BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 172 of 2019
Date of Institution : 09.04.2019.
Date of Decision : 07.01.2020.
Nirmal Singh aged about 45 years son of Shri Harnek Singh, resident of Sukh Sagar Colony, Gali No.3, Begu Road, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Pardeep Kumar, Manager, HDB Finance Company, Dabwali Road, Sirsa.
2. Pankaj Sharma, Assistant, HDB Finance Company, Dabwali Road, Sirsa.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SMT. SUKHDEEP KAUR………………MEMBER
SH. SUNIL MOHAN TRIKHA…………… MEMBER.
Present: Smt. Abha Purohit, Advocate for complainant.
Sh. M.K. Saini, Advocate for opposite parties.
ORDER
The case of complainant, in brief, is that complainant is driver by profession which is the only source of his income and his whole family depends upon the earnings of complainant. That complainant purchased a second hand truck tralla 10 years bearing registration No. RJ31GA-3089 through broker for a total sum of Rs.12,05,000/- and got registered the same in his name. It is further averred that at the time of purchase of vehicle, complainant got the same financed from HDB finance company, Dabwali Road Sirsa for a sum of Rs.8,25,000/- and this amount was to be deposited by him in 35 installments of Rs.29,250/- each. That complainant kept on making the payments of installments time to time without any break and was never declared defaulter by the finance company in this regard. Out of total 35 installments, complainant has already deposited 27 installments with the finance company. It is further averred that in the month of August, 2017, there was curfew in the city and on account of the same no one was allowed even to come out of the house and thus the complainant could not deposit the installments regarding that very month and thereafter on 15.9.2017, the ops alongwith three unknown persons snatched the possession of said vehicle from complainant and took the same with them. An amount of Rs.15,000/- was lying in his vehicle which was also taken by ops and while taking over possession of vehicle in above manner, no prior intimation or notice has been given to the complainant whereas prior notice was necessary to be issued to complainant. That complainant immediately reported the matter to the police of Police Post Kirti Nagar, Sirsa but no action has been taken by the police. It is further averred that thereafter, the complainant approached the finance company and showed his willingness to deposit the due amount of the installments and further showed his willingness to pay the remaining installments time to time in future but the requests of complainant were being postponed by one pretext or the other and sometime ago they flatly refused to hand over the possession of vehicle to the complainant and further threatened the complainant with dire consequences. That on account of taking of forcible possession of vehicle of complainant, he has left with no source of his earnings and thus he alongwith his family is facing great hardship and not only he is suffering loss of earnings but he has also suffered loss of huge amount already paid by him to the finance company. That complainant again moved an application to the Superintendent of Police, Sirsa for taking necessary action in the matter on 16.1.2018 but of no use. It is further averred that thereafter complainant got issued a registered legal notice on 15.3.2019 to the ops but to no effect. Hence, this complaint seeking direction to the ops to hand over possession of vehicle to complainant after getting deposited the due amount, to pay a sum of Rs.3,00,000/- qua the financial losses suffered by him, to further pay a sum of Rs.3,00,000/- as compensation for harassment and humiliation, to pay a sum of Rs.50,000/- as penalty on account of deficiency in service and unfair trade practice and also to pay a sum of Rs.11,000/- as legal expenses.
