IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SONITPUR AT TEZPUR
District: Sonitpur
Present: Smti A. Devee
President,
District Consumer D.R Forum,
Sonitpur, Tezpur
Sri P.Das
Member
District Consumer Disputes
Redressal Forum, Sonitpur
Smti S.Bora
Member
District Consumer Disputes
Redressal Forum,Sonitpur
CONSUMER COMPLAINT NO.19/2017
Sri John Narzary : Complainants
S/o Sri Mohan Narzary
Vill & P.O: Balijuri
Dist: Sonitpur,Assam
Vs.
1.M/s Mahindra & Mahindra Finance Service : Opp. party
Ltd. Represented by: Legal Manager, Gateway Building
ApolloBundra Mumbai-400001
2.Mahindra & Mahindra Finance Service Ltd.
Branch Office: First Floor Sitatam Mansion, New Amalapatty
Near Girl High School, P.O & P.S Tezpur
Hazaraapar, Tezpur-784001
Dist: Sonitpur,Assam
Appearance:
Mr Rajib Boruah, Advocate. : For Complainant
Mr A.K.Paul : For Opp.party No.1&2
Date of argument : 17-01-2018
Date of Judgment : 05-02-2018
- Facts leading to the complaint, in brief, are that Complainant being an educated unemployed youth purchased a Mahindra Maximo passenger vehicle for his livelihood with loan from the opposite parties and which was registered by the registering authority at Tezpur under the number AS-12-E-6563. Although the EMIs of the loan were initially regularly made but allegedly due to financial hardship the complainant could no longer make regular payment within due dates following which, the opposite party No.2 repossessed the vehicle on 17-11-2014 and thereafter kept on pressurizing the complainant to pay the outstanding dues succumbing to which complainant paid an amount of Rs.15000/-.In addition to the paid sum a further amount of Rs.1,72,000/- was demanded from the complainant. On 18-06-2016 complainant was served with a copy of award passed by the sole Arbitrator directing the complainant to pay Rs.1,72,579 with 18% p.a. Thereafter on 20-06-2016 complainant came to know that the vehicle was sold out on auction. Contending that opposite party resorted to unfair trade practice insofar as in not providing detail statement of accounts despite repeated request, prior service of notice of arbitration, copy of agreement, copy of repossession, prior notice of auction sale of the vehicle etc. has thus caused him financial loss, mental distress, agony, pain and to this end complainant has prayed a total relief of Rs.3,50,000/-
- Opposite party contested the case by filing written version contending inter alia thereunder that the Complainant is not a “consumer” as defined under the Act as the vehicle was used by the complainant for commercial purpose. Moreover, Complainant was defaulting payment of instalment of the loan and an amount of Rs.1,55,823/- still stood due and outstanding as on 10-06-2015 against the loan account despite adjustment of an amount of Rs.50,000/- towards the loan account out of auction-sale of the vehicle. Denying any deficiency in its service, opposite party with the above contentions in main, prayed for rejection of the complaint with cost.
- Complainant tendered his evidence in chief on affidavit and produced photocopy of four documents which are marked as Annexure “A” to “D”. Opposite party examined its legal manager,(Tezpur territorial) on affidavit. Witnesses on both sides were cross-examined.
We have carefully considered the materials available on record and the written arguments filed on both sides and draw the following points for determination of the matter in dispute.
Points for determination
(i)Whether the Complainant is a “Consumer” u/s 2(1)(d) of the Consumer Protection Act ?
(ii)Whether the opposite party had adopted “unfair trade practice” in repossessing the financed vehicle?
(iii)Whether there was deficiency in service on the part of the opposite party?
(iv)Whether the Complainant is entitled to get any compensation ?
DECISION ON POINTS WITH REASONS THEREOF
4.Point No.(i)-There is no dispute that the Complainant had purchased the vehicle “Mahindra “Maximo” Passenger by taking financial assistance from the opposite party. There was an Agreement between the parties. The Complainant promised to repay the financed amount by making payment of monthly instalments.
5. The main contention of the opposite party is that the vehicle was a commercial vehicle and the complainant used the same for earning profit.
6. Complainant categorically stated in his complaint and evidence on affidavit that he was an educated unemployed youth and he had purchased the vehicle for earning his livelihood. By cross-examining the Complainant,the opposite party has established that from the last part of 2012 till to the month of July/August 2014, Complainant was serving in a Company named “Assange”.The opposite party failed to bring any materials to establish that at the relevant time of purchasing the vehicle and thereafter till the month of Decemer,2012 and after the month of July/August,2014 Complainant had any source of income for earning his livelihood.
