Punjab

Gurdaspur

CC/358/2015

Rakesh - Complainant(s)

Versus

Magma Fincorp Ltd. - Opp.Party(s)

Sh.Vinod Harchand & Sh.Deepak Sharma, Advs.

12 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, GURDASPUR
DISTRICT COURTS, JAIL ROAD, GURDASPUR
PHONE NO. 01874-245345
 
Complaint Case No. CC/358/2015
 
1. Rakesh
S/o Sewa Singh r/o vill Dalla Gorian P.O.Kahnuwan Teh and Distt Gurdaspur
gurdaspur
punjab
...........Complainant(s)
Versus
1. Magma Fincorp Ltd.
24 Park Street Kolkatta 700016 thropugh its M.D
............Opp.Party(s)
 
BEFORE: 
  Sh. Naveen Puri PRESIDENT
  Smt.Jagdeep Kaur MEMBER
 
For the Complainant:Sh.Vinod Harchand & Sh.Deepak Sharma, Advs., Advocate
For the Opp. Party: Sh.Vikrant Mahajan and Sh.Rajeev Sharma Adv. for OPs. No.1 & 2. OP. No.3 exparte., Advocate
ORDER

Complainant Rakesh  through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the necessary directions may kindly be issued to the opposite parties to pay damages amounting to Rs.1,00,000/- alongwith interest @ 18% P.A. from the date of snatching his machine i.e. 29.01.2015 and also to pay the compensatory amount of Rs.1,00,000/- with interest on account of deficiency in service and mental pain, agony suffered by him.   

2.      The case of the complainants in brief is that he for the purpose of earning his livelihood purchased a new construction equipment, the description of which is TREX TLB-740S BACKHOE LOADER, FITTED WITH 1.00 CUM LDR BKT, 0.25CUM EX PKT, KIRLOSKAR ENGINE 76H.P WITH IND TYRES 7 STD FITMENTS, Model June 2013, bearing Machine no/Chassis no. TESC12AQ-05-D-740-8023 Engine no.H.3202/1320294, after borrowing a loan from the branch office of opposite party no.2 vide hypothecation agreement/proposal no.PG/0189/E/12/000010, agreement code no.HO/G/0189/12/000088. He had been paying installments to opposite party no.2. He obtained loan from opposite parties no.1 and 2 at Pathankot and the loan was sanctioned and disbursed at Pathankot. He purchased the machine for a total amount of Rs.20,00,000/- as per sale invoice. At the time of purchase of machine he got it financed from opposite party no.1 for an amount of Rs.15,12,641/- and the loan amount is repayable in 47 equated monthly installments of Rs.42,380/- commencing from 10.07.2013. Thus the total amount to be repaid comes to Rs.19,91,860/- as per loan agreement. He has further pleaded that due to extravagant slump in infrastructure market he could not make timely payment of 3-4 installments consequently the opposite party no.2 through its muscle man forcibly snatched and drove away the machine from his house on 29.01.2015 at about 10.00 PM. After the said incident, he contacted opposite party no.2 and asked about the said illegal act but the opposite party no.2 straightway disclosed that they will not release the machine unless he pays an amount of  Rs.2,50,000/- for that reason he paid an amount of Rs.2,43,000/- on 19.03.2015 to opposite party no.2 at Pathankot. Accordingly opposite party no.2 issued a releasing letter dated 20.03.2015 to him to get his machine back from the parking yard of opposite party no.3. Shockingly, he found his machine in a busted condition. He has next pleaded that he paid an amount of Rs.2,43,000/- to opposite parties no.1 & 2 on account of  arrears of installment, but the opposite parties illegally and arbitrarily credited only Rs.2,13,000/- to his loan amount and charged Rs.30,000/- towards other hidden unexplained expenses. At the time of snatching and confiscating above machine, it was intact working condition with all its parts and components. The tyres of machine were original company fitted. The tyres were in new condition and hydraulics oils were upto the mark, but when he received his machine he was stunned to see the condition and appearance of machine. The opposite parties in connivance with each other have squeezed out all the lubricating hydraulic oil and new tyres of machine were replaced with old and burst tyres. The original battery of machine make exide was also replaced with old and dead country made battery. He immediately called the authorized officer/incharge of opposite parties no.2 but he failed to give any cogent reply and fed him with a promise to look into the matter. Then he approached the owner of parking yard i.e. opposite party no.3 but he also did not accord any satisfactory reply and put the blame on the staff of opposite parties no.1 and 2. Thereafter, he made a written complaint to opposite party no.2 regarding the said illegal and criminal incident. The concerned Incharge Mr.Sahil Gupta assured him that he will look into the matter and will initiate action against the guilty person whosoever may be; the said Incharge of opposite party no.2 further assured him that he will manage to make good his loss on account of abovesaid incident and further instructed him to take back the possession of machine on as is condition. Believing the version of opposite party no.2, he drove away his machine from the parking yard of opposite party no.3 after making repairs and refilling hydraulic oil etc. Till today, the opposite party no.2 despite of his verbal promise and assurance failed to do the needful and to make good his loss. The said act of opposite parties is unlawful and also amounts to unfair trade practice. Hence this complaint.     

