Orissa

Debagarh

CC/8/2015

Dr. Satyabrata Mishra, aged about 35 yrs. S/O-Sri Daksha Ku. Mishra. - Complainant(s)

Versus

The Branch Manager Sundarm Finanace Sambalpur Branch. - Opp.Party(s)

03 Feb 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

DEOGARH

 

Shri P. K. Dash, President and Shri P. C. Mahapatra, Member

 

Dr. Satyabrata Mishra,

Aged about 35 Years.

S/O – Shri Daksha Ku. Mishra,

At/PO- Purunagarh,

Dist. - Deogarh,

PIN – 768119                                                                …        Complainant.

 

 

The Branch Manager,

Sundaram Finance Ltd,

Sambalpur Branch,

At- Sabat Complex,

PO – Ainthapali,

Dist – Sambalpur.                                                          …        Opposite Parties.

 

CD Case No.12/2015

Date of hearing 20.01.2016  Date of Order 03.02.2016

 

Counsel for the parties:

               For the Complainant           :         Nemo

               For the Opposite Parties     :         Shri Ashok Kumar Sahoo, Advocate

                                                                     Shri Tikeshwar Dhal, Advocate

                                             

O R D E R

 

PRATAP CHANDRA MAHAPATRA, MEMBER – The genus of the complaint is for not handing over of the duplicate Key/s arising out of sale of one Hyundai Eon Magna (O) Car. The factual matrix of the case in hand according to the averment made in the complaint petition being supported with verification and affidavit is that the complainant being a permanent resident of Purunagarh, PO – Purunagarh in the district of Deogarh purchased a Hyundai Eon Magna (O) Car bearing Engine No. G3HABM024447 and Chasis No. MALA351ALBM032584 from the Hyundai Show-room, M/s- Aakash Deep Motors Pvt. Ltd., Aakash Deep Tower, NH.6, Gopalpali Chowk, Sambalpur under agreement of Hypothecation with M/S- Sundaram Finance Ltd. represented through OP on 02.12.2012. At the material time the duplicate key was not delivered to the complainant and inspite of several telephonic request OP and his Agent  remained reluctant to deliver the duplicate key, dilly dallied the matter like passing statements “ why are you worried about the key, when you have insurance, if your car will be stolen, there is insurance”. The complainant has further averred that on enquiry the Dealer, M/S- Akash Deep Motors stated that they have handed over both the keys to OP on the material day. Thus accusing OP not providing proper service complainant has submitted that he is constrained to seek relief and has prayed, after hearing both the sides to pass orders directing OP to (i) hand over the 2^nd. Original key or to change the locking system; (ii) pay Rs.50,000/- towards compensation for mental agony and harassment caused; and (iii) pay Rs.10,000/- towards litigation cost.

The list of documents relied and adduced during different stages of the proceeding of the case by the Complainant is tabulated as follows:

Document No.	Description	Number assigned in the Case Record.
1	Copy of Registration Certificate bearing Registration No. OR28 1858 issued in favour of Satyabrata Mishra.	Exbt.- P/1
2	Copy of Money Receipt bearing No.2263/Dtd.02.12.2011 in token of receipt of Rs.1,63,284/- by Aakash Deep Motors Pvt.Ltd.	Exbt.- P/2
3	Copy of Cover Note of National Insurance Company Ltd issued on 02.12.2011	Exbt.- P/3
4	Copy of Challan No.3369/Dtd.02.12.2011 issued by by Aakash Deep Motors Pvt.Ltd., Sambalpur.	Exbt.- P/4
5	Copy of Retail Invvoice bearing No.11-12/3369/287 of Dtd.02.12.2011 issued by by Aakash Deep Motors Pvt.Ltd., Sambalpur.	Exbt.- P/5
6	Copy of Sale Certificate	Exbt.- P/6
7	Copy of Insurance Policy Document	Exbt.- P/7
8	Copy of Temporary Receipt bearing No.200466/ Dtd.02.12.2011 issued by Sundaram Finance Ltd.	Exbt.- P/8
9	Copy of Insurance UIN 107NO18V02 relating to Loan Agreement No.GZ562253 /Dtd.05.12.2011	Exbt.- P/9
10	Copy of Loan sanction communication made to Satyabrata Mishra by Sundaram Finance Limited in pursuance to Loan Application made by Satyabrata Mishra on Dated 30.11.2011	Exbt.- P/10
11	Copy of communication made to M/S. Aakash Deep Motors, Sambalpur to supply one Hyundai Eon Magna Car to Satyabrata Mishra by Sundaram Finance Limited on 02.12.2011.	Exbt.- P/11
12	Copy of letter dated 20.03.2012 of Sundaram Finance Limited addressed to Satyabrata Mishra about detailing of Interest and Principal Breakup	Exbt.- P/12