7. In view of the above, for temporary period of employment in a Company, in our considered opinion, cannot be accepted as sufficient to hold that the vehicle in question was not used exclusively by the Complainant for the purpose of earning his livelihood by means of self employment.
Section 2(1)(d)(ii) of the Act defines “Consumer” as follows -
“Consumer” means a person who “Consumer” means any persons who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”
As per explanation to Section 2(1)(d) of the Act “Commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.
8. Taking into view the above legal position and facts discussed above,we hold that the Complainant falls within the definition of Section 2(1)(d) (ii) of the Consumer Protection Act.
For the reasons stated above, Point No.(i) is decided in the affirmative.
9.Point No.(ii)& (iii):It is not disputed before us that the vehicle in question was repossessed by the opposite party and the same was sold in auction. In its written version opposite party claimed that the Sole Arbitrator Mr Rakesh Kaushik passed interim relief ex parte vide order dated 28-02-2014 in Arbitration proceeding authorizing the opposite party to repossess the vehicle.Accordingly, father of the Complainant who stood as guarantor of repayment of the loan amount surrendered the vehicle to the opposite party. During his cross-examination, Complainant denied such claim.
10. Evidently opposite party failed to summon the father of the Complainant for examination to establish its claim. On the otherhand the witness Sri Somdutta Boruah for the opposite party nowhere in his evidence, stated that the father of the Complainant of his own accord, surrendered the vehicle.
12. The opposite party also failed to prove service of notice of Arbitration Proceeding, order of interim relief passed ex parte, notice of repossession, notice of auction sale etc., upon the Complainant or his father. Complainant categorically at para 4 of the complaint and his evidence on affidavit stated that after repossession of the vehicle, a total amount of Rs.15,000/- was paid to the representative of the opposite party No.2. But inspite of repeated demand, opposite party failed to provide any statement of such payment.
13. Opposite party failed to deny the above allegations and only stated in its written version at para 9 that averments of the complainant made in paragraph -4 to 14 are all matters directly related to the arbitration proceeding. On the otherhand, opposite party failed to challenge evidence of payment of Rs.15,000/- during cross-examination of the Complainant.
14. Complainant being a consumer has every right to have the statement of his account and notice of auction sale etc. Failure of the opposite party to discharge its bounden duty, in our considered opinion, amounts to deficiency in service.
15. The Hon’ble Apex Court in a catena of judgment held that under Hire purchase Agreement the financier, who is the real owner of the property always has right to take possession of the property for non-payment of instalment. Undisputedly, Complainant was a defaulter.
16. Having regard to the entire facts discussed above and various judgments rendered by the Hon’ble Apex Court, Point No.(ii) is decided in the negative, but Point No.(iii) is decided in the affirmative.
14.Point No.(iv): Complainant has prayed a total relief of Rs.3,50,000/- with interest thereon @18% per annum, i.e., Rs.3,00,000/- for Unfair Trade Practice and for causing him financial loss harassment, mental distress, pain agony etc. and Rs.50,000/- as cost of litigation.
For the discussion made herein before and decision on Point No.(iii) decided in favour of the Complainant the latter is entitled to compensation.
17. Complainant has not stated the basis of claiming Rs.3,00,000/-. Complainant as per statement of account and evidence of D.W Sri Somdutta Boruah, has paid 18 nos of instalment and defaulted in making repayment of remaining 7 nos of instalment. Complainant had used the vehicle for earning his livelihood till repossession on 17-11-2014. Having regard to the entire facts,we are of the opinion that interest of justice would meet both ends if the opposite party is directed to pay Rs.1,00,000/- (Rupees One Lac) only as compensation for deficiency in service, mental harassment etc. and Rs.5000/- (Rupees Five thousand)only as cost of litigation. The amount of Rs.1,00,000/- shall carry interest @ 9% per annum from the date of filing complaint till realization.
O R D E R
In the result, the complaint is allowed. Opposite party is directed to pay Rs.1,00,000/-(Rupees One Lakhs) as compensation for deficiency in service, mental harassment etc., and Rs.5000/- (Rupees Five thousand) as cost of litigation.The sum of Rs.1,00,000/- shall carry interest @9% per annum from the date of filing complaint till realization.Opposite party is directed to comply with
the award within 30 (Thirty) days from the date of receipt of copy of the judgment and order.
Given under our hands and seal of this Forum this 05th day of February, 2018.
Dictated and corrected by: Pronounced and delivered
( A.Devee)
President (A. DEVEE)
District Consumer D.R Forum,Sonitpur President
Tezpur District Consumer Disputes Redressal Forum Sonitpur,Tezpur
We agree:- (P.DAS) (SMT.S.BORA)
Member Member
