The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the M.D, Hinduja Leyland Finance Ltd., Kolkata, O.P No.2 is the Area Manager, Hinduja Leyland Finance Ltd., Bhubaneswar Branch, Bhubaneswar and O.P No.3 is the Manager, Hinduja Leyland Finance Ltd., Balasore Branch, Balasore.
2. The case of the Complainant in brief is that the Complainant being an unemployed youth had purchased one Bolero Pick Up, being financed by the O.P No.1 of Rs.5,20,000/- (Rupees Five lacs twenty thousand) only on 23.01.2015 against cost of the vehicle for Rs.5,55,465/- (Rupees Five lacs fifty five thousand four hundred sixty five) only vide Regd. No.OD-01F-9060. The Complainant has to pay entire loan amount within 47 instalments to be started from 21.02.2015 and will be ended on 21.12.2018. At the time of finance, the O.Ps committed to pay the insurance amount for insurance of the said vehicle, but the O.Ps have not insured the vehicle of the Complainant and the Complainant has already paid Rs.4,50,573/- (Rupees Four lacs fifty thousand five hundred seventy three) only to the O.Ps. The Complainant could not repay the instalments regularly since the said vehicle met an accident in the year 2015. The O.Ps have not issued any letter to the Complainant regarding exact outstanding loan amount. Thus, the O.Ps have illegally seized the aforesaid vehicle of the Complainant on 19.07.2016 from his driver and have taken the possession of the said vehicle at N.H-60 demanding excess amount to the Complainant. Accordingly, the Complainant requested the O.Ps to release the said vehicle. But, the O.Ps harassed him, causing deficiency in service and unfair trade practice to the Complainant. Cause of action to file this case arose on 19.07.2016. The Complainant has prayed for supply with loan account statement along with compensation for mental agony and litigation cost as well as to release the seized vehicle.
3. Written version filed by the O.Ps through their Advocate denying on the point of maintainability, Consumer as well as its cause of action. The O.Ps have further submitted that the case is barred under the provision of Arbitration and conciliation Act as well as scrutinisation and reconstruction of financial assets and enforcement of security interest Act. In view of the agreement clause ousting the jurisdiction of all other Court except Court as stipulated in the agreement dtd.23.01.2015 executed by the Complainant in favour of the O.Ps, the present case cannot be entertained by this Forum. It is not a fact that in the year 2015, the aforesaid vehicle faced an accident and it was detained in garage for repairing. For that reason, the Complainant has not paid the instalment amounts regularly. He has also spent Rs.1 lakh (Rupees One lakh) for repairing of the said vehicle and that the O.Ps have not issued any letter to the Complainant regarding the exact outstanding loan amount and that, all of a sudden without complying the mandatory principle of natural justice, the O.Ps and their staffs have illegally seized the aforesaid vehicle of the Complainant on dtd.19.07.2016 from his driver by employing hired goondas and took possession of the aforesaid vehicle of the Complainant at N.H-60. It is not a fact that the O.Ps have not demanded the actual outstanding loan amount of the Complainant and intentionally the O.Ps have demanded excess amount to the Complainant and that on dtd.20.07.2016. It is also not a fact that the grievances of the Complainant are not considered by the O.Ps and they have intentionally and deliberately avoided to provide proper service and discarded the request of the Complainant to release the aforesaid vehicle in his favour. Moreover, the O.Ps are Finance Company dealings with Banking business and guided under Banking Regulation Act. Prior to sanction of loan, the Complainant made an agreement with the O.Ps and agreed to abide all terms and conditions of the agreement. Accordingly, the loan was sanctioned in favour of the Complainant. The Complainant is not a consumer under C.P Act. The O.Ps have not caused any deficiency in his service. So, this case is not tenable under the law. Thus, the Complainant did not repay the loan amount regularly. To escape from the instalments and interest amount, the Complainant has filed this false case against the O.Ps. So, the case of the Complainant is liable to be dismissed with cost.
4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-
(i) Whether this Consumer case is maintainable as per Law ?
(ii) Whether the Complainant is a Consumer under the provision of C.P Act ?
(iii) Whether there is any cause of action to file this case ?
(iv) To what relief the Complainant is entitled for ?
5. In order to substantiate their claim, the Complainant has filed certain documents as per list, whereas the O.Ps have not filed any documents in their support. Perused the documents filed. It has been argued on behalf of the Complainant that though the O.Ps have committed to pay the insurance amount, but the O.Ps did not co-operate with the Complainant. Since the said vehicle faced an accident in the year 2015, the Complainant was unable to pay the outstanding loan amount and the O.Ps have illegally seized the aforesaid vehicle of the Complainant from his driver at N.H-60 by demanding excess amount from the Complainant. On the other hand, the O.Ps have denied to it. The Complainant has failed to prove how the O.Ps committed to pay the insurance amount and nothing has been clearly shown in the case record in this regard. On the other hand, the plea of the Complainant has been denied by the O.Ps and there is no specific material found regarding seizure of the vehicle though the O.Ps have challenged the order of the Forum in the Hon’ble State C.D.R Commission, Odisha, Cuttack. In the order dtd.20.04.2017 passed in R.P No.67 of 2016, wherein it has been directed to release the seized vehicle in favour of the O.P/Complainant on payment of Rs.1,37,945/- (Rupees One lakh thirty seven thousand nine hundred forty five) only towards EMI dues within one month of receipt of this order. But, nothing has been shown to us about compliance of such order by the Complainant. However, according to settled principle of Law, a Finance Company cannot seize the vehicle without observing the necessary formalities of Law. But, in the instant case, nothing has been clearly proved that the O.Ps have followed the settled principle of Law regarding seizure of the vehicle. So, such type of seizure of the vehicle became illegal, which amounts to deficiency of service on the part of the O.Ps. But, it is admitted fact that the Complainant has not paid the outstanding dues towards the vehicle.
6. So, now on careful consideration of all the materials available in the case record and on hearing both the sides, we are in the opinion that the O.Ps have to return the seized vehicle to the Complainant on payment of all the arrear dues by the Complainant to the O.Ps within 60 days of receipt of this order, failing which the O.Ps are at liberty to recover the loan amount from the Complainant under due procedure of Law. The O.Ps are also directed to pay compensation of Rs.2,000/- (Rupees Two thousand) only along with litigation cost of Rs.1,000/- (Rupees One thousand) to the Complainant, which will meet the ends of Justice in this case. Hence, Ordered:-
O R D E R
The Consumer case is allowed on contest against the O.Ps with cost. The O.Ps are directed to return the seized vehicle to the Complainant on payment of all the arrear dues by the Complainant to the O.Ps within 60 days of receipt of this order, failing which the O.Ps are at liberty to recover the loan amount from the Complainant under due procedure of Law. The O.Ps are also directed to pay compensation of Rs.2,000/- (Rupees Two thousand) only along with litigation cost of Rs.1,000/- (Rupees One thousand) to the Complainant.
Pronounced in the open Forum on this day i.e. the 30th day of July, 2018 given under my Signature & Seal of the Forum.
