SRI BIJAYA KUMAR DAS,PRESIDENT-
Deficiency in service and unfair trade practice by not crediting the complainant’s monthly installments into the loan account are the allegations arrayed against Ops.
2. Complaint in brief reveals that complainant purchased a Bajaj Auto being financed by Bajaj Auto Finance Ltd.(OP No.3 & 4) on executing an agreement on dtd.10.11.2012 bearing Regd. No.OD-29-0349. The said auto was purchased from Sanjibani Motors(OP No. 1 & 2 ) and finance amount was of Rs.1,25,000/-(Rupees One lakh twenty five thousand)only. As per the agreement the loan has to be repaid on 42 monthly installments. It is revealed from the complaint petition that complainant was started paying the monthly installment regularly through OP No.2 and money receipts were granted with seal/stamp of the company of OP No.1 subsequently basing on the money receipt issued by Sanjibani Motors, OP No.4 granted the computerized money receipts to complainant. It is further revealed that though the complainant paid Rs.9508/- to OP No.2 as monthly installments for March and April,2013, but same is not reflected or account for on the loan statement of the complainant which is disclosed from the Advocate’s notice issued by OP No.3 & 4. When complainant asked OP No.2 regarding the irregularities, OP No.2 assured the complainant to settle the dispute very soon but the dispute is not settled yet, which gives financial loss and mental agony to the complainant. The cause of action of the instant case arose on dtd.04.12.2015 when the Ops did not take any step to resolve the dispute, hence the complaint before the Forum with prayer that a direction may be given to Ops to settle the account and to pay the compensation for irregularity, financial loss along with cost of litigation.
Notice was served to Sanjibani Motors, Charampa,Bhadrak(OP No.1) and Amiya Ranjan Panda, Manager, Sanjibani Motors,Duhuria,Kendrapara(OP No.2) through regd. Post and appeared through their Ld. Counsel but did not prefer to file any written statement into the dispute, accordingly were set ex-parte.
3. Being noticed Bajaj Auto Finance Ltd.,(OP No.3 & 4) appeared into the dispute through their Ld. Counsel and filed joint written statement with formal allegation of non-maintainability of complaint and the gist of the parawise reply reveals that complainant along with Mr. Bijaya Kumar Mohanty approached the OP- finance Company to avail a financial assistance to purchase three wheeler( Passenger carrier), considering the request and on execution of loan agreement bearing No.L3WBHA01924019 on dtd.18.09.2012 sanctioned the loan to repay the loan on 42 months with a monthly installment of Rs.4529/- which payable on 10th of every month starting from dtd.10.11.2012. It is averred that as per Annexure-B as on dtd.11.04.2016 complainant has remitted an amount of Rs.1,53,986/- towards installments and Rs.2531/- towards other over dues and is in arrears of Rs.3602/- towards installments overdue and Rs.16,584/- towards other overdues, but as per the cash receipts produced by complainant on record is Rs.1,47,453/-. It is further averred that it is the sole responsibility of complainant to collect the valid cash receipts of Ops-Company on remittance of installments. Further, the complainant admits that the EMI’s for the month of March and April-13 are paid to OP No.2 and not to the OP-Finance Company for such transaction no liability can be fixed on OP-Finance Company. OP-Finance Company had issued a loan recall notice dated 15.10.2013 to pay net outstanding of Rs.1,51,959/-, but complainant instead of payment the said arrear out standings pay Rs.1,20,279/- as on dtd.11.04.2016. The Demand Notice dated 15.07.13 and the loan recall notice dtd. 15.10.2013 are filed into the case as Annexure ‘C’ and ‘D’. In the circumstances, the OP-Finance Company has not committed any deficiency in service and the complaint is liable to be dismissed against present OPs.
4. Heard the arguments advanced by Ld. Counsel for the parties examined the attested photo copies of money receipts, Challan issued by OP No.1 on dtd. 07.09.2012 against the sale of the vehicle, attested photo copies of recall notice and account statement issued by OP No.3-Finance Company and other attested photo copies showing the Registration, insurance and fitness of the vehicle filed by complainant as documents relied on in the complaint petition, OP No.3/4 finance company filed Xerox copy of auto loan agreement and schedule of agreement as Annexure-A, photo copies of account statement as Annexure-B, vehicle verification-cum-demand notice and loan recall notice as Annexure’C’ and ‘D’.
The admitted facts of the case are that complainant availing a finance to the tune of Rs.1,25,000/- (Rupees One lakh twenty thousand)only purchased a Bajaj R.E.Diesel Auto on dtd.07.09.2012 on execution of an agreement by complainant as a borrower and Mr. Bijaya Kumar Mohanty as a guarantor. As per the agreement it was agreed between the parties to repay the installment dues on 42 monthly installments.
