West Bengal

Paschim Midnapore

CC/113/2015

Sri Subhas Das - Complainant(s)

Versus

The Branch Manager, Indusind Bank Ltd. - Opp.Party(s)

Mr. Swapan Bhattacharya.

15 Feb 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Mr. Kapot Chattopadhyay, Member

And

Mrs. Debi Sengupta, Member

 

Complaint Case No.113 /2015

                                                       

                                      Sri Subhas Das…….……………………Complainant.

Versus

 

                                   The Manager, Indusind Bank Ltd................Opp. Parties.

 

              For the Complainant: Mr. Swapan  Bhattecharya,  Advocate.

              For the O.P.               : Mr. Smonath Guin,  Advocate.

 

 

Decided on : 15/02/2016

                               

ORDER

                        Kapot Chattopadhyay, Member–Complainant is an inhabitant of Patnabazar Midnapore town under P.S. Midnapore, Kotwali, District Paschim Medinipur within the juricdiction of your honorable forum. Complainant has purchased a Tata Indica Ecs LS Car having registration no. WB 36C/2685 your complainant purchased the said car on loan from the Op. the description of the said car has been described in schedule below. Before purchased the schedule below vehicle an agreement for lone was executed by and between your complainant and the o.ps. at the time of purchased the value of the schedule below vehicle was of Rs.5,33,548/- only. As per terms and conditions of the agreement the Op. agreed to pay Rs.3,80,000/- only as principal loan amount and Rs.45,000/- only as insurance premium from 2^nd year to 4th year. Complainant has to bear   

                     Contd…………………P/2

 

                                                                                                 ( 2 )

             the Insurance Premium from his own pocked. As per terms and conditions of the said loan agreement Complaint was agreed to pay a sum of Rs.4,93,240/- only to the Ops. as principal and interest. Complainant was also agreed to pay a sum of Rs.45,000/- only to Op. as insurance premium from 2^nd year to 4th year. The total loan amount Rs.4,93,240 + Rs.45,000 = Rs.5,38,240/- only has to be paid by way of total 47 number of EMI (easy monthly installment) The value of the each EMI was fixed of Rs.11,450/- only. Complainant took possession of the schedule below vehicle on 14.12.2011 Complainant has paid the first insurance premium from his own pocket and started to pay EMI to the Ops. month by month regularly. After payment of the 5^th EMI the schedule below vehicle met an accident on 07/05/2011 but inspite of that Complainant was maintaining to pay EMI to the Op. thereafter and paid      Rs. 1,60,300/- only to the Op. till 27/02/2013 that is upto 14^th number of instalments. During the pendency of the aforesaid complainant case no.116/2003 the Op. seized the schedule below vehicle from the lawful custody of Complainant on 01.10.2013 i.e. from the garage without giving any notice to Complainant and any specific permission from your honour forum. Actually the Op. theft the schedule below vehicle from the lawful custody of your complainant. The said act of the Op. is not only illegal but also violation the terms and conditions of the agreement for loan. The order of the complaint case no.116 2003 as passed 28.2.2014 by your honour from. Honour forum vide order dated 28.03.2014 directed the Oriental Insurance Co. to pay a sum of Rs.2,24,300/- only to complaint through the Op. Bank Indusind Bank Ltd. who is entitled for appropriating unpaid amount of loan if any within 60 days from the date of the order. Actually your complainant was not properly represented before your honour forum in the said complain case No.116/2013.Complainant subsequently came to know that the Oriental Insurance Co. without followed up the spirit of the order of your honour has paid entire award amount of Rs.2,24,300/- only to the Op. on 8.5.2014 without any previous information to your complaint. Actually as on 28.5.2014 the Op. entitled a sum of Rs.3,00,040/- only i.e. 26 number of installments but on other hand the Op. received total Rs.3,84,600/- only with

 

Contd…………………P/3

 

