State Consumer Disputes Redressal Commission
Rajesh Kumar Kosale vs Mahindra & Mahindra Finance Services ... on 24 October, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2017/465
Instituted on : 05.07.2017
Rajesh Kumar Koshley, Aged 38 years,
S/o Shri Sadhuram Koshley,
R/o : Village Kalai, Post - Rasni,
Police Station - Arang, Dist. Raipur (C.G.).... Appellant (Complainant)
Vs.
Mahindra and Mahindra Finance Service Ltd.,
Through : Manager,
Address : S.F.2, Second Floor, Maruti Heights,
Near Sky Automobiles, Kota,
Raipur, Tehsil & District Raipur (C.G.) ..... Respondent (O.P.).
Appeal No.FA/2017/481
Instituted on : 30.06.2017
Mahindra and Mahindra Financial Services Ltd.,
Through : Manager, S.F.-2 Second Floor,
Maruti Heights, Near Sky Automobiles, G.E. Road,
Raipur (C.G.) ... Appellant (O.P.)
Vs.
Rajesh Kumar Koshley, S/o Shri Sadhuram,,
Aged 33 years,
R/o : Village - Kalai, Post - Rasni,
Police Station Arang, Dist. Raipur (C.G.) .... Respondent (Complainant)
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER COUNSEL FOR THE PARTIES IN BOTH THE APPEALS:-
Shri Sourabh Shukla, Advocate for the complainant - Rajesh Kumar Koshley.
Shri Rakesh Puri, Advocate for the O.P. - Mahindra & Mahindra Financial Services Limited.
// 2 // O RDER Dated : 24/October/2017 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No.FA/2017/481 and Appeal No.FA/2017/465, which have been preferred respectively by O.P. Mahindra and Mahindra Financial Service Limited and the complainant Rajesh Kumar Koshley respectively, in Complaint Case No.956/2011 against the order dated 27.03.2017, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"). By the impugned order, the learned District Forum, has partly allowed the complaint of the complainant and directed that :-
(1) The O.P. will pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards repairing charges of the vehicle and replacing parts .
(2) The O.P. will pay sum of Rs.30,000/- (Rupees Thirty Thousand) towards compensation for financial loss and mental agony.
(3) The O.P. will pay a sum of Rs.2,000/- (Rupees Two Thousand) towards advocate fees and cost of litigation
2. The complainant has filed Appeal No.FA/2017/465 for enhancement of the awarded amount, whereas the O.P. has filed Appeal No.FA/2017/481 for setting aside the impugned order of the District Forum.. The original of this order be retained in the file of Appeal No. // 3 // FA/2017/481 and it's copy be placed in the file of Appeal No. FA/2017/465.
3. Briefly stated the facts of the complaint of the complainant are that the complainant is owner of Max Pickup vehicle bearing registration No.C.G.04-JB-3358 which is the source of livelihood of the complainant and his family. The price of the vehicle was Rs.4,69,000/- out of which he paid a sum of Rs.1,85,500/- as advance and Rs.25,000/- towards registration charges and insurance. The O.P. financed a sum of Rs.2,89,000/- to the complainant. The financed amount was to be paid by the complainant to the O.P. in 48 installments of Rs.9,300/-. After purchasing the vehicle, the complainant was regularly paying the installment to the O.P. even then on 19.11.2010, by 3-4 unknown Gundas,on the instructions of Sandeep Yadav, Manager of the O.P., forcibly entered in the house of the complainant and demanded a sum of Rs.3,00,000/-, but the complainant expressed his inability to pay the above amount to them, then they assaulted and abused the complainant and snatched away the key of the vehicle of the complainant. On being protested the above act of the unknown gundas they threatened the complainant to kill him and they looted the vehicle. The complainant made complaint regarding the incident to Police Station, Arang, but the Police refused to lodge the report against the complainant and directed the complainant to contact the O.P. The complainant again contacted the O.P. and informed the O.P. regarding his poor financial position and requested the O.P. to return the vehicle, but the O.P. did not // 4 // consider on his request and demanded the outstanding amount of Rs.3,00,000/- immediately and it is threatened that if the complainant will not pay the above amount, then the vehicle would be sold. The complainant several times contacted the O.P. but the O.P. abused the complainant and also assaulted him. Being aggrieved with the act