FINAL ORDER/JUDGEMENT

Date: 25.10.2019.

Briefly stated the facts relevant for the disposal of the complaint are that the complainant purchased a Hero Honda Motor Cycle (Super Splendor) on 13.07.2015 of chasis No. MB25A05EMF9F31171 Engine No. JA05ECF9F25460, Registration No. WB-74/AH4346 taking loan from IndasInd Bank, Sevoke Road, Siliguri on condition of payment of loan in monthly installment of Rs. 1926/- from August 2015.

Payment of monthly installment was made till 30.09.2016. Since thereafter, complainant could not pay loan due to treatment in Kolkata & Mumbai of his mother ailing from cancer who lastly died. On 23.12.2016, men of OP No.2 came to the house of the complainant and took away his motor cycle without caring for his mental condition but giving him time of 03 (three) months for repayment of the balance of loan.

The OP-Bank sent a notice dtd. 06.02.2017 to the complainant informing him of the proposed sale of the hypothecated vehicle and also the amount due to the Bank which should be paid within 15 days of the receipt of the notice by the complainant.  The complainant met the Branch Manager of the OP and informed his consent to repay all the dues at a time but requested verbally for 10 (ten) days’ time for the purpose. No time was, however, allowed to the complainant.

Contd….P/2

-:2:-

On 27.02.2017 the complainant submitted an application to the OP praying for waiving the fine for non-payment of installment. It was received by the OP Bank on date.  Finding that such application remained unreplied to, the complainant again submitted another application dtd. 10.04.2017 praying to let him know the balance of the loan due and informing his consent to pay all the dues at a time if, however, the interest payable and the said fine is waived.  This application also was not replied though the OP received it on dated by hand.

The OPs entered their appearance on 22.06.2017 and filed a petition praying for time to file written version. Such petition was granted and time was allowed till 17.07.2017 under section 13 (a) of the C.P. Act 1986. Since no written version could be filed by the OPs within the statutory period, the case was ordered to be proceeded ex-parte against the OPs.  Against this ex-parte order dtd. 17.07.2017, passed by this District Consumer Disputes Redressal Forum, the OPs moved a revision petition NO. RP/197/2017 in the State Commission, Kolkata, on 28.08.2017.  The Hon’ble State commission by its order dtd. 18.05.2018, while not interfering with the order dtd. 17.07.2017 of this District Consumer Disputes Redressal Forum, allowed the revision in part and permitted the revisionists/OPs to submit their written version appearing before this Forum on 18.07.2018, however, on payment of Rs. 20,000/- to the complainant.

The instant case came up on 18.07.2018 as the date was fixed by the Hon’ble State Commission.  OPs appeared and filed a petition praying for time to file written version but did not comply with the order dtd. 18.05.2018 of the Hon’ble State Commission as no money was paid by them to the complainant. Naturally, the prayer was rejected and the case proceeded again ex-parte.

To prove his case, the complainant has filed the following documents:-

1. Money receipt dt. 13.07.2015,
2. Retail Invoice dt. 13.07.2015,
3. Money receipt dt. 13.07.2015,
4. Money receipt dt. 29.07.2019,
5. Certificate of Registration –WB74AH4346,
6. GDE No. 1515 Siliguri PS,
7. Reduce EMI payment,
8. Application to Manger of Bank,
9. Statement of Bank,
10. Statement of Bank Account dt. 23.02.2017,
11. Payment account of pass book,
12. Online cash payment receipt,
13. Bank letter receipt copy,
14. Bank letter receipt copy,
15. Bank letter receipt copy,
16. Tata Memorial Centre ID
17. B.R. Siliguri Hospital Discharge Certificate,
18. Death Certificate,
19. Co-ordinator Consumer Assistance Bureau.
    •  
20.  

On the basis of the above, the following points come up for determination:-

1. Whether the complainant as loan-account holder is a consumer or not?
2. Whether there had been any deficiency in service on the part of the OP-Bank and
3. Whether the complainant is entitled to get the motor-cycle in question back?

DECISION WITH REASONS.

                   All the three points are taken up in seriatim for discussion:-

Point No.1

The complainant is a savings Bank vehicle loan customer of the OP-Bank, the a/c No. being 100038095619 opened on 30.07.2015. For such loan, the complainant is liable to pay installment processing fee and other charges as per terms & conditions of the contract for loan. Provision of loan by the Bank is a service to be rendered to the loanee-customer at the cost of interest, fees and other charges payable to the Bank (providing such service) by the loanee-customer.  As per Section 2(d) of the C.P. Act 1986, a consumer is one who buys a commodity or hires a service for a consideration, like chargeable interest, fees here in the instant case. Thus viewed, the complainant falls obviously within the definition of consumer.

