DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE No.05/2008. Date of filing of the Case: 09.01.2008 Complainant | Opposite Party | Srimati Tamali Saha (39 yrs) Wife of Sri Goutam Saha (49 yrs) Resident of No.2 Govt. Colony, P.O. Mokdumpur, P.S. Englishbazar, Dist. Malda. | | The Manager LEXICON MOTORS N.H.34, Naldubi, P.O. Mangalbari, P.S. & Dist. Malda. PIN – 732142. |
Present: | 1. | Shri A.K. Sinha, Member | 2. | Smt. Sumana Das, Member |
For the Petitioner : Krishnagopal Das, Manoj Kr. Das, Tapan Kr. Roy & Uttam Choudhury, Advocates. For the O.P.: Asit Baran Chowdhury, Nilanjan Sarkar, Advocates. Order No.18 Dt. 10.07.2008 The petitioners’ case in a narrow compass is that she purchased one Tata Indica car through hire purchase agreement with Tata Finance Ltd. and took delivery of the same from Lexican Motors, N.H. – 34, Naldubi, Mangalbari, Malda (hereinafter referred to be O.P.) in October 2005. The car was duly registered in her name bearing No.WB-66/D-2247. It was utilized for the use of the family members and for family business purpose. On 22.06.2007 the aforesaid car met a road accident and got serious damage and it was put to the showroom of O.P. for repair. The petitioner was informed on 23.08.2007 for taking delivery of the vehicle on payment of Rs.15,800/- as repairing cost. Petitioner’s husband alongwith his driver attended the showroom of the O.P. on 24.08.2007 to take delivery of the car but he was refused and was uttered with abusive languages. On subsequent dates the petitioner and her husband approached the O.P. for giving delivery of the car but the O.P. did not pay heed to their request thereby deprived them of using their car and this gives rise to the present case for the reliefs as have been made in the petition of complaint. The O.P. contests the case by filing written version denying the material allegations but admitted that the car was purchased from their showroom on dealer driven scheme and on hire purchase basis from Tata Finance, a sister concern of the O.P. The due instalment amount was claimed. The denied the fact that they refused to deliver the car for non-payment of intalment of loan and O.P. is still inclined to deliver the vehicle to the petitioner after realizing the above noted charge of repairing cost. On pleadings of both sides the following points have emerged and need to be discussed for effective disposal of the case. 1) Whether the petitioner is a consumer according to the Consumer Protection Act? 2) Whether there is any deficiency of service on the part of the O.P. 3) Whether the petitioner is entitled to the reliefs as prayed for? :DECISION WITH REASONS: Point No.1: According to Sec. 2 (1)(d)(i) of the Act a person is said to be ‘consumer’ when he buys any good for a consideration, paid or promised, partly paid or promised etc …….but not for commercial purpose. In the instant case the petitioner purchased the Tata Indica Car from the O.P. on higher purchase agreement and in such state of affair whether the petitioner can be termed as consumer in the back drop of higher purchase agreement with O.P. we have taken the assistance of the observations appearing in Revision Petition No.737 of 2005 Citicorp. Maruti Finance Ltd. :Vs: S. Vijayalaxmi passed on 27th July 2007 and published in 2007 CTJ 1145 (NCDRC). The observations in para 5 and 6 supra are very much relevant to this case which read, hereunder:- “5. A hire-purchase agreement is a normal one under which owner hires goods to another party called the hirer and further agrees that the hirer shall have an option to purchase the chattel when he has paid a certain sum, or when the hire-rental payments have reached the hire-purchase price stipulated in the agreement. 6. As against this, when a person desires to purchase vehicle/goods and not having sufficient money on hand, borrows the amount needed from a money lender/financier/banker and pays it over to the vender of the vehicle, the transaction between the consumer and the money lender will unquestionably be a loan transaction. In such a case the vehicle purchased by the consumer is registered in the name of consumer and remains at all material times so registered in his name. The consumer remains qua the world at large the owner and remains in possession of the vehicle. By an agreement the vehicle can be given as security for the loan advanced. In such a case, the right to seize the vehicle is merely a license to ensure compliance with the terms of the so-called hire purchase agreement (Re.AIR 1966 SC 1178).” In para 45 of the above it is laid down that “Admittedly, the money lender/Financer/banker is not dealing in purchase and thereafter hiring of vehicles. If the vehicle is purchased by the consumer in his own name;, registered in his name; insurance is also taken by him (i.e. the consumer); earnest money is also paid by him, then it is clear that ownership of the vehicle is that of the consumer. Hence, if the complainant is the owner of the vehicle and