OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI

C.C.12/2009

Present:-

                             1) Md.Sahadat Hussain, A.J.S.   -          President

                             2) Sri Upendra Nath Deka          -          Member

Sri Anwar Zunaid Rizzal Lingdoh                             -      Complainant

S/O Mr.Waliur Rahman,

Resident of House No.2 , Udayan Path,

Hengerabari, Dispur, Guwahati-6,

                           -vs-

1)      Messers Mahindra & Mahindra Financial          -  Opp.parties

Services Ltd. Guwahati Branch, situated

at Kushal Plaza, 3^rd Floor, Opp.Dispur

Petrol Pump, G.S.Road, Ganeshguri,

Guwahati-6, Represented by its Manager.

Appearance-           

Learned advocate Mr. Sarbananda Das  for the complainant.

Learned advocate Mr. Mrinal Sarma  and Ms.Jinna Ara Ahmed   for Opp. Party.

Date of argument -    11.3.16

Date of judgment-     8.9.16

JUDGMENT

          This is a case u/s 12 of the Consumer Protection Act , 1986.

1. The complaint filed by Sri Anwar Zunaid Rizzal Lingdoh was admitted on 16.2.2009 and notices was served on the opp.party and they also filed written statement. The complainant filed his evidence through affidavits sworn by him and by opp.party Md Waliur Rahman and both of them were cross examined by the opp.party sides’ ld counsel. The opp.party filed affidavit of Sri Bholanath Sarma and he was also cross examined by ld counsel of the complainant . Both side filed respective written argument. On 10.8.16, we have heard oral argument of ld advocate Sri Sarbananda Das  for the complainant and of ld advocate Mr.Mrinal Sarma for the opp.party, and fixed the day of 26.8.16 for delivery of judgment but on that day we failed to deliver the judgment due to malfunctioning of the computer and today we deliver the judgment which is as below.
2. The gist of the pleading of the complainant is that, the opp.party is a finance company , carrying out business of finance and is a service provider as defined under the said act, the complainant was favoured with a financial accommodation to the tune of Rs.2,78,000/- by the opp.party on 31.10.2006 for purchase of a vehicle on hire purchase for plying as a accommodation . The complainant purchased an Indica DLE III car from Ghosh Brothers automobiles , Guwahati, and used it as a taxi within the state of Assam and Meghalaya. The said vehicle was subsequently registered as AS-01-1B-3777. The repayment schedule of the loan was provided by the opp.party was fixed at Rs.9,100/- as E.M.I. for the due repayment of the loan . The said vehicle was also duly insured with the company being policy No. 3001/50623243/00/000, Cover Note No.378799. After completion all the formalities, the complainant started plying the said vehicle as Taxi and has been paying the EMI’s regularly till 29.1.2008, when the car involved in a serious accident and had to be lodged in a garage for repair. During this period of repairing, the complainant managed to pay sum of Rs.30,000/- towards payment of dues to the opp.party. The complainant had duly informed the opp.party about the accident and also authorized them to take up the matter with the insurance Co.with regard to  realization of the insurance claim. Accordingly, the insurance claim of the vehicle amounting to Rs.18,000/- wasdirectly deposited with the opp.party. Despite all efforts of the complainant to repay the outstanding loan amount to the opp.party, on 22.7.08 the said vehicle was seized at Nagaon while on a trip abruptly by some goons. Such actions of the opp.party was without any prior notice or demand whatsoever as a result of which the complainant have suffered irreparable loss and mental agony. The goons have instantly snatched the keys of the vehicle from the driver and forced him to sign in the sheet of paper alleged to be surrendered by the owner. While the complainant came to know about the seizure and snatching of the vehicle by the goons of the opp.party, he rushed to the office of the opp.party with a sum of Rs.20,000/- to be deposited in his loan account and prayed for release of the vehicle, but the Manager of the contrary refused to listen to him and virtually get the complainant out of the office with humiliation. Further, the Manager demanded the entire outstanding to be repaid instantly. To utter dismay and bewilderment of the complainant and also to cover up the misdeeds, the opp.party on 23.7.2008 issued a notice of demand to the complainant demanded inter alia an amount of Rs. 2,75,157/- to be paid within 10 days failing which, the said vehicle shall be sold in auction and the proceeds would be appropriated towards satisfaction of the outstanding loan amount. The said notice was infact, received by the complainant after about a month from the date of issue. On receipt of the said notice, the complainant duly responded with a reply through his lawyer but no response have so far been received from the opp.party. As such, the complainant has no alternative but to seek redress from this forum. The complainant has so far paid to the opp.party an amount aggregating to Rs.1,44,328/- towards liquidation of the dues which the opp.party duly acknowledged receipt. This will immensely prove the genuineness and intention of the complainant to perform the part of his obligations. All the relevant time of sanctioning the loan, the complainant was asked to cover about 6 (six) no. of post dated cheques the cover up the installments in the event of which is reported failure to pay the same, which is reported to be one of the clauses of the agreement. Although the complainant demanded a copy of the said Agreement, the opp.party has not furnished the same to the complainant despite repeated requests. The reason behind this is still remained mysterious. The cause action of this application arose on 31.10.06 , 25.2.08 the last date of payment , 29.01.08 the date of accident, 18.3.08, 22.7.08 the date of seizure of the vehicle 28.8.08 the date of reply through the Lawyer and all the subsequent dates thereafter the complainant made personal contracts with the opp.party. The action on the part of the opp.party is in complete defense to the guidelines of the Reserve Bank of India issued from time to time and also in violation of the principles of natural justice. The Consumer Forum of different states have held illegal, arbitrary and against the principles of law. Since these matters relating to realization of money are absolutely a civil nature, no actions against any recalcitrant borrower could be taken without any order of the Court.

