DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
KANDHAMAL, PHULBANI
C.C.NO.21 OF 2020
Date of Filing: 23.12.2020
Date of Order: 27.02.2023
Sri Mahendra Swain
S/O- Ramesh Chandra Swain
AT- Industrial Estate,Phulbani
PO/PS- Phulbani town, DIST- Kandhamal. ……………………….. Complainant.
Versus.
- M/S. TVS Credit Services Limited,
AT- Jayalakshmi Estates,
No.- 29, Haddows Road, Nungambakkam,
Chennai - 600006
- M/S. Sai Sree Auto,
Main Road (Phulbani-Berhampur Highway),
AT- Tilakpada, Kaladhi, Phulbani,
DIST.- Kandhamal …………………………….. OPP. Parties.
Present: Sri Purna Chandra Mishra - President.
Sri Sudhakar Senapothi - Member.
For the Complainant: ManojJ Kumar Sahoo, Advocate
For O.P.1- Naresh Kumar Padhy, Advocate
For O.P.2- Manoranjan Mohanty & Associates
JUDGEMENT
Mr.Sri Purna Chandra Mishra. President
The complainant Mahendra Swain has filed this cases alleging deficiency in service U/S 35 of C.P Act, 2019 on the part of the OPs for selling away his motor cycle illegally, praying there in for direction to the OPs to pray the gross value of the vehicle along with interest @9% P.A from the date of receipt of the down payment and to pay compensation of Rs. 100000/- and Rs.10,000 towards cost of litigation.
1. Brief fact leading to the case is that the petitioner has purchased one TVS Radden Motor cycle under loan arrangement from TVS Credit Services Limited on 13.10.2018. The loan was to be repaid in 29 equated monthly installments of Rs. 2406/-. At the time of purchase the petitioner has deposited a sum of Rs. 22,297/- as down payment. The complainant had deposited the EMIs regularly but due to the pandemic situation the complainant could not deposit some installments as a result of which the OP No.1 without any prior notice seized the vehicle from the possession of the complainant and advised him to pay the total amount, with in 15days before the OP No.2. Accordingly the complainant arranged the money and contacted the OP No.2 to receive the amount but the Op No.2 refused to accept the amount and instructed him to deposit the amount with OP No.1. On reaching Bhubaneswar, he came to know that his vehicle has been auctioned. It is the specific allegation of the complainant that the vehicle should have been proper valued by approved authority before auction and the highest bidding should he communicated to the owner of the vehicle. In the instant case the OP has done neither of the things. As his vehicle was sold illegally, he has filed this case for a direction to the OPs to pay the gross value of the vehicle along with interest @9% P.A. from the date of receipt of the down payment and compensation of Rs. 100000/- and Rs.10, 000/ towards cost of litigation.
2. Notice was issued from this Commission to both the OPs. The O.P No.1 appeared through their advocate and O.P No.2 appeared in person.
3. The OP No.1 after receipt of notice from this Commission, appeared through their advocates Mr.Naresh Padhi & their associates on 18.01.2021, but filed written statement on 18.04.2022 i.e. after a lapse of one year and three months. There was no President and Members in the Commission after the last date i.e. 16.04.2021. After joining of President and Member fresh intimation was given to the parties to appear on 18.04.2022 and on this date the written version was filed by the OP No.1 and the Commission accepted the written version as because in the last date the case was posted for written version by Op No.1.
4. The OP No.1 in his written statement stated that complainant Mahendra Swain has approached them for grant of loan for purchase of TVS Radden Motor cycle and considering his request, loan to the tune of Rs.45, 900/- was sanctioned to him and the loan was repayable in 29 equated monthly installments of Rs.2, 406/- starting from 07/12/2018 to 07/04/2021. After taking of loan, the loanee was defaulter from beginning as he failed to pay the EMI from the scheduled date of every month and also did not maintain balance in his account for which all his cheques got bounced till possession of the vehicle. For this reason loan recall notice dtd. 05.11.2020 was issued to him to pay outstanding due of Rs.22, 522/- which includes principal repayment, additional finance charges and cheque bounce charges etc. He became a chronic defaulter with mala fide intention not to pay the loan amount in future intentionally. After repeated follow ups the complainant did not pay the outstanding dues and also neglected to maintained sufficient balance in his account. The vehicle was taken possession by them on 28.11.2020 with prior intimation to police station. The OP company offered sufficient opportunity to the complainant as per agreement after maintaining all statutory formalities and issued a pre-sale notice on 03.12.2020 to the complainant and as he remained silent, the vehicle was put to auction and sold on 31.12.2020 and the amount of Rs.30,000/- was adjusted towards protanto satisfaction of the loan account. The complainant by suppressing the material facts has filed this case against the OP to mislead this Hon’ble Commission and harassed the OP No.1. As the complainant approached this Commission with unclear hands and he prayed for dismissal of the complaint petition.
