Present: Sri A. K. Bhattacharyya, WBHJS (Retd.), President
Smt. S. S. Ali, LLB, Member
Judgment delivered on: 28-08-2012
JUDGEMENT
The facts giving rise to the instant case are as follows:
The complainants intended to purchase a Mini Truck of Tata make (WB-29/5958) for the sole purpose of maintaining their livelihood by self employment by utilizing the same themselves. The OP no.1 financed a sum of Rs. 3,98,000/- out of total value (Rs.4,71039/-) of the aforesaid Mini Truck. The rest sum of Rs.73,039/- was borne by the complainants which they paid to the dealer ‘French Motor Car Co. Ltd.’ including earlier deposit of Rs.33,000/-. It was settled between the OP no.1 and the complainants that the aforesaid loan would be repaid with interest to the OP no.1 in 45 monthly installments w.e.f. October 2004. The said vehicle was delivered to the complainants on 20.09.2004, but unfortunately, the said vehicle met an accident in the month of April, 2005 at Mangaldwari for which Panskura case being no. 06 of 2005 dtd. 11.04.2005 under 177 of M.V. Act against the said driver of the vehicle was initiated. The OP no.2 being the local agent of OP no.1 received a sum of Rs.1,500/- from the complainants on 26.04.2004 towards documentation charges as stated by him. The OP no.2 also received Rs.13,000/- on 14.07.2004 and further Rs.10,000/- on 17.07.2004 as initial deposit for the purpose of financing the said vehicle prior to said transaction in between the OP no.1 and the complainants. Due to the accident the complainants could not make payment of the due installments in time for which the complainant no.1 by his letter dtd. 13.06.2005 gave an undertaking to make payment of due installments after repairing of the vehicle in question. After repairing works the vehicle was put to road during the fag end of June, 2005. On 02.07.2005 when the vehicle (after repairing) was running through NH6 road near Sankrail, it was taken away forcibly by the personnel of OP no.1 from the driver of the vehicle, without any prior notice and was kept in their custody by way of repossession.
The OP no.1 did not return the vehicle inspite of receiving a further sum of Rs.73,000/- by an A/c Payee cheque being no. 0904430 dtd. 13.09.2005 from the complainants towards the due installments, rather the OP no.1 indulged in falsehood with a request to ‘Dey Automobiles’ for releasing the vehicle in question by their letter dtd. 22.11.2005 though the vehicle had already been sold without any notice to the complainants causing sufferings to the complainants - both financial loss as well as mental stress and agony. Hence, the instant petition of complaint seeking various relief as per prayer of the complaint.
The complainants in support of his case filed the following documents:
- Customer Proposal – 4 sheets (Exbt.-1 and Exbt.-2)
- Release Letter dtd. 22.11.2005
of Magma for return of vehicle(Exbt.-3)
in question
- Cash Receipts (Exbt.-4 to 12)
- Letter dtd. 11.07.2005 of Magma (Exbt.-13)
- Letter dtd. 30.04.2007 of Magma (Exbt.-14)
- Letter dtd. 01.02.2005 of Magma (Exbt.-15)
- Cash receipt dtd. 26.06.2004 (Rs.1500/-), dtd. 14.07.2004 (Rs.13000/-)
Dtd. 17.07.2004 (Rs.10000/-) in one sheet, etc.(Ext. 16)
- Photocopy of Cheque dtd.13.09.2005 in favour of Magma (Rs.73000/-) etc.
Both the OPs contested the case by filling separate W/V denying all material allegations made against them by the complainants. It is stated interalia by the OP no.1 that the case is not maintainable and that OP no.1 repossessed the vehicle in terms of the agreement entered into by and between the OP no.1 and the complainants and then sold the above vehicle. Hence, they prayed for dismissal of the case.
The OP no. 1 filed photocopy of Hire Purchase Finance Agreement dtd. 10.09.2004 including 2 schedules and photocopy of order of Arbitrator etc. in support of their contentions.
The OP no.2 stated interalia that all the amount, received by him as an agent of OP no.1, from the complainants, had been deposited in time with the OP no.1. and that he is not liable in this matter.
