State Consumer Disputes Redressal Commission
Tata Motors Finance Limited vs Smt. Rashmi Bagga on 1 May, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/12/844
Instituted on : 31.12.2012
Tata Motors Finance Limited,
Registered Office Nanawati, Mahalya,
Third Floor, Homi Modi Street 400001
Through : Tata Motor Finance Limited,
Bhatia Complex, Near Rajkumar College,
Raipur (C.G.) ... Appellant
Vs.
Smt. Rashmi Bagga W/o Shri Atul Bagga,
R/o : Anupam Nagar, Rapiur,
Tehsil and district Raipur (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Santosh Tiwari, for appellant.
None for the respondent (Ex-parte).
ORDER
Dated : 01/05/2014 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against order dated 23.11.2012, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth District Forum") in Complaint Case No.363/2010. By the impugned order, the learned District Forum, has partly allowed the complaint of the respondent (complainant) and directed the appellant (O.P.) to pay a sum of Rs.3,16,664/- along with interest @ 6% p.a. from the date of filing of the complaint till date of payment. The District // 2 // Forum has further directed the appellant (O.P.) to pay a sum of Rs.10,000/- as compensation for mental agony and unfair trade practice and Rs.2,000/- as advocate fees and cost of litigation.
2. Briefly stated, the facts of the complaint of the respondent (complainant) before the District Forum are : that the respondent/complainant purchased a vehicle Safari LX bearing registration No.C.G.04-CA-3555 from T.M.F.L. Raipur Branch on 19.07.2007. Out of Rs.7,31,568/, which the price of the vehicle, the respondent (complainant) deposited a sum of Rs.1,11,568 /- in cash on 19.07.2007 and financed a sum of Rs.6,20,000/- from the appellant (O.P.), which was payable in 47 monthly installments of Rs.16,305/- each and she took possession of the vehicle. The respondent (complainant) purchased the said vehicle for earning her livelihood by means of self employment. The respondent (complainant) was regularly depositing the installment from 19.07.2007. On 14.12.2007, the employees of the appellant (O.P.) without giving any intimation to the respondent (complainant) forcibly repossessed the vehicle of the respondent (complainant) from the hospital situated at Malviya Road, Raipur (C.G.), while she had gone for treatment. On being asked the reason, the employees of the appellant (O.P.) abused and misbehaved her. The respondent (complainant) immediately lodged report in Police Station City Kotwali, Raipur. The respondent (complainant) // 3 // contacted the appellant (O.P.) and the appellant (O.P.) informed her regarding the amount due and amount payable against her and the due amount is Rs.1,30,704.48 and only after payment of the said amount, the vehicle in question, will be returned to her. On being told by the appellant (O.P.), the respondent (complainant) deposited a sum of Rs.32,900/- on 28.01.2010, Rs.30,000/- on 06.02.2010, Rs.36,109.48 on 03.03.2010 and Rs.48,000/- on 04.03.2010 in the office of the appellant (O.P.) and thus deposited the amount payable till 2010. Inspite of receiving the due amount, the appellant (O.P.) has not provided the vehicle to her. The appellant (O.P.) had not given any intimation prior to repossession of the vehicle and had also not given any intimation after repossession of the vehicle. The appellant (O.P.) forcibly repossessed the vehicle from the placed where the vehicle was parked and thus committed deficiency in service and unfair trade practice. The respondent (complainant), out of Rs.7,66,335/- had already paid a sum of Rs.5,21,760/- and only a sum of Rs.2,44,575/- and only 15 installements, were due. The appellant (O.P.) had unauthorizedly kept the vehicle of the respondent (complainant) in its possession from 14.12.2009. The respondent (complainant) filed consumer complaint before the District Forum seeking compensation under different heads.
