Tripura

Dhalai

CC/2/2021

Sri Dipak Paul. - Complainant(s)

Versus

Tarasankar Motor pvt.Ltd. and Another. - Opp.Party(s)

Sri. Sudhangsu Das.

20 Mar 2023

ORDER

 

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM,

DHALAI DISTRICT, KAMALPUR

 

Present: Surya Deo Singh

Date: The 20^th Day of March, 2023

Case No: 02/CC/KMP/2021

PETITIONER:

Sri. Dipak Paul, S/o: Late Lalit Mohan Paul, of Kalachari, P/o: Manik Bander,

Dhalai, Tripura.

 

RESPONDENTS:

1.    Tarasankar Motor Pvt. Ltd,Chinaihani, Aitport Road, Agartala, West Tripura, Pin: 799009.
2. Cholamandalam Investment and Finance Company Ltd. Dare House, 2, NSC Bose RD, PARRYS, Chennai, 600001, India.

COUNSEL(s):

For the petitioner    : Ld. Advocate Sri. Sudhangshu Das.

For Respondent/OP No.1: (i) Ld. Advocate Bhaskar Deb.

                               (ii) Ld. Advocate Debasree Das Kilikdar.

                              (iii) Ld. Advocate Sankar Lal Chakraborty.

                              (iv)Ld. Advocate Soumyadeep Bhattarcharjee.

                              (v) Ld. Advocate Victor Ghosh.

                              (vi) Ld. Advocate Ramij Ali.

                              (vii)  Ld. Advocate Manojit Das.

                              (viii) Ld. Advocate  Saikat Rahaman.

 

For Respondent No.2: Ld. Advocate Sri Prabal Kumar Ghosh.

Date of filing          : 02.03.2021

Date of argument  : 20.02.2023

Date of judgment  : 20.03.2023

 

JUDGMENT

1. The instant complaint was filed by one Dipak Paul against respondents namely Tara Shankar Motor Pvt Limitted, Chinaihani and Cholammandalam Investment and Finance Company Limited under  Consumer Protection Act. The complainant sought for compensation of Rs.4,9,999/- from the respondents.

 

2)      The fact of the case as can be gathered from the complaint petition and the evidences collected is that the complainant purchased one vehicle (Mahindra Boloro Maxi Truck Plus CBC 1.2T BS (iv) PS from respondent No.1 the Tara Shankar Motor Private Limited, Chinaihani, Airport Road, Agartala, by taking loan from respondent No.2, the Cholamandalam Investment and Finance Company Limited. He purchased the said vehicle on 30-05-2018. The complainant alleged that the vehicle was not working properly since the time of purchase and several times he informed the authorities of Tara Shankar Motor Pvt Limited, but the company did not resolve his dispute. He stated that during the period of Lock-down due to Corona Virus, his business was down and he suffered losses. It appears that he was not able to pay 3 EMIs of his vehicle and owing to his failure to pay the EMI, the finance company namely Cholamandalam Investment and Finance Company Limited took away his vehicle. He made several requests to the finance company to return his vehicle and he even assured that he will pay all the EMI but the finance company did not pay any heed to his request. On the above factual ground, the complainant has filed the instant complaint against the respondents praying for compensation.

 

3)      After the complaint was lodged notice was issued upon the respondents. On receiving the notice the respondents appeared and submitted written statements. Respondent No.1, Tara Shankar Motor Pvt Limited, by written statement denying all allegations made upon it by the complainant. OP No. 1 submitted that after purchase of the vehicle, the complainant availed many services from the show room including his 3 free services and during the aforesaid services, at no point of time, the complainant raised any complaint regarding the allegations. In support of the contention, respondent NO.1 submitted copies of vehicle history record. It has been further submitted by respondent No.1 that even after warranty period, showing good gesture, provided 3 servicing and repair for rear carrier rust problem on 06-02-2020 without any consideration. Copy of service history of 06-02-2020 has been submitted by respondent No.1 to support his contention. It is further submitted that on 20-04-2021 the complainant took his vehicle to the workshop and the vehicle was returned on the same date after servicing. Copy of service history has been submitted. It is further submitted that the complainant during his visit to the workshop never made any complaint regarding the fitness of his vehicle. The complainant had only visited the showroom for availing his free servicing or for minor repair works which are very much normal for any commercial vehicle that run regularly on the road. It is also submitted that the complainant never made any official complaint regarding the fitness of his vehicle. Further, it is submission of the respondent No.1 that they have got no connection whatsoever with the   taking away of the vehicle of the complainant by respondent No.2.

