This appeal is directed against the final order dated 06/07/2018 passed by the Ld. D.C.D.R.F, Uttar Dinajpur in connection with CC/38/2017. The crux of the case in nutshell is that the respondent no. 1 Jharna Sarkar purchased a motor cycle (Yamaha Fascino) from Yamaha show room financed by appellant bank that is IndusInd Bank Ltd. And the loan process was initiated through a mediator that is respondent no. 2 S. Barman with a fixed EMI was settled. The motor cycle was handed over to the respondent no. 1 from the showroom and the complainant/respondent no. 1 was paying the installment in due time and she could make payment of loan amount up to Rs. 25,950/- and last installment she has paid on 27/12/2016. Thereafter due to some reason, the respondent no. 1 became defaulter and accordingly, the financier IndusInd Bank has taken the custody of the vehicle in the month of January 2017. And the registered owner of the said vehicle that is Jharna Sarkar was sent sale notice on the part of the IndusInd Bank for the sale of the hypothecated vehicle. Thereafter, the respondent no. 1 filed the consumer complaint case on 16/06/2017. The IndusInd Bank that is appellant has contested the consumer complaint as OP no. 1 by submitting the W.V and denied all the material allegations levelled against the Bank on the part of the complainant/respondent and contended inter alia that the complainant directly approached this Bank, for finance of, a motor cycle proposed to be purchased by the complainant and she was agreed to a loan agreement dated 14/03/2016 and the principle loan amount was sanctioned Rs. 50,000/- and the said amount was repayable with the interest charges of Rs. 12,000/- and other charges. Thereafter, the complainant become defaulter and accordingly a presale notice was issued on 16/01/2017. Thereafter the defaulting amount was satisfactorily paid to the IndusInd Bank and bank released the custody of the vehicle. When the consumer complaint was registered against the appellant Bank then the appellant Bank kept the custody of the vehicle from the custody of Op no. 2 S. Barman who already obtained “no objection certificate” issued from the end of the Bank on 4th February, 2017. The complainant never came to the Bank to receive the NOC from the bank, so, the case of the complainant was liable to be dismissed. The OP no. 2 S. Barman in spite of receiving the notice of consumer complaint did not contest the complaint. Thereafter, the Ld. Forum has decided the case on merit and awarded in favour of the complainant of Rs. 50,950 from the Ops towards the value of the vehicle and Rs. 20,000/- as compensation and Rs. 10,000/- as litigation cost.
Being aggrieved with the said order this appeal follows on the ground that the decisions of the Ld. Forum was passed on mis conception without appreciation of the facts and circumstances of the case and the order of the Ld. Forum was liable to be set aside. The memo of appeal was admitted on its own merit and the Complainant Jharna Sarkar and the Op no. 2 of the original complaint case S. Barman was issued notice asking them to contest the case. The respondent no. 1 Jharna Sarkar and respondent no. 2 S. Barman has contested the appeal before the Commission through their Ld. Advocates.
DECISIONS WITH REASONS
After hearing all the Ld. Advocates of all the concerned parties to this case it is established beyond the doubt that the respondent Jharna Sarkar has purchased the vehicle hypothecated the same after taking financial loan from IndusInd Bank by a loan agreement entered into by her with the Bank and she was agreed to make payment the loan amount regularly on monthly basis till the liquidation of the entire loan amount including interest and all necessary charges. Thereafter, from the contents of the complaint it is also established beyond doubt that the complainant could make payment only Rs. 25,950/- but she could not continue to make payment regularly and became defaulter of loan. Thereafter, the Bank has captured the motor vehicle in question in their custody and issued a presale notice. During the course of hearing the appeal Ld. Advocate of the respondent no. 2 S. Barman has furnished the payment slips which speaks that he has made payment of Rs. 36,360/- towards the bank for the instant loan agreement which amount was defaulted by the respondent no. 1 Jharna Sarkar and thereafter, he took custody of the vehicle. From the averment in the pleadings of the appellant Bank, it is also established beyond any doubt that the Bank has realized the defaulted money of this loan agreement from S. Barman and issued a NOC towards the said loan agreement after their full satisfaction and since then S. Barman was using the said vehicle by taking it into his custody and when the consumer complaint was registered, the Bank for their own protection and interest recaptured the vehicle in their custody. It is also established beyond any doubt that actually S. Barman was the recovery agent of the IndusInd Bank at the material point of time and he arranged the said loan in favour of the respondent/complainant Jharna Sarkar which could be obtained from the IndusInd Bank and actually S. Barman was using the said vehicle, subsequently, some problems was developed between the Jharna Sarkar and S. Barman and for that reason, Jharna Sarkar has stopped the payment of balance loan amount and at that point of time S. Barman at his own instance had deposited Rs. 36,360/- defaulting amount and took custody of the vehicle and also collected the NOC from the Bank. After going through the evidences recorded by the Ld. Forum in this case it is established beyond the doubt that there was an agreement between the respondent no. 1 and 2 about this loan transaction and it was admitted on the part of the complainant/respondent about the existence of such agreement in cross examination. The respondent/complainant could not make up her case as to in which way the Bank has taken custody of the vehicle from the possession of the complainant. The complainant has tried to established in para 8 of complaint as to in which way the vehicle was recaptured by the Bank Authority but her story become unbelievable in the context to the evidences she has tendered before the Ld. Forum. After hearing all the sides of this case, it is also established beyond any doubt that the appellant Bank had suffered for their own fault in dealing with this instant loan transaction as because they were heavily relied upon their own recovery agent that is respondent no. 2 S. Barman who was the actual mediator in the instant loan agreement and he has for his own interest insisted the complainant/respondent to make an agreement with the appellant Bank for such loan and actually S. Barman was the actual beneficiary in the instant loan agreement. On the other hand, the facts and circumstances, indicates that S. Barman is also the sufferer of this instant loan transaction as because he has made payment of Rs. 36,360 from his pocket but could not avail the ownership of the said vehicle in his name. The appellant Bank had the duty and responsibility to look after the interest of the borrowers as their client and they also did not protect the interest of their borrower/client. So, after going through all out merit of this case, we find that the order of Ld. Forum suffers from some irregularity as because the Ld. Forum does not point out who has the actual liability and to what extent to make payment of Rs. 80,950/- awarded by Ld. Forum. The harassment of all parties was attributed to the contributory negligence from the part of the appellant Bank, Respondent no. 2 S. Barman and also complainant who cannot be escaped from her liability because suppressing the hidden agreement between her and respondent no. 2 S. Barman, she entered into this loan agreement with the Bank. Therefore, the order of Ld. Forum should be modified to the extent in order to protect the interest of all person in connection with this case and to prevail the doctrine of fair justice. Thus, the appeal succeeds in part.
Hence it is ordered: -
That the appeal be and the same is allowed in part on contest without cost against the respondents. The order of Ld. Forum is modified to the extent that the complainant should get not the full value of the vehicle but the money she has actually paid that is Rs. 25,950 along with interest at the rate of 6 per cent per annum since 27/12/2016 from the IndusInd bank that is appellant. No compensation is awarded in favour of the complainant/respondent no. 1. The possession of the vehicle in question to be determined by the appellant Bank after a discussion and settlement with the recovery agent of the Bank that is S. Barman. The litigation cost Rs. 10,000/- as awarded in favour of the complainant was remained intact and the said amount to be paid by the appellant Bank to the complainant and the remaining portion of the order of the Ld. Forum remained intact. Let a copy of this order be supplied to the parties free of cost and the same be communicated to the concerned Forum through e-mail.
