The fact in brief, is that the complainant purchased a vehicle after accepting the proposal of Tata Motors Finance Ltd., Coochbehar Branch and the complainant paid of Rs. 5,000/- as booking amount through cheque vide No. 000006 on 06/07/2019 and further paid Rs. 94,228/- in cash on 10/07/2019 as down payment as per the direction of O.P Nos. 1 and 2, the O.P No. 3 received the said amount from the complainant at Hamiltonganj, Alipurduar and on 26/07/2019 the complainant entered into a contract with the O.P Nos. 1 and 2 vide contract No. 5003167915 dated – 26/07/2019 and also agreed to take finance of Rs. 4,44,948/- for purchasing a vehicle and for that reason the complainant and finance company arranged a vehicle vide Registration No. WB 69 A 2978 and it was agreed with the finance company that the rest amount will be paid at the rate of Rs. 10,506/- per month and the complainant after receiving the vehicle paid the amount regularly but due to serious lock down of Covid – 19 he failed to repay the loan amount for few month subsequently the complainant filled up the due payment and only three installments @ Rs. 10,506/- along with interest are lying  due for full and final payment, but on 08/06/2022 some agents of the finance company wrongfully seized the said vehicle at Coochbehar and issued a seizure list and compelled the complainant to pay an amount of Rs. 75,525/- (Rs. 47,900/- on 13/06/2022, Rs. 6,510/- on 14/06/2022, Rs. 700/- on 16/06/2022, Rs. 20,310/- on 16/06/2022 and Rs. 105/- on 25/07/2022) but the O.Ps did not disclose any reason for taking the said amount from him.

            O.P Nos. 1 and 2 issued two notices through their Advocate dated – 05/11/2022 upon the complainant and his father and said that the complainant have entered into a loan cum hypothecation  cum guarantee agreement No. 5003813452 with the O.Ps for purchase a vehicle make fast track pick up. The O.Ps have been deducted Rs. 680/- per month from the account of the complainant as EMI of the fast track loan and the O.Ps fraudulently and with an intention to cheat the complainant deducting the money Rs. 680/-. After that the complainant on 22/11/2022 sent a legal notice by Registered Post and asked the reasons of why the vehicle was detained and taken repossession by force at Coochbehar and released the vehicle after seven-eight days by compelling the complainant to pay the total amount Rs. 75,525/- and in reply the lawyers of O.Ps totally denied the facts that neither the vehicle nor any amount was received by the O.Ps from the complainant.

            The complainant and his father received another notice dated – 12/12/2022 through the advocate of the O.Ps and stating there, that till 09/12/2019 an amount of Rs. 60,332.05/- was pending to O.P No. 1 in connection with agreement No. 5003167915.

            The complainant several time communicated the O.Ps to supply the copy of agreements but the O.Ps avoided supplying the hard copy of the agreement.

            After that the complainant filed this complaint before this Commission and claiming the amount of Rs. 75,525/- along with interest of @ 22% per annum and Rs. 1,50,000/- for mental pain and agony and Rs. 10,000/- as litigation costs.

            Notices were duly served upon the O.Ps and after receiving the notices the O.P Nos. 1 and 2 appeared before this Commission on 22/02/2023 and submitted their written version on 17/03/2023 and adduced evidence-on-affidavit on 21/06/2023 and also submitted written argument on 21/09/2023.

            The complainant also filed evidence-in-chief on 17/05/2023 and submit written argument on 22/11/2023.

            It appears from the case record dated – 17/05/2023 vide Order No. 17 that the notice upon O.P No. 3 returned with the postal peon endorsement is “refused” on 28/03/2024. So, it is a good service and the statutory period of filing written version had already been expired on 12/05/2024. So, the case had been proceeded ex-parte against O.P No. 3.

            It also appears from the case record dated – 24/04/2024 vide Order No. 16 that the O.P Nos. 1 and 2 remained absent since 24/04/2024 and the case was pending for argument since long time due to the absence of O.P Nos. 1 and 2.

            As the evidence of the complainant and O.P Nos. 1 and 2 are on record, the case proceeded to decide on merits as per section 38(3)(c), C.P. Act, 2019.

