Ld. Advocate(s)

                   For Complainant: Patanjal Lahiri

                   For OP/OPs : Raja Bhattacharya

Date of filing of the case                  :08.03.2016

Date of Disposal  of the case            :11.07.2023

Final Order / Judgment dtd.11.07.2023

Complainants above named filed this complaint u/s 12 of the Consumer Protection Act, 2019 against the aforesaid opposite parties praying for direction to OPs to return  the vehicle to the complainants, refund of Rs.7,15,074/-, compensation amounting to Rs.1,00,000/- and other reliefs.

He alleged he had purchased one vehicle vide Registration No.WB-51A 4595 from the authorized dealer namely Vinayak Auto Trade Pvt. Limited through the Financer namely M/s. INDUSIND BANK LIMITED that is OP No.1. He paid EMIs on different dates. He already paid Rs.5,69,272/-. On 01.04.2015 OP NO.1 & 2 by force and illegally  seized the aforesaid  vehicle from the driver namely  Tapas Mondal and kept  the same on their custody  at Fulia Santipur  without prior  notice to the  petitioners. Afterwards, they sent a legal notice directing the petitioners to pay Rs.42,580/-. OPs vide their letter dated 14.05.2015 informed the petitioners that they would sale the aforesaid vehicle. Petitioner’s advocate sent a legal notice to OP NO.1 & 2 and requested them to make an amicable settlement relating to the aforesaid loan. But they did not respond the same. Rather they informed the petitioners that they have sold the aforesaid vehicle on 27.05.2015 with the value of Rs.1,05,000/-.

Petitioner received a notice from arbitrator namely Joya Chandra Babu Chennai who directed them to appear on 07.01.2015 at 4:00 p.m. Petitioner’s advocate  sent a legal notice  and prayed to arrange  the arbitration  proceedings  either in  Kolkata  jurisdiction or Krishnagar, Nadia District jurisdiction. But said arbitrator did not consider the aforesaid prayer of complainants.

OP No.1 & 2  contest the case  by filing  a W/V and denied all the material allegations contending inter-alia  that the case is not maintainable , case is barred by section 2D of the Consumer Protection Act, complainants has no locus-standee to file this case. OPs are unnecessary party and present complaint is baseless. They further stated that complainant approached financial assistant from the OPs in the

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month of May, 2012. On 30.05.2012 OPs approved the loan to the first complainant and one agreement was prepared.  As per said agreement Rs.4,60,000/- was financed to the complainant no.1 and by the said loan complainant took the delivery of vehicle  from the dealer  directly.  As per the agreement complainant  was bound to  pay Rs.6,71,430/- together  with  financial charges and insurance  charges  in 47 monthly  instalment.  Complainant no.2 has secured the prompt payment of loan account. Complainant no.2 undertakes and guaranteed the payment of the said loan. It has been  stated in the  loan agreement that if borrower defaulted  in pay the EMI or suffered  any acts prohibited  in violation of the terms and conditions of the agreement, OPs financer  company  has the right  to take possession of the aforesaid  vehicle  and to sue for all instalment due and for damages for breach  of the agreement with cost and expenses. First complainant had paid only few instalment that too irregularly. OP had made several personal visits, oral and telephonic demand remaining the instalment amounts as per the schedule but complainant no.1 has not bothered to pay outstanding amount due and the complainant wilfully committed default. Complainant has been evaded payment of instalment additional charges due to the OP financer. OP has totally lost their confidence to the complainant and referred the matter to the arbitrator. Arbitrator has passed the award on 16.02.2016 and thereafter complainant filed this complaint before this Forum on 15.03.2016 intentionally to escape from the legal demands of the OP they prayed for dismissal of the case.

Trial

During trial complainant filed affidavit in chief. OP No.1 & 2 filed interrogatories and complainant gave answer.

Documents

Complainant produced the following documents viz :

1. Money Receipt  of Vinayak  Autotrade Pvt. Ltd. dated 26.05.2012......(One sheet).........(Carbon copy)
2. Original Copy of Quotation/Proforma Invoice issued by Vinayak Autotrade Pvt. Ltd. dtd. 26.05.2012.......(One sheet)
3. Original Receipt copy of Indusind Bank Ltd. dtd. 28.05.2012........(One sheet)
4.  Original Receipt copy of Indusind Bank Ltd. dtd. 07.07.2012........(One sheet)

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5. Original copy of Insurance Policy issued by Royal Sundaram Alliance Insurance Company Ltd. dtd. 29.05.2012..........(Two sheets)
6. Original copy of vehicle delivery challan issued by Vinayayk Autotrade Pvt. Ltd. dtd. 04.06.2012...........(One sheet)
7. Original document copy of Form-22 dtd. February,2012.........(One sheet)
8. Original copy of Repossessed Vehicle Inventory List dtd. 10.04.2015......(One sheet)
9. Xerox copy of Driving Licence of Tapas Mondal.........(One sheet)

