State Consumer Disputes Redressal Commission
M/S Cholamandalam Investment & Others vs Smt. Susheel Mishra on 26 February, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/12/661
Instituted on :12.11.2012
1. M/s Cholamandalam Investment
& Finance Ltd. (Formerly Cholamandalam D.B.S.
Finance Ltd.), A Company incorporated
Under Companies Act, 1956 & having its corporate
Office at Chennai & inter alia a Branch Office at Raipur,
Registered Office : Dare House No.01,
Parris, Chennai,
For Chief Branch Manager.
2. Sr. Branch Manager,
Branch Office - Cholamandalam Investment & Financial
Co. Ltd.
Office - Shriram Heights, In front of Gandhi Udyan,
Shahid Bhagat Singh Chowk, G.E. Road,
Raipur, District Raipur (C.G.)
3. Tikendra Sharma, S/o Arun Sharma,
R/o : Back Side of Sai Mandir, Azad Chowk,
Raipur, District Raipur (C.G.)
All represented through :-
Mr. Prakhar Sharma (Legal Co-ordinator) & Attorney. .... Appellants.
Vs
Smt. Susheel Mishra, W/o Late Rajendra Kumar Mishra,
Resident of : In Front of Patan Thana, Brahman Para,
Patan, District Durg (C.G.) .... Respondent.
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri B. Gopa Kumar, Advocate for appellants.
Shri B.P. Tiwari, Advocate for respondent.
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ORDER
Dated : 26/02/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against order dated 11.10.2012, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth District Forum") in Complaint Case No.C.C.12/20. By the impugned judgment, the learned District Forum, has partly allowed the complaint and directed the OPs to pay a sum of Rs.1,12,904/- within a month from the date of order, along with interest @ 6% p.a. from the date of filing of the complaint i.e. 24.01.2012 till date of payment to the complainant. It has further been directed to the O.P. to pay Rs.5,000/- as compensation for mental agony and Rs.2,000/- as cost of litigation to the complainant.
2. Briefly stated, the facts of the complaint filed by the complainant before the District Forum are : that the complainant Rajendra Kumar Mishra purchased a second hand Maruti 800 Car, bearing registration Number C.G.04-B-7358 with the help of financial assistance provided by the OPs and loan of Rs.1,24,000/-, was sanctioned. The said loan was payable by the complainant in 48 installments @ Rs.3,563/ per month, along with finance charge. The complainant deposited the amount, as mentioned in para no.5 of the complaint and he deposited total amount of Rs.2,25,908/-. The O.P.No.3 gave receipt for the amount of Rs.81,350/- . On 03.10.2010, the O.P.No.2 without giving any intimation, forcibly repossessed the vehicle in question. The late Rajendra Kumar Mishra, husband of the present respondent, wanted information //3 // regarding repossession of the vehicle from OPs, then he was directed to contact their office. The late Rajendra Kumar Mishra, deposited last instalment of Rs.5,000/- on 20.10.2010, but the vehicle in question was not released by the OPs. On being asked by the OPs, the late Rajendra Kumar Mishra, delivered surrender letter dated 11.02.2011 to the OPs. The OPs did not return the vehicle to the complainant and due to this, the complainant suffered financial loss and he also suffered mental agony and ultimately the complainant filed consumer complaint before the District Forum.
3. The OPs filed their written statement before the District Forum and pleaded that the matter involves legal questions and it will be decided only after taking evidence, therefore, the matter is of civil nature, hence, the District Forum is not competent to decide the case summarily. The relation between the OPs and the complainant is of "financer" and "borrower". The late Rajendra Kumar Mishra, himself surrendered the vehicle on 28.02.2011, because he was incapable and unable to deposit the instalments in time, hence the complaint is liable to be dismissed. The Managers of the OPs / Company are not necessary party in the complaint. The agreement was executed between OPs and the complainant, therefore, the complaint was not maintainable against the Managers OPs/Company. OPs further averred that the complainant is not "consumer" of the OPs, hence the Consumer Forum has no jurisdiction to decide the matter. According to clause 29 of Agreement //4 // the Arbitrator shall only have jurisdiction to decide the matter, therefore, the complaint of the complainant is not maintainable before the District Forum. The OPs/company has not committed any deficiency in service.
