Orissa

Dhenkanal

CC/87/2016

Rabi Rout - Complainant(s)

Versus

Hinduja Leyland Finance Ltd. - Opp.Party(s)

08 Mar 2018

ORDER

BEFORE THE DIST. CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                                C.C.Case No. 87 of 2016

Rabi Rout, aged about 51 years

S/o Fakira Rout , At: Dalasingha Marthapur

P.O: Santhapur, P.S.- Gondia Dist: Dhenkanal                                         ….....Complainant

-Vrs-

The Branch Manager , Hinduja Leyland Finance Limited

At- Hatisalapada  , In front of R.I. Office

Po./P.S./ - Anugul, Dist- Anugul                                                                …......Opp. Party

Present: Sri Badal Bihari Pattanaik, President,

                 Miss Bijayalaxmi Satapathy, Member

                  Sri Purna Ch. Mishra, Member

Counsel For the complainant:  R.K.Swain & Associates

                 For the Opp. Party :  Manoj Kumar , Satyaranjan Satpathy , Sibram Dehury

               

Date of hearing argument: 28.2.2018

Date of order: 8.3.2018

                                                                                JUDGMENT

Sri Purna Ch. Mishra, Member

1.            This is a Complaint U/S 12 of the C.P. Act  where in the complainant  has alleged deficiency in service and unfair trade practice against the Opposite Parties for snatching of his vehicle  by use of criminal force  through hired muscle men and subsequently selling it away  at meager price in a suspicious and clandestine manner  praying therein  for a direction to the O.P  to return the Auto Rickshaw or to refund  the cost thereof amounting to Rs.1,20,000/- and a sum of Rs.1,00,000/- towards illegal possession  ,sale and other consequential losses  sustained by the complainant  coupled with mental agony and harassment  and to declare  the claim for  Rs.63,729/- as illegal .

2.            Brief fact leading to the case is that  the petitioner  in order to earn his livelihood by way of self employment  purchased one Auto Rickshaw  under financial assistance from the Opposite Parties . The cost of the Auto Rickshaw was Rs.1,89,900/- out of ,which  the complainant had made a down, payment of Rs.,40,000/- and the rest amount of Rs.1,50,000/- was financed  by the O.P. As per the terms of the contact the finance amount  is to be repaid  in 42 monthly installments commencing from, 21.4.2014 and ending in, 21.08.2017. After purchase of the auto rickshaw the complainant has paid  the installments regularly from 21.4.2014 to 22.7.2016 in, 20 installments has ,paid  a sum of Rs.1,48,373/-. In the month of  August the vehicle ,developed defects for which a lot of amount was spent and the vehicle was released from, garage in September 2016. After repair the complainant was arranging money to repay the defaulting installments without any intimation  and notice  the O.Ps illegally  snatched ,away the vehicle from, Manguli Chhak by use of force  and issued a  seizure list  and detained the vehicle in their stockyard at Manguli, even though the petitioner lodged FIR at Manguli Out Post regarding high handed action of the O.P. agents, but did not take any action . The complainant approached the O.P. office at Angul, but they did not pay any heed to the grievance of the complainant. It is the specific case of the petitioner  that the O.P. by violating all the norms of the banking laws and guide lines of the national commission and the Hon’ble Apex Court as well as RBI snatched away the vehicle by use of  goondas which is unfair and illegal since the petitioner had paid almost the  financed amount . Since the agreement was in force  he would have cleared all the dues  in time  ,On approach of the complainant  the O.P. demanded a sum of Rs,.25,000/- for release of his vehicle which is illegal. The petitioner finding no other alternative succumbed to their illegal pressure collected the amount claimed by them and on, ,reaching Angul the Opposite Party informed that his vehicle has already been sold . The petitioner  to verify the authenticity  proceeded to Manguli stockyard and found the vehicle is being parked there and believed that the O.P is playing hide and seek to only to harass him. After running several times the Opposite Party delivered a letter to the petitioner on, dated 8.12.2016 that his vehicle has been sold for a sum of Rs.40,000/- on 2.12.2016 to the highest quotation . It was further stated that after appropriation of the sale proceeds a sum of Rs.63,729/- is outstanding against his loan account and he was  instructed to pay the amount within seven days . It is further pleaded that the sale of the auto rickshaw beyond his knowledge and consent of the complainant in a clandestine manner  as it was  in good condition and was repaired at an expenses of Rs..20,000/- and the alleged sale price is very low and at any cost the auto rickshaw is not below Rs.1,20,000/-. It is also submitted that the finance amount was Rs.1,50,000/- and  total loan amount was repayable Rs.2,18,000/- out of which the complainant has already paid Rs1,48,373/- in 20 installments. The petitioner asserts that  the sale was conducted behind his back  without any intimation    at a low price  is a clear violation of law and rules of the country and such illegal and arbitrary  and whimsical action has ,caused ,serious loss to him. It is further pleaded that the auto rickshaw is the only source of income for him and he maintains his family from the same. By such conduct the Opposite Party the petitioner is suffering since last 3 months for which  finding no other alternative  the petitioner has been compelled  to file  the present complaint for the reliefs prayed for in the complaint petition.

