SRI BIJAYA KUMAR DAS,PRESIDENT:-
Unfair trade practice in respect of charging illegal interest and seizure of the vehicle are the allegations arrayed against the Opp.Parties.
2. Complaint, in brief reveals that complainant is an unemployed youth and to maintain his livelihood purchased a 2nd hand Tata Truck of Model 2515 bearing regd. No.OR-04-F-0267 being financed by OP-financer i.e. Cholomandalam Investment Finance Co.Ltd.. It is stated that out of the total cost of the vehicle amounting of Rs.8 lakhs complainant availed finance of Rs.4,21,168/- as advance from the Ops. The said amount is to be repaid alongwith prescribed rate of interest @ 10.95 per cent per annum on flat rate i.e. Rs.1,38,353.68 and the total amount of Rs.5,59,521.68 to be paid to the Ops within a period from dtd.01.10.2011 to dtd. 01.04.2014. Due to restriction on iron ore business complainant defaulted in paying the loan dues to the Ops. It is further stated that on receipt of statement of loan account complainant seen that Ops have shown the outstanding as Rs.6,80,000/- instead of legitimate outstanding of Rs.5,59,521/- and the amount of finance has mentioned as Rs.4,50,000/- in place of Rs.4,21,168/-. Complainant lodged a protest before the OPs on wrong calculation of EMI’s and Ops assured to rectify the same and advised the complainant to go in paying the EMI’s. The complaint petition also reveals that complainant has paid Rs.5,31,000/- upto dtd.14.08.14 by showing the schedule of payment. The complaint petition further reveals that when the registered letter sent by complainant on dtd.18.09.14 addressing to Ops for rectifying the outstanding dues and to accept scheduled outstanding for closure of the loan account being unnoticed, such acts of the Ops are unfair trade practice. The Ops also issued a notice on dtd.20.09.2014 to seize the vehicle which forced the complainant to file the present proceeding. The last cause of action of the instant case arose on dtd.20.09.14 when the Ops issued notice to seize the vehicle. Complainant on filing the present proceeding prays this Forum to issue direction to Ops not to seize the vehicle bearing No.OR-04-F-0267 and compensation of Rs.50,000/- towards financial loss and mental agony.
3. Being noticed OPs appeared through their Ld. Counsel Mr. R.K.Sahu filed written statement and parawise reply into the case chalalenging and citing different decisions. The maintainability of the case on the grounds that complainant can not be treated as a ‘consumer’ as the said financed vehicle was plyed by a paid driver, as the complainant does not ply the vehicle by self-driving, he can not be treated as a ‘consumer’ as per provisions of C.P.Act,1986 in addition to that Ops raised the clause of ‘Arbitration’ as per the agreement by stating that as per the agreement if any dispute arises same to be referred to a sole Arbitrator at Chennai.
The brief facts of the Ops are that complainant availed a finance from the OP-Company to the tune of rs.4,50,000/- by executing a hypothecation agreement No. XSHUBNR0000626594(Annexure-A) to purchase a pre-0wned Tata Truck 2515. The loan has to be repaid alongwith interest in 31 nos. of EMI started from dt.01.10.2011 to 01.04.2014 and as per the repayment schedule(Annexure-B) EMI’s are to be paid on due dates. According to the agreement the complainant is defaulter in respect of payments in due dates for which a notice was issued on dtd.20.09.14 to the complainant to clear the dues.Ops in their parawise reply state that complainant was refinanced with a loan amount of Rs.4,50,000/- against the cost of the vehicle of Rs.6,80,000/- and Rs.18,682/- was fixed as EMI per month. The repayments made by the complainant is reflected in statement of account(Annexure-D). It is averred that complainant was defaulted in paying EMI’s and same EMI’s through cheques which was dishonoured bythe concerned bank for insufficient of funds as a result Rs.2,40,927/- is pending till filing of written statement for overdue of repayment of installment and for other over dues. It is further averred that the figured amount given by the complainant for settlement is no way acceptable and there is no error in calculation of loan outstanding dues of the complainant. In the facts and position of law the Ops prays this Forum that the complaint is false and fabricated and is liable to dismissed withcost.
4. Heard the Ld. Counsel Mr. R.K.Sahu appearing for the Ops and case of the complainant on merit as non-appears on behalf of the complainant though the case was posted for peremptory hearing, perused the documents, annexures,notes on argument ,citations filed into the case record.
The admitted facts of the case are complainant purchased a pre-owned Tata Truck 2515 on execution of an agreement bearing its Regd. No. OR-04-F-0267 being financed by OP-finance company. It is also admitted fact that complainant is a defaulter in connection to repayment of outstanding dues for which OP-finance company issued a notice on dtd.20.09.2014 to the complainant to clear the outstanding dues.
