Orissa

Cuttak

CC/12/2019

Jhunilata Rout - Complainant(s)

Versus

Tata Motors Finance Ltd - Opp.Party(s)

P K Mohanty

21 Apr 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C No.12/2019

Smt  Jhunilata Rout,

W/o Litu Rout,

At E-20,OTM Labour Colony,

Choudwar,Dist-Cuttack.                                                                                .... Complainant.

 

                                 Vrs.

 

1.      Authorized Officer,

                            M/s. TATA  Motors Finance Ltd,

                          Regd Office At- 10 Floor,106 A & B Maker Chambers III,

                          Nariman Point,Mumbai,

                          Maharastra.

 

2.        M/s. TATA Motors Finance Ltd.,

At:NearArundaya Market,

                             Link Road,Dist:Cuttack.

 

3.        Regional Office,

                             M/s. TATA Motors Finance Ltd.,

                             At:Sahidnagar,Bhubaneswar,

                             Dist:Khurda.                                                                                          ....OPP.Parties

 

Present:               Sri Debasish Nayak,President.

                             Sri Sibananda Mohanty,Member.

 

Date of filing:    22.01.2019

Date of Order:  21.04.2023

 

For the complainant:                    Mr. P.K.Mohanty,Adv. & Associates.

For the O.Ps              :                   Mr. D.P.Tripathy,Adv. & Associates.

 

Sri Debasish Nayak,President.                                                           

Case of the complainant bereft unnecessary details as made out from the complaint petition in short is that she had obtained finance from the O.Ps in order to purchase a truck bearing Regd. No.OD04H2000,Engine No.B591803251L63477219 and Chassisno.MAT466395F1N26121 and had thereby entered into a contract with the O.Ps bearing no.5001928398 which was executed on 14.12.2015 whereas the loan amount was of Rs.24,02,300/-.  As per the agreed terms and conditions, she was paying the loan instalments from 2016 till 2019 through the office-bearers of the O.Ps.  It is alleged by the complainant that the O.Ps through their office-bearers were imposing different charges upon her illegally and her vehicle was unnecessarily detained by the office-bearers of the O.Ps at different places while plying on the road and as a result of which she had sustained heavy loss in her business.  The complainant had communicated about the same by writing to the O.Ps and when no action was initiated she had sent  pleader’s notice also to them.  Ultimately, she has come up with this case claiming a sum of Rs.3,00,000/- towards loss of her business, a sum of Rs.50,000/- towards her mental agony, a sum of Rs.30,000/- towards humiliation against the claim, a sum of Rs.20,000/- towards her legal expenses and also a sum of Rs.10,000/- towards her other miscellaneous expenses.  Thus, in total the complainant has claimed a sum of Rs.4,10,000/- from the O.Ps.  The complainant has further stated that she had paid a sum of Rs.19,28,843.50p out of the loan amount of Rs.22,00,000/-.  The O.Ps had appointed Arbitrator and there was Arbitration proceeding vide Case No.TMFL/9262 of 2018.  When the said truck of the complainant was under repair on 4.2.19 the recovery personnels of the O.Ps had forcibly seized her truck without following due procedure.  When she approached the O.Ps on 27.10.18 in this connection, she was intimated that the outstanding due from her was of Rs.14,47,814.98p which according to her is completely imaginary and baseless.

          In order to prove her case the complainant has filed copies of certain documents alongwith her complaint petition.

2.       The O.Ps have contested this case and have filed their written version jointly.  According to the written version of the O.Ps, the case of the complainant is not maintainable.  They admit about the Loan-cum-Hypothecation agreement which the complainant had executed alongwith them and they urge that they had exercised their rights under the provisions of law only when the complainant had failed to repay the instalments as per the agreement.  They admit that the complainant had taken a loan of Rs.22,00,000/- from them vide the said Loan-cum-Hypothecation agreement bearing no.5001928398 on 14.12.2015.  The loan was to be repaid in 57 number of instalments out of which, the first instalment was of Rs.23,048/-, the second instalment was of Rs.23,044/- and the third to fifty-seventh instalments were to be repaid @ Rs.59,907/- effective from 11.1.2016 to 11.9.2020.  When the complainant defaulted in paying the agreed instalments, Arbitrator was appointed who had passed his award on 24.1.2019.  Thus, according to the O.Ps, the case of the complainant is not maintainable and for the same they have relied upon a catena of decisions which they have mentioned in their written version ultimately praying therein to dismiss the complaint petition as filed by the complainant.