3)   The gist of the pleading of the opp.party is that there is no cause of action   of filing the complaint; the dispute is not a consumer disputes and does not fall within the ambit of the provisions of the said Act. This forum has no jurisdiction to entertain the present complaint having the loan agreement entered into on 31.10.06 by the complainant with the opp.party and the irrevocable power of attorney executed in favour of the opp.party under hire purchase agreement and as per clause 27 of the said agreement, the Court of Mumbai alone had the exclusive jurisdiction in respect of any matter, claim or dispute which was also created upon by the complainant. The complaint is barred by limitation . The complaint is frivolous and vexatious, and hence is liable to be dismissed u/s 26 of the Act. The affidavit and the verification was not executed by the complainant in accordance with the law. The complaint is bad for non-joinder of necessary parties. They are not service provider with the complainant as per the Act. The opp.party as per clause 4.1 of the agreement is entitled to receipt of the money payable under the insurance policy in respect of the vehicle in   question. As per terms and conditions of the irrevocable power of attorney executed by the complainant in favour of the opp.party at the time of taking finance from the opp.party, the opp.party is authorized  to take possession of the vehicle of the complainant at any time on the event of default in making of monthly installments by the complainant. The complainant defaulted in payment of monthly installment in spite of several request made by the opp.party, nor the complainant had maked any attempt to pay the outstanding dues and he intentionally defaulted in making payment of the monthly installments. The complainant was a habitual defaulter in making payment of the installment. The complainant suppressed the fact that he had surrendered the vehicle on 22.7.2008 rather tried to came with a false and concocted story  of snatching away the keys of the vehicle by some alleged goons of the opp.party. The complainant never approached the opp.party to deposit his outstanding loan amount for release of the said vehicle. The allegation of snetching away the keys of the vehicle by the opp.party is a fabricated story . It is not true that the manager of the opp.party refused to listen to him and that virtually got the complainant out of the office with humiliation . The complainant had on 22.7.08, surrendered the vehicle alongwith  a letter dtd. 22.7.08 to a company and promised to take back the vehicle by paying all the outstanding dues within seven days, but he failed to oblige his promise and did not pay a single rupee against the outstanding liabilities, and finding no other alternative the opp.party issued notice dtd. 23.7.08 to the complainant by registered post on 4.8.2008 asking him to pay a outstanding amount of Rs.2,75,157/- with a period of 10 days  from the date of issue of notice, but inspite of receipt of said notice he had not made any attempt to pay the outstanding dues, instead he has filed present complaint by making false and concocted and frivolous and vexatious pleas with intention to mislead this forum ; and finding no other alternative, they had to disposed of the said vehicle for realization of outstanding dues. The complainant has no intention to perform his part of obligation. They have  at no point of time violated any guidelines  of Reserve Bank of India and principles of natural justice. The complaint is liable to be dismissed.

