BEFORE THE DISTRICT CONSUMER REDRESSAL COMMISSION

UNOKUTI DISTRICT : KAILASHAHAR

                                    C A S E   NO. C. C. 18/06

Shri Pramesh Debnath

S/o- Late Girish Debnath

Vill & PO - Bhagabannagar,

PS & Sub-Division- Kailashahar

Dist.- Unakoti, Tripura.

                                 …......COMPLAINANT.  

Being represented by   

                                             Anup Debnath

S/O- Lt. Sudhir Debnath

Vill & PO- Deoracherra,

PS & Sub-Division-Kailashahar,

Dist- Unakoti, Tripura

           V E R S U S

1. The Branch Manager,

TATA Motors Finance Limited,

Melarmath, PO – Agartala

PS – West Agartala

West Tripura, Agartala

2. Rajarshi Motors Private Limited,

Chandrapur, AA Road,

PO- Agartala,

West Tripura, Agartala

3. Shri Babul Deb

C/O-Rajarshi Motors(P) Ltd.

Kumarghat Branch Office,

(Near Subhash Sanga Club),

PO, PS & Sub-Division- Kumarghat,

Dist.-Unakoti, Tripura

                  ……OPPOSITE PARTES

               P R E S E N T

                                             SHRI A. PAUL

                                               PRESIDENT

                   DISTRICT CONSUMER REDRESSAL COMMISSION

                            UNAKOTI DISTRICT:: KAILASHAHAR

          A N D

                                     SHRI P. SINHA, MEMBER

                                         SMT. M. DATTA, MEMBER

                         C O U N S E L

                      For the Complainant:- Mr. C. Bhattacharjee, Advocate

                          For the OP No. 1     :- Mr. S. Pandit & Mr. N. Das, Advocates

                          For the OP No. 2    :- Heard ex-parte

                          Op no. 3 struck off

                          ORIGINAL DATE OF INSTITUTION :21-06-2018

JUDGMENT DELIVERED ON :07-09-2021

                        J U D G M E N T

            This is a complaint preferred by the complainant Shri Pramesh Debnath though his attorney under section 12 of the C.P. Act against the opposite parties praying for passing necessary direction to pay compensation of Rs. 1, 14, 754.43/-(Rupees two lacks fifty thousand) with adequate interest for causing deficiency in service and also to issue clearance certificate in favour of the complainant. 

2.         The facts leading to the filing of the instant complaint petition are the complainant purchased a vehicle, Truck (Half body), TATA ACE Magic, bearing No. TR-02-E-1831 from the Rajarshi Motors Private Limited, Chandrapur, AA Road, Agartala (OP No.2) with the finance from the opposite party No.1. The agreement with OP No.1 was executed on 30-03-2013 and the terms of the agreement is that the complainant will pay monthly instalment within fixed date and for every delay, there will be fine. First instalment was Rs. 6945/- and the rest instalments were at the rate of Rs. 6820/-. The complainant deposited the instalments at Kumarghat before the OP No.3.  It is further stated in the petition that the complainant from 29-04-2013 to 26-05-2016 paid total Rs. 2,60,180.10 and also paid a fine of Rs. 1,11,670/-. Thereafter, the complainant prayed to the OP No.1 for clearance certificate/no objection certificate on 23-12-2016. Then the OP sent statement details instead of giving him clearance certificate. It is also stated that the opposite party No.1 realized excess money being retainer charge, overdue interest etc. from the complainant, which is revealed from the statement furnished by the OP No.1. As such, the complainant is entitled to get back the retainer charge of Rs. 1000/-, overdue interest of Rs. 1083.43 and penalty of Rs. 1,11,670/- which was charged for delayed payment of 16 instalments by the complainant. It is further stated by the complainant that cause of action of this petition arose on and from 23-12-2016 when the OP sent details statement. Ultimately it is prayed before this Consumer Commission to pass necessary direction to the OPs to make payment of Ra. 1,14,754.43 with interest and also to furnish clearance certificate to the complainant.

3.         On receipt of the notice OP No. 1 appeared and contested the claim by submitting written statement stating, inter alia, that the complain- petitioner is not a consumer within the meaning of section 2(1)(d)(i) of the Consumer Protection Act as he had not purchased the vehicle nor he has availed any service from the OP No.1 and he had taken the loan from the OP No.1 for purchasing the said vehicle and was using the vehicle for commercial purpose and not for earning his livelihood. While unfolding the real state of affairs the OP No.1 stated that one Pranesh Debnath had taken a loan of Rs. 1,55,000/- from them vide loan-cum-hypothecation agreement No. 5001219566 dated 30-03-2013 for purchasing a commercial vehicle TATA ACE Zip and had agreed upon all terms and conditions of the said agreement, inter alia, agreeing to repay the entire contract value of Rs. 2,38,825/- in 35 instalments, 1^st one being Rs. 6945/-, 2^nd to 35^th instalments amounting to Rs. 6820/- each, starting from 02-05-2013 to 02-03-2016 and as per terms and conditions the due monthly instalments are to be paid regularly on monthly basis and any delay or default in paying the monthly instalment is a breach in the terms and conditions of the agreement, would attract delayed payment charges of 3% per month as per the agreement. The complainant was a habitual defaulter and as such, he had to pay delay payment charges on the defaulted instalments. The OP No.1 also stated that still an amount of Rs. 8007.42 is due to be paid by the complainant on account of net overdue interest. All the allegations / averments made by the complainant are specifically denied by the opposite parties. Ultimately, it is urged by the opposite parties to dismiss the complaint petition preferred by the complainant. 

