IN THE COURT OF THE PRESIDENT , DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION AT DIBRUGARH

C.C. Case No.22/2015

Present –

1. Shri Jadav Gogoi, Member,                     Shri Palash Ranjan Kotoky, President,

2. Smti. Nibedita Bose, Member,                 District Consumer Dispute

District Consumer Dispute                           Redressal Commission,

Redressal Commission, Dibrugarh. Dibrugarh

            Md. Bobby Hussain                                -   Complainant

                                                            -Vs-

Tata Capital Financial Services

Limited                                                      -   Opposite Parties.

                        Date of Argument – 30-12-2017

                                                                                                         22-11-2017

                                                                        Date of Judgment – 22-06-2022   

            The complainant Bobby Hussain, S/o late Motiur Hussain, resident of Seujpur, Dibrugarh, P.O., P.S. & District Dibrugarh filed this complaint under Section 12 of Consumer Protection Act, 1986 claiming to direct the Opposite Party to pay to the complainant –

1. A sum of Rs.50,000/-(Rupees fifty thousand)only as compensation for mental and physical harassment,
2. A sum of Rs.10,000/-(Rupees ten thousand)only as compensation for non-issue of money receipt after recovering Equal Monthly Installment and
3. A sum of Rs.20,000/- (Rupees twenty thousand)only as litigation cost and for any order instructing/warning to the Opposite Party for end of justice.

Judgement

            The case of the complainant in brief is that the complainant is a permanent resident of Dibrugarh within the jurisdiction of this Forum/Commission.

            The Opposite Party Tata Capital Financial Services Limited is a financial company doing financial business at Dibrugarh through its agents and the Opposite Party had approached the complainant to avail financial assistance as loan for purchase of vehicle under hypothecation agreement and the complainant had agreed to take the loan for purchasing vehicle. Thereafter a loan of Rs.7,46,393/- was sanctioned by the Opposite Party in the name of the complainant vide agreement No.7000202597, dtd. 24.09.2013 and Demand Promissory Note was duly executed. The said loan amount along with interest and other charges were payable in 60 equal monthly installments for the vehicle purchased by the complainant, namely Eco Sport Titanium bearing Regd. No.AS/06-N-0030 and Chassis No.MAJAXXMRKADADA34463. During sanctioning the loan the Opposite Party obtained certain signatures of the complainant on some papers related with the loan agreement without disclosing the facts of the same to the complainant by taking undue advantage of giving financial assistance/loan and the complainant had no knowledge and he signed the loan agreement without going through the details of the same.

                        It is stated by the complainant that initially the Opposite Party collected the amount of monthly installments as fixed at Rs.16,640/- through electronic clearance system (ECS) through the complainant’s saving account of United Bank of India. But subsequently same has been converted into the collection through its loan recovery agents in cash from the complainant. But the collection agents refused to issue valid receipt of the amount collected inspite of repeated requests of the complainant. The Opposite Party issued only last money receipt to the complainant vide receipt No.N.C.088474 dtd. 25.05.2015. The complainant repeatedly requested the Opposite Party to issue money receipt against the installment paid in cash, but the Opposite Party showed its reluctancy to issue the same with malafide intention making it clear that it is an evil intention to make the complainant defaulter.

            That subsequently the complainant had stopped repayment of loan installment informing the Opposite Party that unless and until valid money receipt would be issued to him he would not continue repayment and since the month of August, 2015 when the complainant stopped making loan repayment the loan recovery agent of the Opposite Party started threatening the complainant with dire consequences showing muscle power. Thereafter the Opposite Party began threatening the complainant over mobile phone almost each and every day using filthy and uncivilized language and took several illegal steps to take possession of the vehicle forcibly and illegally.

            On 02.08.2015 at about 6 P.M. when the complainant was going to the market for shopping along with his family members by driving the said vehicle, suddenly his vehicle was stopped by some anti-social Gundas and musclemen near Seujpur Tiniali at Dibrugarh who tried to take possession of the vehicle forcibly. They even tried to assault the complainant and his wife and subsequently they fled away when the complainant and his wife raised hue and cry. Later on it came to the knowledge of the complainant that the aforesaid Gundas and musclemen were sent by the Opposite Party to take possession of the vehicle forcibly and illegally. The complainant informed the incident to the concerned police station but the police refused to take cognizance of the same and suggested the complainant to settle the matter with the Opposite Party amicably .

