Presented by Sri P.K.Dash, Member:-
The Complaint alleges deficiency of service as prescribed under the provision of Consumer Protection Act-1986, the brief facts of which is here under:-
The Complainant purchased one BOLERO-XL vehicle registered as OR-17-D-6644 bearing chasis No. MA1WF2GAK52L-49303 under the financial assistance of M/s Mahindra and Mahindra Financial Service Limited, Bagh Market Complex, Ainthapali Chowk, Sambalpur-768002 during the year 2006 for an amount of Rs.4,80,000/-(Rupees four lakh eighty thousand)only. As such the above toal amount of Rs.6,38,400/-(Rupees six lakh thirty eight thousand four hundred)only was to be paid in 59(fifty nine) installments.
The Complainant was also financed for a tractor and tailor registered as OR-17-C-6030 and OR-17-C-6031 successively only by the same financer during the year 2004.
The Complainant contends that as against the above claim of Rs.6,38,400/-(Rupees six lakh thirty eight thousand four hundred)only for the vehicle BOLERO-XL, he has already paid Rs.6,39,050/-(Rupees six lakh thirty nine thousand fifty)only for an excess amount of Rs.650/-(Rupees six hundred fifty)only. But to his dismay the Opposite Party issued a demand notice Dt.10/03/2011 for an amount of Rs. 1,86,305/-(Rupees one lakh eighty six thousand three hundred five)only against the BOLERO-XL as over due including penal interest.
Further contention of the Complainant is that the demand notice was sent for BOLERO-GLX having chassis No.49307 as against the financed BOLERO-XL with chassis No. 49303 for which a clarification as to this fact and also records of account was asked for by the Complainant on Dt.21/03/2011 but received no data and information regarding this from the Opposite Party.
Further the Complainant contends that the N.O.C. In respect of tractor and tailor bearing registration No. OR-17-C-6030 and OR-17-C-3031 successively was not issued in favour of him by the Opposite Party in spite of total repayment of loan amount since Dt.17/03/2009. But after a lapse of two and half year i.e. Dt.20/09/2011 N.O.C. for tractor bearing registration No. OR-17-C-6030 only was received by him in course of his personal inquiry at Sambalpur Office.
Further contention of the Complainant is that due to in ordinate delay of two and half year for issuing N.O.C. For the tractor bearing registration No. OR-17-C-6030 by the Opposite Party, he sold the said tractor on Dt.30/09/2011 with a migre price of Rs.50,000/-(Rupees fifty thousand)only for which he sustained a financial loss of about Rs.2,00,000/-(Rupees two lakh)only due to depreciation price of the vehicle for which he could not repaid the remaining outstanding loan amount of the BOLORO-XL bearing Registration No. OR-17-D-6644 in time.
Further contention of the Complainant is that letters from the Arbitrator were sent to the Guarantor of the vehicle to appear on Dt.14/10/2011 and finally on Dt.25/11/2011 to appear before Mahindra and Mahindra Financial Services Ltd., Worli, Mumbai-400018 for which the Complainant himself wrote request letters to the Arbitrator to make correspondence to him and not to the Guarantor and he (Complainant) should be given reasonable time when ever any action is taken against him.
Further the Complainant contends that due to non issuance of N.O.C. against the BOLORO-XL bearing Regd No. OR-17-D-6644, Trailor bearing Regd No. OR-17-C-6031 and due to delay submission of N.O.C. in respect of the tractor bearing Regd No. OR-17-C-6030 by the Opposite Party in favour of him, and also threatening and harassing the loanee even after clearance of loan amount and such conduct of the Opposite Party amounts to deficiency in service.
That the Complainant prays for
Return back his excess repayment loan amount of Rs.650/-(Rupees six hundred fifty)only in respect of BOLORO-XL bearing Regd No. OR-17-C-6644.
Compensation of Rs.2,00,000/-(Rupees two lakh)only for late submission of N.O.C. in respect of tractor bearing Regd. No. OR-17-C-6030.
Issuance of N.O.C. in respect of BOLORO-XL bearing Regd No. OR-17-D-6644.
