10.....16.04.2021....
The complainant is present. Today is fixedfor delivery of final order. Final order containing 9 pages is ready. It is sealed, signed and delivered in open Forum.
Hence, it is ordered
That the complaint case be and same is allowed exparte against the opposite parties with cost Rs. 5,000.00 (Rs. Five thousand) only.
The O. Ps be directed to issue notice upon the Complainant by 30 days from the date of this order asking him to clear the due amount with interest and other
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charges, if any, as per hire purchase agreement up to 06.02.2020 by 30 days from the date of receipt of the notice.
The complainant be directed to pay the overdue installment/instalments with interest up to 6th February, 2020 with other charges, if any, as per hire purchase agreement within 30 days from the date of receipt of notice from the Ops. The OPs may also be directed to return the repossessed goods vehicle bearing no WB 95 6347 in roadworthy condition to the complainant on receipt of the installments along with interest and other charges, if any, as per hire purchase agreement No XVFPRAB 00002463399 dated 29th June 2018.
The O.Ps may also be directed to supply the original hire purchase agreement No XVFPRAB 00002463399 dated 29th June 2018 to the complainant by 30 days from the date of this order.
The OP Nos. 1, & 2 are also directed to pay Rs.25 ,000.00 (twenty five) only as compensation amount for harassment and mental agony within 45 days from the date of this order, failing which cost and compensation amount will bear simple interest @ 9% p.a. till full realization thereof.
The Ops are jointly and severally liable to comply the final order.
The Register- in- charge of this Commission is directed to send a copy of this judgment free of cost at once to the parties concerned by speed /registered post.
The Final order may also be available in the website : DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAES
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700144
C.C.NO. 62 OF 2020
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
05/10/2020 13/10/2020 16.04.2021
Present : President : Asish Kumar Senapati
Members : Jagadish Chandra Barman
Sangita Paul
Complainant:- : Shubhankar Ghosh. Son of – Subal Ghosh
Manikpur, Ghosh Para, Harinavi,
Sonarpur, South 24 Parganaes
West Bengal, Kolkata 700148
Versus
Opposite Party(s) : 1. Cholamandalam Investment and Finance Company Ltd. , Dare House, No 2, N. S. C. Bose Road, Parrys, Chennai, 600001, Tamilnadu. India
2. Cholamandalam Investment and Finance Company Ltd. ,Ist Floor, Holding no- 830, Kulpi Road, Dist 24 Parganaes, Baruipur, Kolkata 700144. West Bengal
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Jagadish Chandra Barman, Member
The facts leading to the filing of the instant case by the complainant may be epitomized as follows:
In June 2018, the complainant applied for a financial loan of Rs. 16, 39,819.00 only to the opposite party for purchasing a truck being a goods vehicle of worthing Rs. 19, 00,000.00 only for self employment as the complainant is a unemployed man. He enclosed therewith photo copies of his voter identity card, aadhar card, madhyamik & higher secondary pass document, etc. with the loan application.
Earlier, representatives of the opposite party informed about the company as a very fair company and fair financier. It was also assured that there would be signed an agreement for higher purchase between the company and him. Another terms and conditions were also settled verbally between the O. P. and the complainant as follows
1] The company would grant a loan of Rs. 16, 39,819.00 only and the complainant would arrange remaining balance i. e., Rs. 2, 60,181.00 only to purchase a truck of Rs. 19, 00,000.00 only.
2] The complainant would repay the higher purchase loan in 48 monthly installments at the rate of Rs. 36,964.00 only with interest from August 2018 to meet entire amount of loan.
3] The company should not terminate the agreement for higher purchase loan signed between the company and him without serving prior notice upon the complainant.
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4] The company would never take wrongful possession of the truck in case of failure to repay any installment. In case of failure to repay monthly installment, the company would serve notice.
5] In case of repossession, the company would never sale the said truck to any third party without serving a notice upon the complainant at least 30 days before.
