THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHADRAK.

                                                                      Present-   Sri  Raghunath Kar, President                                                                      

                                                                                       Sri Basanta Kumar Mallick ,Member

                                                                                       Afsara Begum, Member

                                        Dated the 16th   day of November, 2017

                                          C.D    case   No 13 of 2015

Sri Suresh Prasad Gochhayat

S/o Late Rama Prasad Gochhayat

Vill- Januganj. Po- Madhavnagar

Dist- Bhadrak, Odisha                                     ……………………Petitioner

                 Versus

Pal Movers Pvt. Ltd

N.H-5, Samaraipur, Near Hotel Orion

 Po- Gelpur. Ps/Dist- Bhadrak

TATA MOTORS Finance Ltd

Think Tobaco Campus Building

A 2nd Floor off Pokharan Road, 2 Thane West

Pin-400001   

                                                                 ………………..Opposite Parties

Advocates for complainant- Sri P. Dwibedi & Sri S.K.Mishra

Advocate for OP NO- Sri Nityananda Das & Sri Manoj Kumar Das

Advocate For OP No-2-     Sri Pradeep Kumar Mishra

Date of hearing-     09.01.2017

Date of order-      16.11.2017

This dispute arises out of a complaint filed by the complainant alleging deficiency of service and unfair trade practice against the OPs.

        The facts disclosed in the complaint are to the effect that the complainant had acquired a TATA Ace HT vehicle with the credit support of TATA MOTORS Finance Ltd. The complainant, being aware of the fact of Zero down payment and also being a driver in profession, evinced interest to have such a vehicle of his own, approached OP NO-2 to provide credit support which was agreed and accepted by OP NO-2 and accordingly sanctioned a sum of Rs 3,45,208/- in favour of the complainant , repayable in 47 equated monthly installments commencing from 15th December 2012. The due date for payment of EMI was fixed to 15th of every month till payment of final installment on 15.10.2016. It was also agreed upon between the complainant and OP-1 that the insurance premium of the vehicle for the 1st year would be borne and paid by OP NO-1 as per prevailing scheme and for subsequent years till liquidation of loan account, the renewal premiums would be paid by the complainant through OP NO-1. It was alleged by the complainant that he had been paying one twelveth of the premium requirement in every month to gather with EMI so as to enable the OP -1 to pay the insurance premium for renewal of the policy and in this manner the said OP has been renewing the insurance policy up to the year 2013-14 but did not renew the said policy for the year 2014-15 even though the premium amount required for renewal of the policy was paid by the complainant. Despite repeated requests OP NO-1 did not hand over the renewed policy certificate as a result of which the vehicle in discussion could not ply on the road and failed to generate any income to meet the EMI requirement. Such action of OP -1  amounts to deficiency of service which caused/ invited financial sufferings for the complainant. Further it is also alleged by the complainant that the vehicle in discussion bears Registration No-OD-22-3481 met an accident on the road and to get the vehicle repaired, the complainant incurred expenditure of Rs 8186/- which was claimed to be reimbursed by the insurance company-complainant was made aware of the fact by OP NO-1 that the insurance company settled the claim for Rs 5,500/- and the differential amount of Rs 2686/- would be paid by  the complainant for release of the vehicle from work shop of OP NO-1 which was instantly complied by the complainant to get his vehicle released from the workshop. But subsequently the complainant received a massage from insurance company about the claim has been settled for Rs6,500/- instead of Rs 5,500/- and in this manner OP NO-1 has realized Rs 1000/- in excess which is an act of exploitation and amounts to unfair trade practice.

              That apart, it is also alleged by the complainant that although OP No-2 advertised in the printing media about hire purchase without any down payment but before delivery of the vehicle OP NO-1 insisted upon the complainant to pay Rs 33,000/- which will be reduced/deducted from the loan amount and accordingly the repayment schedule would be finalized. In compliance of the demand of OP No-1, complainant has paid Rs 33,000/- towards down payment and taking the free insurance amount of Rs 12000/- as per prevailing scheme total amount of Rs 53,000/- was to be adjusted to loan account by lessening the loan installments. But the OP has not reduced the loan amount nor lessened the EMI which amounts to unfair trade practice. Despite repeated requests and notice served through advocate of the complainant, OP No-1 neither adjusted the amount of Rs 53,000/- the loan account nor made over the renewed insurance policy for the year 2014-15 nor responded the complainant in any manner which caused financial loss to the complainant and being disappointed filed dispute in  this Forum for adjudication.

