DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 28th day of December, 2018
C.D Case No. 03 of 2017
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Sri Goura Hari Sahoo
S/o Late Purna Chandra Sahoo
Vill: Madhusudanpur,
Po: Arnapal,
Ps: Bhadrak (R),
Dist: Bhadrak ……………………. Complainant
(Versus)
1. The Manager
Bajaj Finance Ltd.
C/o Bajaj Auto Ltd
Old Mumbai Pune-Road Akrudi, Pune
2. The Manager, Sanjibani Motors
Bhadrak Branch
At; Opposite of Fire Station, Charampa,
Po: Charampa,
Ps: Bhadrak (T),
Dist: Bhadrak …………………………..Opp. Parties
Advocate For the Complainant: Sri S. Tripathy
Advocate For the OP No. 1: Sri B. Mohanty & Others
Advocate For the OP No. 2: Sri S. Nayak & Others
Date of hearing: 26.06.2018
Date of order: 28.12.2018
SRI RAGHUNATH KAR, PRESIDENT
That, the complainant has alleged against the O.Ps having aggrieved with their deficiency in service caused towards him. That, the OP No. 2 has installed his show room under the sponsorship of OP No. 1 the complainant has purchased an Auto Rickshaw from the OP No. 2 on 26.06.2013 from his show room situated at Charampa. The said Auto Rickshaw was cost Rs 1,42,750/- (Rupees One Lakh Forty Two Thousand Seven Hundred Fifty) only . The complainant had paid the said amount to the OP No. 2 and obtained the money receipt on 26.06.2013. At the time of purchasing of the said Auto Rickshaw, there was an agreement executed between the complainant and the O.Ps. According to the terms and conditions of the said agreement, the complainant had paid Rs 45,000/- towards down payment of the vehicle. It was agreed between the parties and decided between them that the complainant should have paid Rs 4,319/- for each installment and he would to pay total 42 installments. The total loan amount of Rs 63,398/- till now all the loan amount has been paid to the O.Ps. The OP No. 1 had suddenly issued a legal notice to the complainant through his concerned advocate on 02.11.2016 that Rs 8,638/- loan amount and other dues Rs 4,586/- has been pending upon the complainant and he should have paid such total amount Rs 13,224/- is remaining upon the complainant to be paid. Further the OP No. 1 has claimed Rs 500/- which is the cost of the legal notice to the complainant as on 19.12.2016 the OP has to get Rs 22,474/- from the complainant. During the time of collection of the monthly installments dues, one T. Sethi has collected the dues amount from the complainant and sometimes one P.K. Rout was collecting the dues amount from the complainant. O.Ps are demanding the dues amount sometimes as Rs 1,324/- and sometime Rs 22,471/- as their dues. This type of difference of their claim proved that the O.Ps are sending the legal notices in different dated as different kinds which are basing on false ground, on the other hands the complainant averred that he has cleared up all the loan amount with regard to the Auto Rickshaw. In spite of repayment the loan amount by the complainant to the O.Ps completely, when the complainant asked the NOC from the O.Ps they have not delivered the same to the complainant. The complainant has no dues with regard to the loan at all but the O.Ps should have handed over the NOC to the complainant.
It is further averred by the complainant that the O.Ps have calculated the interest at the rate of 13% per annum but they have collected the interest at the rate of 17% from the complainant so the O.Ps have collected more amount of interest from the complainant. The cause of action of this CD Case arose on 02.11.2016 on which the OP No. 2 has issued a legal notice upon the complainant. The complainant has sent a reply to the concerned advocate of the O.Ps which was sent on 08.12.2016 by Regd. post with AD.
Hence the complainant has sought for the following reliefs:-
1. The O.Ps be directed to issue no dues certificate in favour of the complainant.
2. The O.Ps be directed to calculate the interest at the rate interest of at the rate of 17% the excess amount which has been collected from the complainant shall be refunded to him.
3. The O.Ps be directed not to repossess or drag the said auto rickshaw at any time according to their sweet will forcibly and they should be restrained to do so till the disposal of the CD Case.
