State Consumer Disputes Redressal Commission
Prasan Mohapatra vs M/S. Magma Leasing Limited & Others on 26 December, 2006
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK C.D. CASE NO.154 OF 2002 Prasan Mohapatra, Son of Prabhakar Mohapatra, Secretary, Orissa Voluntary Association for Rural Socio Development, Kaliapat, P.O- Gope Kud, Via- Kujanga, Dist- Jagatsinghpur. Complainant. -Versus- 1. M/s. Magma Leasing Limited, A public limited Company, Represented by its Director, Regd. Office At- Magma House, 24 Park Street, Kolkata-700016. 2. Sagnik Swain, Regional Manager, Branch Office of M/s. Magma Leasing Ltd., Situated at Plot No.168/169-A, Bapuji Nagar, Bhubaneswar, Dist- Khurda. 3. Swadhin Swain, Recovery Officer, M/s. Magma Leasing Ltd., 168-169A, Bapujinagar, Bhubaneswar, Dist- Khurda. 4. B.N. Jena, Recovery Officer of M/s. Magma Leasing Ltd., Plot No.168/169-A, Bapuji Nagar, Bhubaneswar, Dist- Khurda. Opp. Parties. For the Complainant : M/s. C. Pattanaik & Assoc. For the Opp.party nos.1 to 4 : M/s. A.C. Swain & Assoc. P R E S E N T : THE HONBLE SHRI JUSTICE R.K. PATRA, PRESIDENT A N D SHRI SUBASH MAHTAB, MEMBER. O R D E R
DATE: -
26TH DECEMBER, 2006.
The complainant is the Secretary of a voluntary organisation called Orissa Voluntary Association for rural socio development. He has filed this complaint alleging deficiency in service on the part of the opposite parties claiming a total sum of rupees 12,00,000/- on different counts.
2. Briefly stated his case is that the Orissa Voluntary Organisation is a voluntary organisation formed for rural socio development. In order to carry out its objectives, it intended to purchase one vehicle from the financier opposite party no.1 M/s. Magma Leasing Limited. Accordingly the complainant got the vehicle Marshall of Mahindra and Mahindra make bearing registration no.OR-02M-4233 by executing hire purchase agreement on 02.12.1999 from the opposite party no.1. Against the total price of the vehicle amounting to rupees 4,52,246/- (rupees 3,69,146/- towards the cost of the vehicle and rupees 83,100/- as interest) he made down payment of rupees 92,146/- and the balance amount was scheduled to be paid on thirty six instalments at the rate of rupees 10,003/- per month. In terms of the agreement he was regularly paying the instalments through his banker by way of post dated cheques. On 26.02.2002 at about 7.30 p.m. when the vehicle was going to Bhubaneswar in connection with the work of the organisation, the opposite parties 2 and 3 claiming to be the recovery officers of opposite party no.1 stopped the vehicle on the way with the help of some hooligans and took away the vehicle forcibly by obtaining the signature of the driver on blank paper. On that day complainant was absent. On the next day (27.02.2002) when the driver informed him about the incident he lodged F.I.R. before the Mancheswar police station stating that the opposite parties forcibly took away the vehicle. As no action was taken by the police he filed a complaint in the court of S.D.J.M., Bhubaneswar. The vehicle was purchased on 02.12.1999 from the opposite party no.1 for rupees 3,69,146/- which was to be paid in thirty six equated monthly instalments. The last month for closing the instalment was November, 2002. By the date of seizure (26.02.2002) he had already paid total amount of rupees 3,75,175/- on twenty six instalments. By that time payment of future instalment had not arisen and the opposite parties without any justification took away the vehicle by exhibiting their muscle power. According to the complainant this amounts to deficiency in service.
3. The opposite parties have filed a joint written version. Their case is that the complainant failed/neglected in making payment of the instalments on due dates as stipulated in the agreement and by exercising of its right under clause 15 of the agreement they repossessed the vehicle. Their further case is that in the agreement there is an arbitration clause and since an alternative remedy is available the complaint is not maintainable. The opposite parties have also filed affidavit evidence sworn to by one P.N. Samal who is the recovery and legal assistant of opposite party no.1.