for purchase of such vehicle if money is borrowed from money lender/financer/banker then, the nature of the agreement between the parties would be altogether different. But if the agreement is executed under the premises that the financer is the owner of the vehicle, such agreement is totally on the basis of misrepresentation/misunderstanding of facts and law and such contract would be void as provided u/s 20 of India Contract Act, 1872. The said section specifically provided that where both the parties to an agreement are under a mistake as to a matter of fact essential to the contract, the agreement is void.” Para 46 of above reveals that “as per section 51(5) of Motor Vehicle Act, the financer can have the certificate of registration, which is in the name of registered owner, i.e., the hirer, cancelled and have a fresh certificate of registration issued in their name (i.e. in the name of the financer) if the financer satisfies the registering authority that he has taken possession of the vehicle owing of default of registered owner, i.e. the hirer.” In the present case the car was purchased by complainant from the dealer and the vehicle was and is registered in her name, (Ext.1) insurance is taken by her (Ext.2) as contemplated u/s 41 and 42 of the Motor Vehicle Act.1988. Further the complainant has not transferred the vehicle in favour of the financer at the time of taking the loan. In these set of circumstances, we have to determine the nature of higher purchase agreement relied upon by the financer. It is to be stated that the entire higher-purchase agreement is on the assumption or presumption that financer is the owner of the vehicle in question or that it has purchased the vehicle directly from the vendor and hired it to the complainant. Ld. advocate for the O.P. failed to point out that the vehicle was purchased by the financer or that after the purchase, the same was given on hire to the complainant. Para 42 of the above observation has referred to the definition of ‘higher purchase agreement’ given u/s 2 (c) of the Higher Purchase Act.1972 (Repealed) is also to the same effect. Para 42 & 43 manifest that higher purchase agreement in first instance requires that ownership of the good shall lie with the owner; and thereafter, letting the goods on hire to the consumer. That means the person who passes the possession in goods to hirer, shall be the owner, in possession of the vehicle, there is no question of giving right of possession to him Lending money in such a case would simpliciter be giving loan to the consumer. On the basis of above findings the so-called higher purchase agreement entered into between the parties is non-est or void ab-initio, as contemplated in the revision petition referred to hereinabove. In the premises the point no.1 is thus disposed of in the affirmative. Point No.2: ‘Service’ according to Section 2(1)(d)(ii) of the C.P. Act means any person who (hires or avails of) any services for a consideration which has been paid or promised or partly paid and promised ………..but does not include a person who avails of such services for any commercial purpose. In this case the service of the O.P. was hired by placing the damaged car of complainant in the showroom. Now we shall go into detail to find out whether the service of the O.P. suffers from deficiency and whether the higher purchase agreement cartel the rights of the petitioner as consumer. In the present case the complainant’s Tata Indica car bearing No.WB/D-2247 met an accident on 22.06.2007 and its was damaged heavily. He contacted the O.P. and produced the car in the showroom of the O.P. on 23.06.07 for repair Ext.(7). It appears from the testimony of P.W. – 1 who is the husband of the complainant that both his wife and himself supervised the repairing works of the car in question. On 23.08.07 the O.P. reported to P.W. – 1 over phone that the car was ready for delivery and Rs.15,800/- is the cost of repairing. On 24.08.2007 P.W. – 1 alongwith his driver and one Krishnendu Chowdhury (P.W. – 2) went to the O.P. for taking delivery of the car when the O.P. refused to give delivery of the car on payment of the cost of repair as reported over phone and was misbehaved for default of instalments. The testimony of P.W. – 1 to such extent was corroborated by P.W. – 2 who stated to have remain present when P.W. – 1 received the telephone call of the O.P. informing to take delivery of the car and repairing cost reported to have claimed to Rs.15,800/-. He also stated that he accompanied P.W. – 1 to the showroom of the O.P. to take delivery of car, but P.W. – 1 was refused to take delivery and he was behaved roughly by the works manager of showroom. The P.W. – 1 admitted that he could not pay the instalment of the car in the month when the accident took place and he has in his possession the receipts for payments of instalments regularly. The O.P. in its written version denied the contention and main allegation of the petitioner that the petitioner was refused to deliver the vehicle for non payment of such instalment of loan and O.P. is still inclined to deliver the vehicle to the petitioner after realizing the charge of repairment. The O.P. has however denied that the petitioner was either harassed or ill treated by any one of his establishment. In the written argument this O.P. seems to have changed his role as ‘after sales & service’ provider to his status as financer of the car and by filing memorandum of understanding made between the Tata Motors Ltd and M/s Reliance Industrial Limited (Ext.A), declaration of Director of M/s Reliance Industrial Limited ‘Lexican Motors’ as brand name of the Co. (Ext.13), 6 money receipts of payment of instalments to Lexican Motors (Ext.