Orissa

Jajapur

CC/34/2014

Krushna Ch.Nayak - Complainant(s)

Versus

Managing Director Magma Finance Corp Ltd - Opp.Party(s)

Golakha Chandra Parida

25 Aug 2015

ORDER

IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                                      Present:  1.Shri Biraja Prasad Kar, President,

                                                                                      2.Sri Pitabas Mohanty, Member,

                                                                                      3.Miss Smita Ray, Lady Member.                                                                 

        Dated the 25th day of August,2015.

                                        C.C.Case No.34 of 2014

Krushna ch.Nayak ,S/O Late Jagabandhu Nayak

At/P.O. Salapada  ,P.S.Barchana,

Dist.Jajpur.

…… ……....Complainant .

                                     (Versus)                                                       

1.Managing Director, Magma Fin Corp Ltd, Magma House,23 Park street,

   Kolkata.

 2.Area  Manager,Magma Fin Corp Ltd, At. Nirmala plaza forest park

     Near Airport square,Bhubaneswar.

3. Manager,Incharge-Magma Fin Corp Ltd,jajpur Branch,At.Babulal Sharma

    Complex(1 st floor) Nakua Road,Jajpur Road.

4. Debasis Das, Cash Collector (No.5421),Magma Fin Crop Ltd, Chandikhole

  Collection center,at/P.O.Sunguda, Dist.jajpur.                                                   

                                                                                                                       ……………..Opp.Parties.                                                                                                                                                                                                                                                                                                                                         

For the Complainant:              Sri  G.C.Panda , Miss B.R.Rout, Advocates.

For the Opp.Parties                Sri A.K.Pahil, Advocate.                                                                                    

                                                                                                 Date of order:   25. 08. 2015.

SHRI  PITABAS  MOHANTY, MEMBER .

                        This is a dispute which has been filed from the side of the petitioner alleging not only deficiency in service but also unfair trade practice on the part of the O.Ps.

                        The facts as stated by the petitioner in the complaint petition shortly are that the petitioner purchased an Indigo CS LX car bearing Regd.No.0R-05-K-5665 by availing loan from the O.Ps. For availing such loan the petitioner has executed a hypothecation agreement and as per term and condition of hypothecation agreement the petitioner is required to repay the loan along with financial charges and Insurance premium within the stipulated period. It is stated by the petitioner that first Insurance premium which was paid by the petitioner is  for commercial purpose for which the petitioner has registered the above cited car and obtained the permit for commercial purpose. The rest 2^nd and 3^rd year premium amount of Insurance for commercial purpose was received by the O.Ps. from the petitioner amounting to   Rs.40,500/- . But when the last Insurance premium  was paid by the petitioner on 31.01.2014 it is learnt that the O.Ps. illegally and malafidely has paid the Insurance premium of  previous years i.e 2^nd and 3^rd year, at a low price as private tariff basis with an amount of Rs.19,230/- .

                        The petitioner also  alleged that the O.Ps. illegally shown the financed amount as Rs.3,30,000/- instead of Rs.3,17,215/- after taking signature in blank schedule having the excess amount of Rs.12,785/-.

                        The petitioner also has alleged that the O.P. no.4 who is under the control  O.P. no.3 by help of  some local Gundas  forcibly repossessed  the petitioner’s vehicle to the custody of the O.Ps. on 14.03.2014  at Chandikhole when the vehicle  was on reservation tour without following the procedure of law. Thereafter  the petitioner has deposited Rs.12,000/- with the O.Ps. so as to release the vehicle. The petitioner also has alleged that the O.P.no.4 forcibly has  taken Rs.3,000/- from the petitioner without any money receipt.

                        Accordingly finding no other way the petitioner filed the present dispute with the prayer to direct the O.Ps. to return the amount of Rs.12,785/- which has been  shown excess in the financed amount and 10,113/-  taken excess as Insurance premium as well as  Rs.3870/- (deducted from the installment premium) with interest along with  Rs.1,30,000/- towards litigation charges ,mental agony and compensation to the petitioner.

                        The O.Ps. have appeared and filed their written version in support of their defence denying the allegations of the petitioner. As per written version of the O.Ps. though the petitioner has purchased the vehicle by availing loan from the O.Ps but the said vehicle has been used as  private purpose . Further in case there is any allegation towards Insurance premium the petitioner should have raised the objection at the time of taking delivery of the premium. In the  instant case as the petitioner has not raised any objection the O.Ps. are  no way liable for                         the alleged grievance of the petitioner . The O.Ps. also state that the Learned Forum does not have jurisdiction to entertain the present dispute because all disputes  what ever arising out of the hire purchase agreement only can only be  entertained by an Arbitrator under section 5 and 8 of the Arbitration and conciliation Act . Accordingly the dispute is liable to be dismissed with cost.

