Orissa

Jajapur

CC/14/2013

Ashok Kumar Pradhan - Complainant(s)

Versus

Manager SKY Automobiles - Opp.Party(s)

Srinibas Pati

09 Oct 2015

ORDER

                            IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                                      Present:  1.Shri Biraja Prasad Kar, President,

                                                                                      2.Sri Pitabas Mohanty, Member,

                                                                                      3.Miss Smita Ray, Lady Member.                                                            

        Dated the 9th day of October,2015.

                                        C.C.Case No.14 of 2013

Ashok Kumar Pradhan,  S/O Late Maguni Pradhan

Vill . Tikarpada, P.O.Mahanga,P.S.Dharmasala

Dist.Jajpur.                                                                                         …… ……....Complainant .                                               .                                                     (Versus)

1.Manager,Sky Automobiles,At/P.O. Bhanpur,on N.H.5,Cuttack-753011

   Dealer code No.6701.

2.Jitendra Parida,S/O Jagabandhu Parida,At.Santara,P.O.Jahana

   P.S. Korei,Dist. Jajpur At Present: At/P.O. Natapada,P.S.Jajpur Road

   Dist.Jajpur.

3.Manager, H.D.F.C Bank Ltd, A/ 62/1.Unit No.8,Nayapalli,Bhubaneswar.      ...Opp.Parties. 

                                                                                                                                                                         

For the Complainant:                 Sri R.K.Mohapatra, Sri Srinibas Pati, Sri S.Panda, Advocates.

For the Opp.Party No.1 and 2   Sri P.K.Samal, Advocate.

For the Opp.Party No.3             Sri R.K.Panda,Advocate.                                                                             

                                                                                                 Date of order:   09. 10. 2015.

SHRI  PITABAS  MOHANTY, MEMBER .

                        Deficiency in financial service is the grievance of the petitioner.

                        The fact as stated by the petitioner in the complaint petition is that the petitioner purchased a Maruti Alto Car chasis No.1900472 for personal use availing financial assistance from O.P no.3. The O.P no.1 and 2 delivered the vehicle to the petitioner on dt.23.08.2011.

                        That the petitioner had deposited Rs.75,000/- at the time of availing financed assistance  of the vehicle. The petitioner deposited the EMIs regularly as per agreement.

                        That in the mean time  the O.P no.3 served  a demand notice to the petitioner for payment of Rs.67,340.43/- for which the petitioner contacted the authority of O.P.no.3 and

they advised the petitioner to repaid the loan amount within 15 days .  Accordingly the petitioner already though has deposited the installment amount on due date but the O.P.no.3 without following the proper procedure of law seized the vehicle and the O.P no.1 and 2 remained silent.

                        Owing to the above situation  the petitioner has  filed the present dispute with the prayer to direct the O.Ps. to return the said vehicle and pay sum of Rs.20,000/- towards compensation  for mental agony and litigation charges.

                        After appearance the O.Ps. have filed the written version denying the allegation of the petitioner . In the  written version the O.P no.1 and 2 have taken the following the pleas as stated below:

                        There is no cause of action as against these O.P.no.1 and 2 for which the claim petition filed by the complainant is liable to be dismissed with cost. The content of paragraph-1 is matter of fact hence needs no reply. The contents of paragraph 2 to 7 are misconceived and not based on material fact. It is stated by the O.Ps.  that the complainant paid the booking amount of Rs.5,000/- with condition to purchase the vehicle through finance from HDFC Bank. The finance was arranged by the complainant himself. After receipt of delivery  order from the HDFC Bank on 23.08.2011.The vehicle has been delivered to the complainant on  23.08.2011 on the strength of delivery order issued by the financer (O.P no3) .The complainant also paid the balance amount of Rs.48,653/- on the same day. Beside the above, complainant has availed scheme discount of Rs.30,500/- which has been duly adjusted in the sale price of the vehicle. Accordingly the present dispute is  not maintainable against the O.P no.1 and 2 . As such the same is liable to be dismissed.

                        As per written version of O.P no.3 :-

1. This Fora gets no jurisdiction to adjudicate the present dispute because the complainant is not a consumer under the O.P.
2. That it is worthwhile to mention here that as per explicit terms and conditions of the agreement the complainant had agreed to repay the entire loan amount of the vehicle in 60 monthly installments @Rs.5,369/- in each month starting from 05.10.2011 to 05.09.2016 as per repayment schedule. That any delay or defaults in making payments of any such installments would attract late payment penalty charges, cheque bouncing charges and such other charges. In due course of time the complainant did not  pay the EMIs in time and thereby became a defaulter. As a result late payment charges and cheque bouncing charges gradually increased in the loan account of the petitioner.
3. In view of such continued default of loan dues the O.P Bank had approached the complainant through letters and personal contacts to pay the same but intentionally the petitioner was not clearing up this said dues.
4. That the complainant himself has surrendered the above vehicle for which inventory list has been prepared by the O.P no.3 in presence of the complainant .
5. That after completion of all procedures for taking over possession of vehicle of the petitioner, the O.Pno.3 also has sent a presale notice to the petitioner on dt.17.02.2012 but the petitioner did not take any step to release the vehicle. Finally the answering O.P Bank sold the financed vehicle through auction sale to one Anil Kumar Patra on dt.27.02.2012 with sum of Rs.1,81,500/-  and after adjustment of  the sale amount against the loan outstanding loan  there is still the  outstanding  dues  of Rs. 67,340.43 is  against the petitioner.

Accordingly it is prayed from the side of O.P no.3 that the present dispute is liable to be dismissed with cost Rs.10,000/- in favour of the O.P no.3 with an specific direction to the complainant to clear up all the outstanding dues.