4       Notice was duly served upon the OP No.2, but ultimately OP No.2 did not appear and contest the case and as such, it was decided that the case would proceed ex-parte against the OP No.2.

5.   The attorney of the complainant has adduced evidence by way of examination-in-chief on affidavit as PW-1 recapitulating the fact as has been stated by him in the complaint petition and as such, for the sake of brevity the evidence is not repeated. However, during re-examination, attorney of the complainant has exhibited the following documents: -

1. Power of attorney in original in two sheets, marked Ext. 1/1 and 1/2
2. Received information of TATA Motors Financial Institution in five sheets, marked Ext. 2/1 to 2/5.
3. Pollution certificate in one sheet, marked Ext.3
4. Insurance policy, marked Ext.4
5. Certificate of fitness, marked Ext.5
6. Tax token, registration certificate, driving licence, marked Ext. 6, 7 and 8 respectively
7. Contract details, marked Ext.9.

On 19-02-2020 PW 1 also appeared and was re-examined as during his re-examination on 14.11.2019 he could not exhibit some of the documents, which he also submitted by firisti on 14-11-2019 by mistake and accordingly, on 19-02-2020 he exhibited the following documents:

8. TATA motors finance Limited instalment charts in two sheets, marked Ext. 10/1 and 10/2
9. Cash memos in original, marked Ext. 11/1 to 11/31
10. Photocopy of registration of vehicle No. TR-02-E-1831 in comparison with original, marked Ext. 12.

                  In cross PW 1(attorney of the complainant) denied the suggestion that the transaction was not done in his presence and that, he did not pay the instalment amount of Rs. 2,60,180.10 for the period from 29-04-2013 to 26-05-2016 and that he did not pay a fine of Rs. 1,11,670/- to the insurance company.

                  From the side of the OP one witness, namely, Shri Pritam Choudhury, Area Manager of TATA Motors Finance Company Limited has been examined as DW No.1. On 24-03-2021 from the side of the OP No.1 a copy of the judgment passed by Hon’ble National Consumer Disputes Redressal Commission was submitted and as per the ratio of the said judgment claimed that cross-examination of the witness of the OP is not required and as such, witness was not brought to face the cross-examination. From the copy of judgment passed in Revision Petition No. 518 of 2002 it is conspicuous that Hon’ble NCDRC observed as follows:

                  “ We would, therefore, hold that cross-examination of a witness or a party before a Forum under the Consumer Protection Act is not a rule. It is only an exception. When reputation of a person, like a medical practitioner in the case of medical negligence is involved, he will have a right to cross-examine any person alleging professional negligence against him. When it is merely a question as to veracity of the statement of the witness, cross-examination can not be permitted. In that case to contradict a party can certainly file his own affidavit or any of other witness. If cross-examination of a person is to be permitted in every case under the Consumer Protection Act, the whole object of this Act would be lost and there would hardly be any
 difference in proceedings before a Forum under the Act and a Civil Court. Many disputes involving high stakes and huge values are decided in writ jurisdiction by the High Courts and Supreme Court merely on the basis of affidavits. It, therefore, does not appeal to reason that when Consumer Protection Act permits evidence to be led by means of affidavits right of cross-examination must be resorted to in every case. A Forum under Consumer Protection Act must exercise extreme caution in permitting cross-examination. We, therefore, do not find any merit in any of the questions raised by the petitioner. The petition is, therefore, dismissed.”

                              As such, with all humility to the observation of the Hon’ble NCDRC the witness of the OP was not cross-examined and his examination in chief was considered by this Commission.

                              DW 1 in his examination has also repeated the versions as put forward in the written statement of the OP No.1 and as such, discussion of his evidence is redundant.

6.                     During the course of argument, learned counsel Mr. C. Bhattacharjee appearing on behalf of the complainant submitted that the OP No.1 being the financer has taken huge amount of Rs. 11,11,670/- from the complainant as penalty charge for delayed payment. Besides, the OP No.1 also charged retainer charge and over due interest and also did not give any clearance certificate to the complainant though the complainant repaid all the loan amount with interest. From the statement itself submitted by the OP No.1 it is brought to light that the OP No.1 charged huge extra money amounting to Rs. 1,14,754/- and by filing the present complaint the complainant prayed before this Commission to direct the OPs to refund the said amount of Rs. 1,14,754/- and also to provide clearance certificate to the complainant.

