Punjab

Rupnagar

CC/18/68

Balwant Singh - Complainant(s)

Versus

Pushpa Goyal Agency - Opp.Party(s)

Sh. Kesar Singh Adv.

28 Mar 2019

ORDER

THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                 Consumer Complaint No. : 68 of 14.08.2018

                                 Date of decision                    :    28.03.2019

 

Balwant Singh, aged about 47 years, son of Sh. Gurdial Singh, resident of Village Bahadurpur, Tehsil & District Rupnagar.  

                                                                 ......Complainant

                                             Versus

1. Pushpa Goyal Agency which is authorized sub agency of Mahindra & Mahindra Trucks and Buses at Sarsa Nangal, Tehsil & District Rupnagar through its Manager Sh. Sanjeev Kumar
2. Mahindra & Mahindra Financial Services Limited, Regional Office at SCO No.33-34-35, 4^th floor, Sector 34-A, Chandigarh, through its Regional Manager.    

   ....Opposite Parties

                                   Complaint under Section 12 of the                                                      Consumer Protection Act, 1986

QUORUM

 

                        SH. KARNAIL SINGH AHHI, PRESIDENT

                        CAPT. YUVINDER SINGH MATTA, MEMBER

 

ARGUED BY

 

Sh. Kesar Singh, Adv. counsel for complainant  

O.P. No.1 ex-parte

Sh. Mohinder Pal Singh, Adv. counsel for O.P. No.2 

 

                                           ORDER

              SH. KARNAIL SINGH AHHI, PRESIDENT

1. Sh. Balwant Singh, aged about 47 years, son of Sh. Gurdial Singh, resident of Village Bahadurpur, Tehsil & District Rupnagar, has filed the present complaint seeking directions to the opposite parties to return the truck of the complainant bearing registration No.PB-12-Y-9293, failing which the O.Ps. may be directed to pay Rs.19,20,000/-  i.e. the price of the truck in question; to pay Rs.80,000/- on account of deficiency in services, unfair trade practice, maltreatment, harassment, humiliation, monetary loss and injury in the reputation to the complainant, in the interest of justice.  
2. Brief facts made out from the complaint are that the complainant had purchased a Mahindra Traco 40 (260 HP) from the Greenland Automobiles Private limited from Nalagarh (HP) for earning his livelihood and for fulfilling his household necessities for a sum of Rs.23,50,000/-. He had paid 3,50,000/- in cash as down payment and for the remaining amount he got a loan from O.P. No.2. O.P. No.1 is a servicing agency which is working under the control of Goyal Vehicles, Rajpura, Patiala Road, Village Kauli and they are working under the control of O.P. No.2. O.P. No.1 is also liable for the transactions, carried on by the O.P. No.2. When in the month of October 2016, the complainant was coming from Calcutta to Punjab on his truck loaded with goods then truck went out of order near Mohania Sales Taxes in the state of Bihar as his vehicle was having a defect/fault. Due to that fault, the complainant informed the company and company changed the engine of the truck. But the truck was not in a satisfactory condition. Thereafter, the complainant again requested the company that the truck in question was not working in proer condition but the official of the company said that truck would work in proper order after some time but after passage of time, the truck in question was not working properly. When complainant came further toward the side of Bareili then the same problem came up in the truck in question then he again called toll free number and company again sent its mechanic but the problem was not solved. Thereafter, he approached the O.P. No.1 in the month of January 2017 and mechanics of the O.P. No.1 changed the air filter and other spare parts of the truck in question and gave the truck to the complainant. Again when the complainant went to Haryana, the problem again came, then near to Charkhi Dadri in the service centre the oil was changed by the official of the agency but of no use. Ultimately, the complainant had left his truck to the workshop of O.P. No.1 at Pushpa Goyal Service Centre Sarsa Nangal, Tehsil & District Rupnagar for proper repair and maintenance but the O.P. No.1 sent the truck in question to the main agency at Patiala for replacing its parts. When the complainant told them that you have sent the vehicle in question without his consent then O.Ps. replied that your consent was not required. The O.P. No.1 did not hand over the said vehicle to the complainant for many months, then he told the O.P. No.1 that the vehicle may kindly be given to him. But O.P. No.1 was avoided the delivery of the vehicle on one pretext or the other. When the complainant was not given the vehicle from the officials and mechanic of the O.P. No.1, then he gave an application to SSP Rupnagar for taking action against OP No.1. The police authorities then called the manager of OP No.1 and recorded his statement. In this statement, the manager of O.P. No.1 told that truck in question was sent to Patiala and the same was in custody of O.P. No.2. He also told that the said vehicle was sold by OP No.2. Hence, this complaint.  
3. On being put to the notice, none appeared on behalf of O.P. No.1, accordingly, it was proceeded against ex-parte vide order dated 07.03.2019.
4. On notice, O.P. No.2 appeared through counsel and filed a written reply taking preliminary objections; that the present complaint is not maintainable; that the complainant has not come to this Hon'ble Forum with clean hands as he has concealed crucial facts and twisted certain other facts to file this false and frivolous complaint and is counter blast to the case file by the OP No.2 i.e. he had filed an application before the Permanent Lok Adalat for Public Utilities Services, at Chandigarh.; that the complainant is misusing the process of law by filing the present complaint as he is at fault and as he has got the said vehicle financed from OP No.2 and had defaulted in paying the installments; that the complaint is bad for non joinder and mis joinder of the necessary parties. On merits, it stated that complainant had deliberately not taken the intimation letter dated 24.8.2017 of O.P No.2 regarding repossession of the vehicle in question and for payment of the dues failing which the O.P. No.2 could sell the vehicle in question. The notice was sent through registered post but the complainant had refused to receive the same. The complainant was the registered owner of the truck in question but the same was hypothecated by him in favour of O.P. No.2. The complainant defaulted in paying the installments in time and then paid nothing after paying 12 EMIs only. Rest of the allegations made in the complaint have been denied and prayer has been made for dismissal of the same. 

