Hon’ble Mr. Haradhan Mukhopadhyay, President.
The basic fact of the case of the Complainant in brief is that husband of the Complainant Smt. Shefali Sen namely Shiben Sen purchased an Omni Tourist Bus (Commercial Bus) in the month of February, 2015 from Khokon Motors, Siliguri for Rs.11,96,931. Due to insufficient fund he borrowed from the OP Mahindra and Mahindra Finance. The said vehicle bearing Reg. No. WB-63-A-0117 was purchased for earning his livelihood. Due to purchase of the said vehicle an agreement was made between the parties. The loan instalment was continued for about 24 instalments at the rate of Rs.25,500/-. Unfortunately, the Complainant’s husband expired on 31.11.16 due to illness which was intimated to the OP with a view to obtaining the actual loan amount due. The Complainant was willing to pay off outstanding dues but proper response were received from the OP. They were silent and did not co-operate with the Complainant. Suddenly a few number of staff and agent of the O.P. No.2 Mahindra and Mahindra Finance Limited came to Complainant’s house with a demand for realisation of the outstanding loan money of Rs.3.5 Lakhs otherwise the vehicle would be taken away forever. After a few days the said vehicle was brought to Cooch Behar, Dharmatala garage for repairing and left there. Suddenly some staff and agent of O.P. No.2 forcibly took repossession of the said vehicle from the custody of the Complainant driver on 17.08.18 which is illegal and arbitrary. Without getting the loan account statement but the OP never provided the said loan account statement to the Complainant. Subsequently, the Complainant submitted a letter to the OP Company but the OP did not co-operate. Therefore, the Complainant filed written complaint to the IC, Kotwali PS on 21.03.18 and another letter to SP, Cooch Behar on 13.06.18. Finally, without getting any relief the Complainant submitted a legal notice through her Advocate on 13.06.18 which the OP duly received. The aforesaid activities of the OP amounted to deficiency in service. The cause of action for the present case arose on 17.01.18 and on subsequent dates. The Complainant therefore prayed for a direction to the OP to return the said vehicle in roadworthy conditions and if issuing loan account statement, Rs.1 Lakh as compensation for business loss mental pain and agony Rs.1 Lakh for deficiency in service and Rs.15,000/- towards litigation cost.
The OP denied each and every allegations of the Complainant by filing written version. The positive defence case of the OP is that the Complainant is not a consumer since the vehicle was being run for commercial purpose. The Complainant has suppressed all the materials facts. The Complainant is not a consumer under section 2b of the C.P. Act. Upon the request of the Complainant husband for availing financial assistance the OP after being satisfied provided loan for Rs.10,20,000/-. Agreement value to be repaid by the Complainant was Rs.14,02500/- in 55 periodical instalments starting from 05.02.15 to 05.08.19. The borrower executed a loan agreement on 31.01.15 bearing transaction No.3546689. The said vehicle was Mahindra tourist Cosmo purchased 25 from his own dealer. As per the agreement the borrower is supposed to make payment of periodical instalments, failure of the same would entitle the lender to take all the remedies available under the agreement. As per loan agreement the borrower shall repay the loan with interest. The borrower was expired on 31.11.16 but the Complainant did not approach to the OP regarding any process of change of name in Govt. record. Due to persistent default in payment of loan the OP took the possession of the vehicle and sent a presale notice on 21.01.18 requiring the borrower to clear the due else vehicle would be sold. After getting no response the said vehicle was sold and the sale proceed was credited in the loan account despite there remains a due of Rs.5,27,222/-. The borrower agreed to repay the loan despite any change on account of any product failure or its ultimate use. The Complainant is a chronic defaulter. The OP was constrained to enforce its right under the loan agreement and demand the outstanding dues from the Complainant. The Complainant committed a breach of the terms of the agreement.
The conflicting facts and allegations of both the parties persuaded this Commission to ascertain the following points for proper adjudication of the case.
Points for Determination
- Whether the Complainant is a consumer under the C.P. Act?
- Whether the Complainant is entitled to the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
This point relates to the question as to the actual status of the Complainant within the purview of the C.P. Act. The O.P. No.1 & 2 through their pleading challenged the status of the Complainant that he is not a consumer since the vehicle was purchased for commercial purpose.
In order to ascertain the status of the Complainant, let us have a close scrutiny of the pleadings and assessment of the evidence on record.
It is fact that the disputed bus(Omni bus) bearing No. WB-63-A-0117 was a commercial bus but the Complainant categorically stated in Para-3 of her complaint and evidence on affidavit that the said vehicle was purchased for earning his livelihood.
That apart the OP in his written version in Para-10b categorically stated that the statement made in Para-1 to 5 of the petition are partly admitted to be true as per record.
It is the settled position of law that admitted fact need not be proved. So since the OP has admitted his pleadings about the specific case of the Complainant that the vehicle was purchased for earning livelihood, so the Complainant is considered as consumer under the C.P. Act.
Thus having considered the pleadings and evidence on record it is reasonably inferred that the Complainant is a consumer under the C.P. Act.