// 4 //
3. The appellant (O.P.) filed its written statement before the District Forum and raised preliminary objection. It has also been stated in the reply that as per condition no.23 of the Agreement executed between the parties, if any dispute is raised between the parties, then the same can be settled through the Arbitration and no other courts should have jurisdiction. The dispute which has been arised between the respondent (complainant) and appellant (O.P.) cannot be settled at Raipur because as per condition no. 24 of the agreement executed between the parties, there is a provision for settlement of such dispute at Mumbai only. The respondent (complainant) has not mentioned that that in which date he deposited the amount as installments or the delay charges, whereas, the burden to prove the above facts is on the respondent (complainant). The amount which was paid by the respondent (complainant) was adjusted in her account and the same is mentioned in the computerized statement prepared by the appellant (O.P.). It has also been pleaded the jurisdiction of the District Forum is of summary nature, but in the complaint there is main dispute regarding the accounting which requires elaborate evidence, which can be done only by Civil Court, therefore, the complaint is not maintainable. The appellant (O.P.) further pleaded that the respondent (complainant) obtaining finance facility of Rs.6,20,000/- for purchase of vehicle Safari bearing registration No.C.G.04/C.Z.3555 on 19.07.2007 under Loan Cum // 5 // Hypothecation Cum Guarantee Agreement on which financed charge was fixed at Rs.1,46,335, thus a sum of Rs.7,66,335/- was payable in 47 installments of Rs.16,305/- each from 19.07.2007 to 21.05.2011. The respondent (complainant) defaulted in making payment of the installments. As per the terms of the agreement, the respondent (complainant) was liable to pay the delay payment charges and other expenses. Prior to 14.12.2009 a sum of Rs.98,094.48 was due in the account of the respondent (complainant) and even after demanding to pay it, the respondent (complainant) could not pay the said amount. As per the terms of the agreement executed between the parties, the appellant (O.P.) informed the respondent (complainant) prior to taking possession of the vehicle in question and thereafter also prepared inventory list of the vehicle and also given repossession intimation to Police Station, Raipur. On 04.12.2010 in the account of the respondent (complainant) a sum of Rs.2,53,566.20 was due. On 10.10.2008 and 10.09.2009 legal notice were sent to the respondent (complainant) but she had not paid the amount. The respondent (complainant) filed the consumer complaint to escape from payment of the amount due. The complaint of the complainant be dismissed.
4. Learned District Forum, after appreciation of the materials available before it, partly allowed the complaint of the // 6 // respondent/complainant, and awarded compensation to the respondent (complainant), as mentioned in para 1 of this judgment.
5. Shri Santosh Tiwari, learned counsel appearing for the appellant/O.P. argued that as per condition no.23 of the Loan Cum Hypothecation Cum Guarantee Agreement, , if any dispute is raised between the parties, then the same can be adjudicated through the Arbitration Proceedings and no other courts should have jurisdiction, therefore, the complaint of the respondent/complainant, is not maintainable before the District Forum and the District Forum, has no jurisdiction to try the case. He further argued that appellant/O.P. is owner of the said vehicle and the respondent/complainant defaulted in making payment of installments, therefore, the appellant/O.P. has right to repossess the vehicle and the appellant/O.P. never took possession of the vehicle by use of force. The appellants/O.P. sent notice to the respondent / complainant, but the respondent /complainant failed to comply the provisions of Loan Cum Hypothecation Cum Guarantee Agreement executed between the parties. He further argued appellant/O.P. is a financier and according to Loan Cum Hypothecation Cum Guarantee Agreement, the financer/O.P. has become owner of the vehicle and purchaser, is simply a bailee (mifugfr) of the vehicle. The appellant (O.P.) sent // 7 // notice to the respondent/complainant prior to repossessing the vehicle.
6. None appeared for the respondent (complainant) before us on 02.04.2014 when the case is fixed for final arguments.
7. We have heard learned counsel for the appellant (O.P.) the at length and have also perused the record of the District Forum.
