RESERVED

State Consumer Dispute Redressal Commission, Uttar Pradesh

Lucknow

Appeal No.  194  of 2013

Mahindra & Mahindra Finanacial Services Lucknow

                                                                                                …….Appellant

Versus

Suresh Kumar Shukla

                                                                                                ……Respondent

Present:-

1. Hon’ble Sri Udai ShankerAwasthi, Presiding Member.
2. Hon’ble Sri Mahesh Chand, Member.

Sri Gopal Ji Srivastav, Advocate for the Appellant.

Sri Abhishek Singh for the  Respondent.

Date:  06-01-2017                          

Judgment

Sri Mahesh Chand,Member-This Appealunder section 15 of Consumer Protection Act, 1986, has been filed by Mahindra & Mahindra Financial Services, Mahindra Tower, Faizabad Road, Lucknow against the order dated 19.10.2012, passed by learned District Consumer Dispute Redressal Forum, Sultanpur, in complaint case No 137/2004, Suresh Kumar Shukla Vs. Mahindra & Mahindra Financial Services, Mahindra Tower, Faizabad Road, Lucknow & others. In brief the facts of the case are in connection with the dispute regarding the payment of compensation of Rs 320,227/-to the complainant who got the loan of Rs 300,000/- from the Appellants-Opposite Party to purchase a Marshal Deluxe Jeep costing Rs 423939/-. The complainant paid a sum of Rs 139,000/- in cash on 21.2.2002 to the The parties entered into a Hire Purchase Agreement No 079711 on dated 1.3.2002. The loan amount was to be repaid in 33 installments  each of Rs 11750/-  spread over 33 months. An additional interest @ 3% per month was also to be paid on the amount of the defaulted installments, if any. The complainant paid  the amount of the installments as follows:-

As the complainant defaulted in making the payment of installments as per schedule, the said vehicle Marshal Jeep No UP-44D-9353 was forcibly repossessed by the muscle man of the Appellants- the opposite party No 2 of the Complaint Case from the Driver of complainant at Pyagipur and that too without any prior information to the Complainant. Later on dated 22.12.2003 the Appellant sent a notice the complainant wherein a balance of Rs 242,546/- was  shown due towards the complainant. The complainant immediately contacted the opposite party No 2 of the Complaint case. He directed the complainant to deposit a sum of Rs 80,000/- immediately. After making a request to grant some more time for depositing the amount, it was given up to 20.1.2004. When the complainant went to the office of the opposite party No2 on 20.1.2004, the opposite party No 2 refused to receive it in cash and asked to bring a bank draft of the said amount. When on 31.1.2004, the complainant reached the office of the Appellant-Opposite Party No-1, they refused to receive it and said that your vehicle has been auctioned. When the complainant enquired about the sale proceeds of the auction, whether the amount increased or decreased, they refused to tell any thing about the sale and asked to come later on. Ultimately, when on 1.6.2004, the opposite parties refused to divulge the details of auction sale of the vehicle and also refused to return the other original papers/ documents of the complainant, there was no other alternative but to file the complaint before the District Forum. In the complaint the following  prayer was made:

1. Return of the vehicle Marshal Jeep No UP-44-9353
2. Expenses of Rs 15,000/- incurred on travelling from Sultanpur to Fiazabad to and fro in connection of the vehicle.
3. Compensation of Rs 55,000/- for loss due to snatching the vehicle.
4. Compensation of Rs 10,000/- for mental agony.
5. Legal expenses of Rs 2,500/-

         The opposite parties contested the case and filed their written statement against the Complaint case before the District Forum. In the written statement the opposite party admitted that the said vehicle was financed by them for a sum of Rs 300,000/- and on this amount there was finance charge of Rs 87,750/-. It is also admitted that the complainant deposited a total sum of Rs 201,918/- . The complainant was informed on date 5.11.2003 that an overdue amount of Rs76,500/- against the 6 installment was due towards him and asked to deposit immediately. Again on 4.12.2003, the complainant was informed that a balance of Rs 51,000/- against the 4 installments  was due towards him and if he fails to deposit the same, the opposite party will be entitled to repossess the vehicle as per terms and conditions of the Hire Purchase Agreement . When the complainant failed to deposit the balance amount, the said vehicle was repossessed as per terms and conditions of the Agreement. The said vehicle was auctioned for a sum of Rs 240,000/- on 22.1.2004. The complainant was informed that whatever the amount is increased, it will be refunded to the complainant as and when it is received from the Mumbai office as the right to release the said extra amount rests with the Mumbai office. In the written statement the opposite parties have stated that a sum of Rs 36,343/- remains balance towards the Complainanat after making all adjustments and they are ready to refund it to the complainant. But later on the opposite party no 1 filed a supplementary affidavit stating therein that there was an error in the outstanding balances. The due amount of the complainant was Rs 18234/- only and not Rs 36343/- and prayed for allowing the amendment in the written statement.  The opposite parties also pleaded that as per clause 22 and 23 of the Hire Purchase Agreement, that any dispute shall be adjudicated by the Arbitrator in Mumbai, headed by a Judge to be appointed by Mumbai High Court, hence the District Forum does not have any jurisdiction to decide the complaint case. With these pleas the opposite parties pleaded to dismiss the complaint case. The District Forum after hearing the arguments of the learned counsels of both the parties and perusing their evidences passed the following order:-

“ The complaint is allowed against the opposite parties and the opposite parties are directed to pay a sum of Rs 320,227/- (Rupees three lakh, twenty thousand two hundred and twenty seven) to the complainant as deposited by him within a period of one month of passing the order and also pay interest @ 9% from the date of filing the complaint to the due date and a compensation of Rs 5,000/- and legal expenses of Rs 1000/-“.