Thus the point No. 1 is answered in positive in favour of the complainant.

Point No.2

The complainant defaulted in paying monthly installment in Oct & Nov, 2016 and on 23^rd of 03^rd defaulting month, i.e., on 23.12.2016 men of OP no. 2 came to the house of the complainant and took away his motor-cycle in order to secure its interest and served a notice dtd. 06.02.2017 upon the complainant informing him the proposed sale of that hypothecated motor-cycle to realize the security, allowing, however, the complainant 15 days time from the date of complainant’s receipt thereof to repay the loan along with installment and other fees & charges. Up to this, Bank’s act was  lawful and this Forum has nothing to interfere in this regard.

O.P.s’ men came to the house of the complainant and took away the hypothecated motor-cycle without any notice or prior intimation .  OP-Bank should have given, at least, a warning to the complainant before taking such ultimate action, so that the complainant could have prepared himself to take a chance for restoring payment of installment.  Even an accused of murder is given an opportunity of self defence, but such abrupt coming in and taking away of the OP-Bank deprived the complainant of his right even to be heard.

Contd…..P/4

-:4:-

During the period of default on the part of the complainant, he had to incur a lot of expenditure towards the treatment of his mother ailed of cancer, in Kolkata and Mumbai.  Complainant’s mother ultimately left this world for her heavenly abode.  Natural justice demand that the OP-Bank should have kept in mind the complainant’s bereavement accompanied with financial crisis from the view point of humanity.  A show-cause notice, at least could have been served upon the complainant and the possibility can not be ruled out that due consideration of complainant’s reply to such notice might have prompted the OP-Bank to take other suitable action than the action taken so abruptly.

The OP Bank did not inform either the complainant or this Forum whether they have actually sold the hypothecated motor-cycle taken under their possession in realizing the security and in securing their interest, in pursuance of their notice dtd. 06.02.2017, or not.  It is out of this non-information that the complainant submitted the application dtd. 27.02.2017 praying for exemption from payment of penalty for non-payment of monthly installment and another application dtd. 10.04.2017 praying to let him know the amount of outstanding loan which he consented to pay at a time. Both the applications were submitted by the complainant by hand and were of course, received respectively on date by the OP-Bank.  Inspite of receipt by hand, the OP-Bank did not inform the complainant of the result of consideration of those two letters.

Point No. 2 is thus answered.

Point No. 3

The complainant miserably failed to communicate to the OP-Bank the reasons why he could not inevitably pay the monthly installment.  The reasons were (1) financial crisis due to heavy expenditure towards cancer treatment of his mother and (2) his bereavement out of her death lastly.  Such reasons being beyond his control were sufficient for consideration of his prayer, if made, for time to re-store payment of monthly installment.  The period from the date of last payment, i.e., 30.09.2016 to 22.12.2016 the date prior to the OPs’ taking away the motor-cycle from house, is not so short for making such an application. Hence, it is the complainant’s carelessness which is responsible for communication gap in between himself and the OP-Bank. This communication gap, desirable at that point of time, might have prompted the OP-Banks to resort to their departmental Procedure to recover loans.

However, this Forum is of the considered view that such carelessness of the complainant should not debar him from getting the motor-cycle back on payment of outstanding dues in full.

In the result, the case succeeds ex-parte in part. Hence, it is

Contd…..P/5

-:5:-

O R D E R E D

That the Consumer Case being No. 39/S/2017 be and the same is allowed ex-parte in part against the OPs.

The OP-Bank shall reply to the letters dtd. 27.02.2017 and dtd. 10.04.2017 of the complainant.

The OP-Bank shall return the motor-cycle, if not sold, to the complainant on his act according to such reply.

If sold, the sale-proceeds, if found excess after adjusting with the amount to be recovered as outstanding dues be returned to the complainant.

Non-compliance with the order of the Hon’ble State Commission on the part of the OP-Bank did not let this Forum know their view in self defence but their not replying to complainant’s letters and abrupt action surely put him to mental agony and got him involved in litigation unnecessarily.

Therefore, the OPs shall, jointly or severally, pay to the complainant a sum of Rs. 20,000/- as compensation for his mental agony plus Rs. 1200/- as litigation cost.

The OPs shall pay the total sum within 45 days from the date of this order failing which the award shall carry interest @9% per annum from the date of this order till its realization in full.

In case of default, the complainant will be at liberty to put this order into execution through this Forum as per law.

Let plain copies of this final order/judgement be supplied to the parties free of cost.