8. The respondent/complainant filed documents. Document Annexure A-1 is intimation given by the respondent (complainant) to Thana Incharge, City Kotwali, Raipur on 14.12.2009 regarding the forceful repossession of the vehicle bearing registration No.C.G.04-CZ- 3555, document Annexure A-2 is Cash Receipt dated 08.07.2007 issued by National Garage, document Annexure A-3 to A-9 are receipts issued by the Tata Motors Finance Limited on various dates, document annexure A-10 is Private Car Package Policy Certificate Cum Policy Schedule Certificate Cum Policy No.30001/54609019/01/800, document annexure A-11 is Certificate of Registration of vehicle bearing registration No.C.G.-4-CZ-3555, document Annexure A-12 is notice dated 10.06.2010 sent by Shri B.K. Sinha, Advocate to the appellant (O.P.) on behalf of the respondent (complainant).
// 8 //
9. The appellant (O.P.) has also filed documents. Document Annexure - R-1 is Statement of Accounts, document Annexure R-2 is letter dated 10.10.2008 sent by Law Nexus & Associates, Advocates, Consultants & Legal Advisors to the respondent (complainant), document Annexure R-3 is letter dated 10.09.2008 sent by Law Nexus & Associates, Advocates, Consultants & Legal Advisors to the respondent (complainant), document Annexure R-4 are postal receipts, document Annexure R-5 and R-6 are Pre-Repossession Intimation to the Police Station dated 14.12.2009, document Annexure R-7 is Repossessed Vehicle Inventory List, document R-8 is Repo. Bill dated 28.12.2009 issued by Reliable Fin Care to Tata Motors Ltd., document R-9 is Valuation Report of Hitesh H. Chitalia.
10. In the case of M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy, 2013 (3) CPR 589 (SC), Hon'ble Supreme Court has observed thus :-
"29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of // 9 // Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2 - Judge Bench interpreted that section and held as under :-
"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer in automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this // 10 // perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
(emphasis supplied)
11. 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) // 11 // = 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."
12. In the case of Fair Air Engineers Pvt. Ltd. And Another v. N.K. Modi, (1996) Supreme Court Cases 385, Hon'ble Supreme Court has observed thus :-
"16. It, would therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for // 12 // adjudication of the disputes would be otherwise those given in the Act".
13. Section 3 of the Consumer Protection Act, 1986 makes the position clear. It reads thus :-
"3. Act not in derogation of any other law. - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
14. Looking to the provisions of Section 3 of the Consumer Protection Act, 1986 and judgment of Hon'ble Supreme Court in the case of M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy (Supra), the District Forum has jurisdiction to take cognizance in the matter.
15. Now, we shall consider whether the appellant/O.P. have repossessed the vehicle forcibly or by using muscle power and committed deficiency in service.
16. In the case of Pramod Kumar Rai v. Shriram Transport Finance Co. Ltd., III (2012) CPJ 553 (NC), 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 // 13 // has no 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)."
17. 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 // 14 // Balwinder Singh v. Asstt. Commissioner, V (2005) SLT 195 = III (2005) CCR 8 (SC) = CCE 2005 (4) SCC 146."
18. In the case of Magma Fincorp Limited 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 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 // 15 // 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 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 // 16 // 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".
19. In the instant case, the respondent/complainant pleaded in para 4 of her complaint that the respondent/complainant the vehicle in question was forcibly repossessed by the employees of appellant (O.P.) on 14.12.2009 from the hospital situated at Malviya Road, Raipur (C.G.) where it was parked while the respondent (complainant) went to said hospital for treatment, without giving prior intimation. The respondent/ complainant further pleaded that when she asked the employee of the appellant (O.P.) then he abused and misbehaved with her and brought the vehicle with him after seizing the vehicle.
