This is an appeal filed by Magma Leasing Ltd. against the order of Orissa State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in Consumer Complaint No.154/2002. As seen from the records, the case of the complainant, Orissa Voluntary Association for Rural Social Development represented through its Secretary, Prasan Mohapatra, (respondent in the present proceedings) is that it had purchased a Mahendra Marshall vehicle with a loan from OP-1/ Magma Leasing Ltd. under an agreement of 2.12.1999. The total loan was to be repaid in 36 monthly installments of Rs.10,003/-. On 26.02. 2002, when the vehicle was on its way to Bhubaneswar, it was stopped by OP 2 and OP 3 and taken away forcibly. 2. The FIR was lodged with the police against this possible repossession on the next day that is 27.2.2002. According to the complainant, 26 out of the total 36 installments, had been repaid by him when the vehicle was repossessed and therefore, there was allegedly, no justification for forcibly taking away the vehicle from him. The case of the opposite parties before the state commission was that the complainant had neglected paying the installments on due dates contemplated in the agreement. Therefore, the vehicle was repossessed in exercise of the right under clause 15 of the agreement between the parties. 3. The State Commission went into the details of all the payments made since the agreement was entered between the parties on 24.11.1999 and 26.2.2002 when the vehicle was repossessed. The commission came to a conclusion that during this period a total amount of Rs.3,75,175/- had been paid to the OPs. The State Commission therefore, decided that it was a clear case of arbitrariness on the part of the OP's, which amounted to deficiency in service. The Commission has observed that as the OPs have already sold the vehicle to a third party, it can no longer be returned to the complainant. Therefore, the OP's were ordered, jointly and severally, to pay a consolidated sum of rupees 4,00,000/- to the complainant. 4. In the appeal petition before us, it is alleged that the order of the State Commission is “full of conjectures and surmises”. But, no details and are mentioned, either in this petition or during the course of arguments before us, to show what part of the order is based on what conjecture or surmise. Similarly, it is stated in the appeal petition that the State Commission has overlooked material evidence brought on record. Once again, no detail is given to show the piece of evidence produced by the present appellant, which was ignored or refused to be considered by the State Commission. Very significantly, the written submission of OP's before the State Commission, does not carry any mention of the amount which the appellant/OPs thought to be overdue towards repayment of the loan. It only carries a mention of default in payment of road tax and insurance dues. The relevant comment reads as follows— “ It is not true that the complainant has no fault. However, his failure/negligence to pay the insurance premium and the statutory dues of road tax amounting to huge money is very much evident to prove him a defaulter in terms of the agreement stated supra”. 5. This point was repeated by the counsel for the appellant, Magma Leasing Ltd, in the course of the arguments before us. When asked to clarify whether any notice was served by the Transport Department on the appellant, our attention was drawn to the demand notice for Rs.46,575/- raised by RTO, Bhubaneshwar. This notice is addressed to the complainant Association and not to the appellant Magma Leasing. The notice itself gives 15 days time to pay this amount. More importantly, as pointed out by the counsel for the respondent/complainant, the endorsement of a copy to Magma Leasing, at the bottom of this notice, itself is dated 26.10.2002, which makes it eight months after the date of repossession of the vehicle. There is no explanation why a copy should have been endorsed to the appellant on 26.10.2006 when the notice itself is signed by the concerned Officer on 20th of November i.e. eleven months before this endorsement. 6. Next, our attention was drawn, by the counsel for the respondent/complainant to the extract of the relevant Police Diary, which show that the intimation of repossession of the vehicle was given to the police, after --and not before-- the act of repossession. The Police diary record is timed 8.15 PM on 26.2.2002 and shows the repossession at 5.45 PM on the same day. 7. From the examination above it is clear that it is a case of repossession of a vehicle without any justification and without any notice. Even the notice to the Police is subsequent to the act of repossession and before it. Worse still, there is clear indication of attempt to create evidence in justification of the act of repossession. 8. Learned counsel for the appellant, drew our attention to the decision of this Commission in the following two cases. In both, this commission has upheld the justification for repossession. In Surendra Kumar Agarwal Vs. Telco Finance Ltd. II (2010) CPJ 163 NC installments of repayment were due for the period 2.12.2000 to 2.12.2003 i.e. for three years and no statement of account was produced before the consumer fora. Also, default in repayment on several occasions, was admitted before the State Commission. Hence, repossession was held to be justified. In the other case, Parmeshwari Vs. Tata Finance Ltd. & others, decided by the National Commission on 11.2.1.2010, the vehicle had met with an accident and was repaired. The complainant failed to pay the repair bill of Rs.1.58 lakhs. The repairer handed over the repaired vehicle to the financier, who sold it to a third party for Rs.1.75 lakhs and settled the bill for repairs. In this background it was held that no prejudice was caused to the complainant by repossession and sale of the vehicle. 9. The facts of the present case are very different. The OP has failed to provide any details of the amount of loan that was overdue. On the contrary, payment details examined by the State Commission show that no amount was overdue. It was a case of repossession of the vehicle without justification, which cannot be sustained. 10. In our view, the State Commission has very rightly, held it to be a case of arbitrariness amounting to deficiency in service. We are therefore, in full agreement with the direction of the State Commission to the appellant/OPs to pay a sum of rupees four Lakhs to the respondent/complainant towards loss of his vehicle and towards financial inconvenience undergone by him. Accordingly, the appeal filed by the appellant, Magma Leasing Ltd. is dismissed. In addition to the amount awarded by the State Commission, the appellant is also directed to pay a sum of Rs.10,000/- to the respondent/complainant towards costs. |
