MR. PRAVAT KUMAR PADHI, PRESIDENT :-
Complainant has filed C.C.Case No.179/2023 U/s-35 of C.P.Act, 2019 seeking following relief:
It is humbly prayed that your honour would be kind and gracious enough to admit the C.C.Case and after hearing direct the Ops to release the vehicle and give compensation of Rs.50,000/- for mental agony, for business loss Rs.50,000.00 and Rs.10,000/- towards litigation cost in favour of the Complainant. The Ops. be further directed to take step to give Regd. Number of the seized vehicle to the Complainant and not to transfer the vehicle without leave of this Commission till disposal of the present C.C.Case.And for which act for your honour kindness the complainant shall as in duty bound everpray.
Brief fact of the case of the Complainant is that:-
The complainant being an unemployed youth has availed loan of Rs.6,96,518/- from the Ops on dtd.30.03.2022 to purchase one Mahindra 575 SP Tractor for maintaining his livelihood and as accordingly the loan agreement was executed between the parties. After purchase the said vehicle from OP No.3 was hypothecated to Op No.2.
The aforesaid contract value of Rs.6,96,518.00 including interest was to be paid in 60 installments and the installment starting date has been fixed from May-2022 to maturity date 10th April-2027 and the EMI was fixed at Rs.17,650/-.
The Complainant was regularly paying the EMI, and obtaining payment receipts, there was no principal dues against the vehicles but there was overdue EMI of Rs.55,788/- up to October-2023.It is a fact that the Complainant has paid 19 EMIs out of 22 EMIs which were due upto October-2023 but however the last EMI of Rs.17,650/- has been paid by the Complainant on dtd. 03.10.2023. He has defaulted only 3 EMIs due to financial stringency. Even though the complainant is a regular depositor of EMI but the Op No.2 taken away/seized the vehicle without knowledge and notice from the house premises of the Complainant on dtd. 08.01.2023 and the said vehicle was kept in the stock yard at Chandikhole by the Ops which is illegal as per decision of the Hon’ble Apex Court and for which the Complainant sustained heavy financial loss and undergoing mental agony which cannot be compensated in any manner. Further the OPs. have violated the terms and condition of the loan agreement and threatening to transfer the said vehicle illegally to their warranted buyer .the complainant is ready and willing to pay the 50% of the arrear installments along with regular EMIs as per the terms of the agreement.
The illegal action of the Ops. in seizing the vehicle without notice amounts to gross deficiency in service and adopted unfair trade practice which is against the observation of the Hon’ble Apex Court. The Ops have also not given Form-34 to the Complainant at the time of making finance for registration of the foresaid vehicle which amounts to gross negligence and deficiency in service on the part of the Dealer i.e Op No.3. It is very much pertinent to mention here that the Op No.3 delivered the vehicle (Tractor) to Complainant without giving Regd. No. of the vehicle which violated Section -41 of the M.V.Act,1988 for which the Op No.3 shall be liable for the same, which amounts to unfair trade practice and deficiency in service.
The Complainant contacted the Op on dtd.15.11.2023 to deposit 50% of the arrear EMIs but the Op did not release the seized vehicle (Tractor) and the cause of action arose on that date for filling the present C.C.Case before this Hon’ble Commission.
The Ops (Financer) have filed their written version stating as:-
It is not true to say the Complainant was regularly paying the EMI and obtaining payment receipts and there was no principal dues against the vehicle, but there was an accrued overdue EMI of Rs. 55, 788/- up to October 2023 and it is not correct to say that the Complainant has paid 19 EMIs out of 22 EMIs which are due up to October 2023 but however the last EMI of Rs. 17,650/- has been paid by the Complainant on dt. 3.10.23 and he has defaulted only 3 EMIS due to financial stringency. It is not true to say that the complainant is a regular depositor of EMI, but the Op No.2 taken away/ seized the vehicle without knowledge and notice from the house premises of the complainant on dt. 8.11.23 and the said vehicle was kept in the stock yard at Chandikhole by the Ops which is illegal as per the decision of the Honbl’e Apex court and for which the Complainant sustained heavy financial loss and undergoing mental agony which cannot be compensated in any manner and further the Ops have violated the terms and condition of the loan agreement and threatening to transfer the said vehicle illegally to their arranged buyer. It is false to say that the Complainant is ready and willing to pay the 50% of the arrear installments along with regular EMIs as per the terms of the agreement. It is false to allege that the illegal action of the Ops in seizing the vehicle without notice amounts to gross deficiency in service and adopted unfair trader practice which is against ht observation of the Hon’ble Apex Court and the Ops have also not given Form-34 to the complainant at the time of making finance for registration of the aforesaid vehicle which amounts to gross negligence and deficiency in service.
