State Consumer Disputes Redressal Commission
Mahindra And Mahindra Financial ... vs Satnam Singh on 2 August, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Misc. Application No.1166 of 2017
In/and
First Appeal No.1276 of 2014
Date of institution : 17.09.2014
Reserved on : 19.07.2017
Date of decision : 02.08.2017
1.M/s Mahindra and Mahindra Financial Services Ltd., Regd. Office Gateway, Appollo Bunder, Mumbai-400 001 through Shri Jai Narayan, Litigation Officer (Legal).
2. Mahindra & Mahindra Financial Services Ltd., Palm Rose Building, World Trade Centre, Ist Floor, Near Bus Stand, Jalandhar City, through its Branch Manager.
3. Maninder Singh,
4. Amritpal Singh,
5. Ashish Gupta,
6. Baldev Kumar All C/o M/s Mahindra & Mahindra Financial Services Ltd., Palm Rose Building, World Trade Centre, Ist Floor, Near Bus Stand, Jalandhar City.
.......Appellants- Opposite Parties Versus Satnam Singh son of Shri Sadhu Singh, R/o House No.77, Guru Sant Nagar, Jalandhar.
......Respondent-Complainant First Appeal against the order dated 12.8.2014 of the District Consumer Disputes Redressal Forum, Jalandhar.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President. Present:-
For the appellants : Shri Nitin Thatai, Advocate. For the respondent : Shri Inderjit Singh, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT : M.A. No.1166 of 2017:
This is an application for placing on record Loan Application Form and e-mails exchanged for processing of loan as Annexure A14 and Annexure A15.First Appeal No.1276 of 2014. 2
2. The respondent/complainant filed reply opposing the same.
However, in the interest of justice this application is allowed and Loan Application Form and e-mails exchanged for processing of loan are taken on record as Annexure A-14 and Annexure A-15. Main Case:
3. The instant First Appeal has been filed by the appellants/opposite parties against the order dated 12.8.2014 passed by District Consumer Disputes Redressal Forum, Jalandhar (in short, "District Forum"), vide which the complaint filed by Satnam Singh, respondent/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "C.P. Act") has been allowed and opposite parties Nos.1 and 2 were directed to adjust the amount of ₹4,77,005/- in the account of the complainant on the date of sale.
The complainant was also awarded ₹25,000/- on account of compensation and ₹3,000/- on account of litigation expenses.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the complaint:
3. Brief facts, as averred in the complaint, are that the complainant had got partly financed his Tata LPT 1109 Truck bearing Engine No.497TC92PYY867202 Chassis No.MAT457403B7P53722 Registration No.PB-08CB-9050 to the tune of ₹9,20,000/- out of total sale price of ₹11,08,241/- from opposite party No.2 to be repaid in equal monthly instalments. Unfortunately, Shri Param Gill, son-in-law, of the complainant suffered grievous injuries in road accident, who used to ply the First Appeal No.1276 of 2014. 3 financed vehicle and, as such, there was delay in paying instalments. However, the complainant had paid ₹20,000/- towards instalments on 22.5.2012 against receipt. Within less than three months of the part finance of the vehicle in question, opposite parties Nos.3 to 6, at the instance of opposite parties Nos.1 and 2, proclaiming themselves to be the recovery agents and employees of opposite parties Nos.1 and 2, criminally trespassed into the house of the son-in-law of the complainant at Village Mohriwal, Tehsil Shahkot, District Jalandhar on 21.5.2012. They misbehaved and abused the son-in-law of the complainant and his family members and forcibly stole away the truck in question parked there without serving any prior notice. No notice whatsoever regarding classifying the loan account as Non-Performing Asset was ever given which was mandatory for opposite parties Nos.1 and 2. Even otherwise, a loan account can be classified as Non-Performing Asset only after wilful default in paying three consecutive instalments whereas in the instant case the third instalment was to fall due only after 23.5.2012. Neither the loan was ever classified as Non-Performing Asset nor any such notice was served upon the complainant nor any re- possession notice of the truck in question was ever served upon the complainant. Therefore, the opposite parties had got no legal right or authority to forcibly take away the financed vehicle. The son-in- law of the complainant was forced to pay ₹1,00,000/- by opposite party No.3 to 6 on the promise of returning the truck in question but neither any receipt was issued nor the truck was returned. The complainant was asked to pay ₹20,000/- more for returning the First Appeal No.1276 of 2014. 4 same. The complainant paid the demanded amount of ₹20,000/- on 22.5.2012. However, the truck was not released. The son-in-law of the complainant even lodged a complaint to PS-Lohian Khas on 21.5.2012 itself regarding forcibly taking away the truck in question from his house by opposite parties Nos.3 to 6 and for misbehaving and abusing him and his family members by the aforesaid persons. However, the police instead of taking any action against the opposite parties filed the complaint under duress and pressure from the opposite parties by saying that the complainant can agitate the matter in the Court. The complainant even lodged a complaint to the RBI regarding forcible possession of vehicle and on the complaint of the complainant dated 7.7.2012, RBI was pleased to direct opposite party No.1 to look into the matter and resolve the complaint amicably within 10 days from the receipt of their letter dated 24.7.2012. The forcible taking away of the vehicle unlawfully and illegally has put the complainant on road, who has been deprived of his livelihood by snatching his brand new truck less than 3 months after its purchase thereby causing a financial loss to the tune of ₹5 lakhs to the complainant till the date of filing the complaint. Alleging deficiency in service the complaint was filed for issuance of a direction to the opposite parties to return his truck and to pay ₹10 lakhs, as damages.
