The present complaint has been filed by the Pandori Baghel Singh Resident Ms. Sarabjit Kaur (the titled complainant) against the titled opposite parties being aggrieved at their alleged inter-SE connivance towards misappropriation of her Tripper-truck Vehicle seized by the OP1 financier first on the pretext of Loan Repayment default and then selling it through its dismantled parts.
2. The complainant and her RTO (Road Transport Operator) husband Malkiat Singh, in order to earn their livelihood through self employment, had purchased the Second Hand Tripper-truck PB07U3465 by raising term-loan of Rs.6.0 Lac from the OP1 financier on 29.02.2016 and had been since repaying the EMI (equated monthly installments) regularly with a few exceptions on account of occasional unforeseen circumstantial expenses. The loan statement is annexed as Ex.C1.
3. However, in the month of February' 2019 the OP2 Br. Manager at the OP1 told the complainant that her Vehicle shall be seized as a sum of Rs.1,59,334/- has been the overdue unpaid O/s in her loan a/c whereas Rs.7,96,225/- were repaid in the A/c in 3 years against the principal loan amount of Rs.6 Lac. It was observed that the OP1 financier had debited some unauthorized charges as Premium for Health Insurance, Visiting/Inspection charges and Penal Interest etc to the loan account sans consent/debit authority of the complainant who however agreed to pay the full outstanding against a final No-dues Certificate as the OP had also threatened to seize the vehicle forcibly on account of default in repayment.
4. The complainant has pleaded that their Truck has been in a well maintained condition and carried a market value of Rs.6.0 Lac as its IDV on its insurance policy 2016-17 (Ex.C15) was Rs.7.20 lac and after depreciation IDV to be Rs.5,83,200/- in the Year 2019-20 and thus the OP2 Br. Manager, in order to exploit the situation, had connived with the OP4 who involved other parties the OP3 and the OP5 in order to conveniently misappropriate the said Vehicle, in a seemingly legal way.
5. As has been further alleged by the complainant, the OP3 Nitin Mahajan owns the Mahajan Parking Yard at VPO Damtal (H.P.) on Pathankot-Mukerian State Highway providing repair, maintenance cum parking services to legally/illegally seized vehicles by the nearby Financiers and others etc.; the OP4 Sajan Ohri of Jaura Fatak, Amritsar has been in Sale-Purchase Business of Vehicles; whereas, the OP5 Mukesh Sharma has been in the Business of Dismantling Vehicles cum Sale-Purchase of Vehicle - Parts etc. Incidentally, all the opposite parties connived with the common goal of earning wrongful gains through unlawful loss to complainant by illegal seizure and sale of her mid-priced valuable Vehicle at a throwaway price. And, in furtherance of their common intention, the OP2 and the OP3 snatched the vehicle from the Driver on 13.02.2019 around the area of Taragarh and parked the vehicle at the OP3 Mahajan Parking Yard vide the Parking Receipt (Ex.C2) to paint the illegal seizure in legal lawful color. The OP financiers did not even accept the manipulated amount in default. On 01.03.2019, the complainant received the summons (Ex.C3) from one V. Paul Dass the sole arbitrator unilaterally appointed by the OP1 financiers with their claim statement (Ex.C4). The complainant filed his application (Ex.C5) postal receipt (Ex.C6) to the arbitrator consenting to deposit the claim-amount but received no reply; so he filed another request (Ex.C7/Ex.C8) of deposit of the claim-amount. Again, there was no reply and that shows partial behavior of the arbitrator as being one of the OP own henchmen. On 06.03.2019, the complainant applied (Ex.C9) to the D.T.O. Hoshiarpur; to stall issuance of NOC and transfer of the vehicle etc. The DTO allowed the said application and barred (Ex.C10) transfer of the vehicle. Further, on 12.04.2019 the OP2 Manager issued the vehicle release order (Ex.C11) favoring the OP4 (Aadhar–Ex.C12) posing as the Purchaser. However, when they could not get the vehicle transferred in the OP4 name from the DTO, Hoshiarpur; they involved the OP5 Scrap Dealer and got the vehicle dismantled and sold it in parts in the market. The complainant reported the entire matter (Ex.C13) to the police authorities who investigated (Ex.C14) the complaint but only to file the same under the influence of the opposite parties. It shall be pertinent hereto mention that the last balance in the loan a/c has been to the tune of Rs.22,361/- only at the time of seizure/sale of the vehicle.
6. Lastly, the complainant has addressed the entire episode to be an illegal as well as unauthorized act under the garb of one seemingly legal and lawful seizure/repossession of the financed vehicle by the opposite parties, in connivance, and have caused her and her husband an irreparable loss, in life, and thus she has filed the present complaint seeking directives to the opposite parties to refund back the market value of her Truck to the tune of Rs.6.0 Lac and Rs.1.0 Lac as cost and compensation with interest @ 18% P A from the date of illegal seizure of the truck (13.02.2019) till realization, in full. The complainant has also filed her affidavit, in (Ex.CW/A) in support, along with the documents (Ex.C1 to Ex.C15) in evidence and also her rejoinder in reply to the OP written statement.