 

2. OP being the Branch Manager of Sundaram Finance Limited, Sambalpur Branch, on his behalf one Srimant Biswal working as Senior Manager (Legal), Sundaram Finance Ltd., A/108, Banadev Bhawan, Saheed Nagar, Bhubaneswar and authorized signatory contested the allegation and filed the Verified & Notarized Written Statement wherein challenging maintainability of the complaint both in the eyes of Law and Facts OP has stated:

1. That Complainant being borrower, the relation between both the Compllainant and OP is that of a Borrower and Lender and as such there exists no Consumer Dispute maintainable under Consumer Protection Act,1986 (herein after termed as “Act”). The matter is essentially a civil dispute attracting to be referred to Arbitration in terms of Article 22 of the Loan Agreement. The complainant does not have any locus-standii to come with a complaint of deficient service on the part of the OP.
2. Complainant availing a loan of Rs.2,00,000/- purchased a Hyundai Eon vehicle executing a Loan Agreement – cum – Hypothecation Agreement bearing No. GZ562253 / Dated 05.12.2011 having agreed upon to abide by terms and conditions, inter-alia agreeing to repay the loan amount along with finance charges in 47 monthly instalments, total amount repayable being Rs.2,57,000/-.The Loan amount of Rs.2,00,000/- has been directly disbursed to the dealer AAKASH DEEP MOTORS PVT. LTD and the complainant took delivery of the vehicle directly from the dealer after depositing the down payment.
3. Alleging averments made in Paras 5,6,7,8 in the complaint petition to be false and a created story to grab sympathy of the Forum and to gain out of such allegation OP has strongly denied to have received the 2^nd.Key from the Dealer.
4. The complainant has come up with an allegation for the keys of hypothecated vehicle pertaining to the date of delivery i.e. December 2011 and the present complaint has been filed in the year 2015, in itself it shows that the case is barred on the ground of  limitation. No part of alleged cause of action has arisen within the territorial jurisdiction of this Hon’ble Forum. The allegation brought about needs to be directed to the Dealer, who is a necessary party for proper adjudication. OP has caused no deficiency in Service and the present allegation has been labeled to avoid the repayment of loan as complainant has taken an exparte decision of being defaulter from April 2015 without support of any stand in his favour. The complaint is thus not maintainable and the complainant is not entitled to any relief as claimed. The case is liable to be dismissed either in limine or in merit with cost for filing such a frivolous, unreasonable and vexatious complaint and for delaying the judiciary time.

 

3.  In response to Written Statement filed by OP, Complainant filed a petition on dated 24.08.2015 copy of which was received by learned counsel for OP with objection where in  complainant has stated that he has been repaying the loan amounts without any break and out of 47 installments only two installments i.e. for September’15 and October’15 remains to be paid. Furthermore, he has cited letter issued by Sundaram Finance to Aakash Deep Motors Pvt. Ltd on 02.12.2011, furnishing a copy there of and has drawn attention to lines reading “ please send us after delivery………………….as stated above” which in itself speaks that the duplicate key/s is with the OP. So contended by the Complainant. Also he has stated infructious attempts he has made to obtain documents in relation to handing over the duplicate key/s to OP by the Dealer with Aakash Deep Motors Pvt. Ltd., Sambalpur and has requested the Forum to call for such records from the Dealer.

            On the other hand except having received with objection, learned counsel for OP asking more time to file objection on the petition of complainant cited supra on 07.09.2015 and 21.09.2015 failed to file any specific objection until 04.12.2015 when a petition under Order-1, Rule-10(ii) CPC was filed therein urging to implead M/S- Aakash Deep Motors Pvt. Ltd., Sambalpur as a party. This simply evinces dilli dally-attitude of the OP since, in presence of very clear and unambiguous instruction of OP to Dealer in the said letter of 02.12.2011 like “Please send us after delivery,the invoice in duplicate along with copy of sale letter, delivery receipt duly signed by the borrower/hirer and duplicate key/s wherever provided by the manufacturer. On receipt of the aforesaid documents, we shall send you our payments as statted above ”,which, nowhere, at any point of time, has been denied by OP to have written the letter of dated 02.12.2011 filed by the Complainant to Aakash Deep Motors Pvt. Ltd., Sambalpur and  to implead M/S- Aakash Deep Motors Pvt.Ltd., Sambalpur shall defeat the very purpose and spirit of Consumer Protection Act, 1986. As such, in our considered view, the petition to implead the Dealer is disallowed since the speaking letter of OP to the Dealer, M/S- Aakash Deep Motors Pvt. Ltd, Sambalpur of dated 02.12.2011 is sufficient to meet the end of justice and needs no further proof by oral evidence as Sec 59 of the Indian Evidence Act,1872 provides “All facts, except the contents of documents, may be proved  by oral evidence” meaning facts contained in a document need not be proved by oral evidence.