- D) and demand notices dated 01.09.2007 and 01.10.2007 (Ext.E & F respectively). The O.P. has also filed loan cum hypothecation cum guarantee agreement with the petitioner and Tata Motors Ltd, Proposal agreement with P.W. – 1 as guarantor and repossession intimation to the Police station dated 01.10.2007. Thus through filing of above documents the O.P. wants to establish that it has repossessed the car in question for default of payment of instalments. The story of repossession of the car was not brought in by the O.P. at the time of filing written version nor such intention was communicated to the petitioner on receipt the legal notice dated 31.08.2007 (Ext.3) vide A/D receipt dated 31.08.2007 (Ext.5). In absence of any prescribed repossession procedure of the financer (O.P.) and or submission of anything whatsoever during advancing argument by the O.P. this Forum has scrutinized clause 17 and 18(a) of Loan cum Hypothecation cum Guarantee Agreement. Para 18(a) manifest that “If one or more of the events specified in clause 17 above occurs (Event of Default), the lender by notice in writing to the obligators declare the loan to be immediately due and payable……….. Further, the lender shall be entitled to, at all times to take possession, seize recover, appoints receiver/manager, remove the Asset from the place of standing and also be entitled, on such terms as may be deemed fit by the lender without the intervention of court authority……………. In the above view of the matter by no stretch of imagination it can be said that the O.P. has acted in a manner as laid down in clause 18(a) of the aforesaid agreement which is just and in conformity with the written agreement between the parties to the dispute. This Forum finds opportunity to refer the observations of Hon’ble NCDRC in Revision petition No.737 of 2005 referred to hereinabove. In para 3 it has been observed that “In a democratic country having well established independent judiciary and having various laws it is impressible for the money lender/financer/banker to take possession of the vehicle for which loan is advanced, by use of force”. In the instant case the possession was not taken by force but obviously by unauthorized method or by adopting unauthorized means. In para 48 of the observation supra manifest that “Further, the aforesaid Sec.51(5) of Motor vehicles Act nowhere provides that hirer can take possession by use of force, or by unauthorised method or by adopting unauthorised means. The observation of Hon’ble NCDRC supra in para 18 is also relevant to this case that “This unlawful and unethical procedure in our view, at the outset, can be said to be against public policy and also against the protection of public interest.” From the above facts and circumstances and after giving anxious consideration this Forum is of the opinion that when the repossession of the car in question by the O.P. held to be unfair the petitioner is entitled to relief by way of compensation for the mental agony, harassment and humiliation she suffered from her neighbors, friends and relatives at the hands of such an unscrupulous and uncouth provider of service. It can also safely be said that the service of O.P. suffers from deficiency by not giving delivery of the car on payment of repairing cost on 24.08.2007 and on subsequent dates when he was approached by the petitioner. This point is thus disposed of in the affirmative. Point No.3: In the process the petitioner succeeds. Proper fees have been paid. Hence, ordered, that Malda D.F. Case No.05/2008 is decreed on contest as against O.P. ( ) with the following order:- 1. The O.P. do deliver the Tata Indica Car No.WB/66-D/2247 in running condition within seven days from date. 2. The petitioner do pay Rs.15,800/- as cost of repairment at the time of taking delivery of the vehicle. 3. The O.P. do pay compensation of Rs.25000/- within 30 days from date failure to comply the petitioner will have the liberty to take recourse to law. 4. The O.P. is at liberty to realise the due instalments and other charges, as if, same was due on 24.08.2007 by due process of law. Let copy of this order be given both the parties free cost at once. Sumana Das A. K. Sinha Member Member D.C.D.R.F., Malda D.C.D.R.F., Malda | 