Defence of the opposite parties:
4. In their joint reply the opposite parties took preliminary objections regarding maintainability, suppression of material facts etc. It is pleaded therein that true facts are that the complainant took First Appeal No.1276 of 2014. 5 the financial assistance against the vehicle from the opposite parties but failed to discharge his liability. The complainant filed the present complaint by suppressing the material facts. The complainant is an intentional defaulter. Thereafter, the vehicle was repossessed by the opposite parties as per the agreement and as per law. The vehicle was repossessed after giving due intimation. The vehicle has already been sold by the opposite parties. The complaint is not maintainable. Denying all other allegations a prayer for dismissal of the complaint has been made.
Finding of the District Forum:
5. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide impugned order. Hence, this appeal.
6. I have heard learned counsel for both the sides and have carefully gone through the records of the case.
Contentions of the Parties:
7. It was argued by the learned counsel for the appellants/opposite parties that the complainant entered into a loan agreement on 29.2.2012 for purchasing the truck in question with the opposite parties according to which the finance amount of ₹9,20,000/- along with interest i.e. total amount of ₹12,49,730/- was repayable in 47 instalments @ ₹26,590/- per month each from 20.3.2012 to 20.1.2016 and it was agreed that in case of default of any instalment besides late charges an amount equal to 3% over and above per month of each instalment of hire charge or part First Appeal No.1276 of 2014. 6 thereof that remains unpaid was also payable. The complainant was a chronic defaulter of the loan amount and after obtaining the financial assistance from the opposite parties did not pay the instalments of loan on time despite the fact that many notices/reminders were sent to him. The opposite parties placed on record photocopy of the Loan Application Form and e-mails exchanged for processing of loan as Annexure A14 and Annexure A15 by way of leading additional evidence and contended that the complainant is a transporter having more than one commercial vehicles and he is plying the same for commercial activities and for earning profits. It was further argued that the truck was purchased by the complainant, which is a commercial transaction and as such, the complainant does not fall within the purview of the definition of 'consumer' under the C.P. Act. Hence the complainant is not covered under the definition of 'consumer' as defined in Section 2(1)(d) of the C.P. Act. He further argued that the truck was repossessed in accordance with law after giving due intimation to the complainant. The District Forum has failed to take into account all these aspects and has passed the order on the basis of surmises and conjectures. He prayed that this appeal be accepted and the order passed by the District Forum be set aside.
8. On the other hand, it was argued by the learned counsel for the complainant that the complainant purchased the truck in question for earning his livelihood by way of self-employment and as such, he falls within the purview of definition of 'consumer' as defined under the C.P. Act. No intimation whatsoever was ever given to the First Appeal No.1276 of 2014. 7 complainant before repossessing the truck in question or before reselling the same. The truck was sold at a throwaway price. He relied upon the judgment of Hon'ble National Commission reported in 2016(2) CPR-324 (Magma Fincorp Ltd. v. Sachin Kumar Singh) and contended that in similar circumstances the Hon'ble National Commission dismissed the revision petition of the Company. The District Forum has passed a well reasoned order after duly appreciating the pleadings and the evidence produced on the record of the case. There is no illegality or infirmity in the same and as such, the same is liable to be upheld.