The complainant signed on 28th June 2018 upon all documents including the higher purchase loan agreement in good faith but as per statement of the complainant, the O. P. did not supply the complainant any copy of signed documents .
As per statement, the complainant had purchased the truck with the sanctioned loan of the O.P. of Rs. 16, 39,819.00 only and paid the balance amount i. e., Rs. 2,60,181.00 only to the seller of the truck namely Ashoke Leyland Limited; but there is no receipt/document of payment issued either by the company or truck seller of Rs. 2,60,181.00 only. Thereafter, the transport department, Govt. of West Bengal, granted temporary permission on 8th August 2018 for a period of 5 years i.e., 9th August 2018 to 8th August 2023 in favour of the complainant. The vehicle was numbered as WB 95 6347. The complainant received the Fitment/Test Certificate, Sale Certificate no ADPL/18 19/0241 dated 7/7/2018, Initial Certificate of Compliance with Pollution Standard from ASHOKE LAYLAND. Motor Policy Schedule cum Certificate of Insurance was also issued to the complainant on behalf of Chola MS.
As per terms and conditions of the agreement for higher purchase No XVFPRAB 00002463399, the complainant started to repay the installment amount @ Rs. 36,964.00 only since August 2018.The complainant had paid in total Rs. 5,91,568.00 (Rs. Five lac ninety one thousand five hundred and sixty eight )only though the complainant could not pay on schedule date of repayment
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few times and the complainant had to repay more than the instalment amount of Rs. 36,964.00. It is clearly stated in the account statement issued by the Company (Chola) on 20/01/2020. It is also stated there that there was three times repossession of the truck during the period of 17 monthly installments. The repossession was also released after payment of repossession charge of Rs. 9,440.00 only each time with installment amount. The complainant also paid a substantial amount of Rs. 1, 20,000.00 only on 26.12.2019. The complainant stated in his petition that no notice was served before repossession and default payment.
Suddenly, on 6th February 2020, the opposite party came to complainant and snatched away the truck no WB 95 6347 forcefully and kept in custody. The O.P. also demanded Rs. 6, 00,000.00 only to take back the vehicle. The complainant met and requested the O. P. several times to release the truck but in vain. Mr. N. Anand, an advocate of the O. P. wrote on 27th July 2020 from Chennai to the complainant. It was clearly stated in the advocates letter that the loan of Rs. 16, 39,819.00 only was granted to the complainant to repay in 12 installments. As per his information, the agreement was also terminated on 11th February 2020 by the O. P. and hence the said truck was sold on June 26th June 2020 to another party by Rs. 6, 80,000.00 only. The advocate of the O. P. also claimed Rs. 7, 58,463. 00 only from the complainant .
The advocate of the complainant, on 02/09/2020, Mr. Saiba Ranjan Bakshi, replied as to the allegation mentioned in the letter of Mr. N. Anand, and denied all matters, disputes and noted down that no notice of termination of the agreement, sale of the truck and default to repay the installment was sent to the complainant. Complainants advocate also reported about payment done and requested to return the said truck to the complainant soon and otherwise, the complainant might take shelter of law in the appropriate court.
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The complainant also received a letter on 16th September 2020 from an advocate of Barasat Judges Court, namely Subhash Chandra Das. of the O. P. and the advocate stated in his letter that the complainant had sold the truck bearing no WB 956347 jointly to Cholamandalam Investment and Finance Co. Ltd. as well as to Mr. Bijay Das, son of J. Das, B 3, Adibasi Para, Kalyani, Dist- Nadia , 741235. It is also stated in his letter that the complainant had signed voluntarily upon the form 29, 30 and published an advertisement for sale. It is also mentioned in the letter that as the complainant did not raise any objection to the R.A. Dakshin Dinajpur, it would be presumed that the complainant had afforded consent upon the change of ownership of the vehicle no WB 95 6347.It means the said truck is under the custody of O. Ps.