4.    On being called upon to do so, the learned counsel for the complainant has tendered duly sworn affidavit of complainant Ex.C1 along with documents Ex.C2 to Ex.C13 and closed the evidence. The learned counsel for the O.P. No.2 has tendered duly sworn affidavit of Sh. Anurag Sharma, Defence Manager, OP NO.2. Ex.OP2/A along with documents Ex.OP2/B to Ex.OP2/O and closed the evidence.     

5.    We have heard the learned counsel for the contesting parties and have gone through the record of the file, carefully.

6.  Complainant counsel Sh. Kesar Singh, argued that Balwant Singh (Complainant) purchased one Mahindra Traco 40 (260 HP) against a sum of Rs.23,50,000/- for his livelihood. Further he made the down payment of Rs.3,50,000/- and remaining loan was advanced from OP No.2. The learned counsel further argued that when the complainant was coming from Kolkota to Punjab in the month of October 2016 engine of the truck went out of order and after repair it started functioning. Thereafter, in January 2017 due to technical defect, complainant has to arrange for repair. Finally on 6.3.2017, the complainant handed over the truck to O.P. No.1 for repair i.e. at Pushpa Goyal Service Centre. Job card bearing No.135 was issued but lateron OP No.1 delivered the said truck to O.P. No.2 who is the financer and O.P. No.2 further sold the same without any intimation to the complainant. Now in this complaint none appeared on behalf of O.P. No.1 and O.P. No.2 is inable to prove his claim. Thus the counsel for the complainant pleads that deficiency has been made out and the complaint deserves to be allowed with costs.

7.    Sh. Mohinder Pal Singh, counsel for O.P. No.2 assisted the forum after pointing out the documentary evidence and prayed that O.P. No.2 financed a loan of about Rs.20,00,000/-, whereas the price of the vehicle was of Rs.24,00,000/- and it was purchased for commercial purposes. When vehicle was purchased for commercial purpose then this forum has no jurisdiction. Complainant has already placed on file route permit, goods carrying tax etc. The learned counsel further argued that present complaint is counter blast as O.P. No.1 had already approached the Permanent Lok Adalat at Chandigarh against the complainant vide application bearing No.1046 of 2018 dated 09.07.2018. In the said application, the complainant appeared on 2.8.2018 but had filed the reply on 20.12.2018. Whereas, the present complaint is of 14.8.2018. Meaning thereby, that while filing the present complaint the pendency of the application No.1046 of 2018 before the permanent Lok Adalat, Chandigarh was very well within the knowledge of complainant. The learned counsel further argued that complainant obtained loan with the EMIs of Rs.55,940/- per month and only paid 12 installments. The major amount was due and the guarantor is Satnam Singh. O.P. No.2 issued the notice to the complainant and the guarantor, the complainant did not appear but guarantor Satnam Singh delivered the possession of the truck in question through Ex.OP2/L. After repossessing the truck O.P. No.2 issued the notice to the complainant but it did not bother. Finally, the price of truck was assessed and sold to Munish Singla through document Ex.OP2/K. Moreso, the complainant appeared in the Permanent Lok Adalat, Chandigarh on 2.8.2018 and the present complaint was filed on 14.8.2018 by concealing the pendency of the said application. When filed reply in the said application before the Permanent Lok Adalat, Chandigarh, copy of which is Ex.OP2/D and in the said reply, the complainant concealed the pendency of this complaint before the Permanent Lok Adalat, Chandigarh. So this is concealment of fact. Lastly the counsel prayed that relying upon the documentary evidence, the complaint deserves to be dismissed with costs.