10)Original copy of Postal Receipt..........(One sheet)

11)Xerox copy of letter issued by complainant to OP NO.1dtd12.03.2015.........(One sheet)

12)Original copy of Postal Receipt............(Three sheets)

13)Xerox copy of letter issued by complainant to OP No.1 dtd. 22.04.2015......(Two sheets)

14)Original copy of letter issued by Ld. Adv. Yadav & Co. Of OPs to complainant dtd. 04.11.2015..........(One sheet)

15)Original copy of letter issued by Indusind Bank Ltd. to complainant dtd. 13.05.2015.......(One sheet)

16)Original copy of letter issued by Ld. Adv. Yadav & Co. to complainant dtd. 07.04.2015..........(One sheet)

17)Original copy of  Repossession intimation letter issued by OP No.2 dtd. 10.04.2015 to complainant........(One sheet)

18)Original copy of Loan agreement letter issued by OP No.2 to complainant dtd. 04.12.2015.........(One sheet)

19)Xerox copy of loan agreement........(Six sheets)

20)Xerox copy of First Schedule & 2^nd schedule back page.........(One sheet)

21)Account statement of Indusind Bank...........(Three sheets)

22)Original copy of Repossession intimation letter issued by OP NO.2 to complainant dtd. 10.04.2015..........(One sheet)

23)Original copy of legal notice issued by Ld. Adv. Patanjal Lahiri on behalf of complainant to OP NO.1 &2 dtd. 27.05.2015.........(Two sheets)

24)Original copy of legal notice issued by Ld. Adv. Patanjal Lahiri on behalf of complainant to Ld. Arbitrator dtd. 04.01.2016........(One sheet with receiving endorsement)

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25)Original copy of money receipt in different dates..........(Twenty nine sheets)

Brief Notes of Argument

          Complainant filed BNA . OP No.1 & 2 filed BNA.

Decision with Reasons

We have carefully gone through the petition of complaint filed by the complainant, W/V filed by the OP NO.1 &2, affidavit in chief filed by the complainant, documents filed by the complainant, BNA filed by the complainant and BNA filed by the OP No.1 & 2. We have carefully considered these documents.

On perusal of affidavit in chief filed by the complainant, we find that complainant corroborated the allegation which he mentioned in the petition of complaint.

It is the main allegation of the complainant that he purchased one vehicle that is TATA Mobile -207 DIR X BS3 vehicle vide Registration no.WB-51A 4595. At the time of purchase of said vehicle took loan from OP No.1 & 2. He already paid Rs.5,69,272/- to the OP No.1 &2. But on 10.04.2015 OP No.1 &2 seized the said vehicle forcibly and illegally and by putting pressure to the driver namely Tapas Mondal . He further stated that OP No.1 & 2 sold the said vehicle on 27.06.2015 at the consideration of Rs.1,05,000/-.

On perusal of quotation dated 26.05.2012, we find that value of the car was 5,41,746/- and out of the said amount  Rs.10,000/- has given as advance.

On perusal of vehicle delivery challan  dated 04.06.2012, we find that  aforesaid  vehicle has transferred  in favour of the complainant.

On perusal of  letter dated 04.11.2015 issued by Ld. Adv. for the OP No.1 & 2, we find that  loan of Rs.4,60,000/- was sanctioned and disbursed in favour of the complainant at the time of purchase of aforesaid vehicle. In the said letter it has mentioned that complainant committed default  and repayment of loan amount  and thereby  committed  breach of terms and conditions  of the loan agreement  and thereafter OP NO.1 & 2 took the possession of the said  vehicle  and sold out the same on 27.06.2015 at the highest possible price  which amount  to Rs.1,05,000/- after giving  credit to the various payments made earlier  a sum of Rs.1,46,764/- is till now  outstanding  due in the loan account.  They directed the complainant to repay the same.

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OP No.1 & 2 in their argument submitted before this Commission that one arbitration proceedings was started and award has been passed on 16.02.2016 against the complainant.

 On perusal of record, we find that  OP No.1 & 2 argued before this Commission that present case is not maintainable  because arbitration  proceedings  had started  and arbitrator gave award on 16.02.2016. Thereafter complainant filed this case on 15.03.2016. Hence, the case is not maintainable. This Commission vide order dated 25.07.2016 rejected the said petition and held that this case is maintainable.

Against the said order OP NO.1 & 2 filed a revision case before the Hon’ble SCDRC vide RP No.155 of 2016 and Hon’ble SCDRC dismissed the same.