Documents filed by the complainant in the shape of Xerox copy:-
1. Registration Certificate Particulars RA-03087176-OD22A-1662- 1 Sheet.
2. Fitness certificate- 1 sheet.
3. Receipt No- C0382831500375 dt. 26.03.2016- 37 sheets.
4. Customer copy ICICI Lombard General Insurance Company Ltd PVC No- 10763477- 1 sheet.
5. Receipt of the company- 1 sheet
6. Retail Invoice, Sanjibani Motors on dt. 26.06.2013- 1 sheet.
7. Details of Registration Certificate Particulars RA-03087176-OD22A-1662 issued on 18.07.2013- 2 Sheets.
8. Certificate for Registration- 1 sheet.
9. Battery warranty card- 1 sheet.
10. Challan of Sanjibani Motors- 1 sheet.
11. Legal notice to the complainant on dt. 02.11.2016- 1 sheet.
12. Loan A/c No- L3WBHA02520190 & due amount Rs 22,471/- as on 19.12.2016- 1 sheet.
13. Legal notice to the O.Ps advocate on dt. 08.12.2016- 1 sheet.
The OP No. 1 has denied all the allegations made against the complainant in his written version. The OP No. 1 has admitted that his address and venue are true. The OP No. 1 is a non banking finance company registered as Bajaj Finance Ltd. under the provisions of Indian Company that 1986. He has denied all the allegations made in different paragraphs of the complaint. The theme of the written version cited by the OP No. 1 is as follows. “The Hon’ble Supreme Court itself has laid down a law a defaulter cannot be termed as a consumer as defined under the CP Act as such a defaulter cannot maintain a complaint alleging deficiency of service on the financer (OP No. 1) thus the complainant has not approached this Honorable Forum with clean hands against this OP No. 1 and this complaint deserve to be dismiss on this ground itself against this OP No. 1.” Further the OP No. 1 state that, as on October, 2016, the loan account of complainant along with Mr. Sailendra Jena was in outstanding arrears of Rs 13,224/- (i.e. Rs 8,638/- towards installment arrears Rs 4,586/- towards other over dues, accumulated due to non-remittance of monthly installment on its due dates), along with further installments payable even after several requests and reminders with the complainant along with Mr. Sailendra Jena has not shown any interest and not taken any steps to pay the outstanding dues and constrained by this attitude of the complainant along with Mr. Sailendra Jena, the OP No. 1 has issued demand notice dated 02.11.2016 and informed the complainant along with Mr. Sailendra Jena to remit the outstanding dues of Rs 13,224/- and regularize the loan account. The OP No. 1 state that after receipt of said demand notice dated 02.11.2016 (which is admitted fact the complainant in his complaint) the complainant has remitted Rs 4,320/- on 09.11.2016 against total demand of Rs 13,224/- and thus was in default.
Hence he has prayed for the dismissal of this proceeding as well as to remit the outstanding dues as per Annexure- C and close the loan account.
The OP No. 2 has filed his written versions as follows:-
That he has denied all the allegations made against him by the complainant. He has also challenged the maintainability, limitation, cause of action of this proceeding. He has also challenge the proceeding is barred by non-joinder and mis-joinder of necessary parties. He has further challenged the nature of this proceeding is false, frivolous and vexatious. The complainant has not made out the deficiency in service, negligence or unfair trade practice against the O.Ps. The fact is that the OP is Manager of “SANJIBANI MOTORS” situated at Charampa which deals with sale of Bajaj Auto Rickshaw, three wheelers etc. In the year 2013 the showroom rate of Bajaj Auto Rickshaw was Rs 1,42,750/-. On 26.06.2013 the complainant availed a loan amounting to Rs 1,18,000/- from Bajaj Finance Ltd. through it’s agents and gave the same to this OP rest amount of Rs 24,750/- remained due upon him and R.T.O Regt. Charges Rs 12,750/- + Insurance Rs 5,500/- + Proceeding charges Rs 3,900/- + Rate of Meter Rs 2,400/- = Total Rs 49,300/- due upon the complainant out of which at the time of taking delivery of the Auto, the complainant paid Rs 30,000/- to this OP = Rest amount stood credited i.e. Rs 19,300/- out of which Rs 300/- discount was given = Rs 19,300/-. The loan amount Rs 1,18,000/- + Rs 19,000/- + Interest is to be paid to OP No. 1 by the complainant in 42 monthly installments i.e. Rs 4,319/- in each installment. Overdue charges, cheque bouncing charges and late payment charges are also chargeable from the complainant by OP No. 1. The complainant failed to pay regular installments to OP No. 1 but without any basis has arrayed this OP as a party in the case. This OP is no way deficient in providing proper service to the complainant. The allegation of the complainant is against OP No. 1 which is a separate entity from Bajaj Auto Ltd. Under such circumstances the complaint be dismissed as against this OP. Hence he has also prayed for the dismissal of the proceeding. The OP No. 1 & 2 have not filed the documents they have relied upon.