5. The OP No.2 in his written statement stated that the Commission lacks territorial jurisdiction and the case is liable to be returned and the case should not have been admitted by this Commission. The mater relates to finance of the Motor cycle and there was an agreement between the complainant and OP No.1 at the time of sanction of the loan in which there is an agreement between the parties under Arbitration Act and it is agreed that dispute between them arising out of the transaction will be tried within the territorial jurisdiction of Chenai. It is further pleaded that he is not directly or indirectly related in the finance matter relating to OP No.1. Since he is not related with finance matter, he is unaware of the subsequent event regarding default of payment of installments. He is only related to service of the vehicle and its parts and any deficiency arising out of that. Therefore, he prayed for dismissed of the complaint petition for lack of jurisdiction.
6. The Complainant in support of his case has filed the Copy of the re possession receipt issued in favour of the complainant, copy of the sale invoice, copy of the registration certificate issued by RTO, Kandhamal, Copy of the money receipt for Rs.22,297/- issued by OP No.2,Copy of the money receipt dt.14.12.2018 for Rs.2590/- and has filed his evidence in shape of affidavit.
7. The OP.1 in support of his case has filed the copy of the statement of accounts as on 15.01.2021, copy of the loan recall notice dtd 09.11.2020, copy of the station diary on 28.11.2020, copy of the pre sale notice dtd.03.12.2020, copy of the public notice of auction and dtd.14.12.2020, copy of the vehicle quotation on 24.12.2020, copy of the vehicle quotation dtd 21.12.2020, copy of the vehicle quotation dtd.22.12.2020, 3 copies of the acknowledgement.
8. The OP.2 has not filed any document or evidence in support of his case.
9. In view of the pleadings and counter pleadings of the parties, the following issues are framed.
a. Whether this Commission has got jurisdiction to try the dispute in view of the arbitration causes contained in the agreement between OP No.1 and the complainant?
b. Whether the OP is justified in seizing the Motor cycle from the custody of the petitioner in view of the pandemic situation?
c. Whether the vehicle has been sold following due procedure of law?
d. Whether there is deficiency in service on the part of the OP or not?
e. To what behalf the complainant is entitled?
10. The first and foremost point relating to this case is whether the case is maintainable in view of arbitration cause contained between the parties. It is settled principle of law that arbitration clause in a agreement is no bar for consumer commissions to sit over the allegation of deficiency in service. The Hon’ble NCDRC in a case of ……..Udaiapur cement works vrs. Punjab water supply and sewerage Board 1999(1) CPJ 67 has clearly ruled that existence of arbitration on clause in an agreement cannot come in the way of adjudication of an disputes before the Consumer Commission, for seeking legitimate relief under the Act which is a special piece of legislation to protect the interest of the consumers notwithstanding the other laws in force. So the plea of the O.P on this score is rejected.
11. The next point is whether the O.P. is justified in seizing the motorcycle of the petitioner in view of the pandemic situation. It is seen from the statement of accounts filed by the complainant that he has paid 16nos monthly installments regularly till 07.03.2020. There after he has failed to repay the installments and on 31.12.2020 he has paid a sum of Rs.12038/-. This period is completely covered by Covid 19 pandemic all over India. It is stated in the written statement by the O.P that they have seized the vehicle after giving due notice to the complainant. There is nothing on record to show that the O.P. No.1 has issued notice to the complainant prior to date of seizure and it has been duly served on him. The O.P No.1 has filed one loan recall notice and another copy of presale notice & post sale notice. The complainant vehemently challenged the service of notice on him. This Commission called for report from the Superintendent of Post Offices to ascertain the date on which the notices was served and on whom it was served. The Superintendent of Post Offices has submitted his reply wherein he has stated that both the letters have not been received at all in Phulbani Postal Circle. It is seem from the detail report that the letters have been delivered outside Odisha. So, it is crystal clear that the complainant has not received the notices. When no notice has been served on the complainant prior to the date of sale and after the sale the entire transaction is illegal. There is nothing on record to show that wide publicity has been given prior to the sale of the vehicle. So the whole action has been done behind back of the complainant and such act amounts to deficiency in service and unfair trade practice well. As a case of deficiency in service coupled with unfair trade practice is made out against the O.P No.1 he is liable to compensate the petitioner for the loss sustained by him.
12. The Regional Transport Officer, Kandhamal has submitted a report that the vehicle still stands in the name of Mahendra Swain. The O.P No.1 has stated that they have already sold the vehicle to someone else. Even after a long period over years the vehicle is used by someone else and the O.P No.1 has failed to transfer the ownership of the vehicle to the name of purchaser which creates a big doubt in our mind regarding the actual sell of vehicle.
ORDER
The complaint petition is allowed on contest against the OP No. 1 and dismissed against OP No. 2. The OP No. 1 is directed to pay a sum of Rs. 50,000/- towards compensation for causing deficiency in service and for practicing the unfair practice. The OP No. 1 is further directed to pay a sum of Rs. 10, 000/- towards cost of litigation. The order is to be complied within a period of 30 days from the date of communication of order failing which it shall carry interest at the rate of 12% per annum from the date of order till it is paid to the complainant.
Computerized & corrected by me.
I Agree
MEMBER PRESIDENT
Pronounced in the open Commissioner today on this 27th day of February 2023 in the presence of the parties.
MEMBER PRESIDENT