            The complainant informed the Opposite Party that the illegal acts done by them are against law and guidelines of Reserve Bank of India and they cannot take possession of the vehicle in the manner illegally and forcibly. But instead of listening the complainant, the Opposite Party threatened him to face dire consequences if he continues raising voice of objection against illegal and offensive acts of the Opposite Party and as such the Opposite Party has arbitrarily and illegally violated the rule of law and the guidelines framed by the Reserve Bank of India. The acts of the Opposite Party are not only illegal but also against natural justice and law of the land and such act and attitude of the Opposite Party created both physical and mental harassment not only to the complainant but also to his whole family. The complainant stated in his complaint that he believes that the facts of the case and circumstances and on the basis of materials in hand with the complainant in his possession will prove the deficiency and negligence in service of the Opposite Party towards its customer under the provisions of the Consumer Protection Act, 1986.

            The cause of action for the complainant’s grievances arise with effect from 25.05.2015 and the same continued within the jurisdiction of this Forum. The complainant prayed before the Forum and submitted his claim as hereunder –

1. A sum of Rs.50,000/-(Rupees fifty thousand)only as compensation for mental and physical harassment,
2. A sum of Rs.10,000/-(Rupees ten thousand)only as compensation for non-issue of money receipt after recovering Equal Monthly Installment and
3. A sum of Rs.20,000/- (Rupees twenty thousand)only as litigation cost and for any order instructing/warning to the Opposite Party for end of justice.

             After registering the case notice was issued to the Opposite Party and accordingly after receiving notice the Opposite Party filed their W/S and contested the case. In their W/S, the Opposite Party stated inter alia that the case is not maintainable under law as well as on facts and the Opposite Party claims that there is no deficiency and negligence of service on their part. They claim that except the copy of complaint no other documents have been supplied to the Opposite Party and hence their W/S is only response/reply/answer of the complaint. In reply to para 3 of the complaint, the Opposite Party submits that the petitioner had approached the Opposite Party to get the financial assistance as loan for purchasing vehicle and it is not true that the Opposite Party approached the complainant for availing Auto loan which he had confirmed in para-14 of his complaint petition.

            The Opposite Party denies the statements made in para 5 and 6 of the complaint, as the complainant had put his signatures after going through all the terms and conditions mentioned in the loan agreement and as such the words “without disclosing the facts” and “taking undue advantage” as mentioned by the complainant has no relevancy in this case. In reply to para 9 of the complaint the O.P. submits that till the date of August, 2014 the EMI @ Rs.16,640/- p.m. has been cleared through Auto Debit Mandate system from the A/c of the complainant as fund in his A/c had been sufficient at that time. However, since September, 2014 his A/c had been found with insufficient fund and as such all the requests made through Auto Debit Mandate system resulted bounce back and his payment started remain overdue and the complainant became a defaulter. The Opposite Party has no system of “conversion” as stated by the complainant, once the payment started defaulting, the payments have to be made either by the consumer in cash, cheque, Demand Draft etc. by personally appearing in the office or else for any inconvenience, persons from the office used to collect the EMI with defaulting charge and in all cases the Opposite Party used to provide receipt against the payment received. The claim that whenever the complainant made any payment, he has been provided with the receipt against his payment and as such refusal to issue receipt is a false fact and as such demand strict proof of the same. The Opposite Party stated that as mentioned by the complainant vide receipt No.088474 dtd. 25.05.2015 he had paid Rs.34,180/- against his pending dues of Rs.84,078/- and on that day his balance pending dues was Rs.49,898/- and the payment made vide receipt No.088474 was the last payment of the complainant against his Auto loan and thereafter he had not paid the installments till date.  Annexure No.1 is the copy of loan repayment schedule of the Auto loan taken by the complainant. In reply to para-10 of the complaint the Opposite Party stated that to pay the pending dues in the continuous installments, apart from cash payment there are other options available, like payment through cheque, Demand Draft, NEFT etc. As such the statement made by the complainant has exposed his malafide intention, whereby he had stopped making loan repayment. It is also submitted on behalf of the Opposite Party that for continuous default in payment of loan installments, the Opposite Party has already issued its lawful process to recover the vehicle and to recover the pending dues of the Auto loan. The Opposite Party crave leave to produce the entire documents issued by the Opposite Party and the orders passed by the Hon’ble Court to recover the vehicle/pending dues at the time of hearing or any other relevant time when the Commission so directs. The Opposite Party termed the incident dtd. 02.08.2015 narrated by the complainant in his complaint as a concocted, false story whereby the complainant has been trying to mislead the Hon’ble Court and the Opposite Party is not at all aware about any such incident. The Opposite Party prays to dismiss / reject the present complaint filed by the complainant as it is not maintainable in law as well as on facts.