  Being aggrieved with the above order this appeal has been filed. The Appellant has taken the ground that the learned District Forum has erred in holding that the complainant is entitled to get the sum of Rs 320,227/- while the complainant has not demanded the amount as awarded by the learned District Forum. The learned forum has also erred in not appreciating the fact that the complainant was the defaulter in paying the EMI’s of the loan. The learned District Forum has failed to appreciate the arbitration clause of the Hire Purchase Agreement. The vehicle was sold within the knowledge of the complainant and the  District Forum did not have any jurisdiction to entertain the complaint after the sale of the vehicle. The appellant alleged that the impugned order is arbitrary and pleaded that it is  liable to be set aside. The respondent also filed the objections to the Appeal and stated that the appeal has been filed at a delay of 2 months and 14 days. The grounds of delay condonation are frivolous. The ground of official procedural delay is not  a sufficient reason to be accepted. The respondent prayed to dismiss the appeal on the basis of delayed filing . The respondent has stated in the objections that the learned District Forum has rightly allowed the complaint and awarded the amount of Rs 320,227/- along with 9% interest  and other compensations against the Appellants. The respondent pleaded for dismissal of the appeal.

               We have heard the arguments of the learned counsels of both the parties and perused the record. The appeal has been filed at the delay of 2 months and 14 days. In the application of delay condonation supported by the affidavit, the reason of delay has been explained. The original file of the agreement is stated to be missing. Hence an FIR was lodged with Police Station, Sadar Kotwali, Sultanpur. Missing of the original file of agreement caused a delay in filing the Appeal. In the interest of justice we are satisfied with the explanation given in the affidavit. Hence the delay in filing the Appeal is condoned.It is an admitted fact that the complainant  had take a loan of Rs 300,000/- from the respondent to purchase a Marshal Jeep. The loan amount was to be repaid in 33 monthly installments each of Rs 11,750/-. It is also evident from the record the complainant defaulted in making the timely payment of the installments. It is also admitted that the Appellant repossessed the  said vehicle and auctioned it very quickly. But it is also evident that no prior notice of repossession was given to the complainant. No information of its auction was given to the complainant. The amount of action sale was also not communicated to the complainant. For the first time the sale price  was made public only after filing of the complaint and that too through the written statement/objections in the complaint case that it was sold for a sum of Rs 240,000/-. Excess amount of the sale proceeds was also not returned to the complainant. Now the question  arises that whether it is justified to award the amount which has not been demanded by  the complainant in his complaint. The complainant had demanded the return of his vehicle and other compensatory reliefs.On the otherside,the snatching of the vehicle is also not justified. The snatching of the vehicle with the help of muscle men can not be justified what so ever the terms and conditions be provided in the Hire Purchase Agreement. In the matter of Tata Finance Ltd., Versus Francis Soeiro, FIRST APPEAL NO. 720 of 2003 (From the order dated 28.8.2003 passed in Complaint No. 40 of 2002 by the State Commission, Goa) the Hon’ble National Commission has made observations as follows:

“Further, it is to be reiterated that to take possession of the vehicle by use of force cannot be justified. It is to be stated that the Complainant had not used the vehicle. He had used the vehicle only for 2 to 3 months and the vehicle was seized from the Complainant. Thereafter, it was auctioned and sold unjustifiably at a low price. By such an act of the appellant, a poor man who has taken loan for purchase of the chassis and for building body has lost his life saving and is made a debtor. His entire dream of having a vehicle for self-earning/employment is frustrated for years together.”

In the instant case the vehicle was snatched away by the muscleman of the Appellants and auctioned. Before snatching the vehicle, no notice was served upon the Respondent-Complainant. The copies of the other notices have also not filed as a piece of evidence before the District Forum.  The Complainant was not informed about the auctioning of the vehicle and also about the amount of its sale proceeds. It caused a lot financial loss to the complainant and ruined his means of livelihood. As the vehicle has been sold out through auction, it was not possible to return the vehicle, in these circumstances there was no other way out to compensate the complainant but to pay the sum as awarded by the learned District Forum. There is no error in the impugned Judgment of the learned District Forum and no need to interfere in it. The Appeal is liable to be dismissed.

Order

          The Appeal is dismissed. Parties will bear own costs. Hence No order to the costs.

(Udai Shanker Awasthi)                                       (Mahesh Chand)

   Presiding Member                                                     Member

S.k. st. ct-5