It appears from the record that the ex-parte order passed by this forum on 09-07-2008 was set aside and the case was remanded back by the Hon’ble State Commission, West Bengal in order to enable the contesting parties to adduce evidence and counter evidence and for cross-examination. Thereafter, the complainants adduced evidence by filing his affidavit-in-chief and was cross-examined by the other side. Documents were marked as Ext. 1 to 16 on behalf of the complainants. Evidence-on-Affidavit on behalf of OP no. 1 was filed and authorized signatory on behalf of the OP no. 1 namely Mr. Shyam Lal Dutta was examined as OPW-1. Questionnaire was filed by the complainants and reply thereof was given by the OP no. 1. No evidence is adduced on behalf of OP no. 2.
Points for consideration
- Whether the case is maintainable in its present form and in law?
- Whether there is any deficiency in service on the part of the OP parties?
- Whether the complainants are entitled to get any relief as sought for?
Decisions with reasons
Point nos. 1 to 3:
All these points are taken up collectively for the convenience of discussion. Moreover, they are inter-connected.
We have perused the record of this case and considered the matter in the light of the averments advanced by the counsels of both sides and also the documents produced on record by the parties and evidence adduced by the parties.
Admitted position is that the OP no. 1 financed a sum of Rs. 3,98,000/- to enable the complainants to purchase the vehicle in question i.e. TATA 407 Mini Truck bearing no. WB-29/5958 upon execution of an agreement in between the parties. As per said agreement, the complainants were supposed to repay a sum of Rs. 5,19,160/- in 45 installments.
The Ld. Advocate for the OP1 raised objection about maintainability of this case on the following grounds:
- The complainants purchased the vehicle for business purpose by plying the same on road and according to the Ld. Advocate for OP1 the complainants are not ‘consumers’ within the meaning of the provision of the C.P. Act, 1986.
- Disputes under a Hire Purchase Agreement cannot be adjudicated by a Consumer Forum.
- As per Arbitration Clause mentioned in the agreement, the complainants are not entitled to any relief from this Forum and that award under Arbitration proceedings has already been pronounced by the Arbitrator. Thus, there is no scope for the complainants to agitate the same afresh before this forum.
The Ld. Advocate for the complainants opposed the aforesaid argument as advanced by the Ld. Advocate of OP1 with contention that the complainants used the vehicle exclusively for the purpose of earning their livelihood by means of self employment, that the transaction in between the parties was a give and take policy by way of taking interest from the complainants by OP1 for taking such loan and that Arbitration proceeding was started long after filing of the instant complaint and that the provisions of this Act is not in derogation of the provisions of any other law in force.
Having regard to the facts and circumstances of the case and on due consideration of the submissions of the Ld. Advocates of both sides, we are unable to accept the above contention as raised on behalf of OP1, in view of the fact that no material is produced on their behalf to show that the complainants used the vehicle in question purely for commercial purpose, rather the complainants specifically by swearing an Affidavit affirmed that they used the vehicle in question only for the purpose of earning their livelihood by means of self employment, that part of the cost of vehicle was also borne by the complainants; that admittedly the OP no. 1 is not dealing in purchase and thereafter hiring of vehicles; that admittedly the OP1 took interest/service charge from the complainants against sanction of loan in favour of the complainants, which clearly establish the status of the complainants as ‘consumers’ under the provision of the Act and that Sec 3 of the C.P. Act, 1986 makes it crystal clear that the provision of the Act shall not be in derogation of the provisions of any other law in force and therefore, the instant case is maintainable in its present form.
On perusal of the record the following facts emerge which bears mentioning.
- The ld. Lawyer for the OP no. 1 disputed the allegation of the complainants that they repossessed the vehicle in question by use of force but stated that the complainants voluntarily surrendered the vehicle in question to the OP no. 1. However, the very fact that the vehicle was seized midway from NH-6, it clearly belies the contention of OP no. 1 in this respect.
- On the other hand ld. lawyer for the complainants claimed to have repaid Rs. 1,79,410/- between the period from 26-06-2004 to 30-09-2005; whereas ld lawyer on behalf of the OP no. 1 disputed the aforesaid figure by claiming that during the said period the complainants only repaid a sum of Rs. 70,510/-.
