KUNDAN KUMAR KUMAI
This is an appeal u/s 41of the Consumer Protection Act, 2019, against the judgement dated 25/07/2023 passed by the Ld. DCDRC, Balurghat, Dakshin Dinajpur, in CC/50/2021.
Brief facts of the Appellants’ case, is that, the Respondent no.1/Complainant, had on 30/07/2018, met with the Respondent no.2/OP no.1, in order to purchase a tractor with hood bumper and other accessories, for cultivation purpose and had booked one Swaraj 744 FE tractor with hood bumper, against the price of Rs.8,65,000/- (Rupees eight lakhs sixty-five thousand) only, inclusive of road tax insurance, hood bumper, etc., against which he had advanced Rs.2,40,800/- (Rupees two lakhs forty thousand eight hundred) only. In the month of November 2018, the Respondent no.1/Complainant had completed the purchase by obtaining private finance amounting to Rs.6,28,000/- (Rupees six lakhs twenty- eight thousand) only against EMI @ Rs.47,890/- (Rupees forty-seven eight hundred ninety) only, for the first 5 instalments and thereafter @ Rs.49,800/- (Rupees forty-nine thousand eight hundred) only, after every 3 months, from the Appellants no. 1 & 2. The Respondent no.1/Complainant had paid 8 instalments amounting to Rs.3,88,850/- (Rupees three lakhs eighty-eight thousand eight hundred fifty) only, up to June 2021 and Rs.20,000/- (Rupees twenty thousand) only, out of Rs.49,850/- (Rupees forty-nine thousand eight hundred fifty) only, in July 2021. On 05/08/2021, the Appellants had taken custody of the tractor dishonestly after forcefully taking advantage of the absence of the Respondent no.1/Complainant, thus committing harassment and irreparable loss and mental pain. In spite of repeated requests, the Appellants failed to return the tractor and instead demanded further Rs.1,17,000/- (Rupees one lakh seventeen thousand) only, from the Respondent no.1/Complainant. The Respondent no.2/OP no.1 had not delivered the Invoice, RC Book, Insurance Certificate, Tax Coupon, EMI schedule, Statement of Accounts regarding the payment of instalments by the Respondent no.1/Complainant, till date. The Respondent no.2/OP no.1, had also kept the Voter’s Id. Card and Adhar Card of the father and brother of the Respondent no.1/Complainant, which had not been returned till date.
Thus, the Respondent no.1/Complainant, facing great financial loss and suffering mental agony had approached the Consumer Affairs & Fair Business Practice, Balurghat, Dakshin Dinajpur, on 24/08/2021, but no fruitful result could be achieved in the absence of the Appellants. The Respondent no.1/Complainant, had thereafter lodged a written compliant before the Patiram PS, by post on 29/09/2021. Finding no alternative, the Respondent no.1/Complainant, had filed this case before the Ld. DCDRC, Balurghat, Dakshin Dinajpur, with necessary prayers.
The Respondent no.2/OP no.1 did not appear to contest the claim and the case was decided ex-parte, against them.
The Appellants appeared to contest the claim, by filing written version, wherein they mainly denied the claims made by the Respondent no.1/Complainant. It was further stated that the Respondent no.1/Complainant had obtained finance amounting to Rs.6,28,232/- (Rupees six lakhs twenty-eight thousand two hundred thirty-two) only, vide loan agreement dated 02/11/2018, wherein the loan would have to be repaid by 57 instalments, on quarterly basis and first 5 instalments had been fixed at Rs.47,890/- (Rupees forty seven thousand eight hundred ninety) only, which had started from 10/02/2019 and the Respondent no.1/Complainant had repaid the first 5 instalments. Thereafter, the instalment amount had been fixed at Rs.49,798/- (Rupees forty-nine thousand seven hundred ninety-eight) only, but he failed to repay the same, in spite of having capacity to repay the same.
But as per the Clause of the Loan Agreement, the terms and conditions of the Loan Agreement being not fulfilled, the Appellants had been empowered to repossess the vehicle, which was done on 05/08/2021. But unfortunately, the vehicle which had been repossessed and kept in the stock yard, had been stolen along with 6 other vehicles, by some unknown miscreants and an FIR had been lodged before the Banshihari PS, on 14/12/2021 and Banshihari PS Case no.237 dated 14/12/2021, had been started and the investigation of which was still pending. Therefore, there was no negligence as the Clauses of the Loan Agreement had been followed and the claim was liable to be dismissed.
After going through the materials and evidence on record, the Ld. DCDRC, Balurghat, Dakshin Dinajpur, had passed the impugned order, directing the Appellants to pay jointly or severally a sum of Rs.7,97,343/- (Rupees seven lakhs ninety seven thousand three hundred forty-three) only, together with interest @ 8% p.a. from 05/08/2021, till full realization, within 45 (forty-five) days from the date of passing of the order. The Appellants were further directed to pay Rs.10,000/- (Rupees ten thousand) only, towards compensation and Rs.10,000/- (Rupees ten thousand) only, as litigation cost.
Being aggrieved by the above order, the Appellants preferred this instant appeal, on the ground that the Ld. DCDRC, Balurghat, Dakshin Dinajpur, erred in law and facts, while passing the impugned order.
