BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
C.C NO-08/2013
Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).
Pabitra Mohan Sahu,
S/O- Late Khetra Mohan Sahu,
R/O- vill- Laripali,P.O- Malidihi,
P.S-Kolabira,Dist- Jharsuguda. …..Complainant
Vrs.
Mahindra & Mahindra Financial services Ltd,
R/O- Near Tata Petrol Pump,N.H Road, Ainthapali,
P.O/P.S-Ainthapali, Dist- Sambalpur.
Counsels:-
- For the Complainant:- Sri P.C Behera, Advocate & Associates.
- For the O.P :- Sri A.K. Sahu,Advocate & Associates.
DATE OF HEARING : 01.03.2021, DATE OF ORDER : 22.03.2021
SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that the Complainant is the registered owner of a Tata Indigo Manza aura-A Car bearing registration no- OR-15-Q-2283 having its Chassis No- MAT613001ALG1903 and Engine No-101A20000095851, purchased on dtd.12.11.2010 through finance by the O.P. An agreement was made with the finance company on dtd.27.10.2010 on this matter and Swubhrajit Khuntia stood as the Guarantor for the Complainant. Due to ill health he could not make payment of the instalment regularly and an amount of Rs.167336 was accumulated as overdue against him. But on dtd.02.02.2012, the O.P with the help of some Goondas took the Car from the premises of the Complainant in his absence without observing the direction of Hon’ble Supreme Court regarding repossession of vehicle. Thereafter the Complainant had several times visited the Office of the O.P- to make payment and taking the possession of the vehicle but the O.P avoided receiving the outstanding dues. The Complainant has deposited down payment, fitted some accessories, insured the vehicle, paid onetime Tax at the time of Registration and such total cost amounts to Rs.6,95,000/- while the Car became roadworthy. The O.P has applied to the RTO Sambalpur to issue fresh registration certificate in his name and the RTO basing on this issued notice to the Complainant in Form No-37 which objected by the Complainant through his Lawyer on dtd.03.07.2012 with a request to issue a direction to the O.P to give the possession of the Car to the Complainant. But the O.P instead of giving possession of the Car to the Complainant sold the same to one purchaser from Bolangir who is using the said Car since then. The O.P has not serve any notice to the Complainant before taking possession and sale of the said Car which against the Law. The act of the O.P is amounts to Deficiency in Service along with Unfair Trade Practice which pushed the Complainant to harassment, financial loss, mental pain and agony for which he sought certain relief from this Commission. The Complainant is ready to pay the outstanding dues of Rs.1,67,339/- with interest thereon at the time of taking possession of the Car.
As per the version of the O.P, the Complainant does not fall within the meaning of consumer as because the relationship between the Complainant and the O.P is that of a Borrower and a Lender (Ref:- Ram Deshlahara Vrs. Magma Leasing Corp Ltd. III 2006CPJ 247) The Complainant did not pay the EMIs regularly hence the O.P after serving notices to the Complainant and the Guarantor on dtd. 10.01.2012, repossessed the said Car which is totally a legal procedure and the amount of outstanding on the date was Rs.4,60.288/-. Again as per the O.P, though the Complainant is the registered owner of the said Car, the O.P is first Charge holder on the financed vehicle. The Hypothecation if the R.C book contains the name of Mahindra & Mahindra Financial Services Ltd. (MFSL) hence the Company is the legal owner. The O.P has placed reliance on the decision in the case of “Deepak Sahu Vrs. IndusInd Bank” by SCDRC,Odisha, that when a repossession vehicle is done following breach of Hire Purchase Agreement terms, it does not amounts to deficiency in service . The Financier has applied to the RTO to change the ownership of the Car to his name under the provision of the M.V act and in order to comply the provision the RTO has change the ownership of the Car. Again the Complainant was unable to establish that the Car was exclusively for the purpose of earning livelihood by means of self employment and is a consumer within the meaning of Consumer Protection Act. The Advocate for the relied on the decision in the case of “Laxmi Engineering Works Vrs. PSG Industrial Institute” cited in 1995-AIR-SC-1428. If any disputes arose then the Complainant should have applied to the Sole Arbitrator for Arbitration at Mumbai Court. Hence prayed to dismiss the case.