          The decisions as relied upon by the O.Ps are:  (1) In the case of Instalment Supply Limited Vs. Kangra Ex-Seerviceman Transport Co. & Anr. Reported in (2007) 1 CPJ 34, wherein Hon’ble National Commission held that ‘The issue involved in this case is whether a complaint can be decided by the Consumer Fora after an arbitration award is already passed.  The simple answer to this question is, No.”  (2) In the case of Bharti Knitting Company Vs. DHL Worldwide Express Courier (1996) 4 SCC 704, decided by the Hon’ble Supreme Court wherein it was held that when the complainant signs the contract documents, he is bound by its terms and conditions and the onus would be on him to prove the terms and the circumstances, in which he has signed the contract.  They have relied upon another decision of the Hon’ble Apex Court in the case of Managing Director, Rix Auto Finance (India) Ltd. Vs. Jagmander Singh & Anr.,(2006) 2 SCC 598 and also in case decided by the Hon’ble National Commission in the case of Manager, St. Marry’s Hire Purchase vs. M.A.Jose, III 1995 CPJ 58 (NC) that there is no legal impediment on the financier to repossess the vehicle in terms of the Hire Purchase Agreement on failure of the Hirer to pay the due instalments.  They have further relied upon another decision of Hon’ble National Commission in Mahindra and Mahindra Financial Services Ltd. & Ors. Vs. Mohanlal Markandey, III (2006) CPJ 261,wherein it was decided that proceedings under the Consumer Protection Act envisage a summary procedure of complaints of simple nature and the complicated questions of law and facts can be decided only by a civil court.  Thus, it is the contention of the said O.Ps to dismiss the complaint petition as filed.

3.            Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

 

The complainant has filed her evidence affidavit which when perused, it is noticed to be a reiteration of the averments as made by her in her complaint petition.

Issue no.ii.

Out of the three issues, issue no.ii  being the pertinent issue in this case, is taken up  first for consideration.

Admittedly, here in this case, the complainant had obtained a loan to the tune of Rs.22,00,000/- from the O.Ps and entered into a Loan-cum-Hypothecation agreement with them on 14.12.2015 thereby abiding to the terms and conditions therein regarding the repayment of the loan.  It is alleged by the O.Ps that when the complainant became a defaulter, they had to proceed as per the terms and conditions of the agreement and took over possession of the financed truck.  Thus, according to them, there was no deficiency in their service as alleged by the complainant.  Admittedly there was Arbitration award in this case on 24.1.2019.  As per the annexures made in this case, it is noticed from the copy of the letter addressed to the complainant pertaining to Agreement no.5001928398 wherein the O.Ps have written to the complainant to repay the arrear outstanding amount of Rs.14,47,815/- within three days as because she had defaulted in paying the regular E.M.Is and there was award of the learned Arbitrator passed on 24.1.19 in this regard.  As it appears here in this case that the complainant has nothing to say about her default in making payment of the E.M.Is to the O.Ps.  When she had defaulted and had thereby violated the terms and conditions of the Loan-cum-Hypothecation agreement executed by her earlier, the O.Ps were thereby entitled to proceed as per the law for repossession of the financed truck keeping in mind the citations as relied upon and from the facts and circumstances of this case, this Commission finds no deficiency in service on the part of the O.Ps as alleged.  Accordingly, this issue is answered against the complainant.

Issue no.i.

While perusing and scrutinizing the averments of the complaint petition as filed by the complainant and also while going through the evidence affidavit of the complainant herself, it is quite strange to notice that the complainant has nowhere mentioned that if she had purchased the said truck to earn her livelihood or to maintain her family.  Thus, it seems that the complainant had purchased the truck for commercial purpose only which does not make herfall within the ambit of the definition of “consumer” as envisaged in the Consumer Protection Act,  for which the case as filed by the complainant cannot be termed to be maintainable here in this case.  Accordingly, issue no.i also goes against the complainant.

Issue no.iii.

From the above discussions and from the facts and circumstances of this case, it is concluded that the complainant is not entitled to any of the reliefs as claimed by her.  Hence it is so ordered;

ORDER

Case is dismissed on contest against the O.Ps and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 21^st  day of April,2023 under the seal and signature of this Commission.        

                                                                                                                  Sri Debasish Nayak

                                                                                                                             President

 

 

 

                                                                                                 Sri Sibananda Mohanty

                                                                                                                   Member