The present complaint case has been filed by the complainant Jayanta Kumar Dutta S/o-late Vimal Kumar Dutta r/o Village-Barachapuria, P.O-Kairabani (Mission) P.S- Masalia, District-Dumka against the O.P’s i.e.(i)Tata Motor’s Finance Ltd. Branch office at Dumka, 1st floor Rasikpur, near Tower Chowk ,Dumka, Jharkhand and I Think Techno Campus, Building-A , 2ndfloor off Pokharan Road-2, Thane, Mumbai, Maharashtra U/S-12 of the ConsumeProtectionAct,1986 (hereinafter called as C.P.Act,1986) for illegally and arbitrarily Seizure of the vehicle i.e. Model TATA NANO LX bearing Engine No-273MPFI07BXYK13255 and Chasis No MAT612256CKB13492 without any legal notice of the company or authority and then selling away the said vehicle and thereby causing financial loss to the complainant and thereby committing negligency and deficiency in service as well as adopting unfair trade practices. The complainant has prayed to direct O.P’s to pay a sum of Rs.60,989/-( Sixty thousand nine hundred eighty nine) towards Principal loss, further prayed to direct O.P’s to pay a sum of Rs.2,00,000/-(two lac) toward compensation for causing mental tension, agony and harassment and also prayed to direct O.P’s to pay Rs-50,000/-(Fifty thousand) towards cost of litigation. Besides the complainant to prayed to grant appropriate interest on the awarded amount.
2. The brief facts of the complainant’s case revealed in the complaint petition, documents annexed therein as well as in the short notes of argument dated 22.09.2017 are as follows:-
That the complainant at the instigation of the opposite parties applied for grant of loan for the purchase of TATA NANO LX. After considering the loan application O.P.No.1 granted loan for the sum of Rs.1,89,000/-(one lakh eighty nine thousand) for purchasing said vehicle. Thereafter O.P.no.1 after payment of ininitial installment amount of Rs.14,939/-(Forteen thousand nine hundred thirty nine ) by the complainant delivered TATA NANO LX bearing Engine No-273MPF107BXYK13255 and Chasis No-MAT612256 CKB13492 on 27.03.2012 and sale certificate bearing No-class-A-1112-01334-SC dated 27.03.2012 was also issued certifying that METEOR SILVER TATA NANO UPGRADE 1033CR4 has been delivered to the complainant vide acknowledge note dated 05.04.2012.
The further case of the complainant is that a written agreement dated 31.03.2012 bearing agreement/contrtact No.5000946293 was excuted between the Opposite Parties and the Complainant and as per the terms of agreement complainant had to pay monthly installment @4,850/-(Four thousand eight hundred fifty). It is alleged that the Opposite Parties had received installment of Rs.16,000/-(Sixteen thousand) vide receipt No. 6143178/11112868 dated 07.11.2012 was not adjusted which is against the agreement. And due to said fraudulent method adopted by the O.P’s dispute arose in between them.
The further case of the complainant is that on 25.04.2013 at 8.00p.m while the complainant along with his family members moving on the road through his aforesaid vehicl at Dudhani, Dumka O.P.No.1 i.e. Tata Motors Finance Ltd. wrongfully and illegally repossessed, besides he and his family members were abused at the time of said forcibly repossession.
It is further more alleged that on 27.04.2013 O.P. No-1 served Cardex- I (Contract details), cardex-II (repayment details)as well as letter with reference to contract/agreement No.5000946239 of TATA NANO LX to the complainant, when he came to know that O.P’s have fraudulently received installment amount from the his bank account through blank cheque, which was earlier obtained from him at the time of agreement.
The further case of the complainant is that on 05.06.2013 complainant served legal notice to the O.P’s, which was replied by them on 26.06.2013 and from the said reply complainant came to know that after illegal repossession of the vehicle in question it was sold in public auction for a sum of Rs. 40,000/- ( Forty thousand) by the O.P’s. It is claimed that the complainant sustained Principal loss of Rs.60,989/- due to illegal seizure. further suffered mental agony and harassment due to said illegal seizure by the O.P’s.The complainant claimed a sum of Rs.3,10,989/-( Three lakh ten thousand nine hundred eighty nine) from the Opposite Parties towards financial loss, mental agoney etc. The complainant lastly having no alternative filed this case on 05.07.2013 for redressal of his grievance before this forum.