From the documents filed by the complainants i.e. Ext. 5 to 12 it appears that the complainants repaid a sum of Rs. 70,561/- during the period from 02-11-2004 to 30-06-2005.In addition to that a sum of Rs. 13,000/- and another sum of Rs. 10,000/- was also paid by the complainants on 14-07-2004 and on 17-07-2004 respectively to the OP no. 1 through their agent OP no. 2 (Ext. 16). There is no dispute that the OP no. 2 was the local agent of OP no. 1 and according to OP no. 2, he paid the above sum of Rs. 23,000/- along with Rs. 1,500/- as documentary charge to the OP no. 1.
So, materials on record go to show that till the date of repossession of the vehicle in question, the complainants repaid Rs. 93,561/-.
- The ld. Lawyer for the complainants claimed that a further sum of Rs. 73,000/- was paid by the insurance company directly to the OP no. 1 on behalf of the complainants. The OP no. 1, however, denied receipt of the same, but, release letter of the Op no. 1 dt. 22-11-2005 which is on record (Ext. 3) squarely confirms that the OP no. 1 (Magma) received the a sum of Rs. 73,000/- on 30-09-2005 on behalf of the complainants for which the OP no. 1 issued the said release order of the vehicle in question.
- Admittedly, the OP no. 1, without any prior notice or any legal means i.e. proper order from a competent court of law, seized the vehicle on 02-07-2005 though it is settled law that prior notice is a perquisite for taking repossession of a vehicle on account of non-payment of installments by a lonee.
From the Ext. 2 i.e. repayment schedule with regard to installments it is found that before repossession, the complainants were supposed to repay Rs. 1,05,760/- out of which, as it is evident from the record that the complainants paid Rs. 93,561/- i.e. as on the date of repossession of the vehicle (02-07-2005) there was a shortfall of Rs. 12,199/-. It is strange that the OP no. 1 resorted to such drastic step without taking appropriate legal recourse without any prior notice by citing the presence of repossession clause in the agreement though different Hon’ble Court of law from time to time have denounced such arm twisting measures on the part of financial institutions/banks. It clearly points out deficiency in service on the part of the OP no. 1.
- It is claimed by the ld. Lawyer for the complainants that the OP no. 1, with a mala fide intention, issued one Release letter (Ext. 3) in favour of one Dey Automobiles, 104, B.T.Road, Kolkata on 22-11-2005 directing them to release the seized vehicle of the complainants despite being fully aware of the fact that the vehicle had already been sold on 25-08-2005 which, according to him tantamount to indulgence in unfair trade practice and deficiency in service.
On perusal of the record it appears that the OP no. 1 vide their reply on affidavit admitted that the vehicle in question was sold on 25-08-2005. The OP no. 1 failed to give any satisfactory explanation behind issuance of such release letter (Ext. 3) for releasing the vehicle though the vehicle in question had already been sold by the Op no. 1 on 25-08-2005 which also squarely point out that there is deficiency in service on the part of the OP no. 1 against the complainants.
The OP no. 1 not only apprehended the vehicle in question by use of force without any legal notice/legal means while the same was plying along the road and thereafter sold the same by keeping the complainants totally in the dark, but the OP no. 1 also issued a Release letter in respect of the said vehicle with the full knowledge that the vehicle had already been sold, which cannot be appreciated under any circumstances. Thus, keeping in view the totality of the circumstances of the case, we feel that it would be just and proper to direct the OP no. 1 to pay a compensation of Rs. 2,00,000/- to the complainants for their gross deficiency in service and indulgence in unfair trade practice thereby causing financial loss and harassment and also mental agony to the complainants along with litigation cost Rs. 5,000/-.
These points are thus disposed of in favour of the complainants.
Hence, it is
O R D E R E D
that the instant CC case no. 75/2005 be and the same is allowed on contest against the OP no. 1 and dismissed against the OP no. 2. The OP no. 1 is directed to pay Rs. 2,00,000/- as compensation along with litigation cost Rs. 5,000/- to the complainants within 45 days from the date of communication of this order i.d. the complainants are at liberty to execute the order in accordance with law in which case the OP no. 1 shall be liable to pay interest over the total awarded amount @ 10% p.a. from this day till full and final settlement. We also make it clear that the OP no. 1 shall not be entitled to recover any amount from the complainants if any amount still remains unpaid in their books of account in respect of the loan in question.