On October 21st 2020, the complainant wrote a letter to the Registering Authority, Motor Vehicle Deptt., Dakshin Dinajpur, R.T.O., West Bengal. In his letter, the complainant stated to R. T. O. that his truck bearing no WM95 6347 had been repossessed illegally, arbitrarily & forcefully by the company and he had not sold the truck to anyone. The transport authority was also requested not to register the said truck in anybodys name. Copies were also served to the O. Ps.
Without getting any relief from the O. P.s., the matter was placed before this learned District Consumer Disputes Redressal Commission, Baruipur, Dakshin 24 Parganaes on 05/10/2020. It was admitted on 13/10/2020 after perusal of the records and notices were served from this Commission on 04/11/2020 and was delivered as per postal truck report on 07.11.2020 upon O. P. no 1 and on 09/11/2020 to the Opposite Party no 2.
It is prayed in the prayer of the complainant.
A] to pass an order directing the opposite party either to return the said truck to the complainant or to pay to the complainant Rs. 19, 000, 00.00 only;
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B] to pass an order directing the opposite party to pay Rs. 10, 000, 00.00 only as compensation amount for loss and injury suffered;
C] to pass an order directing the opposite party to pay Rs. 1, 00,000.00 only for punitive damages;
D] to pass an order directing the opposite party to pay cost of the proceeding;
E] to pass an order directing the opposite party as the Honble Commission may deem fit and proper.
Through the notices, this Commission directed the Opposite parties to submit their written version on 18/12/2020; but none of them was present and no written version was submitted. Hence this complaint case is heard Ex parte. Then the complainant was directed to submit the evidences on affidavit on 11/01/2021 and the complainant accordingly filed evidences on affidavit. He was also directed to file BNA on 11/02/2021and the complainant filed his BNA and 16/03/2021 was fixed for Ex parte argument. The complainant was present through his learned advocate on 16/03/2021. Learned lawyer was present on the stipulated date and shown his relevant documents and argued in favour of the complainant for justice. It is fixed now for final order.
Upon the averments of the complainant, the following points are formulated for the consideration.
POINTS FOR DETERMINATION
1]. Is the complainant a consumer?
2] Are the O. Ps. guilty of deficiency of services and unfair trade practice as alleged by the complainant?
3] Is the complainant entitled to get relief /relieves as prayed for?
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EVIDENCE OF THE COMPLAINANT
On 11/01/2021, the complainant filed evidences on affidavit.
DECICIONS WITH REASONS.
Point Nos. 1, 2, & 3:
On perusal of the account statement from 29/6/2018 to21/01/2020 issued by the opposite party on 21.01.2020 to the complainant, it is clear to us that the complainant has paid Rs. 5,91,568.00 (Rs. Five lac ninety one thousand five hundred and sixty eight )only. The petitioner has registered this truck in his own name bearing registration no WB 95 6345 issued by the Motor vehicle Deptt., Govt. of West Bengal to use for the purpose of earning his livelihood by means of self employment. Hence, it is clear to us that the complainant is a consumer under section 7(a) of the Consumer Protection Act 2019.
The O. P., on the other hand, made repossession forcefully & arbitrarily the truck no- WB 95 6345 on 6th Feb. 2020 at his own will, terminated the agreement on 11th Feb. 2020, as well as sold the vehicle on 26th June 2020 by Rs. 6,80,000.00 only. O. Ps. did not serve any notice in case of default to pay installment,before making repossession of the truck, termination of agreement, and selling of the truck etc. Service of notices in all matters is statutory in the interest of public service. This unlawful and unethical procedure followed by the O. P. can be said to be against public policy and against the public interest. When the said truck was repossessed by the O. P., the complainant paid Rs. 5, 91,568.00 (Rs. Five lac ninety one thousand five hundred and sixty eight) only and therefore, repossession and reselling of the said truck was not proper and amounted to deficiency of service as per Sec 2 (11) and unfair trade practice as per Section 2(47) of the Consumer Protection Act 2019 occurred on behalf of the opposite party no. 1, & 2. Hence, the complainant is entitled to get reliefs as prayed for.