                                                                                                  ( 3 )

most illegal way. As such the Op. have caused efficiency of service. After realized a huge amount from Complainant the Op. did not make any kind of arrangement to handed over the possession of the schedule below vehicle in the custody of your complaint. That Op. also did not pay money receipt to your complaint and withheld a huge amount as well as the schedule below vehicle with most illegal way. As such the Op. is liable to refund back the entired money to Complainant which your complaint has bore as consideration of the schedule below vehicle that is Rs.1,53,548/- as down payment and Rs.3,84,600/- only as EMI of the schedule below vehicle. Op. contested the case by filling W/O challenging that case is not maintainable for want of cause of action and juricdiction. The complaint is barred by the principles of waiver, estoppels and acquiescence. The petitioner is not a consumer within the meaning of the Consumer Protection Act, 1986. The petitioner is evidently a borrower of money. The law is well settled that where relationship of the parties is that of debtor and creditor as in the instant case, the Consumer Protection Act, 1986 does not and cannot apply. In any event, the answering opposite party has neither agreed to render nor rendered any service to the petitioner, nor has the answering Opposite Parties practiced any fraud or unfair trade practice vis-a-vis the Complainant or any other person. As such, by no stretch of reasoning, the provisions of the Consumer Protection Act, 1986 be invoked in the instant case.

         Admittedly, the complainant availed loan facility for purchase of a vehicle and as such, by  no stretch of reasoning the purported dispute of the complainant falls under the purview of the Consumer Protection Act. It is respectfully submitted that this Learned Forum does not have and cannot have any jurisdiction to entertain, try or determine the above complaint.  It is, therefore, respectfully submitted that this Learned Forum will be pleased to dismiss the instant complaint with exemplary costs.

       The very outset the opp. parties denied each and every statement, contention and/or allegation    contained in the complaint which are contrary to and inconsistent to whatever stated hereinafter the O.P's further states that nothing content in the complaint should be deemed to have been admitted, if not, specifically dealt with and/or denied. The content of Para 2 of the complain petition is admitted by the opp. parties, it is true to say that the petitioner purchased a vehicle with the financial assistance of the opp. Parties and availed a loan of Rs. 3,80,000/- and agreed to repay the said loan amount of Rs. 3,80,000/-

Contd…………………P/4

 

                                                                                           ( 4 )

along with interest accrued thereupon in 47 monthly installment commencing from 14.12.2011 to 07.10.2015 and the l  installment would be Rs.1,15,401/- and 2^nd to 4th installment would be Rs.1,14,501/- each.

       Without prejudice to the aforesaid and fully relying thereon, this Opposite Party proceeds to state the facts of the case, in the sub-paragraphs hereinafter following.

           a)  In or about 14.12.2011, the Complainant approached the Opposite Party No.1 i.e. Indusland       Bank Ltd. avail a plan facility for purchase of a commercial vehicle being Registration No. WB36C/2685.

                          b) Upon the request and representation made by the complainant the Opposite Party No.1  sanctioned a loan to the tune of Rs.38,00,001/- under a Loan Agreement no- WMK00554C, dated 14.12.2011 on inter alia the following terms and conditions.

    i) The said vehicle would remain hypothecated in favour or of the Op. until the total loan amount under the said agreement is paid fully.

        ii) The said loan was require to be repaid by the Complaint in 48 equated monthly
installments of Rs. 1 st installment would be Rs.11,540/- and 2^nd to 47^th  installment would be      Rs.11,450/- each. The first of such installment would be payable on 07/01/2015.

       iii) On any default by the Complainant in the repayment of his dues, the said
agreement would stand terminated ipso facto and. the Opposite Parties would be entitled
to recover possession of the said vehicle to sell of the same and appropriate the proceeds
thereof in protanto satisfaction of the Opposite Party claim, without prejudice to its
rights to recover any shortfall from the Complainant.

              Further and fuller terms of the said written agreement would appear from a copy thereof is annexed hereto and marked as Annexure A.

C) The complainant duly accepted the terms and conditions and Opposite party disbursed said loan amount to. The complainant for acquiring the vehicle being registered as WB 36C2685

           d)  The Complainant failed and/or neglected to make payment of contractual dues as per the terms and conditions of the agreement executed between the parties. The Complainant has not paid the installments on stipulated due dates consequently delay payment charges has been levied from time to time I,e installment overdue RsI24227.59/-(as on 06.11.2015), Further and Statement of Account dated 06.11.2015 would appear from a copy thereof is annexed hereto and marked as Annexure B.

          e) It is submitted that most of the installments paid by the complainant were beyond

Contd…………………P/5

 

                                                                                          ( 5 )

the stipulated due dates and as such, as per the terms and conditions expressly agreed between the parties and as contained in the agreement, the complainant is liable to pay delay, payment charges. Is due and payable by the Complainant towards delay payment charges to the answering opposite party.

Issues:

1. Whether the case is maintainable in its present form ?
2. Whether the Op. is in deficiency in service within the meaning of under section 21(G) read within in section 21/o of C.P.Act 1986.
3. Whether the Op. is liable for deficiency in service ?
4. Whether the complainant is entitled to getting relief as prayed for.?

