Date  : 22.11.2012

Per Mr.K.B.Gawali, Hon`ble Member.

1.       Appellant  No.1 & 2 are original opponent No.2 & 3 who have filed this appeal against the judgment and order dated 28.01.2008 passed by Dist.Forum Hingoli in C.C.No.69/07. Respondent No.1 is the original complainant (herein after termed as “Complainant”), respondent No.2 is the original opponent No.1 who is dealer of tractor(hereinafter termed as “dealer”) and respondent No.3 is original opponent No.4 which is insurance company (hereinafter termed as “Insurance Company”).

2.       The facts of the case in a nutshell are that complainant is a farmer having agriculture land of 47R and resident of Hingoli District.  He purchased Mahindra Sarpanch tractor from the dealer for which he paid Rs.60,000/- on his own and also obtained a loan from appellant  financer and entered into an agreement on 20.11.2006. That, as per agreement rate of interest was of 12.85% .  The loan was to be repaid in six monthly 10 instalments each of being Rs.68,995/-.  That, the tractor and trolly was given in the possession of complainant on 19.10.2006. That, complainant also paid Rs.25,000/- as premium of insurance policy obtained from Insurance Company covering the risk of said tractor and trolly for the period 28.12.2006 to 27.12.2007.  That, first instalment was due to be paid during 20.4.2007 to 19.10.2007 out of which he paid Rs.20,000/- on 19.7.2007 and remaining amount of Rs.67,000/- was assured to be paid by him before 19.10.2007. That however, appellant  and dealer repossessed the tractor and trolly bearing registration No.MH38B-1281 & MH38C-662 respectively on 11.8.2007 forcefully with the help of gundas.  Complainant approached appellant  to deposit balance amount of first instalment of Rs.67,000/- and second instalment of Rs.87,000/- i.e. total amount of Rs.1,54,000/-.  However the same was not accepted and tractor and trolly were sold out which caused considerable financial loss to him. He therefore filed complaint before Dist.Forum claiming compensation of Rs.1,52,000/-.  In addition the complainant had also claimed total value of tractor and trolly from Insurance Company as per terms of the policy. 

3.       Appellant  No.1 & 2 appeared before the Forum and resisted the claim. It was contended that to avoid liability of repayment of loan complainant had filed false complaint. It was further contended that as per loan agreement if any dispute arises about the loan it was to be referred to the court within the jurisdiction of Mumbai city.  Hence complaint is barred by jurisdiction.  That, even Dist.Forum below had no jurisdiction on the point of settlement of account. It was also contended that complainant himself admitted about business loss of Rs.50,000/- which goes to prove that tractor and trolly was purchased for commercial purpose hence he was not a “consumer”. It was submitted that complainant failed to pay first six monthly instalment of Rs.85,768/- which was due on 20.5.2006.  That, the notice was issued to the complainant demanding outstanding amount.  That, the complainant though assured to pay the same on 10.8.2006 failed to comply his said assurance. It was averred that complainant himself on his own surrendered the tractor and trolly as he was unable to pay instalments. That, even after surrender of tractor and trolly, complainant was given sufficient opportunity to pay outstanding instalment of Rs.1,51,678/- but failed to pay the same, hence said tractor and trolly was sold out on 30.10.2007 for Rs.3,85,000/- and yet there was outstanding amount of Rs.2,53,667/- against the complainant.  It was therefore contended that there was no deficiency in service or unfair trade practice on the part of appellant and that the complaint being false be dismissed.

4.       Dist.Forum on the basis of available material and on hearing parties passed the impugned judgment and order by which the complaint is allowed and appellant along with dealer have been directed to pay jointly and severally Rs.50,000/- with interest @ 12% p.a. from 19.1.2007, further amount of Rs.50,000/- as punitive damages, Rs.10,000/- as mental agony and cost of complaint. In addition it was declared that amount of Rs.2,53,467/- as claimed by appellant  is not recoverable from the complainant.  Dist.Forum also directed to the Insurance Company to pay Rs.5000/- to the complainant for not making available the copy of insurance policy  to the complainant.