3. Having received the complaint petition on 05.07.2013 the case was admitted on 06.07.2013 and O.P’s were noticed to file their written version. After receiving notices O.P’s appeared on 20.02.2014 and on 03.06.2014 filed joint written version.
4. The O.P’s in their joint written statement have taken preliminary objections such as maintainability, lack of cause of action and claimed that the complainant is not a consumer of the Opposite Parties within the meaning and provision of Consumer Provision Act, 1986. It is also claimed that as per clause-24 of the agreement this forum has no territorial jurisdiction to entertain this case and as per clause-23 of the agreement the arbitration proceeding initiated and award passed on 07.03.2013 against the complainant and hence this forum has no jurisdiction to entertain this complaint case.
The further case of the answering O.P’s is that they are engaged in the business of non-banking financial corporation and also engaged in granting loans to various individuals and corporate houses. They have further admitted that the complainant approached to them on or about 31.03.2012 seeking financial assistance for purchasing a vehicle of Tata Nano LX and on the application filed by the complainant they agreed to grant loan of Rs.1,89,000/-(One lac eighty nine thousand) which is to be repaid with interest in 59 monthly installments. Thereupon an agreement of loan -cum- hypothecation dated 31.03.2012 was entered between them vide contract No-5000946293 where in the 1st installment was of Rs.5,045/- and rest 58 installments were of Rs.4,850/-.On the basis of said loan the complainant purchased TATA NANO vehicle bearing Engine No.273MPF 107BXYK 13255 and Chasis No-MAT612256 CKB 13492 and hypothecated the said vehicle with O.P No-1 by away of first charge.
The further case of the answering O.P’s is that the complainant has been a chronic defaulter in repayment of the loan amount as he failed to repay the installments for the month of May to July2012, September and October2012, December2012,January and Febuary2013 and onwards. And in view of the said defaults a substantial amount became due against the complainant and hence the O.P’s asked to clear the dues to which complainant failed to repay. Thereupon, in view of clause-23 of the agreement the O.P’s preferred application before the sole arbitration vide arbitration proceeding No-Lot 13/N13/N-78 of 2012 under Sec-17 of the Arbitration and conciliation Act,1996 whereby and where under the learned Arbitrator vide order dated 08.12.2012 directed complainant to hand over the possession of the said vehicle to the O.P’s and then passed Award on 07.03.2013 directing complainant to pay a sum of Rs.1,94,713/-(One lac ninety four thousand seven hundred thirteen) with interest @of 18%p.a. but despite notices and reminder to the complainant he failed to pay the dues and hence in exercise of its right under the agreement the answering O.P’s took possession of the said vehicle on 30.04.2013 and gave intimation to the police on 30.04.2013.
The further case of the O.P’s is that by letter dated 30.04.2013 they called upon the complainant to clear the outstanding dues failing which the said vehicle would be sold and the sale proceeds would be adjusted against the claim of the O.P’s however, despites receipt of notice dated -30.04.2013 the complainant failed and neglected to liquidate the outstanding dues and hence the O.P’s compelled to sale the said vehicle and adjusted the sale proceed in satisfaction of its claim. The answering O.P’s has denied the assertion of the complainant made in Para-5 of the complaint petition and replied that at no point of time they had taken any blank cheque from the complainant .They have further claimed that in order to cover up loan repayment defaults the complainant has dragged the O.P’s in this case. They have also claimed that the answering O.P’s are no where responsible for the deficiency of services and the instant proceeding liable to be dismissed with cost against them.
5. We have heard the argument of the learned counsel for the parties and gone through the record along with the material and documents attached therein.