3.            That after receipt of notice the Opposite Party appeared through his advocate and filed Written Statement. In his Written Statement the Opposite Party challenged the jurisdiction of this Forum  in view of the  jurisdiction  an arbitration clause   in the agreement .The O.P. also challenged the status of the petitioner as a consumer  and pleaded that  since the petitioner  was a defaulter the vehicle was seized  following due procedure of law by giving  pre-sale notice and  post-sale notice .The Opposite Party has pleaded that the loan amount  is repayable in 41 months and not 42 months as stated by the petitioner .It is further stated that the petitioner  did not pay the dues for which the vehicle was  repossessed in a peaceful manner  and it was  sold by auction  and  the sale proceeds were appropriated against his loan account and  after appropriation of the said amount a sum of Rs. 63,729/-  was outstanding  which the petitioner has not yet paid  for which  the Opposite Party  has rightfully seized his vehicle  and has sold it  and there is no amount of deficiency in service  on the part of the  Opposite Party for which they prayed for dismissal of the case with cost.

4.            That the petitioner has filed  a statement showing repayment of loan dues on different dates amounting to Rs.1,48,373/-, photo copy of the contract details , schedule of repayment  , copy of the vehicle inventory list , copy of the R.C. Book, Copy of the insurance certificate , copy of the road permit , copy of the  letter  dtd. 8.12.2016 issued by the O.P.  to the borrower and guarantor , photo copy of the envelope  and his oral evidence  in shape of affidavit. He has filed the original documents at the time of  filing his evidence  in shape of affidavit.  On the other hand  the Opposite Party  has filed the Photo Copy of the application proposal evaluation form, and RTO forms  running over  7 pages , Copy of the loan agreement  running over 17 pages , photo copy of the insurance certificate , Copy of the retail invoice of Kalinga Auto Combines , Photo Copy of Driving License of Rabi Rout , Copy of the Voter Identity Card of the Rabi Rout , copy of electricity bill of Rabi Rout , Copy of the letter issued by the O.P. to the petitioner on dated  20.09.2017, copy of the pre sale intimation dated 24/10/2016  and copy of the  letter dated 05/12/2016 and has filed  his evidence  in shape of affidavit .

4.            That  on the date of hearing  learned counsel for the complainant was absent  and the petitioner himself  argued the case . On the other hand the Opposite Party  filed written statement  and the learned counsel appearing for the Opposite Party argued on behalf of them.

5. In view of the pleadings and couter pleadings of the parties the following issues are framed.

(a) Whether the petitioner is a consumer or not ?

(b) Whether this Forum has got jurisdiction to adjudicate the matter in view of the jurisdiction and arbitration clause in the agreement.

© Whether the vehicle has been possessed by peaceful means?

(d) Whether the sale made by the opposite party is in accordance with law?

(e) Whether there is deficiency in service and unfair trade practice on part of the opposie party?

(f) To what relief the complainant is entitled ?

 

6. The first and foremost question relating to this case is wheter the petitioner is a consumer or not?

It is pleaded by the petitioner that he has purchased this auto rickshaw to earn his livelihood by way of self employment and it was his only source of income. On the other hand the opposite party pleaded since this is a commercial vehicle the vehicle was used for commercial purpose and therefore the petitioner is not a consumer. Perusal of the documents goes to show that the petitioner is a driver having a valid driving license. The petitioner has also filed his evidence in shape of affidavit wherein he has specifically stated that the vehicle has been purchased for the purpose of self employment to earn his livelihood by way of self employment and he was managing his family from the income of this auto rickshaw. On the other hand the Opposite Party has simply pleaded that the vehicle has been used as commercial purposes but have failed to prove that it was not the only source of income for the petitioner. Rather the documents filed by the O.P includes the driving license of the petitioner which goes to show that he was having a valid driving license to drive a auto rickshaw. The list of inventory issued by the Op. bears the signature of the petitioner in the column meant for driver. So it is crystal clear that the petitioner self employed himself to earn his livelihood. Since the petitioner had purchased the vehicle to earn his livelihood by way of self employment which was the only source of income for him we hold that the petitioner enjoys the status of a consumer and the objection raised on this core is rejected.

7. The next point relating to this case is whether in view of the jurisdiction and arbitration clause in the agreement the Forum is competent to adjudicate the matter.

                                                  It is pleaded by the opposite party in view of clause 22 of the loan agreement executed between the loanee and the bank it has been decided that the Courts at Chennai alone shall have jurisdiction at Chennai. It is settled principle of law between the parties cannot oust the jurisdiction of any Court which has been expressly conferred by law. A agreement is void if it is against public policy or is against the provisions of law. Since the opposite party is carrying on business in Dhenkanal and they are collecting money and lending money in the district of Dhenkanal and a part of the cause of action arose at Dhenkanal it vests jurisdiction in terms of Sec 11 of the C.P Act of the Forum to try the case. So the objection raised by the O.P is rejected by this Court.

The next objection is regarding the arbitration clause in te agreement. It has been decided in plethora of cases that arbitration clause cannot oust the jurisdiction of the Consumer Forums in view of Sec 3 of C.P Act. So the objection raised by the O.P stands rejected.

