By Sri. A.S. Subhagan, Member:-

            This Consumer Complaint is filed under section 35 of the Consumer Protection Act 2019.

            2.  Facts of the case in brief:-  The Complainant had availed a loan of Rs.1,37,460/- for his vehicle bearing No. KL-73-B-7089 Bajaj Dominar 400 ABS Model 2018 on 31.05.2020 and repaid an amount of Rs.91,000/- in 13 instalments.  The interest was 13.15% per annum.  The Complainant made default in 3 instalments due to his personal issues.  There is an amount of Rs.1,08,440/- as balance in the loan account and Complainant tried to settle the loan account  by selling the vehicle hypothecated to Opposite Party.  The same was discussed with the Opposite Party and the Opposite Party had orally agreed the same.  The vehicle was insured with United India Insurance Company for Rs.1,20,000/-.  On 13.02.2020 at 6 PM, the Opposite Party had stolen the vehicle from the Complainant’s house by breaking the handle of the vehicle after trespassing the house.  The Complainant lodged a complaint before SHO, Pulpally and it was enquired by police and after one week the police told that the vehicle was taken by the financier of the vehicle.  On 14.02.2020, the Opposite Party had sent a message to the Complainant’s number that “for Loan a/c #L2WCAL05965709 are REPRESENTING your EMI on 14-FEB-2020.  Please maintain sufficient balance in bank account to bounce charges”.  The Complainant enquired with the Opposite Party and the Opposite Party offered to return the vehicle after settling the loan dues and protracted the return of vehicle by saying one or other excuses and on 13.03.2020, the Complainant received a letter as presale letter stating that the vehicle would  be sold within 10 days’ notice.  Since the Opposite Party has not provided any prior repossession notice, the principle of natural justice of the Complainant is violated by giving no opportunity to the Complainant to show his bonafide.  On 30.06.2020, the Opposite Party issued a registered lawyer notice to the Complainant telling him that they had already sold the vehicle for Rs.47,999/- and asking him to pay Rs.85,970/- to settle the loan account.  However, the Complainant subsequently discovered that the vehicle continued to be registered in his name, contrary to the Company’s claims and the sale of the vehicle was made clandestinely for a lesser price.  The complainant received hard copies of NOC from the Opposite Party No.1.  Surprisingly, Complainant’s signature was seen forged in the notice of termination of agreement of hypothecation.  The Opposite Party had made a false claim that Rs.1,33,969/- was in due.  The Complainant had paid Rs.91,000/- and outstanding amount is only Rs.1,08,440/-.  Since vehicle continued to be registered in Complainant’s name, the Opposite Party has the bounden duty to return the said vehicle or make an auction  complying all the legal procedures and reimburse the excess amount after sale.  The Complainant is now convinced that the Opposite Party would not redress the grievance without recourse to legal steps.  Hence Complainant prays

1. to return the said vehicle or make an auction with complying all the legal procedures and reimburse the excess amount after sale with 18% interest,
2. to direct the Opposite Party to pay Rs.50,000/- as compensation,
3. to direct the Opposite Party to pay Rs.20,000/- as the cost of the proceedings and
4.  to grant other reliefs.