4)        We have perused the pleading as well as evidence of the parties. We have also perused the argument of the counsels of the parties.  It transpires to us that both sides admit that (i) the complainant, Md Anwar Zunaid Rizzal Lyngdoh had, on 31.10.06, purchased one smoked Metal Indica V2, DLS,BS III. P/ STG car from Ghosh Brothers Automobiles, Christian Basti, Guwahati on being financed by Mahendra & Mahendra Financial Service Ltd. (Guwahati Branch, Dispur) (Opp.Party) at a show-room price of Rs.3,72,309.00 (Rupees three lakhs seventy two thousand three hundred nine)only inclusive with taxes and the rate premium was Rs.9,100/-p.m. and the vehicle was registered as AS-01-AB-3777 and the vehicle was insured with Oriental Insurance Company Limited, Guwahati branch vide Policy No.-3001/50623243/00/000.

5)        The complainant side states that he had clearly been paying EMI’s regularly till 29.1.2008 and when his vehicle met an accident he had to put it in garage for repair, and during the period of repairing he managed to pay Rs.30,000/- towards payment of dues to the opp.party and his claim amount of 18,000/- for an accident the vehicle had met was also directly paid by the Insurance company to the opp.party; and in total, the complainant paid Rs.1,44,328/- to the opp.party towards liquidation of the due which the opp.party duly acknowledged, But the opp.party side states that the complainant taking the advantage of the accident of the vehicle intentionally defaulted in payment of monthly installments and in spite of several request he defaulted to clear the arrear dues. The complainant  side admits that on the day of taking possession of the vehicle by the opp.party, a few installments of EMI became arrear. The opp.party also states same thing. But none of the parties is specific about total amount of arrear or the total numbers of defaulted EMI’s. In such situation, it shall be presumedthat before taking possession of the vehicle, the complainant had defaulted in respects a few number of E.M.I.’s only.

6)        Now, question is that whether the complainant surrendered his vehicle  to the opp.party on 22.7.08 or the opp.party forcefully took possession the said vehicle on that day engaging goons, while it was plying to Tezpur in trip. The complainant’s pleas is that on 22.7.08, while his vehicle was plying to Tezpur in a trip, it was intercepted by the opp.party with the help goon at Nagaon and the key was snatched  by the opp.party and the driver was forced to sign over some papers without explaining the contents and it was seized. But the opp.party states that on 22.7.08, the complainant surrendered his vehicle to them with a letter dated 22.7.08 promising to take back paying all the outstanding dues within seven days but he failed to keep his promise.  As the complainant states that his vehicle was intercepted at Nagaon by the opp.party with the help of goons while it was going to Tezpur and seized the vehicle procuring signatures of driver in some papers, but he never surrendered his vehicle to the opp.party on that day or thereafter, it is the burden of the opp.party to prove their plea that the complainant had surrendered the vehicle to them on that day as he defaulted to pay the few numbers of installments with a promise to clear the arrear installments within seven days and to take delivery of the vehicle . To prove that plea the opp.party side adduce evidence of their witness Sri Bholanath Sarmah, who is the Associate Manager, Legal of the the opp.party. From his evidence it is found that neither the owner, nor any of his agent , nor the driver had surrendered the concerned vehicle to him directly. His version on that point is that while the complainant failed to pay monthly installments he had surrendered his vehicle on 22.7.08, but in the cross examination he states that one Hamid Ali surrendered the said vehicle, but they have not recorded his statement. He further states that Ext. 3 is the said surrender letter and the said surrender letter was not signed by the owner, but signed by one Hamid Ali, who is he, he does not know. The opp.party side adduces no other evidence   to prove their plea of surrendering the vehicle by the complainant. From this version of the O.P.W. , it is crystal clear that Ext. 3 is not a  surrender letter signed and issued by the owner of the said vehicle , nor a document signed and issued by or authorized agent or by his driver. Opp.P. W.  does not know who is said Hamid Ali . Thus, it is proved that Hamid Ali is not a agent of the owner, nor is the driver of the said vehicle and that the opp.party does not know identity of said Hamid Ali. The complainant sides states that the said Hamid Ali is not known to him nor he is his agent. Thus, the plea of the complainant that Ex.3 (alleged surrender letter) is a fake document prepared by the opp.party to save their skin is found to have been fully established . It is already found that neither the owner (the complainant), nor his driver surrendered the vehicle to the opp.party. In this case complainant states that while the opp.party with the help of goons intercepted his vehicle at Nagaon, and forcefully to took over the possession of the vehicle, they procured signature of his driver on some papers without explaining the contents of it, and Ex.5 is the one of the said papers signed by his driver Sri S.Kakoti.

