SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint U/s 35 of Consumer Protection Act 2019 seeking to get an order against opposite parties (a) to refund 15,960/- to the complainant, towards the amount incurred to him for changing the engine oil and the repair work of the vehicle in dispute to the complainant (c) directed opposite parties to receive only the balance amount after deducting Rs.15,960/- from Rs.30,380/- which he has to pay as arrears EMI together with Rs.25,000/- towards compensation and also NOC of the vehicle (d) not to impose interest to the balance arrears EMI amount.
Brief facts of the complainant are that he purchased a KL 59 E 7145 Bajaj Auto from 1st OP dated 14/03/2012 and he had paid Rs.20,000/- as advance. The 1st OP who had arranged the 2nd OP as the financier to the complainant for purchasing the Auto rickshaw and 3rd OP is the manufacturer of the vehicle. The complainant stated that OP1 had delivered the subject vehicle having manufacturing defect. It is alleged that after 1 year of its purchase the engine case of the vehicle became broken and he informed the fact to OP No.1 and as per their instruction he had repaired the vehicle by spending his money also changed the oil. For the said work he had spend Rs.15,960/-. Complainant alleged that OPNo.1 assured that the said amount will be adjusted in the loan repayment amount with OP 2 and 3. According to complainant, the financial arrangement was made arranged by OP1 with OPs 2 and 3.
After receiving notices, OP1 has filed his version. OPs 2 and 3 filed joint version after that complainant has taken steps to implead additional OPs and as per IA176/2022 dated 14/09/2022, additional OPs4 and 5 were impleaded. They have also filed version.
OP1 admits that the complainant purchased KL 59 E 7145 Bajaj Auto from him in the year 2012. The complainant availed financial assistance from the 2nd OP by entering in to a loan agreement with them. Further stated that this OP is nothing to do with the terms and condition in the loan agreement executed between complainant and the 2nd OP. This OP never took possession of the vehicle at any point of time for and on behalf of the other OPs and this OP never approached the complainant for bringing the vehicle to the alleged yard at Chakkrakkal. It is incorrect to allege that it is the 1st OP who had arranged the 2nd OP as the financier to the complainant for purchasing the Auto rickshaw. As an authorized dealer and service centre of 3rd OP, the manufacturer of the vehicle is bound to give proper after sale service to the vehicle sold by them and this OP had given proper services to the complainant’s vehicle whenever he brought the same for periodical services and the running repairs and the complainant never raised any objection for that also. The 1st OP is not having any authority to issue NOC to the complainant for lifting the endorsement in the RC and it is the 2nd OP who is having the lean or charge over the Auto rickshaw they financed. The allegation with respect to the damage to the engine case and assurance given by this OP towards the adjustment of the amount spend for its repair in the loan repayment are absolutely fabricated. The complainant never raised any allegation about the performance of the vehicle at any point of time and never reported any complaint or defects or any short comings in using the vehicle. Therefore a vehicle purchased by the complainant in the year 2012 and used the same for the last nearly 10 years and now came with the allegation that the vehicle is having manufacturing defect without any support of any evidence, expert’s opinion and any documents. There is no deficiency in service or unfair trade practice or any service dereliction as alleged by the complainant. The alleged incident took place on 28/10/2021 is also not known to this OP. The complainant is not entitled for any of the reliefs claimed in the complaint against this OP. Hence the complaint is liable to be dismissed against this OP with compensatory cost.