Issuance of N.O.C. in respect of Trailor bearing No. OR-17-C-6031 against the Opposite Party.
The Complainant relied upon the xerox copies of the following documents in testimony of his claim:-
Demand notice of the financer/Opposite Party along with letter to OIC (Annexure-I).
Reply letter Dt.21/03/2011 to the demand notice Dt.10/03/2011 of the Financer (Annexure-II).
N.O.C. Of tractor bearing registration No. OR-17-C-6030 (Annexure-III).
Copy of R.L. No. S-6065 of the sole Arbitractor, Chennai (Annexure-IV).
Xerox copy of envelope in which R.L.-605 was received (Annexure-V).
Reply letter Dt.23/10/2011 to R.L. No.6065 of Arbitrator (Annexure-VI).
Copy of Acknowledgment of reply Dt.23/10/2011 (Annexure-VII).
Copy of R.L. No.P-36750 Dt.27/10/2011 of Arbitractor, Chennai (Annexure-VIII).
Copy of statement of payment (Annexure-IX).
Copy of application Dt.31/10/2011 applying for N.O.C. Of BOLERO(Annexure-X).
Copy of acknowledgment of letter (Annexure-XI).
Copy of reply of the Guarantor to Arbitrator on his letter vide R.P. 36750 Dt.27/10/2011 (Annexure-XII).
On being noticed the Opposite Party appeared and filed version through his legal counsel and denied to have cause any deficiency in service to the Complainant.
The case of the Opposite Party in brief as follows:-
(1) In lieu of the agreement entered into between Complainant and Opposite Party the relation between the Complainant and Opposite Party as “borrower” and “lender” the Complainant can't be deemed to be a consumer and the Consumer Forums established under the Provision of Consumer Protection Act-1986, lacks Jurisdiction to adjudicate the dispute specially when matter is pending before the chosen sole Arbitrator and the stay of Arbitration proceeding is the scope of Civil Courts and not within the scope and perview of Consumer Forum.
(2) Complainant is not a Consumer as per scope and perview of section 2(d) of Consumer Protection Act-1986 due to commercial use of vehicles by appointed drivers and not for earning livelihood by Complainant himself by self-employment.
(3) Further the Opposite Party alleges on the conduct of the Complainant as to suppression of facts and malicious representation in informing the court about regular default in complying with the terms and conditions of the hypothecation agreement and as per maxim quoted out of the Halsbury's laws of England, the Complainant can't be granted relief for his such conduct.
(4) Further the Opposite Party contends that due to the defaults and mischief of the Complainant in executing the loan agreement, outstanding as regards the delay penal interest and other charges in-curred in the loan account of the Complainant, the dispute between Parties if is over settlement of accounts and this grievance can't be adjudicated in the Consumer Forums.
(5) Further contention of the Opposite Party is that this is the dispute arose by the Complainant regarding non issuance of N.O.C. by the Opposite Party/Financer and as long as the outstanding amounts is pending against the Complainant, the N.O.C. Can't be issued infavour of him by the Opposite Party/Financer.
(6) The further contention of the Opposite Party is that as per the stipulation of the contract the loan installments are to be paid on or before the due date i.e. Ist day of every month and any default or delay in repayment of loan amount after due date an additional penal interest and charges @ 36%(thirty six percent) per annum accrued to the loan account of the Complainant under the agreed loan agreement.
(7) The further contention of the Opposite Party is that the Complainant opened 3(three) numbers of loan accounts with the Opposite Party i.e. one for Mahindra Boloro, Regd No. OR-17-D-6644, second for Tractor Regd. No. OR-17-C-6030 and third for the Trailor Regd No. OR-17-C-6031. Due to default in repayment of monthly installments in due time, delay penal interest and other charges have been incurred in all the three loan accounts of the Complainant with the Opposite Party. The entire loan amount including the interest thereon along with the delay penal interest in respect of tractor bearing No. OR-17-C-6030 have already been paid by the Complainant and N.O.C. is issued by the Opposite Party. The total delay penal interest and other charges in respect of Mahindra Bolero bearing Regd No. OR-17-D-6644 and trailor bearing No. OR-17-C-6031 amounting to Rs.1,23,974/-(Rupees one lakh twenty three thousand nine hundred seventy four)only is still outstanding against the Complainant as on Dt.29/11/2012 reflected in the account statement for which N.O.C. for both the vehicles are not issued as yet.
