Haryana

Ambala

CC/91/2018

Virender Singh Bajwan - Complainant(s)

Versus

TATA Motors Finance Ltd - Opp.Party(s)

Pardeep

23 Apr 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint Case No.:  91 of 2018.

                                                          Date of Institution           :   09.03.2018.

                                                          Date of decision    :   23.04.2021

 

Virender Singh Bajwan son of Lt. Sh. Prem Singh r/o Badiyal, Morni Hills Tehsil and District Panchkula, Haryana.

                                                                                       …. Complainant.                                                Versus

1. TATA Motors Finance Limited, Branch Office 139-140, Sector 9C, Chandigarh through its Branch Manager.

2. M/s Pasco Motors, Ambala Road, Barwala, Tehsil and District Panchkula, Haryana through its Manager.

3. M/s PASCO Motors NH-73, Ambala Jagadhri Road, Dosarka, District Ambala, Haryana through its Managing Director.

              

          ..…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Complainant in person.

Shri Sanjeev Vashisht, Advocate, counsel for the OP No.1.

OPs No.2 and 3 already exparte.

         

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’), praying for issuance of following direction to them:-

1. To refund the cost of the vehicle alongwith interest @ 18% p.a.
2. To pay Rs.3,00,000/- as compensation on account of financial loss, mental agony & physical harassment suffered by him.
3. To pay Rs.70,000/- as litigation expenses.
4. To return all the 50 cheques issued by the son of the complainant namely Harikesh Bajwan in favour of OP No.1. 
5. To correct the CIBIL (Credit Information Bureau (India) Limited) score of the complainant and of his son, Harikesh Bajwan.
   382.  

Any other relief which this Hon’ble Commission may deem fit.

 

