SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint petition, U/s 12 of the Consumer Protection Act, 1986 (here-in-after called as the “Act”) alleging deficiency in service against the Ops claiming compensation.
2. The case of the complainant, in short, is that she approached OP No.1 for sanction of a loan for the purpose to purchase of a tractor and after maintaining required formalities, OP No.1 had sanctioned loan of Rs.6,00,000/- in favour of the complainant. The complainant had deposited the down payment of Rs.1,00,000/- in favour of OP No.1. On 11.3.2017, the complainant deposited Rs.2,000/- for the advance booking of the tractor with OP No.5 and obtained valid receipt. Again, on 17.4.2017, the complainant deposited Rs.75,000/- and Rs.20,000/- with the OP No.5 and obtained valid receipts. The complainant had also deposited Rs.23,000/- and Rs.20,000/- on 18.4.2017 with OP No.5. In total, the complainant had deposited Rs.1,60,000/- with the OP No.4 & 5. On 17.4.2017, the Ops have delivered the tractor along with hydraulic trailer in favour of the complainant. The invoice dated 27.5.2017 for the self-same tractor has also been supplied by OP No.4 in favour of the complainant. According to the terms and conditions of the loan agreement, the complainant had paid Rs.80,000/- to the OP No.1 to 3 and the rest amount is to be paid by her.
It is further stated that at the time of taking delivery of the tractor and trailer, OP No.1, 4 & 5 have promised to provide insurance and registration number in terms of money deposited by her. But they failed to supply the above documents for which the complainant could not able to ply the tractor nor could she able to repay the loan amount to the OP No.1 to 3 regularly.
On being called by OP No.1, 4 & 5, the complainant along with her son had been to the office of OP No.1 on 18.11.2017 for official compliance which will enable them to provide insurance certificate and registration certificate in respect of the vehicle in question. But the OP No.1, without any prior intimation, illegally and forcibly taken the said tractor and trailer into their possession for which the complainant sustained irreparable loss in her business and mental agony. Further, they forcibly took some signatures of the complainant in the pretext for preparation of registration certificate and insurance papers. On 5.3.2018, when the complainant had been to the office of OP No.1, the officials of OP No.1 handed over two letters dated 15.1.2018 wherein it was mentioned that the said tractor and trailer has already been sold to other person. In the above process, not only the Ops have committed deficiency in service but also committed unfair trade practice. Hence, this case.
3. In the present case, OP No.1 to 3 made their appearance and filed their joint version stating, inter alia, that the complainant is a habitual defaulter in payment of the installment. When a huge amount of loan remained outstanding against the complainant, they issued letter on 11.8.2017 demanding to clear the outstanding dues so also intimated her that in case of default in payment, the vehicle would be seized and sold as per terms and conditions of the loan agreement, but the complainant did not respond it and they were constrained to repossess the vehicle in question from the complainant. Thereafter, they issued notice against the complainant with a request to repay the outstanding loan amount and take back the vehicle. As the complainant remained silent, the vehicle was put to public auction and sold to the highest bidder Rupak Kmar Barik and the sale proceeds were adjusted to the loan accounts of the complainant and a huge amount of money remained due against the complainant. The complainant has filed this case with a view to escape from the liability for recovery of loan amount. Thus, the present Ops have prayed to dismiss the case with cost.
4. In the present case, although the OP No.4 & 6 have made their appearance, but did not file their version within the statutory period, whereas the case against OP No.5 is dismissed.
5. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has cause of action to file this case?
(iii) Whether this consumer case is maintainable?
(iv) Whether there is any deficiency in service on the part of the OPs?
(v) Whether the complainant is entitled to get the relief, as sought for?
(vi) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
6. In the above peculiar facts and circumstances of the pleadings of both the parties, before delve into the merits of the case, first of all, it is to be decided as to whether the case is maintainable or not.
