DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 329 of 30-05-2014

Decided on : 29-09-2016

Rajwinder Singh S/o Sh. Maghar Singh, R/o Vill. Gil Patti, Tehsil & District Bathinda.

…...Complainant

Versus

1. Tata Motors Finance Co. Ltd. TMFL, Ludhiana Branch through its Divisional Manager

2. Tata Motors Finance Co. Ltd., Bathinda, through its Branch Manager

3. Tata Motors Finance Co. Ltd.,S. Think Techno Compus Building A, 2nd Floor, Pakhnan Road No. 2, Thana West 400 601 through MD/Chairman

    

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh. Pahwa, President

Sh. Jarnail Singh, Member

Present :

For the complainant : Sh. Satwir Singh, Advocate.

For the opposite parties : Sh. Varun Gupta, Advocate.

O R D E R

M. P. Singh Pahwa, President

1. Rajwinder Singh, complainant (here-in-after referred to as ' complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Tata Motors Finance Company and another (here-in-after referred to as 'opposite parties).

2. Briefly stated, the case of the complainant is that he is permanent resident of Vill. Gill Patti, Tehsil & Distt. Bathinda. In order to earn livelihood for himself and his family, he purchased a Heavy Goods Vehicle i.e LPS4016 Multi Axle (Trailer) bearing engine No. MAT447212AAN05084 and Chassis No. MAT447212AA by taking loan from the opposite parties vide Contract Agreement No. 5000627417. After purchasing the said vehicle, the complainant got the said vehicle registered in his name vide registration No. PB-03W-7402 and hypothecation of said vehicle was in the name of the opposite parties. After purchasing vehicle, the complainant started plying the same on hire purchase basis and paying amount of installments to the opposite parties. This vehicle is only source of livelihood of complainant and his family. The complainant has been making payment of the installments to the opposite parties from time to time but due to some unavoidable circumstances and financial crises, he could not repay some installments in time, although he had always been ready and willing to make payment of installments. As such, the opposite parties started pressurizing him to settle the loan account in full and final. The complainant expressed inability to clear the entire loan amount in one time settlement. He requested the opposite parties to grant some time to him but to no effect. The opposite parties rather illegally and forcibly took possession of the vehicle in question on 17-7-2013 by taking law in their own hand. Since then the vehicle is in the custody of the opposite parties. Even after 17-7-2013, the complainant has been depositing the amounts with the opposite parties from time to time. He has been requesting the opposite parties to hand over the custody of the vehicle in question to him as it is the only source of his and his family's livelihood. The opposite parties did not pay any heed to the request of the complainant and have been putting the matter off under one or the other pretext. The complainant has already deposited lakhs of Rupees with the opposite parties against aforesaid loan agreement regarding Trailer in question but still the opposite parties are handing over back possession of the vehicle to the complainant. They are threatening the complainant to dispose off the same on throw away price to recover their alleged outstanding dues.

3. It is alleged that due to this act of the opposite parties, complainant has suffered great mental tension, agony, botheration, harassment, humiliation, loss of reputation besides suffering huge financial loss. He is entitled to compensation for the same from the opposite parties to the tune of Rs. 1,00,000/- in addition to cost of litigation amounting to Rs. 5500/-.

4. On this backdrop of facts, the complainant has alleged deficiency in service on the part of the opposite parties. Hence, this complaint.

5. Upon notice, the opposite parties appeared through their counsel and contested the complaint by filing joint written reply. In written reply the opposite parties have pleaded that Tata Motors Finance Company Limited is a Company registered under the Companies Act, 1956 and also with Reserve Bank of India U/S 451A of Reserve Bank of India Act, 1934. It is having its registered office at Bombay House 24, Homi Modi Street, Hutatma Chowk, Mumbai. It provides financial services of repute with operation spread out all over the country. As a part of its business, the company offers various financial facilities to its customers. The opposite parties denies all the allegations in the complaint except those which are specifically admitted hereinafter in this reply. Nothing stated in the reply should be deemed to be admitted merely because the same is not specifically traversed. Anything stated in reply contrary to and/or consistent with what is stated in the present reply be deemed to be expressly denied.

6. It is further pleaded that in order to secure the amount of loan advanced to a customer, an agreement is executed between the parties and by the very nature of agreement, it is pure and simple a non-statutory contract. There is no scope of interference by this Forum in such contractual matters and the remedy is to seek the assistance of civil court.

