1. The complainant has case filed this case against the OP for seizing the vehicle bearing Registration no. JHO4F-9584 by muscles man and sold it without any notice.
2. The complainant case in brief is that complainant purchased a Tata ACE Ex (Truck) on 31.03.13 for livelihood, just after delivery of the vehicle in the form of Chassis, OP charged Rs 45000 for fitting of Chassis on 31.03.13, after fitting the chassis same was hand over in April last and since April last the vehicle started work by loading goods somewhere and unloading same in its destination and in the other hand payment of EMI were continued without any break up to 31.03.15. As such complainant deposited Rs 212666. OP collected from the complainant the following amount:-
(i) EMI added up to 31.01.15 Rs 215666.
(ii) Fitting charges Rs 45000.
(iii)Conversion of body from truck to passenger bus Rs 78665.
Total Rs 326331.
3. It is further stated that the complainant was investing money in conversion of body of the truck into passenger and invested in such conversion Rs. 78665 which took about 4 months in the garage of OPs and installment of those month fall due when the vehicle was plying in carrying passenger, OP sent their muscles man on 21.03.15 to seize and snatch the said vehicle when the vehicle was full of passenger at Madanpur (Maharo). Muscleman ordered everyone to get down from the vehicle and sent the key of vehicle from driver Mithun Kumar Mirdha at 2:40 pm. The complainant met Manager OP no. 1 on the next day i.e; 22.03.15 with some money but OP no. 1 told the complainant that he was not able to run the vehicle go and bring the entire amount then complainant on 29.06.15 went to the OP with Rs 40000 but OP denied and asked for total payment.
4. The complainant again went to the OP on 31.12.15 with Rs 50000 and requested to receive the amount but he refused to take the amount. The complainant repeatedly visited the OPs office in the interval of 2 to 3 months but OP was adamant to take the entire amount. The complainant visited on 18.10.17 and on this day OP again demanded total amount. Later on by some official persons it was known to the complainant that the vehicle was sold to some other person just after seizure in the year 2015. The complainant sent a pleader notice dated 02.11.17 to the OPs but they did not reply. As such the OP deliberately, knowingly to meet the loss to the complainant seized the vehicle in monarchy system, as a jungle law, and sold it to the other person for self benefit without giving any information to the complainant, not only so for over dues amount the OPs sent notice to the complainant demanding the payment of EMI’s. As such the OPs have committed unfair trade practices, negligency, deficiency of services for which the complainant is entitled for heavy compensation and loss.
5. The cause of action arose in this case on 18.03.13 when the vehicle was delivered to the complainant in April 2013 when the vehicle was fitted and handed over to the complainant, in the year 2014 December when the vehicle was converted from truck to passenger car on 21.03.15, when the vehicle was seized by the OPs with the help of muscle man on 22.03.15, when the OPs did not returned the vehicle and demanded entire amount on 29.06.15, 30.06.15 and in all those date of 2016 when the complainant visited the OP no. 1 requesting to take money and return the vehicle on 18.03.17. When the complainant got knowledge of sale of the vehicle on 02.11.17 when the complainant sent a pleader notice which was not replied and same is continuing.
The complainant claimed the following reliefs:-
- Total invested amount Rs 326331.
- Compensation Rs 100000.
- Cost Rs 50000
- Total Rs 476331 with 12% over the invested amount from the date of complain till realization.
After notice the OP no. 1 appeared and filed his WS on 25.03.18 and OP no. 2 appeared and filed his WS on 03.04.18.
6. OP no. 1 who is Manager, Tata Motors Finance-cum- dealer Pvt. Ltd. R.A Himatsinka S. Companies Pvt. Ltd. Bhagalpur Road, P.O and P.S Dumka, subdivision and district- Dumka. Admittedly he is dealer of Tata Motors and this opposite parties Denies and The complainant visit local office of the OP no. 1 several times in spite of that OP did not paid the said amount. Thereafter on 25.11.17 and 05.02.18 a pleader notice was also send to the opposite parties but they did not reply. As such the opposite parties became desperate not paid any head to the pain and pray of the poor farmer which is nothing but deficiency in the services, negligency as well as violation of the Insurance Contract. The complainant is entitled for heavy compensation, cost and harassment. The complainant prays the following amount.
