Orissa

Dhenkanal

CC/61/2018

Pratima Sahoo - Complainant(s)

Versus

The Branch Manager , Sriram Transport Finance Ltd. - Opp.Party(s)

31 May 2019

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                       C.C.Case No. 61 of 2018

Pramila Sahoo, aged about 65 years

W/o Kanhu Ch. Sahoo, Vill: Chinta Pokhari,

P.S: Motanga, Dist: Dhenkanal                                       …………..Complainant

                                                                Versus

The Branch Manager, Sriram Transport Finance Ltd.,

Jagannath Road, P.S: Town, PO/Dist: Dhenkanal       ……………...Opp. Party

 

Present: Sri Badal Bihari Pattanaik, President,

                Miss Bijayalaxmi Satapathy, Membver

                 Sri Purna Chandra Mishra, Member

 

Counsel: For the complainant:  Saroj Kumar Padhi,  & Associates

                  For the Opp. Party:  Prabir Ray & Associates

 

Date of hearing argument: 22.5.2019

Date of order: 31.5.2019

 

                                                                             JUDGMENT

Sri Purna Chandra Mishra, Member

                The complaint    is filed   U/s 12 of Consumer Protection Act, 1986 by the complainant  alleging deficiency in service  on the part of the Opp. Party  praying for  a direction to the Opp. Party to release the vehicle, reschedule the loan amount keeping in view of the excess amount paid  by the complainant through insurance, to issue NOC  and to award  a sum of Rs. 1,50,000/- towards compensation and cost of the litigation.

1)              The facts in brief  leading to the case are that    the complainant having no source of income and in order to maintain her family purchased a vehicle bearing No. OR06H- 8953 ( Mini Bus)  for carrying passenger  by availing financial assistance from the Opp. Party.  The vehicle was financed on 14.7.2015 for a sum of Rs. 2,00,000/- and  the interest there on is    Rs. 77,058/- .  In total a sum of Rs. 2,77,058/- was to be repaid by the complainant by way of monthly  installments.   It is  alleged that despite several requests the O.P  did not issue the copy of agreement and the repayment schedule for which it is not possible on the part of the complainant to know what is the period of agreement, when it matures and what is the monthly installment.  The complainant has been paying the dues regularly.  The complainant insured his vehicle at his cost.    It is further alleged that   despite payment of installment dues on 27.9.2018  without any rhyme and reason the Opp. Party by using hired goondas  forcibly repossessed the vehicle  without following due procedure  of law from   Dhenkanal Bus stand with passenger which amounts to deficiency in service It is also alleged that there was no demand notice from the side of O.P before taking repossession of the vehicle.   The complainant requested the Opp. Party to release the vehicle but the Opp. Party did not pay any heed  .  It is specifically stated that the complainant has  paid a sum of Rs. 1,69,435/- as per the statement dated 26.5.2018 .  Besides the complainant has paid a sum of Rs. 20,000/- through money receipt No. MDHNKL808180006 Dt. 18.8.2018 . In addition to that the complainant has also paid Insurance amount of Rs. 70,271/- covering the period from 14.11.2015 to 13.11.2016 and from 14.11.2016 to 13.11.2017 which is to be adjusted  from the finance amount  and the interest .   As the vehicle was not released despite several requests, the complainant finding no other alternative has come up before this Forum seeking for  the reliefs   as prayed  for in the complaint petition.

2)              The Opp. Party appeared and filed written version.  It is in the version of the O.P that the complainant is not a consumer  as it is a case of Hire Purchase loan Agreement as the relationship between the complainant and the Opp. Party is of lender and borrower.   Further the vehicle is being used for commercial purpose as such the complainant is not a consumer and the case is liable to be dismissed. .  It is further stated that since the disputes relates to account  this Forum has no jurisdiction to decide the case.  The complainant is not maintainable as the Forum has no jurisdiction in respect of the subject matter of the alleged dispute in view of the existence of an Arbitration Clause in the Loan Agreement executed between the parties.  The Opp. Party has already initiated the Arbitration proceeding by filing the claim petition before the sole Arbitrator Mr. Madhab Rath, Retd, District Judge on 16.6.2018 vide Arbitration Proceeding No. 84 of 2018.  As per the interim order dated 3.10.2018 of the Forum  the vehicle in question was released on 16.10.2018. . The complainant is not a consumer as she does not have a valid D.L and the vehicle has been used for commercial purpose for which the case is not maintainable.  As regards to the allegation of non-supply of documents like agreement and repayment schedule, it is barred by limitation  as the complainant makes such allegations after three years from the date of execution of the agreement and after expiry of the agreement period. .  The complainant who is the borrower failed to discharge  her contractual obligations to pay the installment in time even after expiry of the Agreement period and became a chronic defaulter  inspite of issuance of notices for which the O.P had no other option than to take possession of the vehicle  as per the loan agreement with prior notice and intimation to the Police.  The allegation of forceful seizure is denied.  It is further stated that  the  allegation of adjustment of insurance   amount    by the financer is not correct as the same is neither in the agreement nor the same are payable by the financer.  The financed amount does not include the insurance amount. Since the vehicle has already been released  there is no deficiency in service on the part of the Opp. Party and the case is liable to be dismissed.

