Per Shri Dhanraj Khamatkar – Hon’ble Member:
(1) This appeal takes an exception to an order dated 19.06.2010 passed by the District Consumer Disputes Redressal Forum, Thane in Consumer Complaint No.348/2009.
(2) Facts leading to this appeal can be summarized as under:
The Complainant had filed consumer complaint stating that he had purchased Trax-Cruiser – 3050 bearing Registration No.M24-C-6817 from Navnit Motors by taking a loan of `4,63,826/-. The EMI of the loan was `10,930/-. It is stated by the Complainant that he was paying EMI regularly. However, he could not pay some monthly installments and hence, the Opponent had taken the possession of the vehicle on 09.04.2008 and they had sold the vehicle on 26.05.2008 for `3,51,000/-. They had returned the Complainant an amount of `35,000/- on 01.08.2008. It is the contention of the Complainant that out of the loan amount he had paid an amount of `3,64,326/-. However, he was deprived of to the vehicle and his amount. Hence, the Complainant had filed consumer complaint alleging deficiency in service on the part of the Opponents and prayed for an amount of `4,25,326/-, which he spent for purchasing the vehicle and `5,000/- as metal agony.
(3) The Opponents had challenged the complaint by filing written version contending that the Complainant had not paid the installments regularly and hence, they had taken the re-possession of the vehicle. They further contended that as the amount of installment was outstanding against the Complainant and they had sold the vehicle and after selling the vehicle, after deducting their outstanding amount they had returned the remaining amount of `35,000/- to the Complainant. Therefore, the Opponents prayed that the complaint may please be dismissed.
(4) The District Forum after going through the complaint, written version filed by the Opponent, evidence filed by both the parties on affidavits and pleadings of Advocates, partly allowed the complaint, directing the Opponents to charge an interest amount @6% per annum instead of @36% per annum and return to the Complainant remaining amount with additional finance charges of `15,065/-, repossession charges of `18,000/- with interest @12% from 26.05.2008 within a period of one month, failing which additional penal interest @3% per annum and `15,000/- for the mental agony and `15,000/- as costs. Aggrieved by this order the Opponent has filed this appeal.
(5) We heard Advocate Mr.Amol Desai, for the Appellant. The Respondent remained absent though duly served.
(6) Admittedly, there is loan agreement between the Appellant and the Respondent. In an agreement there is provision that if there is delay in payment, the Opponents were entitled to charge penal interest @36% per annum. It is also on record that the Respondent was a defaulter and as per the conditions of the Agreement the Appellants have repossessed the vehicle. It is also on record that, after repossession of the vehicle they have sold the vehicle for `3,51,000/- and out of the sale proceed the Appellants have deducted the loan amount outstanding against the Respondent and returned the remaining amount of `35,000/- to the Respondent. At page no.82 of the appeal compilation there is a letter written by the Respondent/Complainant to the Appellants/Opponents admitting that he had taken a loan from them for purchasing vehicle No.MH-24-C-6817 and he had given consent to deduct the outstanding loan amount and return the remaining amount. This is a consent given by the Respondent himself and accordingly, the Appellants have returned an amount of `35,000/- to the Respondent. Loan agreement is a contract between the parties and both parties are bound by the terms of the contract. The Ld.District Forum tried to exceed its jurisdiction to change the conditions of the contract, which is not permissible under the Consumer Protection Act. The Ld.District Forum has not found any fault with the Appellants in taking the repossession of the vehicle and the sale of the vehicle as there was default on the part of the Respondent. As per the provisions of the Agreement the Appellants have charged penal interest. The observations of the Ld.District Forum are erroneous and are not sustainable in law. On the basis of record available in the appeal compilation, we do not find any deficiency in service on the part of the Appellants/original Opponents and when there is no deficiency in service on the part of the opponents, the District Forum has arrived at erroneous conclusions. We hold accordingly and pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) The order of the District Forum passed in Consumer Complaint No.348/2009 is hereby quashed and set aside. Consequently, Consumer Complaint stands dismissed.
(iii) Inform the parties accordingly.
Pronounced on 17th day of September, 2012.
