Karnataka

Bijapur

CC/21/2015

Sri Basavaraj S/o Shivappa Choudari - Complainant(s)

Versus

Mahindra And Mahindra Financial Service Ltd. - Opp.Party(s)

Sri G.M.Badiger

24 Mar 2017

ORDER

                

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VIJAYAPUR

DATE OF FILING 19^th DAY OF FEBRUARY 2015

CONSUMER COMPLAINT NO:21/2015

 

DATED THIS THE 24^th DAY OF MARCH 2017

 

 

01) Sri S.H. Hosalli                            -             President.  

                  B.Com.LLB. (Spl),

 

02) Smt.G.S. Kalyani                         -        Lady Member.

                 B.Com.LLB. (Spl),

 

 

COMPLAINANT   -	1	Sri. Basavaraj S/o Shivappa Choudari,       Age:47 Yrs, Occ:Agriculture,       R/o Ganihar Tq. Sindagi Dist:Bijapur.
		(By Sri. G.M.Badiger, Adv)

- V/S -

 

 

OPPOSITE PARTY  -	1	Mahindra & Mahindra      Financial Service Ltd.,      II floor, Parekh Building,      Beside Ananya Hospital,      Lingad Road,Vijayapur.        (By Sri. P.S.Udupikar, Adv)
,,

O R D E R

 

Speaking through Smt. G.S. Kalyani, Lady Member.

 

 

 

This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as the Act) against the Opposite Party (in short the “Op”) directing the Op to handover the complainant’s Mahindra Tractor Model No:605 DI Arjun bearing the Chassis No. NJUBR-149 and Engine No.NJUBR-149 and Registration No.KA-28 TB-1559 along with the Dozer and other equipments fixed with the tractor worth of Rs.1,40,000/-, Rs.75,000/- to the complainant from the respondent for mental and physical pain suffered by the complainant due to the deficiency of service on the part of respondent, Rs.25,000/- towards litigation expenses  and any other reliefs as the forum deems fit under the circumstance of the case. 

 

 

 

2)       The brief facts of the case are that:-

         

          It is contended that complainant is an agriculturist purchased the Mahindara Tractor model No.605 DI Arjun from Santosh Tractors Vijayapur on 09/01/2012 said tractor bearing the chassis No.NJUBR-149 and Engine No.NJUBR-149.

 

3)       While purchasing the said tractor complainant availed loan from Op for Rs.4,99,000/-.  Complainant agreed to repay the said loan on installment base, for every six month complainant has to pay Rs.94,565/- to Op as one installment.  So, complainant paid two installments regularly to the Op.

 

4)       It is further contend that from the date of purchase of said tractor there was noise in the engine and also the engine pick up was not so good.  Complainant immediately informed to the dealer and manufacturer and many times complainant brought the tractor to the showroom for the repair.  The expert engineers attend and pump was repaired and engine oil was removed from the engine it was burnt.  Complainant shocked and surprised that without using the tractor at a proper time how the engine oil was burnt.  Complainant enquired the engineer he came to know that the seller of the said tractor had sold used tractor and it was a defective one. Therefore, complainant requested to the company and seller to replace the defective tractor and provide the new one, inspite of efforts either seller or company did not respond properly.  Therefore complainant filed complaint against seller and company same was numbered as CC No.76/13 same is pending.

 

5)       For the last 2-3 years, the complainant’s tractor was not in a running condition thereby the complainant parked the said tractor in front of his house.  This being the fact in the month of may 2014, the Ops officials high handedly and illegally taken tractor of complainant along with Dozer and other equipments which are attached to the tractor worth of Rs.1,40,000/-.  The complainant requested the Op not take the tractor and he is ready to pay the entire dues immediately,  after the disposal of CC No.76/13. But Op did not lessen the say of complainant forcibly taken the tractor.

 

6)       It is further contended that the Op his officials engaged in illegal activities and also they are engaged in male trade business.  Op not follow the due process of law for the seizure of hypothecated vehicle the act of Op’s amounts to deficiency in service and hence, complainant filed this complaint for necessary reliefs.

 

7)       After receipt of notice, Op appeared through his counsel and filed written version as under:-

 

8)       Op submits that complaint of the complainant is false concocted and averments made in the complaint are all denied and same was made with an oblique motive to suit the false claim.

 

9)       It is admitted by this Op that complainant availed loan of Rs.4,99,000/- from this Op on 23/01/2012 agreeing to repay with interest in eight half yearly installments of Rs.94,565/- each.  The complainant has purchased the Tractor model No.605 DI ARJUN from Santosh Tractors.  The vehicle was also registered in the name of complainant in the office of Regional Transport, Vijayapur.  The complainant paid only two installments.

 

10)     That, the complainant failed to repay the loan despite of repeated request and demands of this opponent company for repayment of loan, hence the Op has initiated arbitration proceedings to recover dues but complainant neither appeared nor paid dues to this opponent.  After holding enquiry on the matter, arbitrator has passed the award on 04/08/2014 directing complainant to pay award value of Rs.5,19,346/- with interest till the date of recovery.  Based on Arbitration award we have taken possession of the vehicle to recover the dues.  The complainant was aware about the award passed against him and also the guarantor.  To counter blast, the said award and the recovery action, the complainant has filed this false complaint misusing the provisions of law.  On this ground also, the complaint deserves to be dismissed.