Consideration of Contentions:
9. I have given thoughtful consideration to the contentions raised by the learned counsel for both the sides.
10. So far as the contention of the learned counsel for the opposite parties that the complainant is a transporter and the truck was purchased by him for doing the commercial business and as such it is a commercial transaction and the complainant does not fall within the purview of the definition of 'consumer' under the C.P. Act is concerned, the complainant has specifically mentioned in para no.8 and 9 of his complaint that forcibly taking away of vehicle unlawfully and illegally has put the complainant on the road, who has been deprived of his livelihood by snatching of his brand new Truck less than 3 months after its purchase. This plea has not been taken by the opposite parties in their reply before the District Forum and, as such, they cannot raise the same for the first time before us in the present appeal. Moreover, there is no evidence on record to prove First Appeal No.1276 of 2014. 8 that the complainant is a transporter and is having a number of trucks. He can well give truck to his son-in-law for earning his livelihood. E-mails Annexure A-15 are also of no help to the opposite parties. Therefore, I hold that this complaint is very much maintainable and the vehicle in question was not purchased by the complainant for commercial purpose. The complainant falls within the purview of the definition of 'consumer' as defined under the C.P. Act.
11. So far as the contention of the learned counsel for the opposite parties that the vehicle in question was repossessed after giving due notice to the complainant is concerned, there is no specific date given on which the said intimation/notice was given and in preliminary objection no.5 of the reply only general averment has been made that the vehicle was repossessed after giving due intimation and the vehicle has already been sold by the opposite parties. No date has been given when the intimation was given and how the vehicle has been sold without valid notice to the complainant regarding repossession. Photocopies of one Notice and postal receipt have been placed on record as Ex.O-23 and Ex.O-29 by the opposite parties. A perusal of the same reveals that it is a typed notice and the name of the addressee has been written by pen later on. However, the name of the addressee mentioned on it, is not legible. Even Chassis No. and Engine No. mentioned in the notice, are not legible. From the perusal of the same it cannot be held that the same was issued to the complainant. Except photocopy of this notice, there is nothing on the record that any other such First Appeal No.1276 of 2014. 9 notice was ever served upon the complainant before repossessing the vehicle in question or before selling it off at a throwaway price.
Therefore, it is held that no notice has been served upon the complainant by the opposite parties before repossessing the vehicle and before selling the same.
12. So far as the assessment of the market price of the vehicle at the time of selling the same is concerned, the District Forum has rightly assessed the same after relying upon the judgment of Himachal Pradesh State Commission reported in 2012(3) CLT 198 (Deep Hire Purchase Ltd. v. Khem Singh & Co.) by observing as under:-
"The ratio of this authority is applicable on the facts of the present case. In the present case, depreciation of the vehicle was to be taken at 10% or at the rate of 15% at the most. The depreciation at the rate of 15% comes to Rs.1,66,236/- and after deducting this amount from the purchase price of Rs.11,08,241/-, the remaining amount comes to Rs.9,42,005/-.
The opposite parties have sold the vehicle just for Rs.4,65,000/-,which is too less. In our opinion, the opposite parties have not sold the repossessed vehicle at a fair price. The difference between the depreciated value of vehicle and the sale price comes to Rs.9,42,005.00 - Rs.4,65,000.00 = First Appeal No.1276 of 2014. 10 Rs.4,77,005/-. So, the opposite parties are liable to adjust or credit this amount in the account of the complainant on the date of sale."
I, do not find any illegality or infirmity in the aforesaid assessment made by the District Forum. Moreover, the vehicle was purchased only on 20.3.2012 and the same was repossessed on 21.5.2012 i.e. within three months of its purchase. The vehicle in question was sold by the opposite parties in hush-hush manner. A vehicle of ₹11,08,241/- was sold for ₹4,65,000/- only after three months of its purchase. It is clear that the opposite parties were working in cahoots with the purchaser of the truck. Same view has been taken by the Hon'ble National Commission in Sachin Kumar Singh's case (supra) where the facts are almost same as are in the present case.
13. The District Forum has also rightly held that it is not probable that owner will keep his new vehicle/truck in dismantled condition and that it is a matter of common knowledge that finance companies normally repossess the vehicle all of a sudden. Therefore, the District Forum rightly not accepted the plea of the opposite parties that the vehicle was in dismantled condition and some parts were missing and for that reason it was sold at less price.
14. In view of my above discussion, I do not find any illegality or perversity in the impugned order passed by the District Forum and the same is hereby upheld. There is no merit in the present appeal and the same is dismissed; however, with no order as to costs. First Appeal No.1276 of 2014. 11
15. The appellants/opposite parties had deposited a sum of ₹25,000/- at the time of filing of the appeal. They deposited another sum of ₹2,30,000/- on 16.10.2014 in compliance of the order dated 1.10.2014. Both these sums, along with interest which has accrued thereon, if any, be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
16. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT August 02, 2017 Bansal