District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 198/2021.
Date of Institution:06.04.2021.
Date of Order: 23.01.2023.
Ranjan aged about 37 years son of Sh. Govinda R/o House NO. 672, Gali NO.4, Laxman Colony, Near Shiv Mandir, Ballabgarh, district Faridabad – 121004, Haryana.
…….Complainant……..
Versus
M/s. IndusInd Bank Ltd., New No.34, Old Nos. 155 & 116, G.N. Chetty Road, T.Nagar, Chennai – 600 017 through its Managing Director/Director/Principal Officer.
Service also effected at:-
M/s. IndusInd Bank Ltd. Branch Office: Shubham Tower, 151, Ist floor, Near Escorts – Fortis Hospital, Neelam – Bata Road, NIT, Faridabad through its Manager/principal Officer.
…Opposite party……
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. Hari Om Sharma, counsel for the complainant.
Sh. Rajiv Rana and Shri Vipin Verma, counsel for opposite party
ORDER:
The facts in brief of the complaint are that the complainant purchased a three-wheeler (Bajaj RE Compact CNG) and same was financed with the opposite party vide loan account Deal No. DDB01110G dated 29.08.2017. The total financed amount was Rs.1,49,495/-, finance charges Rs.34,503/- and Rs.5,000/- as insurance charges i.e. total contract value Rs.1,88,998/- and same was repayable by the complainant in 23 monthly installments @ Rs.8217/- per month, the EMI commenced from October 2017. The said vehicle as the only source of livelihood for the complainant as defined under section 2(7)(ii)(a) of the Act. The complainant had paid 19 EMIs i.e. total sum of Rs.1,56,123/- to the opposite party against the receipts issued by the opposite party. Due to some unavoidable circumstances, the complainant could not make remaining four installments and requested the opposite party to cooperate with the complainant, but of no use. In the last week of December, 2019 the complainant also paid a sum of Rs.9,000/- to the opposite party but the opposite party did not issue the receipt of said amount and hence, in this way, the opposite party had received a total sum of Rs.1,65,123/- out of the said financed amount of Rs.1,49,495/-. In the month of January 2020, the opposite party through its goons/muscleman forcibly snatched the vehicle of the complainant in an illegal manner. Thereafter, the complainant approached the opposite party get his vehicle released by making balance payment, then the executive of the opposite party misguided the complainant and even after removable of lockdown, the complainant approached the local office at Faridabad
of the opposite party, then the officials of the opposite party told the complainant that the said vehicle had been auctioned by the opposite party without the consent and knowledge of the complainant in an illegal manner. The complainant demanded the documents of auction proceedings, bid amount, name of auctioneer etc. but the opposite party did not give any documents to the complainant. When the opposite party through its goons snatched the said vehicle, the value of the said vehicle was Rs.1,20,000/- approx. and in this way, the opposite party were liable to refund a sum of Rs.96,125/- to the complainant alongwith NDC/No Dues Certificate of the said loan. The opposite party with a dishonest intention, one hand forcibly snatched the vehicle from the lawful possession of the complainant and sold the same in an illegal manner and on the other hand started arbitration proceedings in Chennai in an illegal manner and also issued a Settlement Proposal on 16.09.2020, which had been received by the complainant in the first week of November, 2020. In the settlement proposal, showing the balance amount Rs.20,043.71 in an illegal manner. Whereas, the opposite party was liable to pay Rs.96,125/- to the complainant with interest @ 36% per annum from January 2020 till actual realization. The complainant sent legal notice dated 26.11.2020 to the opposite party but all in vain. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) withdraw the impugned arbitration proceedings
b) refund the said amount of Rs.96,125/- with interest @ 36% per annum w.e.f. January 2020 till actual realization.
c) issue No Dues Certificate in respect of Loan account Deal No.
DDB01110G dated 29.08.2017.
d) pay Rs. 1,00,000/- as compensation for causing mental agony and harassment .
e) pay Rs. 21,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the complainant was using the vehicle make/product model Three Wheeler Bajaj RE compact CNG Passenger vehicle make/product model Three Wheeler Bajaj RE Compact CNG Passenger vehicle bearing vehicle Regn. NO. HR-38S-7496, Chassis No. MD1A27AY2HWD42471 for commercial purpose, hence not fill within the definition of Consumer in any manner whatsoever he does, under the Consumer Protection Act. The complainant had availed a finance facility to the tune of Rs.1,49,495/- for a vehicle make/product model Three Wheeler Bajaj RE Compact CNG Passenger vehicle bearing vehicle Regn. No. HR-38S-7496, Chassis No. MD1A27AY2HWD42471 from the answering opposite party vide agreement/contract NO. DDB01110G dated 29.08.2017 which was signed and executed between the parties to the present complaint. After availing the fund facilities from the answering opposite party, the complainant was always remained irregular in making the installments of the loan amount and delayed the payment of the answering opposite party deliberately and intentionally. Thereafter the official of answering opposite party requested the complainant to make the payment of the outstanding dues and also issued demand notice dated 30.12.2019 to the complainant regarding the outstanding dues of Rs.29,897/- pertains to the defaulting in monthly installments vide which the complainant was requested to handover the possession of the vehicle in question for inspection of the vehicle, but
inspite of issuance of demand notice and visits of officials of the answering opposite party failed to make the payment of outstanding dues and did not produce the vehicle in question in the office of the answering opposite party for inspection. Thereafter the answering opposite party had repossessed the vehicle in question peacefully with due process of law after issuance of demand notice and requested the complainant to make the payment of the outstanding dues vide notice dated 07.01.2020 and again the answering opposite party issued presale notice dated 23.01.2020 vide which the complainant was asked to make the payment of Rs.29,897.81, otherwise the vehicle would be sold at the best quotation received in as was where was basis. After taking the peaceful possession of the vehicle, the answering opposite party auctioned the vehicle in question in open auction for a highest bid of Rs.20,000/- and sale value of the vehicle had been adjusted in the loan account of the complainant in the present complaint. After adjusting the sale amount of the vehicle still there was outstanding amount that was due against the complainant as on date and the matter had been referred to the Arbitrator as per the terms and conditions of the agreement signed and executed between the parties and the Hon’ble Arbitrator passed an award dated 09.10.2020 after conducting of Arbitration proceedings and as per Arbitral award there was an amount of Rs.37,256/- due and payable by the complainant to the answering opposite party. Execution petition for the same pending before Hon’ble Court of Shri Rajesh Sharma. The complaint of the complainant was not maintainable either on facts or in the eyes of law and was liable to be dismissed as the applicant had not disclosed the actual facts before this Hon’ble Commission that the loan agreement No. DDB01110G dated 29.08.2017 executed between the parties was having an arbitration clause and parties to the present complaint were bound by that
agreement. The loan agreement executed between the parties contains an arbitration clause and the disputes between the parties was very much covered by the arbitration agreement as per the Arbitration and Conciliation Act 1996.Opposite party 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.
