Haryana

Yamunanagar

CC/963/2011

Nisha Bagga W/o Devender Bagga - Complainant(s)

Versus

Mahindra And MAhindra Finance Service Ltd. - Opp.Party(s)

Ajay Deep Singh

17 Apr 2017

ORDER

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM YAMUNA NAGAR JAGADHRI

 

                                                                                    Complaint No. 963 of 2011.

                                                                                    Date of Institution: 09.09.2011

                                                                                    Date of Decision: 17.04.2017

Nisha Bagga aged about 40 years wife of late Devender Bagga, resident of Shivpuri, I.T.I. Backside, Kansepur Road, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                         

                                                                                                     ..Complainant

Versus

1. Mahindra and Mahindra Finance Service Ltd, through its M.D. 2^nd Floor, Sadhana House, Behind Mahindra Towers, 570 P B Marg, Worli, Mumbai-400 018.
2. Mahindra and Mahindra Finance Service Ltd. through its Branch Manager, S.C.O. No. 102, 2^nd Floor, Sector-17, Commercial Market, Jagadhri, District Yamuna Nagar.
3. Mahindra and Mahindra Finance service Ltd. through its Branch Manager, Karnal, Haryana.

                                                                                                  ..Respondents.

 

BEFORE:        SH. ASHOK KUMAR GARG …………….    PRESIDENT

                        SH. S.C. SHARMA  …………………………MEMBER  

 

Present: Sh. Ajay Deep Singh, Advocate, counsel for complainant.

               Sh. Balraj Rana, Advocate, counsel for respondents.

 

ORDER  (ASHOK KUMAR GARG PRESIDENT)

1.                        The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986. 

2.                     Brief facts of the present complaint, as alleged by the complainant, are that husband of the complainant had purchased one Rhino Car for a sum of Rs. 6,02,500/- from Aggarwal Motors, Ambala City on 06.08.2006 and for the same purpose loan was sanctioned in favour of the complainant by the respondent No.3 i.e. Mahindra & Mahindra Karnal (hereinafter respondents will be referred as OPs). At the time of purchase the complainant had deposited an amount of Rs. 2,10,000/- as margin money and remaining amount was to be paid in installments. The husband of the complainant regularly kept on paying the installments up to December, 2008 totaling around 28 installments of Rs. 10,000/- per month. Thereafter, in the month of December, 2008, the husband of the complainant namely Devender Bagga suddenly expired due to illness. After the death of her husband, complainant approached the OPs No.2 & 3 and told that she will deposit the pending installments as soon as possible. However, the official of the OPs in the month of April, 2009 alongwith their muscleman illegally and malafidely took the possession of the car. At that time, complainant many times told the concerned officials of Op No.2 & 2 and their musclemen that she was regularly paying the pending installments and few installments were left to be paid and she will clear all the dues of the car loan but the officials of the OPs did not adhere to the just and genuine request of the complainant and forcibly took the possession of the car of the complainant. Thereafter, the complainant moved many applications before the official of the OPs to return the vehicle in question but all in vain and finding no other alternative a legal notice was issued on 15.06.2011 but all in vain. Lastly, prayed for directing the OPs to return the car in question and also to pay mesne profit for using the said car and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OPs appeared and filed its written statement jointly by taking some preliminary objections such as the complainant has not approached this Forum with clean hands. As a matter of fact, the complainant’s husband had availed the loan from the company and signed the agreement after understanding all the terms and conditions of the agreement. An amount of Rs. 4,19,000/- was lend to the husband of the complainant to be repaid in 59 monthly installments of Rs. 10,000/- each but the husband of the complainant did not turn out to be a good borrower, he committed regular and intention default and did never obey his commitment of timely payments; complainant is not consumer as the vehicle financed to the complainant is commercial vehicle and was being used for commercial purpose and the same is evident from the averments made by the complainant herself in her complaint; the relationship of the complainant and the OPs are governed by hypothecation agreement and therefore, the complainant cannot be termed as consumer under the Consumer Protection Act; this Forum has no territorial jurisdiction to entertain and try the present complaint; as per clause 26 of the agreement entered into between the parties hereto, all disputes, differences, claims and questions whatsoever arising out of this agreement shall be referred to the sole arbitrator, hence, this Forum has no jurisdiction; complainant herself surrendered the vehicle and showed her inability to pay monthly installments as well as loan amount and after surrender of vehicle the OPs issued notice on 19.01.2009 regarding the payment of loan otherwise, the vehicle would be sold out but the complainant did not come to repay the loan and filed the present complaint after a gap of long time just to harass and blackmail the OPs and on merit, it has been mentioned that a huge amount is still pending against the complainant. After the death of her husband, the complainant showed her inability to pay the balance amount, therefore, the complainant herself surrendered the vehicle to the OPs and now after a gap of nearly three (3) years, the complainant came with a cooked up story just to harass and humiliate the OPs. Rest contents of the complaint were denied and lastly prayed for dismissal of complaint.