 

4)      Respondent No.2 namely the Cholamandalam Investment and Finance Company Limited also submitted written statement. From the written statement it appears that the complainant and his wife Smt. Mira Paul took loan of Rs.5,51,015/- from them to repay @ of Rs.15,300/- per month. The loan was to be repaid in 47 monthly installments and there was agreement that the vehicle would be hypo-thecated to them. It is further submitted by respondent No.2 that the complainant after taking the loan, executed an agreement and in clause-VI of agreement of the said agreement, the repaying procedure has been mentioned. It is further stated that the complainant have been defaulting payment of his monthly installments and time and again he was informed to clear the dues installments.  It is stated that, by dated 05-10-2020, the complainant and the co-borrower (wife of the complainant) made a default of Rs.3,97,772/-and by communication dated 06-10-2020, the complainant was informed that in case he fails to make the full payment, there would be no other option but to take possession of the vehicle as per the agreement made between them. It is alleged that the complainant despite notice being served, did not make any contact with them nor did he made payment of the defaulted amount.  Subsequently a pre-sale letter was issued to the complainant on 15-02-2021 informing him that the total out standing due is Rs.3,84,533/- and he was also informed that the agreement shall stands terminated if the dues is not paid within 10 days from the date of receiving the letter. But the complainant did not pay any heed to the notice and on 11-03-2021 the vehicle of the complainant was taken into possession by them and subsequently the vehicle was sold for an amount of Rs.3,78,000/-. The respondent/ OP no. 02 submitted that a total amount due by the complainant was Rs.3,90,024/-. It appears that the total amount due by the complainant could not recovered by sale of the vehicle and therefore, by notice dated 10-04-2021, the complainant was again asked to repay the balance amount of Rs.1,23,825/-.

 

5)      In connection with the case the complainant submitted his examination in chief by way of affidavit. He was also cross-examined by the opposite parties. In his examination- in- chief, he stated that he purchased one vehicle on 31-05-2018 from OP No.1 by taking loan from OP No.2, the Cholamandalam Investment and Finance Limited. He paid down payment of Rs.1,05,376/-. After purchase it was observed that the vehicle was not in good condition. The machinery of the vehicle used to break down on several occasions and for this reason he suffered huge financial loss. He stated that huge expenditure has been incurred by him in repairing the vehicle. He further stated that he could not pay the EMI of his loan regularly due to lock down. He further stated that as per Bank record and his personal note, he already paid Rs.3,35,226/- towards loan payment and only 3 installments of Rs.56,000/- was due. He stated that on 12.02.2021 his vehicle was seized by OP No.2 and he later came to know that his vehicle has been sold in auction. In support of his case the complainant submitted the following documents:

i. Cheque invoice, Money receipt of OP No.1,

ii. Tax paper of DTO Dhalai,

iii. Insurance Police of LGI limited,

iv. Money receipt of repairing of vehicle bearing registration No.TR 04 B-1893 and

v. Bank statement.

6)      The issues framed in connection with the instant case are as under:-

(i)  Whether the complainant is a consumer or not?

(ii) Whether the complaint is maintainable in its present form and nature?

(iii) Whether there is any deficiency of service on the part of OP No.1 and OP No.2?

(iv)   Whether the complainant is entitled to compensation for deficiency of service on the part of OP No.1 and OP No.2?

(v) Whether the complainant is entitled to any other relief or reliefs?

7)                We have heard the Ld. engaged counsel of the parties at length. Ld Counsel Sri Sudhangshu Das appearing for the complainant submitted that both the OPs of the case are equally responsible for the loss suffered by the complainant Sri Dipak Paul. Ld Counsel further submitted that the vehicle which was purchased by the complainant was not in good condition from the since the time of purchase. The vehicle used to break down time and again and to repair the vehicle, the complainant incurred huge expenditure. The dealer of the vehicle i.e., the Tara Shankar Motor Private Limited was informed regarding the condition of the vehicle and the complainant even requested them to exchange the vehicle but the authority of Tara Shankar Motor Private Limited did not pay heed to his request. Ld counsel further submitted that the complainant has been regularly paying the EMI of the loan taken by him from OP No.2, the Chulamandalam Investment and Finance Limited, but in the year 2020, due to Corona virus lock down the complainant suffered huge loss and could not pay the EMI of his loan in due time.  It is also submission of Ld counsel that the complainant defaulted in the repayment of his loan due to frequent break down of the vehicle. Ld counsel submitted that the complainant was willing to pay all defaulted EMIs and even requested OP No.2 to give him some time but the OP No.2 did not pay heed to the request of the complainant and instead seized the vehicle of the complainant and sold it by an auction. Ld counsel further submitted that the OP No.2 should not have sold the vehicle of the complainant without giving him reasonable opportunity for making payment of the defaulted amounts. He further submitted that, before selling of the vehicle, the complainant should have been informed of the minimum biding price of the vehicle but the OP No.2 straight away sold the vehicle without informing the complainant.

