State Consumer Disputes Redressal Commission
Cholamandalam Investament And Finance ... vs Shri Dattatraya Keshavrao Tayade on 10 February, 2015
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STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA NAGPUR CIRCUIT BENCH
NAGPUR
First Appeal No. FA/12/317
(Arisen out of Order Dated 16/06/2012 in Case No. cc/12/23 of District Forum,
Akola. )
Cholamandalam Investment And Finance
Company Limited. A Company incorporated
Under the Companies Act 1956 having its
Registered Office at Dare House 2 N.S.C. Bose
Road, Parrys, Chennai-600 001 and having its
Branch Office at Ajni, Nagpur through its
Authorized Representative and Manager(Legal)
Shri Suneet s/o. Devendra Medha, R/o. Nagpur. ...........Appellant(s)
Versus
Shri Dattatraya Keshavrao Tayade
R/o. Navin Basti, Shivar,
Sharad Nagar, P.O. Shivani,
Tah. And Distt. Akola. ........Respondent(s)
BEFORE:
HON'ABLE MR. B.A.Shaikh PRESIDING MEMBER
HON'BLE MR. S.B.SAWARKAR MEMBER
For the Appellant: Adv. Mr. Manish Meshram
For the Respondent: Adv. Mr. S.B. Choure
ORDER
(Delivered on 10/02/2015) Per Mr. S. B. Sawarkar, Hon'ble Member.
1. The instant appeal is filed against the order of the Forum, Akola passed on 16/06/2012 in CC No. 23/2012 granting the complaint, directing the opposite party (for short O.P.) to either return the vehicle in question to the complainant till 30/06/2012 or to return the depreciated cost of the vehicle of Rs.5,44,000/-. Also to provide no objection certificate and the hypothecation papers with cost of 2/7 the Rs.2,000/- and not to charge flat rate of interest to any of the borrower. Also file the compliance report by 15/07/2012. If the above order is not complied with till 30/06/2012 then the O.P. to pay Rs.1,000/- per day as additional compensation till full compliance of order.
2. Brief matrix of the complaint is that the complainant took the loan from O.P. No1- a vehicle financial company , Chennai and O.P. No.2 a branch of it at Akola of Rs. 507000/- on 07/10/2008 to purchase a Cruizer Vehicle for passenger plying. He was supposed to pay installments of loan at the rate of Rs.14,700/- per month on 1st of each month till 01/09/2012. Till the time of filing complaint he paid Rs. 4,50,000/-. He was renting the vehicle at the rate of Rs.1000/- per day and thus was earning his livelihood and paying the installments. However, he made complaint to Forum that O.P. No.2 attached his vehicle on 19/08/2011 at the behest of O.P. No.1 when only Rs. 57,000/- had remained to be repaid. The O.P. sold the vehicle and is being plied by another person. He therefore, gave a notice to O.P. on 12/01/2012. However, as he did not get a reply he filed complaint before the Forum alleging deficiency in service with a request to direct the O.P. Nos. 1&2 to return the vehicle in question or to provide the entire cost of the vehicle. Further to pay Rs. 1000/- from 20/08/2011 till 15/11/2011 thus Rs. 1,47,000/- with a interest at the rate of 15% and compensation of Rs.25,000/- towards physical and mental harassment with Rs. 5,000/- as cost of the complaint.
3. O.P. Nos. 1&2 on notice appeared before the Forum and vide written version countered the complaint admitting about the loan, interest, repossession of the vehicle and selling it to recover the balance loan amount. However, the O.P. Nos. 1&2 denied the regular depositing of installments by the complainant and the amount submitted by him. The O.P. Nos. 1&2 submitted that they had financed the vehicle by signing proper agreement with flat rate of interest and with the conditions to charge penal interest for delay, visit, dishonoring of cheque 3/7 etc. The complainant had agreed to deposit the EMI regularly. However, he was irregular in payment of loan and therefore the O.P. Nos. 1&2 gave notice on 13/06/2011 to deposit the part remaining loan amount of Rs.92,672/-. The complainant did not pay the amount hence, repossessed the hypothecated vehicle on 19/08/2011 by giving information to Police. O.P. No. 1 gave a notice on 23/08/2011 with a request to deposit the remaining loan amount till 30/08/2011 of Rs.3,07,254/-. As the complainant did not deposit the amount and gave in writing to sell the vehicle it was sold and the proceeds were appropriated to repay the loan. The O. Ps. submitted to return the extra amount received in the sale of vehicle to the complainant.
4. The O.P. raised the argument that the issue of repayment of loan being complicated needs to be decided by the Civil Court. Also there is clause in the agreement that in case of dispute the issue to be resolved through the Arbitrator with jurisdiction at Chennai. As in view of such situation, the complaint is beyond the jurisdiction of Forum, Akola. Therefore, requesting to dismiss the complaint.