7. Thereafter opposite parties raised legal objections that relation between the complainant and the opposite parties is that of Debtor and Lender. The complainant is not consumer. That this Forum can pass the judgement against the appellant (opposite parties) if this Forum comes to the conclusion that opposite parties have adopted unfair trade practice or remains negligent in its services towards the consumer. Without deciding above two aspects, this Forum cannot pass any order against opposite parties. That as per clause 23 of the agreement executed between the parties, the matter is required to be settled by arbitration in accordance with the Arbitration and Conciliation Act, 1996 and the award of the arbitrator shall be final and binding on all the parties. That as per Section 24 of the agreement jurisdiction of this matter lies in Mumbai only. To support this submission, opposite parties also referred some case law, reproduction of which is not considered necessary at this stage.

8. The other legal objections are that the contents of the complaint are mis-conceived, misleading and after thought. Complaint is not maintainable in the present Forum. Complainant has no cause of action to file the present complaint. He has not come to this Forum with clean hands and has suppressed material facts. That intricate question of law and facts are involved in this case. Parties have to lead their evidence by examining the witnesses which are to be cross examined by the other party. The procedure under the 'Act' is summary in nature and complaint, if so advised, may file civil suit seeking alleged relief. That there is no deficiency in service on the part of opposite parties nor any deficiency in service has been alleged. As such, complainant is not consumer and complaint is liable to be dismissed. As the complainant is not consumer, this Forum has no jurisdiction to entertain and try the complaint. That complainant is estopped from filing the present complaint by his own acts, conduct, omission and acquiescence. That complaint is false, frivolous and vexatious in nature and has been filed in order to cause undue harassment to the opposite parties. As such, the complainant is liable to pay penalty as provided under the 'Act'.

9. On merits, it is admitted that complainant purchased a Truck and for that he got financial assistance from the opposite parties. The vehicle is hypothecated against financial assistance in the name of the opposite parties. It is further mentioned that complainant is plying the said vehicle as per terms and the loan cum Hypothecation agreement. He has made false story just to get undue benefit from this Forum. Relation between the complainant and opposite parties is that of debtor and lender. Complainant is not consumer. Under the hire-purchase transaction the financier does not render any service within meaning of 'Act'. Complainant is not consumer within the meaning of 'Act'.

10. It is alleged that complainant has not regularly paid the installments as per terms and conditions of the agreement. He was a chronic defaulter. The opposite parties approached complainant on various occasions for regular payment. The complainant failed to adhere to the terms of the loan agreement and was not prompt in repayment of his loan EMIs.

11. It is further pleaded that opposite parties had never taken possession of the financed vehicle. It is still in the possession of complainant and complainant has filed false complaint against opposite parties by making false allegations relating to the confiscation of the vehicle. It is also admitted that opposite parties received some installments from the complainant but still he is irregular in repayment of his loan installments. All other averments of the complainant are categorically denied. In the end, the opposite parties prayed for dismissal of complaint.

12. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavits dated 26-5-2014 and 27-10-2014 (Ex. C-1 & Ex. 6 respectively), photocopy of inventory of items in vehicle (Ex. C-2), photocopy of registration certificate (Ex. C-3), photocopy of payment receipt (Ex. C-4), photocopy of contract details (Ex. C-5), photocopy of letter (Ex. C-7), affidavit of Baljinder Singh dated 3-11-2014 (Ex. C-8), photocopy of statement (Ex. C-9), photocopy of notice (Ex. C-10), photocopy of KYC (Ex. C-11), photocopy of agreement (Ex. C-12), photocopy of Power of Attorney (Ex. C-13) and photocopy of letter (Ex. C-14), photocopy of police report (Ex. C-15) and photocopy of verification (Ex. C-16).

13. In order to rebut this evidence, opposite parties have tendered into evidence affidavit dated 26-5-2015 of Jaswant Singh (Ex. OP-1/1).

14. Learned counsel for the complainant has also submitted written arguments.

15. We have heard learned counsel for the parties and gone through the record and written arguments of the complainant.

16. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that it is not disputed that complainant purchased the vehicle in question with financial assistance of the opposite parties and complainant executed agreement of hypothecation. The complainant has alleged that on 17-7-2013 the opposite parties took possession of the vehicle in question forcibly and the opposite parties have failed to return possession of the vehicle. The complainant is suffering for this act of the opposite parties. Even if the complainant has defaulted any payment of the installment, the opposite parties are having remedy as per agreement and they cannot take possession of vehicle. The opposite parties have denied having taken possession of the vehicle but the complainant has placed on record photocopy of Inventory of items in vehicle (Ex. C-2). This document proves that possession of vehicle in question was taken from the complainant on 17-7-2013. Although as per this document, possession was taken by Shivam Associates. This document also proves that possession of the vehicle was taken in connection with the agreement No. 5000627417 and this agreement relates to financial assistance obtained by the complainant. The registration number of vehicle is also mentioned in this document. This document also proves that at the time of taking possession of the vehicle, it was in running condition and in good condition. The opposite parties have simply denied from having taken possession of vehicle but this fact stands proved from Ex. C-2. The opposite parties have not asserted any legal right for re-possession of the vehicle. As such, the act of the opposite parties in taking possession of the vehicle is patently illegal. This amounts to deficiency in service and unfair trade practice on their part.