It is not true to say that the complainant contacted the Ops on dtd.15.11.2023 to deposit 50% of the arrear EMIs but the Ops are not releasing the seized vehicle (Tractor) and the cause of action arose on that date for filing the present C.C.Case before the Hon’ble Commission.
It is not correct to say that due to non availability of efficacious remedies available the complainant having no other alternative compelled to file the present C.C.Case for release of the vehicle.
The Op No.1 & 2 have further stated that-
The true fact of the case is that admittedly the petitioner has availed a loan for purchase of a Tractor of Rs.6,96,518/- on dtd.30.03.2022 with a rate of interest 17.67% and it has been agreed between the parties by executing loan hypothecation agreement dtd.31.03.2022 to repay the said loan amount with interest of 60 installments/EMIs of Rs.12,650/- and after the execution of agreement this Ops have disbursed the amount in favour of the complainant petitioner and the Op No.3 on getting the price of the Tractor has released the vehicle in favour of the complainant which was hypothecated by the Op No.1 & 2.After availing the loan and purchase of Tractor the complainant petitioner never paid the installments in time and due to non-payment of installment and the cheque given by the complainant for said purpose has been bounced several times but the Op No. 1 & 2 have not taken any coherasive step against the complainant in spite of the fact that the complainant failed to comply with the contract agreement with the Op No.1 & 2 and lastly as per the agreement the Op No.1 has taken the possession of the hypothecated vehicle Mahindra and Mahindra 575 DI-BP Plus Tractor bearing Engine No.NMA2GEE0226 & Chassis No.MBNTFALAEMNA-00322 from the possession of complainant with a proper receipt and said tractor is kept in the stock yard the Op No.1 & 2.
After taking possession on dtd.09.11.23 of the Tractor from the custody of complainant the complainant with false allegation filed the complaint on dtd,.22.11.23 and the Hon’ble Court passed order on the same day directing the Ops to release the vehicle on receipt of two unpaid EMIs within two weeks from the date of the order but the complainant did not came forwarded to deposit the said amount with this Ops till 27.12.2023 and on dtd,27.12.2023 these Opp.Parties appeared before the Court and on that day this Hon’ble Court directed the Op No.2 to release the Tractor on receipt of Bank Draft on the next day and the Complainant shall pay the rest of outstanding EMIs within one month and shall pay the regular EMIs.
Although the complainant deposit the Draft before the Hon’ble Commission and these Ops has received the same and deposited in their Bank account but the said draft amount is yet to be account for in account of the Ops but the Op has handed over the Tractor on dtd.16.01.2024
Taking into consideration of the disputed fact of both the parties and in order to ascertain the truth appointed Mr. Sangram Keshari Nayak as Pleader Commission vide order dtd.20.02.2024 who submitted his report with photographs of the vehicle on dtd.27.02.2024 where in the Pleader Commission stated as under. On enquiring at the spot it is found out that vehicle was stocks in the stockyard on 10th November-2023 whereas as per complainant submission vehicle was repossessed by the opposite parties on 8th Novembner-2023. I started investigation where the vehicle was parked, I also captured 7 nos. of photos of the said vehicle forsubmission before this commission on investigation it was found around the vehicle small plants and weeds cover the vehicle.
As per photo no.4 front guard does not belongs to this vehicle. As per photo no.5 is the front view of the vehicle. As per photo no.6 self start section is completely absent and missing. As per photo no.7 battery box is open and battery is absent. As per Photo no 2 which is the bar section to which rotary was attached was missing.
Apart from the above findings, there appears oil slippage on the engine section, it shows somebody have attempted to open the engine section as there is a linear crack on the upside of the engine.
As I am not competent to provide details of monetary loss for which the commission may contact the nearest service provider for loss of above observation.
I submit the above investigation on behalf of this Commission on this 27.02.2023 for kind consideration and necessary action.