Brief facts of the case are that on 26.07.2013, complainant purchased Tata Pickup Double Cabin Silver Colour XENON Dicor bearing Chasis No.MAT464203DSG02709 and Engine No.DICOR06FWY630485 for Rs.6,69,000/-, from the OP No.2. He purchased the said vehicle after obtaining loan from the OP No.1, which was repayable in 59 monthly installments of Rs.18108/- each. Complainant paid Rs.36,216/- in advance for the two installments, Rs. 6518/- as processing charges, Rs.200/- as service charges and Rs.76936/- for insurance of the vehicle, for four years. The son of the complainant stood guarantor, who was having account in the Punjab National Bank, Morni. The OP No.1, took 50 cheques bearing Sr. No.431551 to 431600 each of Rs.18108/- from his son and also got his signatures on some blank papers. Complainant had driven his newly purchased vehicle only for 85 kms and thereafter parked the same in the parking area of OPs. Complainant purchased the said vehicle for earning his livelihood but just after one week of its purchase, when it had run only 85 kms, there was a problem of over race, oil filter got turned and engine oil spilled out. On 02.08.2013, complainant informed, Shri Raman Goyal, Manager of OP No.2 on his mobile No.09820-32720. Said Shri Raman Goyal told him that it is a minor defect and drive the vehicle carefully. Thereafter, for about 20 days the complainant drove the vehicle very carefully but in the evening on 13.08.2013, he had to go to Ambala, for some urgent work and just after starting the vehicle when complainant put it in first gear, it became over race and he had to switch off the vehicle. Complainant also noticed that oil filter got turned and engine oil spilled out. He informed Shri Raman Goyal, Manager of OP No.2 that due to pressure, the oil filter below the engine got turned and engine oil spilled out. The Manager told the complainant that the mechanic will come from Dosarka alongwith parts and oil and he has to pay for the same alongwith labour charges. Complainant having been left with no other option had agreed to the said proposal. Resultantly, one Mechanic came and after repairs had charged Rs.7000/-, from the complainant. On the next day, when the complainant started the vehicle, he found the same problems of over race, oil filter got turned and engine oil spilled out. Complainant tried his best to contact Shri Raman Goyal, on his phone but he did not receive his call, rather gave it to his assistant. Thereafter, complainant continuously tried to contact him on telephone No.98120-32720and other No.01731-274275 but every time some assistant or mechanic attended his call. Neither the Manager nor any responsible person talked to complainant because they knew that there is a manufacturing defect in the vehicle and the same cannot be rectified by a minor repair. Complainant continuously for three to four months had taken his vehicle to the OPs No.2 and 3, for removal of the defects.  In the month of December, 2013 complainant took his vehicle to the workshop of M/s PASCO Motors, Dosarka, even on the said day Shri Raman Goyal, Manager did not meet the complainant and some workshop incharge and two mechanics drove his vehicle and after a minor repair, returned the same to the complainant, but the same problem again occurred. At the time of taking delivery of the vehicle, the OP No.2 and 3, assured to give help of every kind but due to these problems, complainant could not get his vehicle, registered with the registering authority. Besides this, the complainant could not achieve the motive, for which he had purchased the vehicle. Complainant again informed about the problem in the vehicle to the Manager and Incharge of the workshop, telephonically; they asked the complainant to bring the vehicle to the workshop. In the month of January, 2014, he again took his vehicle to the workshop at Dosarka, where he was made to sit in the waiting hall and in the evening, after minor repairs, the workshop incharge assured that the vehicle is okay, whereas the mechanic of the workshop told him that for rectification of the problem, chassis and the cabin has to be separated and the defect has to be detected with the help of computerized system and it will take two to three weeks. Despite the best efforts made by the complainant, he was not allowed to meet Shri Raman Goyal, Manager, rather he was asked to come again after two or three days. After three days, complainant again went to the workshop; the mechanic kept his vehicle there and told him to come after two or three weeks. Complainant made written complaints/representations dated 5.8.2013, 14.8.2013, 5.9.2013, 2.10.2013, 23.11.2013, 22.12.2013, 25.01.2014, 18.02.2014, 7.7.2014, 10.12.2014, 2.4.2015 and 3.8.2015. These complaints were duly received by the OPs but they neither handed over the vehicle to the complainant after its repair nor communicated with him. He was astonished to receive a notice dated 6.10.2015, which was sent by Shri Amit Kamboj, on behalf of OPs No.2 and 3, stating therein that the vehicle is lying parked, in Pasco Motors, Dosarka. Complainant was pressurized to pay Rs.100/- per day as parking charges w.e.f 31.01.2013, whereas complainant purchased the vehicle on 26.07.2013 and sent to the agency in the month of January 2014. It is further stated that complainant had paid only two installments and thereafter he could not pay the due instalments in time due to non repair of the vehicle by the OPs No.2 and 3. On 29.12.2015, OP No.1 took the possession of the vehicle, without informing the complainant about any amount outstanding against him and no notice for the repossession was given to the complainant before seizing his vehicle. The vehicle of the complainant was repossessed from the Pasco Motor, Dosarka by the OP No.1 with the help of OPs No.2 and 3. The OP No.1 sold his vehicle unlawfully without giving any notice to the complainant, as a result whereof he lost an opportunity to make a bid to purchase the said vehicle. By doing so, all the OPs have committed deficiency in service. Hence, the present complaint.