            We have perused Ex 5 and found that it is a document purported to have been signed by the complainant’s driver Sri S.Kakoti on 23.7.2008. This document cannot be held to be a surrender letter because the opp.party’s version is that the vehicle was surrendered to them by one Hamid Ali, not by the driver of it. Thus, it is found that Ex.5 is also a document prepared by the opp.party, whereon they forcefully took the signature of the driver of the said vehicle on 22.7.2008 and so this documents does no way support the plea of the opp.party. Thus, we hold that the opp.party has totally failed to prove their plea that on 22.7.08 the complainant or his authorized agent surrendered the vehicle to them. In such premises, we are contrained to believe the plea of the complainant that the opp.party, on 22.7.08, forcefully intercepted the vehicle of the complainant while it was going to Tezpur with the help of goons and forcibly snatched away the vehicle  from  his  driver  and  forced  the  driver  to  put  his  signature over some   papers without explaining their contents, is a true fact. Thus, we hold that, the opp.party on 22.7.08 intercepted the vehicle of the complainant at Nagaon while it was going to Tezpur with the help of goons and forcibly seized the vehicle from the driver. Now, question is that, whether the opp.party can seize a vehicle forcibly from his owner on the guise that the owner defaulted in payment of a few installments of EMI s. National Commission in Revision Petition 737/2005  Citicorp Maruti Finance Ltd.  4^th Floor, Jeevan Bharati Building, Connaught Circus, New Delhi-110001….Petitioner …-vs- S.Vijayalaxmi,R/O 70, South Avenue, M.P.Flats, New Delhi..Respondent observes that for seizing a vehicle from his owners the financer is to give a prior notice to the owner asking him to clear the arrears of the EMI s with a warning to him that if he fails to clear the dues, they will take over possession of the said vehicle, and sell it for recovering the outstanding dues. In the case in hand, the opp.party’s plea is that they opp.party’s have already issued several notices to the complainant to clear the outstanding dues. To prove that plea, the opp.party side adduces neither oral  nor documentary evidence except a mere statement of O.P.W. Sri Bhalanath Sarma. So, in such situation, it must be held that before seizing the vehicle, the opp.party never served any prior notice upon the complainant about their intention. In such situation, if the opp.party would had lawfully seized the vehicle then also it would have been a case of illegal seizing. The plea of the opp.party is that the vehicle was surrendered and handover to them by the complainant, which they have failed to prove. Thus, it is a case of clear illegal seizure.

7)        In this case, the complainant states that he has paid the entire amount of accident claim to the tune of Rs.18,000/- to the opp.party against his loan alongwith an amount of Rs.30,000/- against the arrear of EMI s, and in total he paid Rs.1,44,328/- to the opp.party against the loan.  This averment of the complainant is not denied by the opp.party by filing true statement of the loan account. The opp.party in their written statement states that the total outstanding amount is Rs.2,75,157/-, but they have not submitted any statement of account to prove that plea . So, in such situation, it must be held that the plea of the complainant that against the loan of Rs.2,79,157/- which was financed by the opp.party to purchase the concerned vehicle, the he has paid Rs.1,44,328/-to the opp.party till the date of seizing the vehicle (22.7.08) is a true fact.