            In support of the case the complainant has filed some documents to prove his case which are given below:-

1. One Xerox copy of money receipt dated – 06/07/2019 of Rs. 5,000/-.
2. One Xerox copy of money receipt dated – 10/07/2019 of Rs. 94,228/-.
3. Two Xerox copies of notice dated – 05/11/2022.
4. One Xerox copy of money receipt dated – 13/06/2022 of Rs. 47,900/-.
5. One Xerox copy of money receipt dated – 14/06/2022 of Rs. 6,510/-.
6. One Xerox copy of money receipt dated – 16/06/2022 of Rs. 700/-.
7. One Xerox copy of money receipt dated – 16/06/2022 of Rs. 20,310/-.
8. One Xerox copy of money receipt dated – 25/07/2022 of Rs. 105/-.
9. One Xerox copy of seizure list dated – 08/06/2022.
10. One Xerox copy of legal notice dated – 22/11/20222.
11. One Xerox copy of reply letter notice dated – 11/12/2022.
12. Two Xerox copies of notice dated – 12/12/2022.

In their written version of the O.P Nos. 1 and 2 denied all the materials allegations made by the complainant and stated that the complainant was a chronic defaulter and there exist a huge of outstanding debt on the part of the complainant and also stated that the complainant is an admitted defaulter and he had not paid the loan amount regarding as per the terms and conditions of the financier. O.P Nos. 1 and 2 also stated that after going through each and every content the complainant entered into the fast track loan agreement and apart from this the complainant on 12/03/2021 issued an authorization letter to and in favour of the answering O.P for obtaining the fast track agreement as such the allegation of the complainant that he never executed fast track agreement is absolutely false. O.P Nos. 1 and 2 also stated the vehicle was not seized wrongfully as alleged by the complainant. The complainant being not capable to making the repayment of loan amount himself surrendered the said vehicle to the O.Ps and after some days the complainant requested the O.Ps to release the vehicle and he wish to pay some dues in lieu thereof and after that the O.Ps released the said vehicle on 17/06/2022.

O.P Nos. 1 and 2 files some documents in order to defend their case which are given below:-

1. A photocopy of loan agreement (Annexure – A).

2. A photocopy of statements of account (Annexure – B).

3. A photocopy of the loan recall letter ( Annexure – C).

We have gone through the materials on record very carefully and also perused the documents which are lying on record and heard argument from the Ld. Advocate on behalf of the complainant.

In this context the following issues are necessarily come up for the proper adjudication of the case.

POINTS FOR CONSIDERATION

1. Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019 ?
2. Has this Commission jurisdiction to try the instant case?
3. Is there any deficiency in service on the part of the O.Ps?
4. Is the complainant entitled to get any relief/reliefs as prayed for?

   DECISION WITH REASONS

            Considering the nature and character of the case all these points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience.

            Point Nos. 1 & 2: It is admitted that the complainant and O.P Nos. 1 and 2 entered into a contract vide contract No. 5003167915 dated – 26/07/2019 and also agreed to take finance of Rs. 4,44,948/- for purchasing a vehicle and for that the complainant and the finance company arranged a vehicle vide Registration No. WB 69 A 2978. The complainant paid Rs. 5,000/- as booking amount through cheque vide No. 000006 on 06/07/2019 and further paid Rs. 94,228/- in cash on 10/07/2019 as down payment as per direction of the O.P Nos. 1 and 2 in favour of the O.P No. 3. It was also agreed that the rest amount will be paid @ Rs. 10,506/- per month equal installments. So there is no hesitation to say that the complainant is a consumer u/s. 2(7)(ii) of C.P. Act, 2019.

            The transaction of Rs. 5,000/- and Rs. 94,228/- took place at Hamiltonganj, Alipurduar and the complainant is a permanent resident of Hamiltonganj, so the Ld. Commission has territorial jurisdiction to try the case.

Point Nos. 3 & 4: It is admitted position that the complainant and O.P Nos. 1 and 2 came into an agreement of Rs. 4,44,948/- for purchasing of vehicle from O.P No. 3 and paid Rs.5,000/- as booking amount and 94,228/- as down payment by the complainant in favour of the O.P No. 3. The complainant had paid amount of Rs. 10,506/- per month as installments amount decided under the agreement to O.P Nos. 1 and 2 for repayment of loan.