3.  The Opposite Parties on getting notice, appeared before the Commission and filed version.

4. The brief contents of version of Opposite Parties are as follows:- The Opposite Party No.2 is a Company registered under the Companies Act, 1956 and a Company within the meaning of Section 2(20) of the Companies Act 2013. Further, Opposite Party No.2 is registered as a Non-Banking Financial Company and operates its business under the strict supervision of 'Reserve Bank of India’. The Opposite Party No.2 is having presence  in our country and having ample goodwill with Brand Name “BAJAJ”.  The Opposite Party No.2  does not hold any office that mentioned as Opposite Party No.1 at “ The Branch Manager ,Bajaj Finance Ltd, Sulthan Bathery, Wayanad 673592" in the caption of complaint, and hence this OP 2 does not represent for Opposite Party No.1.  That ,the Registered office of the Opposite Party No.2 is situated at 'Bajaj Finance  Ltd, C/o. Bajaj Auto Ltd, Materials Gate, Old Service Building, Mumbai Pune Road, Akurdi, Pune - 411 035’. The Opposite Party No.2 further request to serve any type of notice or order on this address only and this would be helpful for the Opposite Party No.2 to take immediate action on such notice or order.  The Complainant himself along with Thomas. O. K in capacity of co-applicant had approached the Opposite Party No.2 and requested to extend financial assistance for purchase of a Two Wheeler Dominar D 400-ABS.  Considering the said request, credentials and agreeing to all loan terms and condition, Complainant in the capacity of applicant and Mr. Thomas O. K in the capacity as co-applicant had signed and executed a loan agreement which was numbered as L2WCALO5968709 basis which the Opposite Party No.2 agreed to extend financial facility to the tune of Rs.1,99,440/- (which included financial charges of Rs.56,440/-).  The loan tenure was 36 months with an EMI of Rs.5,540/- starting from 03.07.2018 and loan expired on 03.06.2021.  At the time of execution of the loan agreement, the Complainant had gone through and agreed all the terms and condition of the Loan Agreement and then only the Complainant had signed and executed the Loan Agreement (the execution of loan agreement is an admitted fact by the Complainant in his complaint).  The Complainant had opted/chosen one of the repayment modes by way of Auto Debit and signed and issued Bank mandate for repayment of loan instalment of the said loan account.  It was clearly understood by the Complainant and co-applicant that, prompt repayment/clearance of loan instalments on time without any delay or default ie on or before 3^rd respective month was the core essence of the loan agreement.  The subject vehicle was a security to the said loan and was duly hypothecated to the Opposite Party No.2 till closure of the entire loan.  On 25.02.2020, the Complainant had remitted the amount of Rs.79,864/- towards instalments to the said loan account and was in due of Rs.30,936/- towards EMI arrear and Rs.14,393/- towards other due charges along with Rs.83,100/- towards future instalments, hence the specific allegation that the Complainant had remitted Rs.91,000/- towards EMI and was in due of only three EMIs is strictly denied, disputed and subject to proof on records. The Opposite Party No.2 is not liable and responsible for insurance of secured vehicle, rest allegations are strictly denied.  Even on repeated requests and reminders, the Complainant had not taken any steps for clearance of outstanding dues nor surrendered the secured hypothecated asset.  The Opposite Party No.2 is not in knowledge about the alleged incident of theft of vehicle and also not in knowledge about the police complaint, hence due to want of knowledge the Opposite Party No.2 does not wish to comment on this allegation.  The Opposite Party No.2 has not received any call/summon/notice from any police station or any authority regarding this concern.  Further the Complainant himself has admitted that the Complainant has received the SMS regarding the dues of said loan agreement and even on receipt of SMS the Complainant ignored and neglected to close the said loan account.  The Complainant failed and neglected to close the loan account on the Demand Notice dated 10.05.2019. The Opposite Party No.2 as per the agreed terms and conditions of loan agreement, (agreement not disputed by the Complainant at any point of time) in the month of February 2020 took back the peaceful possession of the subject vehicle with due knowledge/consent of the Complainant on 19.02.2020.  At the time of taking peaceful possession of the vehicle, the Complainant’s loan account was in dues and default is an admitted fact by the Complainant.  The Complainant was fully aware that in case of default of repayment of EMI the Opposite Party No.2 could take possession of secured vehicle without any notice also, and default of EMIs is an admitted fact and hence the Complainant cannot raise this concern that without any notice Opposite Party No.2 can’t take possession. Taking peaceful possession of the subject vehicle and in due compliance of law, the Opposite Party No.2 effected a pre-sale intimation notice dated 25.02.2020 and informed the complainant to remit outstanding dues of Rs.1,33,969/- & in turn to take back the  custody of the vehicle but even after receipt of presale notice dated 25.02.2020 (which is  an admitted fact) the complainant had not taken any steps to approach the Opposite Party No.2 for remittance of outstanding dues and to take back the custody of subject vehicle  on closure of the said loan nor raised any objection/concern for sale. Since there was no reply or response on the part of the complainant on the pre-sale notice dated 25.02.2020 and as per the consented right vested through the agreed terms and conditions of the loan agreement, Clause 26(d) (Annexure A), and in order to recover the loan dues, the subject vehicle was sold on as is where is condition in the month of April 2020 to an intending purchaser for Rs.47,999/- and on adjusting the sale proceed to the said loan account, there exist deficit (loss on sale) of Rs.85,970/- to the said loan account which is due and payable by the complainant on which the Opposite Party No.2  has issued a demand legal notice dated 30.06.2020.  To evade the balance loan liability, the complainant has taken the shelter of Hon’ble Commission with false allegations.  In due compliance of law Opposite Party No.2 service provider has also intimated via Annexure F to concern police authorities.  The Opposite Party No.2 have issued enough communication, made its best all possible efforts to reach the Complainant but Complainant ignored all the request and communication of the Opposite Party No.2 and lastly ignored the pre-sale intimation dated 25.02.2020 of the Opposite Party No.2.  This proves that the Opposite Party No.2 have given equated and fair opportunity to the Complainant to come forward and remit the outstanding dues and take back the subject vehicle.  Opposite Party No.2 has not received any call/summon/notice from any police station or any judicial or Quasi Judicial body by the Complainant except this present complaint, regarding the allegation of illegal repossession.  Rest all allegations are denied disputed and the same are subject to strict proof on documents.

