Karnataka

Bidar

CC/22/2014

MOHD AZAM PATEL S/O ZAHED PATEL - Complainant(s)

Versus

CHOLAMANDALAM INVESTMENT & FINANCE CO,LTD - Opp.Party(s)

P.M DESHPANDE

25 Feb 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::

 

 

                                                                                                         C.C.No. 22/2014

 

                                                                                           Date of filing: 01/04/2014

 

                                                                                       Date of disposal : 25/02/2017

 

 

P R E S E N T:-              (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B

                                                                                                       President.

    

                                         (2) Shri. Shankrappa  (Halipurgi),

                                                                      B.A.LL.B.

                                                                                  Member

 

                                   

 

                                               

COMPLAINANT:              Mohd. Azam Patel, s/o Zahed Patel,

                                           Age: major, R/o 44,95/4, Babar Bagh road,

                                        Tq. Basavakalyan,Dist.Bidar. 

 

                                      (By Shri. P.M. Deshpande, Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-          1.   Cholamandalam Investment

                                             & Finance Co.Ltd. Triprant road,

                                                 Basavakalyan-585327, Dist.Bidar.

 

                                          2.   Cholamandalam Investment

                                             & Finance Co.Ltd.,5-4, IInd floor,

                                             Asian complex, Head post office,

                                                 Super market, Gulbarga-585101.

 

 

 

                                       3.   Ashok Leyland,

                                             Marketing Division no.1,

                                                Sardar Patel road, Guindy, Chennai.   

                                                 

 

                                           (O.P.no.1, 2 & 3- Exparte )   

 

 

 

::   J U D G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

    The complainant has filed the complaint u/s.12 of the C.P.Act, 1986, alleging  deficiency of service in the part of the O.Ps.  The origin and genesis of the case is as follows:

2.                The complainant is  native of Tq.Basavakalya , Dist.Bidar.   The complainant for self employment, of his livelihood and maintenance had purchased a truck   bearing no. KA-56/1012  of Ashok Leyland ECOMET from the dealer of O.P.no.3 under hypothecation loan.  The O.P. no.1 &. 2   were financers and the O.P.no.3 was manufacturer of the vehicle.  The complainant avers that due to inherent manufacturing defect in the engine, the vehicle   could not run  optimally and  his earning capacity was drastically compromised.  There was high consumption of diesel as far as mileage is concerned.   The normal Truck vehicles when defect free of same model runs 7 to 8 k.m. per litre of diesel smoothly with  no complaint on the road.  Due to higher consumption, the complainant could not get his  income in transportation etc.  The complainant had informed the fact several times to the dealer and the complainant had taken the vehicle to  the dealers’ authorised service centre and the dealer had failed to rectify the defects of the vehicle.  Further complainant avers that,  despite of paying all monthly EMIs the O.P.no.1 unlawfully and without prior notice had seized the said vehicle.  This act of the O.P.no.1 & 2 shows, unfair trade practice and deficiency in service on the part of the O.Ps.  Due to seizer of the complainant’s vehicle, the complainant had sustained heavy monitary loss and suffered mentally and physically.  Hence the complainant is before us and prayed to this Forum to restrain the vehicle to be sold in auction or sale till disposal of the case and O.Ps be directed to pay compensation cost etc.

 

3.                The O.P no.1 to 3 in spite of service of the Court notices  have failed to attend before this Forum hence, the O.P.no.1 to 3  placed exparte.  The complainant has filed   evidence affidavit and written arguments reiterating his contentions and documents relied upon are described at the end of the order.

 

4.                    In the absence of any protests or objections from the O.Ps in spite of being served with the Court notice, this showing utter disregard to a Court of adjudication, primafacie, we would have accepted the contentions of the complainant as a whole in it’s face value.  But, the onerous responsibility casted upon us demands that, we have to act basing on the broader principle of “Actus Curiae naminem gravabit”. The act of the Court must prejudice none.

 

5.       Therefore we fix only two points for consideration as follows:-

 

1. Does the complainant prove that there has been a deficiency in service on the part of the O.Ps?

 

 

2. What order ?

 

 

6.           Our answers to the points stated above are as follows:-

 

               1. Partially affirmative.

               4. As per the final order, for the following:

 

 

 

 

:: REASONS::

 

7. Point No.1.    From the documents produced by the complainant vide Ex.P.6, P.7,P.9 & P.11, we find that, the authorised dealer of manufacturer O.P.no.3 had attended the repair of the vehicle under question several times.  Even in Ex.P.9, the authorised dealer has certified about the poor pick up of the vehicle.   That being the case, it was open for the complainant to proceed against the manufacturer or the dealer of the vehicle for the defective item supplied to him in a proper forum at a proper time primafacie.  Alas, the complainant has never opted for the same.  Ofcourse, there is an averment in his complaint to have approached the O.Ps. several times, but the same is never substantiated by any documentary proof ever produced by him, except an office copy of legal notice without any postal receipt or A.D. card that of a much later date.  The complainant had waived this right to proceed against the manufacturer or dealer and cannot be permitted to lament at this stage.

