Orissa

Cuttak

CC/167/2019

Debi Prasad Panda - Complainant(s)

Versus

Rashmi Motors - Opp.Party(s)

B K Sinha

26 Aug 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                C.C.No.167/2019

                Debi Prasad Panda,

               S/O:Prabhat Kumar Panda,

Resident of Gopinathpur,

Champati,Jagatpur,

Dist:Cuttack,Odisha..                                                                     ... Complainants.

         

                                                Vrs.

1.        Rashmi Motors,Authorized Dealer Ashok

Leyland Light Vehicles,N.H-5,Phulnakhara,Cuttack,

Bhubaneswar Road,Cuttack-754001..

 

2.         Branch Head of Rashmi Motors,

       N.H-5,Manguli,Choudwar,Cuttack-754025.

 

3.         Managing Director,Hinduja Leyland

        Finance Ltd.,Regd. Office At:Sardar Patel Road,

        Gindy,Chennai-600032,

         Tamilnadu,India.

 

4.          Branch Manager,Hinduja Leyland Finance Ltd.,

         At:Link Road,Arunodaya Market,

         Shankarpur Colony,Dist:Cuttack.

 

5.          Branch Manager,Oriental Insurance Company Ltd.,

        City Branmch,Office-11,Dist:Cuttack.                           .                  ...Opp. Parties.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    18.12.2019

Date of Order:  24.08.2022

 

For the complainant:            Mr. B.K.Sinha,Adv. & Associates.

For the O.P. No.1 & 2.    :                   None.

For the O.Ps No.3 & 4:         Mr. A.K.Samal,Adv. & Associates.

For the O.P No.5:                   Mr. A.A.Khan,Adv, & Associates.

 

Sri Debasish Nayak,President.                                                                      

            The case of the complainant in short is that he being a physically challenged person had purchased a vehicle after obtaining finance from the O.Ps no.3 & 4.  He had deposited down payment of Rs.1,13,470/-.  He had purchased the said vehicle in order to earn his livelihood and for his self-employment.  He had recruited a driver for driving the said vehicle.  He had obtained finance to the tune of Rs.4,82,000/- from the O.P.  The financer charge(interest) was of Rs.1,50,000/- and insurance was of Rs.27,006/-.  Thus the complainant was to clear an amount of Rs.6,68,066/- in 47 number of monthly instalments @ Rs.15,568/- till 1.5.20.  The loan agreement consisting of 50 to 60 pages which was written in English, which the complainant could not read being less-educated.  But the complainant admits to have defaulted for 3 months and could not pay the E.M.Is thereof. Inspite of his request to clear the defaulted amount, the vehicle was forcibly taken away from his possession from College Square area at Jobra Road of Cuttack.  The complainant was thereafter asked to pay a sum of Rs.50,000/- to the O.Ps No.2 & 3 and take away his vehicle.  Thus, the complainant has filed this case seeking direction to the O.Ps in order to provide him a copy of the loan agreement, to pay him a sum of Rs.1,50,000/- towards compensation for his mental agony and harassment and  also for any other reliefs as deemed fit and proper.

            The complainant has filed Xerox copies of certain documents in order to prove his case.

2.         On the other hand, out of the five O.Ps, in this case, O.Ps No.1 & 2 have not contested this case for which they were set exparte.  However, O.Ps no.3,4 & 5 have contested this case out of whom O.P No.3 & 4 have conjointly filed their written version whereas O.P No.5 has filed his separate written version.  In the written version of O.Ps No.3 & 4, they have prayed that the case of the complainant is not maintainable as because there is arbitration clause in the agreement as executed in between them.  They have stated in their written version that one Ashok Leyland AL DOST LS vehicle was purchased by the complainant for which they had financed a sum of Rs.4,82,000/-.  The finance /interest charge was of Rs.1,59,060/- and the total amount was to be cleared by the complainant in 47 number of E.M.Is out of which, a sum @ Rs.15,568/- per month for the first  30 months and thereafter a sum of Rs.13,640/- for the last/next 17 months was to be repaid.  The total due is to be cleared by 1.5.20.  The complainant had defaulted in paying the E.M.Is for which the O.P No.3 & 4 were compelled to send demand-cum-Pre-Sale notice to the complainant on 11.7.19 through registered post claiming the overdue amount by then to the tune of Rs.1,37,717/-.  When the complainant did not turn up, the O.Ps no.3 & 4 were compelled to take repossession of the said vehicle on 6.8.19 peacefully.  They had also issued the Pre-Sale notice to the complainant on 17.11.19 but due to non-cooperation of the complainant, they had sold the vehicle on auction basis and since because they had obtained all the formalities legally for repossession and selling the financed vehicle, they had not committed any deficiency in their service nor they had practised any unfair trade.  Thus, they have prayed to dismiss the case of the complainant.