4. Learned District Forum, on the basis of material available before it, came to the conclusion that the OPs/company was guilty of committing deficiency in service as the vehicle was repossessed by the OPs. Learned District Forum, further averred that OPs seized the vehicle in question in the month of October, 2010. Had the vehicle was not seized by the OPs, then the vehicle was redeemed from mortgage and the District Forum has allowed the complaint and awarded the compensation to the complainant, as mentioned hereinabove in paragraph no.1 of this judgment.
5. Shri B. Gopa Kumar, learned counsel for the OPs argued that the complainant had not deposited the instalments regularly and defaulted in making instalments, therefore, the OPs repossessed the vehicle in question. He further argued that the complainant himself surrendered the vehicle before the OPs and he shown his inability to deposit the instalments, therefore, the vehicle was repossessed by the OPs. The complainant failed to deposit the instalments regularly and loan agreement was executed between the OPs/company and the complainant. The OPs/company is owner of the vehicle in question and the complainant is simply a bailee of the vehicle, therefore, the OPs/company is entitled to repossess the vehicle and OPs did not //5 // commit any deficiency in service. The order passed by the District Forum, is erroneous and is not sustainable in eye of law. He placed reliance on judgment of Hon'ble National Commission in Revision Petition No.1657 of 2009 - A. Ganesan v. Sundar, Manager, Indusind Bank Ltd. & another; Ashok Leyland Finance Limited and others v. Jagnarayana, 2005 L.T. (Consumer) 9, judgement of this Commission in the case of Surendra Kumar Agrawal v. Telco Finance Ltd. & Anr., IV (2006) CPJ 68 (NC).
6. Shri B.P. Tiwari, learned counsel for the complainant supported the impugned order and argued that the complainant deposited the instalments regularly and he had deposited the amount as mentioned in paragraph no.5 of the complaint. He further argued that the complainant surrendered the vehicle in question to the OPs due to coercion given by the OPs. The complainant had not surrendered the vehicle voluntarily, therefore, the OPs/company committed deficiency in service and the finding recorded by the District Forum is reasonable and does not call for any interference by this Commission. 7 We have heard learned counsel for both the parties and have also perused the record of the District Forum.
8. The complainant filed document. Document Annexure -1 is statement of account, document annexure - 2 are receipts, document annexure - 3, is surrender letter dated 11.02.2011.
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9. The OPs filed documents i.e. agreement dated 24.02.2012, loan agreement dated 01.07.2007, reply of notice dated 27.12.2011 sent by the OPs to Mahendra Kumar Tiwari, Advocate on 30.01.2012 and statement of account.
10. Document Annexure - 3 is surrender letter dated 11.02.2011. In the said surrender letter it is mentioned that :-
"Sub : Maruti 800 (Car) Wheeler Surrender.
Ref : Loan Agreement NO.RALN 331483.
"With reference to my Rajendra Mishra Wheeler Loan taken from your company against the above Loan agreement number I would like to inform you that I am unable to pay my monthly instalments and hence I am voluntarily surrendering the vehicle bearing Registration Number C.G.04-B-7358 to your Branch Office. You are empowered to sell the vehicle and adjust the sale proceeds against my dues."
11. Looking to the documents filed by both the parties, it appears that the complainant obtained loan from the OPs and OPs sent notice to the complainant for depositing the instalments. From bare perusal of document annexure - 3, it appears that the complainant himself wrote surrender letter to the OPs. On the basis of surrender letter, the vehicle in question, was repossessed by the OPs and it is also established that complainant did not deposit the full amount of the loan taken by him for purchase of the said vehicle.