 

8.               Next, to deal with the seizure of the vehicle by financiers i.e. O.P.No.1 and 2, alleging default in pay;ing E.M.Is. we see from the receipts  the complainant had paid only a sum of Rs.93,300/- to his financiers vide Ex.P.1 to 5, against a huge due.  It goes without doubt, the financiers ( O.P.no.1 and 2) have availed the opportunity to seize the vehicle on account of default in E.M.I. payments and they cannot be held responsible the manufacturing defect in the Truck under reference.  But the appropriate business acumen and ethics demand that, prior to resorting to seizure, a notice could have been served upon the defaulter.  The same is lacking from the records.

 

9.       The complainant has laid before us, a Judgment of the Hon’ble National Commission, reported in 2014(4) CPR 724 (N.C.) M/s Sundaram Finance Ltd V/s Sh.Atul Kumar, which is read as hereunder.

Consumer Protection Act, 1986-Sections 15,17,19 and 21-Financial services-Vehicle loan-Forcible repossession of vehicle complaint allowed by Fora below-In absence of any evidence to the contrary to rebut averment of complainant, District Forum rightly ignored contention of O.Ps in this regard and proceeded to deal with complaint –No musclemen can be allowed to interfere with peace of society and vehicle cannot be repossessed without intervention of Court State Commission has upheld finding of District Forum and returned its concurrent finding while dismissing appeal of petitioners-National Commission can use its revisional power only in a case where it appears to National Commission that State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdictional illegally or with material irregularity-Revision Petition dismissed.

 

10.                From the dicta quoted above, it is crystal clear that, the O.P.no.1 and 2 have taken the law for granted and had taken recourse to an illegal seizure of the assets, worthy to be decried.  No sympathy or empathy,  therefore, can be attributed to the O.Ps No.1 and 2, their actions being illegal perse and so, we answer the point no.1 accordingly.

 

11.                  Coming to answer the point no.2, we hold that, owing to the default of the complainant in paying the E.M.Is a seizure followed by auction sale of the vehicle has taken place as would be evident from Ex.P.14 to P.18.  This Court would derive no jurisdiction to jeopardise the auction purchaser in any manner, since he is not impleaded as a party to  proceedings.  The one sided action of O.Ps.no.1 and 2 has reached the final stage and we have no scope to upset the same.  Neverthless, we cannot ignore the lawful rights of the complainant, on the principles of “Ubi jus ibi remedium”- Ashby V/s Whites ( Privy; council decision in 1872) and therefore proceed to pass the following:-

 

 

 

 

 

 

: :   ORDER : :

 

1.  The complaint is allowed in part.

 

 

2. The O.P.No.1 & 2 would be precluded from charging or collecting any amount from the complainant towards the default of payment of E.M.Is.
3. The O.P.no.3 is absorped from any fallacy due to default.
4. There would be no order as to compensation, cost or otherwise

 

             

 

 

 

   ( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this  25^th  day of February-2017 )

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                               

           Member                                                                        President

  

Documents produced by the complainant

                                                                                                                              

1.Ex.P.1 to 5 Payments to O.P.no.1 and 2 ( receipts)

2.Ex.P.6,P.7 ,P.9 and Ex.P.11- Bills of Sagar Motors and Automotive.

3.Ex.P.8- Cheque of Bank.  

4. Ex.P.10- Repair order.

5. Ex.P.12- Insurance Certificate.

 6. Ex.P.13- Seizure Memo.

 7. Ex.P.14- Final call letter, dt.17/01/2014.

8. Ex.P.15- Presale notice to guarantor,dt.18/01/2014.

9. Ex.P.16-Final call letter to guarantor, dt.17/01/2014.

10.Ex.P.17-Presale notice to customer,dt.18/01/2014.

11. Ex.P.18- Legal notice to complainant, dt.11/12/2013.

12.Ex.P.19- Office copy of legal notice dt.10/03/2014 of complainant.  

 

 

 

Documents produced by the O.Ps.

 

• Nil   -

 

 

 

 

   Sri. Shankrappa H.                                           Sri. Jagannath Prasad                               

           Member                                                                     President.

 

mv.