06.04.2016.
PER SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER.
Challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) by the O.P. Nos. 1 & 2 is to order No. 9 dated 21.12.2012, passed by the Ld. District Consumer Disputes Redressasl Forum, Purulia (for short, Ld. District Forum) in Consumer Complaint No. 22 of 2012. By its impugned order, the Ld. District Forum allowed the consumer complaint with a direction upon the O.P. Nos. 1 & 2 to make payment of Rs.67,915/-, Rs.10,000/- as compensation and Rs.3,000/- towards litigation cost.
The Respondents herein being Complainants initiated the complaint under Section 12 of the Act alleging that the Complainant No. 1 being an unemployed youth and having Light Motor Vehicle driving licence being attracted by the advertisement of O.P. No. 3 decided to purchase one Tata Magic 8 Seater vehicle on hire purchase exclusively for the purpose of earning his livelihood by means of self-employment to maintain his family. Accordingly, the Complainants met the D.S.E. of the O.P. No. 3 and expressed his desire to purchase the vehicle, the value of which at the relevant time was Rs.2,94,986/-. As the Complainant wanted to purchase the vehicle on hire purchase, the D.S.E. advised him to deposit Rs.50,000/- only as initial payment and told the Complainant No. 1 that out of the said amount Rs.30,986/- would be adjusted as initial hire against the value/invoice amount of the said vehicle and the balance amount of Rs.19,014/- would be required towards cost of registration, road tax, insurance of the vehicle and hire purchase agreement etc. The Complainant No. 1 being agreed upon the advice of O.P. No. 3 deposited Rs.5,000/- on 31.12.2009, Rs.17,000/- on 08.10.2010 to the O.P. No. 3. Thereafter, the Complainant No. 1 deposited Rs.28,000/- on 25.01.2010. On the said date i.e. on 25.01.2010 the O.P. No. 3 delivered the Tata Magic 8 Seater vehicle to the hirer/Complainant No. 1 and asked to the Complainants to enter into a hire purchase agreement with the O.P. No. 1. Accordingly, the O.P. No. 2 took signatures of the Complainant No. 1 as the principal borrower of the loan, signatures of the Complainant No. 2 as co-borrower of the loan and signature of Complainant No. 3 as the guarantor of the loan in the printed format of the agreement. Thereafter, the Complainants visited the office of O.P. Nos. 2 & 3 time and again and asked them to take initiative to get the vehicle registered, but it yielded no result. In such a situation, the Complainant personally met the O.P. NO. 2 at Durgapur on 17.09.2010. The O.P. No. 2 asked the Complainant to bring the vehicle to the showroom of O.P. No. 3 on 21.09.2010. On 21.09.2010, the Complainant in good faith brought the vehicle in the showroom of O.P. No. 3 where O.P. Nos. 2 & 3 and some other persons of the showroom forcibly snatched the key of the vehicle and repossessed the vehicle. After repossessing the vehicle, the O.P. No. 2 handed over the Complainant some documents like contract details, forwarding letter, repayment schedule etc. Thereafter D.S.E. of O.P. No. 2 Pannalal Rewani and Sandipan Mukherjee by their letter dated 13.10.2010 intimated the Complainants that registration document and insurance are lying in their custody and asked them to collect those documents on payment of Rs.2,675/-. The Complainant has also submitted that on 04.06.2012 a notice of arbitration proceeding was received by him wherefrom he came to know that the O.Ps illegally and fraudulently sold the vehicle in question on 19.12.2012 for a sum of Rs.90,000/- after expiry of 15 months from the date of repossession of the same. Hence, the complaint with a prayer for refund of Rs.67,915/- to the Complainant No. 1, pay compensation of Rs.1,45,000/- and litigation cost of Rs.10,000/- etc.
The Appellants herein being O.P. Nos. 1 & 2 by filing a written version disputed the allegations levelled by the Complainants stating, inter alia, that they initiated an arbitration proceeding against the Complainant as per Clause 23 of the loan agreement and O.Ps appointed the sole arbitrator. The sole arbitrator recalled the loan agreement by issuing the loan recall notice. The O.Ps stated that the Complainant No. 1 did not make payment periodically and also defaulted in making payment for which they sent repossession notice to the Complainant and asked to clear the dues, but the Complainant ignored such notice and did not take any step either. The O.Ps thereafter sent repossession notice to the Complainant and also intimated the same to the concerned police station. According to them, the consumer complaint should be dismissed with cost.
After assessing the materials on record the Ld. District Forum allowed the consumer complaint with certain directions as indicated above, which prompted the O.P. Nos. 1 & 2 to prefer this appeal.
We have scrutinized the materials on record including the Brief Notes of Arguments filed on behalf of the Respondents and also considering the submissions advanced by the Ld. Advocates appearing for the parties.
Having heard the Ld. Advocate for the respective parties and on going through the materials on record it would reveal that the Respondent No. 1 is an unemployed youth having light motor vehicle driving licence. Being attracted by an advertisement by O.P. No. 3 he decided to purchase one Tata Magic 8 Seater vehicle on hire purchase for the purpose of his livelihood by means of self-employment to maintain himself and his family. Accordingly, he met officials of D.S.E. and ascertain the estimated cost of the vehicle at Rs.2,94,968/-. On the basis of advice of the D.S.E. authority, the Complainant No. 1 deposited Rs.5,000/- on 31.12.2009 and Rs.17,000/- on 08.01.2010 and on 25.01.2010 the Complainant again deposited Rs.28,000/-. However, as there is no receipt to that effect in respect of payment of Rs.28,000/- much attention cannot be given to the same.
