Hon’ble Mrs. Rumpa Mandal, Member.
The basic fact of the case of the Complainant Bedobrota Barma in brief is that the complainant purchased the vehicle No. WB-64-J/9284 Mahindra Bolero with the financial help of opposite party Mahindra and Mahindra Financial Service Ltd. the branch –in-charge, Cooch Behar branch and after full satisfaction O.P sanctioned loan vide loan agreement No. 6778699 dated 29.01.2020 with 40 EMI of Rs.14,720/- and accordingly Complainant paid EMI but due to some financial problem in Covid-19 situation 3 EMI were not paid. Copy of loan account statement is Annexure-1. On 07.07.2022 at about 6:15 pm 10/12 person seized the car of the Complainant unauthorisedly on the road. But at the time of seizer of vehicle O.P did not produce any order of the seizer of the vehicle and identity card of the seizer persons. The O.P did not follow any rules and regulation of seizer person and did not sign. Annexure -2 is the copy of the seizer list dated 07.07.2022. No notice was sent by O.P to the Complainant. So the seizer of the vehicle is not done as per law. Complainant sent complaint to the O.P and O.P replied on 08.07.2022 started request case No. CAS-2979650-QOG528. Copy of the request is annexure -3. Subsequently Complainant paid total due installments on 08.07.2022 along with vehicle release charge Rs.10,000/- and opposite party assured that after receiving of EMI amount to Rs.68,460/- from the Complainant. But O.P intentionally released the vehicle on 09.07.2022 at 6pm i.e. next day and O.P unauthorisedly received 1(one) day entry parking charge i.e. Rs.118/-. The O.P sent release O.T.P to ganesh yard vide T.P No. 691092 after lapse of one day( copy of OTP is annexure 5). On 11.07.2022 Complainant sent written complaint before the O.P through email but till today O.P did not reply the same. Copy of emails are annexure 6 & 7. Complainant submits that the O.P rescheduling the installment of loan on 17.06.2021 but op did not accept the rescheduling loan. The Complainant further submits that due to illegal activities of the O.P, Complaint further submits that due to illegal activities of the O.P, Complainant loosed his reputation as well as financial loss. So the above activities of the O.P is clearly deficiency in service. The cause of action arose on 29.01.2020 when the loan was granted and on 07.07.2022 when illegal seized the vehicle and on 08.07.2022 when the Complainant deposit total EMI and on 11.07.2022 when Complainant filed the Complaint and still containing. So the Complainant filed this case for seeking several reliefs.
O.P Contested the case by filing W.V, evidence on affidavit O.P states that the Complainant has approached the O.P to seek financial assistance in order to purchase a Mahindra BOLERO ZLX BS4 Power on hypothecation and after verifying the credentials, a loan of Rs.3,90,000/- along with finance charge of Rs.1,77,235/- at the total agreement value of Rs.5,67,235/- and the amount was sanctioned vide loan agreement No.6773699. O.P further submits that Complainant paid Rs.68,460/- but mentioned in the money receipt annexed by the Complainant amounting to Rs.58,460/- the remaining amount of Rs.10,000/- was paid for releasing the vehicle, which is not at all illegal as per the agreement between the Complainant borrower and the lender. O.P state in his W.V that the Complainant has not fulfilled his obligation arising out of the loan agreement by not paying the installment promised on due dates for which O.P charged amounting to Rs.12,419/- for delay payments charges which is still due as on 7th November, 2022 and Complainant intentionally suppressed this before this Ld. Commission. So there is no deficiency in service on the part of the O.P and the Complainant had no reason to suffer in any manner. Accordingly the O.P prayed for dismissed at the instant complaint.
The conflicting pleading of both the parties led this commission to set the following points for determination.
Points for determination
- Whether the case in maintainable in its present form & prayer?
- Whether there is any deficiency in service on the part of the O.P?
- Whether the Complainant is entitled to get relief?
- So what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The present case is related between the borrower and the lender. As per terms of the agreement Complainant purchased the vehicle, Mahindra Bolero with financial help of opposite party and after full satisfaction the O.P granted loan vide loan agreement No. 6778699 dated 29.01.2020 with 40 EMI of Rs.14,720/-.
After perusing the pleading of the parties and the evidence in the case record it transpires that Complainant is a consumer under section 2(d) of consumer protection act 2019.
The Ld. Advocate for the O.P argued that the said vehicle was used for commercial purpose and not for personal use.
The O.P evasively denied that the case does not fall within the perview of consumer protection Act but O.P does not file any supported documents to prove that the vehicle is used for commercial purpose. But O.P did not deny that Complainant case is not maintainable in its present form and prayer. Although the O.P denied that there was no gross negligence and deficiency in service, yet after perusing the pleading of the parties and the evidence on record it can reasonably be held that the Complaint case is maintainable under the consumer protection Act.
Accordingly, the point No. 1 is decided in favour of the Complainant.
Point No.2, 3 & 4.
All the point are very closely interlinked with each other and as such there are taken up together for brevity and convenience of discursion.
The main allegation of this case raised by the Complainant is that although after paying total due installments on 08.07.2022 and also paying vehicle release charge amounting to Rs.10,000/- the O.P illegally and unauthorisedly released the vehicle on 09.07.2022. So the vehicle was re- possessed by the O.P extra 1 (one) day and received the extra parking charge of Rs.118/-. The O.P sent release OTP to ganesh yard vide OTP No.691092 after lapse of one day.
So, the Ld. Advocate submit that the lapse of one day is totally illegal and deficiency in service.
Actually O.P did not supply the statement of account but the Complainant duly paid the installment. Therefore, it is found that the Complainant is not in the habit of default in payment due to Covid-19 situation 3 EMI was not paid. After sending request by the O.P to the Complainant as per annexure-3. Complainant paid the total due installments and along with vehicle release charge of Rs.10,000/-. On 08.07.2022 the vehicle was released and the O.P received Rs.68,460/- from the Complainant.
It is also important to consider that as per the agreement, notice must be given before re-possession of the vehicle but the O.P has not issued any notice before re-possession of the vehicle. The Complainant in order to substantiate the case proved annexure-3 being statement of account.
As per clause 12 of the agreement the lender has right to recover the loan along with interest but the said agreement does not contain any provision for re-possession of the vehicle without any notice.
Even as per clause 12(c) notice of demand must be given by the lender against the borrower. Re-possession of the vehicle without notice is contrary to the O.P acted in a manner which is contrary to law. Thus O.P acted in a manner which tantamounts to deficiency in service.
Accordingly point No.2, 3, 4 & 5 are answered in favour of the Complainant.
In the result, the Complaint case succeeds on contest with cost.
Hence it is,
Ordered
That the Complaint case No. CC/38/2022 be and the same is allowed on contest with cost of Rs.5,000/-. The Complainant do get an award of Rs.50,000/- as charge for releasing the vehicle and Rs.50,000/- for deficiency in service and mental pain and agony. The opposite party is directed to pay total amount of Rs.1,05,000/- from the date of passing the final order to the Complainant within 30 days failing which the Complainant shall be entitled to get @ 6% p.a from the date of passing the final order.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available on www.confonet.nic.in.
Dictated and corrected by me.