7. The OP1 financiers along with their Branch Manager the OP2 appeared on summoning/notice through their common counsel and filed their written reply deposing/stating therein their preliminary as well as other (on merits) objections as: I) That the complaint is not legally maintainable as it fails to set out any deficiency in service or unfair trade practice on the part of the OP1 and the OP2 and there's no cause of action accrued in the complainant's favor, at any stage; II) The commission has no jurisdiction to entertain and put on trial the present complaint as the parties have contracted/consented to submit all its disputes to the jurisdiction of the courts in Chennai. Further, the contracted clause of arbitration in the loan-agreement and the arbitral reference of the dispute ousts it outside the commission's jurisdiction; III) The complainant has been irregular in her repayments; the said repossession of the vehicle has been legal and was sold for Rs 3 Lac and after liquidating the loan O/s balance Rs.80,056/- was paid to her; IV) The complaint is filed to harass and defame the OP; V) The OP1 has been a Co of repute and standing; VI) The complaint is bad for non-joining of the necessary parties; VII) The complainant is not a consumer as the inter-SE relations have been contract based; The OP have further referred to academic terms and have also quoted the senior court judgments. On merits, the OP1 and 2 have denied the contents and allegations as made out in the complaint unless specifically admitted and have placed forth their side of the matter vide the affidavit Ex.OP1&2/A as duly evidenced by various papers and other documents as duly exhibited during the present (Ex.OP1&2/1 to Ex.OP1&2/13) proceedings.
8. The OP4 Sajan Ohri appeared through his counsel and filed his reply on almost similar/parallel lines as that of the joint reply of the OP1 and the OP2; alongwith affidavit Ex.OP-4/A whereas the OP3 Nitin Mahajan and the OP5 Mukesh Sharma preferred to stay absent and were ordered to be proceeded against ex-parte. The OP5 however, joined mid-way during the proceedings and simply declined all the allegations.
9. We have thoroughly examined the available documentary evidence as produced on records so as to statutorily interpret the meaning and purpose of each document and also the scope of adverse inference for of some documents ignored to be produced by the contesting litigants in the back-drop of arguments duly put forth by the respective learned counsels for the present contestants. We find that the present dispute has arisen on account of the OP financiers’ seizure and repossession and subsequent sale of the financed vehicle, in dismantled parts, and that too at the fag-end of continuing Vehicle Loan with the outstanding loan balance almost on the verge of liquidation. There's an open display of unfair trade practices and illegal means to unnecessarily seize and repossess the vehicle for illegal gains through illegal designs.
10. The complainant has satisfactorily and sufficiently proved his contented allegations vide the produced evidence through the documents exhibited here as: Ex.C1 to Ex.C15. However, she has failed to produce the Loan Sanction and other loan documents that were vital to determine terms of sanction and default, if any, in repayment since these were not made available to her by the OP1 & 2 finance company nor they have produced the same, in totality, during the proceedings and that shows guilt cum malice in the related transactions.
11. Further, the OP financiers have produced their supporting evidence vide the documents exhibited as: Ex.OP1&2/1 to Ex.OP1&2/13 that neither rebuts nor negates the adverse allegations and it does not either requisition or explain as to why the loan account was debited with premium of health-insurance and other alike. The OP financiers have instead alleged the instant dispute to be the one pertaining to the one of non-repayment of loan (and not a consumer dispute) that bars the forum’s jurisdiction. We however find that that the matter of loan-account-settlement has been collateral to the prime consumer-dispute of unscrupulous exploitation of the consumer’s subservient position and as such we are inclined to set-aside the OP arbitrary charges after having once settled the loan repayment and the EMI (Equated Monthly Installments).
12. Finally, we find that the complainant’s contented case stand sufficiently and satisfactorily proved through the documentary evidence produced by him by way of her affidavit deposing the contents of complaint vide her recorded evidence. On the other hand, the OP financiers have produced its affidavit full of deposing rebuttals and other contents of written statement etc along with copies of authority & incorporation i.e., the pre-requisites to prosecute its defense; copy of the loan agreement but with none of the respective loan documents so as to prove its sanction along with its terms etc during the pend-ency of the continuing loan along with levying of arbitrary penalty and other charges etc amounting to deficiency in service, unfair trade practice resulting into exploitation of the subservient position of the borrowing complainant and that lines them up to an adverse statutory award under the applicable Act. We can understand the non-availability of loan and other security documents etc with the subserviently positioned complainant but its non-production on the complaint-proceedings (by the OP financiers) does raise scope of an adverse discretionary judicial view and subsequent award. However, it be reduced to writing that the OP financiers have failed to produce some cogent evidence to prove its ‘bald’ claims of non-compliance of sanction and defaults along with the piled-up arrears outstanding in the complainant’s loan a/c and also its other ‘bald’ allegations etc.
13. Lastly, in the light of the all above, we partly allow the present complaint and ORDER the OP financiers to pay market value of the complainant's Vehicle at the time of its unauthorized seizure/ repossession that we put at Rs.5.50 Lac with interest @ 6% PA w.e.f. the date of repossession (13.02.2019) till paid besides a sum of Rs.25,000/- as cost and compensation within 45 days of receipt of the certified copy of the orders otherwise the aggregated amount of the award shall attract additional interest @ 3 % PA w e from the date of orders till realization.
14. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
15. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (R.S.Sukhija)
SEPT. 28, 2022. Member.
YP.