2.       Upon notice, OP No. 1 appeared through counsel and filed written version, raising preliminary objections regarding maintainability, not come with clean hands, jurisdiction etc. On merits, it is stated that in the month of July, complainant approached the answering opposite party for grant of loan, for purchase of the TATA XENON vehicle. The answering opposite party considered the request of the complainant and granted 100% credit facility of Rs. 6,69,000/- i.e. the value of vehicle.  The total contract value of the loan was Rs. 10,68,372/- (loan amount of Rs.6,69,000/- + Finance Charges of Rs. 3,22,436 & Insurance provision of Rs.76936/-). The said amount was repayable in 59 EMIs of Rs. 18108/- each. Complainant paid two installments of Rs. 18108/- in advance and balanced 57 installments were to be paid by way of future installments. Complainant and his son signed the loan agreement after admitting the contents and agreed to adhere to financial discipline of the loan agreement by making the payment of agreed instalments in time. It is further stated that the complainant failed to adhere the financial discipline and continuously made default in making the monthly instalment. Complainant paid only two instalments and thereafter he stopped paying the monthly installments. The most of the cheques, which were received towards payment, got dishonoured. The answering opposite party requested the complainant time and again to adhere to the financial discipline, but he failed to do so. It was wrong that the vehicle of the complainant was forcibly snatched rather on 09.12.2015, complainant himself surrendered the vehicle through Pasco Motors, Ambala, for clearance of loan amount. It is further stated that the answering opposite party tried to sell the vehicle for highest value but could not match up the dues. The vehicle was sold on 14.06.2016 for an amount of Rs.2,30,000/- and an amount of Rs.15,33,674.67 is still due against the complainant. The dispute is between the complainant and the dealer. As per the terms and conditions of the loan agreement, the answering OP being the financer is legally entitled to recover the loan amount from the complainant. The OP No.1 is also entitled to sell the said financed vehicle to offset complainant’s loan liability. The rest of the allegations levelled by the complainant were denied for want of knowledge and prayer has been made for dismissal of the present complaint with costs.

3.                Upon notice, opposite parties No.2 and 3 failed to appear before this Commission and they were proceeded against ex-parte vide order dated 29.07.2019.

4.                Complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 to C-21 and closed the evidence. On the other hand, the learned counsel for the OP No.1 tendered affidavit of Shri Vikas Yadav, Branch Legal Officer, Tata Motors Finance Limited, SCO No.223, Ist Floor, Sector-12, City Centre, Karnal (Haryana), as Annexure RW1/A alongwith documents Annexure R-1 to R-9 and closed the evidence on behalf of OP No.1.

5.                We have heard the complainant and learned counsel for OP No.1 and carefully gone through the case file and also the written arguments filed by the complainant as well as learned counsel for the OP No.1.

6.                The complainant has contended that for earning his livelihood he purchased the vehicle in question on 26.07.2013 from OP No.2 after taking the loan from the OP No.1. However, after one week of its purchase, when it had run only for 85 kms, there was problem of over race, oil filter got turned and engine oil spilled out. He approached the OPs No.2 and 3 for rectification of the said problems but they failed to rectified the said problems even after repeated repairs, which shows that there was a manufacturing defect in the vehicle in question. He further contended that due to manufacturing defect in vehicle in question he could not ply the same for earning his livelihood and failed to repay the due loan instalments to OP No.1.  He received a notice from the OP No.1 for deposit of the outstanding amount. He contacted the OP No.1 explained all the circumstances regarding default in payment of instalment and requested it to give two to three months time to deposit the due loan instalments. However, the OP No.1 did not pay any heed to his request and on 09.12.2015, snatched his vehicle forcibly and sold it without giving him notice. The OPs No.2 and 3 by selling him a vehicle having inherent manufacturing defect and the OP No.1 by repossessing and selling his vehicle, without giving him a notice, have committed deficiency in service.

7.                 On the contrary, the learned counsel for the OP No.1 has argued that complainant has to pay the loan amount in 59 installments but he had paid only two installments and failed to pay the remaining due loan installments. Since, the complainant could not pay the loan installments therefore he himself surrendered the vehicle in question. As terms and conditions of the loan agreement the OP No.1 being the financer is legally entitled to recover the loan amount from the complainant and is entitled to sell the said financed vehicle to offset the loan liability of the complainant. The OP No.1 has not committed deficiency in service, therefore the complaint filed by the complainant against it may be dismissed with costs.

