District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.534/2021.
Date of Institution: 13.10.20212021.
Date of Order: 11.10.2022.
Bhim Singh son of Shri Prabhu Dayal r/o House NO. 542/3, Jakhar Mohalla, Near Khera Chowk Mujessar, Sector-24, NIT, Faridabad (Haryana).
…….Complainant……..
Versus
1. M/s. Indostar Capital Finance Limited, 5-B/7 B.P. 2nd floor, Railway road, NIT, Faridabad Haryana 121001 through its Director/Manager/principal Officer.
2. M/s. Indostar Capital Finance Limited, One Indiabulls Centre, 28th floor, Tower-2A, Jupiter Mills Compound Snepati Bapat M Deliste road, Mumbai – 400 013 through its MD/Director/Principal Officer.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana…………Member.
PRESENT: Sh. N.S.Tanwar, counsel for the complainant.
Ms. Shivani Aggarwal, counsel for opposite parties Nos.1 & 2.
ORDER:
The facts in brief of the complaint are that the complainant had got financed his Commercial vehicle Eicher Pro-1110 bearing its registration NO. HR-38Y-1153 Chassis No. MC2F7HRCOJF148840 with the opposite parties vide loan agreement No. 1000211445 dated 05.10.2018 for loan amount of Rs.14,93,402/- and disbursed the amount of Rs.14,86,402/- and the said amount was repayable in 35 monthly installments @ Rs.36,780/- per month during the period from 05.10.2018 to 05.02.2024. Continuously paid the amount of installments to the opposite parties but in the month of January, 2021 & February 2021 the complainant could not deposit the installments with the opposite parties. On 09.03.2021 when the complainant was driving his above noted vehicle which was loaded with Gatta on the road then the musclemen of the opposite parties came and snatched the above said vehicle from the custody of the complainant forcibly and illegally. Prior to snatching the said vehicle no any prior intimation or notice was given by the opposite parties to the complainant. There was no provision of the law to snatch the said vehicle due to default in payment of the two installments. The complainant contacted the opposite parties from time to time and requested the opposite parties to receive the defaulted installments and to handover back the commercial vehicle Eicher Pro-1110 bearing its registration NO. HR-38Y-1153 to the complainant. But the opposite parties had neither collected the defaulted installments from the complainant nor handed over back vehicle Eicher Pro-1110 NO. HR-38Y-1153 to the complainant. Due to snatching of vehicle Eicher Pro-1110 NO. HR-38Y-1153 the complainant could not earn anything because the said vehicle Eicher Pro-1110 NO. HR038Y-1153 was the only source of income for the livelihood of the complainant. Due to snatching of the said vehicle by the opposite parties the complainant could not deposit the installments since January, 2021 to till date. The complainant sent legal notice dated 11.08.2021 to the opposite parties but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) handover back the commercial vehicle NO. HR-38Y-1153 and collect the defaulted installments form the complainant.
b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 5500 /-as litigation expenses.
2. Opposite parties put in appearance through counsel and filed written statement wherein Opposite parties refuted claim of the complainant and submitted that the complainant and Indostar Finance entered in a commercial vehicle loan agreement to finance a commercial vehicle i.e Eicher Pro-1110 bearing registration NO. HR-38Y 1153, Chassis No. MC2F7HRCOJG148840, Engine No. E424CDJG223050 via loan agreement No. 1000211445. The loan taken herewith was for Rs.14,93,402/- and disbursed an amount of Rs.14,86,402/- which was repayable in 63 monthly instalments at Rs.36,780/-. Article of the agreement provides that time should be the essence of this agreement terms & conditions, it further stated that the hypothecator should pay all interest, front end fee, liquidated damages etc. In furtherance of same a notice was sent, in accordance with the agreement, to the complainant bringing the continuous default in making payment of previous instalments by the complainant into his notice via a loan recall notice on 28.09.2021. The notice also informed the complainant and the co-borrower about the additional costs levied for the default. Moreover, the complainant was given a period of 7 days to remit the outstanding principal, interest and additional charges which were not paid by the complainant. While dealing with a similar matter the Hon’ble National Commission in Neelam Puri’s case (Revision petition NO. 4212 of 2018) held that since the borrower was a defaulter, who did not adhere to the payment schedule and became a defaulter, the opposite party/bank was well within his authority to repossess the vehicle and possibly no eyebrows can be raised on that score. Thereafter the commercial vehicle was then seized by the opposite party on 09.03.2021. As of 01.10.2021 the complainant had defaulted the loan payment of Rs.16,91,113/- as a result of which, the opposite party issued a final, pre-sale notice to the complainant on 01.10.2021 calling upon the opposite party to discharge his duty within 7 days from the notice failing which the opposite parties would be entitled to sell/dispose off the repossessed vehicle. Despite multiple notices and reminders, the complainant neither made any payment nor repaid the whole outstanding amount within 7 days of the notice. The complainant failed to settle the opposite party’s outstanding dues within 7 days as mentioned in the pre-sale notice, the complainant’s lack of interest to repossess his vehicle was hence established, compelling the opposite party to sell the vehicle. As per the article 4(iii) of the agreement, in case the borrower failed to repay the loan as per payment schedule the vehicle could be sold by the opposite parties to recover the costs, therefore the vehicle bearing registration No. HR-38Y-1153 was then sold via an auction on 09.10.2021 in accordance with the terms of the agreement. Opposite parties denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file as well as written submissions filed by both the parties have been perused.
5. In this case the complaint was filed by the complainant against opposite parties– M/s. Indostar Capital Finance Limited with the prayer to: a) handover back the commercial vehicle NO. HR-38Y-1153 and collect the defaulted installments form the complainant. b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 5500 /-as litigation expenses.
To establish his case the complainant has led in his evidence, photocopies of RC,, policy schedule cum certificate of insurance, Authorization certificate of N.P.(Goods), inventory of items in vehicle,, Account statement from 31.08.2018 to 11.03.2021, receipts,, legal notice,, Adhaar carad.
On the other hand counsel for the opposite parties strongly agitated
and opposed. As per the evidence of the opposite parties, statement of account from 31.08.2018 to 31.10.2021, settlement simulation report, Account statement from 23.09.2020 to 11.03.2021.
6. In this case, the Complainant and Respondent entered in a commercial vehicle loan agreement, to finance a commercial vehicle i.e.. Eicher Pro 1110 bearing registration no. HR 38 Y 115, Classis No MC217HRCIG148840, Engine No. E424CDJG223050. Model 1 October 2018, via Loan Agreement bearing No 1000211445. During the course of arguments, counsel for the opposite parties stated that the Loan was for Rs. 14,86,402, which was to be repaid in 63 Monthly instalments of Rs 36,780/-. The complainant had paid 38 monthly installment to the opposite party and the remaining 28 EMI was not paid by the complainant to the opposite party which comes to Rs. 17,75,539/- including other charges like interest, challans etc. vide Ex.R-1 In this case, financer is the first owner. As per the settled law the complainant cannot take two benefits at a time. Neither the complainant is ready to pay the balance EMI amount to the opposite parties nor settled the account. In the interest of justice, as per the statement of counsel for the opposite party that balance loan amount of Rs.17,75,539/- which was paid by the complainant which includes other charges like interest, challans etc. Initially the loan amount was Rs.14,86,402/-.
After going through the evidence led by both the parties, the Commission is of the opinion that the complaint is dismissed. The complainant is at liberty to file an application to opposite party/financer for the payment of balance amount to the opposite party and take the vehicle in question back. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 11.10.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