Decisions with Reasons
Ld. Advocate for the Appellant, at the time of final hearing, had submitted that the Respondent no.2/Complainant, being an admitted defaulter, had defaulted in the repayment of the EMI, resulting in the vehicle being seized as per the terms and conditions of the Loan Agreement. As both the parties were bound by the terms and conditions of the Loan Agreement, the question of interference in the said terms and conditions of the Loan Agreement was not permissible by law. It was also pointed out, even though the joint written statements of the Appellants had been accepted by the Ld. Trial Commission, the judgement had been passed ex-parte against the Appellant no.2, on the ground that the notice had been served in the address of the Respondent no.2/OP no.1, which was quite absurd as the Appellant no.2 had no connection with the Respondent no.2/OP no.1. It was also argued that the Ld. DCDRC, Dakshin Dinajpur, had erroneously arrived at the figure of Rs.5,54,346/- (Rupees five lakhs fifty-four thousand three hundred forty-six) only, when the admitted amount by the Respondent/Complainant was Rs.4,08,850/- (Rupees four lakhs eight thousand eight hundred fifty) only. He had relied in the judgements passed in Arindam Basu & Ors. Vs. Amal Kumar Bose & Ors. reported in AIR 206 Cal 295, in State Bank of India Vs. S B Shah Ali & Ors. reported in AIR 1995 AP 134, in Charanjit Singh Chadha & Ors. Vs. Sudhir Mehra reported in (2001)7 SCC 417, in the Managing Director, Orix Auto Finance (India) Ltd. Vs. Shri Jagmander Singh & Anr. reported in (2006) 2 SCC 598, in General Assurance Society Ltd. Vs. Chandmull Jain reported in AIR 1966 SC 1644 and in Bharthi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. Report in (1996) 4 SCC 704.
Ld. Advocate for the Respondent no.1/Complainant, on the other hand, had countered that the Respondent no.1/Complainant, had purchased the tractor for his agricultural needs and the Appellants had seized the same when it was the peak time for the agriculture season. Moreover, the Respondent no.1/Complainant, had repaid substantially and therefore the seizure of the vehicle which had been done dishonestly and forcefully was illegal. That apart the seized tractor had been allegedly lost, from the custody of the Appellants and thereby dishonestly misappropriated the money of the Respondent no.1/Complainant. Under the circumstance, the impugned order passed by the Ld. DCDRC, Balurghat, Dakshin Dinajpur, be upheld.
The facts of the case are not disputed, in fact, even the default and the subsequent repossession of the tractor, in question are not disputed. The only discordant note is that even though the Respondent no.1/Complainant had mentioned in his complaint that till 05/08/2021 he had repaid Rs.4,08,850/- (Rupees four lakhs eight thousand eight hundred fifty) only, but from the statement of account provided by the Appellants even after considering the unpaid instalments the amount of Rs.5,76,703.52 (Rupees five lakhs seventy-six thousand seven hundred three point five two) only, appears to have been repaid out of the claimed amount of Rs.9,36,622/- (Rupees nine lakh thirty-six thousand six hundred twenty-two) only . However, as the default had been made, the Appellants had following the clauses of the Loan Agreement, repossessed the vehicle and in the absence of any allegation of forcible repossession, the repossession also appears to have been done as per law. But the vehicle after repossession appears to have been stolen on 16/10/2021, on the basis of the FIR lodged on 14/12/2021. In other words, within a little over of 2 months of repossession, the vehicle had been stolen after being repossessed on 05/08/2021. The Respondent/Complainant was therefore deprived of filing revival application as provided under clause 6.1 of the Loan Agreement. That apart, the Respondent no.1/Complainant, was also deprived of participating in the auction of the repossessed tractor. Under the circumstance, the Respondent no.1/Complainant, was deprived from regaining the vehicle for no fault of his, which was completely due to the negligence on the part of the Appellants, who had failed to safeguard the repossessed vehicle. This, not only resulted in financial loss, but also resulted in mental pain and agony, to the Respondent no.1/Complainant. Therefore, considering the amount paid and the sufferings undergone, an amount of Rs.4,00,000/- (Rupees four lakhs) only, along with further Rs.20,000/- (twenty thousand) only towards litigation cost, would suffice for such deprivation, which, would be liable to be paid, by the Appellants, jointly or severally.
In view of the above findings and observations, even though the reasoning of the impugned order could not be appreciated, the instant appeal fails and the impugned order needs to be modified.
It is therefore,
ORDERED
That the instant appeal be and the same is dismissed on contest, but without cost.
The impugned order is modified to the extent, mentioned in the body of the judgement.
The Appellants are directed to comply with directions, mentioned in the body of the judgement within 45 days, from the date of receipt, of the copy of this order.
Copy of the order be sent to the parties, free of cost.
Copy of the order be sent to the Ld. DCDRC, Balurghat, Dakshin Dinajpur, for necessary information.
Statutory deposits, if any, be returned, from whom received.
Jt. Registrar, Siliguri Circuit Bench of WBSCDRC, Kolkata, to do the needful.