(8) Further contention of the Opposite Party is that as per the Arbitration and Jurisdiction and clause of the loan agreement both the Complainant and Guarantor of the loan account are jointly and severally liable for repayment of loan amount outstanding in the laon accounts of the Complainant with Opposite Party so also as arbitration proceeding is initiated prior to the initiation of this Complaint for which the complaint before this Forum is not maintainable.
The Opposite Party prays for dismissal of the complaint.
The Opposite Party relies on the following documents:-
Xerox copy of the loan agreement.
Xerox copy of the loan schedule-1.
Xerox copy of the loan schedule-2.
Xerox copy of account statement in respect of MAHINDRA 255 DI TRACTOR.
Xerox copy of the account statement in respect of MAHINDRA TRACTOR & TRAILOR.
Xerox copy of the account statement inrespect of the MAHINDRA BOLERO GLX 2WD MM.
From the thorough perusal of pleadings of the Parties, memo of arguments and scrutiny of documents filed by the Parties it suggests to be decide following issues:-
Whether complaint is maintainable before the consumer Forum ?
Is there any delay in issuing N.O.C. for the tractor by the Opposite Party and whether this being a deficiency in service by the Opposite Party.
Whether the Complainant has made excess payment in respect of Mahindra Bolero GLX 2WD MM bearing Regd No. OR-17-D-6644 and Tractor bearing Regd No. OR-17-C-6030 ?
Is there any delay in repayment of loan amount by the Complainant ?
In the present case the Opposite Party alleges that the vehicle was financed for commercial purpose and for this Complaint is not sustainable and to substantiate its claim, no documents or evidence has been brought before this Forum by the Opposite Party rather the Complainant in its complaint asserts that the vehicles were solely used by himself and his family members by means of self employment and evidencing the truth the father of the Complainant has also filed one driving license stand in his name on dt.14/01/2013 before this Forum. So it is found that the vehicle not used for commercial purpose. In the reported case of M/s Shind Engineering Works (P) Ltd Vrs. M/s J.S.Bindi and Son, Ludhiana in 2002 NCJ 388 (NC) it is established that the purchased machine if operated by the Complainant and his son without employing any staff not commercial purpose.
Again in the reported decision of Laxmi Engineering Work Vrs P.S.G. Industries Institute, in AIR 1995 (SC) 1428 even if commercial use by the purchaser himself for the purpose of earning livelihood by means of self employment, such purchase of good is yet a “Consumer”.
The power/jurisdiction conferred upon the consumer Forum u/s 3 of the Consumer Protection Act-1986, this Forum has concurrent jurisdiction and this being a jurisdiction upon the Consumer Forum in addition not in derogatory. This is supported by decision reported in 2010 (1) CLR (SC) 895. So Arbitration and Jurisdiction clause of the agreement is not a bar upon the Consumer Forum to entertain the Complainant. In view of the discussion made above the complaint is maintainable before this Consumer Forum.
The account statement in respect of the Tractor bearing registration No. OR-17-C-6030, submitted by the Opposite Party shows that the loan was sanctioned on Dt.01/05/2004 and the last installment along with the delay penal interest is paid on Dt.16/11/2005 by the Complainant and the loan for the Account of tractor is shown nil balance. Moreover an excess payment of Rs.742/-(Rupees seven hundred forty two)only has been made by the Complainant which is established and approved by the account statement submitted by the Opposite Party. The N.O.C. prepared by the Opposite Party on Dt.21/03/2011 so there is inordinate delay of about (5)five years in issuing the N.O.C. to the Complainant by the Opposite Party. But the Complainant in its complaint petition mentioned that he has cleared up his repayment of loan amount in respect of the tractor on Dt.17/03/2009 vide money receipt No.90105008/909050009 and received N.O.C. on Dt.20/09/2011, but the said money receipts have not been filed by the Complainant before the Forum and also the signature of the Complainant on the N.O.C. Dt.21/03/2011 issued by the Opposite Party does not bear the date. Accumulating all the facts and evidence on record it is clear that there is an inordinate delay of about more than (2)two years in issuing N.O.C. by the Opposite Party in favour of the Complainant in spite of total repayment of loan amount along with other charges imposed on him. This is a severe deficiency of service on the part of the Opposite Party towards the Complainant and due to depreciation in price of the tractor the Complainant deserves to be compensated.