8)        From the record, it is also seen that the opp.party, vide notice dtd.23.7.08, (Ex 4) after seizure of the said vehicle asked  the complainant to clear the entire amount of dues against the loan to the tune of Rs.2,75,157/- within 10 days of issue of said notice. The complainant states that he received that notice and after receiving said notice he replied back the notice vide a legal notice dtd. 28.8.08. The complainant in his evidence states that he served his legal notice, which is a reply against the notice of the opp.party dtd.23.7.08 vide Ex.7. The opp.aprty side does  not specifically deny that they received the said notice. Thus, it is established that the notice dtd. 28.8.08 (Ex.7) was properly serviced upon the opp.party by the complainant.

            We have perused Ex.7 and it is found that through that notice, the complainant alleged that the opp.party forcefully seized his said vehicle from his driver and for such illegal seizure, they are liable to return the vehicle within 15 days. Secondly, by that notice, the complainant informs the opp.party that the outstanding amount cannot be Rs.2,75,157/- as they have already paid Rs.1,16,000/- against the said loan. Thirdly, by that notice, the complainant asked  the opp.party to return the vehicle within 15 days. We have found that as the opp.party illegally seized the vehicle of the complainant they cannot be ask the complainant to clear the outstanding amount, but to return the vehicle. Therefore, we hold that the demand of return of vehicle by the complainant is a lawfull demand.

9)        The concerned vehicle was sold away by the opp.party after said seizure and in the said sale, the complainant has not participated. We hold that   as   the   seizure   is   illegal,   the   question   of   participation   of   the complainant in the said sale does not arise at all; and therefore, the sale of the said vehicle by the opp.party on the ground that the complainant defaulted to clear the outstanding dues  is not a justified ground for selling the said vehicle. Therefore, we hold that the very act of selling the vehicle by the opp.party is a act of deficiency of service towards  the complainant and that as the opp.party illegally seized the vehicle from the road, the complainant has thereby been deprived of chance to earn money by letting the said vehicle on hire. If such seizure had not been done, the complainant would have earned money by letting the said vehicle on hire having it is a commercial vehicle and he could have paid and cleared the arrear and future installments. Thus it is clear that due to illegal possession of the vehicle by the opp.party, the complainant, failed to clear the outstanding amount of the loan; and also to his livelihood. It is found that the vehicle was also sold away by the opp.party and the sale proceed was used to liquidate the loan taken by the complainant. The opp.party side has no clear plea or evidence to the fact that how much amount remains as outstanding  after utilizing the sale-proceed of the said vehicle. In such situation, it shall be presumed that there is no outstanding dues against the loan taken by the complainant after the selling of the said vehicle by the opp.party.

10)      The opp.party has illegally seized the vehicle from the complainant and has also illegally sold the said vehicle and utilized the sale proceed in liquidation of the loan taken by him. We have already found that for such illegal seizure and sale of the said vehicle , the complainant has been debarred from his lawfull earning through the said  vehicle. So, for such loss of income of the complainant, the opp.party is liable to pay at least an amount of Rs.50,000/- as compensation. Secondly , by illegal seizure and sale , the opp.party caused harassment to the complainant and put him in mental agony and for such act, the opp.party is liable to pay him another amount of Rs.30,000/- as compensation. Te opp.party is also liable to pay an amount of Rs.20,000/- to the complainant  as cost of the proceeding  having for no fault of him he had to prosecute the opp.party before the forum incurring expenditure in paying fees to the advocates and in doing their related expenditures.

11)      As the vehicle was already sold away , there is no chance of return of the vehicle. As the vehicle was illegally seized and sold by the opp.party, for which act, the complainant suffered loss of income and loss of chance to clear the outstanding dues , the complainant is not liable to exhaust the remaining outstanding of the said loan, if any, after selling of the said vehicle. Hence, the opp.party side cannot demand even a single pie from the complainant as outstanding due of the said loan now.