7. On perusal of the pleadings of both the parties and the documents relied upon by them, it is found that the OP No.1 to 3 are financial service providers, OP No.4 is a dealer of different automobiles and OP No.5 is its branch office and OP No.6 is the manufacturer/company of the John Deere tractor. From the documents available in the case record, it is seen that the complainant had taken the loan from OP No.1-Bank and purchased one tractor and trailer from OP No.4 on 27.5.2017, as revealed from both the invoices dated 27.5.2017. It is the claim of the complainant that the OP No.1 & 4 have not provided the required documents i.e. Insurance paper & Registration certificate in respect of the vehicle in question and she could not ply the vehicle without the aforesaid documents and thereby sustained huge financial loss and she also could not able to repay the dues of the OP No.1-Financier. It is an admitted fact that the complainant had purchased the tractor and trailer with financial assistance provided by OP No.1 to 3-Financier under hire purchase agreement. It is also an admitted fact that the complainant had purchased the vehicle from OP No.4 and OP No.4 knew that the complainant had purchased the vehicle on hypothecation. In this connection, it is the duty of the Financier to call for the relevant documents from the OP No.4 to retain with them till the outstanding loan amount was fully satisfied by the complainant. It is also the duty of the Financier to provide the Insurance paper so also the Registration certificate relating to the vehicle in question at the time of delivery of the vehicle. It is also the duty of the Financer to look into the matter relating to the delivery of the vehicle to their customer. To strengthen their case, OP No.1 to 3 have not submitted any such document relating to the vehicle in question to prove that they have called for the required documents from the Authorized dealer i.e. OP No.4 nor any document to show that they had issued any Demand Draft or cheque in question in favour of OP No.4 directing delivery of the alleged vehicle in favour of the complainant. At the same time, it is also the duty of the OP No.4 to provide all relevant documents relating to the vehicle in question in favour of the complainant at the time of its delivery. In the present case, OP No.4 has not filed any documents to say that they had provided all the papers in respect of the vehicle of the complainant at the time of its delivery. That apart, the OP No.1d to 3-Financier has not taken any initiative for providing of basic documents in favour of the complainant at least to ply the alleged vehicle. Without any valid and basic documents, one cannot ply his vehicle. Therefore, the claim of the complainant that he could not ply his vehicle and thus, he sustained huge financial loss cannot be ignored.
8. That apart, in their version, OP No.1 to 3 have stated that when a huge amount of loan remained outstanding against the complainant, they issued letter on 11.8.2017 with a demand to clear up the outstanding dues unless they would be seized the vehicle. It is further stated that they repossessed the vehicle on 18.11.2017. Thereafter, they issued letters to the complainants and guarantor on 15.1.2018 asking the complainant to pay the settlement amount of Rs.7,99,599/- towards tractor and Rs.59,299/- towards trolley and to take back the vehicle and trolley, otherwise they sold the vehicle. All those letters dated 11.8.2017 and 15.1.2018 were sent by registered post. But the OP No.1 to 3 have failed to state a single line as to whether the said letters either received by the complainant or returned to them unserved with any endorsement by the postal authorities. Further, the OP No.1 to 3 have not submitted the statement of account in respect of the loan incurred by the complainant at least to prove that from which date they have calculated the principal amount with interest amount and what amount has been paid by the complainant and when he was defaulted. Therefore, it is held that those letters do not bear any authentication, rather, those have prepared for the purpose of this case only.
9. Further, the OP No.1 to 3 have admitted in Para-15 of their version that they had taken money towards insurance and accordingly, they had got the insurance of the vehicle done and handed over the insurance paper to him. On perusal of the so called insurance certificate filed by the OP No.1 to 3, it is found nowhere the Registration number of the vehicle mentioned and further the so called insurance certificate speaks itself that it was valid from 18.4.2017 to 17.4.2018. But, in fact, the alleged vehicle & trolley was delivered by OP No.4 in favour of the complainant on 27.5.2017, as revealed from the invoice supplied by OP No.4. Thus, it is presumed that the so called insurance paper was prepared before purchase of the vehicle in question by the complainant. Besides, on whose behalf and by whom the insurance paper was prepared, it was left blank. Interestingly, it is made out that no one has signed in the Insurance paper, so a question mark was visible at its proper place, but the date was mentioned as 25.7.2018. From the above, it is held that the OP No.1 to 3 have filed a fake insurance paper claiming to have been provided to the complainant. OP No.1 to 3, as it is seen, are no doubt reputed financier, but filing of such a fake document before this Commission is not at all expected. It is the first and foremost responsibility of the Financier to collect all relevant documents in respect of a hire purchased vehicle before or at the time of delivery of it to the customer. In the present case, the OP No.1 to 3 have failed to do so. In the present case, OP No.6 is the manufacturer and no specific allegation is made against him by the complainant, hence, he is not liable for the compensation.
10. Besides the above, OP No.1 to 3 have claimed that as the complainant became defaulter and did not pay the outstanding loan amount they repossessed the vehicle from the possession of the complainant on 18.11.2017 and sent letters against the complainant on 15.1.2018 requesting him to settle the loan within 7 days from the receipt of this letter by paying the settlement amount otherwise they will sold the vehicle and this fact is also established by them vide their letter dated 18.11.2017 and 15.1.2018. At the same time, the complainant has filed cash receipt dated 5.8.2017 showing payment of Rs.18,000/-, cash receipt dated 11.9.2017 showing payment of Rs.18,000/- in favour of the OP No.1 to 3. Apart from it, the complainant has also filed cash receipt dated 29.11.2017 showing payment of Rs.44,000/- (Rs.36,000/- and Rs.8,000/-) in favour of the OP No.1 to 3. From the above, it is clear that just prior to one month of repossession of the vehicle, the complainant had paid Rs.36,000/- and after the repossession of the vehicle, the complainant had paid Rs.44,000/- to the OP No.1 to 3-Financier. The above fact of payment of money by the complainant is not at all admitted by the OP No.1 to 3. Therefore, it is crystal clear that after repossession of the vehicle by the OP No.1 to 3, there was a settlement between the parties and being agreed, the complainant had deposited Rs.44,000/- in favour of the OP No.1 to 3 with a view to take back her vehicle from their possession, but, as it is seen, the Ops No.1 to 3, by suppressing the material fact and in connivance with OP No.4, put the vehicle into auction and sold it to another person in a horrible mode.