(i) Principal sum assured Rs 19,600.
(ii) Compensation Rs 50,000.
(iii) Cost of the Litigation Rs 10,000.
Total Rs 79,600 was claimed by the complainant.
7. The cause of action arose on 18.07.16 when the crops were insured by the OPs on 15.11.16 and on 18.11.16 when the OP no. 1 conducted inquiry and report to OP no. 2 on 13.11.17 and when OP no. 2 wrote a letter no. 616 dated 13.05.16 to OP no. 4 and on 26.06.17 and 05.02.18 when the complainant sent the pleader notice to the opposite parties.
8. The complainant prays to direct the opposite parties to pay the sum assured Rs 19600, Compensation Rs 50000 and Cost of Litigation Rs 10000 and further prayed to direct the opposite parties to pay the interest 12% on the awarded amount from the date of filing till realization.
9. After notice OP no. 1 appeared and filed his written statement on 28.03.18 and OP no. 2 appeared and filed his written statement on 03.04.18.
10. OP no. 1 who is Manager, Tata Motors Financer-cum-dealer Pvt. Ltd. R.A Himatsinka S. Companies Pvt. Ltd. Bhagalpur Road, P.O and P.S Dumka, subdivision and district- Dumka. Admittedly he is dealer of Tata Motors Pvt. Ltd. and this opposite party denies and dispose of compensation, claims, demands, allegation, averment, imputation and insinuations of the complainant and further stated that the complainant has approached this forum with unclean hands and concealed important facts in this case. He has further submitted that the complaint remained a chronic defaulter as per the executed agreement by not adhering the repayment schedule and this fact has been intentionally and deliberately concealed to mislead this forum.
11. It is further stated that Tata Motors Finance Ltd. is a company incorporated under provisions of Indian Companies Act 1956 having its registered office at 10th Floor, 106A and B, Makers Chambers III, Nairman Point, Mumbai 400021, represented through Mr. Rajnish kant, authorized representative of the answering Opposite Parties, at present serving as State Legal Manager, Tata Motors Finance Ltd., State office at Jamshedpur, Jharkhand.
12. It is further submitted that the opposite parties Tata Motors Finance Ltd. stated that relationship between complainant and OP is pursuant to the contract entered into between the parties hereto. The complainant in the entire complaint has nowhere contended or averred that the OP have in any manner breached or violated any of the provisions and condition of the loan Cum Hypothecation Agreement. Assuming while denying there is any alleged breach or violation of terms of the contract the complainant would have remedy elsewhere. The complaint under consumer protection act is not maintainable and the same deserves to be dismissed. The complainant has filed this case just to evade his legal liability due towards the Opposite party and to evade filing of the execution proceedings. It is further stated that this forum has no jurisdiction to entertain the present complaint as per terms and conditions of the agreement, only Mumbai courts shall have the jurisdiction to try the present complaint. In this way the ouster clause is clear, unambiguous and specific. The answering opposite parties dealer stated that complainant cannot be termed as ‘consumer’ as defined in section 2 (d) (ii) of the Consumer Protection Act because the nature of the vehicle was commercial in nature. Admittedly the complaint was plying vehicle for commercial purpose as such the complainant is not consumer. The answering opposite parties has also admitted this fact that complainant himself approached to the opposite parties seeking the financial assistance of Rs 359000, Contractual value Rs 575443 for the purchase of vehicle model no. Tata ACE EX, Engine no. 275IDI06BWYS28530, Chassis no. MAT445227DZB10974, Registration No. JH04F9584 which was subsequently provided by opposite parties vide Contract No. 5001208673 dated 31.03.2013 and Contract details are also annexed here with as annexure – II. The said financial assistance was to be repaid in 47 monthly installments. And it is pertinent to mention here that timely payment of installments is the essence of the agreement. The complainant has further agreed to pay the delayed payment/ other charges as per the terms and conditions of the agreement. The opposite party has performed their part of obligation by sanctioning loan to the complainant and now it was duty of the complainant to perform his part of obligation by repaying the loan as per the agreement. It is further stated that relationship between the opposite parties and complainant is that of creditor and borrower.