17. It is further submitted by learned counsel for the complainant that Receipt Ex. C-4 is issued by opposite parties. This receipt further proves that complainant has given payment for hire-purchase agreement. Statement of Account Ex. C-5 (contract details) further proves that complainant used to pay the installments even after 17-7-2013 i.e. date of taking possession and complainant has paid huge amounts thereafter. The complainant has also reported the matter to the police vide application Ex. C-7. In case the opposite parties have not taken possession of vehicle, complainant was having no reason to move this application. Although police report is not in favour of the complainant but the fact stand proved that complainant reported the matter to the police when his vehicle was taken into possession forcibly and illegally by the opposite parties. The opposite parties have flatly denied from having taken possession of the vehicle. They have not asserted any justification for taking possession of vehicle. Therefore, deficiency in service and unfair trade practice on the part of the opposite parties stands proved. Complainant is entitled to the relief prayed for.

18. In support of his submission, learned counsel for the complainant has cited :-

    (i) I (2009) CPJ 368 (NC) case titled Tata Motors Ltd., Indrasen Coubey & Ors.,

    (ii) IV(2008) CPJ 215 case titled Escorts Consumer Credit Ltd., & Anr Vs. R.A. Vineela (Smt.)

    (iii) III (2010) CPJ 384 (NC) case titled Magma Fincorp Limited (Formerly Magma Leasing Finance Ltd.) Vs. Ashok Kumar Gupta

    (iv) I (2010) CPJ 155 (NC) case titled Magma Fincorp Limited Vs.Vijay Kumar

    (v) III (2011) CPJ 88 (NC) case titled Magma Leasing Limited Vs. Prasan Mohapatra

    (vi) III (2011) CPJ 427 (NC) case titled Magma Fincorp Ltd. Vs. Samarendra Nath Roy

    (vii) IV(2010) CPJ 402 (NC) case titled L&T Finance Ltd., & Anr. Vs.Vithal @ Vithoba

    (viii) III (2009) 53 (NC) case titled Naeem Bhai Vs. Mohd. Anwar & Ors

    (ix) III (2009) CPJ 40 (NC) case titled HDFC Bank Ltd.,Vs Balwinder Singh

    (x) III (2008) CPJ 317 (NC) case titled Raj Cello Chem Products Pvt. Ltd., Vs. Punjab and Sind Bank & Anr

    (xi) II(2007) CPJ 45 (SC) case titled Orix Auto Finance (India) Ltd., Vs. Jagmander Singh & Anr

    (xii) IV(2008) CPJ 217 (NC) case titled Saroj Vs. Mahindra & Mahindra Financial Service Ltd.,

    (xiii) IV (2008) CPJ 215 case titled Escorts Consumer Credit Ltd., & Anr Vs. R.A. Vineela (Smt.)

    (xiv) III(2008) CPJ 65 (NC) case titled Tata Finance Ltd., Vs. Rancis Soeiro

    (xv) I (2007) CPJ 34 (NC) case titled Installment Supply Ltd., Vs. Kangra Ex-Serviceman Transport

19. On the other hand, learned counsel for the opposite parties has submitted that this Forum has to decide the complaint on the basis of averments made by the complainant and the relief claimed by the complainant. Of course, it is not disputed that complainant got his vehicle financed from the opposite parties and executed agreement of hypothecation. The complainant has placed on record copy of agreement (Ex. C-12). The schedule of payment as per agreement was 46 monthly installments of Rs. 45,006/- and last i.e. 47^th installment of Rs. 45,027/-. The complainant has neither pleaded nor proved that he used to pay EMI regularly. The main allegation of the complainant is that on 17-7-2013, the opposite parties took possession of vehicle in question forcibly and since then the vehicle is in possession of the opposite parties. The opposite parties have categorically denied from having taken possession of the vehicle from the complainant. The relief claimed by the complainant is for directions to the opposite parties to handover possession of the vehicle to the complainant with immediate effect. The other reliefs are consequential to the main relief. Therefore the entire controversy is whether the opposite parties took possession of the vehicle forcibly as alleged by the complainant. The complainant has relied upon Inventory of Items (Ex. C-2) to prove that opposite parties have taken possession of the vehicle. This document is not signed by any authorized representative of the opposite parties. This document is purportedly issued by Shivam Associates. Therefore, as per this document the vehicle was taken into possession not by the opposite parties and by some other person. In order to decide this fact the presence of Shivam Associates was required but they are not impleaded as party.

