S.C. CASE NO.: RC/2009/23 DATE: 13.11.2009



DATE OF FILING: -17.03.2009



PETITIONER : Magma Leasing Limited,

(Now Magma Fincorp Limited),

24, Park Street, 4th Floor, Park Centre,

Kolkata-700 016.



OPPOSITE PARTIES : 1. Amal Biswas,

S/o Late Sikanta Biswas,

141, Amtala, Saktinagar, P.O. & P.S.- Barasat,

Dist-24-Parganas (South).



2. Goparani Biswas,

W/o Sri. Amal Biswas,

141, Amtala Saktinagar, P.O. &P.S.-Barasat,

Dist-24-Parganas (South).



BEFORE: HON’BLE JUSTICE : Sri. Aloke Chakrabarti, PRESIDENT.

MEMBER : Smt. Silpi Majumder.



FOR THE PETITIONER : Sri. Barun Prosad, Advocate.

FOR THE OPPOSITE PARTIES : Sri. Binoy Kumar Das, Advocate.



-ORDER-

S. Majumder, Member.



This Revision Petition has arisen out of the order passed by the District Forum, 24-Parganas (North), on 05.01.2009, wherein the Forum below has rejected the application filed by the OP. The OP has filed a petition on 01.09.2008 praying for dismissal of the complaint having barred by territorial jurisdiction.



The fact of the case of the Complainants is that they entered into an agreement for loan for purchasing a motor vehicle. Due to default in payment of EMI the vehicle was ceased. The OP before the Forum below filing an application has stated that the agreement contained an arbitration clause and in view of the section 8 of the Arbitration & Conciliation Act, 1996 the matter should be decided by the Arbitrator and cannot be decided by the District Forum. It was further submitted by the OP in the said application that the complaint suffers from jurisdictional error as the office of the OP is not situated within the territorial limit of the Forum and moreover the cause of action did not arise within the jurisdictional limit of the Forum below.



After hearing both parties the Forum below was pleased to reject the application filed by the OP.



Being aggrieved by the said order the OP-Petitioner has filed this Revision Application before this Forum contending that the Forum below has failed to appreciate that the complaint is barred by jurisdiction as the office of the Petitioner is not located within the territorial limit of the Forum as well as no cause of action has been raised within the said jurisdiction. It has been further stated by the Petitioner that the Forum below has erred in law in stating that the existence of arbitration clause will not be a bar to entertaining of a complaint. According to the Petitioner the order passed by the Forum below suffers from material irregularity which is liable to be set aside and the Petitioner has prayed for allowing this Revision Petition.



The question raised is whether Forum at North 24 Parganas is having territorial jurisdiction over the complaint. Argument advanced is that as possession of the vehicle was taken at Raiganj, the present complaint seeking relief of compensation is maintainable in the Forum having jurisdiction over Raiganj.



On perusal of the complaint it appears that the Complainant was financed by the OP-1 for purchasing a vehicle repayable in installments. The OP-1 sent letter dated 13.02.2007 demanding dues of Rs.18,620/- plus D.P.C. Rs.2,700/-. On 22.02.2007 the OP-1 illegally and forcefully repossessed the vehicle at Raiganj and parked in a garage at Raiganj. The Petitioner issued legal notice demanding delivery and compensation. The OP-1 sent letter-dated 22.02.2007 and inventory list on 22.02.2007 and notice for sale of vehicle the outstanding dues with interest. The Petitioner sent reply through his lawyer demanding delivery of possession of the vehicle and compensation. The OP-1 in its application stated that on payment of Rs.31,040.- by Complainant to the OP-1, the vehicle was released. The OP-1 by letter-dated 20.12.2007 terminated the agreement.



The complaint was filed. It appears that taking of possession at Raiganj is a part of the whole action by the OP-1 in making demand of arrears and taking possession of the vehicle for recovery of the dues. Admittedly the notices for demand by the OP-1 on Petitioner were served within jurisdiction of the Forum at North 24 Parganas and, thus a part of the cause of action arose within the jurisdiction of the said Forum. Therefore, there is no ground for interference with the impugned order and the revision is dismissed.

FIRST APPEAL NO. 263/2008.

DATE OF DECISION: 13.11.2009
In the matter of:

Ved Prakash son of Shri Netar Singh R/o Village Majhoti,

PO Devdhar, Tehsil Chachiot, Distt. Mandi, HP.

… …. …. Appellant.

Versus
Manager Megma Sharchi Finance Ltd., Megma Leasing

Company, Gutkar, PO Gutkar, Tehsil Sadar, Distt. Mandi, HP.



… … … Respondent.



For the Appellant: Mr. Umesh Bhardwaj, Advocate.



For the Respondent: Mrs. Anu Tuli, Advocate.

Appeal No. 279/2008.

Manager Megma Sharchi Finance Ltd., Megma Leasing

Company, Gutkar, PO Gutkar, Tehsil Sadar, Distt. Mandi, HP.



… … … Appellant.

Versus
Ved Prakash son of Shri Netar Singh R/o Village Majhoti,

PO Devdhar, Tehsil Chachiot, Distt. Mandi, HP.

… …. …. Respondent.

For the Appellant: Mrs. Anu Tuli, Advocate.



For the Respondent: Mr. Ratish Sharma, Advocate.



Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.



Whether approved for reporting? No.
O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).



Since these appeals have arisen out of the order passed by District Forum Mandi, in Consumer Complaint No. 61/2008 on 5.9.2008 as

such these have been heard together and are being disposed of by this common order.

2. Admitted facts giving rise to these appeals are, that vehicle bearing Registration No. HR-38D-7833 was purchased by Ved Parkash (hereinafter to referred as the complainant), from Raj Kumar son of Sh. Brahma Nand in the sum of Rs. 3,80,000/-. He claims to have paid Rs 1 lacs to the previous owner, and balance sum of Rs. 2,80,000/- was financed by the client of Mrs. Anu Tuli, (hereinafter to referred as the OP).

3. Total sum of Rs. 2,80,000/- together with interest etc. was repayable in 35 equated monthly installments of Rs. 11,970/-. Payment of installment was to commence from 1.1.2006 till 1.11.2008. At the time of hearing it was not disputed between the parties, that the appellant had deposited Rs. 1,68,935/- towards installments with the OP. He claims to have deposited these amounts regularly, which position was seriously disputed on behalf of the OP by its learned counsel. Alleging default in the repayment of installments, again admittedly vehicle was repossessed on 24.7.2007 by the OP. This according to learned counsel for the OP was in terms of the Hire Purchase Agreement subject to which the vehicle was financed by her client.

4. After the vehicle had been repossessed, there is evidence on record by way of affidavit of Sh. Hem Raj uncle of the complainant who had gone to the office of the OP with Rs. 70,000/- alongwith the complainant and his father. However the official of the OP refused to take the amount and return the vehicle. This was according to learned counsel for the complainant on the very next day, of 24.7.2007.

5. When specifically called upon learned counsel for the OP what she has to say on this affidavit, she could not point out anything on record, except for arguing that despite notice in the month of April, when complainant did not pay the outstanding amount her client was forced to repossess the vehicle.

6. In this behalf it is clarified that so far the Hire Purchase Agreement Annexure R-1 is concerned, it is an ordinary loan agreement. Reason being, that firstly Hire Purchase Act, 1972 was never enforced and now it stands repealed. Even if the said Act was in force, even then in case of a hire purchase, registered owner has to be the person who finances the vehicle, and the person who hires it has to pay the installments as a hirer. And after all the installments are cleared, only then the registered owner-financier conveys it to the hirer in the registration record.

7. In the instant case registered owner of the vehicle was admittedly Ved Parkash, therefore in order to enforce Annexure R-1, OP under law was duty bound to have taken recourse under ordinary law of the land. We are aware that the process under the ordinary law is slightly slow, but that does not mean that OP can by-pass the same and can become law unto itself. At best in this case vehicle can be said to be security for the repayment of loan by complainant. In these circumstances, action of repossessing the vehicle on 23.7.2007 by the OP cannot be sustained in any circumstances whatsoever, and as already observed when Hem Raj accompanied by the complainant, as well as his father had gone to pay Rs. 70,000/- in cash the very next day of its repossession, in our opinion the vehicle should have been released. Instead of accepting this amount, vehicle was sold for a paltry sum of Rs. 59,500/-.

8. Financed vehicle was a Tata LPT 1613 Model, when it was sold, learned counsel for the OP submitted that it was only after 7.8.2007. Whether it was got evaluated before putting it to sale, she could not explain, nor any material has been placed on record by the OP to this effect. Likewise whether before confirming the sale in favour of the person who purchased the vehicle for Rs. 59,500/-, whether any notice was given to the appellant to bring a better buyer, again neither there is any material on record, nor the learned counsel was in a position to state anything on behalf of the OP. Fact remains that by way of installments as well as on account of arbitrary sale by the OP it had received a total sum of Rs. 2,28,435/-.

9. As already observed the action of repossession is totally arbitrary and illegal besides being unwarranted by law. Repossession, as already observed could only be resorted to through due to the process of law, so long the rule of law prevails in the civil society and writ of constitution and other laws runs throughout length and breadth of the country. In these circumstances, it is felt that the appeal filed by the OP, i.e. No. 279/2008 deserves to be dismissed. Ordered accordingly.

10. Now comes the question as to how to deal with the appeal of the complainant. On an over all examination the facts of this case, we feel that interest of justice will be well served in the facts and circumstances of this case that if OP is ordered to pay him a sum of Rs. 1 lac in all with 9% interest from the date of filing of the complaint, i.e. 1.3.2008 till the date of payment/deposit whichever is earlier in addition to Rs. 10,000/- as cost , punitive damages as well as compensation in all. This amount we have assessed because the OP indulged in unfair trade practice and arm-twisting without following the law.

11. No other point is urged.

In view of the aforesaid discussion while dismissing appeal No. 279/2008 and allowing Appeal No. 263/2008 filed by the complainant order of District Forum Mandi, in Consumer Complaint No. 61/2008, decided on 5.9.2008 is modified thereby holding that the OP is held liable to pay Rs 1 lac in all alongwith 9% interest from the date of filing of the complaint, i.e 1.3.2008 plus Rs. 10,000/- in all towards compensation, punitive damages as well as cost of litigation. Both these appeals are disposed of subject to this modification.

All interim orders passed from time to time in Appeal No. 279/2008 shall stand vacated forthwith.

Office is directed to place an authenticated copy of this order on the file of Appeal No. 279/2008.

Learned counsel for the OP, Mrs. Anu Tuli has undertaken to collect copy of this order from the Court Secretary free of cost as per rules and Mr. Umesh Bhardwaj submitted that it may be sent to him on his address, at District Courts Mandi. Office will do the needful.
Shimla,

November 13, 2009.

FIRST APPEAL No. 116/2009

DECIDED ON 6.11.2009.

In the matter of:



1. Managing Director, Magma Leasing Ltd., Magma

House, 24 Park Street, Kolkata- 700 016;



2. Regional Manager, Regional Office, Magma Leasing

Ltd., SCO 10, 1st Floor, Sector 26, Madhya Marg, Chandigarh;



3. Branch Manager, Magma Leasing Ltd., VPO Gutkar, Tehsil Saddar,

District Mandi, HP appellants No. 1 to 3 through Sh. Sandeep Bakshi,

Manager Magma Leasing Ltd., SCO No. 75, Top Floor,

Phase-9, Mohali (Punjab).

... ... Appellants.

Versus

Sh. Santosh Kumar son of Shri Bhagirath,

R/o VPO Bhangrotu, Tehsil Sadar, District Mandi, HP.

... ... Respondent.



Hon'ble Mr. Justice Arun Kumar Goel (Retd.), President

Hon'ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? No.



For the Appellants: Mr. Vijay K. Verma, Advocate.
For the Respondent: Mr. Raj Pal Singh, Advocate.

O R D E R:
Justice Arun Kumar Goel (Retd.), President (Oral).



Appellants are aggrieved from the order dated 7.3.2009, passed by District Forum Mandi, in Consumer Complaint No. 69/2008. While allowing this complaint, District Forum below has directed the appellants to pay a sum of Rs. 50,000/- on account of loss of income, as well as for harassment and mental agony, besides cost of litigation fixed at Rs. 5,000/-. Sum of Rs. 50,000/- has been ordered to be paid within one month from the date of receipt of copy of the order, failing which this amount shall carry interest @ 9% per annum from the date of filing of the complaint, i.e. 10.3.2008 till realization. Hence this appeal.

2. When hearing in this appeal commenced, learned counsel for the parties were not at variance, that vehicle bearing Registration No. HP-33-2107 was financed by the appellants through appellant No.3 by providing Rs. 1,45,000/- to the respondent. This amount was repayable with interest etc. in 36 equated monthly installments of Rs. 7170/-. Repayment of installment was to commence w.e.f. 15.10.2005 till the entire amount was liquidated. It is further admitted between the parties, that the respondent paid Rs. 1,14,622/- to the appellants. Respondent claims to have paid further sum of Rs. 20,000/- towards one time settlement, whereas, appellants disputed this factual position. Except the oral statement regarding this payment there is no documentary proof produced by the respondent on file. We think looking to the controversy in this case we should say nothing in this behalf.

3. In the aforesaid background according to the learned counsel for the appellants, when there were persistent defaults in the payment of installments, left with no option, as well as in terms of the loan documents subject to which finance was provided by the appellants, vehicle was repossessed by them on 13.3.2007. Respondent complained against this act of highhandedness of the appellants to the Superintendent of Police, at Mandi. Record of the complaint file shows that both the parties to this appeal filed applications under Section 457 of Cr.P.C. for release of the Vehicle in question before the Court. Judicial Magistrate 1st Class, Court No.(2) Mandi, dealt with both the applications, No. 188-IV/2008 by the respondent and 189-IV/2008 by the appellant No.3, and the vehicle was ordered to be released in favour of the registered owner, i.e. the respondent. Even today the vehicle is with the respondent is not in dispute.

4. Though Mr. Raj Pal Singh his learned counsel forcefully urged that when the vehicle was delivered back to his client, it was in a very bad state and it had no tyres and respondent had to spend lot of money to make it roadworthy. Again we think we need not say anything on this aspect of the case.

5. Mr. Verma learned counsel for the appellants submitted that the impugned order cannot stand the test of judicial scrutiny, because his clients were perfectly justified in repossessing the vehicle on the basis of the loan documents subject to which finance was provided by them. Default is apparent on the face of the record, which according to Mr. Verma is admitted by necessary implication as well by the respondent. Therefore according to him no compensation should have been levied upon his client. Alternatively and without in any manner conceding the claim of the respondent, he urged that compensation assessed is on extremely higher side. This stand on behalf of the appellants was seriously contested on behalf of the respondent. Per Mr. Thakur vehicle was repossessed by the appellants by use of force without following the due process of law. According to him so long the rule of law prevails, appellants cannot be allowed to become law unto themselves and by employing extra legal/constitutional means to violate the law with the help of goons. He thus prayed for upholding the impugned while dismissing this appeal.

6. Vehicle remained in the custody of the appellants from 13.3.2007 till it was delivered back to the respondent on 11.7.2008. This period comes to about 17 months. We are of the view that respondent must be earning at least Rs. 4000-5000/- per month, after defraying all the expenses of the vehicle to keep it roadworthy. In these circumstances, we are of the view that allowing the sum of Rs. 50,000/- vide impugned order suffers from no infirmity. Even otherwise after the order of Judicial Magistrate 1st Class, Court No.(2), Mandi referred to hereinabove, vehicle was ordered to be returned to the respondent and the appellants are not aggrieved from this order. This by necessarily implication means that it was repossessed by the appellants without due process of law. In these circumstances, we are of the view that no exception can be taken to the impugned order. Once this conclusion is arrived at, then the decision of this appeal need not detain us.

7. Faced with this situation, Mr. Verma learned counsel for the appellants submitted that still substantial amount is due and outstanding payable by the respondent out of the financed sum. Per him on 30.10.2009 sum of Rs. 2,39,000/- besides other amounts were also payable by the respondent. He thus submitted that if the impugned order is upheld, it will tantamount to putting premium on the defaults of the respondent. We say nothing in this behalf, save and except that if there is any due and outstanding amount payable by the respondent, this order will not come in the way of the appellants to initiate such action as is available to them in accordance with law for recovery of its amount. Similarly respondent will also be entitled to rake up his claim that at the time of its return, the truck was not with tyres and or he spent huge amount to make it roadworthy, as per law.

8. No other point is urged.

In view of the aforesaid discussion we find no merit in this appeal, which is accordingly dismissed, leaving the parties to bear their own costs, of course subject to what has been observed in the preceding paras of this order.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.

Shimla

November 6, 2009

APPEAL NO. 391/2007.
DATE OF DECISION: 15/12/2009.

In the matter of:

1. Branch Manager,

Magma Leasing Ltd., Gutkar (Near Competent Motors),

District Mandi, H.P.
2. Smt. Bhupinder Kaur,

Magma Leasing Ltd.,

SCO 317-18, Sector 35-B, Chandigarh (UT).

Appellants.
Versus

Sh. Arshad Hussain, S/o Sh. Shafdar Ali,

R/o Vilallge Chhattar, P.O. Jugahan,

Tehsil Sadar, District Mandi, H.P.
Respondent.

For the Appellants: Mr. Bimal Gupta Advocate.

For the Respondent: Mr. Peeyush Verma, Advocate.
APPEAL NO. 431/2007.

DATE OF DECISION: 15/12/2009.

In the matter of:

Sh. Arshad Hussain, S/o Sh. Shafdar Ali,

R/o Vilallge Chhattar, P.O. Jugahan,

Tehsil Sadar, District Mandi, H.P.

Appellant.

Versus

1. Branch Manager,

Magma Leasing Ltd., Gutkar (Near Competent Motors),

District Mandi, H.P.

2. Smt. Bhupinder Kaur,

Magma Leasing Ltd.,

SCO 317-18, Sector 35-B, Chandigarh (UT).

Respondents.

For the Appellant: Mr. Peeyush Verma, Advocate.

For the Respondents: Mr. Smt. Anu Tuli, Advocate.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.

Whether approved for reporting ? No.

O R D E R

Justice Arun Kumar Goel (Retd.), President.

1. Both these appeals are directed against the order passed on 7.7.2007 by District Forum, Mandi, Camp at Sundernagar in Complaint Case No. 208/2006, as such they are being disposed of by this order. Shri Arshad Hussain, hereinafter referred to as the “complainant”, filed the aforesaid complaint against the Branch Manager of Magma Leasing Ltd., Gutkar, as well as against Smt. Bhupinder Kaur of Magma Leasing Ltd., here-in-after referred to as the “OP Nos.1 & 2 respectively”.

2. At the time of hearing it was not disputed that the complainant had got a vehicle financed from the OP No.1 in the sum of Rs.4,96,810/-. This amount was repayable in 34 equated monthly instalments of Rs.18,190/- commencing from 15.2.2004. Last instalment was payable on 15.11.2006. At the time of hearing it was not disputed on behalf of the OPs that the complainant had paid Rs.2,80,000/- on 15.3.2005 and prior to it had also paid more than Rs.2,00,000/-. Further according to him with the payment of Rs.2,80,000/-, the entire outstanding balance was liquidated by the complainant. Therefore, he was entitled to get and the OPs were duty bound to issue ‘No Objection Certificate’, so that their lien as financiers could be deleted from the registration record as per provisions of Motor Vehicles Act, 1988. On needful not being done, he got a legal notice issued but without any consequence, thus he filed complaint No.208/2006 alleging deficiency in service against the OPs. When put to notice, complaint was seriously contested by them. While justifying non-issuance of ‘NOC’, their stand was that a sum of Rs.76,460.70 was still due and outstanding payable. This had become Rs.1,20,823.78 paise on 18.11.2006. Unless the account was squared up, OPs were justified in not issuing the NOC.

3. District Forum below after hearing the parties and taking note of the material on Record, has directed OPs to compensate the complainant in the sum of Rs.10,000/- on account of deficiency in service. This amount was to carry interest @ 9% per annum from the date of institution of the complaint (i.e. 24.7.2006), till payment. In addition to this, cost of Rs.2,000/- was also allowed. OPs have been directed to issue ‘NOC’ forthwith and on needful not being done, they have been held to be liable to pay compensation and damages @ Rs.100/- per day to the complainant after one month from the date of the impugned order dated. 7.7.2007.

4. Both parties are not satisfied with this order. As such appeal No.391/2007 has been filed by the OPs for setting aside the impugned order, and appeal No.431/2007 has been filed by the complainant for enhancement of compensation etc.

5. In this background Mr. Bimal Gupta, learned counsel for the OPs forcefully urged, that his clients have still to recover money from the complainant and unless the same was paid, they were fully justified in not issuing the NOC. District Forum below fell into error while ignoring this vital fact, which is supported from the documents on record. Therefore, he prayed for allowing the appeal filed by the OPs by setting aside the impugned order. In the alternative and without in any manner conceding, he submitted that after having allowed compensation to the tune of Rs.10,000/-, grant of interest @ 9% per annum on this amount, which is also compensatory in nature, cannot be justified even if grant of compensation is upheld. Though he hastened to add that by making this submission, he is neither admitting nor in any manner conceding the claim of the complainant. In this behalf he also submitted that compensation allowed is also on a higher side, reason being that vehicle is in the custody of the complainant and he was not prejudiced in any manner for want of issuance of NOC by the OPs. Therefore, he prayed for at least modification of the order regarding interest, for reducing the amount of compensation to a nominal amount, besides deletion of the compensation of Rs.100/- per day allowed by the District Forum below.

6. All these pleas were contested as well as controverted by Shri Peeyush Verma, learned counsel for the complainant. Per him, compensation awarded is on a very lower side. For this he further urged that because of non-issuance of the Certificate in question, his client could not get the lien of the OPs deleted in the registration certificate. Therefore, title of his client to the vehicle, in question, remained under eclipse despite account having been squared up by the complainant. He could not deal with the vehicle as its absolute owner, particularly when he had paid every penny and final payment was made by him on 15.3.2005. Till date his client is neither here nor there because of the aforesaid acts of omission and commission/remissness on the party of the OPs. This was nothing but act of arm-twisting which constitutes unfair trade practice as well as deficiency in service on the part of OPs. Thus he prayed for enhancement of compensation while upholding the rest of the order of the District Forum below and at the same time for the dismissal of the appeal filed by the OPs.

7. So far grant of compensation in this case in the sum of Rs.10,000/- is concerned, we find no infirmity in it. In this behalf Shri Bimal Gupta submitted that outstanding amount unless cleared, complainant has no right to get the NOC. Further according to Shri Gupta, his clients are entitled to interest on the outstanding amount, penal interest and other charges as per loan documents subject to which the complainant had availed the finance from the OPs. And at the same time what was the basis for making such a claim, there is no document like loan agreement etc. having been placed on record of the complaint file by the OPs.

8. In this behalf, we called upon learned counsel for the OPs to refer to anything from the complaint file. He tried to gain strength from the statement of accounts placed by his clients on the record. Amount calculated in the statement of account is based on the loan agreement documents whereunder vehicle was financed by the OPs in favour of the complainant. Those having not been placed, we see no reason to uphold the submission of Shri Gupta that after the payment of Rs.2,80,000/- on 15.3.2005, the loan account was not either squared up, and/or there was something still outstanding payable by the complainant to the OPs. As such, we hold that no amount was due and outstanding payable by the complainant and OPs were not justified in withholding the issuance of NOC.

9. Likewise grant of interest on Rs.10,000/- the amount allowed as compensation cannot be justified as interest is also compensatory in character. So interest awarded is allowed.

10. Since vehicle is being plied by the complainant, who is in its possession, therefore, we are of the view that compensation of Rs.100/- per day is on higher side and we feel that it needs to be reduced to Rs.50/- per day, though Shri Peeyush Verma vehemently urged that there is no justification to interfere with this compensation which is on lower side and his appeal is only for enhancement of compensation as well as the amount of Rs.100/- per day, because of non-issuance of the NOC. We are unable to uphold this submission of Shri Peeyush Verma on behalf of the complainant. Ordered accordingly.

11. No other point was urged.

In view of the aforesaid discussion, while partly allowing appeal No.391/2007 filed by the OPs, it is held that they are liable to pay Rs.10,000/- only alongwith costs as assessed by the District Forum below, and Rs.50/- per day after expiry of 30 days from the date of order passed by District Forum below i.e. from 7.7.2007, until the “NOC” is handed over to the complainant by the OPs against proper receipt. As a result of it order passed by District Forum below in complaint Case No.208/2006, on 7.7.2007 is modified, and at the same time appeal No.431/2007 is dismissed being without merit. Both the appeals stand disposed of.

Office is directed to place an authenticated copy of this order on the file of appeal No.431/2007.

All interim orders passed in appeal No.391/2007 shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per rules.

Appeal No. 331/2008.

Date of Decision 10.12.2009.

In the matter of:
Magma Leasing through its Manager Sub Office

Gutkar, Tehsil Sadar, District Mandi, HP.

… … Appellant.

Versus

Sh. Bharat Kumar son of Sh. Chet Singh R/o Village Ropa,

PO Galma, Tehsil Sadar, Distt. Mandi, HP.

… … Respondent.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.

Whether approved for reporting? Yes.



For the Appellant.: Mr. G.D. Sharma, Advocate vice counsel

Mr. Vijay K. Verma, Advocate.

For the Respondent.: Mr. Peeyush Verma, Advocate vice counsel

Mr. Shashi Bhushan Singh Chandel, Advocate.

O R D E R
Per Mr. Chander Shekher Sharma, Member.

This appeal is directed against the order of District Forum, Mandi, in Consumer Complaint No. 74/2008, dated 20.10.2008 whereby the said complaint of the respondent was allowed and appellant was directed to get the ownership of the JCB in question transferred in the name of the respondent within 30 days from the date of receipt of the copy of the order, failing which the appellant has been directed to pay Rs. 100/- per day as damages to the respondent from the date of filing of the complaint, (i.e. 14.3.2008) till the registration is transferred in the name of the respondent. In addition to this, compensation amount has also been quantified at Rs. 5000/-, besides Rs. 2000/- as litigation costs.

2. Facts of the case as they emerge from the complaint file are, that the respondent had purchased the JCB machine from the appellant bearing engine No. 4H2079/0502931 and chassis No. 1037001. This JCB was repossessed by the appellant as financier, from one Shri Pawan Kumar of Bilaspur who was its earlier owner and he had purchased it with finance provided by the appellant. Respondent made payment of Rs. 3 lacs to the appellant on 21.3.2006 including margin money and one advance installment vide receipt No. 806075, and thereafter he had been paying the installments regularly. Further averments in the complaint are, that respondent had requested number of times to the appellant to issue the sale papers of the JCB in question to him, but it lingered on the mater on one pretext or the other by making lame excuses. It has also been alleged that the appellant had wrongly and illegally withheld the sale documents of the vehicle which could not be registered. Respondent had also served legal notice upon the appellant, but it was not responded to by the latter.

3. In this background respondent filed consumer complaint under Section 12 of the Consumer Protection Act, 1986 against the appellant for deficiency of service on its part seeking direction to the appellant to issue the certificate of JCB and to pay Rs. 50,000/- as compensation, besides Rs. 10,000/- as litigation cost.

4. Appellant contested and resisted the complaint on the ground that it had already supplied the requisite documents, i.e. Form No. 22, tax invoice, Form No.21, Form No. 34 and Form No. 20 to the respondent including copy of sale agreement, as such question of supplying those did not arise. It has also been averred, that the respondent neither registered the vehicle in question in his name nor paid the installments of the loan which action on his part is highly wrong and illegal. Since the documents had already been supplied, therefore there was no need to respond to the legal notice served by the respondent. Hence appellant has sought dismissal of the complaint by alleging that there was no deficiency of service on its part.

5. Rejoinder to the complaint was filed by the respondent wherein he had reiterated the stand taken in the complaint. Sur-rejoinder on behalf of the appellant was also filed wherein the stand taken in the reply was reiterated.

6. Appellant in support of its case filed affidavit of Manoj Kumar, its Branch Manager at its Branch Office, Gutkar and also placed on record various documents, viz. Annexure R-1 agreement for sale, certificate of fitness of vehicle Annexure R-2, Tax invoice Annexure R-3, sale certificate Annexure R-4 and the ledger statement Annexure R-5. Respondent in support of his case filed his own affidavit and copy of the legal notice served upon the Manager of Magma Leasing Ltd., the appellant company.

7. We have heard learned counsel for the parties have also gone through the record of the case file minutely.

8. Mr. Peeyush Verma learned counsel for the respondent argued that since documents pertaining to JCB were not supplied to the respondent after repeated requests made by his client as a result of it, the JCB could not be transferred in the name of the respondent. As such there was deficiency of service on the part of the appellant is writ large. Therefore the respondent is entitled for a direction to the appellant for issuance of sale certificate etc. of the JCB, and also to pay compensation and litigation cost. He has also supported the order of the District Forum below.

9. Mr. G.D. Sharma learned counsel for the appellant argued that the order of the District Forum below is not legally sustainable since it had been rightly appreciated the evidence on record and there was default on the part of respondent in repaying of the loan amount, as such there is no deficiency of service on the part of the appellant.

10. After hearing learned counsel for the parties and also going through the record of the case, we are of the view that order of the District Forum below does not suffer from any infirmity, and it had rightly directed the appellant to supply the requisite documents for transfer of ownership of JCB in favour of the respondent. Reason being that the appellant in its reply to the complaint had clearly admitted the fact that the sale documents had been delivered to the respondent which were required by him for registration of the JCB machine in question. However this fact had been denied in totality by the respondent in the rejoinder. Moreover the appellant has also not denied the factum of selling of JCB to the respondent and receipt of Rs. 3 lacs from him. However there is no iota of evidence on record to prove that all the sale documents of the JCB in question were supplied by the appellant to the respondent and onus was heavy upon the appellant to prove, that all necessary documents had been supplied to the respondent.

11. From the perusal of the record, it is evident that the appellant has placed on record Annexure R-1 which is sale agreement on the basis of which the JCB in question was sold to the respondent. Annexure R-2 is the document i.e. Form No. 22 which is certificate of fitness and Annexure R-4 is a certificate of sale which reflects the purchase in favour of Pawan Kumar the previous owner, as such all these documents are not at all helpful to the appellant in supporting its plea. Since the appellant had not placed on record the copy of the registration certificate of the JCB, which is the vital document and is essential for the transfer of ownership in the name of subsequent purchaser, i.e. the respondent, as such in the absence of registration certificate of JCB the vehicle could not be transferred in the name of respondent.

12. Hence we are of the considered view that the appellant was deficient in service as there was undue delay on its part in supplying the necessary documents required for transfer of ownership in the name of appellant for which the respondent was repeatedly making requests to the appellant and even legal notice was also sent to the appellant in this regard. Thus the aforesaid act of the appellant amounts to deficiency of service on the part of appellant. We are also supported for the view taken by us from the decision of Apex Court, in the case of Madan Kumar Singh (D) through Legal Representative Vs. District Magistrate, Sultanpur and Ors, 2009 CTJ 1108 (Supreme Court) (CP).

13. No other point was urged.

Hence in the light of aforesaid discussion and the facts and circumstances of this case, this appeal is dismissed as we find no reason to interfere with the well reasoned order passed by District Forum Mandi, in Consumer Complaint No. 74/2008, dated 20.10.2008 and the same is upheld. For view on the facts and circumstances of this case that we have taken, the appellant is also burdened with cost of Rs. 5,000/-.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.

C.C. No. 21 of 2008 Decided on 7.12.2009.

A.K.Singh, C/o Sood Building,

Post Office Jhakri, Tehsil Rampur Bushehar,

District Shimla, Himachal Pradesh.

....Complainant.

Versus

1. M/s Megma Leasing and Finance Company Ltd.,

having its Regd. Office at SCO-10, 1st Floor,

Sector 26, Madhya Marg, Chandigarh

Through its General Manager.

2. Reserve Bank of India, Head Office,

1st Floor, Amar Building, Perin Nariman Street,

Mumbai 400001 through its Chief General Manager.

…..Opposite Paties.
Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Whether approved for reporting ?

For the complainant. Mr. Shashi Bhushan Singh Chandel,

Advocate.
For the opposite parties. Mr. Vijay K. Verma, Advocate for

for opposite party No.1

None for opposite party No.2.
ORDER

Justice Arun Kumar Goel (Retd.) President.

1. When this complaint was taken up today, Mr. Chandel, learned counsel for the complainant stated at the bar that despite writing as well as telephonic messages sent to the complainant, he is not forthcoming to instruct both the cousel through whom this complaint has been filed. Thus he prayed that he alongwith other counsel be allowed to withdraw their Vakalatnamas.





2. In the face of this statement made on behalf of the complainant, learned counsel are allowed to withdraw their Vakalatnamas as Sh. Chandel has pleaded no instructions on behalf of the complainant.



3. Since no one is pesent on behalf of the complainant as such this complaint is dismissed for want of prosecution.


4. Learned counsel for OP No.1 has undertaken to collect copy of this order free of cost from the Court Secretary as per Rules whereas office is directed to send the same to the complainant as well as to OP No.2.

C.C. No. 22 of 2008 Decided on 7.12.2009.
A.K.Singh, C/o Sood Building,

Post Office Jhakri, Tehsil Rampur Bushehar,

District Shimla, Himachal Pradesh.

....Complainant.
Versus
1. M/s Megma Leasing and Finance Company Ltd.,

having its Regd. Office at SCO-10, 1st Floor,

Sector 26, Madhya Marg, Chandigarh

Through its General Manager.

2. Reserve Bank of India, Head Office,

1st Floor, Amar Building, Perin Nariman Street,

Mumbai 400001 through its Chief General Manager.
…..Opposite Paties.
Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Whether approved for reporting ?
For the complainant. Mr. Shashi Bhushan Singh Chandel,

Advocate.

For the opposite parties. Mr. Vijay K. Verma, Advocate for

for opposite party No.1


None for opposite party No.2.
ORDER
Justice Arun Kumar Goel (Retd.) President.



1. When this complaint was taken up today, Mr. Chandel, learned counsel for the complainant stated at the bar that despite writing as well as telephonic messages sent to the complainant, he is not forthcoming to instruct both the cousel through whom this complaint has been filed. Thus he prayed that he alongwith other counsel be allowed to withdraw their Vakalatnamas.





2. In the face of this statement made on behalf of the complainant, learned counsel are allowed to withdraw their Vakalatnamas as Sh. Chandel has pleaded no instructions on behalf of the complainant.



3. Since no one is pesent on behalf of the complainant as such this complaint is dismissed for want of prosecution.


4. Learned counsel for OP No.1 has undertaken to collect copy of this order free of cost from the Court Secretary as per Rules whereas office is directed to send the same to the complainant as well as to OP No.2.

CONSUMER COMPLAINT NO. 45 of 2009

Debendra Ranjan Sahu, son of Late Lalit Mohan Sahu, aged about 34(thirty four)only years resident of Amardeep Colony, Ward No.10(ten) , Po/Ps/Dist. Bargarh.

... ... ... Complainant.

- V e r s u s -

1) M/s Magma Leasing Limited, MAGMA HOUSE, Regd Office: 24, Park Street, KOLKATA-700016.

2) Branch Head, Magma Fincorp Limited, Branch Office at- Samaleswari Market Complex, Ist Floor, Budharaja, Sambalpur -768004.

... ... ... Opposite Parties.

Counsel for the Parties:-

For the Complainant:- Sri D. Mishra, Advocate with other Advocates.

For the Opposite Parties:- Sri R.P. Patnaik, Advocate with other Advocates.

-: P R E S E N T :-

Sri Gouri Shankar Pradhan ..... ..... ..... ..... ..... ..... ..... P r e s i d e n t.

Sri Binod Kumar Pati ..... ..... ..... ..... ..... ..... ..... M e m b e r.

Miss Bhagyalaxmi Dora ..... ..... ..... ..... ..... ..... ..... M e m b e r.

Dt. 17/11/2009 -: J U D G E M E N T :-

Presented by Sri B.K. Pati, Member:-

The Complaint pertains to deficiency in service as envisaged under the Provision of Consumer Protection Act-1986 and its brief fact is as follows:-

The Complainant had purchased one second hand Indica Car bearing No. OR-17-9641 with finance of Rs.1,50,000/-(Rupees one lac fifty thousand) only by the Opposite Parties, the loan amount to be paid in 22(twenty two) equal monthly installments of Rs.8,000/-(Rupees eight thousand) only each. Out of the 22(twenty two) installments the financier had taken one installment in advance on the date of finance i.e. Dt.11/03/2003. The Opposite Parties had also retained 21(twenty one) numbers of post dated cheques from the Complainant for realization of the loan amount. The Complainant paid 17(seventeen) installments, out of 21(twenty one) installments, in cash and the rest 4(four) installments were realized by the financier through post dated cheques, thereby, the Complainant had paid all the installments due under the agreement to the financier and after such clearance of all dues the Opposite Parties should have issued No Due/No Objection certificate infavour of the Complainant to make necessary application to R.T.A., Bargarh for correction of endorsement of hypothecation and also they should have returned the posted dated cheques to the Complainant which the Opposite Parties did not do in spite of repeated personal approach and a registered notice Dt.12/09/2007. The Complainant prays for directing the Opposite Parties to issue No Due/ No objection certificate in respect of the vehicle in question and to return the remaining posted dated cheques as well as to pay to the Complainant compensation of Rs.20,000/-(Rupees twenty thousand) only and litigation expenses of Rs.5,000/-(Rupees five thousand) only.

The Opposite Parties in their version admit the claim of the Complainant with regard to the payment of equal monthly installments. They contend that the payment were not made as per the agreed schedule to which delayed payment charges became due and also some of the cheques issued by the Complainant bounced and cheques bounced charges were recoverable from the Complainant, the total receivable amount from the Complainant on the above ground being Rs.86,966.70/-(Rupees eighty six thousand nine hundred sixty six and seventy paise) only. No Objection Certificate can be issued subject to clearance of the above dues. The Opposite Parties also say that the Complainant has not gone for arbitration as per the agreement. They pray for dismissal of the complaint with a direction to the Complainant to clear up the above outstanding dues as per the terms of the contract.

Perused the complaint petition, Opposite Parties version as well as copy of documents filed by the Parties and find as follows:-

The payment of all the equal monthly installments by the Complainant is admitted by the Opposite Parties. They have charged Rs.72,996.70/-(Rupees seventy two thousand nine hundred ninety six and seventy paise) only and Rs.14,000/-(Rupees fourteen thousand) only towards delay payment and cheques bounce charge respectively. Such charges total more than 50%(fifteen percent) of the financed amount. The Opposite Parties have also not issued any notice to the Complainant as regards such dues. By all accounts, the above charges made by the Opposite Parties is unjust arbitrary, illegal and grossly, inflated. It is unilaterally imposed by the lender on a helpless seeker of loan defying all proprieties, reasonableness and business ethics. The equal monthly installments are fixed calculating interest on the loan amount for the entire loan-period and the loanee pays interest over the amount which are cleared through payment of equal monthly installments. Naturally, such over charges cannot be allowed to be imposed. As such, non-issue of No Objection/ No Due certificate infavour of the Complainant in respect of the vehicle in question, amounts to deficiency of service by Opposite Parties towards the Complainant.

In view of such finding, the Opposite Parties are directed, jointly and severally not to make any further claim as regards the loan amount from the Complainant and issue No Due/No Objection Certificate in respect of the vehicle bearing No. OR-17-9641 and return the remaining 17(seventeen) numbers of post dated cheques to the Complainant. The Opposite Parties shall also pay to the Complainant Rs.2,000/-(Rupees two thousand) only towards litigation expenses and carry out the Order within thirty days hence.

CONSUMER COMPLAINT CASE NO.91/2009.


Frederic Jonson Soreng (28 Yrs.),

S/o: Nelson Soreng,

R/o: Mahesdihi, Ps; Town,Dist; Sundargarh,

represented through his Attorney holder

Nelson Soreng,S/o: Late Stephen Soreng,

R/o; mahes dihi, Ps;Town,

Dist: Sundargarh,Orissa. ......................................Complainant.


Versus


1. The Branch manager,

Magma financed co. Ltd.,

1st Floor,NICS,Building Gaffer colony

in front of SBI, Udit nagar, Rourkela,

Po/Ps:Udit nagar,Dist; Sundargarh,Orissa...................Opp. Parties.


Counsel for the parties:-


For the Complainant Sri P.K.Patel, Adv. & Ors.

For the Opp .Parties Sri S.N.Naik,Adv. & Ors.




O R D E R Dated : 04.11.09



Md. Inclab Ummar, President:-


Deficiency in service is the complaint of the complainant.


1. In brief the case of the complainant is that he purchased a car Maruti Alto for his personal use and the O.P provided finance of Rs.1,93,000/- (Rupees one lakh ninty three thousand) only and the complainant deposited Rs.84,024/-. It was agreed between the parties that the finance amount will be repaid in 48 monthly installment of Rs.5,275/- commenced from 01.03.07 to 01.02.11.


After purchase of the car the petitioner used to deposit the installment. On dt.13.06.09 the complainant deposited to Rs.16,400/-

-2-

and has obtained a receipt thereof. On dt. 12.06.09 at 9 pm. the sister of the petitioner and her husband has been to a hotel to take dinner at Bhubaneswar at that time of Agents of the O.P come and seized the car of the complainant illegally with the duplicate key and took the car to their stack yard lateron the sister of the petitioner paid Rs.6,000/- towards the part payment and then the car was released by the Agents of the O.P without issuing any receipt seizure list. Prior to seizures the O.P never served any notice asking the petitioner to deposit installment and in default to seize the car. The father of the complainant on dt.07.06.09 called the collecting Agent of the O.P namely Santosh kumar Behera to collect the monthly installment but the collecting agent of the O.P did not turned over and collect money and on dt.12.06.09 seized the car of the complainant. The said agent had earlier so many times collected the installment of the said loan amount. The father of the complainant thereafter on dt. 13.06.09 deposited a sum of Rs.16,400/-. On dt. 15.06.09 the petitioner received a letter from the O.P where the O.P has directed the complainant to deposit Rs.22,578.41 paise as total loan amount which includes installment of Rs.21,015/- and DPC of Rs.1563.41 paise. The father of the complainant asked the O.P to supply him a statement of Account . The O.P on that day supplied the statement of account where the O.P has not included Rs.16,400/- deposited by father of the complainant and Rs.6,000/- deposited by his siter. Thus the demand of the O.P asking to pay Rs.22,578.50 is illegal since Rs.22,400/- as deposited by the petitioner through his father and sister has not been taken in to account which amounts to deficiency in service and unfair trade practice for which the complainant has filed the instant dispute case with a prayer for a direction to the O.P to adjust Rs.22,400/- towards payment of loan account and to waived to Rs.1563.41 paise as DPC and to pay a sum of Rs.50,000/- (Rupees fifty thousand) only towards compensation for harassment.


2. The O.Ps. appeared through his learned advocate and filed written version wherein it has been submitted that the filing of the instant dispute case by Mr.Nelson Soreng in repect of case vehicle bearing Regd. no. OR 16B-7484 is illegal. Further it has stated that the case vehicle is the subject matter of the lawful contract duly executed between the complainant and the O.P.


The complainant's proposal to avail financial assistance for the purchased of the case vehicle which was taken in to consideration and after execution of the agreement on dt.31.01.07 vide proposal No. PG/0019/C/05/000339 finance for the case vehicle was granted wherein the complainant was to pay the agreement value of Rs.2,53,200/- (Rupees two lakh fiftythree thousand two hundred) only to be paid in 48 EMIs of Rs.5,275/- (Rupees five thousand two hundred seventy five) only .

-3-

It has been also stated that the case vehicle was ever seized on dt.12.06.09 at Bhubaneswar nor any payment without receipt was ever received on account of the case vehicle. The payment made on dt. 13.06.09 is reflected in the statement of Account and since the statement of Acount filed by the complainant is of the same date the entry of the payment was process and prayed for the dismissal of the case there is no merit in the case.

3. Heard the learned advocates appearing for for both the parties and perused the documents as filed by the parties in their support and we have gone through the case in detail.


First of all we would like to clarify that the filing of the instant dispute case by Mr. Nelson Soreng who is the father of Frederic jolhnson Soreng and also special power of Attorny holder and he was authorized to file pleading, applications, petition or documents in respect of his vehicle before the District Consumer Court,Sundargarh or in any other court. He is also authorised to appoint and engage any advocate to conduct the case in respect of the vehicle so there is no illegality in filing the instant dispute case by the holder of the special power of attorney.


The allegation of the complainant is that after purchase of the car he was paying the installment and some time also he had paid the installment in advance. The agents of the O.P seized the vehicle of the complainant illegally with the duplicate key and took the car to their stack yard at Bhubaneswar at that time the sister and brother in law of the complainant were in the car. The Agents of the O.P released the vehicle later on receipt of Rs.6,000/- without issuing any money receipt for Rs.6,000/- or any seizure list. Prior to seizure no notice was served to the complainant.


The father of the complainant who is also his power to attorney holder on dt. 07.06.09 called the collection agent of the O.P namely Santosh ku. Behera to collect the monthly installment but the collecting agent of the O.P did not turned over and collect the money and on dt.12.06.09 the agent of the O.P seized the said car. The said agent Santosh ku. Behera had earlier so many times collected the installment of the said loan amount.


The father of the petitioner thereafter on dt. 13.06.09 deposited a sum of Rs.16,400/- (Rupees sixteen thousand four hundred) only at the office of the O.P at Rourkela. But surprisingly on dt.15.06.09 the petitioner received a letter from the O.P where the O.P has directed the petitioner to deposit Rs.22,578.41 paise as total loan amount which includes installment Rs.21,015/- and DPC of Rs. 1563.41. The father of

-4-

the complainant asked the O.P to supply him a statement of Accounts. The O.P on that day supplied the Account. The said statement of Account of the O.P has not included Rs.16,400/- deposited by petitioner's father and it has been also admitted by the O.P that the payment made on dt. 13.06.09 is well reflected in the statement of Account. And since the statement of Accounts filed by the complainant is of the same date the entry of the payment was in process. After receipt of the amount from the father of the complainant on dt.13.06.09 the O.P served a demand notice to the complainant on dt. 15.06.09 for payment of Rs.22,578.41 is illegal and it amounts to deficiency in service for which in our opinion the complainant is to be compensated.


4. Thus under the circumstances we direct the O.P. to pay Rs.20,000/-(Rupees twenty thousand) only to the complainant for compensation for harassment and the complainant is also not liable to pay the DPC of Rs.1563.41 to O.P. The above amount has to be paid by the O.P to the complainant within 30 days from the date of receipt of this order failing which the O.P would be liable to pay @ 12 % interest per annum on the awarded amount from the date of receipt of this order till the date of actual payment.


The case is disposed off accordingly.

Complainant is allowed.

C. Case No.18/2009

Kisar Sahu,

S/O-Biranchi Sahu,

Aged about 40 years, AT/PO-Kamira,

PS/Dist-Boudh………………..Complainant

-Versus-

1. Branch Manager,

Magma Finance Corporation Ltd.,

Bhubaneswar, (Khurdha)

2. Branch Manager,

Magma Finance Corporation Ltd.,

1st Floor, Samaleswari Market Complex, Budharaja,

PS/Dist-Sambalpur……………………………..O.Ps

DATE OF INSTITUTION:- 19.02.2009.

Date of Final Order:-25.11.2009

Present:- Sri S.K.Mohapatra, M.A.LL.B., President.

Sri T.R.Agrawalla, LL.B., Member

And Smt. Sunita Dalal, LL.B., Lady Member

For the Complainant: -In person

For the O.P.s:- Ex-partee

FINAL ORDER

1.Alleging deficiency in service and unfair trade practice against the O.P. members, the complainant filed this complaint claiming Rs.90,000/- towards his mental agony, Rs.1,000/- as litigation expenses. The complainant further claimed the premium receipt from the O.P. for the current year which received by them to insured the vehicle along with return of repossess charge of Rs.8,000/- and garage charge of Rs.1,000/-. At lasts the complainant pray for passing of a order for a direction to the O.Ps not to seize the vehicle while the vehicle is use in the business of the complainant.

2.The chronicle of the dispute in concise is that, the Magma Finance Corporation Limited, had a office at Boudh town & his staffs motivated the complainant to borrow loan from them to purchase a vehicle, to which he agree and purchased a vehicle namely “Mahindra Max Festara 2x/2wd/9STR” in the year 2005 to engage himself and maintain his livelihood and the 1st installment of Rs.10767/- was paid on 1.12.2005. The O.Ps fixed a repayment schedule consist of 48 equal installment @ 10767/- per month and the complainant has to repay Rs.4,78,035/- including insurance and other charges. The complainant already paid Rs.444705/- that is as on 01.01.2009 excluding delay payment charges of about Rs.50,000/- in different installments. Then he paid Rs.14,000/- on 21.01.2009 including D.P.C. of Rs.3000/- and in this way the complainant had paid Rs455705/- before filing of this dispute that is about 88% of the total amount of Rs.516816/-. The scheduled monthly installments are taking including the installment towards annual premium of Rs.10950/- for insurance of the vehicle to ensure the deposit of premium. But the O.Ps did not provide him the receipt for payment of annual premium of the vehicle for its insurance from the period 28.10.2008 to 27.10.2009 midnight. As such the complainant approached that, the O.Ps may not deposited the premium and grab the amount in deceptive way.

3.Further the complainant alleged that, on 18.10.2008 the O.Ps forcibly snatch away the vehicle without having any order/decree or any court from the custody of the complainant by applying muscles power while the complainant had been to S.C.B. medical College, Cuttack by carrying a serious patient namely Basanta Naik and his attendant of Boudh district under Purunakatak Police station. They did not even listen the imp love of the complainant. However the complainant out of much difficulties arranged another vehicle and sifted the patient and his attendants to the medical. The vehicle was released by the O.Ps after receive Rs.94,850/- on 29.10.2008 including D.P.C. of Rs.18,000/- and reposes charge of Rs.8000/- from the complainant in illegal manner and the complainant claims for recover the reposes charge from the O.Ps.

4.The complainant further stated that, he is paying the monthly installment regularly with some negligible irregularities and for the irregular period he is paying the delay payment charges by honoring the terms and condition of the agreement without any hesitation. In this way he is already paid about Rs.50,000/-(fifty thousand) towards D.P.C.. In spite of that, the O.Ps deliberately seize the vehicle from Cuttack road by using muscles power without having any order of direction of the court. The O.Ps further put the complainant in unnecessary harassment by sending threatening letter by showing imaginary outstanding dues against the complainant and warn to take the possession of the vehicle. This action of the O.Ps is quite unfair which caused mental agony of the complainant. The complainant filed some documents in support of his contention including the copy of payment receipts, party ledger report/20.01.2009, threatening letter dated.13.10.2009 from Rourkela office of the O.Ps, Medical papers of the patient Basanta Nayak etc. which marked exhibit-1 to 17.

5.After receive notice from the Forum the O.Ps appeared and filed their show cause along with some documents such as denied notices dated-21.08.08., 15.09.2008, 14.10.2008, copy of intimation dated-18.10.08 to the police before taking the possession of the vehicle, copy of inventory report, copy of intimation to police after taking the possession of the vehicle and statement of account dated-18.05.2009 in respect of vehicle bearing registering no-OR02AG-8213. The documents are marked exhibit-A to G on behalf of the O.Ps.

6.The prime contention of the O.Ps that, the complainant was never regular in payment of E.M.I. for which a sum of Rs.53,809/- is the due upon him as on 18.05.09. The O.Ps further stated that if any dispute arises between the parties it will be adjudicated by way of arbitration. However the O.Ps stated that, due to willful default of the complainant on various imaginary grounds a dispute was raised which referred to an Arbitrator for adjudication which adjudicate and awarded in the knowledge of the complainant, who suppress the facts and come with this dispute against the O.Ps. Lastly they submitted that, the vehicle was taken in possession in due compliance with terms of the contract and other statutory procedures and the payment of repossession charges, DPC and the defaulted EMIs as a part of the contract never illegal or unlawful. As such the O.P.s are not deficient in rendering service and the dispute is not maintainable in this Forum.

7. Perused the complaint petition, its show cause, documents filed by both the parties and evidence advanced in shape of affidavit by the complainant the following issues are framed for determination.

1) Whether the dispute is maintainable?

2) Whether the complainant is a willful defaulter?

3) Whether the O.Ps illegally taken the vehicle in to para-17 their possession?

4) Whether the O.Ps are deficient in providing service and adopted unfair practice?

5) To what relief if any the complainant is entitle from?



Issue no-1

Keeping in mind the factual position of the complaint, we would like to observe that, this court has ample jurisdiction to try this dispute. The finance companies have deployed their employees, agents every where to motivate the consumers to avail finance from their respective company. As such no specific jurisdiction can be determine for a company and hence the consumer can filed the dispute in his home district so that, he can provide with justice at the door. The company can not forced the consumer to file complaint before any specific court. The consumer can take shelter in the court of his choice meant for the dispute for his redressal. Further the proceeding can go on in two different court simultaneously even issues involved in those two proceedings are substantially similar and remedies are in dependent of each other. The existence of parallel of other adjudicatory Forums can not take away on exclude jurisdiction created under consumer protection Act. Proceeding under consumer protection Act and in a civil court can simultaneously go on (A.I.R-S.C-2009, Delhi-page-122 M/S- Hindustan Motors Ltd. Vs Amardeep Singh wirk and others) As such this Forum has ample jurisdiction to try the dispute in other words the present dispute is maintainable in this Forum.

Issue No-2

The O.Ps alleged through his written statement that, the complainant is a willful defaulter in repayment of loan amount. In this regard we go through the payment scheduled and party ledger report provided by the O.Ps (exhibit-9) from it is clear that, the complainant try his level best for repayment of loan dues with slender irregularities. The vital thing is that, the complainant had already paid the delay payment charge to the O.P. with out any protest or hesitation. As such in this event the O.P. has no right to told that, the complainant is a willful defaulter. It is to be considered that, the vehicle was purchased by the complainant by borrowing loan from the O.P. only to maintain his family and engage himself as well as self employment. The fluctuation in business is always happening. As such the O.P. should have consider this fact and this consideration is not hampering them as they receive D.P.C. against it. Moreover the complainant had already paid the lion portion of the loan amount the intention of the complainant is so transport and it is imagine from the payment of Rs.61,550/- made by the complainant in different dates during course of hearing of the dispute and the said payment receipts(exhibit-7,11,12,13 and 14) were filed by the complainant. Another deceptive action of O.Ps is that, the O.Ps deliberately not showing the payment of Rs.25,000/-(twenty five thousand) by the complainant on 25.05.2009(ext-ii) so that he can show the outstanding amount is more before this Forum through this show cause filed on 12.06.09 that is 18 days after the said payment. As such in our consideration the complainant is not a willful default.

Issue No-3& 4

The most vital involved in this dispute that, the O.Ps overact in taken the possession of the vehicle bearing regd.no-OR02-AG-8213 from the possession of the complainant on 18.10.2008 while he shifted a serious patient to S.C.B. medical college, Cuttack who received head and fracture injuries by using muscles power and ignoring the implore of the complainant. Although the O.Ps have no order or direction of any competent court to seize the vehicle. With this illegal action of the O.Ps the complainant forced to arranged another vehicle and shifted the patient to the medical in this regard the complainant filed some related medical document which marked exhibit-2,3 and 4. However after ten days the complainant released the vehicle from the custody of the O.Ps by paying the outstanding loan dues of Rs.68,850/- along with D.P.C. of Rs.18,000/- repossess charge of Rs.8,000/- and obtained receipt thereof(ext-5) . In this regard we relied upon the view of the Hon’ble National Consumer Dispute Redressal Commission (2008(2) Bank CLR-40(NCDRC) Tata Finance Limited, Mumbai Vs Francies Soeiro, Goa) “taking of possession of the vehicle by use of force can not be justified…………..His entire dream of having a vehicle for self earning/ employment is frustrated for years together” In other decision the Hon’ble National Commission is of the opinion that” the bank or its recovery agent, employing musclemen to take forcible re-possession of them hypothecated vehicle and thus causing physical harassment and mental trauma to the complainant (HDFC Bank limited Vs Balwinder singh, iii(2009) CPJ 40 (NC) date of decision -16.03.2009 published in October 2009 issue of consumer Advocate vol-2). The Hon’ble Apex court has also similar views in this regard in so many decided case published in different journal.

Keeping the above fact in mind we certainly accuse the O.Ps from the offence narrated above as we have not satisfied with the action of the O.Ps in re-possession of the vehicle by simply intimating the I.I.C, Sahid Nagar, Bhubaneswar through one S.I. of police of that P.S. and this action of the O.Ps also create doubt in our mind that, the head of the P.S. is not properly intimated. Not only that, the notice from O.P’s Rourkela office communicated to the complainant frequently ( Ext 10 & 16) to again take the possession of the said vehicle for which the complainant stated that he spent his time with serious mental anguish. This above action can safely declaimer as unfair trade practice & deficiency in rendering service by the O.P.s to his consumer/complainant. The negligence action of the O.P.s also noticed during the hearing of the dispute. Save & except the date of filing of the counter along with some documents the O.P.s were neither attended this Forum nor they cross-examine the complainant who deposed evidence in Chief through an affidavit although the O.P.s were allowed with several opportunities.

Issue No-5

In the above discussion the O.P.s are overact in every respect , unnecessary imposed re-posses charge ,garage charge and take the possession of the vehicle to their custody in such a illegal & combative manner from a low-abiding consumer for which they are liable to pay compensation to the complainant who deserve for the same. The overact of the O.P.s forced the complainant to take shelter of this Forum and the complaint is entitle for the cost of litigation as such keeping in mind the respective pleading ,documents & contention advanced by the parties as mentioned in the preceding paragraphs we pass the following order.

ORDER

The O.P.No.1,Branch Manager, Magama Finance Corporation Limited, Bhubaneswar is directed to pay Rs.50,000/-(Rupees Fifty thousand) to-wards compensation for the mental agony of the complainant sustained due to illegally taken into possession of the vehicle dated 18.12.2008 vide regd. no-0R-02-AG-8213 near Bhubaneswar .The Magama Finanace Corporation Limited is further directed to refund the amount the amount of Rs.8000/-(Rupees eight thousand) illegally taken to-wards repossess charge from the complainant vide MR No-3515459/dt.29.10.2008 and hand over the annual premium deposit receipts of Rs.10450/- for the year 2008-2009 & 2009-2010 to-ward insurance coverage of the vehicle or else the said amount will be adjusted/deducted from the out standing loan dues remain against the complainant . The interim order passed on 24.03.2009 will continue till the account of the complaint is closed in this regard. The order is to carry out within one month from the date of this order failing which the complainant is at liberty to take action as per C.P.Act against the O.P.s.

Give under our hand and seal of the Forum today this the 25th November, 2009.

Consumer Complaint No: 145/2007

Date of presentation: 01/12/2007

Date of decision: 18/11/2009

Sh. Harish Chand Sharma, S/o Sh. Paras Ram,

Vill. & P.O. Arki, District Solan H.P.



… Complainant
Versus

1. M/s Megma Leasing Ltd.

SCO-10, 1st Floor, Madhya Marg,

Sector-26, Chandigarh (UT).

2. Omesh Auto Financial Services,

Ambuja Factory Road, P.O. Darlaghat,

Tehsil Arki, District Solan H.P.

…Opposite Parties.
For the complainant: Mr. Gagan Sharma, Advocate vice

Mr. Avinash Sharma, Advocate

For the Opposite Party No.1: Mr. B.S. Kapoor, Advocate.

For the Opposite Party No.2: Exparte.

O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers, that, in order to purchase a vehicle Tata Ale, he approached the OP No.2, for obtaining financial assistance and after completion of formalities, the OPs sanctioned loan of Rs.2,00,000/-, which loan amount was payable to the OPs in monthly installment of Rs.5620/- payable in 47 instalments. It is averred that thereafter, the OP No.2 issued a letter dated 27.03.2007 to the Manager Sikand & Company, Solan for the delivery of the vehicle, which was accordingly delivered to him. But, later on, the OP No.1 did not release the sanctioned loan amount of Rs.2,00,000/- to the Manager Sikand & Company, hence, has to suffer financial loss on account of the fact that he could not register the vehicle with the concerned Authority, and also could not ply the same. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP No.1, in its written version, to the complaint, raised preliminary objections vis-à-vis estoppel, maintainability of the complaint and lack of cause of action. On merits, the OP No.1 has contended that on completion of the formalities, the cheque was issued in favour of M/S Sikand & Company, on, 30.06.2007, but the complainant with the help of OP No.2, had obtained loan from M/S ICICI. It is contended that the assurance if any, for sanction of loan was given by the OP No.2, and OP No.2, approached the OP No.1 for sanction of loan amount and after completion of codal formalities, the loan was sanctioned by it. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice. However, the OP No.2, neither contested the complaint nor filed any reply, despite service, hence, was ordered to be proceeded against exparte, on, 17.01.2008.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The complainant, is, aggrieved by the act of the OPs, in not releasing him, the sum of loan, sanctioned in his favour. The OP No.1, in its reply has contended that after completion of the codal formalities, by the complainant, the loan was sanctioned in his favour and when a cheque was issued in favour of M/S Sikand & Company, on, 30.06.2007, the complainant with the help of OP No.2, had already obtained loan from M/S ICICI. The OP No.1, has, also, contended that the assurance, if any, was given by the OP No.2 only, for whose negligence and fault, the OP No.1, cannot be held guilty of deficiency in service. However, the OP No.2 has not contested the complaint.

6. From the scrutiny of documents Annexure C-4 & C-8, it divulges that, it, was the OP No.2 alone, who had given assurance to the complainant for sanction of loan amount. In the aforesaid documents, there, is, no reference regarding the sanction of loan amount by the OP No.1, in favour of the complainant. Since, no assurance has been given by the OP No.1 for sanction of the loan amount either in favour of the complainant or OP No.2, hence, the OP No.2, cannot be held guilty of rendering any deficiency in service, or for delay, if any, caused in the processing of his case, the OP No. 1 as in his absence, it is to be held that his inertia in transmission of papers to OP No. 2 caused the delay.

7. However, it, is, true that the documents Annexure C-4 & C-8, was issued by the OP No.2, to M/S Sikand & Company, hence, except OP No.2 no one, is, responsible for their act. It is the OP No.2 alone, who had given assurance to the complainant for that releasing of the loan amount. When the formalities were completed by the complainant, the OP No.1 sanctioned the loan amount, in favour of M/S Sikand & Company, at that stage the complainant with the help of OP No.2, had, already obtained financial assistance from other financial institution. As such, no loss capable of indemnification was caused to the complainant. Since, this fact has, not, been repulsed and rebutted by the OP No.2, as, it did not contest the complaint, hence, it has to be accorded sanctity, for lack of its rebuttal by OP No.2. As such, the OP No.2 is only liable to be held guilty of rendering deficiency in service.

8. The complainant, is, claiming a sum of Rs.30,000/- on account of interest charged by M/S Sikand & Company together with damages and litigation costs, from the OPs, but, in the absence of cogent and convincing material on record, to, prove the payment of interest paid by the complainant to M/S Sikand & Company, we are not inclined to accept the said assertion of the complainant. In case the complainant had defrayed the amount of interest to M/S Sikand & Company, it was obligatory on his part to have proved, the, said fact by adduction of receipts of payment of interest defrayed by him to M/S Sikand & Company. Hence, for non-adduction of proof qua defrayment of interest charges to M/S Sikand & Company, by the complainant, he, is, not entitled for the said sum, from the OPs. However, in the given facts and circumstances of the case, the complainant, is, entitled for reasonable amount of compensation, for rendering of deficiency in service, from, the, OP No.2.

9. Consequently, we allow this complaint only to the extent that the OP No.2, shall pay a sum of Rs.5000/- as compensation to the complainant together with litigation cost, which in the facts and circumstances of the case, is, quantified at Rs.1000/-. The amount of compensation and litigation costs shall be defrayed to the complainant by the OP No.2, within a period of forty five days, after the date of receipt of copy of this order. The compliant, qua OP No.1 is, dismissed for the reasons aforesaid. Hence, the complaint stands disposed of in the above terms.

10. The learned counsel for the contesting parties undertook to collect the certified copy of this order from the office, free of cost, as per rules, whereas a certified copy of this order shall be sent to the OP No.2, through UPC, for compliance. The file after due completion, be consigned to record room.

Consumer Complaint No: 639/2008
Between:
M/s. Creative School (Gayatri Educational Society), represented by its Correspondent, Surla Venkata Ramana, S/o. Mathi Naidu, Hindu, about 32 years, residing at Santhi Nagar, Balighattam, Narsipatnam Mandal, VisakhapatnamDistrict.
… Complainant

And:
1. M/s. Magma Leasing Limited, represented by its Authorized Signatory, registered office No.24, park street, Kolkata-700 016.

2. M/s. Magma finance Corporation Limited, represented by its Branch Manager, Dwarakanagar, near Tirupur Garments, Visakhapatnam. … Opposite Parties

This case is coming on for final hearing on 3-11-2009 in the presence of Sri K.Maheswara Rao, Advocate for the complainant, and of Sri K.Govindarajulu Advocate for the opposite parties, and having stood over till this date, the Forum delivered the following

: O R D E R :

(As per the Honourable Male Member on behalf of the Bench)

1. The case of the complainant is that he purchased a Mahendra & Mahendra Bus for transporting the school children for their pick up and drop at their respective destinations, with the finance from M/s.Magma Leasing Ltd., Kolkata with their Branch Office at Dwaraka Nagar, Visakhapatnam; the opposite parties. The said vehicle was seized by the opposite party; unilaterally and hence placed the complaint with the Forum demanding to deliver back the seized vehicle as is where is condition and to direct the opposite party to pay Rs.1,000/- (Rupees one thousand only) from 4-12-2008 i.e date of seizure till the date of return of the vehicle and to award damages of Rs.50,000/- (Rupees fifty thousand only) with costs and such other reliefs as the Forum deems fit.

2. The facts of the case according to the complainant are that he purchased an LMV bus with registration No.AP.31 Y.1838 from M/s.Magma Leasing Ltd, Kolkata with their Branch Manager at Visakhapatnam. He procured the said vehicle under the name of M/s.Creative School which is the part of Gayatri Educational Society and he was paying installment amounts regularly without default and the last payment prior to seizure was on 2-12-2008 for an amount of Rs.10,250/- (Rupees ten thousand two hundred and fifty only) by way of cash vide receipt No.74499. The opposite parties without any intimation seized the vehicle on 4-12-2008 and his efforts to get back the vehicle released have become futile as the opposite party did not respond. The legal notice served on 5-12-2008; for which the opposite party not responded. Due to the abrupt seizure of the vehicle and resultant inconvenience caused to school children for which he had to make alternative arrangement for their transport by Autos; costing Rs.1,000/- (Rupees one thousand only) per day. The complainant therefore demanded release of the vehicle and prayed for reliefs as sought for the above. In proof of his contentions the complainant has produced four documents from Ex.A1 to Ex.A4.

3. The version of the opposite party is that it is a fact that the complainant has obtained the vehicle under hire purchase scheme by arrangement with HDFC and whose transactions were assigned to M/s.Magma Finance Corporation Ltd., and all the terms of the agreement that was with HDFC were binding on the complainant as well as the opposite party. The case of the opposite party is that the Gayatri Educational Society under whom M/s. Creative School procured the vehicle and the person acting as correspondent of the creative school is Sri Surla Venkataramana, the complainant. According to the opposite party the finance amount was Rs.4,60,980/- (Rupees four lakhs sixty thousand nine hundred and eighty only) i.e Rs.3,90,000/- (Rupees three lakhs and ninety thousand only) being the cost of the vehicle and 70,980/- (Rupees seventy thousand nine hundred and eighty only (4.85%) being the finance charges. Ever since the vehicle was procured by the complainant with their finance, the repayment of installments were in default and there were total 1143 days of delay in payments and the delayed payment charges are of Rs.32,319/- (Rupees thirty two thousand three hundred and nineteen only) as on the date of the seizure of the vehicle. According to them the seizure is maintainable in terms of decisions of National Commission in 95 CPJ Part III 58 NC and also 95 CPJ part III 59 NC and also 2006 CPJ part-III 247 NC which upheld the decision of such seizures. Therefore, the opposite party claims that there is no case for the complainant and also as he failed to submit the details of the society byelaws and the Secretary of any society is only competent to represent the complaint and they are not clear about the role of the complainant i.e Sri Surla Venkata Ramana who is correspondent of M/s. Creative School purportedly subsidiary of Gayatri Educational Society is signatory of the hire purchase agreement. In the circumstances the opposite parties sought to dismiss the complaint as there are no merits in the case in support of their contentions the opposite parties filed written two documents under Ex.B1 and Ex.B2.

4. Now it is to be found out whether the complainant has a case of the issues raised in the complaint if so whether the prayers for returning the seized vehicle and as is where is conditions along with payment of Rs.1,000/- (Rupees one thousand only) per day from the date of seizure till today towards the reimbursement of transportation cost for the schools children besides Rs.50,000/- (Rupees fifty thousand only) towards damages and costs. After careful examination of the documents produced, read with affidavit and evidence affidavit and submissions made by its counsel to the Forum finds that though it appears to be a fact that he procured the transport bus bearing No.AP.31Y.1838 on Loan No.1574963 from the opposite party without giving details of payment etc., on his part. Highlighting the date of last payment prior to the seizure i.e. 4-12-2008 and the seizure is without any prior notice. The complainant also filed to furnish the statement of calculation of Rs.1,000/- (Rupees one thousand only) per day demanded and the total sum to be arrived at and the basis of the days to be reckoned, duly excluding weekly and other holidays. The complainant also did not choose to submit the byelaws of the Gayatri Educational society in the guise of whom the vehicle was procured and whether the correspondent of Creative School is authorized to enter such agreement under the byelaws were not elaborated in the complaint. More over the complainant did not choose to submit the payment details as to the cash receipts for the payments made except the last payment made on 2-12-2008, and he could not rebut the opposite partiy’s version that due to repeated default for 1143 days in total as on date of seizure and charges left to the extent of 32,319/- (Rupees thirty two thousand three hundred and nineteen only) which is the crux of the contention for seizure by them is neither denied nor rebutted. As to the version of the opposite party citing the case laws, the Forum cannot take cognigence of the same in the absence of submission of the copies of said judgments and whether the facts of the present case are similar to the facts of the judgment cited could not be decided by the Forum in the absence of submission of copies of judgment by the counsel concerned as well as due to non availability of the same in the Forum library. However, the forum has to rely on and relied on the contents of the complaint and as well as the contents of the written statement of the opposite party. After careful study of which, read with the terms of agreement signed by the complainant with HDFC, there is Prima-facie case of default by the complainant in the absence of substantiating with evidence of prompt payment and other related aspects analyzed above came to the conclusion that the complainant is at default and due to this reason the complainant has no case in demanding the reliefs sought for.

5. In the result the complaint is dismissed with no costs. The advocate fee is fixed at Rs.2,000/- (Rupees two thousand only)

Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 7th Day of November, 2009.

Consumer Complaint No: 639/2008
Between:
M/s. Creative School (Gayatri Educational Society), represented by its Correspondent, Surla Venkata Ramana, S/o. Mathi Naidu, Hindu, about 32 years, residing at Santhi Nagar, Balighattam, Narsipatnam Mandal, Visakhapatnam District.

… Complainant And:
1. M/s. Magma Leasing Limited, represented by its Authorized Signatory, registered office No.24, park street, Kolkata-700 016.

2. M/s. Magma finance Corporation Limited, represented by its Branch Manager, Dwarakanagar, near Tirupur Garments, Visakhapatnam. … Opposite Parties

This case is coming on for final hearing on 3-11-2009 in the presence of Sri K.Maheswara Rao, Advocate for the complainant, and of Sri K.Govindarajulu Advocate for the opposite parties, and having stood over till this date, the Forum delivered the following

: O R D E R :

(As per the Honourable Male Member on behalf of the Bench)

1. The case of the complainant is that he purchased a Mahendra & Mahendra Bus for transporting the school children for their pick up and drop at their respective destinations, with the finance from M/s.Magma Leasing Ltd., Kolkata with their Branch Office at Dwaraka Nagar, Visakhapatnam; the opposite parties. The said vehicle was seized by the opposite party; unilaterally and hence placed the complaint with the Forum demanding to deliver back the seized vehicle as is where is condition and to direct the opposite party to pay Rs.1,000/- (Rupees one thousand only) from 4-12-2008 i.e date of seizure till the date of return of the vehicle and to award damages of Rs.50,000/- (Rupees fifty thousand only) with costs and such other reliefs as the Forum deems fit.

2. The facts of the case according to the complainant are that he purchased an LMV bus with registration No.AP.31 Y.1838 from M/s.Magma Leasing Ltd, Kolkata with their Branch Manager at Visakhapatnam. He procured the said vehicle under the name of M/s.Creative School which is the part of Gayatri Educational Society and he was paying installment amounts regularly without default and the last payment prior to seizure was on 2-12-2008 for an amount of Rs.10,250/- (Rupees ten thousand two hundred and fifty only) by way of cash vide receipt No.74499. The opposite parties without any intimation seized the vehicle on 4-12-2008 and his efforts to get back the vehicle released have become futile as the opposite party did not respond. The legal notice served on 5-12-2008; for which the opposite party not responded. Due to the abrupt seizure of the vehicle and resultant inconvenience caused to school children for which he had to make alternative arrangement for their transport by Autos; costing Rs.1,000/- (Rupees one thousand only) per day. The complainant therefore demanded release of the vehicle and prayed for reliefs as sought for the above. In proof of his contentions the complainant has produced four documents from Ex.A1 to Ex.A4.

3. The version of the opposite party is that it is a fact that the complainant has obtained the vehicle under hire purchase scheme by arrangement with HDFC and whose transactions were assigned to M/s.Magma Finance Corporation Ltd., and all the terms of the agreement that was with HDFC were binding on the complainant as well as the opposite party. The case of the opposite party is that the Gayatri Educational Society under whom M/s. Creative School procured the vehicle and the person acting as correspondent of the creative school is Sri Surla Venkataramana, the complainant. According to the opposite party the finance amount was Rs.4,60,980/- (Rupees four lakhs sixty thousand nine hundred and eighty only) i.e Rs.3,90,000/- (Rupees three lakhs and ninety thousand only) being the cost of the vehicle and 70,980/- (Rupees seventy thousand nine hundred and eighty only (4.85%) being the finance charges. Ever since the vehicle was procured by the complainant with their finance, the repayment of installments were in default and there were total 1143 days of delay in payments and the delayed payment charges are of Rs.32,319/- (Rupees thirty two thousand three hundred and nineteen only) as on the date of the seizure of the vehicle. According to them the seizure is maintainable in terms of decisions of National Commission in 95 CPJ Part III 58 NC and also 95 CPJ part III 59 NC and also 2006 CPJ part-III 247 NC which upheld the decision of such seizures. Therefore, the opposite party claims that there is no case for the complainant and also as he failed to submit the details of the society byelaws and the Secretary of any society is only competent to represent the complaint and they are not clear about the role of the complainant i.e Sri Surla Venkata Ramana who is correspondent of M/s. Creative School purportedly subsidiary of Gayatri Educational Society is signatory of the hire purchase agreement. In the circumstances the opposite parties sought to dismiss the complaint as there are no merits in the case in support of their contentions the opposite parties filed written two documents under Ex.B1 and Ex.B2.

4. Now it is to be found out whether the complainant has a case of the issues raised in the complaint if so whether the prayers for returning the seized vehicle and as is where is conditions along with payment of Rs.1,000/- (Rupees one thousand only) per day from the date of seizure till today towards the reimbursement of transportation cost for the schools children besides Rs.50,000/- (Rupees fifty thousand only) towards damages and costs. After careful examination of the documents produced, read with affidavit and evidence affidavit and submissions made by its counsel to the Forum finds that though it appears to be a fact that he procured the transport bus bearing No.AP.31Y.1838 on Loan No.1574963 from the opposite party without giving details of payment etc., on his part. Highlighting the date of last payment prior to the seizure i.e. 4-12-2008 and the seizure is without any prior notice. The complainant also filed to furnish the statement of calculation of Rs.1,000/- (Rupees one thousand only) per day demanded and the total sum to be arrived at and the basis of the days to be reckoned, duly excluding weekly and other holidays. The complainant also did not choose to submit the byelaws of the Gayatri Educational society in the guise of whom the vehicle was procured and whether the correspondent of Creative School is authorized to enter such agreement under the byelaws were not elaborated in the complaint. More over the complainant did not choose to submit the payment details as to the cash receipts for the payments made except the last payment made on 2-12-2008, and he could not rebut the opposite partiy’s version that due to repeated default for 1143 days in total as on date of seizure and charges left to the extent of 32,319/- (Rupees thirty two thousand three hundred and nineteen only) which is the crux of the contention for seizure by them is neither denied nor rebutted. As to the version of the opposite party citing the case laws, the Forum cannot take cognigence of the same in the absence of submission of the copies of said judgments and whether the facts of the present case are similar to the facts of the judgment cited could not be decided by the Forum in the absence of submission of copies of judgment by the counsel concerned as well as due to non availability of the same in the Forum library. However, the forum has to rely on and relied on the contents of the complaint and as well as the contents of the written statement of the opposite party. After careful study of which, read with the terms of agreement signed by the complainant with HDFC, there is Prima-facie case of default by the complainant in the absence of substantiating with evidence of prompt payment and other related aspects analyzed above came to the conclusion that the complainant is at default and due to this reason the complainant has no case in demanding the reliefs sought for.

5. In the result the complaint is dismissed with no costs. The advocate fee is fixed at Rs.2,000/- (Rupees two thousand only)

Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 7th Day of November, 2009.

C.C.No.66/2009
Between
Mangannagari Desi Reddy,

S/o. M. Muni Reddy,

Hindu, aged about 57 years,

Residing at D.No.1-207, Dwarakanagar,

Opp. Agrl. College, Perur,

Tirupati Rural. …. Complainant
And

1. M/s. Magma Finance Corporation Ltd.,

Rep. by its Branch Manager,

Holding office at Flat No.9, 1st Floor,

Opp.Palani Theatre, Rayalacheruvu Road,

Tirupati, Chittoor District.

2. M/s. Magma Finance Corporation Ltd.,

Rep. by its Regional Manager,

Holding office at D.No.594-1, 1st Floor,

Above Federal Bank, Near NTR Statute,

Patamata, Vijayawads …. Opposite parties

This complaint coming on before us for final hearing on 27.10.2009 and upon perusing the complaint, written arguments of the complainant and other relevant material papers on record and on hearing Sri N. Srinivasa Rao, counsel for the complainant and Sri. D. Srikanth, counsel for the opposite parties No.1 and 2 remained absent and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY Sri. M. SUBBARAYUDU NAIDU, MEMBER

ON BEHALF OF THE BENCH
This complaint is filed under Sections 12 and 14 of Consumer Protection Act, 1986 to pass an order directing the opposite parties to issue No Objection Certificate with regard to vehicle bearing No. AP 03 W 4282 to the complainant without any further delay and also to pay compensation for a sum of Rs.15,000/- for causing physical and mental harassment and to pay a sum of Rs.5,000/- towards costs of legal expenses and pass such other order or orders as the as the Hon’ble Forum may deem fit and proper in the circumstances of the case.

2. The factual matrix leading to filing of this complaint is set out as here under:

(a) It is the case of the complainant that he had approached HDFC bank for purchase of Auto Riksha and the HDFC Bank, Tirupati branch agreed to provide a loan for the purchase of it and accordingly sanctioned a loan of Rs.90,000/-. According to the complainant, as per the agreed terms of the loan agreement, he has to repay the above said loan along with interest in 34 installments and HDFC bank has agreed to pay the yearly insurance for the above said auto rikshaw and also paid the insurance for the year 2006. It is also mentioned in para 5 of the complaint by the complainant that all the amount payable for the insurance is added to the above said loan amount and monthly installments were calculated, making it to Rs.3,627/- per installment. The complainant has paid the first installment on 05.05.2006.The same was entered in its ledger by HDFC bank as 34th installment. The complainant had paid 32 installments for the above said loan. It is also mentioned in para 6 of the complaint by the complainant that as per the instructions of the HDFC bank, the complainant has paid insurance for the years 2007 and 2008 respectively and valued Rs.3,750/- each and both the payments have to be accounted and adjusted to the total amount. As per the loan agreement entered into with the HDFC bank, Tirupati by the complainant, there is no clause for paying 3% per month cumulative interest and there are no special charges for delayed payments. The complainant is only bound by the terms of the original agreement to the HDFC bank.

(b) In para 8 of the complaint filed by the complainant, it is stated that in the month of June, 2008, the above said HDFC bank had assigned all its rights, interest and title including the security created over the vehicle in favour of the opposite parties. So, the complainant has been paying dues to the opposite parties since then, i.e., June,2008.The complainant further narrated in para 9 of his complaint that after completion of his due payments towards loan to the opposite parties, he had demanded them to issue “No Objection Certificate” to the above said vehicle in order to submit the same to the Road Transport authorities and to remove the hypothecation endorsement in Registration Certificate. But the first opposite party did not issue the same till now. Later on, the complainant received a demand letter from the second opposite party dated 11.02.2009 reminding the complainant to pay a sum of Rs.21,353/- towards balance due including interest. Immediately, the complainant got issued legal notice through his counsel on 02.03.2009 to the second opposite party to issue No Objection Certificate as he has cleared all the dues to the company, but the second opposite party issued reply notice with false dues demanding the complainant to pay a sum of Rs.22,343.62p towards the outstanding due amount including the interest thereon. From there onwards the opposite parties herein had been harassing the complainant, both physically and mentally and sending people to the house of the complainant, stopping the vehicle now and then in the market and threatening the complainant and his men demanding to pay the dues as per their will and wish even though the complainant has paid all the dues. The opposite parties are also sending periodical demand notices to the complainant. The notice issued by the complainant, reply notice issued by the second opposite party and periodical demand notices sent by the second opposite party are filed along with the complaint and they may be read as part and parcel of it. Both the opposite parties failed to discharge their lawful duties, i.e., to issue NOC even after receiving the full payment of the loan amount and hence they acted in deficiency of service and with no other go, the complainant has filed this complaint before this Hon’ble Forum for reliefs as prayed for. Hence, this complaint..

3. In response, the learned counsel for the opposite parties Sri. D. Srikanth filed a vakalat for them on 22.09.2009. Prior to filing of vakalat on behalf of opposite parties, the said learned counsel for the opposite parties filed a memo offering to file vakalat on 14.09.2009. Since 22.09.2009, this consumer case is coming for filing written version / counter of the opposite parties on specific dates of hearing namely 22.09.2009, 06.10.2009, 12.10.2009 and 13.10.2009. On 13.10.2009 the statutory period of 45 days for filing of written version on behalf of the opposite parties, expired. At the request of the said learned advocate for the opposite parties, time was extended till 20.10.2009 on payment of costs of Rs.500/- to be deposited in Consumer Legal Aid account and posted the case for payment of case on 20.10.2009. As usual, the opposite parties did not turn up either to filing of written version on behalf of the opposite parties or for payment of costs as aforesaid. On 20.10.2009, the case was posted to 22.10.2009 for hearing of the complainant . On 22.10.2009 written arguments of the complainant was filed and it is coming for oral arguments of the complainant and finally on 27.10.2009, while hearing oral arguments of the complainant and during the course of the case, exhibits A1 to A9 was marked on behalf of the complainant. Arguments of the complainant was heard and the case is posted for orders and same is reserved for it. On perusal of Ex.A3, i.e., reply notice issued on behalf of the second opposite party to the complainant on 17.03.2009, i.e., prior to filing of this complaint before this Forum and it reads as follows :

17th March, 2009.

Sub: Reply to your notice.

With subject matter cited above we are giving the actual facts for your perusal and consideration.

1) The averments made in your notice are totally false, baseless and issued without any bonafide with the sole intention of tarnishing the reputation of our company and to obtain wrongful gain. In the said circumstances the averments are specifically denied except that those which are admitted hereunder.

2) That your client availed finance facility for purchasing of Vehicle Pickup Van vide agreement dated 05/05/2006 for an amount of Rs.95,000/- payable at 33 EMIs the payment of Rs.3,267-00 the EMI which is includes with Insurance amount.

3) As per the terms of the agreement, the borrower has to pay the installments on due dates without fail and on failure of the payments on due dates he is liable to pay late payment charges as per the Company norms from time to time.

4) As per the Statement of Account there is an amount of Rs.22,343.62/- is outstanding is due towards pending installments and late payment charges.

5) As per the date commencement you client has to pay the EMI amount of Rs.3,267-00 on or before 5th of every month after this date of payment will treat Delay Payment Charges.

6) As well wishing to your client we are advising to your client to come forward to our office and our office will give the clarity of the same and makes a payment which is due by your client we have no objection to issue the NOC to your client.

7) Hence, please advise to your client to come for our office and settle the issue amicably and clear the amount which is due by your client as on date for the issuance of NOC filing which your client will held responsible for the consequences arising thereof.

Yours truly,

Sd/-

Authorised Signatory

Magma Fin Corp. Ltd.

Exs.A4 to A7 are the demand notices addressed to the complainant by the second opposite party with regard to for payment of overdues on different dates such as 11.02.2009, 13.05.2009, 11.06.2009 and 14.07.2009. Having appeared for the opposite parties by the said learned counsel for the opposite parties, has not chosen to file written version by way of defense to the averments made in the complaint for the reasons best known to the opposite parties as well as to the said learned counsel for the opposite parties. As per Ex.A3, i.e., reply notice given by the second opposite party to the complainant, still there is an amount of Rs.22,343.60p outstanding towards pending installments and late payment charges from the complainant according to the statement of account. There is no sufficient material such as statement of accounts from HDFC Bank as well as opposite parties and also a copy of agreement between the parties is not filed for our perusal.

4. In support of the averments made in the complaint by the complainant, he has filed 9 documents which are marked as Exs. A1 to A9. Ex.A1 is the bunch of original receipts (28 Nos.) filed on behalf of the complainant with regard to payment of loan installments. Ex.A2 is the office copy of legal notice dated 02.03.2009 issued to the first opposite party by the said learned counsel for the complainant. Ex.A3 is the reply notice dated 17.03.2009 issued to the learned counsel for the complainant by the second opposite party. Ex.A4 to Ex.A7 are the demand notices issued to the complainant from time to time from 11.02.2009 to 14.07.2009 by the second opposite party. Ex.A8 is the Motor Vehicle cover note issued by the Bajaj Allianz Insurance Company Limited to the complainant. Ex.A9 is the Xerox copy of Insurance Policy for the period 23.06.2008 to 22.06.2009 issued by the United India Insurance Company Limited.

5. The complainant has filed written arguments in support of his case. There is no written version as well as written arguments on behalf of the opposite parties have been filed. They remain absent without representation.

6. On the basis of the pleadings and documentary evidence, the points that arise for our determination are:

1 Whether there is any deficiency in service on the part of the opposite parties 1 & 2

towards the complainant?

2. Whether the complainant is entitled for the reliefs as prayed, if so to what

extent?

3. To what result?

7. Point No.1:- (a) There is no dispute about the purchase of Auto rikshaw and the HDFC bank, Tirupati branch provided a loan of Rs.90,000/- The learned counsel for the complainant Sri N. Srinivasa Rao has vehemently argued that inspite of payment of all the installments due to the opposite parties, the opposite parties are very much negligent in issuing “No Objection Certificate” with regard to the vehicle bearing No. AP 03 W 4582 to the complainant. He further narrated all the facts contained in the complaint and written arguments reiterated once again alleging that the opposite parties have committed deficiency in service withholding NOC without any proper reason whatsoever and without issuing it and causing all sorts of inconvenience to the complainant. Finally, the said learned counsel for the complainant prays this Hon’ble Forum to grant all the reliefs as prayed for in the complaint.

(b) Because of non-appearance of the said learned counsel on behalf of the opposite parties during the course of oral arguments of the case on 27.10.2009 and there is no material to verify such as affidavit, written version and written arguments of the opposite parties on record, we are supposed to look into the matter available on record on behalf of the opposite parties and considering the same for disposal of this consumer case.

( c) Forum’s Findings and Observations

(i) We have heard the learned counsel for the complainant and perused the record. It is true that the complainant has availed a loan facility from HDFC bank for Rs.90,000/- for purchasing of Auto Rikshaw APE and subsequently paid installments regularly. It is clear from the original receipts (28 Nos.) (Ex.A1) filed on behalf of the complainant by the said learned counsel. There is no loan agreement between the parties before us to peruse the terms and conditions of it. There is no statement of account copy filed before us, relating to the payments of the loan amount to the HDFC bank as well as the opposite parties herein. The learned counsel for the complainant contended that in the month of June, 2008 HDFC Bank has assigned all its rights, interest and title including the security created over the vehicle in favour of the opposite parties, but he did not file any letter to that effect before us. HDFC Bank, Tirupati is not a party to this consumer case. Ex.A1, i.e., original receipts are showing that repayment of installments of Rs.3,627/- from 05.07.2006 to HDFC Bank and on subsequent dates payments are made till 17.10.2007 and from 15.11.2007 to 06.01.2009 the Equated Monthly Installments paid to the opposite parties as per Ex.A1. The said learned counsel for the complainant also further contended that the complainant had paid insurance for the years 2006, 2007 and 2008 for the above said vehicle. According to Ex.A4 to A7, the arrears of hire rentals / installments of Rs.7,227/- (including July 2009 month EMI) and delayed payment charges of Rs.17,511/- (approximately) and totaling to Rs.24, 738/-. In fact, the second opposite party issued reply legal notice dated 17.03.2009 (Ex.A3) to the complainant by mentioning Rs.22,343.62p is due from the complainant according to the statement of account, but no statement of account of the opposite parties is filed before us for our scrutiny and consideration. The learned counsel for the opposite parties have not taken any interest to represent on behalf of the opposite parties to answer the allegations made in the complaint. There is no representation from him on behalf of the opposite parties. They are lethargic in their attitude and negligent inspite of filing vakalat of before this Hon’ble Forum by the opposite parties. We have no clear statement of account with regard to payment of installments in detail either from HDFC Bank or from the first opposite party herein. In the absence of loan agreement between the parties to the complaint, we cannot assume as if the opposite parties contention is absolutely true. Whereas the complainant has produced prima facie evidence by way of original receipts (Ex.A1) evidencing the payments of installments due to the opposite parties. HDFC bank is the proper and necessary party to this consumer case. It is not added as a party to the case for the reasons best known to the parties to the complaint. When the HDFC bank has assigned the rights and transfer it to the opposite parties are not known as per the complaint

(ii) The complainant in proof of his case filed affidavit evidence and filed Exs.A1 to A9, while the opposite parties did not file either affidavit or any documents. The narration of facts, undoubtedly, disclose that the said auto riksha was purchased by the complainant with the assistance of a loan provided by HDFC bank and payable of it with interest as EMI’s. The opposite parties, for the reasons best known it, did not file the alleged loan agreement, to show that it had a right and empowered to charge penal amount in case, there is a default in payment of installments due from the complainant. So, necessarily an adverse inference has to be drawn in the circumstances of the case. Since, the opposite parties could not prove that any clause in the loan agreement gave a right to charge penal amount in case of default in payments of regular EMIs by the complainant.

(iii) The general principle of law is “Seundum allegata et probatae” meaning that a party can succeed according to what was alleged and proved. The fact asserted by a person must be proved by adducing evidence which is admissible in accordance with law. Presumption of facts are nothing more than logical inference of the existence of facts drawn from proved or known facts, without the help of any artificial rules of law and they are always rebuttable. The raising of such inferences is optional to the court. It may or may not be drawn. The legal consequences of drawing a presumption is to cast on the approval, the duty of producing contrary evidence. Adverse inference against a party is usually drawn during the course of trial, if he deliberately abstains from adducing better evidence, which he is in a position to adduce. Where a person is proved to have suppressed any species of evidence or to have defeated or destroyed any written statement, a presumption will arise that it would have been against his interest and that his conduct is attributable to his knowledge of the circumstances. The court may presume that it a man refused to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him. Both on general ground and by reason of Section 114 of Indian Evidence Act, the burden is one which shifts easily as the evidence is developed.

(iv) The alleged loan agreement copy is within the knowledge and possession of the opposite parties. If they are careless and negligent by not producing document, when it is within their knowledge / possession, it must pay for negligence. Negligence of any degree amounts to deficiency in service. We find considerable substance in the submissions made on behalf of the complainant by his learned counsel. This is a clear case of a deficiency in service on the part of the opposite parties towards the complainant. So, this point is answered accordingly.

8. Point No.2:- In view of he facts, circumstances of the case and discussion made in Point No.1, it is a fit case where a proper and an appropriate remedy can be provided to the complainant on principles of “Natural Justice”. The complainant is entitled to get “No Objection Certificate” from the opposite parties. He is also entitled to claim for Rs.1,500/- towards costs of his complaint. So, this point is answered accordingly.

9. Point No.3:- In the result, the complaint of the complainant is allowed in part directing the opposite parties to issue “No Objection Certificate” with regard to vehicle bearing No. AP 03 W 4282 to the complainant and also to pay a sum of Rs.1,500/- towards litigation expenses to him within six weeks from the date of receipt of copy of order.

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 9th day of November, 2009.