BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No. 74 of 2014
Date of institution: 03.02.2014
Date of Decision: 28.04.2015
Gian Singh son of Ronaki Ram, resident of village Navagram P.O. Jhajra, Tehsil Nalagarh, District Solan (H.P.)
……..Complainant
Versus
1. Sri Ram Transport Finance Co. Ltd., SCF No.101-102, 2nd Floor, Phase-11, SAS Nagar (Mohali), Punjab through its Branch Manager.
2. Kotak Mahindra Bank Ltd., SCO No.153-154, Sector 9-C, Madhya Marg, Chandigarh (U.T.) through its authorized signatory/Manager.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri A.B. Aggarwal, Member.
Present: Shri N.S. Vashist, counsel for the complainant.
Shri Munish Kumar, counsel for OP No.1.
Shri G.S. Ahluwalia, counsel for OP No.2
(Mrs. Madhu P. Singh, President)
ORDER
The complainant Gian Singh has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to:
(a) OP No.1 to pay Rs.5,00,000/- as loss in his income/livelihood and Rs.2,50,000/- as damages for mental agony, harassment on account of negligence, deficiency in service and unfair trade practice and also to pay him Rs.20,489/- fraudulently charged for insurance and service charges. To pay him actual loss of Rs.11,50,000/- being cost of the vehicle.
(b) OP No.2 to pay Rs.37,488/- fraudulently debited by it as extra charges.
(c) OPs to pay him Rs.15,000/- as litigation expenses.
OR
(d) OP No.1 to handover the possession of the JCB in a good and working condition as it was at the time of taking over from the complainant and on failure to handover the JCB, its cost alongwith NOC be given to the complainant.
The complainant’s case is that he purchased a second hand JCB Machine for earning his livelihood which was got financed from Opposite Party (for short ‘the OP’) No.2 vide agreement dated 28.06.2008. The loan amount was to be repaid in 48 equal monthly installments of Rs.30,400/- per month. OP No.2 showed financed amount as Rs.9,37,488/- but only Rs.9,00,000/- was released as loan amount. The complainant had been paying the monthly installments of the loan regularly to OP No.2 and paid a sum of Rs.4,50,200/-. The complainant could not pay two installments and OP No.2 threatened him to take possession of the vehicle of the complainant. The complainant was forced to get refinanced his vehicle from OP No.1 on 18.11.2009 and agreement was executed in this regard. Before advancement of the loan, OP No.1 took possession of the vehicle and forcibly debited the insurance charges of Rs.15,489/- and service charges Rs.5,000/- without the consent of the complainant. OP No.1 also informed him that two installments of the loan have been debited in advance but as per statement only amount of one installment had been debited. OP No.1 sanctioned loan of Rs.8,35,011/- and paid this amount to OP No.2 as full and final settlement and OP No.2 issued NOC Ex.C-10 in favour of the complainant on 10.12.2009. After sanction of the loan the vehicle was hypothecated with OP No.1 on 19.01.2010 but inspite of this OP No.1 had not handed over the vehicle to the complainant. The complainant came to know from the notice issued by OP No.1 on 10.01.2011 through Advocate that OP No.1 had sold the vehicle of the complainant on 12.08.2010 without his knowledge/intimation and consent for throwaway price of Rs.6,80,000/- whereas the value of the vehicle at the time of financing by OP No.2 was assessed as Rs.11,50,000/-. The vehicle was in possession of the OPs since November, 2009 and the complainant could not earn his livelihood and has suffered a loss of Rs.50,000/- per month.
With these allegations, the complainant has sought directions to the OPs to pay him Rs.5,00,000/- as loss of income and livelihood; Rs.2,50,000/- as damages for mental agony, harassment; OP No.1 to pay him Rs.20,489/- fraudulently charged for instance and service charges and also refund him Rs.11,50,000/- as cost of the vehicle; OP No.2 to pay Rs.37,488/- fraudulently debited as extra charges; the OPs to pay him Rs.15,000/- as litigation expenses. The complainant has further prayed that or in the alternative OP No.1 be directed to handover the possession of the JCB machine in a good and working condition.
