DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24  PARGANAS ,  AMANTRAN BAZAR, BARUIPUR, KOLKATA - 700 0144

 

      C.C. CASE NO. _84_ OF ___2015

 

DATE OF FILING : 13.2.2015           DATE OF PASSING JUDGEMENT:  _17.5.2018_

 

Present :   President       :   Ananta Kumar Kapri

 

    Member(s)    :    Subrata Sarker  & Jhunu Prasad

      

COMPLAINANT        : Sri Lalit Mohan Chitrakar, son of late Madan Mohan Chitrakar of Village-Hariharpur, Kayastha Para, P.O Mallickpur, P.S Baruipur, Kolkata – 144.  -

 

-  VERSUS  -

 

O.P/O.Ps :  The Manager, Tata Motors Finance Limited, previously situated at Kolkata Branch, 5/1A, Hunger Ford Street, P.Shakespeare Sarani, Kolkata – 165 and at present at 6th floor, Awing Rene Tower, Plot no.AA/1, 1842, Rajdanga Main Road, P.S Kasba, Kolkata – 107. 

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J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President 

     The epitome of the facts leading to the filing of the instant case by the complainant is that the complainant purchased a Tata ACE vehicle, having taken a loan amount of Rs.2,60,000/- from the O.P company on 13.10.2009. The loan was agreed to be paid by 47 monthly installments of Rs.8,503/- each. The complainant paid the installments regularly. Thereafter, on 27.5.2011 the O.P company suddenly snatched away the vehicle forcibly from near Santragachi Railway Station. The complainant made several visits to the office of the O.P and requested them to take Rs.25,424/- as is said to have been fallen due from him to the O.P. But all attempts of the complainant ended in smoke. Now the complainant has approached this Forum by filing the instant case ,praying for return of the vehicle and also for compensation etc. Hence, this case. 

     By filing written statement ,the O.P has admitted the advancement of loan to the complainant and also the EMI as alleged by the complainant. According to him, the vehicle was purchased by the complainant for commercial purpose and, therefore, the instant case is not maintainable in law. The complainant has been a defaulter in payment of EMI and, therefore, the vehicle has been repossessed in accordance with Law. An award for Rs.63,605/- has also been passed against the complainant in an Arbitration Proceedings initiated by the O.P and the complainant has not paid the said amount still now. He is not in a position to pay the said amount and, therefore, allowed the O.P to take over the possession of the vehicle and sale the same to a third party. There is no deficiency in service as alleged by the complainant on the part of the O.P and, therefore, the case should be dismissed in limini with cost. 

 

     Upon the averments of the parties following points are formulated for consideration.

POINT FOR DETERMINATION

 

Is the complaint maintainable in Law?

Is the O.P guilty of deficiency in service for repossession and sale of the vehicle of the complainant?

Is the complainant entitled to get relief or reliefs as prayed for ?

 

EVIDENCE OF THE PARTIES

 

The complaint is treated as evidence of the complainant vide his petition dated 22.7.2015. Similarly the written version filed on behalf of the O.P is also treated as his evidence vide his petition dated 30.11.2011. 

DECISION WITH REASONS

Point no.1 :- 

Already hard the submissions of the Ld. Lawyers appearing for both the parties. Perused the complaint, written version ,questionnaire, replies and the BNAs filed on record. 

Considered all these. 

It has been argued on behalf of the O.P that the complaint is not maintainable as the vehicle was purchased by the complainant for commercial purpose. It is true that the vehicle is purchased by the complainant for commercial purpose. But mere purchase of a thing for commercial purpose does not ipso facto make the case ineligible for maintainability before the Forum. It is averred by the complainant in para 7 of the complaint that he has purchased the vehicle for his own use and he has been running the same for earning livelihood by way of self employment. It is also stated therein by the complainant that he does not own any other vehicle. What more is expected from the complainant than this? This averment of the complainant has not been proved to be a false one or even contradicted by evidence by the O.P and this being so, it stands substantiated that the vehicle was purchased for self-employment.. If a person purchases a vehicle for commercial purpose for earning livelihood by way of self employment ,the said transaction is excluded from the definition of commercial purpose and, therefore, the instant case appears to be amply maintainable in law. 

Point no.1 is thus primarily answered in favour of the complainant. 

 