12)      We have perused of the pleading of the parties as well as their evidence and it is found that the concerned vehicle is a commercial vehicle and it was used by the complainant of carrying the passengers in Assam and Meghalaya on hire for his livelihood. As per the opp.party, the complainant is not a consumer under the opp.party, nor the opp.party is the service-provider to him under the provisions of Consumer Protection Act, 1986 and therefore, the complaint is liable to be dismissed. The opp.party’s another plea is that the vehicle was run through an engaged driver and therefore, the complainant is not a consumer . We have found from the evidence of both party’s that the complainant used to earn the livelihood by using the said vehicle as taxi engaging a driver. The opp.party side failed to show any other occupation of the complainant and in such situation it shall be presumed that the said vehicle is the only source of livelihood of the complainant, meaning thereby it was the means of his self-employment. We have perused the decision of In the Supreme Court of India Civil Appeal No. 4193 of 1995 decided on 04.04.1995 Appellants: Laxmi Engineering Works –vs- Respondent: P.S.G. Industrial Institute  referred by the ld counsel of the opp.party and found that in the said case the complainant placed order with the opp.party for supply of P.S.G. 450 C &  C   Universal   Turning   Central   Machine   in   carrying   his   business   of manufacturing of machine parts on a large scale for the purpose of earning profit; and after finding this factual situation, Hon’ble Supreme Court observes that it is a case of pure commercial transaction and that is why the complainant cannot be entitled  to record as a consumer. In our present case, it is a case of earning livelihood by letting a car on hire and hence the factual backdrop of our present case is not similar with the factual backdrop of the referred case; and hence the observation of Supreme Court in the said judgment is not applicable in our present case. The case in our hand is a pure case of use of the concerned vehicle for self-employment and in such situation it cannot be said that the vehicle concerned was used for commercial purpose. So, as to oust the complainant from the definition of “consumer” as provided u/s 2 sub clause 1, Sub clause (d) of Consumer Protection Act, 1986. Therefore , we hold that the complainant is a consumer under the opp.party and the opp.party is a service-provider to him as envisaged by Consumer Protection Act, 1986. Therefore, , if the opp.party is found to have committed deficiency of service towards him, then he will be entitled to get relief from this Consumer Forum.

13)      The another plea of the opp.party is that the complainant issued an irrevocable power of attorney to the opp.party to seize and sell  the vehicle in default payment of the installment of the loan. This question does not arise in the present case having as per the opp.party, the complainant side surrendered the vehicle to them and they had also notified him to clear the arrear installments. In the present case, it is not proved that the opp.party before seizing the vehicle no notification was served on the complainant to clear the arrear installment. Thus, it is found that without asking the complainant to clear the arrear installment, the opp.party has no authority to utilize  the power given in the said power of attorney. It is also found  that the opp.party has no averments that by utilizing the power given in the said power of attorney they seized and sold the said vehicle. Hence, the fact of existence of a power of attorney  cannot come to save the opp.party from the guilty of committing the deficiency of service towards the complainant.

14)      The opp.party has another plea that as per contract ,Bombay Courts has only territorial jurisdiction to adjudicate the instant dispute between them and hence this forum has no territorial to adjudicate the present dispute. The Consumer Protection Act, 1986 is a Central Act covering whole India and in Sec 11 (1)(a)(d) of the said Act, it is provided that the complainant can file a complaint against the opp.party or opp.parties in the place where the opp.party on any of them actually and voluntarily resides on presently works for gain etc. and where the cause of action wholly or in     arises.

            In the said Act there is no provision for exclusion of jurisdiction and hence the parties of any dispute of deficiency of service cannot exclude the jurisdiction of the consumer forum by entering into an agreement as to jurisdiction of the consumer forum they also cannot  enter in agreement as to inclusion of a particular consumer forum, which it does not have. Therefore, we hold that if the parties of this of the instant case entered   into an agreement providing that only the court of Bombay has a jurisdiction to adjudicate the present dispute  ousting the jurisdiction of this forum over the present dispute is an illegal agreement. Therefore, we hold that this forum only has jurisdiction to adjudicate the present dispute.

15)      Summing up our discussion as above, we hold that the complaint has merit and hence the complaint against the opposite party is allowed on contest and the opposite party  is directed to pay compensation of RS.1,00,000/-(Rupees one lakh) only to the complainant and to pay Rs.20,000/- (Rupees twenty thousand)only as cost of the proceeding, with further direction that they are not entitled to recover any amount from the  complainant as outstanding dues of the concerned loan, if any, from the complainant.

Given under our hands and seal of this forum on this day 8^th Sep, 2016.

            Free copies of judgment be delivered to the parties.

            (Md.S.Hussain)

           (Mr.U.N.Deka)                                

                Member                                             

               DCF,Kamrup