            5.  After institution of the complaint, the Complainant had not appeared before the Commission for adducing evidence to prove his case.  Registered notice was also served and so many opportunities were given to the Complainant for appearance and for evidence. The Counsel for the Complainant had reported “no instruction”.  But, he did not turned up.  No documents were also marked from his side.  On the other hand, the Opposite Party No.2 appeared, affidavit filed, documents Ext.B1 to B6 marked and C.O. Harish, Assistant Manager, Legal Bajaj Finance was examined as OPW1.  Ext.B1 is the Loan Agreement executed between the Complainant and Opposite Party No.2; Ext.B2 is the Account Statement from 01.01.2020 to 25.02.2020; Ext.B3 is the inventory shown as Annexure A-5; Ext.B4 is the Letter dated 25.02.2020 issued by the Opposite Party No.2 to the Complainant and the guarantor of the loan O. K. Thomas; Ext.B5 is the Lawyer’s notice dated 30.06.2020 issued to the Complainant and the guarantor of the loan, on behalf of the Opposite Party No.2 and Ext.B6 is the Postal Receipt dated 14.02.2020.  As discusssed earlier, the Complainant did not appear before the Commission and adduced any evidence to prove his case. No documents were also marked from his side to prove his case.  On analysing the documents marked and the evidence adduced by the Opposite Party No.2 and the Exhibits marked as B1 to B6, the Opposite Party No.2 has succeeded in proving his contentions and we see that the allegations raised by the Complainant in the complaint is baseless and without any bonafide.  So, no deficiency in service/unfair trade practice is proved against Opposite Party No.1 or Opposite Party No.2 and hence the complaint is liable to be dismissed with compensatory cost.

            In the result, the complaint is dismissed with compensatory cost of Rs.3,000/- (Rupees Three Thousand Only) as the Complainant has irresponsibly caused to lose the valuable time of the Commission and inconvenience and monetary loss to the Opposite Party No.2.  The Complainant is directed to pay the compensatory cost of Rs.3,000/- (Rupees Three Thousand Only)  to Opposite Party No.2 within one month from the date of this Order failing which the amount will carry interest @ 9% per annum from the date of this Order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 30^th day of October 2023.

Date of Filing:-21.08.2020.

PRESIDENT   : Sd/-

MEMBER       : Sd/-

MEMBER       : Sd/-

APPENDIX.

Witness for the Complainant:-

Nil.

Witness for the Opposite Parties:-

OPW1.          C. O. Hareesh.                                 Legal Officer.

Exhibits for the Complainant:-

Nil.

Exhibits for the Opposite Parties:-

B1.                  Copy of Loan Agreement.

B2.                  Account Statement from 01.01.2020 to 25.02.2020.

B3.                  Annexure A-5, Inventory.

B4.                  Copy of Pre-sale Intimation.                               Dt:25.02.2020.

B5.                  Copy of Lawyer Notice.                                        Dt:30.06.2020.      

B6.                  Copy of Postal Receipt.                                         Dt:14.02.2020.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-