DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: BHADRAK : (ODISHA).
Dated the 26th day of December 2022.
C. C. No. 82 of 2021.
Present 1. ShriShiba Prasad Mohanty, President,
2. Smt. Madhusmita Swain, Member.
Sri Sukadev Mallik,
S/o:- Late Dhaneswar Mallik,
Vill:-Talakanpada, Po:- Kanpada,
P.S:- Tihidi, Dist:-Bhadrak. ………….. Complainant.
Versus
- The Branch Manager, Sankar Bajaj (10675)
At:- N.H.-5, Charampa, Bhadrak.
Po/Dist:-Bhadrak, Pin-756101.
- The Manager, Bajaj Financial Service Ltd.,
1st Floor, KI Plaza, Plot No. 504,
In front of Petrol Pump, Madhusudan Nagar,
Bhubaneswar, Odisha, Pin-751012.
- Bajaj Financial Service Ltd.,
Mumbai, Pune Road, Akrudi-411035, Maharashtra.
…………Opposite parties.
Counsel For Complainant : Sri S. K. Sethi, Advocate & Others.
Counsel For the O.P. No.1 : Sri M. A. Khan, Advocate & Others.
Counsel For the O.P. No. 2 & 3 : Sri B. Mohanty, Advocate & Others.
Date of hearing : 06.12.2022.
Date of order : 26.12.2022.
SHRI SHIBA PRASAD MOHANTY, PRESIDENT.
In the matter of an application filed by the complainant alleging deficiency of service against the Opposite Parties under Consumer Protection Act, 2019.
Case of the Petitioner is that, he is an illiterate person &he is unable to read & write English. On 30.10.2020 he had purchased a Pulsar-125 DTS Bike on payment of Rs. 97,000/- (Rupees Ninety seven thousand) only from the O.P. No.1 for his personal use. Accordingly he had received Registration Certificate & Smart Card by Post bearing Regd. No. OD-22S-2980, Engine No.DHXRLG51746 &Chasis No. MD2B6BX9LRG15465. In the meantime on 03.10.2021, while the petitioner was going to SCB Medical College, Cuttack on the way at Chandikhole Chhak four to five muscle men surrounded his vehicle & took away the key of his bike. When the petitioner asked about the matter he came to know for the first time that his bike has been financed by Bajaj Finance Ltd. & he has defaulted to pay the loan installment.There they took away complainant’s bike from Chandikhole Chhak. Prior to the seizure of the vehicle.The O.Ps have never sent any notice to the petitioner regarding non-payment of installment money. In this regard, petitioner sent an Advocate’s Notice by Regd. Post with AD in the address of the O.P. No.1. One Jitendra Agrawal sent the reply of the Notice through his Advocate. Such conduct of the O.Ps is completely illegal & arbitrary. Though the petitioner requested the O.P. No.1 to supply him the copy account of statement but he remained silent & in reply he said that he has no nexus with this matter. The O.P. No.1 is carrying his business at Bhadrak Town in the name of Bajaj Finance Ltd. since long but he is suppressing the truth in this matter.As such the petitioner prays to direct the O.P. No.1 to 3 to release the vehicle in favour of him &also prays to direct the O.Ps to pay the compensation of Rs. 20,000/-for causing mental agony & litigation expenses.
