DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KANDHAMAL, PHULBANI

C.C.NO. 21 OF 2022

                                                                                                                            Date of Filing: 30.06.2022

                                                                Date of Order: 14.03.2023

Sri Trinath Majhi, s/o Basista Majhi,

At-Kendupadar,

PO/PS- Phulbani Town,

District-Kandhamal, 762001.   …………………….. Complainant.

Versus.

Sri Subrata Kumar Purohit, Manager,

Sriram Finance Company Ltd. Near Hotel K.P.Salunki,

Penji Sahi, Phulbani, PO/PS-Phulbani Town

District-Kandhamal  PIN-762001      ……………….. Opp. Party.

Present: Sri Purna Chandra Mishra    - President.

                        Sri Sudhakar Senapothi          - Member.

For the Complainant: Mr.V.V.Ramdas, Advocate

For O.P.                   : Mr. Naresh Kumar Padhi, Adv. and Associates

JUDGEMENT

Mr. Purna Chandra Mishra, President.

          Complainant Trinath Majhi has filed this case U/s 35 of the CP Act-2019 alleging deficiency of service and unfair trade practice on the part of the O.P.for snatching away his vehicle by use of criminal force through hired muscle men without prior notice and praying therein for direction to the Opposite Party to pay a sum of Rs. 5,00, 000/- to him for the loss and harassment sustained by him.

1. Brief fact leading to the case is that, the complainant is an ex-service man who after his retirement to earn his livelihood by way of self-employment purchased one Maruti Swift Dzire Car with loan arrangement from Sriram Finance Company for consideration of Rs. 7,15,000/-. The complainant deposited a sum of Rs. 3, 15,000/- towards margin money and the rest amount was financed by the O.P. The complainant had to repay the loan amount with interest amounting to Rs. 5, 89, 000/- in 59 monthly installments of Rs. 14, 205/- each commencing from 15^th February, 2017. The monthly installments were to be paid till January-2022. Six numbers of post-dated Cheques were deposited with the Finance Company at the time of availing the loan. The complainant was running the business without any problem till May-2018. The vehicle met with an accident near Phulbani Sadar Police Station in which a sum of Rs. 1, 82, 000/- was spent towards repair of the vehicle and the complainant for that reason became a defaulter after May-2018. Again in the year 2021, the ill-fated vehicle met with another road accident near K.Nuagaon village and the complainant had to spend a sum of Rs. 1, 50, 000/- towards repairing cost and other expenses. For this reason, the complainant defaulted in payment of certain installments. Even after the accident, he deposited some installments and intimated his difficulties for non-payment of installments in time. But the Opposite Party did not consider his genuine difficulties. Till 06.09.2021, the complainant deposited Rs. 6, 36,725/-. But without considering his genuine grievance, his vehicle was snatched away by the Opposite Party through hire muscle men without prior notice and claimed a sum of Rs. 5, 89,000/- at once. When the complainant approached the Opposite Party for statement of accounts he noticed that lot of charges have been imposed and credited to the loan account of the complainant. It was revealed from the statement of accounts that on 07.03.2020, there is receipt of Rs. 2,30,000 through Cheque No. 106810 dt. 07.03.2020. But practically he was not having so much of money for clearing the Cheque. During the course of proceeding in Consumer Counselling centre, the Opposite Party Advocate clarified that there was a personal loan in the name of the complainant and accordingly, the above noted amount was deposited in his account. But actually, the complainant has no knowledge about the personal loan. Thereby, the Opposite Party committed fraud and is liable for legal action and has to pay heavy compensation. So also, their collection agent Pintu Moharana had collected regular installments and has misappropriated the money collected from him and is liable for payment of compensation for harassing the complainant. The Opposite Party snatched away the vehicle by use of criminal force through hired muscle men without prior notice and sold away the vehicle, created a personal loan in the name of the complainant and their authorized collection agent, swallowed the monthly installments collected from the complainant for which he was sufficiently harassed and therefore, the action of the Opposite Party amounts to deficiency in service and unfair trade practice for which he prays for compensation of Rs. 5, 00000/- for loss and harassment sustained by him.
2. On receipt of notice, the Opposite Party appeared through his Advocate and filed his written version. In his written statement, the Opposite Party stated that the complainant has filed one case before Permanent Lok Adalat, Phulbani bearing PLA Case No. 12/2022 for settlement of loan account. As per the agreement, the petitioner deposited a sum of Rs. 10, 000/- and he was issued with no due certificate for which the case is not maintainable as per Section 11 of Code of Civil Procedure as it has been filed during pendency of the petition before PLA, Kandhamal. It is further, submitted that the cost of the vehicle was Rs. 8, 39,659/- and the complainant deposited Rs. 3, 15,000/- as down payment to the show room and the remaining of Rs. 5, 89,000/- was advanced as loan and was to be repaid in 59 monthly installments of Rs. 14, 205/- each starting from 05.02.2017 the total of which comes to Rs. 8, 67,809/-. After the first accident, he availed insurance claim and the second accident was a created story and the vehicle was seized by police for illegal transaction of Ganja. The complainant had taken Rs. 11, 97,809/- in total from the Opposite Party. In spite of several notices, the complainant paid no head for which the vehicle was seized by following due procedure of law but not by goondas. The allegation of scolding is false and fabricated and created for the purpose of the case. The allegation that the Opposite Party has sanctioned a personal loan of Rs. 2,30,000/- without the knowledge and consent of the complainant is false and on the basis of his request, the loan was sanctioned and transferred to his loan account. It is further stated that he has not paid the installment regularly to Pintu Moharana and if at all it was deposited it is the duty of the complainant to file a case against Pintu Moharana. As the case has been decided in permanent Lok Adalat, Kandhamal the case is not maintainable and therefore is liable to be dismissed with costs.
3. The complainant in support of this case has filed a copy of the application form and copy of written application before Consumer Counseling Center, copy of Adhar Card, Voter I-Card, Pan Card, copy of statement of accounts, copy of the Job Card and Tax Invoice of the vehicle, copy of the order sheet of Counseling Centre, copy of the application made before PLA, Phulbani. On the other hand, the Opposite Party has filed the copy of the PLA Case No. 85 of 2021 between Trinath Majhi Vrs. Sriram Finance Company.
4. The first and foremost question relating to this case is regarding maintainability of the case before this Commission. The Opposite Party in his written statement has pleaded that the complainant has filed a similar case before Permanent Lok Adalat bearing Case No. 12 of 2022 which has been amicably settled between the parties and during the pendency of the case before the PLA, Kandhamal, he has filed another case on the same subject matter. During the course of argument, the learned counsel Mr. Padhi appearing for the Opposite Party forcefully submitted that the case is hit by res-judicata and therefore, be dismissed immediately without going to the merit of the case. On the other hand, the Learned Counsel appearing for the complainant argued that the case filed before PLA is of a different nature and the relief prayed for in both the cases are totally different. The case filed before the Hon’ble PLA, Kandhamal is for rendition of accounts and the present case is for deficiency in serve on the part of the Finance Company, unfair trade practice and for harassment caused to him. So, the nature and character of the case in both the cases are totally different and therefore, objection of the Opposite Party is not sustainable in the eyes of law.