 

4.  It shall be prejudiced if the challenge raised by OP as to maintainability of the complaint under the Act is not taken up for consideration. Section 2(1)(o) defines service as under:-

"service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service:

In the aforesaid definition ‘service’ does not include the rendering of any service free of charge or under a contract of personal service , which means the term ‘service’ includes rendering of any service on payment of consideration. It shall not be unreasonable if inferred ‘any service’ means not only specific services mentioned  in the definition of ‘services’ may also meant other services not mentioned, rendered on payment of consideration and collecting interest upon amount sanctioned as loan from borrower cannot be over ruled as not being the consideration. This is very clearly established in the case of Orissa Khadi and  Village Industries Board vrs. Abhimanyu Sahoo & Ors [I(2010) CPJ 59(NC)] , while deciding Revision Petition No.231, Hon’ble National Commission  has observed as hereunder:

“ xxxx  As per by now well settled law by this commission, once a loan is sanctioned then the loanee shall come within the definition of ‘Consumer’. Xxxx”- (para – 4)

            Further, Section 3 of the Act provides “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

            Hence, we are of the firm view that complainant is a Consumer as defined under the Act and very well he can agitate his complain before this Forum established by and under the Act.

 

5.   Now as regards territorial jurisdiction of this Forum raised by the OP, Complaint suffers from no lacuna as to Jurisdiction and cause of action since Sec.11of the Act while dealing with Jurisdiction of the District Forum.— in sub section(2)(a) and(2)(c) lays that “(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

1. the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or “
2. xxx
3. the cause of action, wholly or in part, arises. 

In the instant case Complainant’s corroboration in Para 1 of the Gist of Arguments filed before this Forum on 01.12.2015 wherein it is claimed that one Mr.Manas Mishra representing OP came to his residence at Purunagarh of Deogarh Town and motivated him for a Car Loan and obtained the Loan Application Form duly signed at his home at Purunagarh whereafter Loan Agreement was made at OP’s office at Sambalpur, has not been  objected, denied or assailed otherwise by the OP affirms that the cause of action arose well within the territorial limit of this Forum.

6.   In face of categorical expression of the Complainant that there was no dispute with OP  until end of 2014 and it was only after passing a comment like “ Why are you wory about the key when there is insurance ?” by OP, although denied by OP with accusation that complainant has took an exparte decision of being defaulter from April 2015. In other words it is admitted by OP that there was no default in repayment till March 2015. Following is a summary of the Breakup Schedule provided by OP and Repayment details furnished by the Complainant after March 2015.

Claim of OP as per Breakup Details			Repayment made by the Complainant
Installment No.	Due Date of Payment	Amount	Cheque No. through which paid	Date of Payment	Amount Paid
41	03/04/2015	3000.00	385025	03/04/2015	3000.00
42	03/05/2015	3000.00	912074	03/05/2015	3000.00
43	03/06/2015	3000.00	912075	03/06/2015	3000.00
44	03/07/2015	3000.00	912076	03/07/2015	3000.00
45	03/08/2015	2000.00	912077	03/08/2015	2000.00
46	03/09/2015	2000.00	912078	03/09/2015	2000.00
47	03/10/2015	1600.00	912079	03/10/2015	1600.00

 

As such it will jeopardize justice if contention of Complainant is disbelieved since it is evident that contention of OP is false as at no point of time after March 2015 Complainant of his own accord has made himself defaulter. Rather such denial is a denial for the sake of denial.

Hence we find OP has not acted upon justly and his activity suffers from deficiency of services liable for payment of compensation to the petitioner for mental agony and harassment. Accordingly on the foregoing observations we are deciding the case in terms of the signed order as under:

 

 

O R D E R

 

The OP is directed to change the total locking system of the Car with a new and genuine one in the authorized Service Center of the Manufacturing Company at Sambalpur within a fortnight i.e. by 18^th.February 2016 in default shall pay the complainant an amount of Rs.5,000/-(Rupees five thousand) towards cost of the locking system and in addition, pay the complainant an amount of Rs.5,000/- (Rupees five thousand towards compensation for mental agony and harassment, Rs.3,000/- (Rupees three thousand) towards cost of litigation within 45 (forty five) days from pronouncement of the order. Failing which OP shall be liable to pay an additional amount of 9% as intrest from the date of pronouncement of final order to the exact date the amount is actually paid.

Office is directed to supply the free copies of the order to the parties keeping acknowledgement of the receipt thereof.

Order pronounced in the open court today i.e. 3rd day of February 2016 under my hand and seal of this forum.

 

                                          I   agree,

 

 

 

                                         PRESIDENT                                                     MEMBER.            

 

Dictated and Corrected

          by me.

 

 

 

       MEMBER.