2. On notice, opposite parties appeared and filed written statement taking certain preliminary objections that both the parties are bound by terms and conditions of the contract and that there is no scope of interference by the Consumer Forum in which contractual matters and the remedy of complainant is to seek the assistance of a Civil Court and that this complaint is not maintainable before this Forum. It is further submitted that complainant has suppressed the material facts from this Forum and complaint is liable to be dismissed on this ground alone and that complainant does not come within the purview of definition of a consumer as defined in Section 2 (1) (d) of the Consumer Protection Act, 1986 for the reason that he was using the vehicle in dispute for commercial purpose and further the service rendered by the financer especially under loan cum hypothecation transactions does not come within the purview of Consumer Protection Act, 1986 and thus complainant is not a consumer. Other preliminary objections regarding cause of action and time barred are also taken. On merits, it is submitted that true facts of the case are that complainant had entered into vehicle loan cum hypothecation agreement with the answering ops for a loan amount of Rs.8,25,000/- for purchase of a vehicle. It is further submitted that complainant had signed a written loan cum hypothecation agreement No. 1128695 and agreed to pay the agreement amount i.e. Rs.10,23,750/- to be repaid in 35 monthly installments of Rs.29,250/- failing due on the 4th day of every month and had further agreed to abide by all other terms and conditions of said loan agreement including timely payment of his loan installments. It was specifically agreed by the complainant vide said loan agreement that time would be the essence of the contract but the complainant grossly failed to repay his installments within the stipulated due dates, however, having no option the ops received the financed vehicle and gave verbal and written communication to complainant to repay the loan amount but complainant did not approach the answering ops for release of vehicle and having no option the answering ops had sold the vehicle in public sale and adjusted the amount in loan account of complainant. All other contents of the complaint are also denied and prayer for dismissal of complaint made.
3. The parties then led their respective evidence.
4. We have heard learned counsel for the parties and have gone through the record carefully.
5. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has deposed and reiterated all the averments made in the complaint. He has also furnished copy of certificate of registration Ex.C1, copy of receipt Ex.C2, copy of invoice Ex.C3, copy of form 23 Ex.C4, copy of application Ex.C5 and copy of postal receipt Ex.C6. On the other hand, ops have furnished copy of reply to notice Ex.R1, copy of pre sale notice Ex.R2, Ex.R3, copy of reply Ex.R4, copy of affidavit Ex.R5, copy of pre-repossession intimation Ex.R6, copy of post repossession intimation Ex.R7 and copy of inventory of items in vehicle Ex.R8.
6. During the course of arguments, learned counsel for complainant has strongly contended that vehicle of complainant was taken away by the hirelings of the opposite parties forcibly from the complainant without any intimation to the complainant. The complainant even informed the concerned police station, but however, no action was taken. The perusal of copy of affidavit of complainant Nirmal Singh Ex.R5 reveals that complainant had due knowledge of the vehicle being repossessed by ops as goods which were carried on vehicle of complainant was shifted in the vehicle No. RJ07G 7511 as per said affidavit Ex.R5. So this plea of complainant appears to be devoid of merit.
7. The second contention of complainant is qua sale of the vehicle. As per his contention, ops have not sold vehicle and same is in their custody and he is ready to pay due installments of the vehicle and made prayer for release of the vehicle. But however, learned counsel for ops has strongly opposed this plea of complainant on the ground that they have already sold the vehicle after waiting for sufficient time for payment to be received from complainant. The perusal of evidence of ops reveals that they have not placed on record any document from which it could be presumed that vehicle of complainant was sold to some person for some consideration. Nor sale consideration find reflected in the statement of account produced by ops and copy of award has also not been placed on record by ops. So, it appears that there is deficiency in service and unfair trade practice on the part of opposite parties.
8. In view of our above discussion, we allow this complaint and direct the opposite parties to hand over possession of the vehicle of complainant within 30 days of deposit of due amount of installments by complainant against proper receipt and in the alternate if vehicle has been sold out to some person then ops are directed to hand over copies of sale letter and affidavit of the person who had purchased the vehicle from ops alongwith copy of registration certificate duly transferred in the name of purchaser within above said period of 30 days. The ops are also directed to credit amount of sale consideration in the loan account of complainant and further directed to pay balance amount after deducting due amount against complainant within further period of 15 days if the vehicle has been sold. The ops are further directed to pay a sum of Rs.5000/- as composite compensation and litigation expenses to the complainant. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced in open Forum. Member Member President,
Dated:07.01.2020 District Consumer Disputes
Redressal Forum, Sirsa.