The copy of the application filed before the learned PLA, Phulbani is on record. A bare reading of the application clearly goes to show that he has made the application for settlement of his accounts with the Finance Company. There is no allegation or prayer to adjudicate on the allegation of deficiency in service and unfair trade practice committed by the Opposite Party. A bare reading of the complaint petition and its prayer goes to show that the present complaint is for compensation arising out of the loss caused due to deficiency in service and unfair trade practice. As the matter relating to rendition of accounts is not within the purview of this Commission, the complainant has rightly raised this issue before the learned PLA, Phulbani and the matter has been amicably settled between them. Since the present allegation relates to deficiency in service, unfair trade practice and compensation for harassment, it is well with in the jurisdiction of this Commission and the objection raised by the Opposite Party on this score is not accepted and stands rejected.

5. The next point relating to this case is whether there is deficiency in service and unfair trade practice on the part of the Opposite Party. It is pleaded by the complainant that his vehicle is snatched away by hired musclemen by use of criminal force without prior notice. This content of the complainant is supported by affidavit. On the other hand, the Opposite Party claims that the vehicle has been seized following due procedure of law and it has not been seized by hired goondas and the content of the Opposite Party is also supported by affidavit. In the face of affidavit and counter affidavit, it is to be examined whether the Opposite Party has followed due procedure of law to seize the vehicle for non-payment of their dues. The Opposite Party in support of this case has filed a copy of the order passed in PLA case No. 85 of 2022 between the complainant and the Opposite Party. Besides that document, not a single scrap of paper has been filed by the Opposite Party in support of his pleadings. There is nothing on record to show that the complainant was served with due notice prior to the seizure of the vehicle and all other procedures have been complied as per RBI guidelines prior to the seizure of the vehicle and the procedures followed by the O.P. company in the post seizure period. In the absence of documentary proof, the pleadings of the Opposite Party holds no ground and we have no other option but to accept the allegations made by the complainant that his vehicle has been snatched away by use of criminal force through hired musclemen without prior notice.
6. The other allegations in the complaint petition regarding misappropriation of collection of the installments by the Agent Pintu Moharana and  releasing a sum of Rs. 2,30,000/- without the knowledge of the complainant and crediting it to their loan account are matters of fraud which needs to be investigated by the competent agencies created under law and it is not possible to take up these matters in a summary trial which involves lot of evidences. The complainant is at liberty to approach the appropriate forum for redressal of this particular grievance of misappropriation.
7. As the Opposite Party failed to produce a single scrap of paper to prove that due procedure of law has been followed to seize the vehicle they are found deficient in rendering service and also are liable for causing unfair trade practice for selling away the vehicle without following proper procedure. The conduct of the Opposite Party in the pre and post seizure period of the vehicle is very much suspicious and the complainant has been sufficiently harassed by the Opposite Party.
8. By such act of the O.P. the complainant has lost his source of income to earn his livelihood and to maintain his family. His hard earned money deposited as down payment is lost..
9. As a case of deficiency of service coupled with harassment is made out against the Opposite Party he is liable to compensate the petitioner and hence the order.

O R D E R

          The complaint petition is allowed on contest against the Opposite Party. The Opposite Party is made liable for causing deficiency in service, for practicing unfair trade practice and for causing harassment to the petitioner. The Opposite Party is directed to refund a sum of Rs. 3,15,000/- (three lakhs fifteen thousand)only the complainant which he had deposited as down payment with interest @12% per annum from the date of seizure of the vehicle till it is refunded to the complainant. The Opposite Party is further directed to pay a sum of Rs. 25,000/-towards deficiency in service & unfair trade practice & harrasement and a sum of Rs. 15, 000/- towards cost of litigation. The order is to be complied within a period of 30 days from the date of receipt of this order failing which the order as to cost and compensation shall carry interest @ 12% per annum from the date of order till its compliance.

                                                         Computerized & corrected by me.

         I Agree

     MEMBER                                                        PRESIDENT

Pronounced in the open Commissioner today on this 14^th day of March 2023 in the presence of the parties.  

     MEMBER                                                        PRESIDENT