Complaint filed on: 04-11-2017

                                                      Disposed on: 11-08-2018

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

CC.No.98/2017

DATED THIS THE 11^th DAY OF JUNE 2018

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT

SRI.BALAKRISHNA V.MASALI, MEMBER

Complainant: -

Smt.Chandrakala

W/o. Sathish,

R/at No.509/1, Durga Temple Street, Vasanth Nagara, Huliyar, Chikkanayakanahalli taluk, Tumakuru district

(By Advocate Sri.N.Muddhuraja)

V/s

Opposite parties:-    

1. TATA Motors Finance Ltd,

Reptd. by its Branch Manager, 3^rd Floor, FL Prestige Libra, Opp.to Prerana Motors, Lalbag Road, Bengaluru

2. TATA Motor Finance Ltd,  By its Collection officer, 1^st floor, Saraswathi Building, 1^st Cross, SS Puram Main Road, Tumakuru
3. TATA Motors Finance Ltd,

Reptd.by it’s Managing Director, #1, Think Techno Campus building, 2^nd floor, Pokathan road, Thane west, Mumbai, Maharastra State.

                   (OP No.1 and 2 by Advocate

                   Sri.D.P.Kiran Kumar)

ORDER

SMT.PRATHIBHA. R.K.  PRESIDENT

        This complaint is filed by the complainant against the OP No.1 to 3, under section 12 of the Consumer Protection Act, 1986. The complainant prays to direct the OP No.1 to 3 to release the TATA NANO Vehicle bearing No.KA-44-M-2193 to the complainant and to issue clearance certificate in respect of the above said vehicle and to return the blank cheque collected from the complainant and grant compensation of Rs.2,00,000=00 towards mental agony and grant such other relief as deemed fit, in the interest of justice and equity.

2. The brief facts of the complaint is as under.

          The complainant purchased a Nano Car bearing Reg.No.KA-44-M-2193 by availing loan from the OPs. The OPs are non-banking finance company. While sanctioning the loan amount, the complainant had deposited an amount of Rs.35,000=00 as down payment and the Ops had taken five signed blank cheques from the complainant and then the OPs had sanctioned a loan amount of Rs.2,22,000=00. The said loan amount was to be repaid in 60 monthly installments of Rs.5,713=00. The complainant had paid the amount of Rs.3,52,089=00 which is more than contract value since the contract value of the vehicle is Rs.3,42,000=00.

          The complainant further submitted that, 14-10-2017 when the complainant and his family members are going on road at Huliyar for attending the funeral ceremony of their relative all of a sudden the 8 to 10 hired goondas and agents of the OPs suddenly stopped the car on the road and there after forcibly snatched the car key from the complainant’s hands and took away the car. Thereafter the complainant approached the 2^nd OP regarding seizing of the vehicle, but the OPs have told that, there is a due amount of Rs.54,804=00, if the said amount paid by the complainant, the OPs will release the above said seized vehicle.

          The complainant further submitted that, the OPs have illegally charged and adjusted the EMI paid by the complainant towards the following account heads:

1. Rs.13,500=00 towards retainer charges
2. Rs.3,709=00 towards collection charges
3. Rs.4,400=00 towards bank charges
4. Rs.1,970=00 towards legal charges
5. Rs.31,034=00 towards ODC charges
6. Rs.7,000=00 towards repossession charges and
7. Rs.2,500=00 towards document and stamp duty charges.

The complainant further submitted that, the complainant had paid 31 monthly installments through her bank account to the OPs through ECS clearance mode and an amount of Rs.34=00 was debited by the banker of the complainant towards making the ECS clearance such being the case the OPs have not authority to charge an amount of Rs.4,400=00 under the head of bank charges.

The complainant further submitted that, the complainant himself personally was attending the OPs collection centre and paying the remaining 30 EMI on end of every month and the collection agents never visiting the complainant house for collecting the EMI amount. Accordingly the OPs have no authority to impose the charges under the collection charges head.

The complainant further submitted that, the OPs have illegally imposed retainer charges of Rs.13,500=00 and adjusted the same out of the EMI amount paid by the complainant. The OPs have no right to impose overdue charges of Rs.31,034=00 and the complainant has regularly paid the EMI amount on the end of every month up to the last installments amount.

The complainant further submitted that, though the complainant has cleared the entire loan amount to the OPs, the OPs have imposed the illegal hidden charges and forcibly seized the vehicle of the complainant. It is further submitted that there is absolutely no prior notice of any kind was issued by the OPs before seizure of the vehicle. The OPs have violated all the rules, regulations and guidelines issued by the RBI and illegally snatched the vehicle. The OPs not ready to release the vehicle to the complainant on the other hand the OPs are illegally demanding the complainant to surrender the all the original documents like RC, FC etc to the OPs. Hence the OPs have committed deficiency of service and an indulging an act of untrade practice. Hence, the present complaint is filed.               