                              Per contra, learned counsel Mr. N. Das appearing on behalf of the OP No.1 submitted that no extra amount is charged from the complainant by the OP No.1, rather complainant is obliged to pay Rs. 8007.42 to the OP No.1. Moreover, from the legal point of view the complaint lodged by the complainant is not tenable as the same has been filed by the power of attorney of the complainant and the power of attorney can not lodge any complaint before the Consumer Court as no rights of a consumer has been accrued at any point of time in favour of the attorney as neither the vehicle was purchased by him nor the loan facility was given to him and as such, the complaint preferred by the complainant is liable to be dismissed.

7.                     The points required to be adjudicated in this case are as follows:

            (i) Whether the complainant is a consumer?

            (ii) Whether attorney can lodge complaint and depose for and on behalf of the complainant?

            (iii) Whether the complainant is a victim of deficiency in service   rendered by the OP No.1? If so, what relief, he is entitled to?

DECISION AND REASONS FOR DECISION

     ISSUE NO. 1

7.         In the arguments it was submitted on behalf of the OP No.1 that the complainant is not a consumer within the meaning of sub-clause (ii) of clause (d) of section 2 of the Act. This sub-clause is as under :

'(d) "consumer" means any person who -

(i) * * *

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; '

8. Tata Motors Finance Limited (TMFL) is the leading and most preferred financial Institution engaged in financing entire range of Tata Motors Commercial and Passenger vehicles. In the case at hand the complainant took a loan of Rs. 1,55,000/- from the OP No.1. OP No.1 is rendering service by providing loan to a customer which is not without consideration. The company charges interest and other charges as well in providing the service. OP No.1 is a kind of bank and customer of a bank is obviously a consumer, as observed by Hon’ble Supreme Court in Vimal Chandra Grover Vrs. Bank of India, reported in 2000 SC 2181. Complainant is also a customer of the OP No.1 and as such, he is also a consumer of the OP No.1 as defined in the Act.   

            The issue is decided accordingly.

                                                            ISSUE NO. 2

9.         The instant complaint has been filed by the attorney on behalf of the complainant. The attorney even deposed and exhibited the documents in this case for and on behalf of the complainant. Now, the most important legal issue arises as to whether an attorney can depose and do all such acts required for the case for and on behalf of the complainant.

            Orders III, Rules 1 and 2, CPC empowers the holder of attorney to act on behalf of the principal. In case Janki Vashdeo Bhojwani V. Indusind Bank Ltd., reported in AIR 2005 SC 439, the Hon’ble Apex Court while analysing the provision or Order III Rules 1 and 2 held that an attorney, if appears as a witness, can depose in respect of acts done by him as an attorney, but he can not depose for the principal in respect of matter which only the principal has the personal knowledge and in respect of which the principal is entitled to be cross-examined.

            With a view to apply the ratio of the aforesaid case, the facts of this case are required to be scanned.

            In the present case principal and the consumer is the complainant, Shri Pramesh Debnath. He purchased the commercial vehicle in question on being financed by the OP No.1. Loan agreement in between the OP No.1 and the complainant was made and the complainant signed as borrower. From the complaint petition it transpires that the complainant made the last payment on 26-05-2016. Money receipts submitted also show that the instalments were deposited by the complainant himself. So, since the date of purchase of the vehicle till payment of last instalment all the acts related to the vehicle were handled and done by the complainant. The complainant has only personal knowledge, attorney does not have any knowledge over all the episodes. As all these matters were the locustandi of the complainant, not of the attorney, only the complainant ought to have been cross-examined, not the attorney. From the power of attorney (Ext. 1/1 an 1/2) it is found that the same was executed by the complainant in favour of the attorney only on 20-09-2017 and as such, the matters which arose only after 20-09-2017, over which the attorney has knowledge.

            As it is already decided that attorney can not depose in the instant case, the documents, which have been exhibited in this case, which includes money receipts/loan instalments payment receipts, are also stated to be not duly proved.

            From the aforesaid discussions, it is held that case of the complainant, which has been conducted by the attorney, is not maintainable. 

ISSUE NO. 3

10.       Since it is already observed that the case of the complainant is not maintainable, he is not entitled to any relief.

                        Moreover, the case of the complainant is refund of excess payment made to the OP No.1. It is alleged in the complaint petition that the instalment amounts were made to OP No.3, one Babul Deb, the agent of OP No.1. The instant case has been proceeding ex-parte against the OP No.3 and the OP No.1 also nowhere admitted that the OP No.3 is their agent nor he is authorized by the OP No.1 to collect instalment for and on behalf of the OP No.1. Therefore, the payment of instalments could also not be proved by the complainant.           

                             The issue is decided accordingly.

O R D E R

                  11.       Complainant is not entitled to any relief as the case being devoid of merit.  The case stands disposed of accordingly.

                   12.                   Furnish copy of this judgment to the complainant and O.P No. 1 free of cost through their respective learned counsels.

       13.                   Make necessary entry in the TR.

                                      ANNOUNCED

(A.Paul)

                                                                                    PRESIDENT

         (P. SINHA)            (M. DATTA)

         MEMBER               MEMBER