IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SONITPUR AT TEZPUR
District: Sonitpur
Present: Smti A. Devee
President,
District Consumer D.R Forum,
Sonitpur, Tezpur
Smti S.Bora
Member
District Consumer Disputes
Redressal Forum,Sonitpur
Sri P.Das
Member
District Consumer Disputes
Redressal Forum, Sonitpur
CONSUMER COMPLAINT NO.17/2018
1.Sri Haren Nath : Complainants
S/o Basundhar Nath
Vill: Goroimari, P.O: Haleswar
Dist:Sonitpur (Assam)-784104
2.Sri Santosh Nair
S/o Ar. Sukumar Nair
Vill: Goroimari, P.O: Haleswar
Dist:Sonitpur (Assam)-784104
Vs.
1.Hinduja Leyland Finance Ltd. : Opp. party
Registered Office :1 Sardar Patel Road, Guindy
Chennai-600032
2. Hinduja Leyland Finance Ltd.
House No.16,2nd Floor, Near Little Flower School
Hatigaon Chariali, Guwahati-38
3. Hinduja Leyland Finance Ltd.
Branch Manager, Murhateteli, Tezpur
Dist: Sonitpur,Assam-784001
Appearance:
Mr. Abhijit Kar, Advocate. : For the Complainant
Mr. Kishore Deka, Advocate : For the Opp. party
Date of argument : 15-02-2019,08-03-2019
& 28-03-2019
Date of Judgment : 05-04-2019.
J U D G M E N T
- The facts, leading to the complaint, in brief, are that Complainant No.1 purchased a Ashok Leyland make truck by availing financial assistance of Rs.21,75,000/- from the opposite parties on 26-08-2013 to which Complainant No.2 stood as a guarantor. An amount of Rs.4,00,000/- was spent in construction of the body of the truck. The registration number of the truck is AS-01-EC-9969. Complainant No.1 paid EMI for the month of December,2014 at Rs.61,089/-. Thereafter, failing to pursue the business, the Complainant No.1 was unable to pay the instalments and finally on 30-06-2014, after consultation with opposite party No.3, surrendered the vehicle to the opposite party after 10 months of its purchase with request to adjust the sale proceeds against the loan as full and final settlement. An acknowledgement to this effect of surrender of the vehicle was also issued by the opposite party No.3. But on 21-01-2016, the opposite party No.1, by a letter to the Complainant wrote that the vehicle was repossessed by opp. party and was sold by the opp. party after issuing notice to both the Complainants and that after adjustment of the sale proceeds, an amount of Rs.19,67,390/- stood due and payable by the Complainant No.1 to the opposite parties. On 05-02-2016, the Complainant No.1 sent a registered letter to the opp. party No.2 protesting against the false allegations made in its letter dated 21-01-2016 and requested the opposite party to close the loan account and to issue a NOC towards amicable settlement. But to utter surprise and shock the Complainant found that the opp. party on 23-05-2017 showed the name of the Complainant No.1 as willful defaulter in the CIBIL and also that a suit has been filed against the Complainant for Rs.17,55,393/-.That on 13-06-17, the Complainant No.1 served a notice of demand through his advocate demanding to clear his name from CIBIL but the opposite party neither filed any suit against the Complainant for recovery of the balance sum nor cancelled the name of the the Complainants from CIBIL and as a result of which, they are shown as defaulters and are not able to apply for any loan elsewhere. Alleging deficiency in service on the part of the opp. parties and harassment in the hands of the opp. parties, the Complainants are therefore, before the Forum praying a total relief of Rs.25,000/- as compensation from the opp. parties and removal of the names of the Complainants from CIB IL shown therein as defaulters.
- Opp. parties have contested the case by filing joint written version. The written version of the opposite party is of total denial of the complainant’s allegations save and except the fact of obtainment of the vehicle with the financial assistance of the opp. party. Asserting that it had rightly, by following all requirements and formalities under the loan-cum-hypothecation-agreement and as per law, dealt with the issue of the Complainant, the opp. party therefore, prayed for dismissal of the complaint with compensatory cost.
- Complainant No.1 examined himself as sole witness by way of affidavit exhibiting few documents thereunder. Opp. party examined its Legal officer for Assam State by way of affidavit making few exhibits thereunder.