3. After service of the notice, the OPs have appeared through their counsel and filed common objection, contending interalia as under:

The complaint is not maintainable either in law or on facts. It is further submitted that disputes arising of hypothecation agreement cannot be tried by the consumer forum. The loan hypothecation agreement contains arbitration clause 23 states that all disputes or difference or claims arising out of the loan agreement as to the construction meaning or effective hereof or as to the rights and liabilities of the parties hereunder shall be settled by the arbitration. In view of existence of arbitration clause in hypothecations loan agreement between the complainant and OPs, this forum has no jurisdiction to entertain the complaint.

The OPs further submitted that, the complainant is the RC owner of TATA Nano vehicle bearing No.KA-44-M-2193. The complainant was not prudent in repayment of loan instalments in time.

The OPs further submitted that, as per the terms and conditions of the hypothecation agreement the OPs have seized the complainant’s vehicle. The complainant is a defaulter in not paying the EMIs of the vehicle.

The OPs further submitted that, the OPs are non-banking Financial Institution and operates as per the guidelines of RBI. The accounting system if completely core system and no manual calculations are done and all the accounts systems are done by software which are bought by reputed authorised dealers and timely monitored by governing department of audit and inspections from time to time. 

The OPs further submitted that, the complainant and her co-borrower were sanctioned Rs.2,22,000=00 of loan with 60 installments with a tenure for 5 years. The disbursal was done on 4-7-2012 and first instalment due was on 2-8-2012 and maturity was to be on 2-7-2017. As per clause 17 and 18 the complainant is bound by the events of default and consequences of the same. It is clear that, the complainant and co-borrower was defaulter always and at most of the point they account shows un-cleared amount as on the date. The complainant has not put forth any discrepancies complaint pertaining to their account till date. The loan amount was not cleared off within tenure the vehicle was seized with sufficient opportunity notice to the complainant. Hence, the OPs prayed to dismiss the complaint with exemplary cost, in the interest of justice and equity.

4. In the course of enquiry into the complaint, the complainant and OPs have filed their affidavit evidence reproducing what they have stated in their respective complaint and objection. The complainant has produced documents, which were not marked. The OPs have produced documents which were marked as Doc.1 to Doc.4.  We have heard the arguments of both sides and we have gone through the oral and documentary evidence of both parties meticulously.

5. Based on the above materials, the following points will arise for our consideration.

1. Whether the complainant has proved there is deficiency in service on the part of the OPs?
2. What Order?  

6. Our findings on the above points are;

          Point no.1: In affirmative

          Point no.2: As per the final order below.

REASONS

7. On perusal of the pleadings of the complaint, objection of the OPs and affidavit evidence of both parties, it is an admitted fact that, the complainant is the RC owner of the TATA Nano vehicle bearing No.KA-44-M-2193. At the time of purchasing the above said car, the complainant had availed the loan of Rs.2,22,000=00 from the OPs by paying down payment of Rs.35,000=00. It is also admitted fact that, the loan amount period for 60 monthly installment of Rs.5,713=00.

8. The contention of the complainant is that, the OPs have seized vehicle without giving prior notice or intimation to the complainant.

9. Per-contra, the OPs submitted that, the complainant was defaulter in repaying the loan amount. Hence, the OPs have seized the vehicle of the complainant. The OPs further submitted that repossession of vehicle was taken legally with the knowledge of the complainant with proper intimation. To substantiate their contention, the OPs have not produced any documentary evidence to prove that, the OPs have intimated the complainant before seizing the vehicle.

10. On perusal of the document No 2/loan account statement produced by the OPs, wherein it is seen that, the complainant has not paid the EMI amount of Rs.5,713=00 to the OPs regularly,  instead of that, the complainant  has paid the EMI for her whims and fancies. Of course, the complainant defaulter in repaying the loan amount to the OPs regularly but the Ops are not given prior notice regarding seizing of the vehicle. The Ops have seized the complainant’s vehicle in the middle of the road, without giving an opportunity to the complainant to clear the due loan amount. Thus, the act of the OPs has highly deprecated and condemnable. In our opinion there is a violation of principle of natural justice, Since OPs without giving an opportunity to the complainant/borrower to clear the due loan amount, seized the vehicle from the complainant. This act of the Ops amounts to not only unfair trade practice and also deficiency in service on the part of the OPs, for which the OPs are liable to pay compensation along with litigation cost.  In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint filed by the complainant is allowed.

The OP No.1 to 3 are directed to release the seized TATA Nano vehicle bearing Reg.No.KA-44-M-2193 by receiving due amount of Rs.31,352=00 from the complainant within 30 days from the date of this order.  

The OP No.1 to 3 are further directed pay compensation of Rs.30,000=00 and litigation cost of Rs.5,000=00 to the complainant. 

This order is to be complied by the OP No.1 to 3 within 30 days from the date of receipt of this order.

          Supply free copy of this order to both parties. 

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 11^th day of June 2018).

MEMBER                                          PRESIDENT