OPs 2 and 3 contended in the version that the complainant approached this OP 2 and requested to extend financial assistance for purchase of a three wheeler made Bajaj Re Diesel Autorickshaw-445, considering the said request and agreeing to all the loan terms and condition the complainant signed and executed a loan agreement by which the OP2 agreed to extend financial facility of Rs.1,82,280/-(which includes interest of Rs.64,780/-) with an EMI of Rs.4,340/- starting from 10/05/2012 and ending of 10/10/2015. It is clearly understood by the complainant that, prompt repayment of loan installments in the time without any delay or default ie on or before 10th of respective month is the core essence of the loan agreement, the complainant agreed to repay the monthly loan installment to the said loan account by of cash, but the complainant has grossly violated the terms & condition of the subject loan agreement by not remitting the loan installment and thus complainant is not a consumer. The subject vehicle is a security to the said loan and is duly hypothecated to the OP2 till closure of the loan. Further stated that the OP2 is only a financier in this present transaction and not at all liable and responsible for any manufacturing/servicing related issue of the vehicle. As per the recorded dated on 18/03/2022 and even after loan tenure expired on 10/10/2015, the complainant has remitted partial amount of rs.1,52,454/- only, and is in due of total Rs.1,22,889/-(ie Rs.29,826/- towards EMI arrear and Rs.93,063/- towards other due charges). That this OP2 had requested the complainant several time to clear the outstanding due and regularize the loan account in order to avoid legal action but the complaint is not taken any interest for clearance of outstanding dues nor surrender the vehicle, hence constrained by this attitude of the complainant with no other alternative OP2 had issued a demand notice dated 14/02/2013 and informed to the complainant to remit net outstanding amount of Rs.18,560,/- in failure to surrender the subject vehicle with OP2, but complainant failed to pay outstanding therefore constrained by this attitude of complainant, this OP2 recalled the entire loan vide loan recall notice dated 03/07/2013 and requested to remit amount of Rs.1,39,913/- even after receipt of loan Recall notice the complainant has not taken any steps to close the said loan and does not adhered to the said demand and loan recall notice and intentionally failed and neglected to close the loan account vide Demand notice dated 14/02/2013 and loan recall notice dated 03/07/2013. The vehicle was entrusted back to this in the month of October 2021 by this OP2 hence the allegation of forceful repossession of said vehicle is denied, disputed and subject to strict proof on records. That said vehicle was taken back on as is where is basis with due knowledge of the complainant. Further at the time of taking back possession of the vehicle the complainant loan account was in due which is evident from the statement of account dated 18/03/2022, which is admitted by complainant itself. OP2 submitted that in the month of July 2013 the said loan vehicle came in the custody of this OP2 due to non-repayment of loan installments by the complainant, then after the complainant has remitted Rs.42,000/- on 23/10/2013 and took back the possession of secured vehicle with this assurance that he will ensure the remittance of loan installments on its due date without any delay and default, but the complainant failed to adhere its own commitment and chosen to be defaulter. OP2 submit that, the act of OP2 in taking back loan secured vehicle due to default cannot be treated as deficiency of service or unfair trade practice as the same is under the agreed terms and conditions of the loan agreement which was executed and signed by the complainant in favour of the OP2 company.
Though additional OPs 4 and 5 filed separate version, contention raised by them are more or less same as that of OPs 2 and 3.
Complainant and his wife filed affidavit evidence and were examined as Pw1 and 2. Ext.A1 to A16 were marked on the side of complainant. OPs have not adduced oral evidence. OP2 produced documents and were marked as Ext.B1 to B6 series. After that the learned counsel of complainant and the learned counsel of OPs 2 and3 made oral argument.
The 1st plea raised by the complainant is that OP1 had delivered the subject vehicle having manufacturing defect. It is alleged that after 1 year of its purchase the engine case of the vehicle became broken and he informed the fact to OP No.1 and as per their instruction he had repaired the vehicle by spending his money, also changed the oil. For the said work he had to spend Rs.15,960/-. Complainant alleged that OPNo.1 assured that the said amount will be adjusted in the loan repayment amount with OP 2 and 3. According to complainant, the financial arrangement was made arranged by OP1 with OPs 2 and 3.
OP No.1 totally denied all the allegations raised by the complainant against him. OP1 submitted that the financial arrangement for the vehicle was arranged by the complainant with OP No.2 and this OP is nothing to do with the terms and conditions in the loan agreement executed between complainant and 2nd OP. Further, stated that the allegation of the complainant with respect to the damage to the engine case and the assurance given by him towards the adjustment of the amount spent for its repair in the loan repayment are not correct. According to OP No.1 complainant never reported any complaint or defect of the vehicle after its purchase and the vehicle was used by the complainant for about 10 years before the allegation raised and the manufacturing defect of the vehicle should be proved by the complainant.