            O.Ps no.3 & 4 have also filed copies of certain documents alongwith catena of decisions in order to prove their stand.

            O.P No.5 in his written version has also stated that the case of the complainant is not maintainable.  According to them, the vehicle in question was insured which was valid from 30.5.16 to the midnight of 29.5.17. 

3.         Keeping in mind the averments of both the written versions as well as contents made in the complaint petition, this Commission is of view to settle the following issues in order to arrive at a proper conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

            ii.         Whether there was any deficiency in service on the part of O.Ps?

            iii.        Whether the O.Ps had adopted any unfair trade practice?

            iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issues no.ii & iii.

            Out of four issues, issues no.2 & 3 being the most pertinent issues are taken up first for consideration here in this case.

            It is admitted fact that the complainant had purchased one Ashok Leyland AL DOST LS vehicle by paying the down payment and had also obtained finance from O.Ps No.3 & 4  by entering into a loan agreement with them.  It is also admitted fact that the complainant was to clear the loan as incurred by him from O.Ps no.3 & 4 regularly.  It is not disputed that the complainant became a defaulter by not paying the regular E.M.Is as due from him to the O.Ps no.3 & 4.  The parties have also admitted about the repossession of the said vehicle by O.Ps no.3 & 4.  The plea of the complainant is that he being an illiterate person, he could not know the contents of the loan agreement as executed by him.  His contention to that effect is that he is less-educated and could not therefore understand the English language through which the loan agreement constituting of 50 to 60 pages was drafted.  Be that as it may, nothing had prevented the complainant in enquiring about the contents of the agreement before acknowledging and executing it.  The plea of his less literacy as taken can only be termed as that of one “afterthought” and this plea as taken by the complainant is only to escape from the liability as saddled over him.  When the O.Ps no.3 & 4 had issued notice to the complainant for clearing the overdue E.M.Is and also have sent the Pre-Sale notice and that they had proceeded as per the terms of the agreement, within the ambit of law by observing all the necessary formalities, it can never be said here that the O.Ps no.3 & 4 had caused any deficiency in their service, or they had practised unfair trade.  They have filed decision of Hon’ble Supreme Court reported in 2020(4) 197(SC)  in the case of M/s. Magma Fincorp. Ltd. Vs. Rajesh Kumar Tiwari decided on 1.10.2020 where the Hon’ble Supreme Court held that Repossession of a vehicle under hire, in accordance with terms and conditions of a hire purchase agreement, upon default in payment of hire instalments and refusal to release the same on mere assurance of Complainant to clear outstanding arrears of hire instalments and pay future instalments in time, does not constitute ‘deficiency in service’.  The O.Ps have also filed decision of Hon’ble State Consumer Disputes Redressal Commission reported in F.A.No.558 of 2017 where the Hon’ble Commission has held that since the repossession notice has been issued and admittedly the complainant is a defaulter, repossession of the vehicle by the O.P cannot be said wrong.  They have also filed another decision of Hon’ble State C.D.R.Commission ,Odisha reported in F.A. No.181/2018 wherein the Hon’ble Commission has held that the vehicle has been repossessed due to default of the complainant to repay the debt with due prior notice.  Thus, there is no deficiency of service on the part of the O.P. 

So, complainant has failed to prove deficiency of service of O.Ps, here in this case.  Accordingly these two issues are answered in favour of the O.Ps of this case.

Issue no.i & iv.

            From the above discussions, it can never be said here that the case of the complainant as filed is maintainable and he is entitled to any of the reliefs as claimed by him.  Hence it is so ordered;

                                                       ORDER

            The case is dismissed on contest against O.Ps no.3,4 & 5 and exparte against O.Ps no.1 & 2 and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 26^th day of August,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                     

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                                                                                                                                                             Sri Sibananda Mohanty

                                                                                                                                Member.