This Commission vide order dtd.22.11.2023 in I.A.Case No.. 118/2023 directed as under:-
“Heard the advocate for the Complainant ex-parte. It is submitted that Complainant is maintaining his livelihood by engaging himself in the vehicle and due to seizure of vehicle he has been disengaged. Submission appears to be just and reasonable supported with affidavit. Hence considering the circumstances, issue notice to the OPs, & the Ops are directed to release the asset vehicles i.e Mahindra 575-D1-SP Plus Tractor bearing Regd. Engine No. NMA2GEE0226 & Chasis No. MBNTFALAEMNA-00322 of the Complainant immediately on receipt of two (2) unpaid EMIs i.e Rs. 35,300/- (Rs. 17,650/- x 2) within two weeks from the date of the receipt of this order. The Complainant also directed to pay the regular EMIs and Ops are directed not to take any coercive action against the Complainant & in respect of the aforesaid vehicle till disposal of C.C.Case. The Op No.4 is directed not to transfer the ownership the vehicle in favour of any other person without leave of this Commission and RTO, Kendrapara is directed to verify regarding Registration and whose fault is regarding non registration and plying & take action as per law”.
As per order of this Commission the Ops have received the draft of Rs.35,300/- vide D.D.No.788489 dtd.28.12.2023. After deposit of amount when the Complainant went to bring his vehicle found the same is not getting started and several parts were also missing for which this Commission vide order dt. 20.02.24 appointed Mr.S.K.Nayak as Pleader Commissioner.
We find from the record the Complainant was not given proper and adequate notices prior to seizure of the vehicle and repossessing the vehicle without giving proper notice amounts to deficiency in service and unfair trade practice. We are accepting the report of Pleader Commission is just and proper as the Pleader Commissioner is an independent person and belongs to different Bar Association.
From the aforesaid incident we are satisfied that there is deficiency in service and unfair trade practice on part of the Ops. Op No.3 & 4 did not appear for which they set ex-parte.
The OP No.3 is the Dealer who has not registered the vehicle and sold the vehicle without registration in violation of Section 41 of M.V.Act,1988 which stipulates as under:-
- An application by or on behalf of the owner of the motor vehicle for registration shall be in such form and shall be accompanied by such documents, particulars and information and shall be made within such period as maybe prescribed by the Central Government.
Provided that where a motor vehicle is jointly owned by more persons than one, the application shall be made by one of them on behalf of all the owners and such applicant shall be deemed to be the owner of the motor vehicle for the purposes of this Act. (Provided further that in the case of a new motor vehicle the applications for registration in the State shall be made by the dealer of such motor vehicle if the new motor vehicle is being registered in the same State in which the dealer is situated).
So in view of Section-41 of M.V.Act,1988, the O.P.No.3 should have register the vehicle in favour of the complainant before handing over the vehicle. So the OP No.3 has violated the provision of Section 41 of M.V.Act,1988 which amounts to deficiency in service and Unfair Trade Practice as stipulated U/s- 2(11) (47) of C.P.Act.2019.
In order to compensate the loss sustained by the Complainant towards the missing spare parts, mental agony/harassment and to give proper justice to the Complainant who has suffered a lot due to arbitrary, whimsical and illegal action of Op No.1 & 2 for which we are imposing compensation we are also taking care of the Ops and instead of imposing heavy compensation which requires in this case, we are limiting it to Rs. 50,000/- towards loss of parts and loss of business for about six months.
We therefore directing the Ops to return the vehicle in running conditions within 30 days and we also impose cost of Rs.50,000/- towards harassment, mental agony, missing of spare parts, business loss for about six months .We also award cost of Rs.10,000/- towards cost of litigation which shall be paid within 45 days from the date of receipt of this order. The Op No.3 is directed to register the Vehicle and hand over the RC Book to Complainant without any charge from Complainant and shall pay Rs. 10,000/- for not Registering the vehicle in violation of Section 41 of M.V.Act, 1988. The OP No.3 is given 2 months time for the registration of the vehicle and if Op No.3 shall not comply the order then Op No.3 shall pay Rs. 100/- per day after 2 months of this order.
The Complainant shall pay 30% of the outstanding EMIs as on date of repossession after deducting the amount which the Complainants has already paid as per order dtd.22.11.2023 and shall also pay regular EMI. The period of repayment of loan shall be extended for the same period as the vehicle remained in the custody of Op No.1 & 2 without any extra interest ( i.e from date of repossession till date of release of vehicle).
With the aforesaid observation and direction the C.C.Case No.179/2023 alongwith I.A No. 118/2023 are allowed and accordingly disposed off.
Issue extract of the order to the parties for compliance.
Pronounced in the open Commission, on this the 28th day of May ,2024
I, agree,
Sd/- Sd/-
MEMBER PRESIDENT