3)            In support of the case, the complainant has filed the documents like  Xerox copy of  Voter Identity Card, Notice dated 28.9.2018,  Loan receipt Dt. 10.10.2018, 20.8.2018, dt. 26.3.2018, 13.2.2018. 5.7.2017, 16.4.2016, 29.1.2016, 15.3.2016, 17.10.2016, 15.7.2016, 17.5.2016, 21.6.2016,4.1.2016,20.8.2015, 6.10.2015 and dated  13.11.2015,    The Xerox copy of Insurance  dated  13.11.2017  covering the period from 14.11.2017 to 13.11.2018,  Insurance  policy copy dated 12.11.2016 covering the period from 14.11.2016 13.11.2017, copy of Insurance policy  dated 13.11.2015 covering the period from 14.11.2015 to 13.11.2016 copy of Insurance Policy dated 13.11.2014 for the period from 14.11.2014 to 13.11.2015, Money receipt dated 13.11.2014 of Oriental Insurance Company  and  Statement of accounts of the complainant dated  13.2.2019.  The Opp. Party  has filed the Xerox copy of loan cum hypothecation agreement.

4)           The Opp. Party in his written version have challenged the status of the petition as a consumer citing the decision  of the Hon’ble Supreme Court of India, in case of Laxmi Engineering Works (AIR 1995 SC  1428).  This decision was pronounced in the year 1995.  The Hon’ble National Commission in the year 1996 has clarified the position of law  in the Case of Cheema Engineering Services versus Rajan Singh reported in 1996 (II) CPJ, 88 NC wherein  the Hon’ble Commission has clearly  ruled that if a person takes the help of two to three persons to run a machine to earn his livelihood  he will not be excluded from the purview of C.P.Act rather   he enjoys the status of a consumer.  In view of such decision of the Hon’ble National Commission the objection raised by the O.P on this score is rejected.

5)       The next objection raised by the Opp. Party is that this Forum has no jurisdiction to sit over the allegations relating to accounts  and has cited several decisions in support of their case.  The present dispute relates to allegation of unfair trade practice and deficiency in service   as the Opp. Party  has  included  the cost of insurance  with loan amount  which is a clean case of unfair trade practice intending to exploit the loane.  So the objection raised in this score stands rejected as this Forum is competent to sit over the allegation of unfair trade practice and  deficiency in service.

6)         The next objection raised by the Opp. Party that the dispute between the parties is under the process of Arbitration for which the case is not maintainable.  Even though the Opp. Party has pleaded this fact in his written version not a single document or a scrap of paper have been produced  in support of his stand  as regards to commencement of arbitration proceeding prior to the filing of the consumer complaint.  In the absence of any document or any evidence or affidavit by the Opp. Party we are unable to accept their contentions and the objection raised on this point stands rejected.

7)               Now taking into account the pleadings of the respective parties as discussed above in details,   the main and pivotal grievance and prayer of the complainant as regards to the release of the vehicle has already been redressed  by the Interim order of this Forum. The next prayer  of the petitioner is  to direct the O.P  to restructure the loan  keeping in view of the excess amount paid by the petitioner to insurance.   This Forum has no jurisdiction to direct the Opp. Party  to restructure the repayment schedule  to him  As regards to inclusion   of excess amount  on the head of   is only to be taken into consideration. The Opp. Party in his written version  has pleaded that it is the duty of the complainant/loanee to insure the vehicle  at his own cost which he has done and the question of refund of insurance amount does not arise.   It is seen from the  statement of accounts   that a sum of Rs. 45,032/- has been credited to the loan account of the complainant towards insurance charges  on  25.11.2016 and a sum of Rs. 12,783/-  on 11.8.2018.   The statement of the Opp. Party clearly runs in violation of statement of accounts on record.  It is crystal clear that the said amount even though was included in the loan account of the petitioner but no insurance was virtually made by the Opp. Party for which this amount needs to be deducted from the loan account of the complainant  along with its interest from the date of inclusion in the statement of accounts. 

8)        Coming to the next prayer it is prayed by the petitioner that the O.P be directed  to  issue N.O.C  in favour of the vehicle in question.  In the preceding paragraphs it has been clearly discussed that the Insurance Premium with interest needs to be deducted from the loan account of the petitioner.  The Forum do not want to enter into the details statement of accounts as rendition of accounts is not within the purview  of this Forum.  If after deduction of this amount as discussed above from the loan account   if it is found that the  loan amount has been cleared then the Opp. Party shall issue N.O.C to the petitioner within a period of one month  and if it will be found that the loan amount is not cleared even after deduction of the above amount, of Rs. 57,815/- ,  the petitioner  shall deposit the remaining amount  and obtain N.O.C from the Opp. Party.  The Opp. Party is required  to provide the detail  statement of accounts to the petitioner.  

9)         Since the Opp. Party has  credited  the insurance amount  to the loan account of the petitioner and failed to provide him with the insurance certificate/policy  a clean case of  unfair trade practice   is made out against the Opp. Party.  Since the Opp. Party has already released the vehicle in question in compliance to the interim order  of this Forum we are not inclined to impose any cost and compensation on the Opp. Party and hence the ordered.

                                                                                 ORDER

                The complaint petition is allowed in part against the Opp. Party  with a direction to the Opp. Party  to debit a sum of Rs  57, 815/- /- (Rupees fifty seven  thousand  eight hundred fifteen) only  from the loan account of the complainant with interest as has been charged over and above his loan amount     and provide a fresh and updated statement of account to the petitioner within seven days from the date of receipt of this order and  if it is found after deduction  that no outstanding is reflected in his loan account N.O.C of the vehicle be provided to the petitioner within 30 days from the date of receipt of this order.   Under the peculiar facts and circumstances   Parties to bear their own cost.

                        Sd/-                                               Sd/-                                            Sd/-

(Miss  Bijayalaxmi Satapathy) ( Sri Badal Bihari Pattanaik) ( Sri Purna Chandra Mishra)

                    Member                                President                                Member