DATE OF DISPOSAL: 08.05.2024
PER: SMT. SARITRI PATTANAIK, MEMBER (W)
The fact of the case in brief is that the complainant has filed this Consumer complaint Under Section 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the Opposite Parties (in short O.Ps.) for redressal of her grievance before this Commission.
2. The complainant is unemployed and for her livelihood was engaged in self employment sources she started a milk business at her residence. The complainant is supplied the milk door to door service and she purchased a two wheeler vehicle from the office of OM Honda showroom, Tata Benz square, Berhampur , Dist: Ganjam in depositing the down payment of Rs.20,000/-. The complainant availed a vehicle loan from the O.P.No.1 on 07.03.2020 (Honda Activa) vide Registration No. OD-07-AE-7911, engine No: JF50EG1140896 and chassis No. ME4JF50BLKH140836 and the complainant is real owner of the vehicle. The complainant deposited an amount of Rs.20,000/- at the time of purchasing the vehicle in rest of amount of Rs.50,339/- availing loan from the O.P.No.1. The complainant deposited the EMI/installments as per the terms and conditions of the O.P.No.1 and started the 1st deposit on 02.06.2020 and the other such installments/EMI in every month with the O.P.No.1. The complainant deposited the EMI/installment of Rs.3,145/- per month in i.e. on 02.06.2020 of Rs.3,145/-, 21.08.2020 of Rs.3,145/-, 28.10.2020 of Rs.3,145/-, 15.02.2021 of Rs.3,145/-, 11.08.2021 of Rs.6,290/- and 21.05.2022 of Rs.33,000/- through NEFT and the collection agent of the O.P.No.1 as collected 10 numbers installment from the house of the complainant in cash, total amount of Rs.31,450/- + Rs.51,870/-=Rs.83,320/- deposited by the complainant. The complainant was availing loan from the O.P.No.1 of Rs.50,399/- but the complainant has already deposited the excess amount of Rs.32,981/- office of the O.P.No.1. On 15.05.2022 the husband of the complainant was riding with the vehicle the O.P.No.4 seized the vehicle from the possession/custody of the husband of the complainant forcefully without informing and without notice. As per the instruction by the O.P.No.2 the O.P.No.4 snatched the vehicle from the husband of the complainant. The complainant issued legal notice through the advocate on 01.06.2022 but there is no response from the O.P.No.1. The complainant requested to the O.P.No.3 for providing down payment receipt of the deposited amount but they O.P.No.3 paid a deaf ear to the same. Due to unfair trade practice and deficiency of service of the O.Ps the complainant is suffered from harassment and mental agony for which is entitled to exemplary compensation. There was similar notice through the advocates to the O.P.No.3 on 04.06.2022 for communicating the receipt of deposit of Rs.20,000/- towards down payment. Alleging deficiency in service on the part of the O.Ps the complainant prayed to refund the excess of Rs.32,981/- with 12% interest power annum and returned the vehicle lay the O.P.No.1 & 4, compensation of Rs.50,000/- and litigation cost of Rs.20,000/- in the best interest of justice.
3. The Commission admitted the case and issued notice to the O.Ps.
4. The O.P.No.1 & 2 filed written version through his advocates. It is stated that the complainant does not come within definition of a Consumer U/S 7(i) of the C.P.Act, 2019. The exercise of rights under the Loan-cum-Hypothecation Agreement cannot be construed as unfair trade practice. Any act of the O.P. Company in terms of the said agreement cannot be termed as unfair trade practice or deficiency of service. In Para 1 and 2 of the petition U/S 38(8) of Consumer Protection Act, 2019 filed by the complainant, needs no answer. However it is objected by the O.P. Company because as per the law laid down, the complainant does not fall within the definition of consumer and the relationship between the complainant and the O.P. Company is that of Borrower and the lender. As such no consumer dispute arises. It is essentially a civil disputes hence the said petition is not maintainable. The complainant had availed a loan amount of Rs.60901/- only vide Loan Agreement-cum-Hypothecation Agreement No/Loan Account No.11210581 dated 07.03.2020 which is clearly evident from the statement of account and the copy of the loan agreement of the complainant. The contention made buy the complainant that she deposited the EMI’s/installments as per the terms and conditions of the O.P.No.1 are totally false and frivolous. The complainant has always played hide and seek with the O.P.No.1 in paying her EMI’s on time. The complainant has defaulted in repayments within the prescribed time and the complainant has also failed to repay the loan installments within stipulated time and faulted in making full payment of the amount as agreed under the contract. The defaulted, late and part payments by the complainant have resulted in addition of the delayed payment charges or accrued overdue charges along with remaining balance towards the installments. It is apparent that the complainant by way of late, part or defaulted payments has grossly violated the terms of the agreement. The contention made by the complainant in para 7 that she had availed a loan of Rs.50,339/- from the O.P.No.1 is totally false. The complainant has availed loan amount of Rs.60,901/- vide Loan Agreement-cum-Hypothecation Agreement No/ Loan Account No. 11210581 dated 07.03.2020 which has been clearly mentioned and discussed above points. The allegation made by the complainant that she has deposited an excess amount of Rs.37,981/- is totally false in nature. The excess amount which the complainant is alleging is the amount deposited by the buyer of the vehicle to whom the vehicle has been sold after due process of auction amounting to Rs.33,000/-. The excess amount which the complainant is alleging is the amount deposited by buyer Mer. Debasis Mishra of