 

11) This Opponent being the trustee of the public money and having lent the same for the public is also duty bound to recover the same.  The complainant with a lame excuse of defect in the vehicle has come up with this false complaint with concocted assertions, the same cannot be entertained.  The claim of the complainant to return the possession of the vehicle without any payment of dues to this opponent company so also, compensation of Rs.75,000/- is contrary to law and facts, and cannot be entertained under the law.  The complainant is not entitle for any litigation expenses much less Rs.25,000/- as asserted. Hence, prayed for dismiss the complaint with compensatory costs of Rs.25,000/-.

 

12)     Complainant filed complainant affidavit in lieu of evidence and produced two documents same are marked as Ex.C-1 & C-2.  On the contrary Op filed Op affidavit along with 4 documents same are marked as Ex.Op-1 to Op-4 respectively.  Heard the argument as complainant side and Ops Advocate not filed written argument and also not submit oral arguments though sufficient time has been given.  Hence, Op side argument taken as heard and case is taken for orders.  On perusal of written version on both side and as well as documents produced on both parties  the following points are arise for our consideration in deciding the case as under:

 

 

 

1. Whether the Op rendered deficiency of service to the complainant?.
2. Whether the complainant is entitled for the reliefs as he sought for?
3. What order?

 

 

13)    Answer to the above points.

 1) In negative.

           2) In negative.

           3) As per Final order.

 

 

 

REASONS

 

14)    Point No.1:-  There is no dispute on the point that complainant availed loan for purchase of tractor for Rs.4,99,000/- as per the agreement, complainant paid only two installments of Rs.94,565/  in eight half yearly installments Op produced loan agreed document same is marked as Ex.Op-4 dtd:23/01/2012.

 

15)     It is also admitted fact that complainant paid only two installments.  Op submits that complainant failed to repay the loan despite of repeated request and demands of this Op for repayment of loan.  Hence, Op has initiated arbitration proceedings to recover the dues, but complainant neither appeared nor paid dues to this Op.  After holding enquiry arbitrator has passed the award on 04/08/2014 directing the complainant to pay award value of Rs.5,19,346/- with interest till the date of recovery.  The said arbitration award is produced by Op same is marked as Ex. Op-2 and Op also produced statement of account dtd:25/11/2015 same is marked as Ex.Op-1.  Op submits that notice for sale of said tractor was issued to the complainant on 24/08/2014, 08/09/2014, 22/09/2014. 

 

16)     Op being the trustee of public money and having lent the same for public is also duty bond to recover the same as per agreement entered between the parties.  Op’s bounden duty to recover the loan amount as per the terms and conditions imposed in the loan agreement.

 

17)     On the contrary complainant furnished ruling of Andhra High Court in W.P. No.2542/13.

 

          “ In Sundaram Finance Limited V/s State of Kerala and Commissioner of Central Excise V/s Bajaj Auto Finance Ltd., the Supreme Court held that the financier shall not seize the vehicle by using force.  While referring to the said Judgments, the Apex Court, in City Corp. Maruthi Finance Ltd. (1-supra), held that even in the case of mortgaged goods subject to hire purchase agreement, the recovery process has to be in accordance with law and that till such time as the ownership is not transferred to the purchase, the financier normally continues to be the owner of the goods, but that does not entitle the financier, on the strength of the mortgage, to take back possession of the vehicle by use of force”.

 

 

18) Wherein the Hon’ble High Court of Andhra held that, the seizure of the vehicle is legal under law. On the facts of the present case, it cannot be said that Op has used force.  It has issued 3 notices calling upon the complainant to pay balance amount.  As the complainant failed to comply said request, Op has exercised its power under the higher purchase agreement to take possession of the vehicle under due intimation to the complainant concerned.  Hence, we do not find any merit in the plea of the complainant that the seizure of the vehicle in question by Op is illegal. For the above mentioned reasons the writ petition is dismissed. Wherein this case also the above citation is applicable to the present case.  Op issued 3 notices for requesting the complainant to pay loan amount.  But complainant did not response to the said notice.  Hence, Op forced to filed arbitration case against the complainant.

 

19)     Complainant utterly failed to appear before the arbitration. Hence, arbitration award has been passed.  Therefore, the above citation relied by the complainant is applicable to present case.  Wherein, that case also writ petition is dismissed it can be said that, Op exercised its power under the hire purchase agreement to take possession of the vehicle under due intimation and under provisions of law.  Hence, we are of the opinion that there is no deficiency of service by the Op towards complainant.  Hence, we answer to the point No.1 in negative.

 

20)    Point No.2:-  Once the deficiency of service is not proved complainant is not entitled to get any reliefs.  Hence, we answer to the point No:2 in negative.

 

 

21)    Point No3:-  In the result, the complaint of the complainant is fit to be dismissed.  Hence, we proceed to pass the following order.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

O R D E R

 

1. The complaint of the complainant is dismissed. No order as to costs.

 

2. Free copy of this order shall be sent to the parties.

 

 (This order is dictated to the Stenographer, directly on Computer, edited, corrected  and  then  pronounced in the open forum on this 24^th     day of March  2017).

 

 

 

 

 

Sri. S. H. Hosalli  President.

Smt. G. S. Kalyani     Lady Member.