Case of the O.P. No.1 is that he is only the authorized dealer of two wheeler vehicle of Bajaj Auto Ltd. for the District of Bhadrak & other peripheral area & Jitendra Agrawal partner-cum-proprietor of Shankar Bajaj situated at N.H.-16, Charampa, Bhadrak. Bajaj Finance Ltd. is a separate entity, which is a financial institution, who gives finance on application of the person concerned for vehicle & other matters & its office is situated in different area. In fact there is no real connection between Shankar Bajaj & Bajaj Finance Ltd. except occasional business transaction as Financer & Auto Dealer. The complainant applied & requested O.P. No.3 to sanction his loan & asked O.P. No.1 to deliver a Pulser-125 DTS Bike & accordingly this O.P. No.1Shankar Bajaj delivered a Pulsar-125 DTS Bike bearing Regd. No. OD-22-S-2980, Engine No.DHXRLG51746&ChasisNo. MD2B6BX9LRG15465 on dt.30.10.2020& sent the copy of invoice raised as sold to borrower/complainant Sukadev Mallik hypothecated with Bajaj Finance Ltd. Subsequently, this O.P. received a legal notice dt.29.10.2021 in which the complainant averred that O.P. No.1 has seized his vehicle being loan defaulter & requested O.P. No.1 to provide account statement & to release the vehicle. O.P. No.1 has no role in seizure of the vehicle, so the question of release of vehicle does not arise. Only Bajaj Finance Ltd. can provide the account statement as sought by the complainant. So O.P. No.1 denied all this allegation & sent a rejoinder on 18.11.2021 through regd. post mentioning that the complainant was in a wrong impression to identify theO.P. No.1 with Bajaj Finance Ltd. which is a separate entity. It appears from the allegation made by the complainant, being a defaulter in payment of loan installment of the vehicle, the other O.Ps might have seized the vehicle. But this O.P. No.1 has no role in the aforesaid seizure. In fact after delivery of vehicle, this present O.P. No.1 is not concerned with any affairs relating to the vehicle. So the present O.P. No.1has not committed any negligence, nor committed any deficiency in service or unfair trade practice. So he prays to exonerate it from the charges.
The O.P. No. 3 resisted the claim & contested the case that, a) the complainant has no any cause of action for filing this complaint, as there is no any deficiency of service or unfair trade practice from the part of the O.P. No.3 at any point of time. The complainant itself is deficient from the agreed terms & condition of the loan agreement by not making payment of loan installments & was in default. O.P. No.3 has given enough opportunities to the complainant but to the best reason known to the complainant he has not given any heed to the request of this O.P. No.3. The loan vehicle is subject to hypothecation which is a security to the said loan as per the agreed clause annexure-A i.e. Clause 2 (d) of loan agreement. The entire terms & conditions is agreed as per law of contract & a valid loan agreement was executed & signed by the complainant in favour of the O.P. No.3 company which is not in dispute, deficiency happened from the part of the complainant since complainant was a defaulter in making the payment of loan dues, the complainant violated the agreed terms & conditions & was deficient from the said agreed terms of the contract of agreement& the complainant was in gross default.Complaint has never took any efforts to clear the dues nor objected for sale of the vehicle. O.P. No.3 relies on the case of M/s Magma Fincorp Ltd. Vrs. Rajesh Kumar Tiwari [Civil Appeal No.5622 of 2019 arising out of S.L.P.(C) No. 33720 of 2018] Supreme Court has held that Until the O.P. No.3 to purchase is exercised by the hirer, upon payment of all amounts agreed upon between the hirer & the Financer, the financier continues to be owner of the goods being the subject of hire purchase. Till such time the hirer remains a trustee and/or bailee of the goods covered by the Hire Purchase Agreement.
Thus, when the Financer takes re- possession of a vehicle under hire, upon default by the hirer in payment of hire installments, the Financer takes repossession of the Financer’s own vehicle. Complainant has no any cause of action for filing this complaint against the O.P. No.3 as there was no any deficiency of service or unfair trade practice from the part of the O.P. No.3 at any point of time hence the complaint itself is deserves to be dismissed on this mere fact. The complainant is not entitled to any amount whether by way of compensation or litigation cost or in any other matter. It is settled principle of law that the benefit of the justice delivery system should not be available to the complainant who himself has violated the law & has not come to the court in clean hands. The fundamental maxim is that a person should approach court of law in equity, with perfect propriety of conduct or with clean hands. O.P. No.3 being authorized to carry on the business, complainant seeking any direction from the Hon’ble Commission is bad in law. The O.P. No.3 has wide range of business & client all over India & has business reputation of decades & commands good reputation in the field of finance business. Therefore, the contract allegation that the O.P. No.3 has indulged in deficiency of service are unsustainable & against facts. There is no merit or bonafide in the complaint & it is filed as an experimental one. The complaint at hand is a typical example of vexations litigation. O.P. No.3 is entitled for compensatory cost. Direction may be given to complainant to close the balance loan liability by remitting Rs. 51,419/- to O.P. No.3.
