The instant case was started on the basis of a petition under Section 12 of the Consumer protection act, 1986 which was registered as Consumer Case No. 01/18 in this Forum.
The fact of the case as revealed from the petition of complaint is that the complainant (Krishna Dutta) decided to purchase a truck for her livelihood. From the petition it is also revealed that the husband of the complainant is a driver in occupation as such the truck was purchased by them for support for their livelihood.
The complainant had no capacity to purchase Truck through cash, as such the complainant searched for a financial institution, so that she can purchase the same in support of the institution. The representative of O.P.NO.1, came to the complainant and gave offer to render their support for financing the vehicle. At that time the representative of the company stated that the company can finance Rs. 3,50,000/- out of total purchase value that is Rs. 4,12,685/- (Tata Ace 275 IDI NA 700 CC BS III).
The complainant made a payment of Rs. 7070/- on 8.05.2014 and Rs. 61485/- on 12.05.2014 as a down payment and documentation charge of the vehicle to O.P.Nop.1 and it is settled that the complainant have to pay Rs. 11800/- each (with insurance charge) for first 36 installments and Rs. 10300/- each for last 12 installments.
At the time of finance the O.P.No.1 has taken some post dated cheques as security from complainant. It is settled that the complainant pay the amount of installments to the representative of O.P.No.1 and they (Indusind Bank) give money receipt to the complainant.
From the petition as well as from the evidence it is found that the complainant and her husband (Sri. Pranab Dutta) purchased the vehicle from their savings. After the down payment the vehicle was registered in the name of the complainant (Krishna Dutta). The complainant totally paid Rs. 5,34,785/- to O.P.No.1 up to October, 2017.
In the first part of November, 2017 the complainant received a phone call from officials of O.P.No.1 and came to know that the complainant will have to pay Rs. 50,000/- to make her loan account up to date as because Audit Team came from their Head Office. At that time it is quite impossible for complainant to accumulate Rs. 50,000/-. Moreover, O.P.No.1 is not entitled to receive that quantum of amount at that point of time, instead of the complainant gathered Rs. 40,000/- to make payment to O.P.NO.1.
On 18.11.2017 the husband of the complainant who is the driver of the vehicle namely Pranab Dutta got a higher offer from Uttar Bangla Transport (near Asha Talkies Cinema Hal). He settled to pay Rs. 40,000/- in the office of O.P.No.1. Thereafter, he would go to load goods from Transport. When Pranab dutta reached in front of O.P.Bank at Bidhan Nagar More, M.G. Road at about 12 noon, at that time the representative of O.P.No.1 namely Saikat Das and Sudipta Bhattacharjee along with 3/4 antisocial person, stopped him and use filthy languages. They demanded Rs. 50,000/- in spot but at that time Rs. 40,000/- which was kept at the dashboard of the vehicle. The husband of the complainant paid the amount that is Rs. 40,000/- to that persons but they are not satisfied with that. Thereafter, the antisocial persons took the husband of the complainant down from the vehicle and took the vehicle with them towards Siliguri More side. That it is pertinent to mention that all the original documents of the vehicle also kept in the vehicle, which also taken by them.
Thereafter, the husband of the complainant namely Pranab Dutta went to the Bank that is O.P.NO.1, but officials stated if the complainant did not pay Rs. 50,000/- the Bank will have nothing to do. Then Pranab Dutta stated that the representative of O.P.No.1 namely Saikat Das and Sudipta Bhattacharjee taken Rs. 40,000/- from him. Finding no other alternative the husband of the complainant rushed to the Police Station and stated the entire story but Police personnel instead of receiving written complaint stated that they first of all do preliminary enquiry. Thereafter, no initiative taken from Police authority, therefore, the complainant lodged a written complaint before S.P, Uttar Dinajpur on 11.12.2017.
The complainant sent a legal notice on 24.11.2017 through her lawyer and requested O.P.No.1 to release the vehicle of complainant without any delay. After receiving the letter the O.P.No.1 replied that they took possession of vehicle as because the complainant is a defaulter for making payment. On the other hand the complainant prays for refund of Rs. 5,74,785/- along with Rs. 20000/- for compensations and Rs. 10000/- for litigation cost.
The petition has been contested by the O.P. by filing W.V. denying all the material allegations as labeled against them contending inter alia that the instant case is not maintainable. There is no cause of action to file this case and the case is barred by Law of Limitation. The complainant had suppressed the real facts and he has not come to the court within clean hand. As such the case is liable to be dismissed.
The actual facts of the case in short is that the vehicle in question was firstly repossessed on 30/11/2015 with due intimation and as per terms and conditions of the agreement and after payment of due an installment, the vehicle was released. Subsequently, on 21/12/2015 the vehicle was re-possessed with due intimation and as per terms and conditions of the agreement and after payment of due installments, the vehicle was released. Again on 21/11/2017 the vehicle was re-possessed with due intimation and as per terms and conditions of the agreement and after payment of due installments, the vehicle was released. Ultimately, on 30/12/2017 the vehicle was re-possessed with due intimation and as per terms and conditions of the agreement and the vehicle was placed on for open auction and the said vehicle was auctioned at Rs. 90,000/- and as yet Rs. 10,300/- is still due to the O.P.
