Orissa

Sambalpur

CC/32/2018

Muralidhar Behera - Complainant(s)

Versus

Daimler Financial Service India Pvt. Ltd. - Opp.Party(s)

Sri. B.K Purohit and B.K. Shorff

10 Aug 2022

ORDER

PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

Consumer Case No-32/2018

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

 

Muralidhar Behera,

S/O-Late Bhagaban Behera

R/o-Girija Nagar, Dhama Road,

At/Po/Ps-Dhanupali

Dist- Sambalpur-768005, Odisha.                                 ………….Complainant

Vrs.

Dalmier Financial Services India Pvt. Ltd,

Represented through its Chief Executive Officer,

Office at Unit-202, 2^nd floor, Campus 3B,

RMZ Millennia Business Park, No. 143,

Dr. MGR Road, Perungudi, Chennai-600096                         ……… ..….Opp. Party

Counsels:-

1. For the Complainant      :-Sri. B.K.Purohit & Associates
2. For the O.P.                     :- Sri. A.K.Panda & Associates.

 

DATE OF HEARING :29.06.2022, DATE OF JUDGEMENT :10.08.2022

Presented by Dr. Ramakanta Satapathy, PRESIDENT.

1. The case of the Complainant is that being allured by the sales representatives of Bharat Benz Truck the Complainant availed a finance from the O.P. company purchased truck bearing No. OD-15E-8989. The finance amount was Rs. 26, 53,193/-, spent money to-wards registration, Tax, fitness and all India permit. For body building Rs. 2,50,000/- Rs. 25,000/- to-wards electrical wiring and other materials like rope, tarpaulin, jack, jack-rod etc. spent Rs. 4.00 lakhs. Total Rs. 30,53,193/- was spent.

During demonitisation due to ill health the Complainant failed to repay the installments. All of a sudden the O.P. Company with the help of goondas forcibly took away the vehicle on road at Dhanupali. Due to illness the Complainant could not inform the police. Vide letter dated 11.10.2016 the O.P. repossessed the vehicle and intended to sell unless Rs. 30,61,753.99 not paid to the company within 7 days. The Complainant gave a reply dated 24.11.2016 about the difficulties but the O.P. did not take any step and sold on auction at Rs. 10,03,600/- much lesser than the price of the vehicle without offering the Complainant about the redelivery of the vehicle to the Complainant to opt for repayment of loan. The acts of the O.Ps are illegal.

2. The O.P. in its version admitted that Finance has been granted to the Complainant. The O.P. is a juristic person and the office bearers cannot be impleaded as a party and the chief Executive officer need to be deleted from the complaint. The Complainant is not a ‘Consumer’ nor the O.P. adopted unfair trade practices. The complaint is trivolous, baseless of the misconceived one. The vehicle of the Complainant is hypothecated to the O.P. The loan agreement are to be settled by arbitration in the state of  Tamilnadu. The Complainant failed to pay the outstanding amount of Rs. 30,87,280.72P due as 25.06.2018 and loan amount was Rs. 26,53,193/-. The pecuniary jurisdiction of the Commission is Rs. 20.00lakhs and the prayer made exceeds the jurisdiction. The vehicle has not been taken forcibly by the O.P. The agreement date was 19.02.2016 and the Complainant agreed to pay 60 installments Rs. 61,817/- each from 18.03.2016 to 18.01.2021. On non-payment of outstanding recall notice was given on 05.07.2016 for payment of Rs. 29,05,555/-.09P as on 04.07.2016. J.G. Solution as engaged as authorised agency vide letter dated 08.08.2016 to take peaceful possession of the vehicle on behalf of HDFC Bank Ltd.

Pre. Repossession intimation letter dated 06.08.2016 was given to Police Station and Post. repossion letter dated 28.12.2015 to the Police Station. One more chance was given vide letter dated 11.10.2016 but the Complainant failed to pay the amount. Early termination quotation dated 25.06.2018 was issued by the O.P. Auction was made at Rs. 10,03,600/- and the O.P. sustained loss of Rs. 19,42,559.11P. Due procedure has been followed by the O.P. and there is no deficiency in service.