8.    After going through the file and as argued by both the counsel the first point which is to be determined is whether the complainant is consumer and complaint is maintainable or not then whether the complainant purchased the vehicle for commercial purposes, on that ground this forum has no jurisdiction. In the beginning of the complaint, it is pleaded by the complainant that he purchased Mahindra Traco 40 (260 HP) from Green Land Auto Mobiles Private Limited for his livelihood and the price mentioned Rs.23,50,000/- but this price is converted by the O.P. No.2 that the price as per the documents supplied for the purpose of loan is Rs.24,00,000/-. Complainant itself placed on file some documents like Route Permit/Tax deposit then admitted the truck loaded with goods from Kolkota to Punjab, then there was trouble in the engine. It was repaired and then again second time in the month of January again trouble came i.e. why on 6.3.2017 truck was handed over for repair to Pushpa Goyal Service Centre i.e. OP No.1. Complainant has though pleaded the purchase of the truck for livelihood but the mileage covered, documents placed on file, loan obtained all these things shows the vehicle was for commercial purposes. Moreso, the complainant nowhere pleaded that except this truck he has no other vehicle in possession. At the same time, the learned counsel for the complainant has relied upon the law laid down by the Hon'ble Supreme Court of India in Civil Appeal No.5165 of 2009 decided on 7.8.2009 in which the Hon'ble Supreme Court of India has laid down the law that the appellant purchased the truck in open auction then he is the consumer. But the facts are totally different from the complaint in hand because the original owner of the truck was one Iqbal Singh and due same reason or the other reason it was taken into possession by the Collector who put on auction and six months back entire auction price received but neither delivered the possession of the vehicle nor the documents. Previously approached to the Hon'ble Supreme Court of India in which the law is laid down that there is deficiency on the part of Collector who put on auction the truck which was previously owned by the Iqbal Singh. Collector did not supply the documents and the possession i.e. why compensation was awarded to the tune of 1,00,000/- Lac with interest 6% per annum. The learned counsel for the complainant has also relied upon the law laid down by the Hon'ble Himachal Pradesh State Consumer Disputes Redressal Commission, in first appeal No.163 of 2009, decided on 15.7.2010, vide which the Hon'ble State Commission the law is laid down that banking and financial institutions services, motor vehicle, vehicle purchased on loan and was repossessed by the financer by use of force without the complainant permission and was sold thereafter. Then, the complaint was decided against the complainant. But the fact of the authority are totally different on the ground that the financer repossessed the vehicle with force but the case in hand guarantor is one Satnam Singh who delivered the possession of the vehicle to the financer by way of documentary evidence. So, the complainant cannot deliver the truck was taken into possession by the financer forcibly. So on the basis of this authorities relied upon by the complainant no benefit can be extended in favour of complainant. Considering all these facts the signal goes that the complainant had purchased the vehicle for commercial purposes.

9.    Now it is to be seen whether the complainant concealed the true facts as pleaded by O.P. No.2 or not. Complainant filed this complaint on 14.8.2018 against OP No.1 to whom the truck was given for repair on 6.3.2017 and OP No.2 is the financer. The relief sought by the complainant is against both the O.Ps. but when this forum issued notices to both the O.Ps. none appeared for the O.P. No.1 and i.e. why O.P. No.1 was proceeded against ex-parte. O.P. No.2 contested the complaint on various grounds. First qua commercial second qua concealment of facts and in para No.2 of the preliminary objections, it is pleaded that OP No.2 approached Permanent Lok Adalat at Chandigarh by filing application No.1046 of 2018 dated 9.7.2018 and in the said application, the complainant appeared on 2.8.2018 and filed reply on 20.12.2018. So when the present complaint was filed by the complainant (Balwant Singh). at that time, he was duly served a notice by the Permanent Lok Adalat, Chandigarh. Though the complainant had concealed the above said pendency but O.P. No.2 placed on file its copy (application before permanent lok adalat) Ex.OP2/C. After going through the said reply, the forum has come to the conclusion that the complainant has concealed the pendency of this complaint in the said reply filed before the Permanent Lok Adalat, Chandigarh. So, it is clear cut case of concealment of facts. Neither the complainant disclosed to the Permanent Lok Adalat, Chandigarh qua the pendency of this complaint nor this forum informed qua the pendency of application before Permanent Lok Adalat Chandigarh.

