DATE OF FILING : 14-01-2013.
DATE OF S/R : 12-02-2013.
DATE OF FINAL ORDER : 31-05-2013.
Sk. Ismail,
son of Late Sk. Wazed Ali,
residing at village – Jalalshi, P.O. Islampur,
P.S. Jagatballavpur, District –Howrah,
PIN – 711414.--------------------------------------------------------------- COMPLAINANT.
- Versus -
Kotak Mahindra Bank Ltd. ,
having its registered office at 36-38A, Nariman Bhaban,
227, Nariman Point, Mumbai – 400021,
having its corporate office at
‘Apeejay House’, Block – C, 7th floor,
Kolkata – 700016.------------------------------------------------------------OPPOSITE PARTY.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
The instant case was filed by complainant U/S 12 of the C.P. Act, 1986
wherein the complainant has prayed for direction upon the o.p. Kotak Mahendra Bank Ltd. to deliver the vehicle being no. WB 57A 6388 to the complainant and to pay compensation to the tune of Rs. 7 lacs together with the litigation costs as the O.P. in spite of payment of Rs. 1,70,225/- as EMI till 29-08-2011 out of the loan amount of Rs 3,46,443/- forcibly repossessed the vehicle from Amta in absence of the complainant for his failure to pay subsequent EMIs for the sudden unfortunate heavy accident of the vehicle on 20-10-2011 near Gokulpur Railway Bridge under Khargapur P.S.
2. The O.P. Kotak Mahendra Bank Ltd. in its written version contended interalia that the complainant defaulted in payment of the EMI and the matter was pending before the Arbitrator ; that the complainant surrendered the vehicle on 05-12-2012 ; that no question of illegal repossession does arise. So the complaint should be dismissed.
3. Upon pleadings of the parties following points arose for determination :
( i ). Is there any deficiency in service on the part of the o.p. ?
( ii ) Whether the complainant is entitled to get any relief as prayed for ?
DECISION OF REASONS
4. Both the points are taken up together for consideration. In deciding the instant case we can draw a dramatic analogy of irony of the case of King Duncan in Shakespeare’s Macbeth who is pleased to accept Macbeth’s hospitality, not knowing that Macbeth is going to murder him that night. This analogy is very subtle and befitting in case of the thousands of financing corporations mushrooming in our country, selling big dreams to the consumers but fail to alleviate their sufferings. Consumer never knows how nightmarish the dreams are ? When their dreams are frustrated they have harrowing time ruining their domestic peace, happiness and they are thrown into perpetual pain.
5. In the instant case the O.P., loan provider, like a poacher reaped the predicament of the complainant who in spite of his diligence in paying the EMIs regularly defaulted in payment since Sep’11 owing to unforeseen road accident near Gokulpur Railway Bridge under Khargapur P.S.
6. We have no hesitation in our mind that all such financing corporations in fact wait for the predicament of the borrower, that means for even a single default in payment of the E.M.Is. and as soon as such golden opportunities are projected, the financing corporations identical to the O.Ps. jumped upon the prey like ferocious predator. In the instant case the O.P. was restrained by an interim injunction from transferring the vehicle in question to any 3rd party till disposal of the proceeding. But unfortunately the O.P. sold the same to the 3rd party in violation of the injunction with the fragile plea that the matter was pending before the Arbitrator. We are of the view that the complainant is a bonafide consumer. As soon as he enters into an agreement i.e., written contract, he is construed as the consumer in terms of Section 2 ( c ) of the Consumer Protection Act, 1986. The O.P. as the service provider has got total responsibility for any act which are mentioned as ‘Restrictive Trade Practice’ U/S 2( c )( i ) and 2 ( r ) of the C. P. Act, 1986.
7. With respect to Arbitration Clause we are of the view that the prayer of the complainant is fortified by two decisions – one of the Hon’ble High Court of Andhra Pradesh reported in AIR 2008 A.P. 166 wherein it is observed that Sections 8/9 of the Arbitration and Conciliation Act, 1996 has not taken away the jurisdiction of Consumer Forum and remedy under Consumer Protection Act, 1986 is not in derogation of remedy provided under the said Act of 1996. This observation of the Hon’ble High Court is
reinforced in the celebrated decision of the Hon’ble Apex Court in the judgment reported in 2000 Supreme Court Cases Vol. 5 page C 294, simultaneously reported in AIR 2000 (Supreme Court) page 208. Hon’ble Supreme Court held that existence of an arbitration clause in the agreement is no bar to entertain the complaint under Consumer Protection Act, 1986 as the remedy under this Act is in addition to the provision of any other law. Section 3 of the Consumer Protection Act, 1986 is reproduced for proper appreciation. That the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, the dispute over the exclusion of jurisdiction of this Forum in view of incorporation of the Arbitration Clause in the agreement is set at rest.
8. In the present case the O.P. deliberately repossessed the vehicle in question with the help of its mercenary hooligans without giving him any opportunity to hear for his default in view of the road accident. This act on the part of the O.P. definitely comes within the ambit of deficiency in service U/S 2(g) and thereby involving Section 12 of the C.P. Act, 1986 as amended.
9. Therefore, in the light of the observations that is foregoing, we are of the view that the o.ps. adopted extreme measures to repossess the vehicle in dispute from the lawful possession of the complainant who is a consumer by virtue of the agreement dated 28-08-2010 and thereafter sold it unilaterally in gross violation of the agreement. The Consumer Protection Act, 1986 has a wide reach to compensate the complainant who had to withstand undepictable physical and mental sufferings together with the insult in the estimation of his neighbours having been forcibly dispossessed of his only means of livelihood i.e. the vehicle being no. WB-53A-3875 which constitutes a great loss to him and his family. We are, therefore, of the view that the capricious and oppressive act on the part of the o.p. Kotak Mahindra Bank Ltd. in forcefully repossessing the vehicle shall not go unpunished.
10. With a view to vindicate the strength of law to check on arbitrary and capricious exercise of power, in tune with the observation and direction of the Hon’ble National Commission as reported in 2004 AIR SCW 2362 in awarding compensation, we are of the view that the o.p. shall be saddled with a compensation of Rs. 4 lacs payable to the complainant for prolonged mental agony. Further award of compensation of Rs. 2 lacs for harassment and mental torture perpetrated upon him for lowering down the social status and prestige of the complainant in the estimation of others shall be appropriate and proper. Further sum of Rs. 1 lac for causing illegal and overt acts violating principle of law, equity and natural justice shall be reasonable and justified. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C.C. NO. 7 of 2013 ( HDF 7 of 2013 ) U/S 12 of the C.P. Act, 1986 as amended till date is allowed on contest as against the O.P. with costs.
The complainant is entitled to a compensation of Rs. 4 lacs from the O.P. for his prolonged mental agony.
The complainant is further entitled to an award of compensation of Rs. 2 lacs for prolonged harassment and torture perpetrated upon him by the O.P.
The complainant be further entitled to a compensation of Rs. 1 lac for lowering down his social status and prestige in the estimation of others by the overt acts of the O.P.
The complainant is further entitled to litigation cost of Rs. 10,000/-.
The o.ps. do pay total compensation aggregated to Rs. 7,10,000/- to the complainant within 30 days from the date of this order.
The complainant is at liberty to put the order into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