Now the question is, is there any deficiency in service on the part of the O.Ps? or is the complainant is entitled to get any relief / reliefs as prayed for? In this regard we have seen from the case record and the documents filed by the complainant and the O.Ps that the complainant continuously paid equal monthly installments of Rs. 10,506/- until the outbreak of Covid – 19, after that there was gap of five months in paying monthly installments. We have seen from the authorization table (Annexure –B is the document to prove the same) submitted by the O.P Nos. 1 and 2 that the complainant cleared his outstanding loan amount on 02/03/2023 completely.

We have also seen from the case record complainant stated that his vehicle was seized on 08/06/2022 by the O.P No. 2 as per direction of the O.P No. 1 when the vehicle was carrying some goods of party. But the O.P Nos. 1 and 2 in their written version refused this charge and instead stated that the complainant himself surrender his vehicle at the office of the O.P No. 2. We have also seen from the submitted documents that the complainant had paid an amount of Rs. 47,900/- on 13/06/2023, Rs. 6,510/- on 14/06/2022, Rs. 700/- on 16/06/2022 and Rs. 20,310/- on 16/06/2022 and Rs. 105/- on 25/07/2022 therefore amounting to Rs. 75,525/- to O.P No. 2 for taking repossession of the said vehicle but the O.P did not clearly disclose any reason for taking the said amount from him. We have seen from the written version and evidence-on-affidavit, nowhere mentioned the reason for charging amount of Rs. 75,525/- from the complainant.

We have also seen from the case record that the O.P Nos. 1 and 2 through their advocate issued two notices upon the complainant and his father claiming that they have entered into a loan cum hypothecation cum guarantee Agreement No. 5003813452 with the O.Ps for purchasing of the vehicle but the complainant submits that he neither applied for any fast track loan nor singed any agreement for this purpose.  The complainant also stated that the O.Ps kept deducting Rs. 680/- per month from the account of the complainant as EMI of the fast track loan.

In this regard we have seen that the O.Ps were not able to provide any authenticate document which corroborate the agreement between two parties regarding the fast track loan agreement. The copy of the fast track loan agreement submitted by the O.P Nos. 1 and 2 was not signed by the complainant.

We also seen from the case record that the O.Ps through a letter dated – 05/11/2022 demanded 5,920.52/- as an overdue installment and overdue charges under agreement No. 5003813452, which is not justifiable as because the fast track agreement was not signed between complainant and O.Ps. The O.Ps also sent a notice to the complainant demanding an overdue amount of Rs. 62,308.06/- under the agreement No. 5003167915 as it was decided by the arbitrator appointed by the O.Ps. But we have seen from the documents submitted by the O.P Nos. 1 and 2 (Authorization Table Annexure – B) submitted themselves that the outstanding loan amount of Rs. 390092.99/- was repaid by the complainant through equated monthly installments ending on 02/03/2023.

Therefore, in our considered view that the O.P Nos. 1 and 2 charged Rs. 75,525/- without any valid reasons and the O.Ps also could not provide any sufficient document in this regard. Considering the above facts and circumstances we opined that the complainant is the bona fide consumer of the O.Ps. The complainant proved his case and he is entitled to get Rs. 75,525/- for his claim amount which was received by the O.P No. 2 at Coochbehar Branch Office with an interest @ 6% until the realization of the aforesaid amount and  to get Rs. 25,000/- for his mental agony and harassment and also to get Rs. 10,000/- as litigation costs.

Thus all the points are disposed of accordingly.

            Hence, for ends of justice; it is;-

 ORDERED

that the instant case be and the same is allowed on contest against the O.P Nos. 1 and 2 and  ex-parte against O.P No. 3. The complainant do get claim amount of Rs. 75,525/- (Seventy Five Thousand Five Hundred Twenty-Five) which was paid by the complainant to the O.P No. 2 along with interest of 6% Per annum from the date of claim to till the realization of the amount. The complainant is also do get an award amounting to Rs. 25,000/- (Twenty-Five Thousand) as compensation for his harassment, mental agony and sufferings and also to get Rs. 10,000/- as litigation costs; total decreetal amount of Rs. 1,10,525/- (One Lakh Ten Thousand Five Hundred Twenty-Five) excluding interest. The O.P Nos. 1 & 2 are hereby directed to comply this order within 30 days from this day, failing which legal action will be taken against them. There is no direction upon the O.P No. 3 as he did not receive any amount from the complainant directly.

Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.

Dictated & Corrected by me