11. No doubt, in a catena of decisions, Hon’ble Apex Court as well as the Hon’ble National CDR Commission have been pleased to observe that the Financier has every right to repossess or resale the vehicle which is purchased on hypothecation in case of default in payment of some instalment. In the case of M/s. Capital Trust Ltd. v. Sanjay Dutt and another reported in 2009(3) CPR 205 (NC), the Hon’ble National Consumer Disputes Redressal Commission, New Delhi have been pleased to observe that –
“It is to be stated that many financiers/banks are in race for giving loan for purchase of vehicles or various articles. After giving loan and taking interest in advance, the polite behavior changes because of the documents which are signed on the dotted lines by the borrowers. On occasions, borrower suffers harassment, torture, or abuses at the hands of the musclemen of the money lender. Such a behavior is required to be prohibited and the process of repossession is required to be streamlined so as to fit in cultural civilized society. Let the rule of law prevail and not that of jungle where might is right.”
12. In an another case between B. Venkatesh v. IKF Finance Ltd. and another reported in IV (2011) CPJ 68, wherein the Hon’ble State Consumer Disputes Redressal Commission, Hyderabad, Andhra Pradesh have been pleased to observe that –
The respondents ought to have put the appellant on notice before selling the auto to third parties so as to enable the appellant either to clear the pending EMIs or to witness the sale proceedings so as to ensure himself the vehicle was sold for appropriate reasonable consideration. Taking into consideration the entire gamut of circumstances prevailing at the time of sale of the vehicle as also the consideration for which a one year old auto was disposed of, we are inclined to hold that the respondents were guilty of negligence.
13. In the present case, no notice was issued by the OP No.1 to 3 against the complainant before the vehicle was put to auction. The complainant had already paid Rs.36,000/- prior to repossess of the vehicle and paid Rs.44,000/- after repossession by the OP No.1 to 3. As it is seen, the vehicle in question is just seven months old. The OP No.1 to 3 have also not submitted any paper to show the process of auction sale and the amount of highest bidder. Furthermore, in the present case, as it is seen from the documents filed by the complainant, the OP No.4 has received Rs.1,60,000/- from the complainant on different occasions with a view to supply the papers. In this regard, OP No.4 remained silent.
14. From the above discussions made in the foregoing paragraphs and taking into consideration the valuable observations of the Hon’ble National CDR Commission so also Hon’ble State CDR Commission, Hyderabad, we are of the considered opinion that the OP No.1 to 3 in connivance with OP No.4 have not provided the vehicle insurance paper and registration certificate intentionally and when the complainant demanded them the aforesaid documents, with a view to escape from their liability, created a drama of repossession and auction violating the law of natural justice and ignoring the consequence of law. Therefore, this Commission, inter alia, held that the OP No.1 to 3 and OP No.4 are guilty in deficiency in service by approaching their unfair trade practice and further the entire action of the OP No.1 to 3-Financier and OP No.4-Dealer was illegal, arbitrary and criminal in nature and requires to be visited with punitive damages besides refunding the market value of the vehicle with interest. Further, the claim of rest outstanding loan amount against the complainant is held to be vexatious. Consequently, the complainant has cause of action to file the case and the case is maintainable. Hence, the complainant is entitled to the reliefs, as claimed for.
Hence, it is ordered -
O R D E R
Having regard to the judgement reflected above, the complaint petition of the instant complainant bears merit and hence allowed on contest against the O.Ps No.1 to 4 and dismissed against the O.Ps No.5 & 6. The O.Ps No.1 to 3 are hereby directed to:-
- pay a sum of Rs.9,00,000/- as a punitive damages with interest @ 9% per annum from 27.05.2017 till its realization to the complainant for the mental agony and harassment and humiliation she suffered before her neighbours, friends and relatives at the hands of such an unscrupulous and uncouth provider of vehicle.
Further, the O.P No.4 is also directed to:-
- pay a sum of Rs.2,00,000/- as a punitive damages with interest @ 9% per annum from 27.05.2017 till its realization to the complainant for the mental agony and harassment and humiliation she suffered before her neighbours, friends and relatives at the hands of such an unscrupulous and uncouth provider of vehicle.
All the aforesaid ordered amounts will be paid by the O.Ps No.1 to 4 to the complainant within 45 days from the date of receipt of this order, failing which the complainant is at liberty to realize the same from the O.Ps No.1 to 4 through the process of law.
Pronounced in the open court of this Commission, this the 12th day of November, 2024 given under my signature & seal of the Commission.