On careful perusal of documents on record, we find that complainant made the following payments.

          By this way complainant paid Rs.5,69,272/-.

          As per aforesaid quotation complainant paid Rs.5,41,746/- to Vinayak Autotrade Pvt. Ltd. as cost of the vehicle. He paid Rs.23,952/- as insurance  premium. He also paid Rs.61,700/- towards  materials  body parts  body paints etc.

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He also paid Rs.25,150/- for purchasing tyres and Rs.5,000/- for tyre repairing . By this way he already spend Rs.7,15,074/-.

          We find from the record that OP No.1 & 2 all on a sudden seized the aforesaid vehicle forcibly. Ld. Adv. for the OP No.1 & 2 argued before this Commission that complainant  did not  pay  the instalment  in proper time  and for that reason  they  took the possession of the said vehicle  but they could not  produce any documents  in support of the fact that  before seizing the aforesaid  vehicle they served a notice to the complainant claiming the default amount.

          As the OP No.1 & 2 before taking the possession of the aforesaid vehicle did not serve any notice in favour of the complainant. So, it is clear before us that OP No.1 & 2 took the possession of the aforesaid vehicle by illegal way. We also find from the record that after taking the possession of the said Motor Vehicle, OP No.1 &2 whimsically sold the same with the value of Rs.1,05,000/-. Before selling of the said vehicle OP No.1 & 2 did not give any notice to the complainant. They did not give any chance to the complainant to pay outstanding dues before selling the said vehicle. So, it is clear before us that aforesaid act of OP No.1 &2 is highly illegal and beyond the principles of natural justice.

          Ld. Adv. for the OP NO.1 & 2 argued before this Commission that Ld. Arbitrator passed an award on 16.02.2016. Ld. Adv. for the OP No.1 & 2 failed to show that before referring the matter to the arbitrator they issued a notice to the complainant. 

Moreover, Hon’ble SCDRC dismissed the revision petition of the OP No.1 &2 so aforesaid arbitration proceedings is not a barred to proceed with this case.

We have stated earlier that OP No.1 &2 violated the law of the land by taking the forceful possession of the aforesaid vehicle without giving the prior notice to the complainant and they whimsically sold the same without giving the any prior notice to the complainant and they illegally referred the matter to the arbitrator without giving any prior notice to the complainant.

From the aforesaid  discussion, it is clear before us that at  the time  of purchase of vehicle value of the  vehicle was Rs.7,15074/- out of which  OP NO.1 &2 financed  Rs.4,60,000/- and complainant paid Rs.2,55,074/-. Out of the loan  amount of Rs.4,60,000/- complainant  paid Rs.5,69,272/- that is complainant paid Rs.4,60,000/-as principal and Rs.1,09,272/- as excess.

In this situation, we find that complainant suffered (Rs.2,55,074/-+Rs.1,09,272/-  loss of Rs.3,64,074/-). The OP No. 1 & 2 are entitled to interest in respect of aforesaid amount. This Commission found the interest of the loan account amounting to Rs.1,09,272/-. Accordingly, we find that complainant suffered actual loss of Rs.3,64,074.00-1,09,272.00=Rs.2,55,074.00.

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On perusal of record, we find that complainant is the consumer and OP No.1 &2 are the service provider.

Having regard to the aforesaid discussion, it is clear before us that complainant has able to established his case by sufficient documents and he is entitled to relief as per his prayer.

In the result, present case succeeds.

Hence,

          It is

                                                          Ordered

                                                                             that the present case be and the same is allowed on contest  against the OP No.1 &2 with cost of Rs.10,000/-(Rupees Ten thousand) to be paid by OP NO.1 & 2 in favour of the complainant.

OP No.1 & 2 jointly or severally are directed to refund Rs.2,55,074/-(Rupees Two lakh fifty five thousand seventy four) in favour of the complainant within 45 days from this date.

OP No.1 &2 are further directed to pay the compensation amounting to Rs.1,00,000/- (Rupees one lakh) in favour of the complainant for his harassment, mental pain and agony.

OP No.1 & 2 jointly or severally  are directed to  comply  the aforesaid  orders within  45 days from this date  failing  which complainant shall have  liberty  to put this order into execution.

Let a copy of this final order be supplied to both the parties as free of costs.

Dictated & corrected by me

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                PRESIDENT

(Shri   DAMAN PROSAD BISWAS,)        ..................... ..........................................

                                                                                        PRESIDENT

                                                                        (Shri   DAMAN PROSAD BISWAS,)

We  concur,

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          MEMBER                                                                                     MEMBER   

      (NIROD  BARAN   ROY  CHOWDHURY)                         (MALLIKA SAMADDAR)