8.       First contention of the complainant is that the vehicle in question was suffering from defects i.e. there was a problem of over race, engine filter got turned and engine oil spilled out and even after repeated repairs, the engineer of the OPs No.2 and 3, failed to remove the said defects, which shows that there is manufacturing defect in the vehicle in question. It may be stated here that no documentary evidence has been produced by the complainant to prove that the defects referred to above could not be rectified either by repair or replacing the defective part(s). Even there is no report of any expert, in the field of Automobiles/mechanics, to prove that there is any manufacturing defect in the vehicle in question. Therefore, this contention of the complainant that the vehicle in question is having manufacturing defect is not sustainable, hence rejected and the complaint filed by the complainant against the OPs No.2 and 3 is liable to be dismissed being devoid of merits.

                   The second contention of the complainant is that as there was a manufacturing defect in the vehicle in question, he could not ply it to earn his livelihood and failed to repay the due loan installments. He requested the OP No.1 to grant him sometime for repay the due loan instalments. However, the OP No.1 repossessed his vehicle and sold it, inconvenience with the OPs No.2 and 3, without giving him notice. The consent letter for surrender of the vehicle in question was not given by him but by the employee of the OP No.2. It may be stated here that in the case of M/s Magma Fincorp Limited Vs. Rajesh Kumar Tiwari decided on 01.10.2020 The Hon’ble Supreme Court of India has held that:- the financer being the owner of the vehicle which is a subject of a hire purchase agreement, there can be no impediment to the financer taking possession of the vehicle when the hirer does not make payment of installments/hirer charges in terms of the hire purchase agreement. However, such repossession cannot be taken by recourse to physical violence, assault and/or criminal intimidation. Nor can such possession being taken by engaging gangsters, goons and muscleman as so called recovery Agents. If the hirer purchase agreement provides for notice for the hirer before repossession, such notice would be mandatory. Notice may also be necessary, if a requirement to give notice is implicit in the agreement from the course of conduct of the parties. If the hirer commits breaches of the conditions of a hire purchase agreement which expressly provides for immediate repossession of a vehicle without further notice to the hirer, in case of default in payment of hire charges and/or hire instalments repossession would not be vitiated for want of notice.  However, a duty to give notice to the complainant before repossession, was implicit in the Hire Purchase Agreement. In a case where the requirement to serve notice before repossession is implicit in the hire purchase agreement non service of proper notice would tantamount to deficiency of service for breach of the hire purchase agreement giving rise to a claim in damages. Complainant consumer would be entitled to compensatory damages, based on an assessment of the loss caused to the complainant by reason of the omission to give notice. Where there is no evidence of any loss to the hirer by reason of omission to give notice, nominal damages may be awarded. In the present case, complainant admittedly a defaulter. This is not a case where payment had been tendered by the hirer but not accepted by the financier/lender. However, this fact cannot be ignored that as per term No.8 of the terms and conditions of the loan agreement (Annexure-R/4), for repossession of the vehicle the OP No.1 was required to give a proper notice to the complainant. The OP No.1 has not placed on record the copy of the notice if any served upon the complainant before repossession of the vehicle in question. In view of the principle of law laid down by the Hon’ble Supreme Court of India, in the case of M/s Magma Fincorp Limited Vs. Rajesh Kumar Tiwari decided on 01.10.2020 (Supra). The complainant is entitled to compensatory       damages.  Taking all the facts and circumstances of the present case into consideration we are of the view that the financer OP No.1 shall, pay a composite sum of Rs.15,000/- to the complainant towards damages for deficiency in service and costs for omission to give the complainant a proper notice before taking repossession of the vehicle.

9.                In view of the aforesaid discussion, we hereby dismiss the present complaint against the OPs No.2 and 3 and disposed of the same against OP No.1, with a direction to it, to pay a composite sum of Rs.15,000/- to the complainant towards damages for deficiency in service and costs for omission to give the complainant a proper notice before taking repossession of the vehicle, within 45  days from the date of the receipt of the copy of this order, failing which OP No.1 shall pay interest @ 7% per annum from the date of filing of complaint, till its realisation. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :23.04.2021

 

 

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President