10.  Coming to the real point of controversy, whether the complainant has been able to prove deficiency on the part of O.Ps. or not. Photocopy of the RC Ex.C2 proves the registration is in the name of complainant. Then the other documents prove qua the purchase and deliver of possession for the repair of the truck with O.P. No.1 dated 6.3.2017 which is not denied by the contested O.P. No.2. Another major part of controversy is, whether the complainant had approached the police authorities or not. The complainant has itself placed on file Ex.C8, copy of the enquiry report concluded by the SHO, who recorded the statement of the witnesses and finally came to the conclusion that the matter was beyond the purview of the police as the complainant obtained loan against the truck from OP No.2 and now OP No.2 has sold the truck to someone else i.e. why the police proceedings were stopped on 16.06.2018.

11.  OP No.2 placed on file statement of one Sanjeev Kumar, Branch Manager, Goyal Vehicle, Rajpura, Patiala Road, Village Kauli and also placed on file one complaint stands already filed on behalf of Mahindra & Mahindra Finance Limited against the complainant (Balwant Singh) copy of which is Ex.OP2/D. That proves that the complainant had obtained loan from the OP No.2 and only deposited 12 installments thereafter stopped paying the installments for a long time. Guarantor of the loan is one Satnam Singh and OP No.2 approached the Satnam Singh (Guarantor) who vide Ex.OP2/L surrendered the truck to the OP No.2 from the lawful custody of the complainant. Guarantor performed his duty. then OP No.2 put on auction the truck in question after evaluating and the financed amount whatsoever recovered the residuary claimed vide complainant titled as Mahindra & Mahindra Vs Balwant Singh, copy of which Ex.OP2/D. This fact was also concealed by the complainant. Ex.OP2/F is the loan agreement vide which complainant had agreed to return the entire amount of Rs.20,00,000/- in easy installments with EMIs of Rs.55,940/- monthly. OP No.2 placed on file the account statement of complainant is Ex.OP2/F which proves the last deposit of the installment January 2018 thereafter did not deposit. Hence, the vehicle was put on auction. There is one another document Ex.OP2/H which is letter on behalf of O.P No.2 to the complainant for the deposit of the residuary amount, OP NO.2/I is the photocopy of the postal receipts and its second page is relating to the refusal of the complainant to receive the letter dated 24.8.2017. In this way, the OP No.2 had duly informed the complainant qua the defaulting amount as well as the further sale. Another part of document is also on the file i.e. Ex.OP2/K which is the affidavit cum Indemnity Bond of one Munish Singla, who purchased the truck, which was repossessed by OP NO.2. Ex.OP2/M and Ex.OP2/O are the documents relating to the auction of the truck in question vide which price of the truck was evaluated.

12.  The forum after going through the documentary evidence as well as the plea taken by the OP No.2 and has finally come to the conclusion that firstly the truck was purchased by the complainant for commercial purposes but that is not as much the stronger point but other aspect like concealment of facts, non payment of the EMIs, notice issued by the OP No.2 to the complainant, police proceedings vide enquiry report dated 16.6.2018, loan agreement, account statement of the complainant, surrender of the truck by the Guarantor Satnam Singh and then purchased by Munish Singla and finally for the residuary loan amount OP No.2 approached the appropriate authority against the complainant. All shows that the complainant has badly failed to prove deficiency on the part of the O.Ps. Hence, the complaint is without merit.

13.  In the light of discussion made above, the complaint stands dismissed. However, the parties are left to bear their own costs.   

14. The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.          

 

                     ANNOUNCED                                    (KARNAIL SINGH AHHI)

                     Dated.28.03.2019                           PRESIDENT
 

 

 

 

                                               (CAPT. YUVINDER SINGH MATTA)

                                                                   MEMBER