Be that as it may, on 25.10.2010 the Respondent No. 3 delivered the Tata Magic 8 Seater vehicle and asked the Complainant to enter into heir purchase agreement with O.P. Nos. 1 & 2 i.e. the Appellants herein. The Appellants and the Respondent No. 4/O.P. No. 3 delivered the delivery order. The Respondent No. 1 time and again visited the office of the Appellants as well as the Respondent No. 4 and requested them to get the vehicle registered in the name of hirer under the hypothecation to the financier from the Motor Vehicle Department, Purulia and to get the vehicle insured from any insurance company in favour of the Respondent Nos. 1 and to deliver the relevant papers, registration certificate, owner book, road tax, insurance policy etc. Due to non-registration of the vehicle and non-availability of insurance policy, the Respondent No. 1being an unemployed youth could not ply the vehicle on road for earning his livelihood. In spite of that Respondent No. 1 paid Rs.8,915/- on 26.03.2010 and Rs.9,000/- on 29.04.2010 towards monthly instalment.
The immediate cause of the dispute arose on 21.09.2010 when the Respondent No. 1 brought the vehicle in the showroom of Respondent No. 1 where the Appellants and Respondent No. 4 with their men and agents repossessed the vehicle.
Mr. Saptarshi Dutta, Ld. Advocate appearing for the Appellants has first submitted that the instant complaint should have been dismissed on the ground that it lacks territorial jurisdiction to entertain the complaint. From the cause title of the petition of complaint it reveals that O.P. No. 1 is Tata Motors Finance Limited having its head office at Mumbai, O.P. No. 2 being Branch Manage as its office at Durgapur within the District of Burdwaman. However, O.P. No. 3 is the authorized dealer from whom the vehicle was purchased is lying and situated at Ranch Road, Purulia within the jurisdiction of the Ld. District Forum and as such the argument of the Ld. Advocate for the Appellants as to jurisdiction is bereft of any intrinsic merit.
The Ld. Advocate for the Appellant has further submitted that in accordance with the hire purchase agreement, the Respondent No. 1 did not make payment of instalment and as such they took repossession of the vehicle on 21.09.2010. To fortify his submission, the Ld. Advocate for the Appellants has placed reliance to three decisions of the Hon’ble National Commission reported in
- II (2014) CPJ 87 (NC) – Jasobanta Narayan Ram – vs. – L & T Finance Limited.
- I (2015) CPJ 228 (NC) – Berar Finance Ltd. – vs. – Satishkumar Borker.
- I (2015) CPJ 244 (NC) – Axis Bank Ltd. & Anr. – vs. – S. Venugopal Naidu.
Referring to decision of Berar Finance Ltd. (Supra), Ld. Advocate for the Appellants has submitted that as there was default in payment of instalment, the vehicle in question may be repossessed. In paragraph 11 of the said judgment it has been observed that if it has been sold after due notice no deficiency on the part of the O.P. can be presumed. In the decision of Axis Bank Ltd. & Anr. (Supra) it has been held that O.P. was perfectly within its right to ask for whole of the due amount on default of payment of instalments and O.P. was within its rights to recover possession of the possession of the vehicle on default in payment of instalments and to sell the vehicle. In the case of Jasobanta Narayan Ram (Supra) it has been held that as the Complainant was defaulter on the date of repossession, no deficiency on the part of the O.P. has been put.
On the other hand, Ld. Advocate appearing for the Respondent has submitted that no notice was served upon his client prior to repossession. Placing reliance on the decision of the Hon’ble National Commission reported in 2014 (3) CPR 73 (NC) [Smt. Sulakshana Talan – vs. – Branch Manager, M/s. Shriram Transport finance Co. Ltd. & Anr.], he has submitted that vehicle cannot be sold without notice to the owner. The Ld. Advocate for the Appellants conceded that there is no document whatsoever to show that notice for sale of the vehicle was received by the Complainant.
Surprising enough, on 11.12.2013, a notice was sent by Motor Vehicle Department, Purulia to the Respondent No. 1asking him to make payment of tax in respect of the vehicle in question. This being so, the question of selling out the vehicle at a consideration amount of Rs.90,000/- on 19.12.2011 appears to be based on falsehood.
The award of arbitral proceeding was passed after the decision of the Ld. District Forum. Needless to say, a consumer forum is not bound to refer a dispute for arbitral tribunal in view of the provision of Section 3 of the Act.
Therefore, relying upon the materials on record we find that the Ld. District Forum was quite justified in holding that the Respondents herein being Complainants have made out a good prima facie case showing deficiency in services on the part of the O.Ps since the premium/instalment has been collected by the Appellants herein. The Ld. District Forum did not commit any error by directing the O.P. Nos. 1 & 2 to make payment of the awarded amount.
Consequently, the appeal being devoid of merit is liable to be dismissed. The Respondent being unemployed youth of a remote place of Purulia who has to spend his hard-earned money for the litigation without having any reasonable cause, the appeal should be dismissed with cost which we quantify at Rs.10,000/- to be paid by the Appellants in favour of the Respondent No. 1.
Consequently, the appeal is dismissed on contest with cost of Rs.10,000/- to be paid by the Appellants in favour of the Respondent No. 1 i.e. Complainant No. 1 of the case.
The order No. 9 dated 21.12.2012 passed by the Ld. District Forum, Purulia in CC No. 22 of 2012 is hereby affirmed.
Let a copy of this order be forwarded to the Ld. District Forum, Purulia for information.