Hearing the rival contentions of the parties, and after hearing their arguments, and after carefully going through the records and evidence, I frame the following issues tobe answered for just & proper adjudication of the dispute.
Issue No.1:- Whether the complainant has paid Rs. 97,000/- for purchase of Pulsar – 125 DTS Bike to O.P. No.1without taking any financial assistance from O.P.No.3 ?
Issue No. 2:- If it is a financed vehicle, than whether the O.P.No.3 has sent any demand notice against the defunct loan outstanding amount and whether the such has been served upon the complainant ?
Issue No. 3:- Whether the case vehicle has been repo forcibly ?
Issue No.-4:- Whether the OP No.3 has committed unfair trade practice and if so then what relief the complainant is entitled to?
The complainant pleads that he has paid Rs.97,000/- in cash and purchased the vehicle without any financial assistance from OP No.3 and that he only came to know about the finance when the men of OP No.3 forcibly took away the vehicle from him. But complainant failed to produce any money receipt or any evidence to that effect. Further, copy of invoice raised as sold to borrower/complainant Sukadev Mallik hypothecated with Bajaj Finance Ltd., delivery challan, proof of insurance, insurance policy & registration certificate of vehicle with hypothecation endorsement in favour of Bajaj Finance Ltd clearly shows that the said vehicle has been purchased with financial assistance from OP No.3. Lastly, when the said vehicle was forcibly taken away by men of OP No.3, the complainant never lodged any complaint anywhere. So, this suggests that the complainant was aware that the financer has repossessed the vehicle due to non-payment of loan. So, the Issue No.1 is answered against the complainant!
As now the commission holds the case vehicle to be a financed one, so as per the terms of the loan agreement, it has all the rights to repossess the case vehicle in case of non-payment of loan. But it has to follow due procedures of law and settled principles. In this instant case, no notice of loan default, no recall has been served upon the complainant. Neither the said notices were sent by registered post. Only post-repossession intimation was given to Badachana Police Station by registered post. Notice under Annexure-C, F, & H were not sent by registered post. This commission disbelieves these annexures filed by the OP No.3 as neither those contain any signature of receipt nor those have been sent by registered post. Even though, the complainant never lodged any complaint anywhereafter the repossession of the case vehicle, this commission believes that the said vehicle has been repossessed forcibly by men of OP No.3 at Chandikhol. So, Issue No.2 & 3 is answered in favour of the complainant.
As per Annexure-A filed by OP No.3, the price of the case bike was Rs. 95,025/- on the date of its purchase i.e. on 30.10.2020. The complainant has made of down payment of Rs. 37,321/- on the same day. So, the rest amount 95,025/- Rs.37,321/-= Rs. 57,704/- ideally should have been the financed amount. But the O.P.No.3 failed to explain why the financed amount has been written as Rs. 64,900/- which is deceptively Rs. 7,196/- more. Further, the loan proposal document filed by O.P.No.3 marked as Annexure-A, shows the interest for such finance is 8.99% per annum. In the said 8.99%, the interest of the financed amount shall be Rs.5,188/- per year. The tenure of the loan was for 2 years. So, the interest shall be Rs.10,376/- for 2 years. But as per the payment schedule fixed by the O.P.No.3, there were 24 EMIs to be paid each of amount Rs.3,191/-. So, that becomes 3191 x 24 = Rs.76,584/-. If we add the down payment made by the complainant at the time of availing the loan which is Rs.37,321/-. The cost of the vehicle purchasing in hire purchase becomes 76,584+37,321 = Rs.1,13,905/-. This is almost double of the actual financed amount i.e. Rs.57,704/-. This is gross unfair trade practice.
