record filed by the complainant to prove the fact that vehicle was forcibly removed by the O.P No.1 from the village of the complainant.  No FIR was filed against the O.P”.

            Moreover in the instant case, the complainant had filed a Misc. Petition praying this learned commission to direct the O.Ps to release the vehicle and on hearing the said petition, this learned Commission vide order dt.01.07.2019 directed the O.Ps to release the seized veh8icle in favour of the complainant upon receipt of Up-to-date EMIs and though the O.Ps was ready to comply the said order of this learned commission, but the complainant did not show any inclination to take release of the vehicle.

            Hence keeping in mind the cited decisions, it can never be said here in this case that the O.Ps had committed any deficiency in service by re-possessing the vehicle of the complainant when the complainant became a wilful defaulter.  As such, it can also never be said that the O.Ps had adopted unfair trade practice.  Accordingly both these two pertinent issues are answered in favour of the O.Ps.

Issues No.1 & 2.

            From the above discussions, it can never be said here that the complainant has a cause of action to bring in this case and his case is not maintainable.  Thus, these two issues are also answered in the negative.

Issue No.5.

From the above discussions, it can well be concluded here that the complainant is not at all entitled to the reliefs as sought for by him.  Hence it is so ordered;

                                                            ORDER

            The case is dismissed on contest against the O.Ps but as regards the facts and circumstances of the case without any cost.

            Order pronounced in the open court on the 26^th day of May,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                                                        

                                                                                                                            

                                                                                                                              Sri Debasish Nayak

                                                                                                                                        President

                                                                                                                       

                                                                                                                            

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member.