Hon’ble Mr. Haradhan Mukhopadhyay, President.
The concise fact of the case of the Complainant is that the Complainant Gopal Layek as a cultivator purchased a Tractor from O.P. No.3 on 20.06.17 for Rs.9,62,560/- from O.P. No.3, Sona Motors, Cooch Behar after borrowing from O.P. No.1, Cholamandalam Investment and Finance Company Limited vide Loan Agreement No. XTRACOO00002055708. At the time of sanctioning the loan O.P. No.1, Branch Manager, Cholamandalam Investment and O.P. No.2, Cholamandalam Investment and Finance Company collected some documents from the Complainant who is illiterate person. The O.P. No.3 at the time of purchase issued delivery challan but certain important documents were not issued. After purchasing the said tractor its started various machinery trouble but the O.Ps continued collecting the loan instalments. Having found no alternative the Complainant sent the defective tractor to the O.P. No.3, Sona Motors showroom for repairing. Despite temporary repairing, the problems in the said vehicle was again started. Therefore, the Complainant again sent the said tractor to O.P. No.3, Sona Motors on 12.06.19. The O.P. No.3 without giving any acknowledgment to the said tractor told the Complainant to come after 7 days. In the mean time a letter was issued in the name of the Complainant on 14.06.19 by O.P. No.2 wherefrom it was revealed that the financial organisation had taken re-possession of the said tractor and demanded Rs.65,359/- as outstanding loan money with a threat that if the Complainant failed to repay the said sum of Rs.65,359/- within 7 days. The O.P. No.1 sale the tractor for adjusting the outstanding. But the financial organisation did not supply the loan account statement to the Complainant keeping the Complainant in dark about the actual outstanding money. The O.P. No.1 took unauthorised re-possession of the said tractor despite paying the instalment money consecutively. Due to lack of earning for the defective tractor the Complainant could not pay the outstanding loan. The said tractor ran only 2000 K.M. due to mechanical disturbances. Meanwhile the Complainant received a letter from the Head Office of O.P. No.1 i.e. O.P. No.2 with a demand of Rs.4,10,789/- as on 14.06.19 but the O.P. No.1 demanded Rs.65,359/- and the O.P. No.1 demanded excessive money of Rs.24,280/-. Having found no alternative the Complainant served a legal notice to the O.Ps on 01.07.19 which they received but they did not reply to the same. So, the Complainant is entitled to get back the said tractor from the O.Ps. M/S Sona Motors, O.P. No.3 delivered defective tractor to the Complainant without sufficient documents. Therefore, it tantamounts to deficiency in service and unfair trade practices. Therefore, the Complainant files this present case. The cause of action for the present case arose on 14.06.19 and on subsequent dates which is still continuing. The Complainant therefore prayed for an award for a direction to O.Ps to return the tractor after all repairing works, a sum of Rs.50,000/- for unfair trade practices and Rs.50,000/- for mental pain and agony and harassment and Rs.15,000/- towards litigation cost.
The O.P. No.3 Sona Motors preferred not to contest the case and accordingly the case is decided to be heard ex-parte against O.P. No.3. The O.P. No.1 & 2 contested the case by filing written version wherein they denied each and every allegation against them. The positive defence case of the O.P. No.1 & 2 in brief is that there is no cause of action, it is bad for non-joinder and mis-joinder of the parties and the Complainant is not a consumer. The Complainant took financial assistance from the O.Ps for Rs.5,50,000/- on 28.07.17 to be repaid in 48 equal instalments @ Rs.16,200/-. The pre-seizure notice was issued on 14.06.19 because the Complainant had defaulted in payment of EMI. As per the hypothecation agreement the OP has the right to repossess the vehicle. As on 14.06.19 the Complainant had outstanding due of Rs.65,359/-. It was informed by the law enforcement agency before repossession. The O.P. No.1 & 2 have no nexus with O.P. No.3. Whether the tractor had run 2000 K.M. is not the concern of O.P. No.1 & 2. The O.P. No.1 & 2 had given liberty to the Complainant after repaying the outstanding money. The O.P. No.3 sold the tractor to the Complainant. Whether it is defective or not is to be proved by the Complainant. The O.P. No.1 & 2 acted as per hypothecation agreement. The O.P. No.1 & 2 had to sale the hypothecated asset on 31.08.19 to recover the outstanding balance. Even after selling the asset there was an outstanding of Rs.1,93,525/- in the account of the Complainant. The Complainant is not entitled to get the relief as prayed for and as such the O.Ps prayed for dismissal of the case with cost.
On the basis of the pleadings of the parties the following points for emerged to be decided.
Points for Determination
- Whether the case is maintainable in its present form and prayer?
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the Complainant is entitled to get the relief?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
It is the admitted fact that the Complainant purchased the vehicle (tractor) being Model No.4455 BT Plus, Engine No. E3380672, T.C. No. WB-634 TC-475 from O.P. No.3 Sona Motors which was financed by O.P. No.1, Branch Manager, Cholamandalam Investment and Finance. The O.P. No.3 preferred not to contest the case and as such it was heard ex-parte against them. So, the allegation against O.P. No.3, Sona Motors stands uncontroverted. Having perused the pleadings of the parties and the material in the case record the relation between the Complainant and the O.Ps stands established as purchaser and seller and service provider. So, the Complainant is a consumer under the C.P. Act. Apart from the formal challenges of the maintainability of the case in the written version Ld. Defence Counsel did not advance any specific agreement as regards the maintainability of the case.