6. Both the parties in support of their respective cases have led oral as well as documentary evidence .The complainant in support of his case has adduced affidavited statements of as many as 04 witnesses out of them C.W.No-01 Jayanta Kumar Dutta is the complainant himself, C.W.No-2 Kaushik Dutta, C.W.No- 3 Kumar Sanu Dutta and C.W.No-4 Nishant Gaurav Dutta are the sons and nephew of the complainant and witnesses on the facts. Besides oral evidence the complaint has adduced following documents, which have been marked Exhibits as follows:-
Ext-1.Photo copy of sale certificate dated-23.03.2012;
Ext-2 .Photo copy of tax invoice dated 27.03.2012;
Ext-3.Photo state copy of vehicle delivery acknowledgement note;
Ext-4.Photo state copy of certificate of surrender of the vehicle;
Ext-5.Photo copy of Cardex -I and Cardex- II dated-27.04.2013;
Ext-6.Photo copy of letter dated-30.04.2013;
Ext-7.Photo copy of monthly installment receipts;
Ext-8.Photo copy of legal notice dated-05.06.2013;
Ext-9.Photo copy of reply of legal notice dated 05.06.2013;
On the other hand O.P’s have filed affidavited statement of one witness as O.P.W.No-1 Hamid Ashraf. They have also filed following documents in support of their case :-
Annexture-1. Photocopy of loan- cum- hypothecation-cum-guarantee agreement;
Annexture-2. Photocopy of loan account statement;
Annexture-3. Photocopy of order dated 08.12.2012, award dated 07.03.201of the Arbitrator;
Annexture-4. Photocopy of pre and post repossession intimation to the police dated- 30.04.2013 along with inventory list;
Annexture-5. Photocopy of presale notice dated 30.04.2013.
7. The points for discussion as emerged on the basis of pleadings of the parties are as follows:-
- Whether Complainant is a consumer of the O.P’s and this case is maintainable in view of Sec-2(i)(d) of the Consumer Protection Act,1986?
- Whether this forum has jurisdiction to entertain this case in view of clause 23 and 24 of the loan-cum-hypothecation agreement dated 31.03.2012?
- Whether the complainant is entitled to the reliefs claimed for?
F I N D I N G S
8. The 1st point for discussion is whether the complainant is a consumer of O.P’s within the meaning Sec-2(1)(d) of the Consumer Protection Act,1986 and this case is maintainable ?
It was contented by the learned counsel for the Opposite parties that this complaint case is not maintainable before this forum as the O.P’s have not breached or violated any of the provisions of the loan cum hypothecation agreement dated 31.3.2012.. In support of their contention relied upon the case of Lt. Col. S.K. Bhatia Vs Punjab Financial Corp. reported in II (2001) CPJ 40(NC).
On the other hand learned Counsel for the complainant has contended that the complainant is a consumer of the O.P’s as the vehicle in question was purchased on grant of loan by the O.P.No-1,which is admitted by them in Para-7 of their W.S. and at the time of filling of this case the O.P’s actually and voluntary carrying business having branch office at Dumka within the local limits of this District Forum where cause of action had actually arisen under Sec-11 of the Consumer Protection Act,1986, thus this complainant is a consumer of O.P’s and this district forum have jurisdiction to entertain this case.
In the present case it has been claimed by the complainant that the vehicle in question was purchased on the financial assistance of O.P No-1 under a written agreement dated-31.03.2012 but due to fraudulent method adopted by O.P’s his vehicle was forcibly seized during the period of contract and sold away against the terms and condition of the agreement.
Sec-2(1)(d) of the Consumer Protection Act,1986,reads as follows:-
Consumer meaning any persons who-
- Buys any goods for a consideration………..
- [hires or avails] of any services for consideration which hhas been paid or promised………[but does not include a person who avails of such services for any commercial purpose].
[Explanation –For the purpose of this clause, “commercial purpose” does not include ………….. earning of his livelihood by means of self employment].
In the aforesaid provision it is clear that any person who buys any good and used by him and services availed by him exclusively for the purpose of earning his livelihood for the purpose of self employment is a consumer. In the present case C.W-1 Jayanta Kumar Dutta in his affidavited statement clearly stated that he purchased a vehicle TATA NANO LX on the financial assistance of the O.P’s for Rs.1,89,000/-( One lac eighty nine thousand)and has been repaying installment regularly and in the mean while without any notice his vehicle was snatch away by the O.P’s . C.W-2 Kaushik Dutta,C.W-3 Kumar Sanu Prasad and C.W-4 Nisant Gaurav Dutta have all supported the case and corroborated the version of the complainant. They have also stated the O.P.No-1 is carrying business at Dumka. O.P.W.No-1 Hamid Aseaaf in his affidavited statement in Para-2 stated that the complainant and O.P’s are in relationship of borrower and lender In Para-6 to 10 of his affidavited statement he has supported the complainant’s case of purchasing TATA NANO LX vehicle on financial assistance of the O.P. No.1 of Rs.1,89,000/-( One lac eighty nine thousand).