5. In this case the complaint was filed by the complainant against opposite party– M/s. IndusInd Bank Ltd. with the prayer to: a) withdraw the impugned arbitration proceedings. b) refund the said amount of Rs.96,125/- with interest @ 36% per annum w.e.f. January 2020 till actual realization. c)issue No Dues Certificate in respect of Loan account Deal No. DDB01110G dated 29.08.2017. d) pay Rs. 1,00,000/- as compensation for causing mental agony and harassment . e) pay Rs. 21,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Ranjan, Ex,C-1 – RC, Ex.C-2 – Adhaar card, Ex.C-3 to C-18 – Receipts, Ex.C-19 – dement proposal, Ex.C-23 – legal notice, Ex.C-24 to 25 – postal receipt.
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party Ex.RW1/a –affidavit of Arun Kumar Upadhyay, Authorized Representative of M/s. Indusind Bank, 43, Bagheria House, New Friends Colony, New Delhi, Ex.R-1 – loan agreement,, Ex.R2 – Statement of account, Ex.R- 3 to 5- notices, Ex.R-6 – Arbitration Award document.
6. In this complaint, the complaint was filed by the complainant with the prayer to: a) withdraw the impugned arbitration proceedings. b)refund the said amount of Rs.96,125/- with interest @ 36% per annum w.e.f. January 2020 till actual realization. c) issue No Dues Certificate in respect of Loan account Deal No. DDB01110G dated 29.08.2017.
7. In this case, the complainant purchased a three-wheeler (Bajaj RE Compact CNG) and the same was financed with the opposite party for an amount of Rs.1,49,495/- vide loan account Deal No. DDB01110G dated 29.08.2017 and same was repayable by the complainant in 23 monthly installments @ Rs.8217/- per month commenced from October 2017. In the last week of December, 2019 the complainant also paid a sum of Rs.9,000/- to the opposite party but the opposite party did not issue the receipt of said amount and hence, in this way, the opposite party had received a total sum of Rs.1,65,123/- out of the said financed amount of Rs.1,49,495/-. The complainant had already paid 19 EMI i.e. total sum of Rs.1,56,123/- to the opposite party. The complainant was further failed to pay the 3 EMI @ Rs.8217/- to the opposite party. Approx. amount comes to Rs.25000/-. As per the statement of Account dated 26.08.2021 vide Ex.R-2,the opposite party auctioned the vehicle in question in open auction for a highest bid of Rs.20,000/- but the IDV value of the vehicle was Rs.1,20,000/- in the insurance policy.
8. After going through the evidence led by the complainant, no doubt, 3 EMI was left which were not paid by the complainant in time. On the other hand, counsel for the opposite party submitted the loan agreement vide Ex.R-1. Ex. R-2 is statement of account dated 26.08.2021. As per statement of account vide Ex.R-2 ,the opposite party auctioned the vehicle in question in open auction for a highest bid of Rs.20,000/- on 22.02.2020. Ex.R-3 to R-5 were the notices given to the complainant on different dates for the balance recovery amount of Rs.28,897.81. As per Ex.R-6, the Hon’ble Arbitrator passed an award dated 09.10.2020 after conducting of Arbitration proceedings and as per Arbitral award there was an amount of Rs.37,256/- due and payable by the complainant to the answering opposite party.
9. After going through the evidence led by the complainant, the Commission is of the opinion that the IDV value of the vehicle was Rs.1,20,000/- and the opposite party auctioned the vehicle in question in open auction for a highest bid of Rs.20,000/- only which is lower side. The Commission is of the opinion that assessment of the vehicle in question in our opinion is Rs.80,000/- at the time of auction. Hence, the complaint is partly allowed. Opposite party is directed to pay atleast 75% of the IDV value of the vehicle in question to the complainant and minus the outstanding amount of the account of the complainant. Opposite party is also directed to adjust in the statement of account instead of Rs.20,000/- and to pay Rs.80,000/- which is the 75% of the IDV value of the vehicle in question to the complainant. There are no order as to costs. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 23.01.2023 (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.
