Dt. 07.12.2015

JAGANNATH BAG, MEMBER

            The present appeal is directed against the order dated 29.05.14, passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas, in CC Case No. 475 of 2013 , whereby the complaint was allowed on contest against the OPs with cost and compensation .

            The complaint, in brief, was as follows:

            The Complainant obtained a loan for his personal need against hypothecation of his goods vehicle bearing No.W.B. 41C-7407. A loan amounting to Rs. 1,50,000/- was sanctioned . The OP No. 3 handed over a cheque of Rs. 1,22,114/- . The rest portion of the said loan was not paid to the Complainant in spite of his request to the Branch Manager of the Finance Company, being OP No. 3. A copy of the loan agreement between the Complainant and the Finance Co. was asked for but such copy was not made over to the Complainant. The Complainant asked the OPs by a legal notice to refund various charges debited arbitrarily and to cancel the second insurance .  The OPs constantly threatened the Complainant to take physical possession of the vehicle and in such situation the Regional Manager of the OP  Finance Company was requested for  reversing the charges arbitrarily deducted . No action being taken by the OPs, the complaint was filed before the Ld. Forum below .

            The Complaint was contested by the OPs  by filing W.V. wherein it was submitted inter alia that the loan of Rs. 1,50,000/- was sanctioned after deduction of Rs. 27,886/- which included insurance premium of Rs. 22,283/- upfront interest of Rs. 1,500/- and document service charge of Rs. 2,000/- and credit shield premium of Rs. 2,103/-. The Complainant failed to pay EMI as per terms of agreement and was a defaulter from August 2013 to February 2014 in spite of issue of demand notices. The Complainant did not pay the outstanding amount estimated at Rs. 59,940/- which the OPs were  entitled to get as dues from the Complainant .

            Ld. Forum below after having perused the evidence on affidavit , questionnaire and replies filed by the respective parties, observed that the loan was taken by the Complainant for personal purpose rather than for purchasing the vehicle in question. Ld. Forum below also observed that the loan agreement was not filed in course of the complaint proceedings though deductions against the sanctioned loan was recorded to have been made in terms of the loan agreement. It was further observed that the Complainant already insured the vehicle and as such he could not be compelled to take another insurance policy for his vehicle. The acts of the OPs including non-supply of copy of agreement in spite of repeated requests by the Complainant was found to be an unfair trade practice. The complaint was allowed on contest with cost of Rs. 10,000/-. The OPs were directed to make payment of Rs. 27,886/- towards the balance amount of the loan together with compensation of Rs. 10,000/-. The entire amount of Rs.47,886/- was ordered to be paid during one month from the date of order , failing which the said amount shall carry an interest @ 10 % p.a. from the date of default till realization.

            Being aggrieved by and dissatisfied with the order of the Ld. Forum below the OP – turned –Appellant has come up before this Commission with a prayer for direction to set aside the impugned order.

            Ld. Advocate appearing for the Appellant submitted that the loan amount of Rs.1,50,000/- was sanctioned and a sum of Rs. 27,886/- was deducted for payment of Rs. 22,283/- as insurance premium, Rs.1,500/- as up front interest , Rs. 2,000/- as document service charge and Rs. 2,103/- as credit shield premium. As per agreement there is no provision for refunding such amounts. The Complainant agreed to accept the loan on such charges to be deducted from the loan amount. The Complainant / Respondent admittedly defaulted in making payment of EMI from August 2013, thereby violating the terms of agreement. Notice was issued to the Respondent /Complainant on 09.11.2013 saying that the Complainant had defaulted in payment of EMIs in respect of the vehicle in question. No action was taken by the Respondent /Complainant in spite of issuance of reminders. As per terms of the agreement , the financier would take appropriate legal action. But  the Respondent /Complainant without paying any EMI made some false charges and filed the complaint . The impugned order passed by the Ld. Forum below is arbitrary in nature, since the lapses on the part of the Respondent / Complainant have not been considered. The  impugned order be set aside.