2. OP No1 in the written statement took up preliminary objections that the complainant has concealed the material facts as he had failed to pay the regular installments of the vehicle got financed by him from OP No.2. The complainant also does not fall under the definition of Consumer as the JCB was purchased by him for commercial usage. From the tele verification report Ex. OP-6 conducted by the representative of the OPs it was found that the complainant is running business of transport and he has already two tipper and one JCB Machine before he got financed the aforesaid vehicle. The complainant himself surrendered the vehicle without documents and without tyres and surrender letter was duly signed by him at the branch office of OP No.1 on 21.11.2009. The complainant vide his writing dated 22.11.2009 confirmed regarding clearance of his debt and also agreed to hand over the copies of documents of registration etc. by hypothecate the same to OP No.1 but the complainant failed to do the same. The complainant OP No.1 vide his letter dated 24.03.2010 (Ex.OP-9) showed his inability to pay the installments due to losses in his transport business and gave the right to OP No.1 to dispose of the vehicle and adjust such amount so received after sale of the vehicle in his loan account. It was also agreed that in case after sale of the vehicle any amount is found due, he would be liable to pay the same to OP No.1. The complainant also annexed Form 29 and Form 30 duly signed for the disposing the vehicle. Accordingly the vehicle was sold to the highest bidder in open auction and intimation was given to the complainant on 12.08.2010 and the amount so received was adjusted in his loan account. However, an amount of Rs.2,80,118.72 is still due against the complainant which he has failed to pay inspite of repeated requests. OP No.1 approached the Sole Arbitrator Shri B.R.Bansal at Chandigarh in this regard. Denying any deficiency in service on its part, OP No.1 has sought dismissal of complaint.
3. OP No.2 in its separate written statement has pleaded that complaint is barred by limitation. A loan of Rs.9,37,488/- was sanctioned on 28.06.2008. However, an amount of Rs.47,488/- was deducted towards advanced EMI, DCR, SCR, KSS ILR/CAR. An amount of Rs.8,89,600/- was disbursed to the complainant. The loan was taken over by OP No. 1 on 18.11.2009. Earlier complaint filed by the complainant at District Consumer Forum, Solan was returned on 12.11.2013 for want of territorial jurisdiction. OP No.2 had nothing to do with the JCB machine after closure of the loan account on 18.11.2009. Denying any deficiency in service on its part, OP No.2 has also sought dismissal of complaint.
4. Evidence of the complainant consists of his affidavits Ex.CW-1/1 and Ex.CW-1/2; copies of documents Ex.C-1 to C-28.
5. Evidence of OP No.1 consists of affidavit of Deepak Kumar, its authorized representative Ex.OP-1/1; affidavit of Ankit Silhi Ex.OP-1/2 and copies of documents Ex.OP-3 to Ex.OP-11.
6. Evidence of OP No.2 consists of affidavit Kanwar Lal Chaudhary, its Manager Legal Ex.OP-2/1 and copies of documents Ex.OP-1 and OP-2.
7. We have heard learned counsel for the parties and gone through their written arguments.
8. Admittedly the complainant has availed the loan facility to the tune of Rs.9.00 lacs from OP No.2 vide agreement dated 28.06.2008 for purchase of second hand JCB Machine bearing registration No.HP-51-B-9815 for earning his livelihood. As per terms of agreement the complainant has repaid a total sum of Rs.4,50,200/- as on 13.10.2009 and could not repay the balance amount due to some unavoidable circumstances and, therefore, became a defaulter. In order to save himself from further complications, the complainant opted to get his vehicle re-financed from OP No.1 and signed the loan agreement dated 18.11.2009 Ex.C-2. On the day when the OP No.1 took over the loan of the outstanding amount due to OP No.2, the total amount was shown as Rs.8,35,011/-. The grievance of the complainant against OP No.2 that at the time of squaring up his loan by way of re-finance by OP No.1, OP No.2 has not disclosed the exact and correct amount payable by him as outstanding loan amount of his previous loan with OP No.2. Thus, by not disclosing the exact amount, the complainant has been kept in dark as the complainant against the sanctioned loan of Rs.9.00 lacs has shown in the statement of account Rs.9,37,488/- . The difference of Rs.37,488/- has not been accounted for in the statement of account issued by the OP No.2 to OP No.1 while taking over the loan of the complainant. Thus, the non disclosure of correct and proper information has caused loss and mental agony to the complainant.
