FINAL ORDER/JUDGEMENT
SMT. SAHANA AHMED BASU, MEMBER.
This is an application u/s.12 of the C.P. Act, 1986.
Brief facts of the instant consumer complaint are that complainant’s deceased husband purchased one Car being Model- Maruti Swift D Zire Tour 1248 CC BS IV, Registration No.WB-04 / G-0462, Engine No.D13A5054404, Chassis No. MA3FSEB1S00468222 at a price of Rs.5,20,000/- obtaining a loan under Loan Agreement No. WCJ00530C dated 29/06/2014, vide Customer Code- CU4395861 and the tenure of said loan was for 60 months on EMI basis. On 03/01/2016, husband of the complainant Bijoy Yadav had expired leaving behind his wife i.e. the complainant as his only legal heir and successor. After demise of husband of the complainant, complainant repeatedly requested the O.P. to change the name of her husband by putting the name of the complainant in the said Loan Agreement but they verbally advised her to continue payment of EMIs and on completion of the loan they will issue NOC in favour of the complainant and the complainant did the same. Surprisingly, on 05/04/2018, without any notice, the men of the Agent of the O.P., namely, M/s Ghosh Parking illegally repossessed the subject vehicle. In spite of several requests, the O.P. did not return the subject vehicle, legal notice dated 20/04/2018 was also served upon the O.P. on 21/04/2018 with a request to return the subject vehicle and settle the dispute on table but to no effect. Finding no other alternative, the complainant has filed the instant consumer complaint with the prayers to direct the O.P. to sit across the table to resolve the dispute and also to regularize the Loan Agreement dated 29/06/2014, to pay compensation for causing harassment and mental agony and to pay litigation cost.
This consumer complaint is very much resisted by the O.P. by filing W.V. contending inter alia that the instant petition of complaint is not maintainable and it has been filed with malafide intention as the loan was granted from separate division of the O.P. having its office at 41, Shakespeare Sarani, Kolkata-700017. Moreover, the complainant has entered into an Arbitration Agreement in terms of Arbitration & Conciliation Act,1996. It is the case of the O.P. is that despite several intimations the complainant failed to pay the EMI and that too in the said Loan Agreement complainant was the borrower and one Lalit Kamat is the co-borrower / Guarantor and they had agreed to resolve all the disputes through Arbitration and venue was to be at Chennai. It is also the case of the O.P. that the borrower failed and neglected to pay EMI and the agreement stood ipso facto though the O.P. issued one notice dated 08/12/2017 and dated 05/04/2018 intimating them that if the due amount is not paid within 7 days, the O.P. would take legal steps for realization of the dues. As such, there is no deficiency in service on the part of the O.P. as alleged by the complainant. Hence, the O.P. has prayed for dismissal of the instant petition of complaint.
In view of the above facts following points are raised for determination :-
- Whether O.Ps. have wrongfully repossessed the car.
- Whether O.Ps. indulged in unfair trade practice.
- Whether the complainant entitled to get any relief/reliefs as prayed for.
Decision with Reasons
Points No.-1 to 3.
All the points are taken up together for the sake of convenience and brevity in discussion.
Both the parties have tendered their evidence supported by an affidavit. The complainant failed to reply to the questionnaire set forth by the O.P. though the O.P. has replied to the questionnaire set forth by the complainant. Both the parties have filed BNAs. Ld. Advocates for the parties advanced the case through their argument. We have gone through the record and documents furnished by the parties carefully and gave a thoughtful consideration.
It is admitted fact that the husband of the complainant, since deceased, purchased Maruti Swift Dzire car after obtaining loan from op and also executed Loan Agreement No. WCJ00530C dated 29/06/2014, (Customer Code- CU4395861, Product Model- Maruti Swift D Zire Tour 1248 CC BS IV, Vehicle Registration No. WB04-G-0462, Engine No. Di3A5054404, Chassis No. MA3FSEBIS00468222). The sale price of the car was Rs.5,20,000/- and the tenure of the loan was 60 months. During his life time said Bijay Yadav had regularly paid the EMI against loan account. It is also admitted fact that on 03/01/2016, the said Bijay Yada expired leaving behind the complainant as his sole legal heir and successor.
Ld. Advocate for the complainant has argued that after demise of her husband complainant repeatedly requested the O.P to transfer the loan account in her favour of the complainant, but the official of the O.P. personally told the complainant to continue the loan and after liquidation of loan the O.P. will issue NOC in favour of the complainant and being assured the complainant religiously paid the EMI to the O.P. in respect of the said loan.
Ld. Advocate for the complainant further alleged that on 05/04/2018 the subject vehicle had been repossessed illegally by the agent of the O.P., namely, M/S Ghosh Parking on B. T. Road without any prior intimation.
Ld. Advocate for the O.P. controverted the allegation by submitting that the complainant failed and neglected to repay the EMIs in terms of the Agreement. In view of the default committed by the complainant, although the Agreement stood terminated ipso facto, the O.P. has issued notice dated 08/12/2017 and 05/04/2018 intimating the complainant that if the due amount is not paid within 07 days, the O.P. will have no other option but to take appropriate legal steps for realization of dues. The Bank made several requests and / or reminders to the complainant / borrower to make payment but the complainant being the legal heir of borrower deliberately ignored such requests. The complainant did not make further payments and refused to pay the balance dues or any portion thereof though the complainant is liable to pay and the Bank is entitled to recover the same. The said Agreement dated 29/06/2014 contains an Arbitration Clause wherein all disputes and differences arising out from this agreement, shall be referred to Arbitration in accordance with the said Agreement under Arbitration and Conciliation Act,1996.
On perusal of the evidence and documents on record, we find that neither the complainant nor the O.P. have furnished the said Loan Agreement. Receipts of the online and cash payment slip furnished by the complainant shows that the complainant paid the dues till 21/03/2018. It is also observed by us that the O.P. remained silent regarding change of the name of the subject loan in favour of the complainant on the demise of her husband. Per contra, on a depth scrutiny of the materials on record, we do not find any piece of paper in support of the contention of the O.P. that the complainant failed to repay the EMIs and as such it is clear that O.P. has failed to establish their case.
Therefore, we are of the opinion that the complainant is entitled to get relief or reliefs as prayed for. Thus, all the points answered in the affirmative.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against the O.P. with litigation cost of Rs.5,000/-.
O.P. is directed to return the subject vehicle bearing registration No.WB-04/G-0462 to the complainant within 30 days from the date of this order .
O.P. is further directed to pay a sum of Rs.50,000/- to the complainant for causing harassment, mental pain and agony within the aforesaid period.
Liberty be given to the complainant to put the order in execution, if the OP transgresses to comply the order.
