ORDER BY HON’BLE PRESIDENT- MR. P.K. PADHI:

                                                                                             JUDGMENT

            Complainant has filed this consumer complaint U/s.12 of C.P. Act, 1986 seeking following reliefs;

            “Direct the opposite parties to release the seized Hyundai Hydrolic Excavator Model R2107, pay charges towards detention of vehicle more than ten months of Rs.5,00,000/-, pay Rs.12,96,352/- with 12% interest towards loan surakshya scheme money which has not been paid for the negligence of the opposite parties and pay Rs.1,00,000/- towards mental agony and harassment, Rs.30,000/- towards litigation expenses”.

            The brief fact of the case is that, the son of the complainants had purchased Hundai Hydralic Excavator (not of resale) 01 Nos.R-210- 7296 from M/s. Tribeni Engineers, Mina Nivag Gut No.526, Near Royal Muratha Hotel, Indian Tel- Model – Pune on 09.12.2015 for a sum of Rs.50,50,000/- and the vehicle was financed by opposite parties No.1 & 2 and the complainants son deposited down payment of Rs.8,10,000/- and the rest loan amount of Rs.42,40,000/- was fixed to the paid as EMIs. The son of complainant was murdered on 03.01.2019 by some antisocial persons. The son of the complainants regularly paid the installments without fail and due to some circumstance bound the complainants to take follow up. At the time of loan the son of the complainants through the opposite parties No.1 & 2 taking “loan surakhya” from the opposite parties No.3, 4 & 5 soon after the death of the son, the opposite parties No.1 & 2 took the said vehicle to their custody for nonpayment of monthly EMI. After death of their son, complainants rushed to the office of the opposite parties No.1 & 2 request to return said vehicle, and came to know that the opposite parties No.3, 4 & 5 have not cleared the loan amount as per loan surakhya scheme.

            The opposite parties No.1 & 2 filed written version stating as under;

            The borrower Late Ranjan Rashmi Parida has approached to the opposite parties for financial assistance to purchase of the said asset in dispute, and basing upon the assurance as well as the fiscal standard of the borrower the opposite parties was in belief upon the repayment of loan by the borrower and the guarantor and sanctioned the said loan of Rs.42,40,000/- against the cost of the vehicle of Rs.50,50,000/- by way of hypothecation agreement vide No.99212 on 08.12.2015 with all preconditions regarding the repayments of the said loan on stipulated date as agreed.  The borrower has agreed to repay the said loan in 46 monthly installments @ Rs.1,15,300/-. The borrower is a defaulter and most of the cheques were issued by the borrower stands dishonored, admittedly the opposite parties have issued several demand notices to the borrower, but neither the borrower and the said guarantor has come forwarded to update the said loan amount. Finally on strict compliance of the terms of the agreement the opposite parties have terminated the said agreement vide notice dtd.25.11.2016 and demanded the then pending outstanding, since the borrower as well as the guarantor did not heed upon the same the dispute has been referred to the Ld. Arbitrator vide dtd.14.02.2017, and before referring said dispute the opposite parties have filed a petition U/s.9 of the Arbitration and Conciliation Act, 1996 before the Hon’ble High Court of Kolkata, vide A.P. No.1088/2016, wherein the Hon’ble High Court has pleased to appoint the Receiver to repossess the Hypothecated asset vide order dtd.01.3.2017. On and/or by the direction of the Hon’ble High Court of Kolkata, the disputed asset was repossessed by the Ld. Receiver and sold the same to the third party, so in this juncture the opposite parties have no role at all.  Though the complainants are very well aware of the facts but by suppressing the material facts have filed the present complaint.

            The opposite party No.5 filed written version stating as under;

            The complainants are not ‘consumer’ within the definition of the Consumer Protection Act with regards to the opposite party, no transaction has ever taken place between the complainants and the opposite party. It is false to allege that any loan suraksha had been taken by Late Ranjan Rashmi Parida from the opposite party. Furthermore, the opposite party is unaware of any loan availed by Late Mr. Parida from the opposite parties No.1 & 2 or any insurance taken from opposite parties No.3 & 4.as such this opposite party is not party to any transaction and has no knowledge about the same.

            Opposite parties No.3 & 4 with another opposite parties were noticed by Regd. Post with AD on 23.12.2019 but did not turn up for which the opposite parties No.3 & 4 were set ex-parte on 09.11.2021.

            Complainant’s son Ranjan Rashmi Parida who had taken loan from opposite parties No.1 & 2 with loan Surakshya through opposite party No.1 & 2 from opposite parties No.3 to 5.  Towards the loan surakshya the son of complainants has paid premium for cover amount of Rs.4,16,075/- towards loan during the period from 08.12.2015 to 07.12.2019 and the nominee was the present complainant. The vehicle was financed by opposite parties No.1 & 2 and the deceased owner has almost cleared the due with nominal due amount. The son of complainants expired on 03.01.2019 during currency of the policy.

            The son of complainants was murdered on 03.01.2019 who was the owner of the Hydrolic Excavator Model R2107 bearing vehicle No.CG04JA which costs Rs.50,50,000/- out of which son of complainants had paid down payment of Rs.8,10,000/- and rest loan amount was Rs.42,40,000/- out which most part of the loan was repaid by the son. The vehicle was reposed on 26.12.2018 by the receiver and presale notice was issued to original borrower/son of complainants who has expired on 03.01.2019 i.e. just after one week as such notice has not been properly issued to the complainants and the vehicle has been auctioned putting the complainants in distress. Both parties have not given the details how much amount was paid by the son of complainants towards the vehicle.

            The opposite parties No.3 to 5 have received the premium towards loan surakshya of the owner of the vehicle who has expired during currency of the policy as such the opposite parties No.3 to 5 are deficient in providing the loan surakshya amount to the financer i.e. opposite parties No.1 & 2 for which the opposite parties No.1 & 2 have auctioned the vehicle. The opposite parties No.1 & 2 without following due process of law when the original loanee (son of complainants) has expired, auction the vehicle which amounts to unfair trade practice. Nonpayment of the insured amount is nothing but harassment to the family of deceased loanee. Hence we direct the opposite parties to pay the cost of the vehicle (after deducting the depreciation cost) to the complainants and the opposite parties shall be jointly and severally liable to pay. We also award cost of Rs.2,00,000/- for loss of business, mental agony and harassment and cost of Rs.10,000/- towards cost of litigation. In case the cost of vehicle shall not be paid within 45 days then it will carry 5% compound interest from the date of filing of the case to till the date of payment.  With the aforesaid observation and direction the consumer complaint is disposed of.