of the O.P., on 13.12.2010, the complainant made complaint to the Superintendent of Police regarding loot of the vehicle by the O.P., copy of the complaint has also been provided to Police Station, Arang, but even then the Police Station, Arang did not take any action. When no action was taken on the complaint made by the complainant, then the complainant sent legal notice to O.P. for returning the vehicle to him without any condition and to seek apology for misbehaviour in writing, but inspite of receiving the notice, the O.P. did not take any action. When inspite of sending notice through advocate, the vehicle was not returned by the O.P. to the complainant and when the employees of the O.P. threatened the complainant to sale the vehicle because the complainant had not paid the demanded amount to the O.P., then the complainant filed an application before Judicial Magistrate, Raipur and request to take action against the guilty persons. The Judicial Magistrate directed to immediately lodge offence against the guilty persons. On being direction given by the Court, the Police Station, Arang registered offence against Manager of the O.P., Sandeep Yadav under Section 294, 327, 394 and 506B IPC after three months and proceedings were started. The vehicle was seized after one month from // 5 // the date of registering offence, on which investigation is pending. The vehicle of the complainant was forcibly looted by the O.P. by saying that some instalments are pending, The complainant was ready to pay the remaining outstanding, but the O.P. malafidely demanded the entire amount and illegally kept the vehicle in open place for about 6 months in its yard without taking measure of security of the vehicle, due to which the complainant suffered loss of Rs.25,000/- per month for six months i.e.1,50,000/- for which the O.P. is liable. Hence, the complainant filed the instant consumer complaint and prayed for granting reliefs, as mentioned in the prayer clause of the complaint.
4. The O.P. filed its written statement and averred that the District Forum is not having any jurisdiction to entertain the complaint, as the allegation levelled against the O.P. are of totally civil nature. It is not possible for the District Forum to try and decide the complaint as a lot of intricacies are involved. A lot of evidences are to adduced to prove and disprove the case which is not possible in a Summary Court. The present case was occurred on account of default in paying the instalments by the complainant. There is a contract agreed and executed inter-alia between the complainant and the O.P. The terms of the contract is very specific and categorically inscribe that in the event of default the financer is having the right to repossess the vehicle and sale it. The default is even admitted by the complainant in para 11 of the complaint. The complainant has no locus standi to file the present complaint against the financer as the financer is the real owner as per // 6 // Section 2 Sub-Section 30 of the Motor Vehicle Act. Just paying a few instalment shall bestow the complainant the status of real owner is a faulty claim. The complainant purchased the vehicle for commercial use, as evident from the version of the complainant. Hence, the complainant is not a "consumer" as defined in the Consumer Protection Act, 1986. The present complaint of the complainant is not a consumer complaint as the complainant filed this complaint for the recovery of the amount. There is no deficiency on the part of the O.P. The complainant ought to have approached the Civil Court for such recovery. As per Clause 26 of the Agreement, any dispute arising out shall be referred to the Arbitrator and the Arbitrator shall only have jurisdiction to try the case. Section 8 of the Arbitration and Conciliation Act, 1996 debars the jurisdiction of any other Court except the Arbitration. In the event of any dispute, the same have to be referred to Arbitration and the Arbitrator so referred shall have only jurisdiction to try and hear the matter. The agreement specifically specifies that only a Mumbai Court shall have the jurisdiction to try and decide the case. Therefore, in that score also, this case is not tenable before the District Forum. The O.P. is a Non-Banking Finance Company registered under the Companies Act, 1956. It is