State Consumer Disputes Redressal Commission
Shriram Transport Finance Co. Ltd. & ... vs Smt. Kiran Devi Alias Kiran Loomba. on 11 April, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 191/2018
Date of Presentation: 24.04.2018
Order Reserved on : 07.12.2018
Date of Order : 11.04.2019
......
1. Shri Ram Transport Finance Company Limited Ward
No.4 Opposite Government College Nangal Road Una
H.P. Through its Branch Manager.
2. Shri Ram Transport Finance Company Limited House
No.3 Near College Chowk NH-21 Bilaspur H.P.-174001
through its Branch Manager.
3. Shri Ram Transport Finance Company Limited Registered
Office at 123 Angappa Naichken Street Chennai 600001
through its Managing Director.
...... Appellants/Opposite parties
Versus
Kiran Devi alias Kiran Loomba Widow of late Shri Naresh
Kumar Resident of 197 Mohal Lidhwarh Anshik House No.3166
B-4 Nagrota Bagwan Tehsil and District Kangra H.P.
......Respondent/Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant s : Mr. Sunil Kumar Suman Advocate.
For Respondent : Mr. Rahul Sood Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 1 Whether reporters of the local papers may be allowed to see the order? Yes. Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018) 16.02.2018 passed by Learned District Forum in consumer complaint No.142/2012 titled Kiran Devi alias Kiran Loomba Versus Shri Ram Transport Finance Company Limited & Ors. Brief facts of Matter:
2. Complainant filed consumer complaint under Section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner of vehicle No. HR-58-7745 and complainant was plying the vehicle to earn her livelihood. It is pleaded that vehicle in question was financed by opposite party No.1 in the sum of Rs.200000/- (Two lac) on dated 08.04.2009 and installments were fixed @Rs.10000/- (Ten thousand). It is further pleaded that IDV of vehicle was Rs.500000/- (Five lac). It is further pleaded that vehicle in question was partly managed by son in law of the complainant. It is further pleaded that in the year 2009 during summer season vehicle was used to supply grocery items to Leh. It is further pleaded that vehicle was driven by Sanjay Kumar. It is further pleaded that when driver of vehicle was coming back from Leh then road was closed and blocked due to heavy snowfall near Surchu. It is further pleaded that due to bad weather condition driver of vehicle locked the vehicle and came back. It is further pleaded that thereafter again in the year 2010 complainant sent one driver and mechanic to bring the vehicle back but again due to 2 Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018) closed road they came back. It is further pleaded that thereafter again another driver, conductor and mechanic were sent to Leh to take back the vehicle but above stated persons informed that truck bearing No. HR-58-7745 was not available at Surchu. It is further pleaded that thereafter son in law of complainant inquired about the truck in question from one mechanic who was working at Leh and mechanic told that truck in question was taken by one Hima on the pretext that owner of truck has died and he had purchased the truck in consideration amount of Rs.100000/- (One lac).
3. It is further pleaded that vehicle in question was stolen and was parked near Ner Chowk District Mandi H.P. for repair. It is further pleaded that cabin of truck was broken. It is further pleaded that FIR No. 142 dated 01.07.2011 was registered in Police Station Balh District Mandi H.P. It is further pleaded that complainant also paid amount of Rs.30000/- (Thirty thousand) to opposite party No.1 but opposite party No.1 did not issue any receipt on the pretext that receipt book was not available. It is further pleaded that on dated 06.07.2011 when vehicle was parked at workshop at Dadour District Mandi H.P. by son in law of complainant then vehicle was forcibly taken away by opposite party No.2 without any intimation to complainant from the workshop. It is further pleaded that report was also lodged by 3 Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018) owner of workshop namely Raju. It is further pleaded that vehicle was released on superdari to the complainant relating to FIR No.142/2011 by learned Judicial Magistrate Mandi (HP). It is further pleaded that complainant immediately called opposite parties No.1 and 2 and requested to return the vehicle but opposite parties No.1 and 2 did not return the vehicle to complainant and committed deficiency in service.