Thus on the basis of a pleading, evidence as well as case law’s adduced by both the parties the complainant is a consumer within the meaning of Sec-2 of the Consumer Protection Act,1986. The learned counsel for the complainant has referred a case law reported in-(1)(2010) CPJ 59 (NC) in the case law of “ Orissa Khadhi and village Industries Board Vrs Abhimanyu Sahoo and others” in which Hon’ble NCDRC, New Delhi held that “once a loan is sanctioned the lonee becomes consumer”. In this away it is proved that the complainant is a consumer of O.P’s and this case is perfectly maintainable and the objection raised by O.P’s have no merit.
9.The another point of discussion is whether this forum has jurisdiction to entertain this case in view of clause 23 and 24 of the Loan-cum-hypothecation-cum-Loan agreement dated 31.3.2012?
Learned Counsel for the O.P’s contended that this forum has no jurisdiction to entertain this case in view of clause-23 and 24 of the Loan-cum-hypothecation-cum-Guarantee agreement dated 31.03.2012 and the Arbitrator at Mumbai has only jurisdiction to decide the case in arbitration proceeding and as such the present case is not maintainable before this forum. It was further contented that as the complainant had breached the repayment of loan hence as per the agreement matter was referred to the arbitrator. Moreover as the complainant did not reply to the notice, hence vehicle was repossessed at the direction of arbitrator and in order to satisfy award dated 07.03.2013 vehicle was auction sold. It was also contended that as the award was passed before the complaint was filed before this forum, hence, Award would govern the dispute between the parties and it is binding on the parties. In support of his contention relied upon a case law of “The installment supply Ltd. Versus Kangra Ex-serviceman Transport Co. and Another” reported in 2006 (3) CPR 339 (NC).
On the other hand Learned Counsel for the complainant argued that the provision of the Arbitration Act do not apply to the courts established under Consumer Protection Act,1986 which is special Act established for public purpose. It was also argued by the complainant’s counsel that no notice was ever issued and served to the complainant by the arbitrator in relation to the arbitration proceeding.
Learned counsel for the complainant has relied upon the case of “Aftab Singh Vs. Emaar MGF Land Limited and another” in which Hon’ble NCDRC, New Delhi in its full bench order dated 13.09.2017 held that “ the provisions of the Arbitration Act do not apply to Consumer Courts which is the special Act that have been established for a public purpose”.
The Loan-cum-hypothecation-cum-guarantee agreement dated-31.03.2012 (Annexture-1) which has been executed between the complainant and O.P’s clause-23 reads as under-
“23 Arbitration;
23.1-All disputes, differences and /or claims arising out of this loan agreement or as to the construction, meaning or effect hereof or as to the right and liabilities of the parties hereunder shall be settled by arbitration to be held in Mumbai in accordance with the Arbitration and conciliation Act1996, or any statutory amendments thereof and shall be referred to a person to be appointed by the Lender. In the event of death, refusal, neglect, inability or incapability of the person so appointed to act as an arbitration, the Lender may appoint a new arbitrator. The award of the arbitration shall be final and binding on all parties concerned.”
“Clause 24: Jurisdiction:
24.1 subject to the provisions of clause-23 above, any suit…………shall be instituted only in competent courts at Mumbai”.