5. The Forum heard both the parties, perused the evidence and held as below that , a. The O.P. resorted to high rate of interest which is injustice with hidden atrocious charges.
b. The O.P. forcefully repossessed the vehicle and caused insult and injury to complainant.
c. The Arbitration clause and complicated nature does not survive before the statutory provisions of Consumer Protection Act and hence, the Forum is competent to try the complaint.
d. The replies of the O.P. were without any evidence and evasive hence, dis believable.
4/7Thus holding the O.P. to have caused deficiency in service, passed the order as above.
6. Aggrieved against the order, the O.Ps. filed the appeal before us hence, are appellants. The complainant is referred as respondent. We heard both the parties, perused the evidence and written notes of arguments.
7 The Advocate for the appellant reiterated the same version placed before the Forum, but submitted that the respondent was irregular in payment of installments and hence, the vehicle was repossessed as it was hypothecated by giving information to Police. As the respondent could not pay the remaining amount of loan and gave a letter to sell the vehicle, the vehicle was sold for Rs. 3,80,000/- on 01/12/2011 and the amount was appropriated to repay the loan and the remaining amount was credited to the account of respondent. The appellant further submitted that they had given all the documents to their advocate to submit before the Forum but did not know as to why they were not submitted during the pendency of the complaint before the Forum with written version. However, the Advocate submitted those documents with account of installments paid with a request to consider them in the appeal. The appellant also relied on the following judgments to justify their action.
a. State Consumer Commission, Maharashtra judgment in Mahindra and Mahindra Finance Vs. Sanjay Shivaji Padgham and others, reported vide 2013(1)CPR 163 (Mah.) wherein the Commission held no deficiency in service on the part of the finance company in repossessing and selling of the tractor if there is default on the part of the borrower to pay the loan.
b. National Commission Judgment, passed in Surendra Kumar Sahu Vs. Branch Manager, Indusind Bank Ltd., reported in 2013(4) CPR 313 (NC), wherein the Hon'ble Commission held that the seizure of vehicle for 5/7 default repayment of vehicle and the moment he did not pay the installments it gives right to financer to repossess the vehicle. Thus the appellant submitted that it had taken the action of selling the vehicle in default of repayment of loan by the respondent by giving proper notice. He had also given in writing to sale his vehicle. Appellant submitted the account and the agreement be considered. In view of the above judgments of the Commission the appeal be allowed and impugned order be set aside.
8. The Advocate of the respondent reiterated the complaint and submitted that the appellant had repossessed the vehicle and thus caused him mental and physical harassment and deprived him of his livelihood by illegally repossessing the vehicle which was registered in his name and a very small amount had remained to be repaid. Hence, the appellant had committed deficiency in service which was rightly appreciated by the Forum and had passed the order which needs to be confirmed being appropriate and well reasoned by levying cost.
9. We perused the documents filed by the respondent wherein we find that the respondent has not made any grievance regarding loan agreement rate of interest and the quantum and number of installments. He has only complained that the vehicle was repossessed only when Rs.57,000/- only had remained to be paid out of the loan taken. He submitted that he was earring Rs. 1000/- per day by renting the vehicle. He has given the first notice to appellant on 12/01/2012, i.e. after 3 and ½ months of repossession of vehicle on 19/08/2011. He has filed the complaint on 01/02/2012 within 20 days of sending the notice. There is letter given by him to appellant with a consent to sale the vehicle if he fails to deposit the entire outstanding loan.
10. It shows that the reasons recorded by the Forum about the flat rate of 6/7 interest, penal interest and other charges do not survive through the test of justice. The account filed by the respondent itself shows that he was not regular in repaying the installments and therefore incurred penal interest upon the loan amount. He submitted that he was earning Rs. 1000/- per day from the vehicle. Thus, earning around Rs. 30,000/- per month. Hence, it was not difficult for him to pay the installment of Rs.14,700/- per month on the first day which he has not done. He therefore, become a defaulter. In these circumstances in the light of judgments cited by the appellant the action of the appellant to give a notice to direct the respondent to deposit the remaining amount and repossession of vehicle and selling of it to recover the remaining loan amount cannot be called as deficiency in service. In view of the these facts on record the reasoning of the learned Forum does not survive and the order of the Forum deserves to be set aside, being devoid of appropriate appreciation of the grounds raised in complaint and countered in written version.
11. Thus on the background of the reason recorded above and in the light of the two judgments cited by the appellant, we find that the reasons recorded by the Forum were not based on the proper appreciation of the facts and the grounds complained of by the respondent. Therefore, the order needs to be set aside.
12. On the basis of the grounds stated above, the appellant can not be attributed with blame of deficiency of service and hence their appeal deserves acceptance. We also find no reason to grant any cost to the appellant and hence pass the order as below.
ORDER
i. The appeal is partly allowed.
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ii. The impugned order thus is set aside and complaint dismissed.
iii. Parties to bear their own cost.
iv. Free copy of the order be sent to both the parties.
[HON'ABLE MR. B.A.Shaikh]
PRESIDING MEMBER
[HON'BLE MR. S.B.SAWARKAR]
MEMBER
ay