Even after receiving the notices from this Commission on 07.11.2020 by O. P. no 1 and on 09/11/2020 by Opposite Party no 2. , the O. Ps. did not appear and submit written version before this learned Commission on any stipulated dates of this instant complaint case. So this C. C. Case is remained unchallenged. The O. Ps. also know it very well that they have nothing to challenge this instant case. Hence, the O. Ps. are jointly /severally liable for deficiency of service and unfair trade practice.
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The complainant may be directed to pay the overdue installment/instalments up to 6th February, 2020 with repossession charges & due installment /instalments within 30 days from the date of receipt of notice from the Ops. The O. Ps may be directed issue notice upon the Complainant by 30 days from the date of this order asking him to clear the due amount with interest up to 06.02.2020 by 30 days from the date of receipt of the notice. The OPs may also be directed to return the repossessed goods vehicle bearing no WB 95 6347 in roadworthy condition to the complainant on receipt of the installments along with interest and other charges, if any, as per hire purchase agreement No XVFPRAB 00002463399 dated 29th June 2018. The Ops shall not claim any instalment/interest during the period from 7 th February, 2020 to the date of handing over the vehicle to the complainant on receipt of due amount , as mentioned above because the OPs took over possession of the vehicle and sold it without any intimation/notice to the complainant.
The O.Ps may also be directed to supply the original copy of hire purchase agreement No XVFPRAB 00002463399 signed on 29th June 2018 to the complainant by 30 days from the date of this order.
It is very pertinent to note down here that all the activities like repossession of the truck in question, termination of the agreement and selling/purchasing are done earlier keeping the complainant in dark. The O. Ps. did not follow the guidelines formulated by the Honble National Consumer Disputes Redressal Commission in page 14 as well as the Repossession Procedure under Code of Conduct mentioned in page 19 in the case of Citicorp Maruti Finance Ltd. Vs. Vijaylaxmi, 27the July, 2007. All these activities amounted to deficiency of service as per Sec 2 (11) and unfair trade practice as per Section 2(47) of the Consumer Protection Act 2019 occurred on behalf of the opposite party no. 1, & 2.
In the result, the case is succeeded.
Hence, it is
ORDERED
That the complaint case be and same is allowed exparte against the opposite parties with cost Rs. 5,000.00 (Rs. Five thousand) only.
The O. Ps be directed to issue notice upon the Complainant by 30 days from the date of this order asking him to clear the due amount with interest and other
9
charges, if any, as per hire purchase agreement up to 06.02.2020 by 30 days from the date of receipt of the notice.
The complainant be directed to pay the overdue installment/instalments with interest up to 6th February, 2020 with other charges, if any, as per hire purchase agreement within 30 days from the date of receipt of notice from the Ops. The OPs may also be directed to return the repossessed goods vehicle bearing no.WB 95 6347 in roadworthy condition to the complainant on receipt of the installments along with interest and other charges, if any, as per hire purchase agreement No XVFPRAB 00002463399 dated 29th June 2018.
The O.Ps may also be directed to supply the original hire purchase agreement No.XVFPRAB 00002463399 dated 29th June 2018 to the complainant by 30 days from the date of this order.
The OP Nos. 1, & 2 are also directed to pay Rs.25 ,000.00 (twenty five) only as compensation amount for harassment and mental agony within 45 days from the date of this order, failing which cost and compensation amount will bear simple interest @ 9% p.a. till full realization thereof.
The Ops are jointly and severally liable to comply the final order.
The Register in charge of this Commission is directed to send a copy of this judgment free of cost at once to the parties concerned by speed /registered post.
The Final order may also be available in the website : www.confonet.nic.in
Dictated and directed by me
(Jagadish Chandra Barman)
Member