                Both the OPs resisted the claim of the complainant and contested the case. OP No-1 in submitting written version has challenged the maintainability of the case on the ground of cause of action and concealment of material facts by the complainant. OP NO-1has also denied to have received any notice from the advocate of complainant and left to the complainant to prove the same with evidence. It is also submitted by OP NO-1 that it is a sales and service agency of the vehicles manufactured by TATA company and least concerned about availment, of loan from TATA finance (OP NO-2).

                   Accordingly to the provision prevailing scheme the amount of first premium for insurance of the said vehicle was paid by OP NO-1 and the subsequent premiums would be paid by the complainant for renewal of insurance policy. It is also submitted by OP No-1 that the complainant has not paid any amount to the answering OP for renewal of the policy which is required to be proved by the complainant. OP No-1 partially admitted the fact that soon after the vehicle  met accident, it was brought to OP No-1 for necessary repairing and simultaneously the complainant lodged a claim with the insurance company which was settled for Rs 6078 as against the repairing cost of Rs 8186/-. The differential amount of Rs 2108/-   was to be deposited by the complainant as against which complainant deposited Rs 2686/- with OP No-1 and in this manner complainant has paid Rs 578/- in excess and as such the complainant is entitled to get back the excess amount he has paid to OP No-1. It is further stated by the said OP that the complainant has a wrong concept that both the OPs are same and of one organization  as OP No-1 deals with the sales and service of TATA make vehicles and OP No-2 is the Transport finance wing of TATA company and both are of different entity. Hence the allegation made in the complaint against OP No-1 are meaningless and having no merit to be adjudicated in this Forum and liable to be dismissed.

                   OP No-2 In submitting the W.V has challenged the maintainability of the petition on the ground of jurisdiction. It is also stated by OP No-2 that it has sanctioned and advanced the loan of Rs 348,208/- without accepting any down payment for acquisition of TATA Ace HT vehicle which was repayable in 47 Equated  Monthly Installments  (EMI) commencing from 15.12.2012 to 15.10.2016 @ Rs 12002/- as 1st installment and @ Rs 11790/- in rest 46 installments. Each accordingly to repayment schedule, complainant had to pay the EMI amount on or before 15th of every month and in the event of default in payment of EMI, complainant is supposed to pay late payment charges as per terms and conditions stipulated in the loan agreement executed between the complainant and OP No-2. When complainant defaulted in payment of loan dues regularly, OP No-2 served a notice upon the complainant to repay the overdue loan. Hence the complainant has made false allegations against OP No-2 to avoid payment of loan installments due on complainant along with overdue charges. Hence the complaint itself has no merit for adjudication and liable to be dismissed with cost.

                   Went through the complaint and W.V submitted by OPs and observed as follows.

           Admittedly complainant has availed credit support of Rs 3, 45,208/- from OP No-2 and purchased TATA Ace HT vehicle from OP No-1 and the insurance policy premium for the 1st year was paid by OP No-1as it was promised before purchase of the vehicle. Apart from above all the allegations made by the complainant have been disputed out of which the important issues are jurisdiction and maintainability , non-issuance of insurance cover notes, payment  of overdue amount by complainant and refund of excess amount received from the complainant by OP No-1. The above issues are discussed threadbare to draw the conclusion.

OP No-1, in course of hearing submitted that it is a sales and service agency and has sold the afore mentioned vehicle to the complainant has neither raised any allegation on the sales matter, repairing of vehicle and any defect of the vehicle which has not been attended or solved by OP NO-1. Hence none of action of OP NO-1 amounts to deficiency of service and unfair trade practice. Thus the present dispute lacks merit and liable to be dismissed. On the contrary complainant submitted that the said OP has realized the repairing cost in excess showing receipt of less amount from the claim settled by insurance company which is not yet refunded to the complainant and in this manner OP No-1 has suppressed the fact of actual amount received from insurance company, which amounts to unfair trade practice. Therefore the dispute is maintainable against OP No-1.

                      Heard both the complainant and OP No-1, perused materials on record and observed that the vehicle was placed with OP No-1 for repairing of the damage caused due to road accident. The cost incurred for repairing of the vehicle was Rs 8186/- as against which OP No-1 informed the complainant that the insurer has settled the claim for Rs 5500/- and the differential amount paid by the complainant to get the vehicle released . But the claim was settled for Rs 6500/- which was suppressed by OP No-1 that amounts to unfair trade practice. Hence the dispute is maintainable in this Forum for the above reason.