After hearing we have perused the record along with documents and citation in details and inclined to frame the following issues so as to come to our conclusion :-

1. Whether the petitioner is a consumer who is entitled to maintain the dispute in this Fora?
2. Whether there is any deficiency in service  on the part of the O.Ps so far auction sale of  the alleged vehicle is concerned ?
3. Whether the petitioner is entitled for the relief as prayed in the complaint petition ?

At the initial stage we make it clear that we are going to decide the dispute as per facts and circumstances of the present dispute in view of the observation of Hon’ble Supreme Court reported in 2001(2)CPR-108-SC.”

Answer to issue no.1- It is undisputed facts that the petitioner has availed the loan  from the O.P no.3 for purchasing the above cited vehicle. As against such loan the

petitioner is paying interest which is covered in the expression of service and the interest so paid by the petitioner in repayment of loan is consideration. As such the petitioner is a consumer as per observation of Hon’ble Supreme Court reported in 1995-2-SCC-150  (Consumer Unit & Trust society Vrs. Chairman and M.D Bank of Borada), II(2000)CPJ-IISC( Vimal Chandra Grover Vrs. Bank of India)

Answer to issue No.2 and 3 – These  are the vital issues wherein we have to verify whether there is any deficiency in service on the part of the O.Ps. and if so whether the petitioner is entitled  for  the relief  as prayed in his complain petition.

1.It is alleged by the petitioner that without giving repossession and pre-sale notices the O.P no.3  after repossessing  the vehicle has sold the alleged vehicle.

                        As against such grievance of the petitioner , the O.P. no.3 has taken the stand that prior to disposal of the vehicle the O.P no.3 has intimated the petitioner to clear up the outstanding dues but the petitioner did not take any steps to clear up the outstanding dues. Owing to such stand of O.P no.3 this Fora though has directed O.P.no.3 to produce the postal receipt in support of pre-sale notice but the O.P no.3 has not yet produced the postal receipt in stead of several opportunity .

                        The next aspect comes for consideration whether the mode of seizure and sale of the alleged vehicle is tenable in the eye of law ?

                        In this context after perusal of the observation of Hon’ble supreme court reported in 2006-CTJ-209-SC(M.D Orix Auto Vrs. Joginder Singh) we are inclined to hold that though the O.Ps are empowered as per term and condition of the agreement to seize and sale the financed vehicle in case of default of monthly installments towards the loan but such seizure and sale must be as per law in view of observation of  Hon’ble Supreme Court reported in 2007(36) OCRCSC-815(Manager ICICI Bank Ltd, Vrs .prakash Kaur & Otrs) In this context we make it clear no where the hypothecation agreement of the alleged vehicle empowers the O.Ps. to take such action  violating the  guide line of Hon’ble Supreme Court ,National Commission and State Commission Delhi reported in 2012 (2) CLT-72 Sc,2007(3)-CPR-191,2005-CTJ-522 respectively   ( Citi crop Maruti Finance Ltd  Vrs. S.Vijay Laxmi) wherein it is held that

                        “ seizuring of the vehicle must be through court .”

3.Similarly we are also required to verify whether the selling of the above vehicle bonafide one. In this context it is alleged by the petitioner that without giving an opportunity to the petitioner the O.ps. have sold the vehicle at their sweet will. In such situation after verification the pre-sale notice dt.17.02.2012 we are inclined to hold that the O.Ps. have issued such letter to the petitioner to clear up the outstanding loan within 7 days i.e on 24.02.2012 after receipt of the letter failing which the O.P.no.3  will sale the vehicle and in our opinion the said letter is not bonafide one since the O.P no.3 fails to produce the postal receipts and   it does not indicate the date of auction as well as violates the guide line of appellant Forums reported in 2010(1)CPR-118-H.P ,2004(3) CPR-154-Odisha-wherein it is held that

“ (a) allegation sale must be bonafide one and (b) date of auction of vehicle    must be intimated to hirer / loanee respectively .”

Accordingly we are in the considered view that the O.P no.3 has sold the alleged vehicle at his sweet will without inviting the bidders from the local market which is mandatory as per observation of Hon’ble National Commission reported in 2008(3)-CPR-45-N.C(Tata Finance Ltd Vrs.Franus)so also in absence of  the petitioner as well as without obtaining valuation report from the approved valuer as per observation of Hon’ble National Commission reported in 2012(3)CPR-526(Shriram City Finance ltd & another Vrs Moharana C.A) wherein it is held that:

                        “ Surrender of vehicle can not be sold away without proper valuation .”

                         In view of the above observation from our side it is cristal clear that the O.P no.3  has committed patent deficiency in service as well as unfair trade practice by selling  the above vehicle without following the proper procedure of law for which the law is consiclusively in the complainant’s favour and consequently the dispute must succeed and is hereby allowed against the O.P.no.3 only.

O R D E R

                        In the result the dispute is allowed against the O.P no.3 and dismissed against O.P no.1 and 2  with the direction stated below :-

1. The O.P no.3 is directed not to collect the balance amounting to Rs. 67,304.43 paisa from the petitioner.
2. In addition to it the O.P no.3 is also liable to pay Rs.10,000/- as compensation to the petitioner within one month after receipt of this order. No cost.

                     This order is pronounced in the open Forum on this the 9th day of October ,2015. under my hand and seal of the Forum.                                                                                          

                  

 

(Shri Biraja Prasad Kar )                                                             (Shri Pitabas Mohanty)                                                          

           President.                                                                                        Member.                                                                      

                                                                                       Typed to my dictation & corrected by me                                                                                                                                                            

 

 

 (Miss Smita Ray)                                                                        (Shri Pitabas Mohanty)                                                         

         Member.                                                                                          Member.