Further from perusal of annexture-3 i.e. order dated 08.12.2012 and Award dated 07.03.2013 of the Arbitrator it appears that in these orders no where mentioned that notice of the arbitrator was ever served upon the complainant before proceeding begun. However, in catena of judgment the Hon’ble Supreme Court and NCDRC New Delhi have held that the provision of Arbitration Act do not apply to the Consumer Court’s which is a special Act that have been established for a public purpose. In the full bench of the NCDRC it has been ruled that the Arbitration Act do not bar the jurisdiction of Consumer Courts relying upon the Supreme Court’s judgment passed in “Booz Aller Hamilton Inc Vs.SBI Home Finance Ltd”. Further more in case of “Udaipur Cement Works Vrs Punjab Water Supply and sewerage Board” reported in 1999(1) CPJ at Page-67 (NC) the Hon’ble National Commission, New Delhi held that mere existence of an arbitration clause should not come in the way of aggrieved party for seeking legitimate relief under the Consumer Protection Act,1986, So, existence of Arbitration clause does not constitute bar for the exercise of jurisdiction of the forum.
Therefore we in view of above Principle of law of the Hon’ble Court’s we come to conclusion that this forum is competent to entertain this case and clause-23 and 24 of the agreement dated 31.3.2012 do not constitute bar to the proceeding before this forum. Thus contention of O.P’s lawyer is not acceptable.
10. Now we will discuss and determine whether the complainant is entitled to the reliefs claimed?
It is admitted position of the case that Tata Motors Finance Ltd, Dumka Branch (O.P.No-1) is a non-banking financial corporation engaged in granting loan to the individuals and corporate houses and O.P.2 is the head office of the Tata Motors Finance Ltd, at Mumbai. It is further admitted case of the parties that on the application of the complainant O.P.No-1 Tata Motors Finance Ltd, Dumka granted loan for sum of Rs-1,89,000/- for purchasing a vehicle i.e. TATA NANO LX. After payment of initial installment Rs.14,939/- TATA NANO LX bearing Engine No-273MPFI 07BXYK-13255, Chasis No-MAT612256 CKB13492 was delivered on 27.03.2012 and a sale certificate bearing No clause-A-1112-01334-SC was issued certifying that METOR SILVER- TATA NANO LX up gfrade-103 CR-4 was delivered. Thereafter on 31.03.2012 a written agreement was executed between O.P’s and the complainant in which it was agreed that the complainant shall repay loan with interest in 59 installments , in which the 1st installment would be of Rs.5,045 and rest 58 installments @ of Rs.4,850/-
There appears different case of the parties on the point of repayment of loan as well as the seizure /repossession of the vehicle on account of default in payment of substancial dues as well as auction sale of the said vehicle on the basis of order dated 08.12.2012 and Award dated 07.03.2013 of the Arbitrator,Mumbai.
The complainant’s case as disclosed in his complain petition and short notes of argument is that he paid monthly installment as on 26.06.2012 Rs.5200/-,on 18.07.2012 Rs.10,000/-,on 02.08.2012 Rs.4400/-,on 07.11.2012 ,Rs.5000/- again on 07.11.2012 Rs.16,000/-,on 04.03.2013 Rs.5,000/-, on 31.03.2013 Rs.1,200/- and on 02.05.2013 Rs.4,800/- and as such complainant deposited EMI, in total of Rs.51,650/-. It is also claimed that complainant paid Rs.14,939/- as earnest amount as such the complainant deposited in total of Rs.66,589/- against the loan amount of Rs.1,89,000/-. It is also claimed by the complainant that O.P’s debited Rs.4,850/- from his account on 02.05.2013 through the cheque obtained from him at the time of agreement. The complainant has further claimed that the O.P’s without following term and conditions of the agreement went in Arbitration proceeding and without serving any notice and giving information to him obtained ex-parte order and later when the complainant along with his family member travelling on his vehicle near to Dudhani, Dumka on 25.04.2013 at 8 p.m. his vehicle was illegally with the help of muscleman seized and he was abused in filthy language. The complainant has further claimed that on 25.06.2013 when he served a legal notice upon the O.P’s and then in their reply dated 26.06.2013 the opposite party disclosed that his seized vehicle has been sold in public auction for a sum of Rs.40,000/-. It is alleged that the O.P’s from the very begining adopted fraudulently method by initiating Arbitration proceeding just after five months of grant of loan and ultimately illegally repossessed vehicle and then sold away.