 

8)                The engaged counsel of OP No.1 submitted that the complainant did not make any complaint at the time of purchase. The complainant even availed free services after purchase of the vehicle but he never complained of any major problem in the vehicle. Ld counsel submitted that if there was any major problem in the vehicle, the complainant should have informed the company immediately and his problem would have been resolve. He submitted that the vehicle services history submitted by OP No.1 shows that the complainant has never complained of any major problem in his vehicle.

 

9)                Ld Counsel of Op No.2 submitted that the complainant and his wife namely Smt Mira Paul took loan of Rs.5,51,015/- from them with agreement to repay the loan in 47 monthly installments @ Rs.15300/- per month and at the time of taking loan they have entered into an agreement and in the said agreement, in clause VI, the repayment procedure has been mentioned. He submitted that the complainant, time and again, defaulted in making payment of the monthly installments and by 05-10-2020 it was noticed that the complainant was required to pay Rs.3,97,772/-. The complainant was issued notice to pay the defaulted amount but he failed to make the payment. Later, the complainant was informed that his vehicle will be sold if he will not make payment of the amount due and since the complainant did not make any communication despite notice being served upon him, the vehicle was taken into possession by OP No.2 and sold in an auction for an amount of Rs.3,78,000/-.

10)              Taking into consideration the submissions of the engaged counsels of the parties and the materials available on record, lets decide the issues of the case.

11)               ISSUE No-I: (i)Whether the complainant is a consumer or not?

          The term consumer has been defined in section 2(7) of the Consumer Protection Act, 2019 as under:

 “(7) "consumer" means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

Explanation.—For the purposes of this clause,—

(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment

(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi level marketing;”

12)              The petitioner stated that he purchases a vehicle from respondent No.1 by taking loan from respondent No.2. The Tarasankar Motor Private Ltd. (respondent No-1) did not deny that the complainant purchases a vehicle from them. Respondent No.2, the Cholamandalam Investment and finance Company Ltd. also did not deny that the complainant took loan from it for purchasing a vehicle. Hence, it is hereby concluded that the complainant is a consumer.

 

13)              ISSUE No: (ii) Whether the complaint is maintainable in its present form and nature?

As per consumer protection act, Section 34 Of Consumer Protection Act,2019 read as follows:

          Jurisdiction of the District Commission:

       1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration one crore rupees. and the compensation, if any, claimed (does not exceed Rupees Twenty Lakhs).

    2) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction; 

        a) are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office or) personally works for gain, or

              b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or (carries on business or has a branch office), or personally works for gain, provided that in such case either the permission of the District Commission is given, or the opposite parties who do not reside, or (carry on business or have a branch office), or personally work for gain, as the case may be, acquiesce in such institution; or

             c) the cause of action, wholly or in part, arises.

             d) the complainant resides or personally work for gain.

Further Section 69 Consumer Protection Act, 2019 Provides limitation period for filing Complaint. According to this Section complaint should be filed within 2 years of arising of cause of action.

In the case it is not disputed that the case does not within the jurisdiction of this forum. In the instant case the complainant is residing within the   jurisdiction of this forum and has a claim within caps of rupees twenty lakh and has a legitimate cause of action. So, this consumer complaint is maintainable in its present form and nature.

 

14)            ISSUE NO: (iii) Whether there is any deficiency of service on the part of OP No.1 and OP No.2?

          The complainant Sri Dipak Paul alleged that the vehicle which was purchased by him from the Tara Shankar Motor Pvt. Limited (respondent no-1)  was in defective condition since the time of purchase. He stated that his vehicle used to break down on an often due to fault in the machinery of the vehicle and due to this frequent break down of his vehicle, he suffered heavy losses. Respondent No.1, the Tara Shankar Motor Pvt. Limited on the other hand denied all such allegations and stated that the complainant, after purchase of the vehicle, availed many services from the show room including three free services. But he never complaint about the allegation as stated in his complaint petition. Service history record of the vehicle of the complaint has been submitted by respondent No.1 along with written objection.

 

15)              We have perused the complaint petition, the documents submitted by the complainant and also the written objection and service history record of the vehicle of the complainant submitted by respondent No.2. The complainant purchased the vehicle from the respondent on 30-05-2018.  It appears that the complainant visited the service center several times and availed many services including free 3 services. But the never made any written complaint to the company regarding the condition of his vehicle. The vehicle purchased by the complainant appears to be a good carrying vehicle and he appears to be using the vehicle for business purpose. A machinery such as goods carrying vehicle would obviously required more maintenance than an ordinary vehicle generally used for personal purpose. Therefore,  just because the complainant had to repair his vehicle frequently, the seller of the vehicle cannot be held liable. Accordingly, it is hereby concluded that  there was no deficiency of service on the part of respondent no-1 the Tarashankar Motors Private Ltd.