From the perusal of the account statement in respect of the Bolero GLX 2WD MM bearing Regd. No. OR-17-D-6644, it is revealed that no excess payment is made by the Complainant but as per the Annexure-IX submitted by the Complainant, there is an excess repayment of Rs.650/-(Rupees six hundred fifty) only but no money receipt is filed by the Complainant in this regard. So there is no cogent evidence as to excess payment in respect of Bolero GLX 2WD MM, except the self prepared Annexure-IX by the Complainant.
The account statement submitted by Opposite Party in respect of Tractor bearing Regd. No. OR-17-C-6030 clearly reveals that an excess payment of Rs.742/-(Rupees seven hundred forty two)only is made by the Complainant to the Opposite Party in his loan account.
The documents along with the account statements filed by the Opposite Party in respect of the Bolero GLX 2WD MM, Mahindra 255 DI Tractor, and Mahindra Trailor and from pleading of Parties it reveals that there is an inordinate delay as to repayment of each monthly loan installment (EMI) as well as the final clearance of loan amount in respect of all the vehicles by the Complainant to the Opposite Party. More over the Complaint is totally silent, as to cause of delay for the repayment of loan amount by the Complainant. The Complainant has neither given any logical explanation for his negligence in repayment of loan amount nor filed any document except the complaint petition and series of letters between him and the chosen arbitrator to swing the balance of inconvenience and the natural justice in his favour. The loan agreement entered into between the Complainant and the Opposite Party is a bilateral and legally enforceable contract and the delay penal interest and other charges for the contributory negligence of Complainant in repayment of loan in time schedule is a condition precedent.
In the present case the Complainant has miserably failed in establishing his innocency, conduct and commitment for not making repayment of loan amount in time frame in the agreement entered into between him and the Opposite Party. In the above circumstance, facts and figures brought before the Forum the imposition of delay penal interest upon the Complainant for his negligence in prepayment of loan amount in time is not a deficiency of service on the part of the Opposite Party.
Hence, the Opposite Party is first directed (1) to return excess amount of Rs.742/-(Rupees seven hundred forty two)only paid in respect of the MAHINDRA 255 DI TRACTOR bearing Regd. No. OR-17-C-6030 to the Complainant. (ii) /To pay compensation of Rs.1,00,000/-(Rupees one lakh)only including interest @6%(six percent) per annum from Dt.17/03/2009 till date of payment for late submission of N.O.C. by the Opposite Party to the Complainant in respect of Mahindra 255 DI Tractor bearing Regd. No. OR-17-C-6030 within 45(forty five) days and failing which 12%(twelve percent) interest shall be calculated till the date of payment. After receiving the awarded compensation amount from the Opposite Party in respect of the MAHINDRA 255 DI TRACTOR bearing Regd. No. OR-17-C-6030, the Complainant there after is directed to pay the net outstanding of Rs.1,23,974/-(Rupees one lakh twenty three thousand nine hundred seventy four)only pending against him in the loan account of Mahindra Bolero bearing Regd. No.OR-17-D-6644 and Trailor bearing Regd. No. OR-17-C-6031 to the Opposite Party and after getting the said payment the Opposite Party shall issue N.O.C. in respect of the Bolero bearing Regd. No. OR-17-D-6644 and Trailor bearing Regd. No. OR-17-C-6031 infavour of the Complainant immediately within (7)seven days.
The Complaint disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree,
(Sri Pradeep Kumar Dash) ( Smt. Anjali Behera) (Miss Rajlaxmi Pattnayak)
M e m b e r. M e m b e r. P r e s i d e n t.
