Orissa

Cuttak

CC/181/2014

Kulamani Tripathy - Complainant(s)

Versus

Regional Manager,Mahindra & Mahindra Financial Services Ltd - Opp.Party(s)

P K Mishra

26 Aug 2019

ORDER

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

C.C No.181/2014

                                                                                                                 .… Complainant.

Kulamani Tripathy,

Vill/P.O: Guamala,

P.S:Tihidi,Dist:Bhadrak.

 

Vrs.

1.        Regional Manager,

Mahindra & Mahindra Financial Services Ltd.,

At:511,1^st floor,Mahindra Tower,

P.O:Rasulgarh,Bhubaneswsar,

Dist:Khurda.

 

2.        Branch Manager,

Mahindra & Mahindra Financial Services Ltd.,

At:Panikoili Chowk, Panikoili-Ankola,

Near Ganesh Pendal,

Panikoili,Jajpur,Odisha-755043.

 

3.        The Regional Transport Authority,

At/PO/PS:Bhadrak,

Dist:Bhadrak.                                                                          ….. Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    05.12.2014

Date of Order:  26.08.2019

 

For the complainant .      :    Mr. P.K.Mishra,Adv. & Associates.

For the O.P.No.1 & 2        :    Mr. R.K.Pattnaik,Adv. & Associates.

For the O.P.No.3               :     Self

 

Smt. Sarmistha Nath,Member(W).

 

                The complainant being a consumer has filed this complaint before this Forum against the O.Ps for Redressal of his grievances U/S-12 of the Consumer Protection Act,1986(Act in short) in terms of his prayer made in the complaint  is with regard to deficiency in service provided and unfair trade practice adopted by the O.Ps.

1. The case of the complainant in short is that the complainant  purchased a Mahindra & Mahindra MAXXIMO(MINI VAN).  The cost of the said vehicle at the relevant time was Rs.3,69,957/-.  The complainant deposited a sum of Rs.22,080/- as down payment towards the cost of the vehicle and the rest amount was to be paid by the O.P No.1.  By signing a hired purchase loan agreement dt.16.8.13 which would be realized from the complainant by the O.P in 48 equal installments and each installment was fixed a sum of Rs.10,964/- including the interest towards the 1^st installment and Rs.10,960/- for rest of the 46 installments because one advance installment Rs.10,964/- had already been paid on the day of execution of agreement.  Copy of the acceptance letter dt.16.8.13 and invoice receipt dated 21.8.13 is annexed herewith as Annexure-2.  On delivery of the vehicle bearing the engine No.MCD6D18787 and chassis No.MAIFB2MCRD38844 bearing Regd. No.OD-22A-2862, the O.P handed over only one key and keeping another with them i.e. before O.Ps 1 & 2.Copy of the R.C.Book, permit and fitness certificate is annexed herewith as Annexure-3.

As per the contract dt.16.8.13 the tenure of the contract was fixed up to 21.8.17 and accordingly the complainant paid his monthly installments as fixed by the O.P No.1 & 2 bank regularly.In the meantime due to illness of complainant’s wife he had to spend huge amount for her treatment and for that reason the complainant was defaulted in paying the E.M.Is.On 16.10.14, at about 6.35 P.M. while the vehicle is running to S.C.B.Medical College & Hospital,Cuttack with a serious patient, the O.P No.2 seized the vehicle atJagatpur, Golei Chhaka the O.P No.2 took physical possession of the vehicle.No seizure paper was given to the driver and O.P No.2 gave a simulated normal termination notice issued on 03.11.2014 but posted at Panikoili post office vide ‘Registration No.R05469410881N and the same is received by the present complainant,wherein the O.P No.2 clearly mentioned that they have taken the possession of the vehicle. Still as a fair and last chance was given to the present complainant hereby calling upon to clear entire amount due under the said agreement within 7 days of issue of the notice i.e. on or before 10.11.14, otherwise the sale of the vehicle is to be executed by O.Ps, from which it is clear that the O.P No.1& 2 intentionally with vested interest have taken repossession of the vehicle.

The O.P No.2 having been seized the vehicle illegally and without due process of law is not entitled to sale the same and charge penal interest but only three installment dues is liable to be paid by the present complainant on the day of possession of the vehicle by the O.P.

The O.Ps 1 & 2 had not issued notice to the complainant before seizure of the vehicle, even if after taking the physical possession, the seizure document is not handed over to the complainant and he was humiliated in a public place by way of seizing his vehicle for which she suffered from mental agony since the vehicle of the complainant has been seized by the O.P No.2 finance company illegally and arbitrarily, the complainant has suffered loss in his business.

The complainant has prayed for a direction to O.Ps to release the MAXXIMO (MINI) Mahindra and Mahindra vide Regd. No.OD-224-2862 in favour of the complainant on payment of the defaulted E.M.I of 2 installments, to deduct the late payment penalty, cheque-bouncing charge, overdue installments, additional finance charges, agreement termination expenses and repossession charges from the loan account for the complainant and  to pay compensation of Rs.65000/- and cost of litigation to the extent of Rs.25,000/- to the complainant and to direct the O.Ps not to sale the alleged vehicle in any manner till disposal of this case.  The complainant has further filed a misc. case before this Forum to direct the O.Ps to release the seized vehicle in favour of the complainant and direct the O.Ps 1 & 2 to not to sale the vehicle and to direct O.P.3 to not to change the ownership of the said vehicle during pendency of the case.