On the other hand the O.P’s have claimed that as the complainant failed to repay the due installments for the month of May 2012,June 2012,July 2012,September 2012,October 2012, December 2012, January 2013, Febuary 2013, April 2013 and onwards and when the loan amount became substantially due then they called upon the complainant to clear dues but he failed to repay the dues of the loan amount. Thereupon they preferred application before Arbitrator at Mumbai in view of clause-23 of the agreement whereupon learned Arbitrator vide order dated 08.12.2012 directed the complainant to hand over the possession of the vehicle in question to the O.P’s and thereafter learned Arbitrator passed Award on 07.03.2013 directing complainant to pay a sum of Rs.1,94,713/- with interest @of Rs.18% p. a but despite notices and reminder complainant failed to pay the dues and hence O.P’s Auction sold the vehicle on 30.04.2013 and gave intimation to the police on same day and adjusted the sale proceeds in satisfaction of its claim.
11. Now, we will scrutinize the evidence of the parties available on record.
C.W.No.1 Jayanta Kumar Dutta in Para-7 of his affidavited statement stated that he was paying EMI as per agreement and deposited a sum of Rs.60,850/-. Further in Para-8 to 10 stated that the O.P’s also realized money by cheque obtained fraudulently besides did not adjust installment amounting to Rs.16,000/- obtained through receipt dated 07.11.2012 and in this away they committed fraud which resulted in dispute. In para-11 of his affidavited statement stated that O.P’s without giving any information about arbitration proceeding forcibly snatched his vehicle on 25.04.2013 at 8 p. m near Dudhani, Dumka while he was travelling with his family members and also abused. Further in Para-13 and 14 of his affidivated statement stated that the O.P’s without considering his pleaders notice and without giving information sold away his vehicle on 22.05.2013 for Rs.40,000/-.In Para-15 and 16 complainant has stated that the Opposite Parties have acted against the agreement and thereby caused financial loss of Rs.3,10,989/- to him and also caused mental tension and physical harassment to him. C.W.No-2 Kaushik Dutta in his affidivated statement has corroborated the version of the complainant and supported the case. Similarly C.W.No-3 Kumar Sanu Dutta and C.W.No-4 Nishant Gaurav Dutta have also corroborated the version of the complainant (C.W.No-1) and supported the entire case.
Now, we will discuss the documentary , evidence adduced on behalf of the complainant .Ext-1 is the sale certificate dated -27.03.2012,Ext-2 is the Tax invoice dated-27.03.2012, and Ext-3 is the vehicle delivery acknlwledgement note dated 05.04.2012. These documents clearly shows that the complainant purchased the vehicle i.e TATA NANO LX 273 MPFI petrol for Rs.1,93,939/- and the vehicle was delivered on 27.03.2012. Ext-5/(2) the Cardex-II dated 27.04.2013 is the repayment statement and Ext-7 series are monthly installment/payment receipts and from perusal these documents it appears that in the cardex-II filed by the O.P’s there is no mention of payment of Rs.16,000/- deposited on 07.11.2012 (Ext-7/3), besides there is no mention of payment of Rs.4,850/- credited to the account of the O.P Tata Motors Finance Ltd. on 02.05.2013 through cheque. These document show that till 02.05.2013 Complainant paid Rs.66,589/- against loan to the O.P’s and thus the claim of O’P’s that complainant always remain defaulter in repayment of EMI’s is not correct though it appeared that complainant for few month remain irregular in repayment of loan but he has paid bulk amount in the month of July2012 and November2012 so the claim of the opposite parties that the complainant committed defaults and substantial loan amount became due which forced O.P’s to initiate proceeding before Arbitrator at Mumbai is not correct.