The  complainant alleged against OP No-1 as to he had been paying insurance charges to OP No-1 in every month together with amount of EMI so as to enable the said OP to pay the premium of insurance . The 1st premium of insurance was paid by the OP No-1 which is admitted by both complainant and OP No-1. But for renewal of the said policy, complainant has paid the amount in above manner to be paid to the insurance company for renewal of the insurance policy. But OP No-1 did not renew the insurance policy nor handed over the insurance cover note for the period 2014-15 as a result of which the said vehicle could not ply on the road and did not earn any income resulting non-payment of loan dues. OP No-1 denied to have received any amount from the complainant towards insurance premium nor responsible for renewal of his insurance and demanded the complainant to prove his allegation with document evidence. OP NO-2 in submitting during hearing stated that it has not received any amount from the complainant against renewal premium of insurance. Hence the complainant should have to prove the same with evidence.

             Perused the materials on record. It is evident that OP No-1is confined within the activities of sale of TATA product vehicles and after sale services as would be required by the customers no evidence could be adducted by the complainant to have paid insurance premium amount either to OP No-1 or to OP No-2. Without any relevant evidence the allegation made by the complainant is not sustainable.

OP No-2 stated on the point of failure in repayment of loan as per E.M.I fixed. As per repayment schedule complainant had to  repay the loan in 47 Equated monthly installments  starting from 15.12.2012 to 15.10.2016 @ Rs 11790/- per month from 2nd installment onwards and Rs 12,202/- for the 1st installment falling due on 15.12.2012. It was mandatory to pay the E.M.I dues on 15th of every month failing which late payment charges would be realized on the overdue amount. Due to failure in payment of loan installments on due dates, complainant is liable to pay late payment charges on the overdue amount according to the terms of loan agreement executed by the complainant. Hence the complainant is liable to pay late payment charges along with overdue loan. On the contrary, complainant submitted in stating that he has been paying the installments regularly on the scheduled date as per repayment schedule which have not been credited to his loan account maintained with OP No-2 and had the amount so paid on due dates taken to the credit of loan account, the question of overdue amount and late payment charges would have not been there. Hence the amount of overdue charges shown by OP-2 are all false and fabricated.

Perused materials on record. It is seen that the complainant has made repayment in 23 occasions amounting to Rs 2,39,900/- as against which an amount of Rs 237915/- has been credited to the loan account of the borrower and an amount Rs1985 has been realized towards overdue charges. A such OP No-2 has not realized a single rupees towards other charges which would have been held as unfair trade practice. It is also observed that the complainant had to repay the loan on 15th day of every month but except six occasions, complainant had defaulted to pay the EMI in rest occasions which would warrant overdue charges. Besides, the complainant had to repay total of Rs 554542/- including interest but has actually repaid of Rs 239900/- as per the M.R furnished by him. I addition to above, the complainant has not paid a single installment on due dates from the beginning to his loan account and as such the allegations made against OP No-2 is not sustainable.

       From the above facts and circumstances it has been proved that the OP NO-1 has received Rs 18000/- in to occasions towards down payment, although the said OP is not the financier, and has realized an amount of Rs 578/- in excess from complainant suppressing the actual amount received from insurance company in an illegal and fraudulent manner which amounts to deficiency of service and unfair trade practice and hence liable to refund the amount with cost and compensation. No allegation against the OP No-2 could be proved/established due to want of evidence. Hence it is ordered:-

ORDER

The complaint be and the same is allowed partly against OP No-1 on contest. OP No-1 is directed to pay Rs 18,000/- along with interest @9% P.A from the date of receipt of the amount and Rs 2000/- as compensation and Rs 1000/- as cost of litigation within 30days from the date of issue of this order. Failure to comply the order within the stipulated time shall warrant interest @ 7.5% P.A with quarterly rests on the awarded amount other than cost of litigation from the date of order to the date of realization/payment. The restraint order issued by the Forum on dt.09.02.2015 shall stand with drawn from the date of order.

                   This order is pronounced in the open Forum on this 16th day of November, 2017 under my hand and seal of the Forum.         

            (Raghunath Kar)         (Afsara Begum)            (Basanta Kumar Mallick

              President                        Member                                  Member

                                                                         Dictated & corrected by me

                                                           Sri Basanta Kumar mallick,

                                                                           Member