Point No.1 is accordingly decided in favour of the Complainant.
Points No.2 & 3.
Both the points are very closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion.
It is the specific case of the Complainant that her husband suddenly died on 31.11.16. So, the Complainant was willing to repay the outstanding loan amount and as such she met with the OP but they did not co-operate and respond her properly.
The OP could not deny the said allegation. Instead the OP in Para-10d of the written version stated that it is partly proved and partly failed.
In absence of any specific denial, as per the rules of the pleading, the evasive denial and partly admission are considered as a version of the Complainant true and unchallenged.
The Complainant further alleged that the OP never stated of account for knowing the actual outstanding overdue money.
The case record shows that a statement of account is filed by the OP but there is no corresponding letter that the said statement of account was supplied to the Complainant at any point of time before filing this case.
The Complainant categorically pleaded and adduced evidence that she is willing to repay the loan through instalments.
It is further evident from the case record that during his life time the husband of the Complainant made regular payment of the loan. The statement of account dated 15.11.18 discloses that the Complainant made regular payment of the loan. Statement of account dated 15.11.18 further discloses that the Complainant made regular payment of loan from 31.01.15 to 05.12.16. Customer’s name is Shiben Sen and guarantor’s name is Bishwanath Sen.
There is nothing to show that despite the alleged failure to repay the loan by the customer no step was taken by the OP company against the guarantor. Therefore Ld. Advocate for the Complainant argued that it is the OP who violated the terms and conditions of the agreement.
The argument has reasonable force. It is the settled position of law that if a loanee failed to repay the loan creditor can take reasonable step against guarantor. But in the instant case there seems to have no step being taken by the OP against the guarantor. Therefore the OP seems to have violated the terms of the agreement.
The statement of account does not show any default in paying the loan money by the customer during the life time. Although the Complainant did not file the original or any copy of the agreement, yet since the OP repeatedly clamoured over the said agreement, so the OP had a duty to file the said agreement. But the OP did not file the original agreement or any copy thereof to establish the different clauses for recovery of the loan or if there was any provisions for seizure of the disputed vehicle. In fact the OP has suppressed the agreement before the Commission to unveil the truth. Since the original customer is dead, so the legal heir has a right to transfer the vehicle in question in her name and she should be given an opportunity to repay the loan. But the OP could not file any statement of account prior to 15.11.18 the original customer died on 30.11.16. During two years from 2016 to 2018 the OP seems to have not supplied any statement of account to the Complainant to give her opportunity to repay the loan.
Therefore, the allegation and the Complainant that the OP did not supply the statement of account and did not co-operate that the Complainant stands well proved.
It is true that the OP has right to recover the loan amount alongwith interest as per the agreement but in absence of specific provision for seizure of the vehicle despite payment of about 22 instalments out of 55 instalments, how could the OP seize the disputed vehicle without giving any notice of seizure is a big question which remains unanswered.
The pleading of the OP discloses inter alia that as per the agreement notice has to be served upon the loanee before seizure of vehicle or terminating the agreement. The OP neither produced the actual agreement nor did prove any notice of seizure of the disputed vehicle. Therefore the case of the Complainant stands well proved and the defence case stands failed.
It is also disclosed in the pleading of the OP that the OP after taking vehicle for possession has sent a presale notice dated 21.01.18 requiring the borrower to clear the dues else vehicle will be sold to recover the dues by adjusting the sale proceed. After getting no response the said vehicle has been sold on 31.03.18.
The OP failed to prove the presale notice during the trial of the case nor did they adduce any evidence through any document about service of presale notice upon the Complainant. Therefore both the repossession of the said vehicle as well as the sale of the said vehicle could not be proved as proper and valid.
The OP also claimed that the Complainant surrendered the said vehicle but failed to prove any document that the Complainant ever surrendered the said vehicle to the OP. The aforesaid activities of the OP tantamount to deficiency in service.
Thus having assessed the entire evidence in the case record and after due consideration of the argument advanced by Ld. Advocate for both the parties vis-à-vis the observation mad herein above the Complainant comes to the finding that the case of the Complainant stands proved up to the hilt.
Consequently points No. 2 & 3 are answered in affirmative and decided in favour of the Complainant.
In the result the complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No.CC/53/2018 be and the same is allowed on contest with cost Rs.5000./
The Complainant Smt. Shefali Sen do get an award for return of the said vehicle bearing No. WB-63-A-0117 in roadworthy condition from the OP which was repossessed by the OP. The Complainant do get an award of Rs.25,000/- towards compensation for mental pain and agony and Rs.25,000/- for deficiency in service.
The OP is directed to return the said vehicle bearing No. WB-63-A-0117 to the Complainant in roadworthy condition within 30 days from the date of passing Final Order and to pay Rs.55,000/- within 30 days from the date of passing Final Oder to the Complainant failing which the entire awarded money shall carry an interest of 8% per annum from the date of order till the date of realisation. The OP shall recover the outstanding loan amount from the OP in easy monthly instalments alongwith agreed rate of interest as pre the agreement.
The Complaint case is accordingly disposed of.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