OP-finance company challenges the maintainability of the complaint on grounds that complainant can not be treated as a ‘consumer’ as per provisions of C.P.Act. The complainant’s said vehicle was driven by a paid driver and not by the complainant himself to maintain his livelihood, hence the complainant is excluded from the purview of the definition of consumer. OP’s another ground is that as per the agreement if any dispute arises, the matter will be referred to sole arbitrator at Chennai by citing a decision in (1996) 4 SCC 704 in case of Bharat Kinitting –Vrs-DHL worldwide, hence this Forum is not empowered to adjudicate the proceeding. In this regard, we are of the opinion that OP-finance company has not produce a single evidence that the case vehicle was driven by a paid driver.’ So, in the absence any evidence the allegation op-finance company that the vehicle was used for commercial purpose and not for maintenance of the livelihood of complainant can not be accepted. On the other hand, when complainant like borrower purchase a pre-owned or end hand vehicle, it is quite clear that the purpose of purchasing the vehicle by the complainant is meant for the purpose of maintaining his livelihood. So far the clause of ‘Arbitration’ in the agreement is concerned, there is no legal bar on the complainant to file proceeding before the Forum raising the grievance of deficiency on service or unfair trade practice as per Sec/.3 of C.P.Act,1986 which defines that’ Act in addition to not derogation to any other law’. The decision cited by the OP-finance company is not befitting to the present proceeding rather the decision reported in 1996 III CPJ 1(SC) in case of Fair Engineers Pvt. Ltd.-Vrs- N.K.Modi, is applicable to the present proceedings.
Discussing the factual legal aspect of the dispute, complainant alleges the accounts dispute/error committed by OP-finance company. It is alleged that complainant has availed a loan of Rs.4,21,168/- which is to be repaid @ 10.95 per annum flat rate which comes to the tune of rs.1,38,353.68 in toto Rs.5,59,521.68 on monthly installment of Rs.18,682/- is to repaid in between dtd.01.10.2011 to dtd.01.04.2014. Complainant further alleges that OP-finance company in their statement of loan account show the loan amount as Rs.4,50,0000/- instead of Rs.4,21,168/-. Complainant to substantiate his repayment installments gives a figure on para-9 of the complaint petition showing that he has paid Rs.5,31,000/- in different dates upto dtd.14.08.2014. As per the calculation complainant has to pay only Rs.28.,521.68 to clear the loan outstanding dues.
Countering the allegations OP-finance company states that complainant is a defaulter in respect of his repayments towards his outstanding dues. OP-finance company states that till filing of the written statement complainant has to pay Rs.82,142/- as installment over dues and Rs.1,58,785/- as other over dues in toto Rs.2,40,927/-. OP-finance company to strengthen their averments relied on documents i.e. copy of agreement executed between OP-finance company and complainant-borrower bearing No.XSHUBNR00000626594(Annexure-A), copy of schedule of agreement(Annexure-B), statement of account(Annexure-D). OP-finance company categorically states that complainant has availed a loan of Rs.4,50,000/- against the cost of the vehicle Rs.6,80,000/- not Rs.4,21,168/- as states by the complainant. We closely scrutinise the Annexures, the agreement, the schedule of agreement and statement of loan accounts. The schedule of agreement reflects that the loan amount is Rs.4,50,000/-, rate of interest is 10.95per cent, rate of additional interest is 48 per cent per annum and in the repayment schedule. The first date of installment begins from dt.01.10.2011 accordingly the due date of payment of EMI’s is 1st day of every month and the total outstandings are to be cleared in 31 installments as per the schedule of Agreement(Annexure-B). We also gone through the statement of loan accounts(Annexure-D) of complainant which are prepared upto dtd.23.01.2015. In the present dispute complainant-borrower alleges that Ops are demanding Rs.6,80,000/- instead of outstanding amount of Rs.5,59,521/- which according to complainant are wrong calculations. But the complainant failed to appreciate this Forum that when he came to know from the statement of loan accounts that OP-finance company is demanding higher amount than the legitimate claim of outstandings, does not reflect a single transaction as per the schedule given in the complaint petition are not in accordance with as per the loan agreement or schedule of agreement. The allegations of the complainant-borrower are wild in nature and without any substance.
In addition to aforesaid observations when Ops have acted according to terms and conditions of the agreement, schedule of agreement and complainant-borrower failed to approve that the Ops have violated the terms and conditions of the agreement. We, can not interfere in the terms and conditions of a valid agreement till then when it is not opposed to a public policy. If the complainant has any grievance regarding accounting dispute, he should approach Ops and to settle the account dispute as per the agreement. One month time is given to complainant-borrower and to Ops from the date of communication of this order to settle the accounts, if complainant desires to do so and Ops will co-operate the complainant-borrower to settle the accounts dispute.
Having observations reflected above the complaint devoid of any merit and OP-finance company has not committed any unfair trade practice deficiency in service. The interim order passed by this Forum bearing No.2 dtd. 24.09.2014 is hereby vacated, if any amount is deposited in respect of our interim order same to be adjusted in the loan out standings of complainant-borrower, if not adjusted earlier. It is directed that if the complainant-borrower approaches the Ops to settle the accounts dispute till completion of the accounts dispute/settlement as per the time limit given by this Forum, till the settlement of the accounts disputes. Ops are hereby restrained to take any coercive action against complainant.
Complaint is dismissed on merit.
No order as to cost.
Pronounced in the open Court, this the 27th day of April,2016.