Decision and Reason thereof

                        The complainant in his evidence in affidavit deposed that the O.P. - Tata Capital Financial Services Limited is a financial company doing financial business at Dibrugarh through its agents and the Opposite Party had approached the complainant to avail financial assistance as loan for purchase of vehicle under hypothecation agreement and the complainant had agreed to take the loan for purchasing vehicle. Thereafter a loan of Rs.7,46,393/- was sanctioned by the Opposite Party in the name of the complainant vide agreement No.7000202597, dtd. 24.09.2013 and Demand Promissory Note was duly executed. The said loan amount along with interest and other charges were payable in 60 Equal Monthly Installments for the vehicle purchased by the complainant, namely Eco Sport Titanium bearing Regd. No.AS)06-N-0030 and Chassis No.MAJAXXMRKADADA34463. During sanctioning the loan the Opposite Party obtained certain signatures of the complainant on some papers related with the loan agreement without disclosing the facts of the same to the complainant by taking undue advantage of giving financial assistance/loan and the complainant had no knowledge and he signed the loan agreement without going through the details of the same.

                        It is stated by the complainant that initially the Opposite Party collected the amount of monthly installments as fixed at Rs.16,640/- through electronic clearance system (ECS) through the complainant’s saving account of United Bank of India. But subsequently same has been converted into the collection through its loan recovery agents in cash from the complainant. But the collection agents refused to issue valid receipt of the amount collected inspite of repeated requests of the complainant. The Opposite Party issued only last money receipt to the complainant vide receipt No.N.C.088474 dtd. 25.05.2015. The complainant repeatedly requested the Opposite Party to issue money receipt against the installment paid in cash, but the Opposite Party showed its reluctancy to issue the same with malafide intention making it clear that it is an evil intention to make the complainant defaulter.

            That subsequently the complainant had stopped repayment of loan installment informing the Opposite Party that unless and until valid money receipt would be issued to him he would not continue repayment and since the month of August, 2015 when the complainant stopped making loan repayment the loan recovery agent of the Opposite Party started threatening the complainant with dire consequences showing muscle power. Thereafter the Opposite Party began threatening the complainant over mobile phone almost each and every day using filthy and uncivilized language and took several illegal steps to take possession of the vehicle forcibly and illegally.

            On 02.08.2015 at about 6 P.M. when the complainant was going to the market for shopping along with his family members by driving the said vehicle, suddenly his vehicle was stopped by some anti-social Gundas and musclemen near Seujpur Tiniali at Dibrugarh who tried to take possession of the vehicle forcibly. They even tried to assault the complainant and his wife and subsequently they fled away when the complainant and his wife raised hue and cry. Lateron it came to the knowledge of the complainant that the aforesaid Gundas and musclemen were sent by the Opposite Party to take possession of the vehicle forcibly and illegally. The complainant informed the incident to the concerned police station but the police refused to take cognizance of the same and suggested the complainant to settle the matter with the Opposite Party amicably .

            The complainant informed the Opposite Party that the illegal acts done by them are against law and guidelines of Reserve Bank of India and they cannot take possession of the vehicle in the manner illegally and forcibly. But instead of listening the complainant, the Opposite Party threatened him to face dire consequences if he continues raising voice of objection against illegal and offensive acts of the Opposite Party and as such the Opposite Party has arbitrarily and illegally violated the rule of law and the guidelines framed by the Reserve Bank of India. The acts of the Opposite Party are not only illegal but also against natural justice and law of the land and such act and attitude of the Opposite Party created both physical and mental harassment not only to the complainant but also to his whole family. The complainant stated in his complaint that he believes that the facts of the case and circumstances and on the basis of materials in hand with the complainant in his possession will prove the deficiency and negligence in service of the Opposite Party towards its customer under the provisions of the Consumer Protection Act, 1986.