20. Document Annexure A-1 is intimation given to Thana Incharge on 14.12.2009 regarding repossession of the vehicle bearing registration No.C.G.04-CZ-3555. Document R-2 is letters dated 10.10.2008 sent by Lax Nexus & Associates to the respondent (complainant). In the said letters, it is mentioned thus :-
"1. Borrower Rashmi Bagga C/o Atul Bagga Anupam Nagar Raipur Raipur Raipur Chhattisgarh - 492001 India // 17 // "Re : Loan cum Hypothecation Agreement No.5000145384 Dated 19.07.2007 in respect of vehicle bearing Registration No.CG04CZ3555, Chassis No.403063FSZN10635 and Engine No.DICOR06ESZ870282.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - -- Under instructions and on behalf of our clients, TATA Motors Finance Ltd, we address you as under :-
1. You are aware that the captioned agreement was executed by and between our clients, you No.1 as Borrower, and pursuant thereto you No.1 have acquired the captioned vehicle.
2. As per the terms and conditions of the said agreement, you No.1 are required to pay the monthly installments on stipulated dates.
We write to advise you No.1 have committed default in terms of the said Agreement by your failure to pay the arrears of monthly installments.
3. Consequently, on account of such default, you No.1 are liable to pay to our clients late payment fees on overdue installments from the respective due dates of the said monthly installments together with the reimbursement of the expenses till the date of payment. You No.1 have become liable to pay to our clients a sum of Rs.44,780.00 computed upto 07.10.2008 along with accrued expenses and accrued overdue charges as may be due on the date of payment.
4. In the circumstances we hereby call upon you No.1 to forthwith pay our clients the aggregate sum of Rs.44,780.00, alongwith the accrued overdue charges and accrued expenses as may be due on the date of payment.
5. We also call upon you to return or cause to be returned to our client, the said vehicle acquired by you No.1 under the said Agreement, and handover the possession thereof to our clients together with Original Registration Certificate, Insurance Policy and Tax Book within 14 days from the date hereof.
6. Please note that on you failure to comply with the requisitions contained hereinabove within 14 days from the date hereof, our clients shall be compelled to take appropriate action against you in the matter without any further reference to you as our clients are entitled to under the said Agreement, including the sale of the repossessed vehicle by the public auction or private treaty as they may deem fit, entirely at your risk as to the costs and consequences thereof.
// 18 // Yours faithfully, Attorney".
21. Document R-3 is letters dated 10.09.2008 sent by Lax Nexus & Associates to the respondent (complainant). In the said letters, it is mentioned thus :-
"1. Borrower Rashmi Bagga C/o Atul Bagga Anupam Nagar Raipur Raipur Raipur Chhattisgarh - 492001 India "Re : Loan cum Hypothecation Agreement No.5000145382 Dated 19.07.2007 in respect of vehicle bearing Registration No.CG04CZ3555, Chassis No.403063FSZN10635 and Engine No.DICOR06ESZ870282.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - -- Under instructions and on behalf of our clients, TATA Motors Finance Ltd, we address you as under :-
1. You are aware that the captioned agreement was executed by and between our clients, you No.1 as Borrower, and pursuant thereto you No.1 have acquired the captioned vehicle.
2. As per the terms and conditions of the said agreement, you No.1 are required to pay the monthly installments on stipulated dates.
We write to advise you No.1 have committed default in terms of the said Agreement by your failure to pay the arrears of monthly installments.
3. Consequently, on account of such default, you No.1 are liable to pay to our clients late payment fees on overdue installments from the respective due dates of the said monthly installments together with the reimbursement of the expenses till the date of payment. You No.1 have become liable to pay to our clients a sum of Rs.96,050.08 computed upto 09.09.2009 along with accrued expenses and accrued overdue charges as may be due on the date of payment.
4. In the circumstances we hereby call upon you No.1 to forthwith pay our clients the aggregate sum of Rs.96,050.08 along // 19 // with the accrued overdue charges and accrued expenses as may be due on the date of payment.
5. We also call upon you to return or cause to be returned to our client, the said vehicle acquired by you No.1 under the said Agreement, and handover the possession thereof to our clients together with Original Registration Certificate, Insurance Policy and Tax Book within 14 days from the date hereof.
