Shri A.K.Patra,President:

1. This Complaint is filed by the complainant named above inter alia alleging deficiency in service & unfair trade practice on the part of the Opp.Party for their act of forceful seizure of financed vehicle from the widow of the borrower/here the complainant.
2. Complainant seeks for an order directing the O.P Company to deceased from adopting unfair trade practice in the matter of claim settlement to the consumer and to direct the OP to return the alleged vehicle or else return of deposited amount and to pay an amount of Rs.10,000/- as compensation towards mental agony & cost of the litigation.
3. Brief fact of the complaint is that, the husband of the complainant had purchased a vehicle i.e Bajaj Re Maxima Diesel being financed by OP. The vehicle was financed on 31.1.2015 vide loan agreement No.ORBUBP00033. Under said loan contract he availed a loan amount of Rs.1,67,000/- repayable in 48 monthly installments @ 5979/-  to be end in  January 2019. The husband of the complainant had been paying monthly installments in due time as per the terms & conditions of the contract ,but  unfortunately the  borrower expired on 28.7.2018 . After his death the widow/here the complainant informed the OP to settle the loan amount as the vehicle was insured too but instead of making arrangement or any communication in this context the OP seized the vehicle from the possession of the complainant forcefully causing financial loss and mental agony to the complainant. Hence, this complaint.
4. To substantiate her claim the complainant has filed the photo copy of the following documents:- (i) copy of statement of loan account vide contract No,ORBUBP00033 as on dt.26.1.2017, (ii) photo copy of schedule of repayment, (iii) copy of insurance policy vide policy No.346001/31/2015/4969 valid from 27.1.2015 to 26.1.2016 issued in the name of the husband Shyam Bag, (iv) copy of retail invoice vide bill No.KAS/14-15/0280 dt.23.1.2015 issued from Kalinga Auto Service towards purchase of the vehicle in question,(v) copy of pleader notice dt.1.7.2020.The averment of complaint petition is supported by an affidavit of the complainant Mukta Bag . 
5. On being notice the OP appeared through their Learned Counsel Shri M.R.Mohanty & associate and filed their written version. The complaint allegation is denied by the OP on all its material particulars. However, finance of the vehicle vide Contract No,ORBUBP00033 is not  disputed. Primarily the Op has challenged the maintainability of the complaint taking plea of jurisdiction & arbitration clause of the loan agreement and further contended that , complainant is not a consumer as defined under C.P.Act and asked the complainant to strict prove of the complaint allegation .
6. The facts that, sanctioned  of loan  of Rs.1,67,000/- to the husband of the complainant for purchasing of the alleged vehicle  vide Contract No.ORBUP00033 repayable of the agreement value of Rs.2,55,176/- in 48 EMIs which is to be ended on January,2019 is not disputed so also the complainant is the widow of the borrower is not disputed in any manner .
7. It is submitted that , the husband of the complainant had availed the loan for commercial purchase to purchase a commercial vehicle for commercial use which is also admitted in the complaint petition  for which  the OP urge that the complaint is not maintainable under C.P Act rather liable to be dismissed . It is further submitted that, loan was not insured .The OP is dealing with the finance of the vehicle only and not look into the insurance matter. No insurance company is made a party in this case though the complainant is claiming settlement of insurance claim as such complaint is not maintainable due to non joinder of necessary party. It is further submitted that, the husband of the complainant is habitual defaulter and unable to repay the loan for which he volunteers to surrender the hypothecated vehicle on 28.3.2018 after receiving the demand notice dt.10.3.2018 from the Op. The OP has reminded the borrower /husband of the complainant regarding detail of the outstanding dues and loan amount repayable to the OP vide personal notice dt.1.4.2018 and when the complainant did not respond the said notice of the OP then the vehicle was disposed of through online auction sale during  January 2018 to the highest quotation of Rs.36,000/- and after adjusting the same there is loss of Rs.96,261/- as on December 2021. It is further submitted that, there is no negligence or deficiency in service towards the complainant on the part of the OP and there is no cause of action to bring this complaint rather the complaint has got no merit liable to be dismissed with cost.