the vehicle to whom the vehicle has been sold after due process of auction amounting to Rs.33,000/- which is also evident from the bank statement of the buyers relation Mr. Jagadish Sabat dated 21.05.2022 from whose account the amount has been paid. The buyer Mr. Debasis Mishra has also executed letter of indemnity in favour of O.P. company state office at Bhubaneswar. Hence the allegation made by the complainant is totally false and fabricated and which has been made only to hide his own faults and gain sympathy from this Hon’ble Commission. The allegation of the complainant that the vehicle has been forcefully seized by is absolutely wrong, because it is clear that the complainant was neither paying the EMIs on time nor was surrendering the vehicle. The complainant was properly intimated about the consequences if she does pays her EMIs on time and regularize the payment through the loan recall notice dated 07.12.2020. The complainant was very well aware of the clauses of the loan agreement in this regard which has been earlier discussed in above points of this version. So in no way the O.P. Company has done anything arbitrary or forceful against the complainant rather they have adhered the terms and conditions of the loan agreement as per law. As per the law laid down, the complainant does not fall within the definition of consumer and the relationship between the complainant and the O.P. Company is that of Borrower and the Lender. As such no consumer dispute arises. It is essentially a civil disputes hence the said consumer case is not maintainable and should be dismissed with heavy cost on the complainant and the complainant has cunningly made a false and fabricated story which has no legs at all land can be deemed to be an afterthought case. The complainant was fully aware of the fact that, the vehicle has been sold and in order to gain wrongfully by causing wrongful loss to the O.P. Company, the complainant has filed this case. The complainant has sustained the loss for his own negligence for which the O.P. Company cannot be held liable and the O.P. has not committed any deficiency in service nor unfair trade practice. The complainant is called upon to prove the same by producing documentary evidence. The complainant is not entitled to any reliefs as she has claimed and this case is liable to be dismissed on merit with cost on the complainant for filing such a frivolous and vexatious complaint.
4. On the date of hearing advocate for complainant and O.P.No.1 & 2 are present. We heard argument from both sides at length. We perused the complaint petition, written version, written argument and documents available in the case record.
The opposite party nos. 1 & 2 has not issued adequate notices to the complainant prior to process of auction. The notices under Annexure – 6 issued by opposite party nos. 1 & 2 on 16.05.2022 for ‘Prepayment of your two wheeler account no:11210581’ and ‘notice dated: 29.06.2022 – Presale Notice’ whereas the opposite party nos. 1 & 2 admitted that, they sold the vehicle in question on 21.05.2022 to one Mr. Debasis Mishra. It reveals that prior to completion of above mentioned notice period, the opposite party nos. 1 & 2 sold the vehicle on auction. Prior to auction sale process, the opposite party nos. 1 & 2 vitiating the process for repossession of the vehicle laid down by the Reserve Bank of India as well. The opposite party nos. 1 & 2 vitiating the Clarifications regarding repossession of vehicles financed by NBFCs issued by RBI vide No.: RBI/2008-09/454, DNBS(PD) CC No.139/03.10.001/2008-09, Dated: April 24, 2009 repossessed the vehicle through opposite party no.4 on 15.05.2022 prior to completion of due process.
The Law is well settled in the SBI v. Rajesh Agarwal in C.A No.:7300 of 2022 the Hon’ble Supreme Court of India held that, “audi alteram partem, which means that a person affected by administrative, judicial or quasi-judicial action must be heard before a decision is taken.” But in the instant case, the opposite party nos. 1 & 2 did not follow the said principle of law maxim ‘audi alteram partem’ at all. The Commission further relied upon Magma Fincorp Limited v. Rajesh Kumar Tiwari reported in (2020) 10 Supreme Court Cases 399, the Hon’ble Apex Court of India held that, it is mandatory provide or issue proper notice to the borrower. But in the instant case, the opposite party nos. 1 & 2 have not issued proper notice in each and every stages of due process of recovery, repossession and auction sale which is tantamount to deficiency in services. And for which the complainant suffered from the harassment and mental agony. Hence the complainant consumer is entitled to compensation along with other reliefs sought for.
Resultantly, in view of the Magma (Supra) and SBI (Supra) the Commission allowed the complaint against the opposite party nos. 1 & 2 on contest and dismissed against the opposite party nos. 3 & 4. The opposite party nos. 1 & 2 who are jointly and severally liable to refund the loan amount collected under 23 EMIs from the complainant after deduction of the depreciation value of the vehicle for two years and compensation of Rs.25000/- and litigation cost of Rs.7500/- to the complainant within 45 days from the date of receipt of the order. In the event of non-compliance of the above order by the opposite party no.1 and 2, the entire dues shall carry interest @ 12%p.a from the date of filling of the case i.e., Dated:07.06.2022 till the actual date of realization is made by the opposite party no.1 and 2 and the complainant is at liberty to realize said entire dues with interest as above from the opposite parties in accordance to the Consumer Protection Act, 2019.
This case is disposed of accordingly.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.
The file is to be consigned to the record room along with a copy of this Judgment.
Pronounced on 08.05.2024