9. In order to resolve the issue of unaccounted amount of Rs.37,488/- it will be appropriate to sieve through the reply and evidence of OP No.2 in this regard. As per OP No.2 the said amount has been charged from the complainant towards insurance premium of the vehicle in question. If that be so, then OP no.2 was under obligation to handover the insurance policy to the complainant as well as disclose about the purchase of the insurance to the complainant at the time of execution of loan agreement. There is nothing on record to show that such information was disclosed to the complainant at an appropriate time or the policy document was provided to him during the currency of loan with OP No.2. So much so that even during the course of proceedings with much persuasion a copy of the policy was provided to the complainant by OP No.2. Thus, the act of non disclosure of amount Rs.37,488/- received for insurance purpose and non supply of the insurance policy to the complainant during the currency of loan is an act of deficiency in service and unfair trade practice on the part of OP No.2.
10. So far as OP No.1 is concerned, the grievance of the complainant is that OP No.1 after taking over the loan of Rs.8,35,011/- from OP No.2 on 18.11.2009 vide Ex.C-8 has taken over the possession of the vehicle in question from OP No.2 on 21.11.2009 as is evident from Ex.C-4 and thereafter the vehicle was never handed over to him by OP No.1 despite its having been hypothecated in the official records on 19.01.2010 Ex.C-11. Thus the complainant has been deprived of use of his vehicle, which he has got re-financed for earning his livelihood. The complainant was also made to sign certain blank papers by OP No.1. The value of the vehicle as per OP No.1 at the time of taking over the loan from OP No.2 was assessed by OP No.1 as Rs.11,50,000/- as is evident from Ex.C-1. Further at the time of taking over the loan, OP No.1 has deducted two advance installments from the loan amount sanctioned as detailed in Ex.C-3. Instead of handing over the vehicle to the complainant after its hypothecation in favour of OP No.1 on 19.01.2010, OP No.1 without the consent of the complainant and at his back sold of the vehicle in a clandestine manner and the sale proceeds of the vehicle to the tune of Rs.6,80,000/- has been adjusted by the OP No.1 unilaterally and arbitrarily against the loan account of the complainant. As per the complainant he has learnt about sale of the vehicle from the legal notice dated 10.01.2011 issued by OP No.1 at a price of Rs.6,80,000/- on 12.08.2010 by OP No.1 and through legal notice Ex. C-12 OP No.1 demanded an outstanding balance amount of Rs.2,80,118/-. The complainant has challenged the legal notice alleging deficiency in service and unfair trade practice on the part of OP No.1 on the ground that the possession of the vehicle was never given to him after 19.01.2010 i.e. from the date of hypothecation of the vehicle in favour of OP No.1, sale of the vehicle in a clandestine, unilaterally and in arbitrary manner without the consent of the complainant, depriving him of daily earning as the vehicle has been got re-financed by him from OP No.1 for earning his livelihood.
11. In order to determine the fact whether the complainant has been deprived of the possession of the vehicle after 19.01.2010, it will be important to look into certain vital details pertaining to the transactions between the parties.
