BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.440 of 2016

Date of Instt. 24.10.2016

Date of Decision: 13.03.2018

Bevi aged 45 years W/o Balvir Singh R/o Village Parra, Tehsil and District Jalandhar.

..........Complainant

Versus

1. Cholamandlam Investment and Finance Company Ltd., 20 Pensar Complex, Vishal Mega Mart, G.T. Road, Jalandhar through its Managing Director.

2. The Managing Director, Cholamandlam Investment and Finance Company Ltd, 20 Pensar Complex, Vishal Mega Mart, G.T. Road, Jalandhar.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Gurvinder Arora, Adv Counsel for the Complainant.

Sh. AK Arora, Adv Counsel for the OP No.1 and 2.

Order

Karnail Singh (President)

1. This complaint is presented by the complainant, wherein alleged that the complainant has purchased one Tata Magic Vehicle bearing No.PB08-CP-9138, which was financed through the OPs. The complainant had paid an earnest money of Rs.80,000/- (down payment) to the OPs for the purchase of the said vehicle and the remaining amount was to be paid in four years of installment of Rs.10,000/- per month, which means that the total price of the vehicle was Rs.5,60,000/-, which includes all sort of interest and charges, which was to be paid within 4 years. The complainant had been paying the installments regularly and without any default and he has paid about Rs.3,00,000/- in installments to the OPs and the last installment was made in March 2016, vide receipt dated 17.03.2016 worth Rs.10,000/-. Thereafter, the OPs started pressurizing the complainant to pay the remaining amount in lump sum. The complainant told the OPs that she is poor lady and the said vehicle was purchased by her for her husband Balvir Singh, who is plying the said vehicle for his livelihood. However, the OPs refused to accept the installments and on 26.04.2016, the representatives of the OPs took the vehicle from the house of the complainant forcible and illegally.

2. That the complainant has also received a notice from the OPs on 28.04.2016, vide which the OPs have stated that they are going to sell the said vehicle and they are making an outstanding amount of Rs.1,97,151.70/-. The said statement of account is illegally made by the OP, though no such amount is outstanding against the complainant. Even otherwise, the complainant has always been ready and willing to pay the due installments along with the penal interest if any, though the complainant is not at fault to deposit the said installments with delay as the OPs have refused to accept the installments with an evil mind to sell the vehicle of the complainant at throw away price. The OPs are threatening to sell the said vehicle illegally to some third person and in case it happens so, the price of the vehicle to the tune of Rs.3,80,000/- paid by him will be wasted and the livelihood of the complainant will be lost. The complainant has suffered mental tension, loss of business due to taking away of the vehicle by the OPs since 26.04.2016 and they did not return back despite the various requests made by the complainant to do so. The loss of the complainant is immense, but he is seeking the loss to the tune of Rs.4,00,000/- from the OPs due to mental tension, harassment, loss of business etc. on account of deficiency in services and unfair trade practice on the part of the OPs and accordingly, a cause of actions accrued to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to return the vehicle bearing No.PB08-CP-9138 to the complainant with immediate effect and the OPs may further kindly be directed to pay damages to the tune of Rs.4,00,000/- on account of mental tension, harassment, business loss of the complainant on account of deficiency in service and unfair trade practice on the part of the OPs.

3. Notice of the complaint was given to the OPs and accordingly, both the OPs appeared through their counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable, since the subject matter of the complaint i.e. the vehicle in question has already been sold by the OPs to Sh. Karanvir Singh S/o Sh. Raghvir Singh, after giving due notice to the complainant. The complainant had failed to pay the loan installments after repeated notices and reminders by the OP. The sale proceeds of the said vehicle has been adjusted in the loan account of the complainant and now a sum of Rs.45,497/- as on 27.06.2016 is outstanding due in the book of account of the OPs maintained by the OPs in the usual and ordinary course of business. Therefore, the present complaint become infructuous and the same is liable to be dismissed. It is further alleged that the complainant has concealed the material facts from the Forum and as such, the present complaint is not maintainable, rather in reality, the husband of the complainant realizing that he cannot repay the loan installment and he himself handed over the loan vehicle to the company without any pressure or force. Before seizing the said vehicle, OP informed the Local Police Station, moreover, the husband of the complainant himself accompanied with the agent of the OP to Dilbagh Singh Parking Yard for parking the said vehicle and signed the inventory of the vehicle without any force or coercion. The OP gave due intimation to the complainant, vide a notice dated 28.04.2016 regarding seizing of vehicle and the outstanding amount due against the complainant. In the said notice, it was clearly stated that the complainant has to pay the outstanding amount within seven days of the receipt of the aforesaid notice, failing which the OPs will be constrained to initiate the sale of the vehicle and the sale proceeds of the said vehicle will be adjusted in the loan account of the complainant. The complainant never responded to the said notice nor paid outstanding amount, rather kept mum for the period for more than seven months and filed the present complaint to harass the OPs. It is further alleged that the OPs are providing commercial vehicle loan to its customer. The complainant had taken the loan from the OP for the purchase of the vehicle i.e. Tata Magic vehicle, which was used by the complainant for commercial purpose only. Therefore, the complainant is not a 'consumer' as defined under 'The Consumer Protection Act', hence, this Forum has no jurisdiction to try and entertain the present complaint even there is an agreement and wherein Arbitration Clause is incorporated and according to Arbitration Clause, any dispute between the parties regarding to loan amount, the matter shall be referred to Arbitration and as such, this Forum has no jurisdiction to entertain the present complaint. On merits, the factum in regard to purchase and getting a loan of the vehicle is admitted, but the remaining allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove the case of the complainant, the complainant herself tendered into evidence her duly sworn affidavit Ex.CA alongwith documents Mark C-1 to Mark C-23 and then closed the evidence.