We have carefully gone through the entire materials available on record inclusive of the written argument filed by Complainant. The opposite parties
failed to forward any argument.
The following points are drawn for determination of the case.
POINTS FOR DETERMINATION
- Whether there was deficiency in service on the part of the opposite party?
- Whether the Complainant is entitled to get reliefs as prayed for or any other relief/reliefs ?
DECISION ON THE POINTS WITH DISCUSSION
- The Complainant all along claimed that being unable to run the vehicle, he on 30-06-2014 surrendered the same to the opposite party No.3 with a letter marked Ext-1. The opposite party No.3 duly acknowledged the same by putting endorsement with official seal.
- The opposite parties in the written statement at para 15 amongst others, stated-“But the answering opposite party has denies and disputes the statements made in the paragraph under reply that the answering opposite party no.3 had acknowledged the surrender letter dated 30-06-2014 with seal and signature. Though it is a fact that the complainant no.1 has addressed and sent a surrender letter dated 30-06-2014 in favour of the opposite party office having at Kolkata, but that was not received and acknowledged by the opposite party no.3 herein.
- We have gone through the Ext-1 very minutely. Ext-1 is a surrender letter addressed to Kolkata office of Hinduja Leyland Finance Ltd. Ext-1 was received by the Tezpur office of the Hinduja Leyland Finance Ltd. i.e opposite party No.3 herein on 30-06-2014 as it appears from the seal and signature on Ext-1.
- The opposite parties failed to disprove the seal and signature appeared in Ext-1. On the otherhand, D.W.1 in cross-examination stated “In the instant case the vehicle had been surrendered and I cannot say whether or not our office had served notice of pre-sale on the Complainant”.
- Admittedly and evidently, the vehicle was sold out in the month of December,2014. Evidence of D.W.1 shows that after repossession of loaned article the Financier is to serve pre-sale notice to the owner per registered post. And after service of notice if the owner fails to pay the outstanding loan amount the loaned article is sold out in auction. Thereafter also, post sale notice is to be sent to the owner through Indian Postal Service.
- Here in the instant case, opposite parties failed to prove that pre-sale notice was given to the Complainant. Except letter dated 21-01-2016 sent by the opposite party which is exhibited by the Complainant as Ext-2, no notice is available on record. The opposite parties failed to assign any reason for non-production of any document to prove that prior to letter dated 21-01-2016 any kind of notice was given to the Complainant.
- Evidently at the time of surrender, the vehicle was only 6 and half months old. After about 6 months of surrender the vehicle was sold out in auction. As per evidence of D.W.1, the vehicle was sold out at a price between 6 to 7 Lakhs.
- It has already been observed that no notice of pre-sale was served upon the Complainant.The opposite parties even failed to furnish the name of the auction
Purchaser, date of auction sale and exact amount. The opposite parties also failed
to establish that auction sale was conducted following due procedure of law for auction. As per Clause 14.3 of the Loan Agreement (Ext-D), the lender is required to send notice to the borrower granting 10 days time to settle the contract.
- Admittedly, the Complainant surrendered the vehicle after about 10 months of its purchase. There is no dispute that to purchase the vehicle the Complainant No.1 took loan of Rs.21,75,000/-. Thereafter as per complaint, body of the truck was constructed by the Complainant No.1 by spending an amount of Rs.400,000/-. Such amount for construction of the body seems to be genuine. At this stage, we may refer to the evidence of D.W.1. He in cross-examinatioin stated “We do not construct the body of the truck. I do not know what would be the cost of construction of the body of the truck. I can only guess and say that the approximate cost of wooden body may come at around 6.00 lakhs i.e., as on today. The cost of iron body will be higher”.
Inspite of knowing the fact of heavy price of the vehicle the opposite parties sold the vehicle at a very low price.
- Learned advocate for the Complainant, while arguing the case has placed reliance on a judgment of the Hon’ble National Consumer Disputes Redressal Commission passed in First Appeal No.720 of 2003 on 22-02-2008 in the case “Tata Finance Ltd. Vs. Francis Soeiro”.
