Date of filing:- 28/01/2008
Date of Order:- 17/06/2008
OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM(COURT)
B A R G A R H.
CONSUMER COMPLAINT NO. 07 of 2008
Makunda Dev Naik S/o Basu Naik aged about 34 (thirty four) years, R/o. P.O. Tulandi Via-Barpali, Dist:- Bargarh..
... ... ... Complainant.
- V e r s u s -
1) Manager, Tata Motor Finance Branch, At-Ainthapali, Po/Dist.Sambalpur.
2) Repossession Agent, Tata Motor Finance Branch, At- Ainthapali, Po/Ps/Dist. Sambalpur.
... ... ... Opposite Parties.
Counsel for the Parties:-
For the Complainant:- Sri P.Sharam, Advocate with other Advocates.
For the Opposite Parties:- Ex-Parte.
-: P R E S E N T :-
Sri Gouri Shankar Pradhan ..... ..... ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Binod Kumar Pati ..... ..... ..... ..... ..... ..... ..... M e m b e r.
Miss Bhagyalaxmi Dora ..... ..... ..... ..... ..... ..... ..... M e m b e r.
Dt. 17/06/2008 -: J U D G E M E N T :-
Presented by Sri G.S. Pradhan, President.
The present Complaint pertains to deficiency in service as provided under the provision of Consumer Protection Act – 1986.
Brief fact of the case is that, the Complainant had purchased one 407 Star Bus bearing its registration No. OR-17-D-7161 from Jalan Automobiles Pvt. Ltd., Sambalpur for his self employment with a down payment of Rs.97,031/-(Rupees ninety seven thousand thirty one)only and the rest amount Rs.6,97,494/-(Rupees six lakh ninety seven thousand four hundred ninety four)only towards the price was being financed by the Opposite Party No.1(one) to be payable in equal monthly installment of Rs.14,800/-(Rupees fourteen thousand eight hundred)only each. The Complainant had also paid post dated cheques of State Bank of India, Barpali to cover the monthly installments for four years.
The Complainant contends that due to delay in granting the Road Permit and permission by the Taxi Union, the bus only came into road on Dt.18/07/2006, though it was registered on Dt.07/02/2006. During that period the vehicle was idle and the Complainant did not earn any thing. As such the Complainant suffered financial hard ship and could not pay the installment regularly. The Complainant paid a sum of Rs.44,800/-(Rupees forty four thousand eight hundred)only towards three installments and Rs.51,634/-(Rupees fifty one thousand six hundred thirty four)only was remained outstanding against him. On Dt.19/09/2006, some agents deputed by the Opposite Parties forcibly took away the vehicle of the Complainant and handed over a note of repossession, without serving any prior notice to the Complainant.
Further, the Complainant contends that, the telegram of Opposite Party NO.1(one) acknowledging the repossession of the vehicle due to heavy default was received by the Complainant on Dt.21/09/2006 and also received a letter on Dt.06/09/2006 of M/s Law Nexus and Associates of Mumbai demanding Rs. 51,634/-(Rupees fifty one thousand six hundred thirty four)only, after the repossession of the vehicle by the goonda elements deputed by the Opposite Party No.1(one).
The Complainant contends that the Opposite Parties or its agents are not authorised to take forcible possession as under the agreement, the Complainant is liable to pay penal interest in case of default and the Opposite Parties could proceed under Section 138 of N.I. Act if the cheque issued by him are dishonored. Taking over possession of the vehicle by force, with out any prior notice amounts to deficiency in service violating the consumer service provider relationship.
Hence the Complainant filed this Complaint, praying for a direction to be given to Opposite Parties to release and hand over the afore said vehicle infavour of the Complaint on payment of the outstanding due of Rs. 51,634/-(Rupees fifty one thousand six hundred thirty four)only as on Dt.19/09/2006 and to pay a sum of Rs.2,80,000/-(Rupees two lakh eighty thousand)only towards compensation for mental agony, social humiliation and litigation expenses.
Notice was sufficiently served on Opposite Parties. Inspite of notice, the Opposite Parties did not appeared before the Forum as such, they set ex-parte, and the case was heard ex-parte.
The Complainant has filed copies of certificate of Registration, copies of Bank statement, Temporary Road Permit by R.T.O., Bargarh, copies of Declaration of Bargarh Dist. Taxi Union, copies of Repossession vehicle inventory report telegram from Tata Motors Finance Ltd, Sambalpur, notice from M/s Naxus and Associates, Mimbai and copies of Repayment schedule in support of his case.
Perused the Complaint petition and all the copies of documents filed by the Complainant.
The Complainant is the Registered owner of the 407 Star Bus bearing No. OR-17-D-7161 being financed by the Opposite Party No.1(one) to be payable in 47(forty seven) equal monthly installment of Rs.14,800/-(Rupees fourteen thousand eight hundred)only for finance amount Rs. 6,97,494/-(Rupees six lakh ninety seven thousand four hundred ninety four)only. It is also established that the vehicle was reposed by the Opposite Parties for default in payment of Rs. 51,634/-(Rupees fifty one thousand six hundred thirty four)only outstanding for some monthly installments. As per the notice of the Law Nexus and Associates, Bombai, the Complainant was liable to pay Rs. 51,634/-(Rupees fifty one thousand six hundred thirty four)only computed up to Dt.06/09/2006 for the outstanding monthly installments. It is also not disputed by the Complainant. The Complainant has not filed any receipts of Rs. 44,800/-(Rupees forty four thousand eight hundred)only towards payment of monthly installments to the Opposite Parties as claimed by him.
The Star Bus was repossessed by the Opposite Parties on Dt.19/09/2006 for default in payment of monthly installment and a notice was also served by the Opposite Parties through Law Nexus and Associates ltd. to the Complainant for payment of the defaulted amount of Rs. 51,634/-(Rupees fifty one thousand six hundred thirty four)only computed up to Dt.06/09/2006.
How so ever the Bank or any Financier can not take repossession of the vehicle by force for which loan is advanced. If at all there is a clause in Heir Purchase agreement executed between the Parties, is unjust and against the principle of law. The Bank/Financier can take repossession of the vehicle in cases, where the borrower may have committed default in payment of installment through proper procedure recognised by law instead of taking resort to strong arm tactic. As per the decision reported in C.P.R. 2007 (3) page 191. Hon'ble National Commission holds that “A financier is not invested with the right to repossess the vehicle, for which loan has been given by it, by use of force under any law, precedent or code of conduct.”
In view of above discussion the Opposite Parties, by forcible taking away the 407 Star Bus from the possession of the Complainant has committed deficiency in service towards the Complainant.
Complainant allowed.
The Opposite Parties are directed to release and hand over the 407 Star Bus Regd No. OR-17-D-7161 in favour of the Complainant after receipt of the total balance outstanding monthly installment paybel till date including the sum of Rs.51,634/-(Rupees fifty one thousand six hundred thirty four)only from the Complainant.
Further the Opposite Parties are directed to give a sum of Rs.10,000/-(Rupees ten thousand)only as compensation for mental agony and litigation expenses to the Complainant with in 45(forty five) days of this Order or else the amount will carry 18%(eighteen percent) interest per annum till the date of payment.
Complaint disposed of accordingly.
Typed to my dictation
and corrected by me.
(Sri Gouri Shankar Pradhan)
, P r e s i d e n t
I agree, I agree
(Miss Bhagya Laxmi Dora, Memeber ) (Sri Binod Kumar Pati, Member )
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