Hon’ble Mrs. Rumki Samajdar, Member
This is a petition u/s 12 of the C.P. Act, 1986.
Non- Delivery of N.O.C. i.e. No Objection Certificate for cancellation of hypothecation in favour of the O.Ps. on Registration certificate has obliged the Complainant to come before this Forum with the filling instant complaint U/S 12 of the C.P. Act, 1986, alleging deficiency in service on the part of the O.Ps. i.e. the Shriram Transport Finance Company Ltd.
The fact leading to the filling of the complaint may be epitomized as follows:-
The Complainant purchase a TATA LPT 2515 (TRUCK) for earning his livelihood bearing Registration No. AS-17B/0774 in 2009 with the financial assistance Of SBI, Sagolia Branch Assam. After repayment of the loan Amount the Complainant approached the O.P. No.1 for financial assistance and the O.P. No.1 & 2 agreed to re-finance the said vehicle. An agreement was made between the Complainant and the O.Ps. in the month of July 2013. And a loan of Rs.4 Lakhs and the finance charge of Rs. 1,26,000/- i.e. the Complainant shall have to pay total Rs.5,26000/- toward the re- finance to the O.P. No. 1. And the Complainant has to pay the loan Amount with in the 34 installments. And it was agreed by both the parties that the Complainant has to pay Rs.7200/- as loan processing fees. The O.Ps. assured the Complainant that they will render proper service. After completion of all formalities the O.Ps. disbursed the loan amount to the Complainant’s saving Bank A/C No.11846039853 o f S.B.I. Sagolia Branch, Assam and thereafter a note of hypothecation was recorded in favour of SRIRAM TRANSPORT FINANCE COMPANY Ltd. in the R/C Book of the vehicle No. AS 17B/0774 by the R.T.A. Dhubri, Assam. The Complainant has paid all the 34 installment almost within due dates to the office of the O.P. No.1 and the O.P. No.1 has issued money receipt in favour of the Complainant. The Complainant after liquidation of the said loan on 20/05/2016 made several contact to the Office of the O.Ps. for obtaining no objection certificate with a view of hypothecation in favour of the O.P. No.1, on Registration certificate. But no response on the part of the O.Ps. subsequently the Complainant received a statement of his loan account and became astonised as it reveals that he has to pay additional Rs.16,216.27/- within 19/12/2016. The Complainant connected with O.Ps. through telephone and also attended their Office and request to disclose the additional charge upon the said loan. But all are invain. The collection Agent of the said company personally came to the house of the Complainant and demanded Rs.20,000/- and also searched for the said vehicle and threatened the inmates of the Complainant to take forcible possession of the vehicle on and when found. Lastly on 24/02/2017 the Complainant send a letter to the O.P. No.1 requesting him to issue No objection certificate in respect of the said loan by Registered post with A/D, which is duly received by O.P. No.1 but no reply was given nor the No objection certificate was issued in favour of the Complainant. The Complainant is a aged person and now he is unable to look after the business of plying vehicle as such he desires to sell the vehicle but due to the want of the No objection certificate he is unable to sell the vehicle and is suffering from irreparable financial loss and injury.
The O.Ps. has adopted his unfair trade practice and deficiency in service. Due to such activities of the O.Ps. the Complainant also suffers mental pain and agony and unnecessary harassment.
The O.Ps. are contesting the case by filling W/V stating inter-alia that the Complainant has no cause of action to file the case and the same is false, frivolous, vexatious, misconceived and is liable to be dismissed being not maintainable in the present Form. The Complainant has not come before the Forum with clean hands and is guilty of suppression of material facts. The present Complaint filed by the Complainant is an abuse of the process of law and is based upon the false, concocted and baseless allegation, as such the Complainant is not entitled for any relief under the law.
The case of the O.Ps is that no signatures were obtained by the O.P. No.1 on any other documents or/on blank cheques. Moreover the Complainant has knowledge about the norms and procedures of the loan agreement and then he consented to be a signatory of the agreement on his own will. The entire agreement was read over and explained to the Complainant.
Further case of the O.Ps. is that the loan agreement never got liquidated of the complainant. The Complainant has mischievously with malice to obtain wrongful gain and cause wrongful loss to the O.Ps., willfully not mentioned about the vehicle insurance provided by the O.P. No.1 on 21/01/2016 vide No. COOH0307190017 on lapse of vehicle insurance being concerned about the hypothecated asset the vehicle herein of the O.Ps. The Complainant had given a declaration during the signing of the loan agreement that the O.P. No.1 can provide vehicle insurance whenever feels necessary in the interest of the hypothecated asset and the Complainant will be bound by it.
Further case of the O.Ps. is that the O.P. after the expiry of the insurance period took vehicle insurance policy from other insurance company in the name of the Complainant and paid out Rs.13,184/- towards the premium of the insurance policy and that amount was debited in the loan A/C as WCL loan. And it was intimated to the Complainant in due time and the policy was supplied.