engaged in the field of finance under Hire Purchase and Loan Agreement. The O.P. during its course of business had financed for the said vehicle. The vehicle under dispute was financed by the O.P. The vehicle was not used by the complainant for his livelihood and Rs.1,85,500 and Rs.25,000/- were not paid to the O.P. The complainant // 7 // paid Rs.1,85,500/- to the dealer as down payment and Rs.25,000/- to the insurer and not to the O.P. The complainant was plying the vehicle through driver for commercial use only. The O.P. financed Rs.2,89,000/- as loan amount to the complainant, but the total amount payable including interest was Rs.4,37,100/-. The vehicle was not under the ownership of the complainant. It was a financed vehicle and though it is registered in the name of the complainant, he would become the real owner only when he pays the whole amount with interest. The complainant was a chronic defaulter and never bothered to pay instalments in time. Hence as per agreement clause, penal interest #=@ 36% p.a. was payable. At time of repossession, there was a default of more than 6 installments amounting to Rs.55,800/- and AFC to the tune of more than 50,000/-. Default notice to above matter was sent on 10.11.2010 warning the consequences of non-remittance of instalment and penal interest. The dacoit and theft of the vehicle in question was not done. Demand and the repossession of the financed vehicle is purely an act permissible under the law and terming it as loot is a legal blunder on the part of the complainant. It was unfortunate that a case was registered against the employee of the Company under the charge of dacoit and this was felicitated by m misleading the District Forum by the complainant. There is an agreement executed between the parties and the O.P. acted as per the terms of the agreement only. The complainant committed breach of contract by not complying the terms of the agreement. This cannot be terms as deficiency in service. As per // 8 // the agreed terms, the complainant is liable to pay the instalments in time which was 15th of every month, but he never bothered to stick to his agreed terms. The O.P. has nothing to do with the mistake committed by the complainant. The entire adverse allegations are false and frivolous and this was levelled to get away with the payment of the instalments. The complainant has misrepresented and leads the District Forum into a garden path. The complainant is levelling false and vexatious allegation with an ulterior motto . A bare perusal of the entire complaint would reveal that the complainant has not come before the District Forum with clean hands. The complainant had concealed many material facts concerning to the vehicle. The complainant to get away with all legal complications, filed the consumer case with an ulterior motto only. A bare perusal of the complaint itself would reveal the actual picture and the faulty claim of the complainant. The breach of the terms is on the part of the complainant only. There is no proprietary and legal right arosed in favour of the complainant to demand any relief. Hence there is no deficiency in service on the part of the O.P. The complaint filed by the complainant be dismissed.
5. The complainant has filed documents. The documents are Certificate of Registration of vehicle bearing registration No.C.G.04--JB- 3358, Certificate of Fitness of vehicle bearing registration No.C.G04-JB- 3358, complaint made by the complainant to the Superintendent of Police, Raipur on 13.12.2010, Repossessed Vehicle Inventory Sheet, legal notice dated 15.12.2010 sent by Shri Sourabh Shukla, Advocate on behalf // 9 // of the complainant to the O.P. and Sanjay Yadav, Manager of the O.P., postal receipts, acknowledgements, application submitted by the complainant before Judicial Magistrate First Class, Raipur under Section 156 (3) Read With Section 102 Cr.P.C. on 20.12.2010, complaint made by the complainant to Officer Incharge, Police Station, Arang District Raipur (C.G.) on 12.03.2011, Annexure -7 - Format of Post-repossession Letter to Borrower / Guarantor in respect of Loan Agreement) sent by the O.P. to the complainant on 12.03.2011, Vehicle Inspection Report, Vahan Supurdgi Patra, Memo sent by Judicial Magistrate First Class, Raipur (C.G.) to Office Incharge, Police Station, Arang (C.G.).
