Orissa

Debagarh

CC/45/2020

Karunakar Sahu, age 27 years, S/O-Rohit Kumar Sahu - Complainant(s)

Versus

The Branch Manager, Bajaj Finance Limited - Opp.Party(s)

04 Oct 2021

ORDER

BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, DEOGARH

C.C NO- 45/2020

Present-        Sri Dipak Kumar Mahapatra, President, Smt. Arati Das,Member.

Karunakar Sahu,age 27 years,

S/O-Rohit Kumar Sahu,

At-Kandhal,P.O-Kandhal,

P.S/Dist-Deogarh.                                                                                …   Complainant.

Vrs.

1. The Branch Manager,

          Bajaj Finance Limited,

          2nd Floor,Jbs Complex, Udit Nagar,

          Unit-43, Plot No. 290,Rourkela – 769 012.,Odisha.

2. The Branch Head,

          Bajaj Finance Limited,

          Regd Office at-Mumbai Pune Road,

          Akurdi, Pune-411035, Maharastra, India.                                 …   O.Ps.

         Counsels:-

1. For the Complainant:-        Self.
2. For the O.P-1            :-         None.
3. For the O.P-2            :-         Sri. D.K. Guru & Associate, Advocate, Deogarh.

 

DATE OF HEARING : 09.08.2021, DATE OF ORDER : 04.10.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that, on dt. 13.05.2019 the Complainant has purchased a KTM DUKE 125 ABS Bike bearing Chassis No-MD2JPAYA0KC023860 and Engine No-9-901*33306* from RM Motors,Udit Nagar Rourkela vide invoice no-V-sale-0206. The ex-showroom price of the Bike is Rs. 1,23,968/- and down payment paid by the Complainant was Rs.82,369/-. The bike is financed by the O.P-1 for an amount of Rs.67,000/-,EMI is fixed at Rs.2734 for 36 installments. During Corona period from March-2020 he has not paid the EMI for 4 months due to financial problems. On dtd. 12.10.2020, the employees of the O.P-1 without giving any intimation to the Complainant forcibly repossessed the Bike of the Complainant from his house and abused and misbehaved the Complainant along with the family members present at the spot. The O.P-1 informed that the due amount is Rs.19,138/- for 07 installments to release the said Bike . The O.P-1 has neither given prior intimation for repossession of the vehicle nor informed after the repossession. The complainant is facing financial loss, mental pain and agony due to deficiency in service and unfair trade practice caused by the O.Ps. But after filling of this consumer case and after receipt of notice from this Commission, the O.P-1 has handed over the Bike to the Complainant but in damaged condition for which it will be cost Rs. 40,000/- approximately to make the Bike road worthy.

But as per the Advocate for the O.P-2 the financial assistance was given to him vide loan agreement no- L2WROU07190237 for an amount of Rs. 98,424/- for an EMI of Rs.2,734/- which is payable on or before 6^th of every month. But the Complainant is a default in payment of EMI. As per the guidelines of RBI, during COVID-19 Pandemic, Moratorium Policy has been introduced which was from 01.03.2020 to 31.08.2020. The Complainant had neither opted for the same nor paid installments from March-2020 to August-2020. So the loan period was rescheduled to 47 months instead of 36 months. A loan recall notice was sent to the Complainant on dtd. 06.10.2020 for a closer amount of Rs. 93,942/-. The EMI due as on 07.07.2021 amounts to Rs. 29,705/- and other overdue charges are for Rs. 15,418/- and due of future EMIs are Rs. 57,232/-. Further it was submitted that the O.P-2 is having no documents to show that the O.P-2 has not taken the possession of the vehicle. There is no cause of action against the O.P-2 to file this case and the Complainant has no right to hold the installments payable to the O.P-2. 

