Orissa

Cuttak

CC/147/2021

Debipriya Dash - Complainant(s)

Versus

Manager,Tata Motors Finance Ltd - Opp.Party(s)

S K Kanungo & associates

08 Jul 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                     C.C.No.147/2021

              Debipriya Dash,

              W/O:Bibekananda Dash,Prop. M/s. Shree Jagannath Bhandar,

              At:Malgodown,P.O:College Square,

              P.S:Malgodown,Town/Dist:Cuttack.                                          ... Complainant.

        

                                                Vrs.

1.       Tata Motors Finance Ltd.,Represented through

Its Manager,Regional Office,Bhubaneswar,

Dist:Khurda..

 

2.      Branch Manager,

Tata Motors Finance Ltd.,

At:Link Road,PO:Arundoya Market,

P.S:Madhupatna,Town/Dist:Cuttack. ....Opp. Parties.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    09.09.2021

Date of Order:  08.07.2022

 

For the complainants        :   Mr. S.K.Kanungo,Adv. & Associates.

For the O.Ps                        :   Mr. T.K.Panda,Advocate(A/R).  

 

Sri Debasish Nayak,President                          

            Case of the complainant in short is that she had purchased a TATA Pick Up vehicle by availing finance from the O.P vide Loan Account No.5001802706 dt.26.5.15 with a condition to repay the same in 60 E.M.Is @ Rs.10,660/- by 2.6.2020.  She had been paying the EMIs uninterruptedly upto April,2020, that is to say, she had paid about 55 instalments out  of 60 EMIs.  Due to the Covid-19 pandemic there was a little disruption in paying the EMIs from the month of May,2020 to September,2020 for which an amount of Rs.58,089.16p became overdue against her loan.  The complainant had therefore repeatedly requested the O.Ps to provide her some time in order to enable her to clear up the entire over dues but to her dismay, without even serving any prior intimation, the O.Ps had repossessed her vehicle on 17.8.21 from the National Highway near the new Toll Gate at Tangi in the district of Cuttack.  The O.Ps had miscalculated the dues and in the account statement dt.2.6.19 an excess amount of Rs.23,730/- is reflected.  The complainant wanted to settle the loan through OTS by paying the overdue amount of Rs.34,329/- after deduction of Rs.34,390/- which, according to the complainant had been added erroneously but since because the O.Ps did not pay any heed to the request of the complainant, she had to file this case ultimately before this Commission blaming the O.Ps to have caused deficiency in service and had practised unfair trade for which she has requested for direction from this Commission to the O.Ps in order to release the said Tata Pick Up vehicle of her bearing Regd. No.OD-05-M-8423 and to settle the loan amount through OTS mode and also to pass any other order as deemed fit and proper.

            Complainant has filed a bunch of xerox copies of documents in order to support her case.

2.         On the other hand, the O.Ps have contested this case and have filed their written version jointly.  As per the written version of the O.Ps, the complaint petition of the complainant being not maintainable and devoid of merit is liable to be dismissed with exemplary cost.  They admit about the loan incurred by the complainant on 26.5.15.  According to the O.Ps, the loan amount of the complainant was of Rs.4,48,000/- which was to be repaid by the complainant in 67  number of E.M.Is @ Rs.10,660/-.  It is further submitted by the O.Ps that the principal amount is of Rs.60,756.42 p and the interest thereon is of Rs.43,823.83 p.  It is further submitted by the O.Ps that the loan recall notice was sent on 22.1.20 as the case was referred to Arbitration in the same address of the complainant and all the notices were despatched by speed post to the complainant.  Moreso, it is the contention of the O.Ps that nowhere in the complaint petition, the complainant had mentioned to have changed her address for which presumption of service of all the aforesaid notices to the complainant should be as per the General Clauses Act.  It is further submitted that the said Arbitration proceeding award has been passed on 31.3.21 by the learned sole Arbitrator,Sachin Dixit in Arbitration case no.SDJNY004.  The complainant had never responded to the said notices of the Arbitration proceedings nor had she participated and had thus suppressed the fact.  It is for this, the O.Ps have submitted to dismiss the complaint petition which is not maintainable. 