- In the said case, the appellant Tata Finance forcefully took away the possession of the vehicle within four months of purchase on the ground of failure to pay instalments.At the time of taking loan the complainant was required to pay Rs.31,839/- including service charges of Rs.1500/-. He was also required to spend Rs.2,23,550/- for construction of body,seats etc. The appellant Tata Finance Co.Ltd. after taking over the possession of the vehicle, sold the same to a third party at a low price. Vide a letter dated 03-01-2001, the appellant demanded some excess amount as outstanding from the complainant.
- The State Consumer Disputes Redressal Commission, Goa, after hearing complaint ex parte observed that- the draconian action of confiscation of the vehicle amounted to grave deficiency in service on the part of the Appellant. The State Commission accepted the version of the Complainant that for making the luxury passenger bus, the complainant was required to spend Rs.7,55,854/-. Therefore, the State Commission directed the appellant to pay the said amount with interest at the rate of 15% p.a and also to pay exemplary costs quantified at Rs.50,000/-.
- Against the order of the State Commission, the appellant preferred appeal No.720 of 2003.
- After hearing both the parties the Hon’ble National Commission on 22-02-2008 passed judgment upholding the decision of the State Commission. The operative part of the order is quoted below –
“In our view, when the notice demanding exaggerated amount is issued and the person who has taken the loan from various sources including the loan for purchasing the chassis from the Appellant, would not be in a position to pay the said unjustified amount. Because of the alluring advertisement Complainant took an adventure of purchasing chassis and of building a luxury passenger vehicle and has suffered immensely by forcefully taking away the possession of the vehicle by the Appellant.
Further, it is to be reiterated that to take possession of the vehicle by use of force cannot be justified. It is to be stated that the Complainant had not used the vehicle. He had used the vehicle only for 2 to 3 months and the vehicle was seized from the Complainant. Thereafter, it was auctioned and sold unjustifiably at a low price. By such an act of the appellant, a poor man who has taken loan for purchase of the chassis and for building body has lost his life saving and is made a debtor. His entire dream of having a vehicle for self earning/employment is frustrated for years together.
Hence, in such circumstances it cannot be said that the order passed by the State Commission directing the Appellant to refund the loss suffered by the Appellant can be said to be in any way erroneous or illegal”.
- Here in the instant case in hand, we have already noted that the opposite parties failed to forward any argument.Taking into view the discussion made above and in the light of the judgment passed by the National Commission referred to hereinbefore,we have come to a conclusion that there was deficiency in service on the part of the Financier opposite party for more than one reasons:-
- The Complainant under compelling circumstances of financial hardship had to surrender the vehicle to the financier with a letter (Ext-1) of request to sell the vehicle at best available price for adjustment of the sale proceeds towards outstanding due. As such, the law of Equity demands to protect the interest of the Complainant by issuing notice of sale of the vehicle and date of its auction.
- That when the opposite party financier was very much aware of the fact of loan amount spent by the Complainant to make the vehicle roadworthy and age of the vehicle, there is room to doubt the conduct of the opposite party as unscrupulous for being kept the Complainant in dark about the sale of the vehicle at such unjustifiably low price.
- The Complainant in this case has prayed to clear the name of the Complainant from CIBIL showing the Complainants as defaulters and cost of Rs.25,000/-.
20. Keeping in mind the reliefs granted in the case of ‘Tata Finance Ltd. Vs. Francis Soeiro’, cited hereinbefore, we have no hesitation to allow the complaint and reliefs prayed thereunder.
ORDER
In the result, the complaint is allowed. Opp. party is directed to pay the complainant the amount of Rs.25,000/- claimed as compensation and cost. The opposite party shall take necessary steps to clear the names of the complainants from CIBIL shown as defaulters and issue loan clearance certificate accordingly. Opp. party is directed to comply with the judgment and award within 60 days of receipt of copy of the judgment and order. Default in any manner shall entail interest @12% p.a on the amount of Rs.25,000/- from the date of order till realization in full.
Given under our hands and seal of this Forum this 5th day of April, 2019.
Dictated and corrected by:
(A.DEVEE) (A. DEVEE)
President President
Dist.Consumer D. R Forum District Consumer Disputes Redressal Forum
Sonitpur,Tezpur Sonitpur,Tezpur
We agree:- (Sri P.Das) ( Smt S. Bora)
Member Member ,