5. Similarly, counsel for OP No.1 and 2 tendered into evidence affidavit Ex.OA alongwith documents Ex.O-1 to Ex.O-14 and then closed the evidence on behalf of the OP No.1 and 2.

6. We bestowed our thoughtful consideration to submissions made by respective counsel for the parties and also gone through the case file very minutely.

7. In this complaint, the version of the complainant is that she had purchased one Tata Magic vehicle bearing No.PB08-CP-9138 and at the time of purchase, a down payment of Rs.80,000/- was paid to the OP and remaining was financed from the OP and the total price of the vehicle was Rs.5,60,000/- and it was agreed that the complainant will pay Rs.10,000/- per month as an installment and accordingly, the complainant deposited about Rs.3,00,000/- in installment and last installment paid on 17.03.2016 i.e. Rs.10,000/-, despite that the OPs pressurizing the complainant to pay the entire remaining amount in lump-sum, but the complainant being a poor lady could not able to pay the entire amount in lump-sum and upon that the OP refused to accept the installment for the month 26.04.2016 and thereafter, the OP took the vehicle forcibly and illegally from the house of the complainant and further OPs are threatening to sell the said vehicle illegally to some third person and whereby financial loss caused to the complainant as well as mental tension, loss of business due to taking away the vehicle by the OP on 26.04.2016 and they did not return, despite various request made by the complainant and as such, the complainant is entitled for return of the vehicle as well as compensation/damages to the tune of Rs.4,00,000/-.

8. On the other hand, the case set up by the OPs is that the complainant miserably failed to pay installments of the loan amount since 30.11.2015 and accordingly, a notice was also served to the complainant on 14.12.2015 Ex.O-3, but husband of the complainant himself make a request that they cannot pay the loan installment and himself handed over the loan vehicle to the OP and thereafter, by adopting a due procedure i.e. serving a notice for sale to the complainant as well as intimation to the Police Station, the vehicle in question was sold in open auction by getting an estimation of the said vehicle and even then still an amount of Rs.45,497/- is till due towards the complainant as on 27.06.2016 after adjustment of the sale proceed of the loan vehicle and as such, the complainant is not entitled for the relief.

9. We have taken into consideration the respective contention of both the parties and find that the complainant alleged in Para No.3 of the complaint that last installment was paid in the month of March, 2016 i.e. Rs.10,000/-, but for the best known reason, the complainant has not brought on the file any receipt, whereby the said amount deposited with the OP. No doubt, the complainant has brought on the file certain receipts Ex.C-1 to Ex.C-23, but the receipt for the month of March, 2016 is not available on the file. So, it means that the plea taken by the complainant that the last installment of Rs.10,000/- was deposited in the month of March, 2016 is not a true version rather seems a concocted and self made story. Apart from that the complainant has not brought on the file any statement of account showing that he has paid about Rs.3,00,000/-, to the OP out of the total loan amount, but the case of the complainant is very strongly meet out by the OP by placing on the file copy of agreement Ex.O-2, which is binding upon the party and it was signed by the complainant as well as her husband, then complainant brought on the file a notice Ex.O-3 dated 14.12.2015, whereby complainant was asked to pay balance amount of Rs.2,06,424/-, which is due as on 30.11.2015 and seven day time was given, but despite that notice, the complainant miserable failed to deposit the amount, when huge amount is due towards the complainant and which is being not paid for the last so many months, then there is no alternative with the OP except to serve a notice and accordingly, notice was served when no response was came from the side of the complainant, then OP sent a pre-sale letter to the complainant dated 28.04.2016, whereby again asked to make payment of the due amount within a period of seven days, the said letter is Ex.O-7. Apart from that the OP also sent a written intimation to the concerned Police Station regarding sale of the seized vehicle, which is Ex.O-4 to Ex.O-6, but there was no response from the side of the complainant and ultimately, the OP got estimation of the vehicle from the expert and Estimation Report is Ex.O-8 and as per estimate, the value of the loan vehicle was assessed Rs.1,55,000/- and accordingly, the OP after adopting due process called a quotation for purchase the vehicle, which is Ex.O-9, which is highest one i.e. Rs.1,60,000/- and then sold the vehicle to the highest bidder Karanbir Singh for Rs.1,60,000/-, vide Sale Acceptance Letter Ex.O-10 and Sale Form Ex.O-11. So, we do not find any illegality on the part of the OP rather the OP had provided all the opportunities to the complainant to meet the balance loan amount, but the complainant herself did not bother to pay the loan amount and as such, there is no deficiency in service or unfair trade practice on the part of the OP and therefore, we do not find any force in the argument put forth by the learned counsel for the complainant and thus, the complaint of the complainant being without merit is dismissed with no order of cost. Parties will bear their own cost. This complaint could not be decided within stipulated time frame due to rush of work.

10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                                                           Harvimal Dogra                                         Karnail Singh

13.03.2018                                                                  Member                                                      President