2. The O.Ps 1 & 2 appeared and filed their written version.  The O.Ps stated that the complainant does not fall within the definition of consumer and the relationship between the complainant and the O.P is that of borrower and the lender.  As such no consumer dispute is maintainable.  It is essentially a civil dispute and does not fall within the scope of the C.P.Act,1986.  The O.Ps have further stated that they provided the loan to the tune of Rs.3,69,000/- to the complainant and the agreement value to be repaid by the complainant was Rs.5,15,124/- and it was to be repaid by the complainant in 47 periodical installments of Rs.10,964/- for 1^st installment and thereafter Rs.10,960/- each starting from 28.8.2013 and ending on 19.8.2017.  Since the complainant has executed loan agreement, the terms and conditions of the agreement are binding upon him and as per the clause-2(a)(c),3(a),(d),6 and 8(a),(b) and (c) of the agreement, the complainant is supposed to make the payment of the periodical installments in time and on the failure of the complainant to do the same, the O.P shall be entitled to the remedies as available under the said agreement.  From the very inception of the loan agreement, the complainant was very irregular in the payment of his installments within time and committed default time and again.  Only after repeated follow ups by the O.Ps, the complainant would pay his installments and that even beyond the due dates.  On 1^st May,2014, the O.Ps had issued a demand notice calling upon the complainant to pay the outstanding dues or else the O.Ps shall be constrained to enforce their security available to them under the said loan agreement.  Despite of the said demand notice and repeated follow ups, the complainant chose to ignore the same and continued to default.  The complainant also did not allow the O.Ps to inspect the vehicle, which the complainant had hypothecated to the O.Ps as security against the loan.  Eventually, the O.Ps came to know that without the knowledge and consent of the O.Ps, the complainant had created a 3^rd party interest in the vehicle to one Mr. Sanjay Kumar Nayak, son of Mr. Naba Kishore Nayak to deprive the O.Ps of their legitimate dues and charge on the date of repossession, the complainant was supposed to pay 14 installments, whereas, he had only paid 11 installments.  Copy of the statement of account and demand notice dt.1.5.14 is attached as Annexure-1 & 2 respectively.  Including the 3 defaulted installments and late payment charges and repossession charges to the tune of Rs.16.746/- i.e. a sum of Rs.3,61,680/- was due and payable by the complainant.  Then the O.Ps took possession of the said vehicle on 16^th October,2014 by intimating the local police station and in compliance of the R.B.I guidelines.  Copy of the police intimation notice is attached as Annexure-3.  The O.ps gave a last chance to the complainant to take back the vehicle by clearing his dues on 10^th November,2014 and intimated the complainant that if he fails to do so, then the O.Ps shall be constrained to sell the vehicle and appropriate the sale proceeds towards the receivable amount under the said loan agreement and that in case of any short fall after such appropriation, then the O.Ps shall reserve their right to recover the same from the complainant as per law.  Despite of receiving the said notice, the complainant chose not to fulfill his obligations.  Copy of the notice dated 3^rd November,2014 is attached as Anexure-4 and Annexure-5 respectively.  Since the complainant did not pay his dues, the O.Ps sold the vehicle at Rs.1,35,000/- to the highest quotation and after adjusting the sale proceeds, a sum of Rs.2,22,503/- is still due and payable by the complainant towards loss incurred by the O.Ps after disposal of the vehicle.  After sale of the vehicle the O.Ps had issued a post sale notice on dated 12^th December,2014 calling upon the complainant to pay the amount after the sale proceed is being adjusted.  Post sale notice on 12^th December,2014 is attached as Annexure-6.  Under clause-15 of the loan agreement, the complainant had agreed to refer the all dispute to the arbitrator.

The O.Ps have stated that they had no role in choosing the dealer or said vehicle.The role of the O.Ps was only to finance the purchaser against the security of the said vehicle to be purchased besides the promise of the complainant to repay the loan amount irrespective of the utilization of the said vehicle and its effectiveness.Due to the continuous default in paying the installments by the complainant, the O.Ps repossessed the vehicle from the complainant in exercise to its right under the loan agreement and sold it at Rs.1,35,000/-.As the vehicle has already been sold to a 3^rd party, the prayer for release of the vehicle no more survives.

3. We have heard from the learned advocates of the parties and gone through the documents and papers filed by the parties carefully.  The learned counsel for the complainant submitted that under no circumstances seizure of the vehicle by the finance company without court’s order and without notice is lawful and permissible.

On the other hand the counsel for the O.Ps argued that since the complainant has violated the terms and conditions of the loan agreement and defaulted in paying installments, the finance company has got right to repossess the vehicle.

We have observed that admittedly the complainant have availed the loan from the O.P and failed to repay the installments in time and as per terms and conditions of the agreement which gives right to the financier to take repossession of the vehicle.

                                                                                ORDER

Basing upon the facts and circumstances as stated above, the complainant failed to prove deficiency in service on the part of O.Ps.Hence the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 26^th   day of August,2019  under the seal and signature of this Forum.

      ( Smt. Sarmistha Nath )

                           Member (W)                                                                                                                                                                                                                                                                                                                                                                   (Sri D.C.Barik)

                                                                                                              President.