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12. In the case of Suryapal Singh v. Siddha Vinayak Motors & Anr., III (2012) CPJ 4 (SC), Hon'ble Supreme Court, has observed thus :-
"2. This Court vide its judgment in Trilok Singh & Ors. v. Satya Deo Tripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financier is real owner of the vehicle, therefore, there cannot be any allegation against him for having the possession of the vehicle. This view was again reiterated in K.A. Mathai @ Babu & Anr. v. Kora Bibbikutty & Anr., 1996 (7) SCC 212; Jagdish Chandra Nijhawan v. S.K. Saraf, IX (1998) SLT 477 = IV (1998) CCR 118 (SC) = 1999 (1) SCC 119;
Charanjit Singh Chadha & Ors. v. Sudhir Mehra, VI (2001) SLT 883 = III (2001) CCR 232 (SC) = 2001 (7) SCC 417, following the earlier judgment of this Court in Sundaram Finance Ltd. v. The State of Kerala & Anr., AIR 1966 SC 1178; Smt. Lalmuni Devi v. State of Bihar & Ors., I (2001) SLT 26 = I (2001) CCR 9 (SC) = 2001 (2) SCC 17 and Balwinder Singh v. Asstt. Commissioner, V (2005) SLT 195 = III (2005) CCR 8 (SC) = CCE 2005 (4) SCC
146."
13. In the case of Pramod Kumar Rai v. Shriram Transport Finance Co. Ltd., III (2012) CPJ 553 (NC), Hon'ble National Commission has observed that Finance Company is well within its right to seize the vehicle as per the agreement. Hon'ble National Commission has observed thus :
"3. Learned Counsel for the petitioner argued that the petitioner is a poor person. When we asked whether he was ready to deposit the instalments in three months, he wanted another one month to deposit the above said three instalments. It is, thus, clear that the petitioner has no //8 // intention to pay off the loan. The but and ben stand set up by the petitioner cannot produce the desired result.
4. Again, it is well settled that as per agreement, the respondent, finance company is well within its right to seize the said truck. This view is supported by National Commission in the case of Surendra Kumar Agrawal v. Telco Finance Limited & Anr., II (2010) CPJ 163 (NC)."
14. In the case of Shriram Transport Finance Co. Ltd. and Anr. v. Mr. Chaman Lal., 2012 (4) CPR 75 (NC), Hon'ble National Commission has observed thus :
"6. .........Hon'ble Supreme Court has recently in Suryapal Singh v. Siddha Vinayak Motors and Anr., II (2012) CPJ 8 (SC) held :
"Under the Hire Purchase Agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee / trustee, therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financier. This Court vide its judgment in Trilok Singh & Ors. v. Satya Deo Tripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financier is real owner of the vehicle, therefore, there cannot be any allegation against him for having the possession of the vehicle. This view was again reiterated in K.A. Mathai @ Babu & Anr. v. Kora Bibbikutty & Anr., 1996 (7) SCC 212; Jagdish Chandra Nijhawan v. S.K. Saraf, IX (1998) SLT 477 = IV (1998) CCR 118 (SC) = 1999 (1) SCC 119; Charanjit Singh Chadha & Ors. v. Sudhir Mehra, VI (2001) SLT 883 = III (2001) CCR 232 (SC) = 2001 (7) SCC 417, following the earlier judgment of this Court in Sundaram Finance Ltd. v. The State of Kerala & Anr., AIR 1966 SC 1178; Smt. Lalmuni Devi v. State of Bihar & Ors., I (2001) SLT 26 = I (2001) CCR 9 (SC) = 2001 (2) SCC 17 and Balwinder Singh v. Asstt. Commissioner, V (2005) SLT 195 = III (2005) CCR 8 (SC) = CCE 2005 (4) SCC 146."
15. In the case of Magma Fincorp Ltd. v. Sh. Subhankar Singh, I (2013) CPJ 27 (NC) , Hon'ble National Commission observed that :
"9. It is apparent that the learned Counsel for the respondent has raised copious objections merely for the sake of cavil. Notice dated
16.6.2009 has been placed on record. It is clear that he did not pay the //9 // instalments for the months of April, May and June. He also did not pay delay payment charges, total being Rs.59,246/-. Notice dated 11.7.2009, reveals that the said amount stood enhanced to Rs.80,050/-. Payment of one instalment in the month of July is no compliance of the terms and conditions of the agreement, placed before this Commission. There was no need to give the notice. The petitioner Company could have no moto taken the possession of the vehicle. The relevant extracts of the agreement reads, as under :-
"14. Events of default rights and remedies Thereon : (i) in case the Hirer/s shall during the continuance of this Agreement do or suffer one or more of the following :
Fail to pay in time any of the hire instalments or part thereof herein reserved or any other sum of money payable under this agreement.