3. Perused the documents filed by the Complainant and the O.Ps. The following issues are framed:
103606587.  

1. Whether the complaint is not maintainable in view of the arbitration clause in the agreement for hypothecation?
2. Whether due procedure has been adopted by the O.P. for repossession of the vehicle and auction sale?
3. What relief the Complainant is entitled for?

Issue No.1 Whether the complaint is not maintainable in view of the arbitration clause in the agreement for hypothecation?

          The Complainant availed the loan facilities from the O.P. for an amount of Rs. 26,53,193/- hypothecating the New Bharat Benz BB HDT-3123 R CBC bearing No. OD-15E-8989. The fact is admitted by the O.P., hence this is a consumer dispute.

          The Complainant challenged the arbitrary action of the O.P. in this case. The O.P. raised the question of arbitration clause. As there is no any decision of any arbitrator filed by the parties and question of deficiency is challenged, the matter is coming within the per view of this Forum/Commission.

          The O.P. Company is a juristic person. The juristic person is represented through its chief Executive who has the right to sue and be sued on behalf of the company. The Complainant has rightly made party to the C.E.O of the company. The O.P. has not disclosed the designated officer of the O.P. company.

          Relating to pecuniary jurisdiction at the time of filing complaint, this forum/Commission has pecuniary jurisdiction of Rs. 20.00lakhs. The allegation of the O.P. is that the cost of the vehicle and compensation claimed by the complainant exceeds Rs. 20.00lakhs and accordingly the complainant is not maintainable. Advocate for Complainant at the time of arguiment submitted that it is true that the value of the vehicle including assessories and expenses was Rs. 30,53,193/- but the vehicle was sold in auction sale for an amount of Rs. 10,03,600/-, which is much less than the price of the vehicle. Accordingly this Commission has jurisdiction to entertain the complaint.

          The prayer of the complainant is to give a direction to return the vehicle and to allow monthly installments or in the alternative to pay Rs. 4.00lakhs to make the vehicle roadworthy and compensation of Rs. 4.00lakhs. In totality the value is less than Rs. 20.00lakhs and this Forum/Commission has Jurisdiction to entertain the complaint.

          Accordingly, the issue is answered.

Issue No.2  Whether due procedure has been adopted by the O.P. for repossession of the vehicle and auction sale?

          From the documents filed by the O.Ps it reveals that the O.P. has issued loan recall notice dated 05.07.2016, authorization letter dated 08.08.2016 in the name of J.G. Solution, Pre-repossession intimation letter to Police Station dated 11.10.2016 early termination quotation dated 25.06.2018 and followed due procedure of repossession. It is pleaded that auction sale was made by the O.P. The O.P. denied to receive the letter dated 24.11.2016 of the complainant. The O.P. has not submitted any documents relating to auction sale, who are the bidder, the bid price etc. related to auction sale. Denial of receipt of letter dated 24.11.2016 and non submission of auction sale documents proves that due procedure has not been followed by the O.P. and to suppress such facts simply said “the vehicle in question had been sold after following the due process as per terms and condition of the loan agreement”

          The O.P. is deficient in its service by not following the procedures of law.

          Accordingly, the issue is answered against the O.P.

Issue No.3 What relief the Complainant is entitled for?

        The O.P. is deficient in providing service and hence the O.P. is entitled for relief. The O.P. stated that the vehicle has been sold, hence it is not possible to give direction to return the vehicle.

        It is ordered:

ORDER

        The Complaint is allowed on contest against the O.P. The O.P. is directed to refund Rs. 2,56,254.34P with 7% P.A. interest w.e.f 01.08.2016 to-wards amount paid by the complaint for the vehicle and compensation of Rs. 4.00 lakhs with 7% interest P.A. within one month of the receipt of order, failing which the entire amount will cover 12% interest P.A. till realisation.

        The O.P. is warned not to continue unfair trade practice while conducting any auction sale in future.

        Order pronounced in open court on this 10^th day of August, 2022.

        Supply free copies to the parties.