In the complaint it is alleged that complainant started his repayment of monthly installments through Sanjibani Motors, OP No.2 and printed Money receipts were issued to the complainant on OP No.1’s dealers name which was subsequently endorsed by OP No.4-Financial company by issuing computerized receipt with stamp of OP No.1 and credited to the loan account of the complainant-borrower. The present dispute relates to payment of monthly installments for the month of March and April,2013 where two installment amounting of Rs.9058/- was paid to OP No.2 on dtd.06.05.2013 at a time who granted the money receipts, but the said amount has not paid to OP-Finance Company for which complainant was a defaulter in respect of payment of installment. On the other hand the contesting OP-Finance company pleas are that as per the schedule of repayment of loan agreement(Annexure-A), complainant agreed to pay the monthly installment dues in shape of cash. It was the further plea of the OP-Finance Company that it is the sole responsibility of complainant-borrower to collect the valid cash receipts of OP-Finance Company on remittance of installments or other over dues. Complainant to substantiate his case filed money receipts granted by Ops including the disputed money receipt issued on dtd.06.05.2013 amounting of Rs.9058/- by Sanjibani Motors as monthly installment for March and April,2013. The disputed money receipts bears the seal and signature of Sanjibani Motors. That apart complainant files a bunch of monthly receipts granted by OP-Finance Company and OP No.1 & 2. For example the money receipt granted by OP-Finance Company on dtd.14.11.2012 and dtd.10.03.2014 reflects that Collector’s name as Sanjibani Motors, Agency/MDL/ASC Name Sajibani Motors and the Agency/ASC Code as 4077. It is evident from the documents presented by the complainant that Sajibani Motors was duly authorized by OP-Finance Company to collect the monthly EMI’s from complainant like consumers and in the present case the disputed monthly payment of Rs.9058/- as EMI’s for month of March and April,2013 does not reflect in the loan account statement of the complainant. In para 5 of parawise reply contesting Ops state that as on dtd.11.04.2016 complainant has remitted an amount of rs.1,53,986/- towards installments and Rs.2531/- towards other dues, but the cash receipts produced by complainant on record Rs.1,47,453/-. But not a word is whispered regarding payment of the disputed monthly EMI’s for month of March-April,2013 amounting of Rs.9508/- whether the said amount is received by the OP-Finance Company or not ? The OP-Finance Company does not speak a single sentence on the written statement about the relationship between the OP-Finance Company and the Sanjibani Motors.(OP No.1 & 2) regarding any authorization to collect the EMI’s on behalf of the OP-Finance Company. It appears that the Op-Finance Company is trying to suppress some material information before this Forum regarding the legality and credibility of collection of monthly EMI’s by the OP No.1 & 2, Sanjibani Motors. Further, the agreement(Anneuxre-A) executed between OP-Financer and complainant is equally silent regarding mode of payment of cash, we failed to understand that if there is business relationship exist between OPs in what capacity the Sanjibani Motors)OP No. 1 & 2) was collecting the monthly EMI’s and subsequently the said amount was accepted and money receipts were granted by OP-Finance Company in the name of borrower and the amount was credited in loan account of the borrower and at this stage when any problem arises from the side of OP No.1 & 2 the OP-Finance Company is escaping their liability shifted the onus of repayment on the shoulder of the complainant, complainant is at no fault on paying the monthly EMI’s to Sanjibani Motors(OP No.1 & 2) when on the earlier occasions complainant in the same type of payment transactions amounts were credited in the loan account of the complainant-borrower. In addition to that Sanjibani Motors (OP No. 1 & 2) was the right person to enlighten the Forum regarding genuineness of the complaint, though OP No.1 & 2 appeared into the dispute but did not prefer to file any written statement accordingly was set ex-parte which convinced us that the OP No.1 & 2 are trying to cover-up their liability by remaining absent from the proceeding.
Considering the facts and documents we are of the unanimous view that OPs are jointly and severally liable for the non-crediting of monthly installment of Rs.9058/- for month of March and April,2013 on complainant’s loan account have committed deficiency in service as per Sec.2(d)(o) of C.P.Act,1986 and caused financial loss and mental agony to the complainant for
which the complainant was forced to file this complaint and deserves compensation for financial loss and mental agony. It is directed that the dispute amount of Rs.9058/- collected by Sanjibani Motors from the complainant for month of March/April,2013 on dtd.06.05.2013 will be deposited in the complainant’s loan account by the OP No.1 & 2, Sanjibani Motors, if not deposited earlier within one month of receipt of this order. It is further directed that OP-Finance Company shall not charge any interest or over dues on disputed amount of Rs. 9508/- from dtd.06.05.2013 till the deposit of ordered amount of Rs.9508/- by OP No.1 & 2 if any interest and over dues are charged or collected/credited for the said period the said amount will be adjusted in shape of EMI’s in the loan account of the complainant.
Having observations reflected above it is directed that Ops will comply our order within the time limit given in our aforesaid observation, failing which action will be initiated against the Ops as per the provisions of C.P.Act,1986.
Complaint is allowed in part on contest against OP No.3 & 4 and ex-parte against OP No.1 & 2 without any cost.
Pronounced in the open Court, this 21st Day of February, 2017.