OBSERVATION
We have already perused the complaint as well as the documents and written version filed by the complainant. The complainant has filed number of money receipts on vide dt. 29.10.2013, 26.07.2013, 27.08.2013, 02.10.2013, 02.12.2013, 28.02.2014, 21.02.2014, 27.03.2014, 26.04.2014, 11.06.2014, 27.06.2014, 26.07.2014, 26.08.2014, 26.09.2014, 21.10.2014, 28.11.2014, 27.01.2014, 26.12.2014, 29.01.2015, 29.04.2015, 28.07.2015, 26.08.2015, 28.10.2015, 23.06.2015, 26.05.2015, 04.12.2015, 23.02.2016, 21.03.2016, 04.01.2016, 23.04.2016 and 09.11.2016. The complainant has deposited the amount Rs 1,42,750/- as is first EMI towards the cost of the vehicle. The complainant has also obtained the retail invoice on 26.06.2013 towards the vehicle loan. It is manifested case record that the complainant has deposited 31 installments in which he has filed the money receipts in respect of the said amount. The total amount the complainant has paid in 32 installments is Rs 1,33,889/- on the other hand he has paid Rs 1,42,750/- as the first EMI. The sum total of the amount the complainant has paid Rs 2,76,639/- towards the vehicle to the OP No. 2. It was agreed between both the parties the complainant had to pay Rs 4,319/- in each installment. The OP No. 1 stated in his written version that the complainant has to pay 42 installments to the OP No. 2. The total cost of Auto Rickshaw is Rs 1,41,000/- and insurance and registration fees of Rs 20,000/-, totally the complainant had to pay Rs 1,61,000/-. According to the documents and after perusal of the case record we have found that the complainant has already paid Rs 2,76,639/-. Hence it is prima facie case that the complainant has already paid the principal money, insurance fees, registration fees and other fees to the OP No. 2 Rs 2,24,471/- along with other fees. So the complainant has nothing to pay to the OP No. 2. He has already paid the loan amount. The OP No. 1 & 2 should not claim further dues to the complainant.
It is found from the money receipts filed by the complainant that the seal of the Bajaj Financial Ltd. has been affixed on the place of agency stamp and on some of the money receipts no stamp have been affixed. It has also been found that some of the different collectors of EMI have put their different signatures below the money receipts. A particular collector of EMI has not been appointed to collect the EMI. The collectors have also put their different signatures on the money receipts. They have put their initials instated of putting their full signatures on the money receipts. All the aforesaid deficiency caused by the OP No. 2 who has appointed the money collectors. Instated of redeeming loan amount from the complainant, falsely the OP No. 2 has been imposing more and more liabilities upon him. The OP No. 2 is also directed that he has collected 17% interest instead of 13% accordingly to the augment. So the OP No. 2 shall have to refund back the excess money to the complainant what he has caused from him. So it is a clear deficiency of service and dishonest trade practice. Hence it is ordered;
- ORDER
The complaint be and the same is allowed against the OP No. 2. He is also directed to handover the NOC to the complainant. Both the O.Ps are also directed not to claim further loan amount to the complainant and not to repossess the vehicle of the complainant. The OP No. 2 is also directed to refund back the money of the complaint as per 13% interest. They are further directed to pay Rs 3,000/- to the complainant towards the compensation and Rs 2,000/- towards the cost of the litigation. Both the O.Ps are directed to carry out of this order within 30 days from the date of receipt of the same.
This order is pronounced in the open Forum on this day of 28th December, 2018 under my hand and seal of the Forum.