3.      Notice of the complaint was served upon the opposite parties no.1 and 2 who appeared through their counsels and filed their written reply by taking the preliminary objections that complaint is not maintainable; the Hon’ble Forum has got no jurisdiction to entertain the present complaint; the complainant has failed to set out any deficiency in service or unfair trade practice on the part of the opposite party; the complainant has filed a false complaint by misstating the actual facts and has further mislead the Hon’ble Forum. The complainant had purchased one machine BACKHOE LOADER MODEL TLB-740S, Engine no.4H.3202/1320294 & Chassis no. TESC12AQ-05-D-740-8023 and the same was financed with opposite party no.2 vide loan agreement no.PG/0189/E/12/000010 and the complainant failed to repay the installments of the vehicle in question as per the terms and conditions of the loan agreements and when the opposite party approached the complainant in respect of the defaulted amount, he surrendered his vehicle on 29.01.2015 and he stated that he will get the vehicle released after he pays the default amount at the time the vehicle was repossessed and inventory of items in the vehicle was prepared which was duly signed by the complainant and thereafter when the vehicle was taken back by the complainant on 20.03.2015 he had given a satisfaction note.  It was further submitted that the complainant had defaulted in the repayment of the loan amount and the matter was adjudicated by the arbitrator and the award was passed. Moreover the execution of the award of the arbitrator is pending in the court of Smt.Anjana, Additional District Judge, Gurdaspur and is fixed for 12.02.2016. The complaint is also being prosecuted under section 138 NI Act and the criminal complaint titled as Magma Fin.Corp Vs. Rakesh Kumar is pending in the Court of Ms.Manpreet Kaur, JMIC Gurdaspur and is fixed for 11.01.2016 for the cross examination of the complainant in that complaint. The complainant has intentionally and with malafide intentions concealed the pendency of the above stated cases in present complaint. The act and conduct of the complainant is crystal clear and the writing is clear on the wall that the complainantt has filed this present complaint just to evade his liability. On merits also, the same pleadings have been repeated and dismissal of the complaint has been prayed.   

4.        Notice issued to the opposite party no.3 had not received back. Case called several times during the day but none had come present on its behalf, therefore, it was proceeded against exparte vide order dated 6.11.2015.

5.       Complainant has tendered into evidence his own affidavit Ex.C1 along with other documents Ex.C2 to Ex.C18 and closed his evidence.  

6.     Counsel for the opposite parties no.1 and 2 has tendered into evidence affidavit of Sh.Sukhveer Singh Ex.OP-1 along with other documents Ex.OP-2 to Ex.OP-10 and closed the evidence on behalf of opposite parties.