            The cause of action for the complainant’s grievances arise with effect from 25.05.2015 and the same continued within the jurisdiction of this Forum. The complainant prayed before the Forum and submitted his claim as hereunder –

1. A sum of Rs.50,000/-(Rupees fifty thousand)only as compensation for mental and physical harassment,
2. A sum of Rs.10,000/-(Rupees ten thousand)only as compensation for non-issue of money receipt after recovering Equal Monthly Installment and
3. A sum of Rs.20,000/- (Rupees twenty thousand)only as litigation cost and for any order instructing/warning to the Opposite Party for end of justice.

Along with his evidence in affidavit the complainant exhibited the following documents in support of his complaint.

1. Ext. No.1 – Driving License of the complainant.
2. Ext. No.2 – Certificate of Registration of the vehicle.
3. Ext. No.3 – Insurance  Policy of the vehicle .
4. Ext. No.4 – Contract details of the O.P. dtd. 24.02.2015.
5. Ext. No.5 – Foreclosure letter issued by the O.P. dtd. 15.09.2014.
6. Ext. No.6 – Money receipt of EMI dtd. 24.10.2013
7. Ext. No.7– Money receipt of EMI dtd.27.09.2014
8. Ext. No.8 – Money receipt of EMI dtd.24.01.2015
9. Ext. No.9 – Money receipt of EMI dtd.30.03.2015
10. Ext. No.10 – Money receipt of EMI dtd. 25.05.2015

CW-2 Mrs. Rumena Hussain, the wife of Md. Bobby Hussain and CW-3 Sri Rajesh Kumar Pandit in their evidences in affidavit narrated the same statements given by the complainant in his evidence in affidavit.

In their evidence in affidavit the Opposite Party submitted evidence of Shri Niranjan Borah who is representing the opposite party- Tata Capital Financial Services Ltd. In his evidence the D/W deposed that the present case against the O.P. is not maintainable on facts as well as in law in its present form. The D/W has denied any deficiency and negligence on their part in serving the complainant/consumer. In his evidence in affidavit the D/W has narrated the statements made earlier in their W/S of the Opposite Party. The O.P. exhibited 2(two) documents, namely –

1. Ext. No.1 – copy of the loan repayment schedule consisting 11 No. of pages.
2. Ext. No.2 – copy of award passed by the Sole Arbitrator, dtd. 30.05.2015 consisting 4 pages.

Along with other evidence the DW-1 in para-21 of his affidavit deposed that due to non-payment of the loan installments by the complainant as per the terms and condition of the loan agreement the DW-1 had initiated an Arbitration Proceeding with due conformity with the principles of Natural Justice and accordingly the Sole Arbitrator vide order dtd. 30.05.2015 passed the final award against the complainant directing him to pay the award of Rs.6,41,752.13 along with interest @ 12.10% as per the loan agreement from the date of claim petition, i.e. 17.03.2015 till date of award and @ 18% from the date of passing award till realization thereof if found to be due and payable by the respondent and awarded a cost of Rs.5,000 as quantified.

Copy of the award passed by the Sole Arbitrator is exhibited as Ext. No.2 consisting of 4 pages.

            Both the parties in this case submitted their written arguments at length which are minutely examined. The O.P. along with their written argument submitted that as per terms of Irrevocable Power of Attorney vide clause No.6 of the said Power of Attorney, the O.P. acquires the right to take over the possession of the vehicle in case of default of payment of EMI. Certain documents relating to the loan sanctioned to the complainant by the O.P. was annexed with their argument just to adjudicate the dispute in between the complainant and the O.P. Document No.1 containing 14 pages is that document. Carefully examined the Document No.1.

            After discussing the complaint, W/S, evidences and arguments submitted by both the parties and after careful perusal of documents 3(three) questions are coming for decision-

1. Whether the complainant is a consumer under the provisions of Consumer Protection Act, 1986.

2. Whether the Opposite Party is liable for deficient and negligent services towards the complainant.

3. Whether the complainant is entitled to get the reliefs claimed.