8. To substantiate their claim the Ops have filed the following documents with their written version,(i) copy of loan account statement under Contract No.BUBP00033 as it was on 13.12.2021 vide annexure-1,(ii) copy of sale document and claim statement vide Annexure 2 & 3 respectively,(iii) copy of claim statement for arbitration vide Annexure -3,(iv) copy of demand notice dt.10.3.2018,(v) copy of vehicle surrender letter by the borrower Shyam Bagto the  Hinduja Leyland Finance Ltd./OP dt.28.3.2018(vi)copy of pre-sale letter issued to borrower Shyam Bag with a copy to  guarantor Jaharalal Mahanand issued by OP dt.1.4.2018. The averment of the written version is supported by an affidavit of one Dillip Kumar Samal ,the Manager legal ,Hinduja Leyand Finance Ltd/OP .
9. Heard .Perused the material available on record. We have our thoughtful consideration on the contention of both the parties and argument submitted by their Learned Counsel.
10. The main issue here in this case is whether the OP was justified in repossession & auction of the vehicle for realization of the loan amount due against the borrower i.e the husband of the complainant?
11. As per Sec.38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record   as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation.
12. The   complainant submitted that ,the OP has neglected to settle the insurance claim payable for the death of insured owner/husband of the complainant is resisted by the OP submitting the fact that, the OP is dealing with finance only and not of insurance business. It is found that, the complainant has failed to state the nature of the death and insurance detail and has not made any insurance company as party in this case who is a necessary party in this case. The OP further submitted that, the insurance paper relied on by the complainant is nothing but towards insurance of the vehicle only where IDV is Rs.1,88,955/- and it was covered PA Insurance U/s III for owner-driver (CSI) Rs.2,00,000/-valid from 27.1.2015 to 26.1.2016 but as per the compliant averment owner died on 28.7.2018, the nature of the death is not mentioned .
13. We found that, the insurance was not in force as on the date of the death of the owner of the alleged vehicle even though the complainant has not made the insurance company as a party in this complaint petition for which this complaint is certainly bad for non joinder of necessary party liable to be dismissed. Further we found that, the complainant has filed to adduce any scrap  of paper showing valid insurance policy as on the date of the death of the borrower/husband of the complainant  during agreed period of repayment of loan as such claim of the complainant for settlement of insurance claim has got no merit. Hence, it is rejected.
14. Admittedly, the husband of the complainant availed loan from the OP for purchasing of the alleged commercial vehicle for commercial use to earn his livelihood. Onus lie on the OP to prove that, the borrower had availed the loan for commercial purpose and to use the vehicle for commercial purpose only to earn profit rather not for earning of  his livelihood by means of self employment but  measurably failed to discharge as such .No  worthwhile convincing evidence to support its assertion was ever lead by the OP . No iota of evidence is adduced by the OP in this regard. The contention of OP that, the loan was obtained for commercial purpose and the vehicle was used solely for commercial purpose to earn profit and for which the complaint not maintainable may not be acceptable . Hence, such contention of the OP is rejected.
15. Law is well settled that arbitration and jurisdiction clause of the loan agreement does not bar the jurisdiction of the consumer Fora /Commission to entertain the complaint.
16. Regarding seizure of vehicle, there is no iota of evidence is there on the record except the complaint averment that Op seized the vehicle forcefully from the custody of the complainant. The complainant has not come forward to lead any evidence to prove the complaint averment as prescribed in C.P.Act. There is nothing to show that vehicle was illegally & forcefully seized by the OP rather the contention of  the OP that the  borrower has surrendered the vehicle on 28.3.2018 vide the letter of surrender annexed there with the written version as per the list of document filed by the OP dt.14.11.2022 remain unchallenged . In absence of  cogent evidence we are unable to agreed with the  contention of the complaint that, the vehicle was illegally &  forcefully repossessed from the complainant at any point of time rather the vehicle in question is surrender by the borrower  himself due to his inability to repay the loan is proved .