 

16)              In respect of respondent No.2, the complainant stated that he purchased his vehicle by obtaining loan from the respondent No.2, the Cholamandalam Investment and Finance Company Ltd. From the record it appears that the complainant took loan of Rs.55,1015/- with agreement to repay the loan @  Rs.15,300/- per month. The complainant appears to have paid some installments and later defaulted in making payment of the installments. Owing to default in the payment of installments, respondent No.2 issued notice upon the complainant asking him to make payment. Respondent No.2 in their written objection stated that by 05-10-2020,the complainant was to pay Rs.3,97,772/-. A notice appears to have been issued upon the complainant for making payment of the aforementioned amount. The respondent alleged that the complainant did not make payment of the amount despite notice duly served upon him. On failure of the complainant to make the payment, the respondent No.2 seized the vehicle of the complainant on 11-03-2021 and sold the vehicle in a public auction for amount of Rs.3,78,000/-.

 

17)              The complainant did not deny that he made default in payment of regular EMI of his loan. He stated that he could not pay the installments in due time due to frequent break down of his vehicle for which he suffered losses. He stated that he was ready to pay the EMI and requested respondent No.2 to give him some time. The respondent No.2 in written objection stated that by notice dated 06-10-21, the complainant was asked to pay Rs.3,97,772/- but he did not, and subsequently on 15-02-2021, the complainant was issued a pre-sell latter. It is not denied that the vehicle of the complainant was taken into possession and sold by an auction. It appears that, at the time of sanction of loan, an agreement was entered between the complainant and respondent no-2 and by the said agreement, the vehicle was to remain hypothecathed to the respondent no-2.

 

18)              There may have been an agreement between the complainant and the respondent No.2 at the time of giving and taking of the loan. However, no such agreement has been submitted by the respondent no-2. Without production of any such agreement, it is not possible to say that the respondent has got authority to seize and sale the vehicle of the complainant. Even if there be any agreement for seizure and sale of the vehicle upon failure to make regular payment of installment, the complainant should have been informed about the sale with request to remain present at the date and time of auction of the vehicle. Further, there is nothing on record to show as to how many EMIs/installment the complainant has defaulted. There is also nothing on record to show as to how many EMIs has been paid by the complainant.

          It is equally true that on hypothication agreement, the vehicle remain in the possession of customer and before taking possession of the vehicle, the financial company has to follows some rules and regulation in consonance with principle natural justice i.e. Audi Altram Partem. Further section 106 of Indian evidence acts provides that it is duty of the person to prove the facts which is specifically within his knowledge. The financial company fails to follows the principle of natural justice as well as did not explained the facts and circumstances by adducing evidence in respect of realization of outstanding dues with other charges since from date of taking possession of vehicle till sale by auction.

          These bundle of facts shows that there was deficiency on the part of respondent no-2, the Cholamandalam Investment and Finance Company Ltd.

19)              Accordingly, it is hereby concluded that there was deficiency on the part of Respondent No-2, the Cholamandalam Investment and Finance Company Ltd.

 

20)    ISSUE NO: (iv) Whether the complainant is entitled to compensation for deficiency of service on the part of OP No.1 and OP No.2?

          The deficiency in service on the part of Respondent No-1 could not be proved. Therefore, the complainant shall not be entitled to any compensation from respondent no-1.

 

21)              As already discussed, there was deficiency on the part of respondent no-2, the Cholamandalam Investment and Finance Company Ltd. As such, respondent no-2 shall have to compensate the complainant for the loss and damages caused to him.

 

22)    ISSUE NO: (v) Whether the complainant is entitled to any other relief or reliefs?

          The complainant is entitled to relief in respect of harassment and mental agony.

 

23)    Hence it is

                                          ORDERED

          that, the consumer complaint bearing no. CC/02/2021 is hereby allowed against OP No. 2. The respondent/OP No.2 Cholamandalam Investment and Finance company Limited is hereby directed to pay a compensation of Rs. 1,00,000/- (One Lakh) to the complainant and also to pay Rs. 20,000 (Twenty Thousand) to the complainant for harassment and mental agony. Further respondent OP No. 2 is directed to pay the said amount within two months from the date of judgment.

 24)             In default, the complainant may put the order/Judgment under execution by filing an Execution Application  as per provision of the CP Act and rules made thereunder.  

 

 25)             Hence the case is disposed of on contest.

 

 26)             Office is directed to supply the copies of judgment free of cost to the parties. 

 

   

             (DIPALI SINHA)                     (H.L. DEBBARMA)           (S. DEO SINGH)

MEMBER DISTRICT CONSUMER  DISPUTES REDRESSAL COMMISSION DHALAI TRIPURA : KAMALPUR

MEMBER DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION DHALAI TRIPURA : KAMALPUR

PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION DHALAI  TRIPURA : KAMALPUR