The Complainant intentionally refrained himself from paying the said amount after repeated requests via telephonic calls and personal visits at the residence of the Complainant by the representatives of the O.P. No.1 and a delay payment interest got accrued amounting to Rs. 19363.70/- as on 19/06/2017.
Further case of the O.Ps. the Complainant is not entitled to any relief as the complaint is false, frivolous malafide and with the sole object to harass the O.Ps. So, the O.Ps have prayed for dismissal of the Complainant with cost.
POINTS FOR CONSIDERATION
- Whether the Complainant is a consumer as per provision of C.P. Act, 1986?
- Whether there is any deficiency in service and unfair trade practice on the part of the O.Ps. as alleged?
- Whether the Complainant is entitled to get any relief as prayed for?
DECISION WITH REASONS
Point No.1.
This point is taken up first for consideration.
From the averment of the complaint and the averment Of W/V of the O.Ps. it appears that there was a mutual agreement dated 20/07/2013 vide agreement No. CooH0307190017 between the Complainant and the O.P. No.1 for re-financing of TATALPT 2515 CUMMINSFBT vehicle Regd. No.AS17B-0774. And it is alleged by the Complainant that after complete payment of the installment to the O.P. No.1, O.P. No. 1 has not issued the no objection certificate to the Complainant. The O.Ps. also admitted that the installments amount were paid by the Complainant. It reflects form the averments of the complaint the truck registration No. is a commercial one the Complainant used the truck for earning his livelihood by means of self-employment. Now let us see whether this Complainant is a consumer or not as per provision of section 2(1) (d) of the C.P. Act 1986. It has been observed by the Apex court reported in 2018 (3) CPR1(SC) that consumer protection Act, 1986 section 2(1) (d)- consumer- A person buying and using a machine exclusively for earning his livelihood by means of “self-employment” comes within the definition of consumer. Even if the purchaser of the machine trains another person for operating the machine he still remains a consumer.
The Hon’ble Apex court that the Complainant is the consumer. Therefore, we have no hesitation to hold that this complaint is maintainable.
Point No. 2 & 3.
These two points are takes up together for consideration for the sake of convenience. We have gone through the complaint, the written statement and the documents filed on behalf of the parties. We have also considered all these documents alongwith the submissions canvassed on behalf of the parties. We find that it is an admitted fact that there was a mutual agreement between the Complainant and O.P. No.1 for re-financing of TATA LPT 2515 CUMMINS FBT vehicle Regd. No. AS17B- 0774. It is also an admitted fact that all 34 installments were also paid by the Complainant to the O.P. No. 1 as per the agreement. From the record it reflects that on 31/10/2017 the O.P. No.1 i.e. SHIRAM TRANSPORT FINANCE COMPANY Ltd. Cooch Behar , Branch sent a letter to the Complainant mentioning that re-financing TATA LPT 2515 Cummins FBT vehicle bearing Registration No. AS17B0774 has been settled and the company shall not demand any further amount from the Complainant. Then after completion all the formalities by the O.P. No.1, the No objection certificate was delivered to the Complainant during the pendency of the present case.
Therefore, the Complainant is not entitled to get direction upon the O.Ps. to issue No objection certificate for cancellation of hypothecation in favour of the O.Ps. on Registration certificate.
In view of the discussion above we have already found that No objection certificate has not been issued to the Complainant after payment of all installments to the O.Ps. No objection certificate has been issued by the O.Ps. after filling of the instant case i.e. is during the pendency of the case. Therefore, it may be concluded that there was unfair trade practice on the part of the O.Ps. with regard to issue of No objection certificate in favour of the Complainant.
Under the facts and circumstances and on consideration of the evidence and material on record we are of the view that the Complainant has been able to prove his case. Thus, the Complainant is entitled to get the relief in this case.
All these issues are thus decided in favour of the Complainant against the O.Ps.
In the result we hold that if Rs.10,000/- towards compensation for mental and other harassment, Rs.5,000/- towards unfair trade practice and Rs. 5,000/- as cost of litigation is awarded to the Complainant that will meet the ends of natural Justice.
Hence, it is
Ordered
That the present Case No. CC/68/2017 be and the same is allowed on contest in part against all the O.Ps.
Rs.10,000/-(Ten thousand) only is hereby awarded towards compensation for mental and other harassments. Rs.5,000/-(Five thousand) only is awarded towards unfair trade practice. Rs.5,000/-(Five thousand) is hereby awarded towards as cost of the litigation.
The other prayers made by the Complainant in his petition of complaint are hereby rejected.
The O.Ps are directed to pay the aforesaid amount to the Complainant jointly and severaly within 30 days from the date of passing of this order, failing which Rs.50/- shall be levied for each day’s delay and the amount so, accumulated will be deposited in the Consumer Legal Aid Account.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order/Judgment is also available at confonet.nic.in.
Dictated and corrected by me.