6. The O.P. has filed documents. The documents are Award dated 25.11.2011 passed by Mrs. Ameeta Chheda in Aribtration Proceeding No.CG/2011/7 of 2011, loan agreement dated 15.01.2009.
7. Learned District Forum after having considered the material placed before it by the parties, has partly allowed the complaint of the complainant and directed the O.P. to pay the amounts to the complainant, as mentioned in para 1 of this order.
8 The O.P., who is appellant of the Appeal No.FA/2017/481 has filed an application under Order 41 Rule 27 CPC and sought to file Inventory Sheet dated 11.11.2010 (Annexure R-1), Vehicle Inspection Report dated 19.11.2010 (Annexure R-2), Intimation to Police with Postal Receipt (Annexure R-3), Khatma Information by Police Station, Arang dated 18.07.2013 (Annexure R-4) and Statement of Account of the // 10 // complainant (Annexure R-5), as additional evidence at the appellate stage.
9. We have heard learned counsel for both the parties on the application filed by the O.P. under Order 41 Rule 27 CPC.
10. Looking to the facts and circumstances of the case, it appears that the documents, which are sought to be filed by the O.P. at the appellate stage, are essential and necessary for proper adjudication of the case, but the above documents have been filed by the O.P. at the appellate stage, therefore application can be allowed subject to payment of cost.
11. Therefore, we allow the application filed by the O.P. under Order 41 Rule 27 CPC, subject to payment of cot of Rs.7,000/- (Rupees Seven Thousand) and take the above documents on record as additional evidence at the appellate stage.
12 The appeal No.FA/2017/465 has been filed by the complainant. Shri Sourabh Shukla, learned counsel appearing on behalf of the complainant has argued that the complainant purchased vehicle Mahindra Pickup bearing registration NO.C.G.04-JB-3358 with the financial help of the O.P. The price of the vehicle was Rs.4,69,000/- out of which he paid a sum of Rs.1,85,500/- as advance and Rs.25,000/- towards registration charges and insurance. The O.P. financed a sum of Rs.2,89,000/- to the complainant. The above amount was to be paid by the complainant to the O.P. in 48 installments of Rs.9,300/- each. The // 11 // complainant was regularly paying the installments to the O.P., but on 19.11.2010, 3-4 unknown gundas came to the house of the complainant and demanded a sum of Rs.3,00,000/- from the complainant, but the complainant expressed his inability to pay the above amount, then they forcibly snatched away the key of the vehicle in question and threatened the complainant for bearing dire consequences and they looted the vehicle. The vehicle was parked in yard of the O.P. The matter was reported by the complainant to the concerned Police Station, but the Police did not take any action against the O.P. Then the complainant filed an under Section 156 Cr.P.C. before concerned Magistrate, who directed the Police to investigate the matter, but the Police did not take any action against the O.P. The vehicle was unnecessarily kept by the O.P. in stationary condition in its yard, therefore, the complainant was deprived to use the vehicle, due to which he suffered financial loss and mental agony, but the learned District Forum only awarded a sum of Rs.10,000/- towards repairing charges of the vehicle and Rs.30,000/- towards compensation for mental agony, which is on lower side. The complainant is entitled for getting reliefs, as prayer by him in the prayer clause of the complaint. The appeal filed by the complainant be allowed and the impugned order passed by the District Forum be modified accordingly. The appeal filed by the O.P. may be dismissed.
13. The appeal No.FA/2017/481 has been filed by the O.P. Shri Rakesh Puri, learned counsel appearing on behalf of the O.P. has argued that the case is purely of civil nature and elaborate evidence is // 12 // required, therefore, it is not possible for the District forum to decide the complaint in summary proceedings. The complainant himself defaulted in making payment of the installments The terms of the contract is very specific and categorically inscribed that in the event of default, the financer is having the right to repossess the vehicle and sale it. The complainant paid few installments and thereafter he did not pay any intallments. The complainant used the vehicle in question for commercial purpose, therefore, the complainant is not a "consumer". The ownership of the vehicle in question is still with the O.P. and the matter was referred to the Arbitrator. The Arbitrator has passed the award, therefore, the complaint is not maintainable and is liable to be dismissed. Hence the appeal filed by the O.P. be allowed and impugned order passed by the District Forum be set aside. He placed reliance on Revision Petition No.1552 of 2011 - M/s Magma Fincorp Limited Vs. Sh. Subhankar Singh, decided by Hon'ble National Commission, vide order dated 13.07.2012.