20. The complainant has also relied upon police report Ex. C-15. This document relied upon by complainant himself demolishes his entire case. This report is result of the application moved by the complainant to the police for registration of FIR against opposite parties and others. The allegation in this application was also that his vehicle was taken into possession by the opposite parties. As per police report, the complainant with his consent has handed over the vehicle to M/s. Preet Transport, Ludhiana but the complainant has not sought any relief against M/s. Preet Transport, Ludhiana. Therefore, the complaint of the complainant is patently illegal and is liable to be dismissed.

21. We have carefully gone through the record, case law cited by learned counsel for the complainant and have considered the rival contentions.

22. It is well settled that matter has to be decided in the light of material averments of the complainant and the relief claimed by him. It is not disputed that complainant purchased his vehicle and got it financed from the opposite parties. The crux of the allegations of the complainant is that on 17-7-2013 the opposite parties forcibly and illegally taken possession of the vehicle in question and the vehicle is still in their possession. The opposite parties have denied from having taken possession of vehicle. The main relief claimed by the complainant is for directions to the opposite parties to handover possession of the vehicle to the complainant with immediate effect. Of course the complainant has also claimed compensation to the tune of Rs. 1,00,000/- and litigation expenses amounting to Rs. 5500/- but both these reliefs are consequential reliefs. Therefore, the entire controversy revolves around the fact that whether on 17-7-2013, the opposite parties took possession of the vehicle from the complainant forcibly and illegally and whether the vehicle is still in possession of the opposite parties. The complainant has relied upon 'Inventory of Items in Vehicle' (Ex. C-2) to prove that vehicle was taken into possession by the opposite parties but this document is not signed by any authorized representative of the opposite parties. This document bears stamp and signatures of Shivam Associates and signed on behalf of Shivam Associates. It is not the case of the complainant that Shivam Associates is authorized agent of the opposite parties. Shivam Associates is also not impleaded as party.

23. The complainant has also placed on record copy of letter Ex. C-7 to prove that he reported the matter to police but this letter is sent by registered post on 13-5-2014 i.e. after about 10 months after alleged possession by the opposite parties. The complainant has also placed on record report Ex. C-15. When the complainant himself has relied upon the documents, he cannot impugne correctness of these documents. The report Ex. C-15 is the result of inquiry conducted by police on the basis of application moved by the complainant for registration of FIR against opposite parties and other persons for offences under section 420, 465, 467, 468, 471, 148, 149, 379, 120B IPC. As per investigation it was found that till 17-7-2013 the vehicle remained with the complainant. Thereafter complainant handed over the vehicle to M/s. Preet Transport, 73-A, Sarabha Nagar, Ludhiana with his consent and they deposited Rs. 65,000/- as installment with the opposite parties on 30-7-2013. Thereafter the complainant furnished affidavit dated 2-8-2013 regarding transfer of vehicle in favour of M/s. Preet Transport, Ludhiana. In his affidavit, the complainant has deposed that in future M/s. Preet Transport will be responsible for the installments and other liabilities and NOC and Form No. 35 be issued in favour of M/s. Preet Transport after clearance of loan. It is also reported in this report that Tejpal Singh of M/s. Preet Transport, Ludhiana, has produced receipts to prove that he paid due amount with the opposite parties and the vehicle was got transferred by Tejpal Singh in the name of his firm M/s. Preet Transport, Ludhiana by DTO, Ludhiana.

24. Therefore, the conclusion is that the documents relied upon by the complainant himself belies his version that the opposite parties forcibly took possession of the vehicle in question on 17-7-2013. These documents also prove that complainant himself has transferred his vehicle in favour of M/s. Preet Transport, Ludhiana and it has been registered in the name of transferee. In these circumstances, the prayer of the complainant that opposite parties be directed to deliver possession of the vehicle to the complainant is not sustainable and this relief cannot be granted. When the complainant is not entitled to main relief, he is also not entitled to compensation which is consequential relief only.

25. Keeping in view the facts, circumstances and the evidence placed on file by the parties, this Forum is of the considered opinion that the complainant has failed to prove alleged deficiency in service or unfair trade practice on the part of the opposite parties. Hence, this complaint fails and is hereby dismissed with no order as to costs.

26. The complaint could not be decided within the statutory period due to heavy pendency of cases.

27. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    29-09-2016

    (M.P.Singh Pahwa )

    President

     

     

     

    (Jarnail Singh )

    Member