7.         We have carefully gone through the pleadings of both the parties, arguments advanced by their respective learned counsels and have also purposefully perused the documents/evidence produced on record along with the incidental scope of adverse inference for of some gap evidence ignored to be produced by the contesting litigants with the valuable assistance of the learned counsels for the purpose of adjudication of the present complaint. We have also noted the ex-parte absence of the OP3 Parking Yard in the light of the judicial discretionary presumption that the ex-parte litigant has no legs to come and stand in the witness box to prosecute his defense. We find that the sole prime dispute pertains to the ‘short & defective’ delivery (back)/ return of the re-possessed vehicle (TRX TLB-740S Back Hoe Loader) to the complainant (by the OP financers/ Parking Yard). The complainant has alleged that during the period of retention of the repossessed vehicle its original Tyres (Company fitted) were replaced with ‘depleted’ used Tyres; its original Exide Make Battery was replaced with an old & discharged (country-made) Battery whereas its expensive ‘hydraulic-oil’ was ‘squeezed-out’ (drained out) by the Opposite Party personnel.   All above, was duly reported to the OP financers on 20.03.2015 (at the time of release-delivery from the OP3 Parking Yard) and many a times, thereafter, also; but to no avail and as such the complainant had to suffer/bear with a monetary loss of Rs one lac approximately. The commissioning report Ex.C3 and the service job card Ex.C4 do prove that the Machine was indeed fitted with original Tyres of BKT make (with specific marked nos.) and original Exide Battery whereas the photographs Ex.C16 & Ex.C17 indicate some different ‘eroded’ Tyres. The complainant has no doubt produced the quotations/ price-lists of Tyres (Ex.C7) but has somehow, not produced any cogent evidence of purchase of new Tyres/ new Battery/ hydraulic-oils etc and/ or other details of the alleged monetary loss of Rs one lac etc. Of course, the complainant has produced Tax Invoice Ex.C9, the Sale Letter Ex.C10, the Fitness Certificate Ex.C11 and the OP Loan statement Ex.C8 proving his ownership over the OP financed Loader Machine (in working order). Further, the deposit Receipt (Ex.C14) dated 19.03.2015 for Rs.2,43,000/-, Release Letter (Ex.C5) dated 20.03.2015 and copy (Ex.C6) of Stock Register (of OP3 Parking Yard) do prove the alleged repossession & subsequent release of the Machine by the OP financers. Again, the Surrender Receipt Ex.OP2 dated 29.01.2015 (10 PM) itself belies the OP’s claim of ‘surrender’ of Machine by the complainant himself since the cloaked time indicates towards ‘forcible repossession’. The delivery receipt Ex.OP3 has been one ‘pre-printed’ routine piece of paper and has little evidentiary value. It can simply be relied upon for the ‘delivery’ of the Machine but not for the ‘factual’ condition of the delivered machine. Further, the OP produced documents exhibited as: Ex.OP4 to Ex.OP10 are not relevant to the proceedings of the present complaint since these exhibits pertain to ‘arbitration’ and ‘cheque-bouncing’ subjudice matters as duly deposed of in the OP produced affidavit Ex.OP1.      

8.       The matter in issue (and for adjudication) in the present complaint pertains only to the ‘replacement’ of original Tyres & Battery with old depleted parts and draining out of the expensive hydraulic oil (of the repossessed Loader Machine) during its period of retention/parking with the OP financers. As discussed above, in detail, we find that the OP financers have not produced any cogent evidence during the entire proceedings to rebut the allegation of replacement of Tyres, Battery and draining out of the expensive hydraulic oils from the Loader Machine during its period of retention at the OP3 Parking Yard. We find this act of the OP financers as most deplorable and an unfair trade practice on their part towards the ‘repossessed’ vehicles. The OP objection of commercial purpose vehicle also gets ruled out by virtue of the complainant affidavit Ex.C12 coupled with his other pleadings etc thus lining up the OP financers to an adverse award under the Act. In our considered opinion the ‘consent’ by way of ‘signing’ the loan documents/agreement by the complainant (comprising of self-damaging clauses) cannot be the prompts of ‘free-consent’ but surely an outcome of his ‘subservient’ status/position to the influential OP financers who being people of means and influence do manage to execute such self-damaging ‘legal’ at the hands of ignorant clients & that amounts to ‘unfair trade practice’ along with ‘deficiency in service’ as envisaged under the provisions of the Act. The OP financers are thus held liable to an adverse statutory award duly loaded with punitive damages.   

9.       In the light of the all above, we are of the considered opinion that the complaint is based upon a genuine grievance of the complainant pertaining to infringement of his consumer rights, indeed having incurred/taken effect. The OP financers have mercilessly exploited the subordinate/subservient position of the complainant (being a borrower in default only for 3-4 nos. of EMIs). The OP financers have charged an exorbitant penal rate of interest against the market rate of 18% PA, duly capped at the extant guidelines of the Reserve Bank of India. No doubt the OP being a private Lender his disputes pertaining to the ‘advancing of loans’ shall be determined as per the contracted ‘Terms & Conditions’ but these shall not be totally “un-bridled”. Even the private lenders are governed by certain set of RBI approved guidelines and the OP financers have failed to comply with the same and those produced by him alleged to have been accepted by the complainant do not conform to those as set out by the prime governing authority. Finally, we find and hold the OP guilty of having indulged in unfair trade practices and also deficient in service in its dealings with the complainant, as duly discussed above. Thus we partly allow the present complaint and ORDER the Opposite Party financers to pay Rs.1,00,000/- (Rupees one lac) in lumpsum as compensation to the complainant within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract interest @ 9% PA from the date of filing of this complaint  till actual payment.

10.        Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

                                                                         (Naveen Puri)

                                                                               President.                                                                                

ANNOUNCED:                                          (Jagdeep Kaur)

July 12, 2016                                                       Member.

*MK*

 
 
[ Sh. Naveen Puri]
PRESIDENT
 
[ Smt.Jagdeep Kaur]
MEMBER

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