13. It has appeared by this answering opposite parties that he has financed Rs 359000 Contractual value Rs 575443 for the purchase of vehicle model no. Tata ACE EX, Engine no. 275IDI06BWYS28530, Chassis no. MAT445227DZB10974, Registration No. JH04F9584 which was subsequently provided by opposite parties vide Contract No. 5001208673 dated 31.03.2013. The said financial assistance was to be repaid in 47 monthly installments. But the complainant paid Rs 134805 up to 31.03.2014 and he paid Rs 77861 since 01.04.2014 to 31.03.15. So, Ops Rs 362777 was balance payable in contract till 31.03.15 by the complainant. The statement of account is annexed as Annexure (III). It is further stated that this opposite party No. 1 is a dealer of Tata Motors Finance Ltd. so answering opposite parties has no responsibility for the seizure of the vehicle. And this answering opposite parties is not responsible for any act of the opposite party No. 2.
14. It is further submitted that the complainant has got no valid cause of action to value this case. He has valued this case only to evade the execution proceedings. It is pertinent to mention here that the vehicle is said to be repossessed on 21.03.2015. But after the lapse of more than 4 years the complainant has filed this case before this forum with a view to put pressure on the answering opposite parties as well as to evade himself from execution proceedings. The complainant has got no cause of action because according to the complainant the vehicle was repossessed on 21.03.2015. The fact of the matter is that the complainant surrendered his vehicle on 24.07.2015 and it was sold to the answering opposite parties on 22.01.16 at the price of Rs 80000 and even after sale of the said vehicle after adjustment the total receivable amount from the complainant is Rs 317676.64. So it become crystal clear that the complainant has got no visible cause of action to value this case but the instant case has been filed after much delay which is much beyond of the limitation period according to the section 24 – A of the Consumer Protection Act, 1986 and prayed to dismiss the complainant petition outright.
15. The opposite party no. 1 i.e; Himmatsingka Agencies Pvt. Ltd. has appeared and filed his written statement on 28.03.18 and stated that this case is not maintainable in the eyes of law as well as fact has no cause of action in the instant case against this answering Ops no. 1 and the case is hopelessly barred by law of limitation as the vehicle was purchased on 31.03.2013 and the complainant continuously using the said vehicle for more than 2 years and the complainant has filed this case in the year 2017after lapse of 2 years as prescribed in section 24A (1) of Consumer Protection Act 1986. The complaint is fit to be dismissed merely on the ground of commercial purposes. The complainant is a consumer within the meaning of section 2(1) (d) of the Consumer Protection Act 1986 as the vehicle was purchased for commercial purposes not for livelihood and the complainant is running the vehicle for business purposes for purpose of earning more profits. The complainant has purchased vehicle in question for commercial purposes in which the driver and khalasi was engaged. As the complainant has purchased vehicle, therefore, it does not fall within the definition of ‘Consumer’ as defined in section 2(1) (d) of Consumer Protection Act 1986.
16. It is further submitted the complainant has filed this complaint is only against seizure to seize the vehicle in question, therefore, this answering OPs is not responsible and liable. It is only against the financer and this answering OP has no role in this case. It is further submitted that the present case there is no deficiency of services on the OP no. 1 because all the grievance is only against financer OP no. 2 Tata Motors Ltd. OP no. 1 is authorized dealer of Tata Motors to sale the commercial vehicle and only sold a new vehicle and the complainant never lodged any complaint in this respect and filed this complain after about 4 years when the vehicle in question has been seized by financer for default of monthly installment and there is no grievance against this answering Ops and complainant made a formal party in this case. Therefore, in absence of any deficiency in services present complaint is fit to be dismissed. As such there is no specific allegation against the answering opposite parties by the complainant in this complain petition. As per petition mentioned facts it is crystal clear that there is no deficiency in services so far as OP no. 1 is concerned. As such this complain should be dismissed against OP no. 1 with cost.