Actually, the complainant has availed loan of Rs. 3,50,000/- out of the agreement value of Rs. 538400/-. So, considering such facts and circumstances the instant case is liable to be dismissed with cost.
During trial the complainant Smt. Krishna Dutta was examined as PW1 and cross examined in the form of questionnaires. On the other hand Sri. Krishnendu Sankar Das was examined as OPW1 and also cross examined.
Now the point for determination whether the complainant is entitled to get any relief or not.
D E C IS I O N W I T H R E A S O N S:
At the time of argument the Ld. Lawyer of the O.P argued that the complainant was a defaulter in payment of loan amount, as such the vehicle was repossessed by the O.P on different dates and ultimately the vehicle was reauctioned to the highest bidder as per agreement. Besides the oral argument the Ld. Lawyer of the O.P also filed the written argument in which it has been categorically stated the same fact that due to nonpayment of loan amounts the vehicle was repossessed on different dates as per terms of agreement. The Ld. Lawyer of the O.P has also filed the documents and copy of the agreement. Perused the agreement. On perusal of the agreement it is found that heading is mentioned as ‘events of default in clause 14’. But on perusal of the agreement nowhere it has been found that in the case of default of loan payment the vehicle will be seized. Though in the written argument such fact has been mentioned. But on careful scrutiny no such clause that the vehicle will be seized due to nonpayment of loan amount without taking the recourse of law. Moreover, the Hon’ble High Court at Calcutta and also the Hon’ble Supreme Court in several judgements have expressed the dissatisfaction by the companies to recover the vehicle by way of muscles men and it has been categorically stated by the Hon’ble Supreme Court the method of taking recovery of loan amount through the process of law not by any muscles men or any other oppressive method. This process also reminds us the old method of zemindery system in West Bengal of recovery of rent from the poor peasant by oppressive method. There is no dispute that the vehicle was repossessed as it appears on the seizure list that the husband of the complainant put signature in the seizure list. That indicates that the vehicle was seized by the O.P through his agents and such fact has been mentioned in the petition of complaint though at the time of argument the signature was denied by the complainant that it is not the signature of her husband. It is immaterial whether her husband put signature or not as because the complainant has clearly stated that the vehicle was re-possessed.
Now the main point is to be considered what amount was paid by the complainant. In the petition of complaint it is found that out of total value of Rs.4,12,685/- the O.P No.1 financed Rs.3,50,000/-and the complainant paid Rs.5,34,785/- in total up to October,2017. As the amount was due the vehicle was seized by the O.P. There is no dispute that the complainant paid the amount. On perusal of the record it is also found that the complainant purchased the vehicle in the year 2014 and he has used the vehicle up to last part of 2017. So he has used the vehicle near about 3 years.
Now the point is to be considered whether the claimant is entitled to get the amount for refund as prayed for. As the complainant has paid most of the loan amount and he has used the vehicle for three years for which there will be a depreciation of the vehicle. The calculation of depreciation value of the vehicle is assessed 10% of each year from the purchase value of the vehicle. As the vehicle has been auctioned, so there is no chance to get back the vehicle on payment of the rest amount. But the claimant is entitled to get refund of money after deducting the depreciation value of the vehicle at the rate of 10% per year from the purchased value of the vehicle. The depreciation amount comes to Rs.41,268/- for 1st year, Rs.37,153/- for 2nd year & Rs.33,427/- for 3rd year . Total depreciation comes to Rs.1,11,838/-. The complainant entitled to get Rs.5,34,785/- – 1,11,838/- = Rs.4,22,947/- (Rupees Four Lacks twenty-two thousand nine hundred forty seven only)..
The story of taking Rs.40,000/- by the O.P has not been well established as because no independent witness has been examined by the complainant to prove this fact. Besides that the complainant is entitled to get compensation of Rs.20,000/- for mental pain and agony and Rs.10,000/- as litigation cost.
C.F. paid is correct
Hence, it is
ORDERED
That the complainant case being No. CC-01/18 be and the same is allowed on contest against the O.P with cost.
The complainant gets Rs.4,22,947/- (Rupees Four Lacks twenty-two thousand nine hundred forty seven only) towards the value of the vehicle and Rs. 20000/- (twenty thousand) for compensation and Rs. 10,000/-(ten thousand) as litigation cost and the total amount comes to Rs.4,52,947/- (Rupees four lacks fifty two thousand nine hundred forty seven only)).
The OP is directed to pay the amount within one month from the date of order failing which it will carry interest at the rate of 5% per annum over the awarded amount of Rs.4,52,947/- (Rupees four lacks fifty two thousand nine hundred forty seven only) from the date of default ( after expiry of one month from the date of order) till recovery failing which the complainant is at liberty to file the execution case for recovery of awarded amount as per law.
Let a copy of this order be given to the parties free of cost.
