STATE CONSUMER DISPUTE REDRESSAL COMMISSION
BIHAR, PATNA
Appeal No. 147 of 2018
Mahindra & Mahindra Finacial Services Ltd. a Non-Banking Financial Company incorporated under Indian Companies Act, 1956 having its registered office at Gateway building, Apollo Bunder, Mumbai- 400001 and having one of its Branch Office at having its branch office at Plot no. 6A, North S.K. Puri, besides CIMAGE, Boring Road, Patna- 800013 through its Manager (Legal)
… Appellant/Opposite Party
Versus
1. Sanjay Kumar Singh, S/o- Sri Suryabansh Singh, Resident of Village- Dhaudadh, PO & PS- Sasaram, District- Rohtas
2. Arun Singh, Mahindra & Mahindra Financial Services Ltd, through the Manager, G.T. Road, Sasaram- Sasaram- 821115, At – Sasaram, District- Rohtas
…. Performa Respondent/Respondent
Counsel for the appellant: Adv. Shivendu Kumar Roy
Counsel for the Respondent: Adv. Pritam Kumar
Dated 05.04.2023
As per Sanjay Kumar, President.
O r d e r
Present appeal has been filed on behalf of Mahindra & Mahindra Financial services Ltd. for setting aside the ex-parte order dated 07.03.2018 passed by the Ld. District Consumer Forum, Rohtas in Consumer Complaint no. 62 of 2017, the complaint filed by complainant has been allowed by an ex-parte order.
Complainant had filed complaint case against the appellant/opposite party no. 1 for setting aside demand of AFC amount and return of documents of the vehicle i.e Registration certificate, Tax token, Insurance paper after making a payment of Rs. 1,21,800/- (last installment) and to grant no dues certificate/no objection certificate as well as grant of compensation of Rs. 9,00,000/- as complainant could not use the vehicle in absence of said documents.
The District Consumer Forum allowed the complaint case and directed the appellant /finance company to pay compensation of Rs. 9,00,000/- for pecuniary loss due to non use of vehicle as well as Rs. 10,000/- for mental and physical harassment and Rs. 5,000/- as cost of litigation as well as to hand over all the required documents of vehicle. The Consumer Forum has also found that out of total price of vehicle with interest comes to Rs. 17,97,000/- against which complainant has deposited Rs. 16,75,200/- and when complainant went to deposit the remaining amount of Rs. 1,21,800/- the finance company asked to pay additional sum of Rs. 2,68,088/- as AFC amount on account of late deposit of installments.
The case was taken up 03.04.2023 and on the request of this Commission to the appellant to amicably settle the dispute and accordingly when the matter was taken up today a proposal was made by the appellant finance company that they are ready to waive the AFC amount and hand over NOC of the vehicle to the complainant, although, the AFC amount as demanded was in terms of hire purchase agreement, however said proposal was not accepted by the complainant.
In support of his contention counsel for the appellant relied upon an order passed by National Commission since reported in 2010 (1) CCC 85 (NS) Manohar Singh Vs. Mahindra Finance and Others, affirming the order of State Commission, paragraph 4 of which reads as follows:
“The State Commission found that the installments were paid late and as such the respondents were justified in claiming Rs. 14,680.35 from complainant and the respondents were justified in not issuing the NOC. Before the State Commission, the Ld. Counsel for the present petitioner had stated that they were ready to issue NOC on receipt of Rs. 14,680.35 and they will not charge interest for two years from the time the said amount was due. The State Commission accordingly set aside the order of the District Forum and directed the Complainant to deposit Rs. 14,680.35 with the respondents and on receipt of the same the respondents were directed to give NOC. This order is subject matter of challenge in this revision.“
It was further submitted that the vehicle is a commercial vehicle and was purchased for commercial purpose as such the complaint case was not maintainable before the Consumer Forum as the complainant does not come within the definition of consumer as defined under section 2(d) of the Consumer Protection Act,.
It is further submitted that compensation of Rs. 9,00,000/- was awarded by the consumer Forum with respect to pecuniary loss suffered by complainant for non use of vehicle and same has been allowed on mere statement made in the complaint petition and no evidence was adduced by the complainant in support of said contention and as such the order suffers from material irregularity. The onus to prove pecuniary loss lies on the complainant and this onus can be discharged by leading cogent evidence. A mere averment made in complaint petition can not be treated as evidence on basis of which claim can be said to be proved.
Appellant has also taken objection with respect to non joinder of dealer who is also a necessary party as responsibility of insurance and registration of vehicle is with the dealer of the vehicle.
For the reasons as stated above, the judgment and order dated 07.03.2018 is not sustainable either in law or on facts and is accordingly set aside and the case is remanded to the District Consumer Forum, Rohtas at Sasaram where both parties shall appear on 24.04.2023. The District Commission shall proceed to decide the complaint case filed by complainant in accordance with prescribed procedure. Forum shall permit parties to lead evidence/additional evidence and to examine and cross examine witnesses if so required. All issues of fact and law are left open to raised and adjudicated by District Consumer Forum, Rohtas at Sasaram.
(Ram Prawesh Das) (Sanjay Kumar,J)
Member President
Md. Fariduzzama