17. The amount pointed out for determination of this case is that whether the complainant is entitled to get any relief/ reliefs as claimed for?
Finding
18. The Complainant in support of this case has filed affidavit of 2 witnesses namely CW1 Narayan Rana and CW2 Mithun Kumar Mirdha and also filed the following documentary evidences :-
Ex1:- Photocopy of Chassis delivery dated 18.03.13….2 sheets
Ex2:- Photocopy of registration certificate of JH04F/9584 and tax token.
Ex3:- Photocopy of Contract details between Complainant and Financer. Total 6 sheets.
Ex4:- Photocopy of inventory of items in the vehicle dated 21.03.15.
Ex5:- Office copy of pleader notice.
Ex6:- Reply of legal notice of the complainant by the Tata Motors Finance Ltd.
The OP no. 2 has filed same documents as annexure along with written statement which is as follows :-
- Annexure 1 – Lodged agreement between the Complainant and Tata Motors Finance Ltd. Total 8 sheets.
- Annexure 2 - Is the contract details. Total 3 sheets.
19. CW1 Narayan Rana is none other but the Complainant himself in his affidavit as stated that he know the OP no. 1 and OP no. 2 and he purchased the vehicle JH04F9584 which was snatched with the help of muscles man by OP on 21.03.15 without any prior information. He further stated that he purchased the vehicle on 31.03.17 for his livelihood and also taken the loan and Rs 359000 with the OP till 31.03.15. He paid installments to OP. he totally paid the EMI Rs 212066. He further submitted that was in shape of truck but after investing Rs 78665 it was transformed into a passenger vehicle. He totally expended Rs 21321after snatching the vehicle. He met several times to the opposite parties with Rs 40000 and Rs 50000 but the OP refused to take the money and asked to bring the entire amount and after that he came to know that vehicle was sold out by the opposite parties. During cross examination nothing has been said to the contradictory complainant story.
20. CW2 is Mithun Kumar Mirdha he is none other but the driver of said vehicle. He further stated that while he was driving the vehicle on 21.03.15 then 3 to 4 muscles man came at Maharo mod and snatched the key of the vehicle and also got his signature on a paper and they also asked the passenger to get down from the vehicle. The owner of vehicle sent several times OP but OP asked the entire amount. He also came to know that vehicle was sold by OP.
21. Here the Learned council of both the parties and also gone through evidences adduced on behalf of both the parties oral and documentary. Both admittedly the complainant purchased the Tata Motors Ltd. ACE EX truck bearing no. JH04F9584 from OP no. 1 which was financed by OP no. 2. The Exhibit 3 which is photocopy of contract details dated 31.03.15 clearly admits this fact. The complainant has main grievances against OP no. 2 who snatched vehicle who is non other but Tata Motors Finance Ltd. but OP no. 1 who is simply Tata Motors Agency elsewhere only duty to sale the new vehicle. As such he clearly stated in his written statement in Para 10 that there is no deficiency in the services on the part of OP no. 1 as OP no. 1 is authorized dealer of Tata Motors Ltd. to sale the commercial vehicle and only sale the new vehicle to the complainant there is no defect in the vehicle and the complainant never lodged any complain in this respect. And he has filed this complain after approximately 4 years when the vehicle in question was financed by the financer for the default in the payment of monthly installments. There is no grievance against the answering opposite parties. Therefore in absence of any deficiency in services present complain is not applicable against OP no. 1. Apart from that no relief has been sought against this OP no. 1 by the complainant. It is admitted fact by the complainant also that OP no. 2 who is Insurance Company has snatched vehicle with the help of muscles man on 21.03.15 at Maharo by the driver Mithun Kumar Mridha. This fact is also been corroborated by CW2 Mithun Kumar Mirdha in his affidavit. It is crystal clear that behind sale the occurrence OP no. 1 is not responsible and no relief has been sought by the complainant against OP no. 1. As such the claim of the complainant is not maintainable against OP no.1 and OP no. 1 as such is exempted from any responsibility in this case.