            Ld. Advocate appearing for the Respondent /Complainant submitted that theirs was not a case of hire-purchase-agreement. The vehicle was hypothecated for the purpose of a personal loan of Rs. 1,50,000/-. The copy of the loan-cum-hypothecation agreement was never supplied to the Respondent/Complainant and the Appellant never raised the issue of double insurance in respect of the vehicle in question as the vehicle at the time of obtaining loan stood insured for the period from 06.12.2012 to 05.12.2013 . There was no requirement of any further insurance of the vehicle. The Respondent/Complainant was told that the balance amount of Rs. 27,886/- would be paid to him within 2 weeks from the date of issue of the loan amount of Rs. 1,22,114/-. That was subsequently proved to be a false assurance which is tantamount to unfair trade practice. Accordingly, Ld. Forum below passed the order asking the OP to pay a total sum of Rs. 47,886/- including cost and compensation which be upheld.

         Ld. Advocate appearing for the Appellant cited the order of the Hon’ble Supreme Court of India as reported in II (2012) CPJ 8 (SC) holding that financier is the real owner of vehicle and the person who takes loan retains vehicle only as a bailee / trustee . Another order of the Hon’ble National Consumer Disputes Redressal Commission as reported in I (2013) CPJ 486 (NC) was referred to, emphasizing that repossessing vehicle under the terms and conditions of hire- purchase- agreement can not be considered any negligence.

            Ld. Advocate appearing for the Respondent / Complainant submitted the order of Hon’ble National Consumer Disputes Redressal Commission as reported in 2014 (2) CPR 576 (NC) and the order of this Commission   as reported in 2013 (2) CPR 47 (W.B) .

            We have gone through the memorandum of appeal together with copies of the impugned order, the petition of complaint , the W.V. filed by the OPs and other documents including the copy of loan-cum-hypothecation agreement and correspondences between the parties.

            The point for consideration is whether the impugned order should be interfered with for interest of justice.

                                                    Decision with Reasons:

            There is no dispute that the Respondent /Complainant was sanctioned a personal loan of Rs. 1,50,000/- against hypothecation of  his goods vehicle w.e.f 20.07.2013 . A cheque for a sum of Rs. 1,22,114/- dated 20.07.2013 was handed over to the Respondent Complainant. The point of dispute is that the Respondent /Complainant was aggrieved for non-payment of the balance amount of Rs.27,886/- as he was not satisfied with the clarifications given by the OP/Appellant towards payment of insurance premium etc. He lodged the complaint case before the Ld. Forum below.

            It is seen that a copy of the loan-cum-hypothecation agreement has been submitted along with the memorandum of appeal, though such copy, as observed by the Ld. Forum below, was not submitted for their perusal and consideration.

            We are inclined to hold that the loan-cum-hypothecation agreement being a very vital document for determining the compliant case in question, the Appellant /OP should have submitted the same before the Ld. Forum below . In that position, it would be prudent to refer the matter back on remand to the Ld. Forum below for fresh order upon taking into consideration the contents of the loan-cum-hypothecation agreement which must be produced before the Ld. Forum below for the interest of justice.

            The Complainant’s case being based on loan-cum-hypothecation agreement, rather than a hire-purchase-agreement , we are constrained to hold that the order of the Hon’ble Supreme Court as referred to by the Ld. Advocate of the Appellant does not apply.

       Hence,

                                                Ordered

            That the appeal be and the same is allowed . The impugned order is set aside. The matter be sent back on remand to the Ld. Forum below for fresh order after giving opportunity of hearing to both parties, who may adduce fresh evidence, if any , in support of their respective point. The Appellant, in particular ,shall submit a copy of the loan-cum-hypothecation agreement for consideration  of the Ld. Forum below. There shall be no order as to cost.

        Parties to appear before the Ld. Forum below on 28.12.2015.