14. We have heard learned counsel appearing for both the parties and have perused the record of the District Forum as well as the impugned order.
15. It is admitted fact that the complainant obtained loan of Rs.2,89,000/- from the O.P. The loan agreement was executed between the parties on 15.01.2009.
// 13 //
16. According to the complainant, the musclemen of the O.P., who were directed by Sandeep Yadav came to the house of the complainant and threatened him to bear dire consequences, abused the complainant, snatched away the key of the vehicle and looted the vehicle. The complainant lodged report to Police Station, Arang, but the Police did not take any action against them, then he moved application before Judicial Magistrate First Class, Raipur, who directed the Police to registered the offence.
17. The O.P. filed document Annexure R-4 at the appellate stage, which is Khatma Information issued by Police Station, Arang dated 18.07.2013, in which it is mentioned that in Police Station, Arang, offence under Section 294, 327, 394, 506B IPC was registered on 29.03.2011 against Sandeep Yadav, Manager of Mahindra Finance and his colleagues, but no offence is made out against them, therefore, Khatma No.41/2011 dated 31.12.2011 was issued. It appears that the allegations made by the complainant that the vehicle was looted by the employees of the O.P. has not been proved.
18. The O.P. filed document Annexure R-1 which is Repossessed Vehicle Inventory Sheet and Annexure R-2 which is Vehicle Inspection Report, at the appellate stage. It appears that the notice was given by the O.P. to the complainant . The complainant himself filed document, which was sent by the O.P. to the complainant on 12.03.2011 (placed at // 14 // page no.51 of the record of the District Forum), in which the outstanding amount was demanded by the O.P. from the complainant.
19. The complainant has filed Memo dated 30.04.2011 issued by Smt. Geeta Neware, Judicial Magistrate First Class, Raipur to Officer Incharge, Police Station, Arang for giving the vehicle in Supurdginama to the complainant Rajesh Koshley, in Offence No.97/2011. It appears that the vehicle was seized by the Police and thereafter the complainant obtained the vehicle on Supurdginama. On the basis of above facts, learned District Forum, awarded a sum of Rs.10,000/- towards repairing charges of the vehicle and Rs.30,000/- towards compensation for mental agony to the complainant. Looking to the facts and circumstances of the case, the amount awarded by the learned District Forum, to the complainant, is just and proper.
20. The O.P. contended that the award had been passed by the Arbitrator, therefore, the impugned order passed by the District Forum is not sustainable. The above contention of the O.P., is not acceptable. The complainant has filed the instant complaint on 16.09.2011 whereas the arbitral award has been passed by the Arbitrator on 25.11.2011. Although the matter was referred to the Arbitrator on 24.08.2011 i.e. before filing the complaint, but the award was passed by the Arbitrator on 25.11.2011. The O.P. has not specifically proved that before repossessing the vehicle in question, the O.P. gave any notice to the complainant.
// 15 //
21. Looking to the facts and circumstances of the case and award passed by the Arbitrator on 25.11.2011, both the appeals filed by the parties, are liable to be dismissed.
22. Therefore, the impugned order dated 27.03.2017 passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality, hence does not call for any interference.
23. Hence the appeal No.FA/2017/465 filed by the complainant and appeal No.FA/2017/481 filed by the O.P., being devoid of any merits, are liable to be and are hereby dismissed. No order as to the cost of both the appeals.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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