POINTS OF DETERMINATION:-
- Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
- Whether the O.Ps has committed any Deficiency in Service to the Complainant?
From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchased a new Indgo Manza Car from the O.P after payment of consideration. After receiving the notice dtd.23.12.2011 from the O.P the Complainant has tried to pay the outstanding due but the O.P was reluctant to receive the same. Again it is seen from the records that he has sent Legal notices on dtd 03.07.2012 but the O.P did not turned up and repossessed the car from the Complainant forcibly. It is observed that the Hon’ble Supreme court has warned financial institution and banks against forcible taking away of vehicles under hire purchase agreement when there is default of payment of loan and said they could be saddled with punitive cost if they do so. Again it is said that even in case of mortgaged goods subject to Hire-Purchase Agreements, the recovery process has to be in accordance with law and the recovery process referred to in the Agreements also contemplates such recovery to be effected in due process of law and not by use of force. If any financier of a vehicle resorts to take back the possession in violation of such guidelines or principle as laid down by the Supreme Court such an action cannot but be struck down. There are various guidelines framed by the Reserve Bank of India and the Bank themselves, were not followed and more often than not the hypothecated goods, mostly vehicles were forcibly taken possession of by Recovery Agents hired by the financiers. The methodologies adopted by the Recovery Agents were contrary to the guidelines laid down by the Banks themselves and in the decisions of this Court in several other matters, where it has been uniformly indicated that recovery would have to be effected in due process of law and not by the use of muscle power. Views are taken that even in case of mortgaged goods subject to Hire-Purchase Agreements, the recovery process has to be in accordance with law and the recovery process referred to in the Agreements also contemplates such recovery to be effected in due process of law and not by use of force. Till such time as the ownership is not transferred to the purchaser, the hirer normally continues to be the owner of the goods, but that does not entitle him on the strength of the agreement to take back possession of the vehicle by use of force. In the case of Manager, ICICI Bank Ltd vs Prakash Kaur & Ors on 26 February, 2007 the Hon’ble Supreme Court has rightly decide the matter and directed that the recovery of loans or seizure of vehicles could be done only through legal means. The Banks cannot employ Goondas to take possession by force. In this instant case, since after the vehicle had been seized, the same was also sold and third party rights have accrued over the vehicle. This matter has been well settled in the case of on 14 November, 2011 decided on dtd by Supreme Court of India. Hence the O.P has committed deficiency in service u/s 2(11) of Consumer ProtectionAct,2019. Hence we order as under:-
ORDER
That the Complaint petition is allowed. The O.P is directed to receive the the outstanding amount of Rs.1,67,339/- of the loan amount of the aforesaid vehicle and to give delivery possession of the said vehicle bearing registration no- OR-15-Q-2283. Further the O.P is directed to pay an amount of Rs.1,00,000/-(Rupees One Lakh) by way of compensation to the Complainant for causing him mental, physical and financial loss and agony and Rs. 10,000/-(Rupees Ten Thousand) as litigation costs. This amount shall be paid by the OP to the Complainant within a period of one month from the date of receipt of a certified copy of this order, failing which the OP shall pay interest @ 9% per annum on this amount from the date of filing the complaint, i.e., 01.02.2013 till its realisation."
Order pronounced in the open Court today i.e, on 22nd day of March 2021 under my hand and seal of this Commission.
Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.
I agree,
-sd/-(22.03.2021) -sd/-(22.03.2021)
Smt. S.Tripathy Sri. D.K. Mahapatra
MEMBER.(W) PRESIDENT
Dictated and Corrected
by me.
-sd/-(22.03.2021)
Sri. D.K. Mahapatra
PRESIDENT