                        After hearing we have perused the record along with documents of both the parties in details.

1. Admittedly the petitioner has filed the present dispute against the O.Ps (financer) since the O.Ps have insured the alleged vehicle as private vehicle instead of taking the money for commercial vehicle.
2. The petitioner also alleges that the O.Ps. after  taking higher amount as down payment subsequently has reflected less amount . So also has repossessed  the vehicle on the road without any prior notice.
3. Similarly  the plea taken by the O.Ps. in the written version that owing to Arbitration clause in the agreement this Fora gets  no jurisdiction to entertain the present dispute is also not sustainable  as per observation of Hon’ble Supreme court reported in 2004-CTJ-1-S.C (Secretary Thirumurugan Co-operative Agriculture Society Vrs.M. Lalitha wherein it is held that :

      “ Arbitration clause is no bar for entertaining the dispute by the Fora. As such this Fora  has power to decide the present dispute .”

As regards the other  grievance of the petitioner we have gone through the documents which are filed from both the parties. As regards the down payment we do not found any documents / money receipt  from the side of the petitioner to prove that the petitioner has paid  the down payment directly from the O.Ps. rather as per  money receipt  the down payment directly has been paid to Swapna Motors. In the present dispute Swapna motors is a necessary party to clarify under what circumstances less amount has been paid as  down payment to the financer . But in such situation the petitioner could have impleaded Swapna Motors as a necessary party.

                        As regards the  grievance regarding repossession of the alleged vehicle  on the road by some unknown muscle man without prior notice as alleged by  the petitioner we are in the opinion that though the O.Ps. are empowered as per term and condition of the agreement to seize and sale the financed vehicle  in case of default of monthly installments but such seizure and sale must be as per law as per  observation of Hon’ble  Supreme court reported in 2007(36) OCRSC-815 (Manager ICICI Bank Ltd Vrs.Prakash Kaur & Others) In this contest we make it clear no where the hypothecation agreement of the alleged vehicle empowers the O.ps to take such action violating the guide line of Hon’ble Supreme court  and the Hon’ble National Commission and the Hon’ble State Commission ,Delhi reported in 2012(2) CLT72(SC),2007(3)-CPR-191, 2005-CTJ-522 respectively. ( Citicrop Maruti Finance ltd, Vrs.S.Vijaya Laxmi ) wherein it is held that;

                        “ Seizure of the vehicle must be through court .”

But the O.Ps. without following the proper procedure has seized the vehicle.

                        Further the  issue regarding Insurance , after verification of  the documents filed from both the sides it is cristal clear that the petitioner has registered the vehicle as commercial category and the R.T.O also issued the permit in respect of the alleged vehicleas contract  carriage. The first year insurance has been done by the petitioner as commercial category. But the documents which are filed from the side of the O.Ps. indicates that the O.Ps. have received Rs. 40,500/- for 2^nd and 3^rd year premium amount for insurance from the petitioner . Apart from it is also not disputed that the financer (O.Ps) have  insured the alleged vehicle as private category for 2^nd and 3^rd year paying the  premium amount of Rs.21118 though the petitioner has  paid the Insurance premium Rs.40,500/-. As against such factual aspect supported with relevant documents which are filed from both the parties it is not known under what circumstances the O.Ps. have insured the alleged vehicle as private car and  how the O.Ps have taken the plea in the written version that the petitioner has registered the vehicle as  private car. This is nothing but clear deficiency in service as well as unfair trade practice on the part of the O.Ps. . The above view is supported by a decision reported in 2013(4) CPR-247(NC) (Indian Overseas Bank represent by Sr. Manager Vrs. Sheela & Other) wherein it is held that:

                        “ Bank has to pay for taking wrong insurance policy.”

Accordingly the dispute is allowed against the O.Ps. as per order stated below:-

                                                            O R D E R

                        In the result the dispute is allowed against the O.Ps. The O.Ps. are  directed to refund the excess Insurance premium Rs. 19,182/-  which has been  taken from the petitioner with 12% interest from the date of filing of the present dispute till its realization . The O.Ps are also directed  to pay Rs.20,000/- (twenty thousand) as compensation which will be paid along with the excess insurance premium failing which the petitioner is at liberty to take proper step as per law.    

         This order is pronounced in the open Forum on this the 25th day of August ,2015. under my hand and seal of the Forum.                                                                                                             

 

(Shri Biraja Prasad Kar )                                                            (Shri Pitabas Mohanty)                                                         

            President.                                                                                       Member.                                                                      

                                                                                       Typed to my dictation & corrected by me                                                                                                                                                            

 

 

 (Miss Smita Ray)                                                                      (Shri Pitabas Mohanty)                                                          

         Member.                                                                                         Member.