The O.P-1, despite of service of notice he did not bother to appear before this Commission thus challenging the allegations made by the Complainant. So taking it in to consideration of the fact, this Commission has rightly decided to dispose the case as well setting the O.P-1 as ex-parte in this case. Hence hearing conducted exparte under Rule-6 of Order-9 of Civil Procedure Code.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

 

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchased a new KTM DUKE 125 ABS Bike through finance from the O.P-1 after payment of consideration/down payment. It is seen that in the event of default in payment of 04(Four) EMIs the O.P-1 has repossessed the Bike of the Complainant by engagement of repossession team from his residential house. They seized the said Bike forcefully without prior intimation and notice for payment of outstanding dues. Again the O.P-1 informed him for payment of Rs.19,138/- towards 07(seven) EMIs  to return the said Bike full and final settlement of loan amount which seems to be illegal. It is observed that “the Hon’ble Supreme court has warned financial institution and banks against forcible taking away of vehicles under hire purchase agreement when there is default of payment of loan and said they could be saddled with punitive cost if they do so”. Again it is said that even in case of mortgaged goods subject to Hire-Purchase Agreements, the recovery process has to be in accordance with law and the recovery process referred to in the Agreements also contemplates such recovery to be effected in due process of law and not by use of force.  If any financier of a vehicle resorts to take back the possession in violation of such guidelines or principle as laid down by the Supreme Court such an action cannot but be struck down.  There are  various guidelines framed by the Reserve Bank of India and the Bank themselves, were not followed and more often than not the hypothecated goods, mostly vehicles were forcibly taken possession of by Recovery Agents hired by the financiers. The methodologies adopted by the Recovery Agents were contrary to the guidelines laid down by the Banks themselves and in the decisions of this Court in several other matters, where it has been uniformly indicated that recovery would have to be effected in due process of law and not by the use of muscle power. Views are taken that even in case of mortgaged goods subject to Hire-Purchase Agreements, the recovery process has to be in accordance with law and the recovery process referred to in the Agreements also contemplates such recovery to be effected in due process of law and not by use of force. Till such time as the ownership is not transferred to the purchaser, the hirer normally continues to be the owner of the goods, but that does not entitle him on the strength of the agreement to take back possession of the vehicle by use of force.  In the case of Manager, ICICI Bank Ltd vs Prakash Kaur & Ors on 26 February, 2007 the Hon’ble Supreme Court has rightly decide the matter and directed that the recovery of loans or seizure of vehicles could be done only through legal means. The Banks cannot employ Goondas to take possession by force. In this instant case, since after the vehicle had been seized, the same was also sold and third party rights have accrued over the vehicle. This matter has been well settled in the case of decided on  14^th   November, 2011 by Supreme Court of India.  Again the O.P-1 returned the said Bike in a damaged condition after receiving notice from this Commission which is another example of Unfair Trade Practice  by the O.P-1.  As no allegation is proved against the O.P-2, hence he is discharged from the liability by this Commission. From the above we conclude that the O.P-1 has committed Deficiency in Service u/s- 2(11) of Consumer Protection Act,2019. Hence we order as under:-

ORDER

That the Complaint petition is allowed. The O.P-1 is directed to receive the outstanding installments which were accrued during the Moratorium Period after having discussion with the Complainant. Further the O.P-1 is directed to pay Rs.30,000/- as compensation towards damage of the said Bike bearing No- OD-28-A-3079 along with  Rs.20,000/-(Rupees Twenty Thousand)as compensation for causing him mental, physical harassment and Rs. 10,000/-(Rupees Ten Thousand) as litigation costs. This amount shall be paid by the OP to the Complainant within a period of one month from the date of receipt of a certified copy of this order, failing which the OP-1 shall pay interest @ 9% per annum on this amount from the date of filing the complaint, i.e. dtd. 27.10.2020 till its realisation." The Complainant is directed to pay the future EMIs regularly without fail.

Order pronounced in the open Court today i.e, on 04^th day of October 2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

I agree,                     

 

MEMBER                                                                                               PRESIDENT

                                                            Dictated and Corrected

                                                                             by me.

                                                                           

 

PRESIDENT