Complainant sought relief of return of vehicle to the complainant. In alternative complainant sought relief of payment of Rs.500000/- (Five lac) alongwith interest @14% per annum from the date of possession of vehicle i.e. 06.07.2011. In addition complainant sought relief of payment of Rs.390000/- (Three lac ninety thousand) in lieu of loss of income. In addition complainant sought relief of payment of Rs.30000/- (Thirty thousand) for harassment. In addition complainant sought relief of payment of Rs.15000/- (Fifteen thousand) in lieu of deficiency in service committed by opposite parties. In addition complainant sought relief of payment of Rs.12000/- (Twelve thousand) for litigation costs. Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of opposite parties pleaded therein that vehicle in question was used by complainant for commercial purpose. It is pleaded that loan agreement was executed by the complainant with opposite 4 Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018) parties and dispute involves complicated facts and settlement of accounts and same could not be decided in summary proceedings. It is further pleaded that present consumer complaint is governed by Arbitration clause and consumer complaint is not maintainable. It is further pleaded that vehicle in question was plied by the son in law of complainant and it is further pleaded that opposite party No.1 has financed the vehicle in question for sum of Rs.260000/- (Two lac sixty thousand). It is further pleaded that complainant did not pay the loan amount as per installments. It is further pleaded that amount to the tune of Rs.2200926/- (Twenty two lac nine hundred twenty six) is due from complainant. It is further pleaded that complainant had paid only amount of Rs.14700/- (Fourteen thousand seven hundred). It is further pleaded that legal notice was also sent to complainant and guarantor for the repayment of loan amount. It is further pleaded that complainant and her son in law have shown their inability to pay the loan amount and son in law of the complainant had voluntarily surrendered the vehicle in question to opposite parties on dated 06.07.2011. It is further pleaded that opposite parties are ready to handover the possession of vehicle in question to the complainant subject to payment of loan amount. It is further pleaded that opposite parties did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
5
Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018)
5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
6. Learned District Forum on dated 05.09.2014 disposed of consumer complaint No.142/2012 and ordered that opposite parties would jointly and severally deliver possession of vehicle in question to the complainant within thirty days after receipt of copy of order. Learned District Forum further ordered that failing which opposite parties would pay sum of Rs.200000/- (Two lac) to the complainant alongwith interest @9% per annum from the date of filing of complaint i.e. 05.10.2012 till the amount is paid or realized. Learned District Forum further ordered that opposite parties would pay punitive compensation to the tune of Rs.50000/- (Fifty thousand) to the complainant. Learned District Forum further ordered that opposite parties would pay ligation costs to the tune of Rs.5000/- (Five thousand) to the complainant.
7. Feeling aggrieved against order passed by learned District Forum Finance Company/Opposite parties filed F.A.No.391/2014 before State Commission which was decided on dated 22.04.2015 by State Commission and matter was remanded back to the learned District Forum with the direction to decide the matter afresh after affording opportunity to the Finance Company to file version and to defend.
6
Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018)
8. Thereafter learned District Forum vide order dated 16.02.2018 allowed the complaint and ordered opposite parties to deliver the possession of truck in question to the complainant within thirty days from the date of receipt of copy of order. Learned District Forum further ordered that failing which opposite parties would pay amount of Rs.250000/- (Two lac fifty thousand) to the complainant alongwith interest @9% per annum from the date of complaint till amount is not actually paid. Learned District Forum further ordered that in addition opposite parties would pay punitive compensation to the complainant to the tune of Rs.40000/- (Forty thousand). Learned District Forum further ordered that opposite parties would also pay litigation costs to the complainant to the tune of Rs.5000/- (Five thousand).
9. Feeling aggrieved against order passed by learned District Forum Finance Company/Opposite parties filed present appeal before State Commission.
10. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
11. Following points arise for determination in present appeal.
1. Whether appeal filed by Finance Company/opposite parties is liable to be accepted as mentioned in memorandum of grounds of 7 Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018) appeal and whether notice should be sent by Financier to the complainant before repossession of vehicle in question and whether inventory report should be prepared by Financier before repossession of vehicle signed by complainant or authorized person of complainant and whether vehicle in question released to the complainant on superdari by Judicial Magistrate First Class Mandi (HP) in FIR No.142/2011 could be taken back by the Financier without prior approval of learned Judicial Magistrate First Class Mandi H.P. during pendency of criminal matter?