However, after going through the pleadings and the available documents in the case record it stands well established that the case is maintainable in its present form and prayer and not barred by any provisions of law.
Accordingly, Point No.1 is decided in favour of the Complainant.
Point Nos.2, 3 & 4.
These points relate to entitlement of relief as well as question as to deficiency in service.
It is the specific allegation of the Complainant that the vehicle in dispute being a tractor had some trouble since purchase for which it was given to the garage of O.P. No.3 for its repair but the O.P. No.1 & 2 illegally repossessed the said vehicle from the O.P. No.3 behind the back of the Complainant illegally.
The O.P. No.3 did not make any comment on the said allegation since the case is heard ex-parte against them (Sona Motors). But the O.P. No.1 & 2 admitted the allegation partly on the ground that since the Complainant failed to repay the outstanding due so they repossessed it.
The O.P. No.1 & 2 contended that as per the hypothecation agreement O.Ps have the right to repossess the vehicle. An amount of Rs.65,359/- was due as on 14.06.19.
The case record further discloses that the Complainant took loan of Rs. 5,50,000/- from the O.P. No. 1 & 2 for purchasing the vehicle on 28.07.19. The Complainant repaid most part of the loan out of Rs. 5.5 Lakhs. A sum of Rs. 65,359/- is claimed to have been due.
It is the specific allegation of the Complainant that the O.P. No. 1 & 2 did not issue the statement of account to the Complainant.
After purchasing the statement of account filed by the Complainant it transpires that the Complainant paid different instalment on different period every two years.
The OP failed to give any notice to the Complainant demanding the outstanding money. As per the loan agreement Annexure- A, Clause-11, 7 days notice has to be given by the Company to the borrower. In the instant case no notice was served upon the Complainant.
That apart the O.Ps repossessed the vehicle from the possession of the O.P. No. 3 when it was given to the latter for repairing of the vehicle.
Thus, both the direct and circumstantial evidence clearly proved the simple fact that the Complainant paid a huge amount of loan money out of Rs.5.5 Lakhs and the amount of outstanding money is only Rs. 65,359/-. So he ought to have been given further opportunity to repay the loan.
The irresponsibility of the O.P. No. 3 also is not acceptable in the given facts and circumstances of the case because the O.P. No. 3 Sona Motors failed to secure the property of the Complainant. The Complainant gave the vehicle to the O.P. No. 3 to repair only. So, the O.P. No. 3 is just like a bailee. His duty is to protect the goods in proper condition after taking actual repairing charge of the vehicle. They cannot handover the property of the Complainant without his consent since O.P. No. 3 is just a custodian of the good (tractor).
Therefore, O.P. No. 1, 2 & 3 are jointly and severely responsible for the repossession of the disputed vehicle of the Complainant.
Ld. Advocate for the O.P. No.1 & 2 submitted that an arbitration was held between the parties, but no documents is filed in respect of the said arbitration proceedings.
However, Ld. Advocate for the Complainant argued that there is no bar to adjudicate the disputes since Consumer Commission is the separate authority.
The O.P. No. 3 could not deny that the O.P. No. 1 & 2 repossessed the vehicle from them and the allegation labelled against the O.P. No. 3. Although it is the admitted fact that the O.P. No. 1 & 2 repossessed the vehicle from the custody of O.P. No. 3 yet the terms of the agreement clearly provides for notice must be served before taking repossession of the vehicle. The O.P. No.1 & 2 having failed to comply with the provision of the agreement, have no doubt acted in a manner which tantamounts to deficiency in service. Therefore, the O.P. No. 1, 2 & 3 are jointly and severely responsible for the deficiency in service and the mental pain and agony of the Complainant.
Thus having assessed the evidence on record and the argument advanced by Ld. Advocate by both the parties as well as the observation made herein above the Commission comes to the finding that the Complainant is entitled to get the relief prayed for.
Accordingly, Point Nos. 2, 3 & 4 are answered in affirmative and decided in favour of the Complainant.
Consequently, the complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No.CC/114/2019 be and the same is allowed on contest with cost Rs.10,000/- against the O.Ps.
The Complainant Sri Gopal Layek do get an award with a direction to return the said tractor after completion of all works alongwith necessary documents or if not possible for replacement of said tractor as per specification of the said certificate free of cost, Rs.25,000/- towards unfair trade practice and deficiency in service, Rs.20,000/- towards mental pain and agony and Rs.10,000/- towards litigation cost.
The O.P. No.1, 2 & 3 are directed to pay a sum of Rs.55,000/- to the Complainant @ 50% each within 30 days from the date of passing the Final Order failing which the Complainant shall be entitled to recover it from the O.Ps together with interest @ 8% per annum payable from the date of passing Final Order till the date of its realisation.
The O.P. No.1, 2 & 3 are jointly and severely responsible for implementing the award.
The case is accordingly disposed of.
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.