22. The OP no. 2 who is Insurance Company who has filed his written statement and some documents as annexure 1 that is loan agreement. The annexure 2 is contract details and annexure 3 is statement of action. He admits this fact that complainant has taken finance loan from him and the complainant in the entire complain has no where contended or averted that the OP have in any manner approached or filed the OP have in any manner breached or violated any of the provisions and condition of the loan Cum Hypothecation Agreement. The complainant just to evade his legal liability due towards the Opposite party and to evade filing of the execution proceedings has filed in this case. It is admitted fact that the vehicle in question is of commercial nature and can only to be used for commercial purpose and therefore complainant cannot be termed as consumer as defined under Consumer Protection Act 1986.
23. It is duty of the complainant to establish this fact that he has purchased the goods not for commercial purpose. It is also admitted fact by the OP no. 2 that complainant himself approached to the opposite parties seeking financial assistance of Rs 359000 contractual value Rs 575443 for the purchase of vehicle model no. Tata ACE EX, Engine no. 275IDI06BWYS28530, Chassis no. MAT445227DZB10974, Registration No. JH04F9584 which was subsequently provided by opposite parties vide Contract No. 5001208673 dated 31.03.2013 and the contract details as annexure 2 correspondent to exhibit no. 3. It is further admitted fact that such financial assistance was to be repaid in 47 monthly installment and it is pertinent to mention here that timely payment of the installment is the essence of the agreement and the complainant agreed to pay the delay payment/ other charges as per terms and conditions of the agreement. Opposite parties has performed their part and application by sanctioning loan to the complainant and now it was duty of the complainant to perform his part and obligation by repaying loan as per the agreement. It is established principal by Hon. Supreme Court in Bharti Knitting Company vs. DHL Worldwide Express Courier(1996) 4 SCC 704 held that when the complainant signs the contract documents, he is bound by its terms and conditions and the onus would be on him to prove the terms and the circumstances in which he has signed the contract. It is settled principles of law that a person who claims equity, must do equity. It is also said that relationship between the opposite parties and the complainant is that of Creditor and Borrower. It is also settled principal that with regard to the grant of loan by financial institution the borrower is not a ‘Consumer’ under the act and the complain is liable to be dismissed on this very ground.
24. It is also admitted fact that the OP no. 1 repossessed the vehicle in question on 21.03.15 but after the lapse of more than 4 years the complainant has filed this case before your honor with a view to put pressure on the answering opposite parties as well as evade himself from execution proceedings. The complainant has got no valid cause of action to file this case because according to the complainant the vehicle was repossessed on 21.03.2015. In fact, the complainant surrendered his vehicle on 24.07.15 and it was sold by the answering opposite parties on 22.01.16 at the price of Rs 80000 by OP no. 2. Even after the sale of the said vehicle and after adjusting the sale amount the total receivable amount from the complainant is Rs 317676.64. Apparently the complainant has got no visible cause of action to file this case but the instant case has been filed after much delay which is much beyond the Limitation period according to Section 24-A of the Consumer Protection Act 1986.
25. Apparently the vehicle was in question was repossessed by OP no. 2 on 21.03.15 but the complainant has filed this case on 26.12.17 which is beyond the limitation period. Although the complainant has filed the application on 21.03.15 and continuing till 30.12.2017 simply stating there in that he continuously visited the OP office for returning the vehicle but he demanded entire amount and he first came to know that OP has sold the vehicle on 02.11.17. And the complainant is poor rustic person could not guess the view of the respondent who never send any notice for demand of loan amount or notice for sale of the vehicle. The entire circumstances prevented complainant to file this complaint.
26. From the perusal of Exhibit 3 corresponding Exhibit annexure 2 which is the contract details which is dated 18.01.18. It is mention that net overdue installment is Rs 117977 and net overdue interest is Rs 22295 but in this Exhibit, there is no description reselling the vehicle at the price of Rs 80000. This amount was not deducted anywhere in the contract details or the statement filed by the OP and complainant.
