DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C. C.  CASE  NO. 254/2017

           Date of Filing:                         Date of Admission:                               Date of Disposal:                

            16.05.2017                                     06.06.2017                                                      21.11.2022

P R E S E N T               :-        Smt. Monisha Shaw …………………. Member.

                                      :-        Sri Abhijit Basu……………………….Member

JUDGMENT / FINAL ORDER

The complaint is filed by the Complainant U/s 12 of the Consumer Protection Act, 1986 alleging deficiency of service as well as unfair trade practice against the O.Ps for not taking any steps to redress his grievances till filing of this complaint.

The brief of the complaint is that the complainant (Abdul Salam Molla) is a bonafide Consumer as per Consumer Protection Act. The O.P. No. 1 (The senior manager / Head of the Department, Hinduja Layland Finance Ltd.) is a company provided financial assistance for purchasing vehicle and the rest O.Ps are the men and agent of the O.P. No. 1. The Complainant took a loan of Rs. 9,20,000/- for purchasing a Lorry by an agreement between Complainant and O.P. No. 1 vide contact no. – WB K0 BA 00125 on 28.02.2011. The Complainant purchased a Lorry being No. WB 41 E 9955, Model No. – AL 1616IL, Engine No. YBP 107122, Chassis No. MB1A3DYC5BPYA 8621. In terms of hypothecation agreement.

The Complainant paid entire amount of 45 instalments. The Complainant thought that he complete entire dues amount to O.P. No. 1. The Complainant running transport business by the said Lorry for his livelihood. Suddenly, on 01.12.2015 Complainant got a telephone call from O.P. No. 1 and came to know that he was due an instalment of Rs. 28,752/-. Thereafter, Complainant went to the Office of O.P. No. 1 and meet with him, at that time the O.P. demanded Rs. 72,000/- as instalment amount with interest and complainant prayed orally for one month time to pay the same, the O.P. No. 1 was also orally agreed the proposal of the Complainant. The matter was settled as orally agreed by both the parties. Before completing one month, suddenly O.P. No. 2 and 3 came to the residence of the Complainant and taken repossession of said vehicle and kept in company’s godown without serving any prior notice to the Complainant.

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C. C.  CASE  NO. 254/2017

The O.P.  did not sent any notice upon the Complainant for his last dues on regarding seized the vehicle. Thereafter on several occasions complainant went to the office of O.P. for payment Rs. 72,000/- but in vain and none of O.Ps had taken any initiative to return the said vehicle to the Complainant. The O.P. no. 2 and 3 sold the said vehicle to the third party within one week of re-possession and without the consent of complainant even consent of O.P. No. 1 Compelling circumstances the Complainant filed this case.

From the case record it appears that notices were served upon the O.Ps by way of speed post. Written Version was filed by the O.P. through authorized representative Dipankar Ghosh is simply denied only but no specific evidence of allegation was not submitted.

Considering the case record and evidence it is found that the Complainant has proved his case and the O.Ps did not provide their service properly and did not maintain the procedure of sale the repossessed goods as the Complainant is a customer of the Opposite Party. O.Ps were not send any notice to the Complainant. There is no evidence to the contrary to disbelieve the Complainant’s evidence and therefore it can safely be found that the Complainant has established his case and is entitled to get the decree as prayed for.

Prayer of the Complainants

1. To direct the O.Ps to return the said vehicle being No. WB 41 E 9955
2. To direct the O.Ps to pay Rs. 7,00,000/- as compensation.
3. All other relief / reliefs.

Issues were framed for the purpose of decision:-

1. Whether the complaint is maintainable or not?
2. Whether the Complainant is entitled to get relief / reliefs in this case or not?
3. Whether the Complainant is a consumer or not?
4. Whether this Commission has territorial and pecuniary jurisdiction to try this case?

Decisions with Reasons:-

            Considering the facts and circumstances as well as nature and character of this case all the points are interlinked with each other and as such all the points are taken up together for consideration for the sake of brevity and convenience.

            On perusal of materials along with the supporting affidavit related to documents available in case record as well as hearing of argument by the Ld. Advocate for the complainant it is revealed that the Complainant is a customer of the Opposite Party as he had taken loan for purchasing a Lorry for the purpose of earning his livelihood. The case is within the jurisdiction of this Commission. After settlement regarding the last payment as per oral agreement, the Opposite Party is liable to spend that time as oral agreement is also an agreement. Moreover, even upon the default by the Complainant and / or borrower of any installment or interest amount the Complainant has basic right which cannot be overlooked by the O.Ps and / or lender, such as right to adequate notice, right to fair valuation of assets, right to human treatment etc. In the instant case Opposite Parties violated all such rights to the Complainant as because the Opposite Parties did not send any notice to the Complainant for

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C. C.  CASE  NO. 254/2017

last installment with interest due and notice for taking re-possession the Complainant’s vehicle. The dues amount is less than 20% of principal amount. The Opposite Party did not follow the R.B.I guidelines. As per law before selling the repossessed asset, the lender / (O.Ps herein) needs to get the valuation from an oppressed valuer. The Opposite Parties violated the R.B.I. rule and / or guideline and also the service of the customer as per Consumer Protection Act.

            Non issuance of notice upon the Complainant is gross violence of service by the Opposite Parties. Opposite Party No. 2 and 3 were violated all norms, rules and norms of decency and also neglected the deficiency service. Non-issuance of notice upon repossession and unassess the value of the repossed article is gross deficiency in service on the part of Opposite Parties.

            The discussed points bear positive results. As such we are of the view that the Complainant is entitled to get relief / reliefs as reflected in ordering portion.

            Thus all the points are disposed of accordingly.

Hence, for ends of justice

It is ordered,

            That the case being C.C. No. 254/2017 be and the same is allowed ex-parte.

            The Complainant Abdul Salam Molla do get a decree that the Opposite Parties are directed to return the vehicle being No. WB 41E 9955 with good condition by receiving last installment amount with interest i.e. Rs. 72,000/- alternatively the Opposite Party shall return the money which they received from the Complainant with 9% interest of the total receiving amount till recovery. The Opposite Party also directed to pay litigation cost of Rs. 10,000/- to the Complainant within two months from the date of delivery of Judgment. Failing which the Complainant has liberty to execute the decree according to law.

            Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.

Dictated and Corrected by me

Member

Member                                                                                 Member