6. Please note that on you failure to comply with the requisitions contained hereinabove within 14 days from the date hereof, our clients shall be compelled to take appropriate action against you in the matter without any further reference to you as our clients are entitled to under the said Agreement, including the sale of the repossessed vehicle by the public auction or private treaty as they may deem fit, entirely at your risk as to the costs and consequences thereof. Yours faithfully, Attorney".
22. The appellant (O.P.) has filed document R-5. The document R-5 is Pre-Repossession Intimation which has been given by Tata Motors Limited to the concerned Police Station on 14.12.2009. In the said document it is mentioned thus :
"REF : HP/LOAN The Officer In Charge Police Station Thana Purani Basti, Raipur (C.G.) Sub : Repossession of Vehicle Registration No. C.G.04-CZ-3555 Hirer / Borrower's Name : Rashmi Bagga Contract No. 5000145382 The above customer has committed default on the scheduled payment of the monthly installment of the Hire Purchase / Loan Facility availed with us in terms of the provisions of the Hire Purchase / Loan Agreement entered between said customer and our Company. In spite of our requests and reminders the customer has not remitted the outstanding dues with a result // 20 // we are left with no option but to enforce the terms of the said agreement and security documents. We wish to inform you that in the said agreement / Security documents it is expressly agreed by the customer that in the event the customer commits the default then we are entitled to take charge and / or repossess the said vehicle. Accordingly, we are in the process of repossessing the above vehicle.
This communication is for you records and to prevent any confusion that may arise from any complaint that the customer may lodge with you about the aforesaid asset / vehicle being stolen.
Kindly do not take cognizance of any such complaint lodged by the customer.
Thanking You, Yours faithfully, Tata Motors Limited, Authorized Signatory".
23. The appellant (O.P.) has filed document R-6. The document R-6 is Pre-Repossession Intimation which has been given by Tata Motors Limited to the concerned Police Station on 14.12.2009. In the said document it is mentioned thus :
"REF : HP/LOAN The Officer In Charge Police Station Thana Purani Basti, Raipur (C.G.) Sub : Repossession of Vehicle Registration No. C.G.04-CZ-3555 (Tata Safari), Hirer / Borrower's Name : Rashmi Bagga Contract No. 5000145382 The above customer has committed defaulted on the scheduled payment of the monthly installments of the Hire Purchase / Loan Agreement. Pursuant to our right under the said agreement and security documents we have repossessed vehicle at Komal Yard (place) on Raipur (C.G.). Enclosed please find the Inventory List recorded at the time of repossession.
// 21 // You intimation is for your records and to prevent any confusion that may arise from any complaint that the above customer may lodge with you about the above vehicle being stolen. In this connection we also enclose herewith a copy of the Supreme Court Judgment reported in AIR 1979 SC 850, for your ready reference.
Thanking You, Yours faithfully, Tata Motors Limited, Authorized Signatory".
24. Looking to above documents, it appears that the vehicle in question was repossessed by the appellant (O.P.) and intimation was also given to the respondent (complainant) prior to repossessing the vehicle as the respondent (complainant), could not pay the due amount and the appellant (O.P.) was having right to repossess the vehicle due to non-payment of installments due.
25. It is undisputed fact that the respondent/complainant purchased the vehicle in question in the month of July, 2007 and the respondent (complainant) and appellant (O.P.) entered into an agreement and Loan Cum Hypothecation Agreement No.5000145382 was executed between them on 19.07.2007 and the appellant (O.P.) provided loan to the respondent/complainant. From the perusal of the letters dated 10.10.2008 (Annexure R-2) and 10.09.2009 (Annexure R-3) sent by Lax Nexus & Associates to the respondent (complainant), // 22 // it appears that respondent (complainant) had defaulted in making payment of installments. The respondent (complainant) has utterly failed to prove that the vehicle in question, was forcibly repossessed by the appellant/O.P.
26. For the foregoing reasons, in our opinion the appeal of the appellant/O.P. deserves to be allowed. Therefore, the appeal is allowed, impugned order dated 23.11.2012, is set aside and consumer complaint shall stand dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
/05/2014 /05/2014