27. It is also clear that before selling the repossessed vehicle no notice was given to the complainant and there is no paper of record to show that before selling the repossessed vehicle by OP no. 2 given the notice to the complainant. Apart from that OP no. 2 never given the statement and dues amount against complainant and the complainant several times demanded him the exceeded statement of dues amount but it was not provided by the OP no. 2 in this case. It is duty of the lender Financial company was to declare due amount payable by the borrower in the event of default and on such declaration borrower was required to be called upon to pay that amount and only on his failure to pay that amount within the period of 7 days, lender has got right to terminate agreement of loan upon notice and then to demand borrower to return the product or to repossess it. Such notice has not been given by lender financer to borrower and without notice straightway vehicle was repossessed by financer, which was not only contrary to terms of agreement, but also comes in category of use of muscles man for the purpose of taking possession of the vehicle.
28. Exhibit 4 clearly shows that the vehicle was repossessed by the muscles man of the OP no. 2 on 21.03.15 on Maharo when the vehicle was plying going with passengers by the driver Mithun Kumar Mirdha. The act of the OP no. 2 is not justified in any way that repossession of the financer by muscles man is not proper. The Hon. National Consumer dispute Redressal Commission, New Delhi in a case which is reported in 2018(2) CPR 821(NC) in Ramdas Urkudaji Gajbhiye vs. L & T Finance Ltd. has held financial service Loan- Cum- Hypothecation agreement Repossession and Auction of Tractor by Finance company, complaint dismissed by State Commission overturning order passed by Additional district Consumer Disputes Redressal forum – District Forum had directed Finance Company to refund to Complainant amount paid by him from his own sources for the purchase of Tractor; lump sum compensation of Rs 50000 for mental agony and harassment suffered by him and costs quantified at Rs 1000. None of the documents so filed, throw any light as to when loan was foreclosed/ recalled and that Petitioner was put to notice either before repossessing vehicle or putting it to auction- Insurance Company has failed to prove that it had followed due process of law. Here, in this case the facts are similar. The Insurance Company repossessed the vehicle of the informant on 21.03.15 without giving any notice or following due process of law and also sale the vehicle without giving any notice or information to the complainant.
29. The act of the OP no. 2 cannot be justified by any way as he snatched vehicle of the complainant which is the only livelihood of the Complainant on 21.03.15 by his driver at Maharo without following the due process of law with the help of his muscles man and also sold the vehicle without prior notice to the Complainant. The Complainant has expanded Rs 45000 for the fitting and thereafter Rs78665 for conversion of the vehicle from truck to passenger and thereafter paid 21 installments of Rs 212666 total Rs 326321 was expanded by the Complainant on the said vehicle. And due to snatching the vehicle by the OP no. 2, his source of income was stopped and he was hopeless to pay the further installment and the OP has also sold the vehicle without giving notice to the Complainant and also demanding more money from the Opposite parties.
30. The finds that Complainant has successfully established is case and the OP has not provided proper services or has not performed his action following the due process of law. He arbitrarily has done all the acts. As such the Complainant is entitled for the following reliefs:-
(i) Principal/ Wasted amount Rs 326321.
(ii) Compensation Rs 100000.
(iii) Cost for the Litigation Rs 50000.
It is therefore,
Ordered
That the OP no. 2 that is Managing Director Tata Motors Finance Limited- Think Techno Campus Building A, 2nd floor, opposite of Pokhran Road 2, Thane (west) – 400607 to pay the Complainant total invested amount of Rs 326321 and compensation Rs 100000 and cost of Litigation Rs 50000 total Rs 476331 with 12 % interest after the invested amount from the date of complaint till realization. The order must comply with one month from the date of restored of copy of the order following which necessary legal action will be taken with the Opposite parties no 2.
Office Clerk to furnish the copy of the order to OPs. This case thus disposes of accordingly.