The case bike was purchased on 30.10.2020. At that time price of the bike was Rs.95,025/-. The said bike was repossessed by O.P.No.3 on 09.10.2021 nearly after one year. If we follow the settled principle of depreciation of vehicle, formulated by IRDAI, it is 15% for first year. So, the value of the vehicle will be 95,025/- - 14,254(15%) = 80,77/-.Particularly when the Bajaj Pulsar 125 DTSI Model is a reliable bike with good market presence, reputation & resale value. So, it is hard to swallow when the O.P.No.3 avers that the case bike was sold to some intending buyer after 2 months for a price of rs.38,500/-. This is not even 50% original cost of the bike.
Further, the O.P.No.3 has never served any notice upon the complainant informing him about the offset price, distress price of the vehicle before sale. If one depreciates the value of the case bike at the time of resale when it was 1 year 2 months old at the rate of 25%, then the value of the vehicle would be Rs.71,267/-, @ 35%, it becomes Rs.61,766/-. This Commission is of the firm opinion that the value of the case bike cannot be less than Rs.60,000/-. The O.P.No.3 is only entitled to one year’s interest up to 09/10/2021 over the financed amount i.e. 8.99% on Rs.57,704/- which is Rs.5,188/-. So, the O.P.No.3 in total is entitled to receive Rs.57,704/-+Rs.5,188 = Rs.62,892/-.
Hence, the O.P.No.3 on 30.10.2020 financed an amount of Rs.57,704/- and they were in receipt of resale proceed along with one advance EMI i.e. Rs.60,000/- + RS.3191/- = Rs.63,191/- within a years time. O.P.No.3 is only entitled to the interest from 30.10.2020 to 09.10.2021 which is at cost Rs.5,188/-. So, the O.P. No.3 was actually entitled to 57704+5188 = 62,902/- but they were in receipt of Rs.63,191/-. So, they have already received what they are actually entitled to. Further, this Commission finds lack of transparency in business deals of O.P.No.3 in the instant case. Further, since the resale of the case vehicle by the OP No.3, they have never issued any notice claiming the said Rs. 51,419/- nor did they have initiated any proceeding to get back that amount from the complainant. The balance loan liability of Rs. 51,419/- as claimed by OP No.3 seems manufactured under these discussions. No notice of loan default, no recall has been served upon the complainant. Neither the said notices were sent by registered post. Only post-repossession intimation was given to Badachana Police Station by registered post. Notice under Annexure-C, F, & H were not sent by registered post. There was no clarity as to why an excess amount of Rs.7,196/- has been deceptively charged and the total finance amount has been shown as Rs.64,900/-. Had the complainant been able to repay the entire loan as per the scheme & schedule of the O.P.No.3 within the tenure, then also he would have paid Rs.1,13,905/- which is Rs.56,201/- extra for a financial assistance of Rs.57,704/- within 2 years. Such exorbitant & deceptive charging on heads of documentation charges, interest is not less than extortion. This Commission finds the acts of O.P.No.3 to be unfair trade practice. So, Issue No.-4 is answered in favour of the complainant. The case vehicle has already been sold to somebody else after its repossession. So, the case vehicle could not be ordered to be given to the complainant. However, for the acts of unfair trade practice, the complainant is entitled compensatory damage.
O R D E R.
In the result complaint is partly allowed. The O.P.No.3 is hereby directed to pay Compensatory damage for forcibly repossession of the bike and reselling the same without any notice to complainantwhich is quantified to be Rs.20,000/- & Rs.5,000/- towards mental agony & harassment & Rs.5,000/- towards cost of litigation, failing which the O.P is to pay interest on the aforesaid amount @ of 6% per annum from the date of order till the date of payment.
This order is pronounced in the open Court on this the 26th day of December 2022 under my hand and seal of the Commission.
