Orissa

Cuttak

CC/8/2016

Benudhar Behera - Complainant(s)

Versus

The Manager,Cholamandalam Investment and Finance - Opp.Party(s)

P Sarangi

10 Jan 2018

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.08/2016

 

            Benudhar Behera,

Vill: Chitaklpur,P.O:Sundargram,

P.S:Kantapada,Dist:Cttack.                                                         .… Complainant.

 

Vrs.

1.        The Manager,

Chalomandalam Investment and Finance,

Cuttack Branch,Mahanadi Vihar,

Dist:Cuttack..                         

 

2.        M/s. Cholamandalam Investment and Finance Company Ltd.,

       At:Dare House,No.2 N.S.C. Boase Road,

       Parrys,Tamil Nadu,Chennai-600001.

 

3.       R.T.O,Cuttack,

       Dist:Cuttack.                                                                                    … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,President.

Sri Bichitrananda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   31.12.2015

Date of Order:  10.01.2018

 

For the complainant.  :    Mr. P.Sarangi,Adv. & Associates.

For the O.Ps.1 & 2      :    Mr. R.K.Pattnaik,Adv. & Associates.

For O.PNo.3:                              None.

 

Smt. Sarmistha Nath,Member(W).

 

                The case is against deficiency in service on the part of O.Ps.

1. The case is that the complainant purchased a vehicle Bolero XL 2WD bearing Regd. No.OR-05K-0390 on the credit basis of Cholamandalam Finance Company (.O.P No.1).  Copy of registration certificate bearing Red. No. No.OR-05K-0390 is enclosed as Anenxure-1.
2. The complainant had been paying monthly installments to O.P No.1 regularly.  But without any prior notice the O.P No.1 sized the said vehicle on 09.07.2015 at about 11.30 A.M t N.H-5 in Tangi area with help of antisocial.  The complainant requested to O.P.1 but the O.P No.1 did not cooperate in this mater.  Then the complainant issued lawyer’s notice dt.29.08.2015 and requested the O.P No.1 to hand over the vehicle to the complainant within two days of receipt of the notice.(lawyer’s notice is enclosed as Annexure-2).  That the complainant has no source of income except this vehicle.   Now the Registration Authority, Cuttack issued notice to complainant vide Ref. No.7064 dt.19.12.15.  The complainant received this notice on 09.01.2016.  The Registering Authority directed the complainant to send his representation in this regard within 7 days from the date of receipt of this notice.  Copy of the registered notice is enclosed as Annexure-4. 

In the circumstances, the complainant prayed that the Hon’ble Forum be directed to the O.P No.1 to pay Rs.9,00,000/- as damages as stated in this petition, to give a new Bolero vehicle to the complainant .

3. O.ps 1 & 2 entered their appearance through their lawyers and filed written version denying the allegations made by the complainant.  The plea of the O.Ps is that the complainant is a defaulter in  payment of E.M.Is and despite issuance of letter and reminders the complainant did not pay the E.M.Is.  He has defaulted installments for a sum of Rs.50,541/- and overdue of Rs.9,534/- till the date of seizure i.e. on 9.7.2015.  So the O.Ps after giving prior intimation to the complainant and after informing the local police station had taken repossession of the vehicle and after repossession the O.Ps had issued notice to the complainant to pay the balance dues amounting to Rs.5,15,427/- by their pre-sale letter dt.12.7.2015 or else the vehicle shall be sold on auction(copy of letter attached as Annexure-B).  Despite intimation the complainant did not turn up for which the vehicle was put to sale.  So, the O.Ps have adopted due process of law as enumerated in the agreement.  The further plea of the O.Ps is that the complainant has know loco-standi to file the complaint as there is arbitration clause in the agreement.

After sale of the vehicle, the O.P intimated the registering authority to change the name of the hypothecated vehicle in favour of the third party  purchaser and after six months of sale the complainant has filed the complaint with a prayer for payment of compensation.  The seizure and sale of the vehicle is in accordance with the terms and conditions of the agreement and after adopting due process of law which can never be termed as deficiency in service.

4. The O.P No.3 did not appear and was set exparte.
5. We have heard the learned advocates from both the sides and gone through the case records in detail as filed by the parties.  We have observed that the complainant has availed loan from O.P No.1 & 2 and failed to repay the installments in time.  The O.Ps have seized the vehicle giving prior intimation to the complainant.

The complainant in his evidence of affidavit has taken a plea that the company has collected the E.M,.Is through its agent and the concerned agent though has collected the E.M.I amount from the complainant has not given give receipts.  The complainant has taken a complete new plea without any corroborative document which is not at all acceptable.

During the course of argument, the learned counsel for the complainant submitted that the HJon’ble Apex Court and the National Commission have held that no force can be used for repossession of the vehicle by the financier.  The ground taken by the complainant does not ensure in favour of the complainant because the moment he defaulted in paying the E.M.Is, it gives the right to the financier to repossess the vehicle.  The Hon’ble Apex Court in a judgment reported in 111(2012) CPJ 4(SC) (Suryapal Singh Vrs. Sidhha Vinayak Motors and another) has held that under hire purchase agreement,it is the financier who is the owner of the vehicle and the person who takes the loan, retains the vehicle only as a trustee; therefore taking possession of the vehicle on the ground of non-payment of installments has always been upheld to be a legal right of the financier.

                In another judgment reported in AIR 1979 SC 850 (Trilok Singh and others Vrs. Satya Deo Tripathy, the Hon’ble Apex Court has categorically held that “Under the hire purchase agreement, the financier is the real owner of the vehicle, therefore there cannot be any allegation against him for having taken repossession of the vehicle.

                                                               

                ORDER

Basing on the facts and circumstances as stated above, the complainant failed to prove deficiency in service on the part of O.Ps.  Hence the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 10^th day of January,2018 under the seal and signature of this Forum.

                                                                                                                                 ( Smt. Sarmistha Nath )

                                            Member (W)                                                                                                                                                                                                                                                                                                                                                               (Sri D.C.Barik)

                                                                                                                                     President.

                                                                                                                             (Sri B.N.Tripathy )

                                                                                                                                       Member