5.       Discontented and dissatisfied with the said judgment and order present appeal is filed in this Commission by appellant company which was finally heard on 18.10.2012.  Adv.Shri.S.G.Shirsikar was present for appellant, none was present for respondent No.1 i.e. original complainant, respondent No.2 i.e. dealer was ordered exparte whereas Adv.V.R.Mundada was present for respondent No.3 i.e. Insurance Company. We have heard respective counsels at length and appeal was closed for orders.

6.       Learned counsel Shri.Shirsikar submitted that as per loan agreement as executed in between appellant  and complainant the repayment of loan was to be repaid in 10 equal instalments each being of Rs.85,738/-. However he failed to pay first instalment even within the time limit though he had undertaken to pay. Hence notice dated 18.7.2007 & 25.10.2007 were given to the complainant.  But complainant failed to pay outstanding dues and surrendered the vehicle on his own. Even after the surrender of the vehicle  complainant was given sufficient opportunity to pay dues but failed to pay the same and hence finally said tractor and trolly was sold out.  He therefore pointed out that there is no deficiency in service or unfair trade practice as alleged by complainant.  But Dist.Forum neglected the defense of the appellant  and has erroneously passed the impugned judgment and order which be quashed and set aside to their extent.

7.       Adv.V.R.Mundada for respondent No.3 Insurance Company argued that cost of Rs.5000/- as directed by Dist.Forum was without any base and hence order to the extent of Insurance Company be quashed.

8.       We have perused the papers before us and also oral submissions as put forth by learned counsels of the respective parties. Main question before us for our consideration and decision is whether order passed by Forum is proper and justifiable. To decide this question, we have to decide first, whether appellant  committed deficiency in service and/or unfair trade practice in repossessing and selling of the said tractor and trolly. As per clause No.2.1(h) of agreement, the complainant i.e. borrower was supposed to pay one instalment in advance as mentioned above.  Each insalment was of Rs.85,738/- and first instalment was due to be paid as on 19.5.2006.  Thus on 19.5.2006 complainant was to pay aggregate amount of Rs.1,61,276/- for two instalments.  However complainant had paid only Rs.20,000/- out of said outstanding amount and had assured to pay balance amount of Rs.1,41,276/-  (The appellant in it`s written version has given this amount as Rs.1,51,476/-) by 10.8.2006.  However complainant failed to pay this outstanding amount. That, as per clause No.12.1(II) of the said agreement, if there is default on the part of borrower, finance company is authorized to repossess the vehicle. In the present case, it is clear that complainant was in arrears of above said amount. Although the complainant has denied to have surrendered the said tractor and trolly and contended to have taken forceful possession, the said contention has not been proved in absence of any cogent evidence such as police complaint etc. to that effect. We have observed that before repossession of the tractor and trolly the notice dated 18.7.2007 & 25.10.2007 have been given to the complainant demanding outstanding amount and on failure to pay the said amount, the tractor and trolly was repossessed and sold.  Thus we do not find deficiency in service on the part of appellant  finance company in repossessing and also selling of said tractor and trolly. Dist.Forum however has not appreciated the evidence on record and has wrongly held finance company as liable for the compensation. We are therefore inclined to quash and set aside the judgment and order as passed by Dist.Forum to the extent of Insurance Company. Considering the above said facts and observation and also citation we pass the following order.  

                                                 O   R    D    E     R

1.                 Appeal is allowed. 

2.                 The judgment and order passed by Dist.Forum to the extent of appellant  is hereby quashed and set aside.

3.                 Complaint stands dismissed to the extent of appellant.

4.                 No order as to cost.

5.                 Copies of the order be sent to both the parties.

Pronounced on dt.22.11.2012.