To (p) xxxxxxxxx (ii). (a) xxxxx (b) MAGMA SHRACHI shall be entitled to take possession of the said assets(s)/vehicle(s) and sell and/or cause to be sold or otherwise dispose of all or any part of the said asset(s)/vehicle(s) or any fittings thereof in such manner and/or made as prescribed more fully and particularly in appendix "A" hereto and apply the net sale proceeds of such sale in or towards liquidation of the amount outstanding due to MAGMA SHRACHI from the said hirer(s) as on the date of such sale. It, therefore means that there was no need to give notice, however, the petitioner gave two notices in this respect".
11. The National Commission, in case reported in Surendra Kumar Agrawal v. Telco Finance Ltd. & Anr., II (2010) CPJ 163 (NC), Hon'ble Mr. Justice Ashok Bhan, President, was pleased to hold as under :-
6. Aggrieved by the order passed by the District Forum petitioner filed the Appeal before the State Commission. The State Commission relying upon the judgment of Hon'ble Supreme Court of India in Managing Director Orix Auto Finance (India) Ltd. Vs. Sh. Jagmandar Singh & Anr. reported in 127 (2006) DLT 278 (SC) = II (2006) BC 108 (SC) = II (2006) SLT 166 = II (2007) CPJ 45 (SC) = (2006) 1 SCC 708, dismissed the Appeal. It was held that no settlement of account showing details of repayment of loan installments is filed by the petitioner/complainant.
That the petitioner had defaulted several times. That the said judgment of the Apex Court has clearly endorsed the rights of the finance in respect of repossessing the vehicles in case of default by the hirer.
7. xxxxx
8. xxxxx
9. It is not disputed before us that the petitioner had raised a loan of Rs.6,15,000/- to purchase the truck. No statement of account showing repayment of loan instalments has been filed by the petitioner. It was //10 // admitted before the State Commission that the petitioner had defaulted several times in making the payment on the date when it was due. Further it is not disputed that as per Hire Purchase Agreement the financier was authorized to repossess the vehicle in case of default in repayment of loan instalments. Supreme Court of India in Managing Director Orix Auto Finance (India) Limited case (supra) has held that the financier can repossess the vehicle if the agreement permits the financier to take possession of financed vehicle. There is nothing to show that the vehicle was repossessed forcibly. Mere fact that possession was taken by the respondents cannot be the ground to contend that the hirer is prejudiced. We agree with the view taken by the State Commission".
16. According to the complainant, the OPs forcibly repossessed the vehicle of the complainant. Looking to document Annexure - 3, it appears that the complainant himself surrendered the vehicle in favour of the OPs. Had the OPs took possession of the vehicle forcibly, the complainant would have lodged report immediately before the concerned Police Station, but the complainant did not submit or file any document regarding forceful possession of the vehicle by the OPs. Even, the complainant did not file any copy of the report lodged with Police Station, if any.
17. Looking to the documents filed by both the parties, it appears that the complainant was a defaulter and on being sent surrender letter by the complainant, the vehicle was repossessed by the OPs. It is undisputed fact that the complainant purchased the vehicle in question, with the financial help of the OPs and loan agreement was executed between the OPs and complainant. The OPs specifically pleaded in their written version that the complainant did not deposit the amount, therefore, the vehicle was repossessed by them.
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18. The complainant utterly failed to prove that the vehicle in question, was forcibly repossessed by the OPs. The pleading advanced by the complainant, is not reliable and is not acceptable, therefore, the order passed by the District Forum suffers from irregularity and illegality and is not sustainable in the eye of law and is liable to be set aside.
19. Hence the appeal of the OPs, is allowed and the impugned order dated 11.10.2012, passed by District Forum is set aside. Consequently, the complaint filed by the complainant before the District Forum also stands dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
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