17. The Learned Counsel for the complainant submitted that, the OP is deficient in service as the seized vehicle is sold in public auction at very low price without giving any notice to the complainant. Here we observed that, there is absolutely nothing to show that, the vehicle was improperly auction.  It was auctioned after surrender of the vehicle giving pre-sale notice dt.1.4.2018 by the OP to the borrower Shyam Bag and to the guarantor Jaharalala Mahanand  , copy of which is placed on record is remain unchallenged . The auction sale price is adjusted against the outstanding loan dues and have prepared the claim statement for arbitration to release the balance outstanding of Rs.96,261/- vide annexure 3 of the written version of the OP is also remain un challenged. As such submission of the learned Counsel for the complainant that, there is deficiency in service on the part of the OPs for their seizure & sale in public auction and that at very low price is not acceptable.
18. Here in this case ,the  complainant admitted the fact that, they defaulted in payment of loan instalment, due to which the OP took possession of the vehicle being surrendered by the borrower himself and even after receipt of pre-sale notice the borrower did not turn up to retain the vehicle by repaying the  outstanding dues. We found force on the  summation of the Op that ,had the complainant desired ,she could have paid the amount due &  avoided the auction but not comes forward  clearly shows the negligence of the borrow himself .The borrower or his widow may not allowed to take  the benefit of  their own fault . We found nothing placed on record that the alleged vehicle is forcibly taken possession by the OP as such allegation in this regard is not acceptable.
19. Evidently the loan agreed value is Rs.2,55,176/-repayable in total 48 monthly EMIs is not disputed but there is nothing material placed on record that, loan dues if any  recoverable  during the life time of borrower and in case of death it is recoverable from the widow/LRs of the deceased borrower. In absence of any evidence in this regard the OP may not be allowed to recover alleged loan dues from the complainant i.e the widow/LRs of the borrower.
20. We have observed that, the alleged vehicle was purchased for consideration price of Rs.1,98,900/- from M/s Kalinga Auto Service, Bhawanipatna vide Bill No.KAS/14-15/0280 dt.23.1.2015 and insured it with the Oriental Insurance Company Ltd. Vide Policy No.346001/31/2015/4969 dt.27.1.2015 valid to 26.01.2016 where IDV of the vehicle was Rs.1,88,955/- . It was surrendered by the borrower on 28.3.2018 i.e. after three years only due to his inability to pay the outstanding loan. Pre-sale notice dt.1.4.2018 shows that, the loan dues was Rs.1,16,934/- and after settle it with the auction sale price   the loan remain payable rest at  Rs.68,060/- but we have found nothing available on record to hold that, the OP has taken any pain to make inventory of the surrender vehicle so to  ascertain the true value of the vehicle as on the date of surrender. Surrender being made against the loan dues and it is accepted by the OP without any protest as such we have no hesitation to hold that, vehicle is surrender by the borrower and it is accepted by the OP towards full & final settlement of the loan dues against the borrower.
21. Based on above discussion , we are of the opinion that the annexure -3 of the written version i.e the draft claim amount of Rs 96,261 for arbitration is not sustainable against the borrower or against the complainant or against any other LRs of the deceased borrower rather it is found to be arbitrary & illegal .The Op is not entitle to recovered any loan dues against the deceased borrower so also neither the complainant nor any LRs of the deceased borrower is  liable to  repay the alleged loan dues to the Op as prepared under Annexure -3 of the Written Version  .However, the OP is not liable to return the alleged vehicle or deposited amount if any received from the deceased borrower to the complainant  
22. Law is well settled that, complainant is to prove deficiency in service or unfair trade practice as alleged against the Ops but here the complainant failed to prove any negligence & deficiency of service or unfair trade practice on the part of the Ops.
23. Based on above facts & circumstances and settled principle of law, we are of the opinion that this complaint sans merits. Hence, dismissed against the OPs on contest. However, the Op is directed not to initiate any action to recovered any loan dues against the deceased borrower as drafted under Annexure -3 of their Written Version  . No order as to cost & compensation

  Dictated and corrected by me.

President

I   agree.

Member    

          Pronounced in open Commission today on this  10^th  day of May 2023  under the seal and signature of this Commission. The Pending application if any is also disposed off accordingly.

          Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly.