Haryana

Karnal

CC/152/2020

Madhusudan Vashisht - Complainant(s)

Versus

Cholamandla Investment And Finance Company - Opp.Party(s)

Surinder Kumar Sharm

09 Apr 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 152 of 2020

                                                        Date of instt.12.03.2020

                                                        Date of Decision:09.04.2024

 

Madhusudan Vashisht son of Shri Hari Parkash, resident of house no.133, Shastri Nagar, Shiv Colony, Karnal.

 

                                                                        …….Complainant.

                                              Versus

 

1. Cholamandalam Investment and Finance Co. SCO no.193, Adjoining Health Freak, Sector-12, Karnal.

 

2. Cholamandalam MS General Insurance Ltd. SCO no.193, Adjoining Health Freak, Sector-12, Karnal.

 

                                                                         …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.      

      Sh. Vineet Kaushik…….Member

      Dr.  Suman Singh…..Member

 

 Argued by: Shri Surinder Kumar, counsel for the complainant.

                    Shri Dheeraj Sachdeva, counsel for the OP no.1.

                    Shri Naveen Khetarpal, counsel for the OP no.2.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant availed a loan facility from the OP no.1 for purchasing of a Eicher-Canter-3015 bearing registration no.HR45C-2618 for earning his livelihood by means of self employment. In this regard, a loan agreement bearing loan account no.XVFPKAL0000260 was duly executed between the parties at Karnal. The loan amount of Rs.17,00,000/- was disbursed in the loan account of complainant. As per agreement the total loan amount was to be repaid in 48 installments. The said vehicle was duly hypothecated with OP no.1. The said vehicle was registered by the complainant on 13.11.2018 from the Registration Authority RTA, Karnal. OP no.1 also insured the said vehicle itself from Cholamandlam MS General Insurance i.e. OP no.2 from 13.10.2018 to 12.10.2019. Complainant paid the loan installments regularly. On 19.02.2019, the vehicle of complainant met with an accident near Barely in UP with one tractor trolley at 2/2.30 a.m. due to poor visibility on account of fog and was badly damaged. After this accident, complainant informed the OP no.1 and the official of the OP no.1 asked the complainant to contact with the OP no.2. OP no.2 asked the complainant to take the damaged vehicle to Eicher Agency at Barelly. On the instruction of OP no.2, complainant took the vehicle at Eicher Agency, Barelly namely Bansal Agency. After seeing the said damaged vehicle they estimated the cost of repair to be Rs.1,50,000/- and also asked the complainant to deposit 25% of the estimated cost of repair before hand. The complainant raised the objection that since the vehicle is insured with the OP no.2, he is not liable to deposit 25% of the repair amount and OP no.2 is liable to bear the cost of repair. It is further alleged that on the instruction of the OP no.2, complainant brought the damaged vehicle to Karnal. After 5-6 days, the officers of OPs namely Mr. Vikas Sandhu and two others, took the photographs of the damaged vehicle and assured the complainant for settlement of the claim very soon. After waiting for sufficient time of two months, complainant contacted the OP no.2 and asked about the status of the clam but OPs did not give any satisfactory reply. Complainant could not ply the vehicle, as such he was unable to earn and failed to deposit further installment of the loan.

2.             It is further alleged that on the instructions of the OPs, complainant parked the vehicle in Grain Market, Karnal from where the muscleman of the OP no.1 took the possession of the vehicle forcibly and illegally in the month of April, 2019 and sold the same without any right, title or interest in the absence of complainant. The complainant had paid Rs.90,000/- as down payment of the vehicle and after that the complainant paid five installment of Rs.43000/- each from October, 2018 to February, 2019. The complainant incurred Rs.50000/- for preparation of documents of the vehicle i.e. RC, permit etc. The complainant has spent Rs.35000/- for purchasing Dla, angle, cabin, rope, jack etc. for the vehicle. The complainant had also purchased Tarpaulin and belt of Rs.20000/- for use in the vehicle. The complainant has suffered a loss of Rs.2,50,000/- on account of damage to the vehicle in the accident. After taking the possession of the vehicle by OP no.1, complainant requested the OP no.1 to return his entire amount paid/incurred by him which comes to Rs.4,10,000/- with interest, but OP no.1 has flatly refused to pay the abovesaid amount. Complainant received memo no.2845.RTA dated 19.09.2019 seeking objection on the application filed by OP no.1 for transfer of vehicle in the name of OP no.1 after deleting the name of the complainant in the RC which is an illegal act on the part of the OP no.1 and Registration Authority. Complainant appeared before the Registration Authority and told them that OP no.1 has taken the possession of the vehicle illegally and forcibly and they are not entitled to get the vehicle transferred in their name but Registration Authority did not pay any heed to the request of the complainant and is adamant to transfer the vehicle in the name of OP no.1. Complainant also requested the OP no.1 to return Rs.4,10,000/- alongwith interest to the complainant but OP no.1 flatly refused to pay the abovesaid amount. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

3.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; mis-joinder and non-joinder of parties and concealment of true and material facts. On merits, it is pleaded that complainant availed a loan facility for the purchase of a vehicle Eicher 3015 PRO bearing registration no.HR-45-C2618 and for this purpose, a loan agreement was executed between OP i.e. Cholamandlam and borrower vide agreement no.XVFPKAL00002600255 in November, 2018. An amount of Rs.18,85,658/- was financed and disbursed to borrower and same was to be repaid in 59 monthly installment without any delay. As per terms and conditions of loan agreement, the borrower promised to abide with all the terms and conditions. After availing the loan amount, the borrower failed to pay the installments and a huge amount of loan was standing due in the loan account of complainant. The OP requested the complainant several times to maintain the financial discipline of loan account, but of no use. It is further pleaded that a bare perusal of the loan agreement clearly reveals that in case of default of payment of installments, the right of borrower over the asset/vehicle stands determined void ipso facto without any notice and the borrower/co-borrower shall be bound to deliver/surrender the asset/vehicle to the company and in case they fails to surrender, the OP has right to repossess the vehicle. Complainant himself admitted in the complaint that only four installments were paid by the complainant after disbursement of loan amount. On 07.02.2019, the total loan outstanding Rs.18,60,422/- towards the complainant. On 07.02.2019, OP sent a loan recall notice to the complainant and requesting to pay the total outstanding amount and also it was duly apprised to the complainant that in case of failure to pay the loan amount, the vehicle will be reposed and sold as per the right of the OP under loan agreement. Even after serving the legal loan recall notice, the complainant failed to pay the loan amount and finding no other way, OP being hypothecated owner of the vehicle, repossessed the vehicle on 24.04.2019 as per the rights envisaged under the loan agreement after intimating the concerned police authorities. It is further pleaded that after repossession of the vehicle, the OP again sent a final notice dated 26.04.2019 whereby the borrower had been duly intimated again to pay the outstanding loan and it was also intimated that in case of failure to pay the loan amount, the vehicle will be sold as per the rights of the company under the loan agreement. But even after sending of notice, the borrower failed to pay the loan amount. Thereafter, finding no other way, as per exercising the right to sell the vehicle under the loan agreement, the OP has sold the vehicle after adopting due process and appropriating the sale amount in the loan account of borrower. After appropriating the sale amount in the loan of complainant, as of date 04.04.2022 an amount of Rs.16,62,152/- is still  pending in the loan account of borrower. It is further pleaded that as per Arbitration Clause of the said agreement, in the event of default of payments by borrower, the company by written notice to borrower, can declare the entire loan to be immediately due and payable and whereupon, the same shall be payable together with accrued interest thereon as per schedule of interest and charges. The OP had intimated the complainant regarding the default of payments and regarding the loan amount balance alongwith interest and other charges, but the complainant did not bother to repay the same. It is further pleaded that OP is hypothecated owner of the truck in question and in the event of any relief to complainant against the OP no.2, by way of award amount or compensation in the present complaint, same is liable to be repaid to the OP being the hypothecated owner of the vehicle. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.2 appeared and filed its separate written version raising preliminary objections with regard to maintainability; jurisdiction; mis-joinder and non-joinder of necessary parties and concealment of true and material facts. On merits, it is pleaded that present complaint is premature as no claim form was filled by complainant to OP with regard to alleged loss of vehicle on 19.02.2020. The complainant after lodging the claim with the OP never presented the vehicle in any workshop with intimation to OP. OP also requested the complainant to provide necessary documents including claim form, registration certificate of vehicle, driving licence of driver who was driving at the time of loss and estimate but complainant neither provided the same nor cooperated with OP. OP also sent letter dated 04.03.2019 to provide the requisitioned documents but when no reply was received, then another letter dated 11.03.2019 was sent but complainant neither replied the letter nor provided the requisitioned documents. The claim of complainant is still pending as complainant has not provided the necessary documents to process the claim. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of delivery challan Ex.C2, copy of Registration Certificate of vehicle Ex.C3, copy of notice received from Registration Authority Ex.C4, copy of publication Ex.C5 and Ex.C6 and closed the evidence on 18.05.2023 by suffering separate statement.

7.             On the other hand, learned counsel for the OP no.1 has tendered into evidence affidavit of Sunny Saini GPA Holder Ex.RW1/A, copy of letter dated 07.02.2019 Ex.R1, copy of statement of account Ex.R2, copy of loan agreement Ex.R3, copy of Pre-seizure intimation to polices station  Ex.R4, copy of notice dated 26.04.2019 Ex.R5, postal receipt Ex.R6 and closed the evidence on 18.09.2023 by suffering separate statement.

8.             Learned counsel for the OP no.2 has tendered into evidence affidavit of Vidhi Pass, Assistant Manager Ex.RW2/A, copy of letter dated 11.03.2019 issued by OP to complainant Ex.R7, copy of insurance policy Ex.R8, copy of policy terms and conditions Ex.R9 and closed the evidence on 18.09.2023 by suffering separate statement.

9.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

10.           Learned counsel for the complainant, while reiterating the contents of complaint, has vehemently argued that complainant availed a loan facility amounting to Rs.17,00,000/- from the OP no.1 for purchasing Eicher-Canter-3015.. The said vehicle was insured by the complainant from OP no.2. On 19.02.2019, the said vehicle met with an accident near Barely in UP and was badly damaged. The intimation regarding the said accident was sent to the OP no.2. Complainant shifted his accidental vehicle to Bansal Agency at Barelly. The official of OP no.2 inspected the damaged vehicle and took the photographs and assured the complainant for settlement of the claim very soon. He further argued that on the instructions of the OPs, complainant parked the vehicle in Grain Market, Karnal from where the muscleman of the OP no.1 took the possession of the vehicle forcibly and illegally in the month of April, 2019 and sold the same without any right. The complainant requested the OP no.1 to return the amount incurred by him which comes to Rs.4,10,000/- with interest but OP did not pay any attention to the request of complainant and lastly prayed for allowing the complaint.

11.           Per contra, learned counsel for the OP no.1, while reiterating the contents of written version, has vehemently argued that in November, 2018, an amount of Rs.18,85,658/- was financed and disbursed in the account of complainant and same was to be repaid in 59 monthly installments. The complainant failed to repay the installments and a huge amount of loan was standing due in the loan account of complainant. On 07.02.2019, the total loan outstanding Rs.18,60,422/- towards the complainant. Even after serving the legal loan recall notice, the complainant failed to repay the loan amount and finding no other way, OP repossessed the vehicle on 24.04.2019 and has sold the vehicle after adoption due process and appropriating the sale amount in the loan account of borrower and lastly prayed for dismissal of the complaint.

12.           Learned counsel for the OP no.2, while reiterating the contents of written version, has vehemently argued that complaint is premature as no claim was filled by complainant to OP with regard to alleged loss of vehicle on 19.02.2020. OP had also sent various letters to provide the requisitioned documents but complainant neither replied the letters nor provided the requisitioned documents. The claim of complainant is still pending as complainant has not provided the necessary documents to process the claim and lastly prayed for dismissal of the complaint.

13.           We have duly considered the rival contentions of the parties.

14.           In the month of November 2018, complainant availed a loan facility amounting Rs.18,85,658/- from the OP no.1 for purchasing of a vehicle bearing registration no.HR45C-2618. The said amount was to be repaid in 59 monthly installments. The said vehicle met with an accident on 19.02.2019 near Barelley in UP. Complainant has paid only four installments after disbursement of the loan amount. On not repayment of the installments, on 07.02.2019, OP has recalled the loan amount and total loan outstanding amount was of Rs.18,60,422/-. On 24.04.2019, the vehicle in question was re-possessed and sold by the OP.

14.           In the present complaint, complainant has sought relief of Rs.4,10,000/- on account of making the payment of Rs.90,000/- as down payment of the vehicle, EMIs paid to the OPs, cost of preparation of RC, permit and cost of the accessories etc. Complainant purchased the  vehicle in question in the month of November, 2018 and used the same till the date of accident. Complainant himself defaulted for not paying the loan amount as per the terms and conditions of the loan agreement. Since, the vehicle in question has already been sold, the complainant is not entitled for the claimed amount.

 15.          Thus, as a sequel of above discussion, the present complaint is devoid of merits and the same  deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:09.04.2024.                                                                   

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

       

                  (Vineet Kaushik)              (Dr. Suman Singh)

               Member                             Member