12. Admittedly the complainant has approached OP No.1 for re-finance of the vehicle No.HP-51-B-9815 which was earlier financed by OP No.2. It is admitted that OP No.1 agreed to take over the loan of OP No.2 and with the consent of the parties the outstanding loan amount of Rs.8,35,011/- being full and final settlement has been taken over by OP No.1 from OP No.2 vide Ex.C-8 and OP No.2 issued NOC dated 10.12.2009 Ex.C-10 in favour of the complainant. It is admitted that the loan agreement was duly signed by OP No.1 and the complainant on 18.11.2009 Ex.OP-7. It is admitted fact that after signing of the loan agreement the possession of the vehicle in question was taken over by the OP No.1 from the complainant on 21.11.2009 as per inventory of the vehicle report Ex.C-4. Further it is admitted that the vehicle in question was got hypothecated in the official records by the complainant, in favour of OP No.1 on 19.01.2010. There is nothing on record to show that from 21.11.2009 to 19.01.2010 the vehicle has ever been handed over to the complainant. Further there is nothing on record to show by OP No.1 that after the hypothecation dated 19.01.2010 the vehicle was ever handed over to the complainant. Thus, in the absence of any evidence in this regard i.e. handing over of the vehicle in question by OP No.1 to the complainant after 21.11.2009, an adverse inference against OP No.1 is writ large of depriving the possession of the vehicle in question to the complainant. Thus, the act of OP No.1 in this regard is an act of deficiency in service and unfair trade practice.
13. Regarding sale of the vehicle in question by OP No.1, in the event of default in making the payment by the complainant, as per the complainant he has never given any consent to sell the vehicle and recover the amount from the sale proceeds thereof. The perusal of Ex.OP-9, having been relied by the OP No.1 to show the valid consent of the complainant to sell the vehicle in question, totally belie the stand of OP No.1. The document Ex.OP-9 though is duly signed by the complainant reveals entirely different registration number than that of the registration number of the vehicle of the complainant. The registration number of the vehicle of the complainant is No.HP-51-B-9815 whereas Ex.OP-9 reflects the vehicle registration No. as JCB-HP-12-B-9815. The document per se goes to show that the blank papers was got signed from the complainant at the time of refinance of this vehicle by OP No.1, have been subsequently used by OP No.1 to show the consent of the complainant for sale of the vehicle. Not only Ex.OP-9 even on Ex.OP-8 the number of the vehicle has been mentioned as HP-12-B-9815 whereas the vehicle of the complainant bears registration No.HP-51-B-9815. Thus both the documents have been prepared by OP No.1 on the blank papers got signed from the complainant. Thus, the act of OP No.1 in selling the vehicle at the back of the complainant without having proper consent is an act of unfair trade practice and deficiency in service. No reliance can be placed on Ex.OP-9 to prove the valid consent of the complainant as the veracity of this document is doubted. Further even if it is believed to be a true document, the complainant has given the consent for the vehicle which does not belong to him, then how come this consent can be treated to be a proper and valid consent for sale of the vehicle. Therefore, the act of OP No.1 in retaining the unauthorized possession of the vehicle after 19.01.2010 and further sale of the vehicle without proper and valid consent of the complainant is an act of deficiency in service and unfair trade practice.
14. Thus both the OPs have indulged into unfair trade practice and are deficient in providing service to the complainant for which the complaint deserves to be allowed and complainant deserves to be compensated.
15. In view of the above discussion, we allow the present complaint with the following directions to:
(a) OP No.1 to handover to the complainant the JCB machine in question in a good and working condition, to the satisfaction of the complainant.
OR
in the alternative OP No.1 to pay to the complainant Rs.11,50,000/- (Rs. Eleven lacs fifty thousand only) towards asset value of the vehicle as per Ex.C-1, with interest thereon @ 9% per annum w.e.f. 21.11.2009 i.e. the date of handing over of the vehicle to OP No.1 by the complainant, till actual payment.
(b) OP No.1 to pay to the complainant compensation of Rs.5.00 lacs (Rs. Five lacs only) on account of loss of livelihood in the absence of the vehicle.
(c) OP No.1 to pay to the complainant a lump sum compensation of Rs.1,00,000/- (Rs. One lac only) on account of mental agony, harassment and costs of litigation.
(e) OP No.2 to pay to the complainant a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) on account of non providing him the insurance policy of the vehicle during the currency of loan period availed from it by the complainant.
Compliance of this order be made within a period of one month from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
April 28, 2015.
(Mrs. Madhu P. Singh)
President
(A.B. Aggarwal)
Member