8. The next question is whether the vehicle has been repossessed by peaceful means the O.P ?

It is pleaded in para 4 of the complain petition that the O.P without any intimation or without any notice in any manner by application of force detained the vehicle on its way from cutack to Dhenkanal at Manguli Chhak and forcibly took away the same. On the other hand the opposite party has denied this allegation in Para 3 of the written statement under the heading Para wise reply. The opposite party has simply denied this fact but have failed to file a single document to show that the vehice has been possessed in accordance with law. The opposite party is silent as to who seized the vehicle, under whose orders the vehicle was seized, whether there was any order from any competent Court or tribunal for seizure of the vehicle. In the absence of any document we are unable to hold that the vehicle has been seized in peaceful manner. Even though the written statement runs over 16 pages the opposite pages the O.P is astonishingly silent regarding the RBI guidelines to NBF seize for seizure of vehicles. In the absence of any document to this effect we are unable to hold that the vehicle has been repossessed in a peaceful manner.

9. The next question relating to this case is whether the vehicle has been sold in accordance with law.

It is pleaded by the complainant that the opposite party behind his back have sold the vehicle at a meager price of Rs 40,000.00 and by no means the value of auto rickshaw will not be below Rs 1,20,000.00.

The O.P in his para wise reply is totally silent on the pleadings of the petitioner. Even though the opposite party admitted to have been sold the vehicle they have not filed a single document to show the procedure adopted by them for sale of the vehicle. When the petitioner challenges the value of the sold vehicle to be not below Rs 1,20,000.00 the silence of the opposite party speaks for itself. The O.P has not filed a single document as to who has fixed the upset value of the vehicle, whether there was adequate publicity for sale of the vehicle or not. The O.P has failed to file a single document to show that after the offers were received the petitioner was intimated regarding the highest bid value received by them and he was also given opportunity to arrange a better bidder than the bids received by them. It is seen from the documents on record that the vehicle in question was purchased in the month of March 2014 and the vehicle has been sold in the month of December 2016. The insurance for the period from 26.6.15 to 25.6.16 was done by Chola MS Insurance company and the value of the vehicle has been assessed at Rs 1,65,000.00. It is common knowledge that the insurance company after proper evaluation of the vehicle they insure the vehicle with that value and in the instant case the value of the auto rickshaw bearing registration no. OD 06 A 3588 has been fixed at Rs 1,65,000.00. We are astonished as to how a new vehicle of 2 years has been sold away at a meager price of Rs 40,000.00. The manner in which the vehicle has been snatched away by use of force and the manner and the price in which the vehicle has been sold is against the principles of law and natural justice and the whole affair is shrouded in mystery. It is crystal clear that the vehicle has been sold in violation of the norms of auction and in a very suspicious manner. So we are of the opinion that the vehicle has been sold in a illegal manner in utter violation of the principles of natural justice.

10. Now comes the question whether the O.P is liable for causing deficiency in service and for practicing unfair trade practice.

As revealed from the preceeding discussions the vehicle has been reposed by use of criminal force in violation of the law of land and has been sold at a meager price in a manner unacceptable in the eyes of law for which the O.P is squarely responsible for causing deficiency in service and unfair trade practice.

11. Now comes the question to what relief the petitioner is entitled?

  It is seen from the documents in record that the petitioner have obtained a loan of Rs 1,50,000 from the O.P as loan and has repaid a sum of Rs 1,48,373.00 by the end of 22.7.2016. This figure is not disputed by the opposite party in any manner. As seen from the repayment schedule the petitioner was liable to repay the loan in 42 monthly installments and the last date of repayment was 21^st August 2017. The petitioner is entitled to get back the margin money deposited by him and is also entitled to be compensated for the loss sustained by him because of the illegal conduct of the opposite party in view of the decisions Hon’ble National Commission between Citicrop Maruti Finance Ltd. Vrs. S. Vijaylaxmi reported on 2007 (iii) CPJ 161 and the decision of the Hon’ble S.C.D.R.C. Odisha between ICICI Bank Ltd. Vrs. Khirod Kumar Behera reported in 2007 (I) OLR (CSR) 62 ORISSA. The Op. has relied on several decisions in his written statement which are no way  helpful to the fact of this case  and hence the order.

ORDER

                The complaint petition is allowed on contest against the O.Ps with costs. The O.P is directed to refund a sum of Rs 40,000.00 to the petitioner which he has deposited as margin money at the time of purchase of auto rickshaw and obtaining the loan. The O.P is further directed not to claim any other amount from the petitioner against Agreement  no- ORBUDH00167  in respect of the auto rickshaw bearing registration no. OD 06 A 3855 and are further directed to pay a sum of Rs 10,000.00 as compensation and a sum of Rs 3,000.00 towards cost of litigation. The cost, compensation and refund as ordered shall be paid by the O.P within 30 days from the date of order failing which it will carry interest @ 9% p.a from the date of order till it is paid to the petitioner.

 

 (Miss Bijayalaxmi Satapathy)        (Sri Badal Bihari Pattanaik)         (Sri Purna Ch. Mishra)    

                Member                                              President                                       Member