NCDRC

NCDRC

RP/3062/2013

BAJAJ FINANCE LTD. (EARSTWHILE BAJAJ AUTO FINANCE LTD.) - Complainant(s)

Versus

SOMESH N. K. - Opp.Party(s)

M/S. RANJAN & CO.

16 Apr 2014

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 3062 OF 2013
 
(Against the Order dated 26/06/2013 in Appeal No. 1487/2012 of the State Commission Karnataka)
1. BAJAJ FINANCE LTD. (EARSTWHILE BAJAJ AUTO FINANCE LTD.)
(EARSTWHILE BAJAJ AUTO FIANCE LTD) NO-74 SARAKKI INDUSTRIAL LAYOUT, NEAR MINIFOREST, JP NAGAR, 3RD PHASE,
BANGALORE - 560078
KARNATAKA
...........Petitioner(s)
Versus 
1. SOMESH N. K.
NO-28, 7TH MAIN, 19TH CROSS, BTM 2ND STAGEM NS PALYA
BANGALORE - 560076
KARNATAKA
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
 HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner :
Mr. M. Kumar Chaudhary, Advocate
For the Respondent :

Dated : 16 Apr 2014
ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Petitioner/Opposite party has filed the present revision petition under Section 21(b) of Consumer Protection Act, 1986 (for short, ct against impugned order dated 26.6.2013, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short tate Commission. 2. Brief facts are that Respondent/Complainant had filed a consumer complaint under Section 12 of the Act before the III Additional Bangalore Urban District Consumer Disputes Redressal Form, Bangalore (for short istrict Forum stating that he had taken a loan of Rs.24,000/- from the petitioner on 23.9.2008 for purchase of Bajaj Pulsar Bike and had paid one monthly instalment. Thereafter, he could not pay further amount due to his heath problem. It is alleged that on 23.4.2011, people of the petitioner forcibly seized the vehicle. Thereafter, respondent met their officials and was told that he had to pay Rs.68,520/- and they were not ready to give back the bike. It is further stated that respondent is not interested in having that bike and wants to cancel the agreement with the petitioner. Further, respondent had invested Rs.50,000/- in purchase of the vehicle and as such petitioner is liable to pay Rs.52,170/- with interest @ 12% p.a. 3. Petitioner in its written statement took the plea that respondent had availed the finance facility of Rs.26,040/- and amount was repayable in 12 monthly instalments of Rs.2,170/-. Respondent paid only one instalment and did not pay the balance amount. Later on, respondent approached the petitioner stating that due to his financial constraints, he is not in a position to clear the balance amount and wanted to surrender the hypothecated vehicle. Accordingly, he surrendered the vehicle on 26.4.2011. 4. It is further alleged that respondent also agreed for sale of the vehicle and for adjustment of the sale proceeds to the loan account. Thereafter, petitioner issued letter dated 12.5.2011 intimating the respondent about the amount due and asking him to pay the same within 7 days, failing which the vehicle will be sold. Since, respondent did not turn up nor did he pay the amount of Rs.70,170/- which was due as on 26.4.2011, accordingly, petitioner sold the vehicle on 20.5.2011 for Rs.29,000/- and adjusted the sale proceeds of the outstanding amount. After adjustment, sum of Rs.41,170/- is due towards the respondent. Thus, there is no deficiency in service and complaint is liable to be dismissed. 5. District Forum vide order dated 25.5.2012, allowed the complaint in part holding, that there is deficiency in service on the part of the petitioner who was directed to pay a sum of Rs.16,500/- to the respondent with interest @ 12% per annum from 20.5.2011 until actual payment. 6. Being aggrieved, petitioner filed an appeal before the State Commission, which dismissed the same vide its impugned order. 7. We have heard the learned counsel for the petitioner and gone through the record. 8. It is contended by learned counsel for the petitioner that the vehicle in question was surrendered by the respondent himself on 26.4.2011, since he has paid only one instalment. Moreover, respondent was a defaulter and has violated the terms of the agreement, as such both the fora below have committed error in allowing the complaint and holding the petitioner, being guilty of deficiency in service. 9. The State Commission in its impugned order has observed; t is an admitted fact that, the respondent has raised a loan to the extent of Rs.26.040/- including the financial charges repayable in 12 monthly instalments at Rs.2,170/-. But the respondent has paid only one instalment. Therefore, the vehicle in question was forcibly seized. According to the appellants/OPs, the complainant himself has surrendered the vehicle as he could not pay the balance instalments. Since he has not paid the outstanding loan amount as on the date of sale, the respondent was due in a sum of Rs.70,170/, but it was sold only to the extent of Rs.29,000/-. Therefore, the DF hold that, purchase of the vehicle by raising loan by the respondent is a commercial transaction, the OPs are liable to claim reasonable interest at the rate of 18% p.a. on the amount due and calculated the interest on Rs.24,000/- from 23.09.2008 until the date of sale that is 20.5.2011. The vehicle in question was purchased on 23,09.2008 and the same was sold in public auction on 20.05.2011 that is nearly after three years. Taking into consideration the clause 11(a) in respect of any delayed payments, direct the appellants to pay Rs.16,500/-. In para -9 of the order, the DF has discussed about the total amount due by the respondent and the amount adjusted towards sale proceeds of the vehicle and also considering the interest payable by the respondent at 18% p.a. in our opinion, the DF is right allowing the complaint filed by the respondent/complainant. Therefore, we don see any factual or legal infirmity in the order under challenge passed by the DF. 10. The main defence of the petitioner before the District Forum as per its written statement was that respondent had paid only one instalment and he is defaulter. Moreover, respondent had surrendered the vehicle on its own by the surrender letter, dated 26.4.2011. 11. During the course of arguments, we asked the learned counsel for petitioner to show the surrender letter dated 26.4.2011. However, counsel for petitioner expressed his inability to show the same. Learned counsel and stated that the same is not with the petitioner. 12. When as per petitioner defence the respondent had surrendered the vehicle on its own vide surrender letter dated 26.4.2011, then that surrender letter was a material piece of evidence. However, petitioner for reasons best known to it, had failed to place on record the material piece of evidence. In the absence of this material piece of evidence, we have no option but to hold that the vehicle was forcibly seized by the petitioner in this case, which is against the settled principles of law. 13. It is well settled that under section 21(b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. 14. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654 has observed; lso, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora. 15. In view of the concurrent findings of facts given by both the fora below, we have no hesitation in holding that no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21(b) of the Act. Hence, the present revision petition stands dismissed. 16. No order as to costs.

 
......................J
V.B. GUPTA
PRESIDING MEMBER
......................
REKHA GUPTA
MEMBER

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