The O.Ps have also filed certain copies of documents in order to prove their case.

3.         Keeping in mind the averments as made by the complainant in her complaint petition and the contentions of the O.Ps in their written version, this Commission is of a view to settle the following issues in order to arrive at a proper conclusion here in this case.

            i.          Whether the case as filed by the complainants is maintainable?

            ii.         Whether there was any deficiency in service on the part of the O.Ps?

            iii.        Whether the O.Ps had practised unfair trade here in this case?

            iv.        Whether the complainants are entitled to the reliefs as claimed?

Issue No.1.

            Out of the four issues, issue no.1 being the pertinent issue is taken up first here in this case for consideration.

            The O.Ps in their written version had harped the case of the complainant on two points.  According to the O.Ps, the case as filed by the complainant is not maintainable on the point of valuation since because the loan incurred by the complainant from the O.Ps was to the tune of Rs.4,48,000/- and the complainant while filing her complaint petition before this Commission has mentioned in her complaint petition at the top to be seeking relief under the provisions of Sec-12 of the C.P.Act,1986 and rules framed there under from time to time.  Thus, it is the contention of the O.Ps that as per the C.P.Act,1986, this Commission lacks pecuniary jurisdiction to entertain the complaint petition and thus it is not maintainable before this Commission.  The O.Ps have also taken the plea that when the matter was referred to the Arbitrator, notices were sent to the complainant in the same address but she had neither turned up nor had she participated in the proceedings of the Arbitration.  When the award has been given by the Arbitrator, this case cannot be said to be maintainable after that.

            On perusal of the case record, it is noticed that the case has been filed by the complainant on 9.9.21 and by then the new C.P.Act,2019 has come into force which was  effective from 20.7.2020.  This Commission is to decide the disputes referred before it on the principles of “natural justice” and not to stick to the inadvertent mistakes.  When the new Consumer Protection Act,2019 was in existence and the case of the complainant was filed much thereafter, this Commission thinks it proper to decide the fate of the complainant as per the new Act and thus the contention of the O.Ps on the point of pecuniary jurisdiction by referring to the old Act does not stand as a barrier here in this case.

            Even if the O.Ps have taken the plea that notices were sent as per the same address of the complainant through speed post, the complainant had not taken part in the Arbitration proceeding; the same plea as taken  is not supported with any postal receipts, tracking report of the speed post  etc. so as to appraise this Commission that infact the complainant had wilfully not participated in the Arbitration proceedings and knowing fully well about the Arbitration award has suppressed the said fact thus, has appeared before this Commission with unclean hands.  By not filing those postal particulars, it can never be concluded here in this case that the complainant was served with any notice from the Arbitration proceedings and was aware of such proceeding where she had not participated.  It is thus felt that the complainant is trying to mislead this Commission and has approached with unclean hands in order to escape from the case of the complainant.  Thus this issue of maintainability goes in favour of the complainant and against the O.Ps of this case.

Issues No.2 & 3.

            It is not in dispute that the complainant had paid 55 number of monthly E.M.Is and that she was a defaulter from the Month of May,2020 to September,2020.  The reason of such default as stated by the complainant was due to Covid-19 pandemic.  This fact is also not disputed by the O.Ps.  Thus by taking away the vehicle of the complainant without even intimating her tilts our eye brows and we are convinced that there was deficiency in service on the part of O.Ps who had practised unfair trade also.  These two issues are thus answered against the O.Ps.

Issue no.4.

            From the above discussions, this Commission is of a view that the complainant is entitled to the reliefs as claimed by her.  Hence it is so ordered;

                                                            ORDER

            The case is decreed on contest against the O.Ps who are found jointly and severally liable in this case.  The O.Ps are directed to settle the loan amount with the complainant within a month hence keeping in mind the gravity of Covid-19 situations all over India during May,2020 to Septpember,2020 and by following the guidelines of the R.B.I as well as the direction as envisaged by the Hon’ble Supreme Court of India.

Order pronounced in the open court on the 8^th day of July,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                     

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                                                                                                                                                              Sri Sibananda Mohanty

                                                                                                                                Member