 

Decision with reasons

                    All the issues are taken up for together for discussion as those are inter linked each other for the purpose of arising at a correct decision in this disputes. In view of the above it is held and decided that the Op. is liable for deficiency of service as alleged by the Complainant. So the Complainant has come of action to seek the relief in terms of the prayer mention in the petition of complaint. In view of the above all issues are accordingly disposed of in favour of the Complainant.

                   The order of the complaint case no.116 2003 as passed 28.2.2014 by your honour from. Honour forum vide order dated 28.03.2014 directed the Oriental Insurance Co. to pay a sum of Rs.2,24,300/- only to your complaint through the Op-Bank Indusind Bank Ltd. who is entitled for appropriating unpaid amount of loan if any within 60 days from the date of the order. Actually Complainant was not properly represented before your honour forum in the said complain case No.116/2013.Complainant subsequently came to know that the Oriental Insurance Co. without followed up the spirit of the order of your honour has paid entire award amount of Rs.2,24,300/- only to the Op. on 8.5.2014 without any previous information to your complaint. Actually as on 28.5.2014 the o.p. entitled a sum of Rs.3,00,040/- only i.e. 26 number of installments but on other hand the O.p. received total Rs.3,84,600/- only with most illegal way. As such the Op have caused deficiency of service. After realized a huge amount from Complainant the Op. did not make any kind of arrangement to handed over the possession of the schedule below vehicle in the custody of complaint. That o.p. also did not pay money receipt to complaint and withheld a huge amount as well as the schedule below vehicle with most illegal way. As such the o.p. is liable to refund back the entired money to your complainant which Complaint

Contd…………………P/6

 

                                                                                                 (6 )

has bore as consideration of the schedule below vehicle that is Rs.1,53,548/- only as down payment and Rs. 3,84,600/- only as EMI of the schedule below vehicle.

                                    That the contents of Para 9 of the complaint is totally denie ? and disputed by the Opp.parties, it is not true to say that during the pendency of C. Case no-116/2003 opp. Parties seized the vehicle.

                      That the contents of Para 11, 12 of the complaint petition is denied and disputed by the opp. party, it is not true to say the complainant.

                     The complainant petitioner is not entitled to any of the relief as prayed for as in prayer in the plaint.

                   Without prejudice to the aforesaid and fully relying thereon, this Opposite Party proceeds to state the facts of the case, in the sub-paragraphs hereinafter following:-

1. In or about 14.12.2011, the Complainant approached the Opposite Party No.1 i.e.

Indusland Bank Ltd. avail a loan facility for purchase of a commercial vehicle
being Registration No. WB36C/2685.

    Upon the request and representation made by the complainant the Opposite Party
No.1 sanctioned a loan to the tune of Rs. 3,80,000/- under a Loan Agreementno-
WMK00554C, dated 14.12.2011 on inter alia the following terms and conditions:

   Complainant failed and/or neglected to make payment of contractual dues as per the terms and conditions - of the agreement executed between the parties. The Complainant has not paid the installments on stipulated due dates consequently delay payment charges has been levied from time to time  installment overdue RsI24227.59/-(as on 06.11.2015), Further and Statement of Account dated 06.11.2015 would appear from a copy thereof is annexed hereto and marked as Annexure -"B".

      Complainant has clearly filed the above case in gross suppression and/or distortion
of the material facts of the case, in an attempt to avoid his liability and to frustrate the
legitimate claim of the answering Op.

Complainant submits that the service of the Op. was not satisfactory from the beginning. The Op. have seized the schedule below vehicle from the lawful custody of your complaint illegally. Complainant bore total Rs.5,38,148/- only to purchased the schedule below vehicle and as such the Op. is liable to pay the same with statutory interest your complaint is also entitled of Rs. 1, 50,000/-  for mental harassment.                                                                   

                       Hence, it is,

                                                          Ordered,

                                                            that the case is allowed on contest with cost.

Contd…………………P/7

 

                                                                                         (7 )

The Op. is hereby directed to pay Rs.5,38,148/- and 50,000/- for deficiency in service and mental pain and agony and Rs. 10,000/- only be passed against the litigati cost within 60 days from the date of order in default Complainant will be at liberty to proceed the matter before the Forum in accordance of the provision of law in this behalf.

Copy of order be supplied free of cost.      

               Dictated & Corrected by me

                               Sd/-                                                                        Sd/-

                          Member                                                                   Member