O.P.W.No-1 Hamid Ashraf the legal officer of O.P’s stated in his affidivated statement in para- 13 that as the substantial loan amount became due against the complainant hence he was asked to clear the dues of loan account. In para-14 and 15 stated that as the complainant failed to clear dues of his loan account hence the o.P’s in view of clause-23 of the loan agreement preferred application before learned Arbitrator Mr. Nitin Chadha at Mumbai vide Arbitration Proceeding No.Lot 13/Arb/B/N13/N-78 of 2012 where by the learned Arbitrator vide order dated 08.12.2012.directed the complainant to hand over possession of the vehicle to the O.P’s and vide order dated-07.03.2013 passed award directing complainant to pay a sum of Rs.1,94,713/- along with interest @18% p.a. In Para-16 and 17 of affidivated statement stated that as the complainant despite notices and reminder failed to pay the outstanding dues hence in exercise of right under the agreement O.P’s took the peaceful possession of the said vehicle on 30.04.2013 and kept in its custody by giving pre and post repossession intimation to the police on 30.04.2013. In para 18 and 19 stated that on 30.04.2013 O.P’s vide letter asked the complainant to clear outstanding dues failing which the vehicle will be sold but as the complainant failed to liquidate the dues, hence, sold the vehicle and adjusted the sell proceeds towards its claim. Annexure-3(i) is the order dated 08.12.2012 of the sole Arbitrator of the arbitration case Lot-13/Arb/B/N13/N-78 of 2012 and Annexure- 3(ii) is the Award dated 07.03.2013 of the Arbitrator and from perusal of both these documents it appears that the matter was preferred before Arbitrator on 08.12.2012 and on the same date the learned Arbitrator passed order to take possession of the vehicle from the complainant and to keep the vehicle in question in safe custody and from perusal of Award dated 07.03.2013 it appears that the matter was disposed of on this date but from perusal of the said order it is no where mentioned that the complainant was served with any notice and despite service of notice the complainant did not appear hence the Arbitration proceeding went ex-parte. This shows that the Learned Arbitrator without affording any opportunity of being heard to the complainant passed Award on 07.03.2013 in pure mechanical manner which is against the principle of natural justice. Furthermore the O.P’s have not filed any document to show that before taking possession of the vehicle any information was given to the complainant.
The Annexure –4 Series are the pre and post repossession intimation to the police as well as to the complainant and also the inventory list dated 30.04.2013. The complainant has filed photocopy of certificate of surrender of vehicle( Ext-4) inventory of item in vehicle. From perusal of the above documents it appears that Ext.4 clearly shows that the vehicle was seized/repossessed on 25.04.2013 at 8 p.m. from Dudhani, Dumka and there is signature of the customer Kumar Sanu Dutta, son of the complainant and this signature on Ext-4 tallies with the signature on C.W.No-3 Kumar Shanu Dutta made on his affidavited statement where as Annexture-4 inventory list filed by the O.P’s shows that the vehicle was repossessed on 30.05.2013 at 5 p.m and the signature on this inventory list of the customer Kumar Shanu Dutta is completely different from the signature of Kumar Shanu Dutta made on the affidivated statemen of C.W.-3.Further complainant has fully proved in his affidavited statement in Para-11 that on 25.04.2013 at 8 p. m his vehicle was forcibly seized when moving on road and no prior information of seizure was given to him. Photocopy of pre and post repossession intimation to police station dated 30.04.2013 show that the O.P’s though has repossessed the vehicle of the complainant at Dudhani, Dumka of Districr-Dumka but gave pre and post repossession intimation to Officer Incharge, Deoghar Town police of district Deoghar on 30.04.2013.Further Ext-6 photocopy of letter addressed to Jayanta Kumar Dutta dated-30.04.2013. Show that this letter was sent through registered but no postal receipt filed. Ext.8 is the legal notice dated-05.06.2013 and Ext-9 is the reply of legal notice dated 26.06.2013 sent by the O.P’s and from From perusal Ext.8 it is clear that the complainant’s vehicle in question was repossessed on 25.04.2013 where as the O.P’s in their reply did not deny that the vehicle was not repossessed on the 25.04.2013 rather they claimed that it was repossessed on 30.04.2013 which they failed to prove.
The documents as discussed above fully proved that vehicle repossessed on 25.04.2013 and no pre and post repossession intimation was given to Dumka police station or to the complainant before repossession. More also all the above documents filed by the O.P’s clearly show that they have purposely been forged and fabricated by the O.P’s in order to justify their illegal seizure and selling away of the vehicle of the complainant.
12. It is also important to mention that O.P’s. preferred application before Arbitrator on 08.12.2012 claiming that there was substantial outstanding dues accrued against the complainant and he was not paying the installments hence went before Arbitrator, whereas it is clearly proved from the above discussions that the complainant from 05.11.2012 till 07.11.2012 deposited sum of Rs.55,539/- against the total due EMI of Rs.53,350/- during the said period and therefore the claim of the O.P about substantial outstanding dues against the complainant which was the reason for moving before Arbitrator is apparently false and against the proved facts.
13. Learned Counsel for the complainant further argued that the O.P’s had forcibly repossessed his vehicle through their agent against prescribed procedure of law as they neither intimated him nor informed to the Dumka police station pre and post forcible repossession.
On the other hand learned counsel for the O.P’s has argued that the financer may repossess the vehicle if the agreement permits and also if there is default in payment of installment in time. In support their claim relied upon the case law of “Surender Kumar Sahoo Vrs Branch Manager Industrial Bank Ltd. decided by Hon’ble NCDRC New Delhi in Revision petition no 3319/2012 the other case law Vijay Tiwari Vrs HDFC, Bank Ltd “decided by Hon’ble’ JSCDRC, Ranchi in FA No.85/2009.
On close examination of the documents we find that entire claim of the O.P’s about defaults and substantial outstanding dues of loan as well as entire exercise of repossession of the vehicle in question was illegal and against prescribed procedure of law . In this connection Hon’ble Supreme Court in a case law reported in S.C.C./2007 Volume-II at page -711 has held that “entire exercise by the company in repossession of the vehicle with the help of Goonda elements is highly deprecated and hence, complainant entitled for the damages of such illegal seizure. In another case law Hon’ble National Consumer dispute redressal commission New Delhi reported in 2009(2) CPR-23 (NC) in case of “Tata Motors Ltd. Vrs Indrasen Choubey and others” have held that “In a case when the vehicle was repossessed by use of force and thereafter sold without informing the complainant, in our view, it would be unjust to direct the consumer to pay the balance amount as alleged by the financer to be outstanding. In such a case if relief given to the money lender/financer it would be unjust enrichment to the money lender and against justice.
Both the above case law’s goes squarely applicable to the instant case of the complainant. In the present case it has been proved on the basis of oral and documentary evidence that the O.P’s have violated the terms and condition of the agreement as well as procedure of law established by the Hon’ble Court’s. We further find that repossession of the vehicle in question was without any valid reason and it amounted also an offence U/S-394IPC i.e. robbery on the highways.
14.Therefore, we comes to conclusion that the complainant is entitled to the entire amount paid by him to the O.P.No.1 besides entitled to compension for mental agony and harassment cause to him by the O.P’s as well as entitled to the cost of litigation. It appear’s that as per the document if find that the complainant deposited a sum of Rs.66,589/- but the complainant in its Complainant petition stated it deposited in total sum of Rs.60,989/- and claimed the said amount, hence as per his case entitled of or Rs.60,989/- only.
15. Considering above facts, circumstances as well as principle of law established by the Hon’ble Court’s we find that the repossession of the vehicle in question with the help of goonda elements and later selling it away in auction sale without information to the complainant is a gross negligency and deficiency in service and also amounted to unfair trade practices on the part of O.P’s.
O R D E R E D
That the case be and the same is allowed on contest with cost against Opposite Parties i.e. O. P. No.(1) Tata Motors Finance Ltd. Branch, Dumka and O.P. No.(2) I Think Techno Campus, Thane Mumbai, (Maharashtra). They are found jointly and severally liable for their act of negligency and deficiency in service. They are directed to refund total amount of installments Rs.60,989/- ( Sixty thousand nine hundred eighty nine) recoverd from the complainant. We further direct to pay a lump sum compensation of Rs.50,000/- (Fifty thousand) for causing mental tension and physical harassment to the complainant and also direct to pay Rs.10,000/-(Ten thousand) towards cost of litigation. Besides O.P’s are liable to pay interest @12% p. a on the awarded amount from the date of repossession of the vehicle i.e. 25.04.2013 till its final payment to the complainant.
We further direct O.P’s to comply this order within 60 days from the date of receiving copy failing which necessary action as contemplated under Sec-25 and 27 of the Consumer Protection Act, 1986, will be initiated.
The office clerk is directed to supply copy of the order to the parties or their lawyer free of cost.
This case, is thus stands, disposed accordingly.