4.                     Complainant failed to adduce any evidence despite availing so many opportunities being last, hence evidence of the complainant was closed by court order on dated 28.03.2016. However, at the time of filing of complaint complainant placed on file photo copy of legal notice dated 15.06.2011 as Annex. C-1, photo copy of cheque amounting to Rs. 4,19,000/- as C-2,  Photo copy of guarantee letter as C-3, Photo copy of invoice as C-4, Photo copy of sale certificate as C-5, photo copy of insurance cover note as C-6, photo copy of death certificate as C-7  in support of her case.

5.                     On the other hand, learned counsel for the OPs tendered into evidence affidavit of Sh. Dikshit Kumar Power of Attorney holder of Mahindra & Mahindra as Annexure RW/A and documents such as photo copy of loan agreement as Annexure R-1, Photo copy of installment schedule as Annexure R-2 and R-3, Photo copy of invoice/bill as Annexure R-4, Photo copy of insurance policy as Annexure R-5, Photo copy of registered notice dated 15.01.2009 as Annexure R-6 and closed the evidence on behalf of OPs.

6                      We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very carefully and minutely.

7.                     The only version of the complainant is that she was paying the installments of the loan amount regularly after the death of her husband who obtained car loan amounting to Rs. 4,19,000/- from the Op No.3 Mahindra & Mahindra, Karnal, however, official of the OPs alongwith muscleman in the month of April, 2009 forcibly with malafide intention took the possession of the car in question which constitute the deficiency in service and unfair trade practice on the part of the OPs.

8.                     On the other hand, learned counsel for the OPs argued that a huge amount is still pending against the complainant and after the death of her husband, the complainant showed her inability to pay the balance amount, therefore, the complainant herself surrendered the vehicle to the OPs Finance Company and now after a gap of nearly 3 years, the complainant came with a cooked up story just to harass and humiliate the official of the Ops and lastly prayed for dismissal of complaint.

9.                     After hearing both the parties, we are of the considered view that complainant has totally failed to prove her case as the complainant has not placed on file any account statement or receipt vide which she deposited the installments against the loan amount. Even, the complainant has failed to summon the record of the OPs Company to prove that she was paying the installments regularly and nothing was due against her. As per version of the complainant, the car in question was snatched by the official of the OPs in the month of April, 2009 whereas the present complaint has been filed on 09.09.2011 i.e. after a period of 2 years and 5 months and no reason has been explained or disclosed that why she kept mum for a such long time. Even, the complainant has also not disclosed in her complaint that how much money was deposited by her husband or by the complainant after the death of her husband. The OPs have also not placed on file any account statement showing the defaulting amount against the complainant. The OPs have also not disclosed in their written statement that what amount was due against the complainant at the time of taking the repossession of the car in question from the complainant. Even, the latest status of the car has also not been disclosed by either of the parties.

10                    In the circumstances noted above, we are of the considered view that as the complainant has not placed on file any cogent evidence to prove any deficiency in service or unfair trade practice on the part of Ops. Hence, we have no option except to dismiss the present complaint. However, the matter involved between the parties is relating to the account which cannot be decided by this Forum in a summary way and to decide such type of cases Civil Court is the best platform.

11.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. However, the complainant is at liberty to approach the Civil Court, if so advised. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 17.04.2017.          

                                                                                                (ASHOK KUMAR GARG)

                                                                                                 PRESIDENT

                                                                                                 DCDRF, YAMUNANAGAR

 

 

                                                                       

                                                                                                (S.C. SHARMA)

                                                                                                 MEMBER