4. We have heard counsel for the parties. Counsel for the opposite parties submitted that in the meantime the arbitrator has given his award and prayed for adjournment of the case. We declined to give any adjournment because the opposite parties have not produced any document in support of initiation of arbitration proceeding. We may state here that merely because an alternative remedy by way of arbitration is available under the agreement it does not oust the jurisdiction of this Commission to take cognizance of the complaint on the ground of deficiency of service.
5. On perusal of the complaint, written version as well as the evidence by way of affidavit filed by the opposite parties the following undisputed facts emerge. On the basis of hire purchase agreement executed on 02.12.1999 between the parties the complainant made payment of rupees 92,146/-, first instalment of rupees 10,003/-, rupees 12,000/- towards insurance premium, rupees 6,000/- towards road tax and registration fee of the vehicle and rupees 3,000/- towards management fees in total rupees 1,23,149/-. He took delivery of the vehicle on the same day on payment of the aforesaid amount and an agreement was executed on 02.12.1999. The complainant made payment of the instalments as follows :-
Initial Payment CALCULATION SHEET 24.11.1999 Down Payment -92146=00 Insurance -12000=00 1st Instalment -10003=00 Registration - 6000=00 Management fees 3000=00 Rs.1,23,149=00 10.12.2000 Insurance (Cash) - 1443=00
6.1.2000 Clg through Bank -10003=00 Caeque No.221 2.3.2000 Cheque Bounce -11050=00 Cash M.R. No.-74803 5.4.2000 Cheque No-224 -10003=00 3.5.2000 Cheque No-225 10003=00 2.6.2000 2.7.2000 All 5 Cheques 2.8.2000 Bounces 2.9.2000 Paid Cash 13.10.2000 M.R. No.53/10/00 -1,00,000=00 2.11.2000 2.12.2000 2.1.2001 Advance Payment 2.2.2001 2.3.2001 2.4.2001 Cheques Bounce 2.5.2001 Pay Cash on 11.8.2001 2.6.2001 M.R. No.5407- -29,500=00 3.7.2001 Clg through Ch.No.114 -10,003=00 3.8.2001 Clg through Ch.No.115 -10,003=00 4.9.2001 Clg through Ch.No.116 -10,003=00 4.10.2001 Clg through Ch.No.117 -10,003=00 3.11.2001 Clg through Ch.No.118 -10,003=00 22.12.2001 Clg through Ch.No.119 -10,003=00 7.1.2002 Clg through Ch.No.120 -10,003=00 4.2.2002 Clg through Ch.No.121 -10,003=00 Rs.3,75,175=00 (Three Lakh Seventy Five Thousand One Hundred Seventy Five) only.
From the above it may be seen that the last payment was made on 04.02.2002. The opposite parties seized the vehicle on 26.02.2002. By that day a total amount of rupees 3,75,175/- had been received by the opposite parties. Before the due date of payment of instalment, vehicle was seized on the plea that there was default in payment. The opposite parties could not have seized the vehicle because by that date payment of instalment for the month of February, 2002 had not arisen. This a clear case of arbitrariness on the part of the opposite parties which amounts to deficiency in service.
6. The question that arises for consideration is what relief can be granted to the complainant as admittedly the vehicle has been sold to a third party after its seizure. The seizure of the vehicle being illegal and unauthorized, the opposite parties are bound to restore possession of the vehicle to the complainant or to refund the entire amount of rupees 3,75,179/- received by them. The first course is not possible as the vehicle has been sold to a third party.
Because of the illegal action, the complainant has suffered financially by paying interest and therefore he should be adequately compensated. We accordingly direct the opposite parties jointly and severally pay to the complainant a consolidated sum of rupees 4,00,000/- by 28th of February, 2007 failing which it shall carry interest at the rate of 6 per cent per annum from the date of seizure of the vehicle (26.02.2002).
7. The complaint is allowed.