Point no.2:-

Now to see whether the O.P is guilty of deficiency in service in so far as the repossession and sale of the vehicle are concerned.  Admittedly, the vehicle has been repossessed by the O.P on 27.5.2011 when the vehicle was plying near Santragachi Railway Station on Kona Express Highway. No prior notice of repossession of the vehicle has been served upon the complainant by the O.P. A vehicle is repossessed by a secured creditor in accordance with the provision of SARFAESI Act 2002, which has come into force on and from 21.6.2002 . Section 13 of the said Act lays down the provision for taking possession of a secured goods for enforcement of security interest. Section 14 of the said Act lays down that the assistance of C.M.M or D.M , as the case may be, is to be taken for taking possession of secured goods. Section 34 of the said Act bars the jurisdiction of Civil Court in this matter. This Act does nowhere provide for taking possession of secured goods by muscleman. That apart, our Hon’ble Apex Court and Hon’ble National Commission have issued guidelines from time to time to the effect that no secured goods will be taken forcibly by the Financer and if such goods are to be taken in possession of, that should be done following due process of Law. But who cares for all these guidelines? All these guidelines have been thrown into wind by the Financial Institutions. They have grown a fashion to repossess the secured goods with the application of muscle power. Such practice has been severely deprecated by the Hon’ble Supreme Court. In our opinion, this is not a Hire Purchase Agreement and it is mandatory for the O.P to give prior notice to the complainant for taking repossession of the vehicle. Repossession of the vehicle without giving such prior notice to the complainant is a gross deficiency in service on the part of the O.P. 

Again , the vehicle has been sold by the O.P without giving any notice to the complainant. The complainant is entitled to participate in the sale proceedings of the vehicle. He has not been given such opportunity by the O.P. Everything is done by the O.P in hush hush manner. It is again pointed out that the O.P has caused deficiency in service by not giving notice of sale to the complainant. 

Point no. 2 is thus disposed against the O.P. 

Point no. 3 :

Now to see whether the complainant is entitled to get relief or releifs  and if so, to what extent. 

First of all, we have to see how much the complainant is liable to pay to the O.P company and how much the O.P company is entitled to get from the complainant. It is admitted fact that after repossession of the vehicle, the O.P served a notice upon the complainant on 30.5.2011. Repossession of the vehicle was taken on 27.5.2011. So, the deadline may be fixed by us on 30.5.2011 and we will have to see how much the O.P was entitled to get from the complainant on that very day. The loan amount is Rs.2,60,000/- and the rate of interest is 10%. Such rate of interest is available on a calculation taking into consideration the principal amount, the interest amount and the tenure of loan , as envisaged in “Contract Details” Form, filed by the O.P. The loan was disbursed on 15.10.2009 as is revealed from the above Form. In the notice dated 30.5.2011 of the O.P it has been mentioned that outstanding dues of the complainant up to that day is Rs. 25,424/-.  So, taking into consideration the “Repayment Schedule” filed by the O.P , we may hold that the complainant has paid Rs.1,36,316/- to the O.P by way of installments up to 30.5.2011. The complainant is now required to pay the principal amount and interest @10% p.a thereupon up to 30.5.2011. Principal amount of loan is Rs. 2,60,000/- , Interest @10% up to 30.5.2011 for one year eight months is Rs.43,441/-. Total liability of the complainant thus stands at Rs.3,03,441/- ( 2,60,000/- + 43,441/- ). The O.P has got from the complainant Rs. 2,91, 316/- { 1,36,316/- + 1,55,000/-(Sale Price of the Vehicle)}. So, it is found that the complainant is still liable to pay to the O.P company Rs.12,125/- ( Rs. 3,03,441/-  - Rs. 2,91,316). 

Now it is high time to determine the loss suffered by the complainant due to unlawful taking over of the possession of the vehicle by the O.P. Complainant is an unemployed person; he has already paid Rs.1,36,316/- to the O.P company by way of installments. More than 50% of the principal amount of loan has been paid by the complainant by 30.5.2011. Still, his vehicle has been taken away by the O.P company. As the vehicle has been taken away by the O.P, complainant has lost his employment; he is suffering and his family members are also suffering for unlawful act of the company. Not only the livelihood of the complainant has received a severe jolt by unlawful taking over of the possession of the vehicle by the O.P, the reputation of the complainant has also undergone a considerable loss. Every person has a dignity and honour. If the dignity and honour of a person is lost, everything of his life is lost. The vehicle has been taken over forcibly from the Kona Highway by the O.P and this has entailed a huge loss of reputation of the complainant. 

That apart, the complainant has also undergone a tremendous harassment and mental agony for repossession of the vehicle unlawfully by the O.P.  The O.P company will have to pay huge amount of compensation to the complainant and unless such huge amount of compensation is slapped upon the O.P company, they will never follow the guidelines of Law which are pronounced form time to time by the Apex Judicial Body of the country. 

Point no.3 is thus disposed of accordingly in favour of the complainant. 

In the result the case succeeds. 

 

 

Hence, 

ORDERED

That the complaint case be and the same is decreed on contest against the O.P with cost of Rs. 5000/-. 

The O.P is entitled to get Rs. 12,125/- from the complainant and he may give the amount adjusted with the decreetal amount to be paid to the complainant.

The O.P is directed to pay Rs. 50,000/- to the complainant for loss of employment , a further sum of Rs. 50,000/- for loss of reputation and a sum of Rs. 30,000/- for harassment and mental agony caused to the complainant along with litigation cost of Rs.5000/- as referred to above , within a month of this order, failing the decreetal amounts as referred to above will bear interest @10% p.a till full realization thereof. 

     Let a free copy of this order be given to the parties concerned at once.    

 

    President

I / We agree

                   Member Member

Dictated and corrected by me 

 

President 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

 

 

Member Member President