Here on perusal of the available documents though Ext.A10 to Ext.A14 reveal that finance to the vehicle was arranged by the OP NO.1, with regard to the re-possession of the vehicle, there is no evidence that OP 1 has any role. Further complainant does not have any case that the amount collected from him on account of EMI by OP1 had not remitted to OP No.2. So if OP1 had made any arrangement for financial assistance to the complainant, OP1 cannot do anything in the terms and condition in the loan agreement between complainant and OP NO.2 and in issuing NOC to the complainant. Further with respect defect of the vehicle ie breaking of engine case as well as manufacturing defect of the vehicle complainant has not produced any evidence and not adduced any expert opinion to prove manufacturing defect. So as far as OP No.1 is concerned, we are of the view that, no deficiency in service or unfair trade practice on the part of OP No.1, towards complainant
The allegation of the complainant against other OPs are that they have taken possession of the vehicle forcibly. According to complainant OPs have no right to re-possess the vehicle forcibly as he had remitted major portion of the vehicle loan taken from OPs 2and 3. Complainant has stated that there was only 7 installments in due. On the other hand OPs 2 has submitted that the possession of the vehicle was taken since the complainant had defaulted in paying the installments and the vehicle was not forcibly possessed. It was submitted that the possession was done with the knowledge of the complainant and also after sending due notices to remit the default amount. According to OP2 they have repossessed the vehicle as per the terms and condition in vehicle loan agreement executed between parties. OPs submitted that there is no deficiency in service or unfair trade practice on their part. OP further submitted that in the month of July 2013 the same loan vehicle came in the custody of OP2 due to non-repayment of loan installments by the complainant, then after the complainant had remitted Rs.42,000/- on 23/10/2013and took back the possession with the assurance that he will ensure the remittance of loan installments on its due date without any delay or default, But the complainant failed to remit the amount and became defaulter.
On perusal of the document Ext.A16 it is revealed that on 28/10/2021, the vehicle was forcibly taken possession. Since the OPs admitted the re-possession, of the vehicle, the persons mentioned in Ext.A16 might be the representative of OP NO.2. Though OPs contended that prior notices were given to the complainant before taking possession of the vehicle, Ext.B3 to B6 relates to the earlier possession on 2013. Hence from the available evidence no proper notice was given to the complainant with statement showing the details of amount due, was sent. Hence it is observed that the OPs did not disclose the outstanding amount to the complainant. So as per clause of the agreement (B1) wrongful possession of the vehicle by the Bajaj Finance shall constitute on offence.
From the aforesaid facts and circumstances of this case we have come to a conclusion that the vehicle in question was forcibly possessed, which is contrary to clause of the agreement. The contention of OP2 about surrender of vehicle by the complainant cannot be accepted and we are of the opinion that the forcibly possession of the vehicle is not an accordance with the agreement in question.
In the result complaint is allowed in part. Opposite party 2 is directed to return the Bajaj Auto rickshaw in question (KL59E7145) on payment of balance installments Rs.4340/- per month with penal charges Rs.150 per month till the 42 installments, by the complainant to opposite party No.2. On payment of above said amount by complainant, Opposite party shall issue NOC to the complainant abruptly. Otherwise complainant can execute the order by filing execution application. We are not inclined to allow the other prayers in the complaint. Opposite party No.2 and 3 are directed to pay Rs.10,000/- towards compensation for the forcible possession of the vehicle and Rs.5,000/- towards cost of the proceedings. Opposite parties 2 and 3 are directed to pay compensation and cost within one month from the date of receipt of the certified copy of this order. Since the vehicle seized has not been sold, opposite parties 4 and 5 are exempted from the liability. Failing the compliance of payment of compensation and cost by opposite parties 2 and 3 within one month after receipt of order, the compensation amount carries interest @ 9% per annum from the date of order till realization and complainant can execute the order.
Exts.
A1- Lawyer notice
A2-Reply notice
A3-Retail invoice (objection from OP’s side)
A4-Retail invoice dated 07/05/2014 (objection from OP’s side)
A5-R C Copy
A6-Contract Carriage permit
A7-Reply notice send by complainant to arbitrator
A8-Reply notice send by complainant
A9-Copy of Adhaar
A10-Copy of Advertisement(objection)
A11- Lawyer notice dated 14/02/2013
A12- Warranty enrolment form
A13- Receipt dated 25/02/2013
A14- Bill dated 10/06/2014
A15(series)- Bill
A16-Complaint to SP
B1-Copy of loan agreement dated 21/03/2012
B2- Copy of statement of account dated 18/03/2022
B3- Copy of demand notice dated 14/02/2013
B4- Copy of loan recall notice dated 03/07/2013
B5- Copy of inventory dated 28/10/2021
B6- Copy of inventory dated 11/12/2015 and 29/12/2015
C1- Commission report
Pw1-Complainant
Pw2-Wife of the complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