2. Final order.
Findings upon point No.1 with reasons:
12. Complainant Kiran Devi filed affidavit in evidence.
There is recital in affidavit that deponent was plying the vehicle No. HR-58-7745 to earn her livelihood. There is further recital in affidavit that vehicle in question was financed by opposite party No.1 in sum of Rs.200000/- (Two lac) on dated 08.04.2009. There is further recital in affidavit that installments were fixed @Rs.10000/- (Ten thsouand). There is further recital in affidavit that IDV of vehicle was Rs.500000/- (Five lac). There is further recital in affidavit that vehicle was repossessed by opposite parties without any intimation to the deponent from the repair workshop on dated 06.07.2011. There is further recital in affidavit that report was also lodged by the owner of workshop namely Raju in 8 Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018) Police Station Balh District Mandi H.P. There is further recital in affidavit that vehicle was released on superdari to the complainant relating to FIR No.142/2011. There is further recital in affidavit that complainant called opposite parties No.1 and 2 and requested to return the vehicle but opposite parties No.1 and 2 did not accept the request of complainant. There is further recital in affidavit that opposite parties have committed deficiency in service.
13. Complainant also filed affidavit of Yog Raj in evidence. There is recital in the affidavit that Kiran Devi alias Kiran Loomba was plying the vehicle in question to earn her livelihood. There is further recital in affidavit that vehicle in question was partly managed by son in law of the complainant. There is further recital in affidavit that vehicle was financed from Shri Ram Transport Finance Company Limited. There is further recital in affidavit that complainant paid amount of Rs.30000/- (Thirty thousand) to opposite party No.1 through its agent Shri Vikrant in the presence of deponent but no receipt was given to the complainant relating to payment of loan amount on the pretext that receipt book was not available. State Commission has carefully perused all the annexures filed by complainant.
14. Opposite parties filed affidavit of Vijay Kumar Manager in evidence. There is recital in the affidavit that 9 Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018) vehicle in question was plied for commercial purpose. There is further recital in affidavit that loan agreement was executed by the complainant with opposite parties and dispute involves complicated facts and settlement of accounts and same could not be decided in summary proceedings by learned District Forum. There is further recital in affidavit that present consumer complaint is governed by Arbitration clause and consumer complaint is not maintainable. There is further recital in affidavit that vehicle in question was financed by the opposite party No.1 for sum of Rs.260000/- (Two lac sixty thousand) on dated 28.04.2009. There is further recital in affidavit that total loan amount was repayable in 31 installments.
15. There is further recital in affidavit that opposite party No.1 requested the complainant to pay the loan installments but complainant shown her inability to pay the loan amount. There is further recital in affidavit that till date amount to the tune of Rs.2200926/- (Twenty two lac nine hundred twenty six) is due from the complainant. There is further recital in affidavit that complainant had paid only amount of Rs.14700/- (Fourteen thousand seven hundred). There is further recital in affidavit that son in law of the complainant had voluntarily surrendered the vehicle in question to opposite parties on dated 06.07.2011. State 10 Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018) Commission has carefully perused all the annexures filed by the opposite parties.
16. Submission of learned Advocate appearing on behalf of Finance company that vide Annexure C-5 dated 06.07.2011 vehicle in question was voluntarily surrendered by the son in law of complainant to the Finance Company and on this ground appeal filed by Finance Company be allowed is decided accordingly. State Commission has carefully perused Annexure C-5 dated 06.07.2011 placed on record. State Commission is of the opinion that onus to prove the fact that vehicle in question was voluntarily surrendered by son in law of complainant to the Finance Company was upon the Finance Company. Finance Company did not place on record any document signed by son in law of the complainant in order to prove that vehicle in question was voluntarily surrendered by son in law of the complainant.
17. Finance Company also did not file affidavit of any corroborative eye witness in order to prove that vehicle in question was voluntarily surrendered by the son in law of complainant. Even Finance Company did not sent any interrogatories to the son in law of complainant in order to prove the fact that vehicle in question was voluntarily surrendered by son in law of complainant to Finance Company. Annexure C-5 has been unilaterally issued by 11 Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018) opposite parties and same has not been signed by the son in law of complainant or any attesting witness. State Commission is of the opinion that in the absence of signatures of son in law of complainant in Annexure C-5 and in the absence of any attesting witness in Annexure C-5 plea of Finance Company that vehicle in question was voluntarily surrendered by son in law of the complainant to Finance Company is defeated on the concept of ipse-dixit (An assertion made without proof). It is well settled law that unilateral document signed by party could not be used against the adverse party unless adverse party has signed the document or admitted the contents of the document.
18. It is also proved on record that vehicle in question was given on superdari to the complainant by Learned Judicial Magistrate in FIR No.142/2011 registered under Section 379 IPC in Police Station Balh District Mandi H.P. vide Annexure C-4 placed on record in superdari bond of Rs.700000/- (Seven lac). State Commission is of the opinion that when vehicle in question was given on superdari to the complainant by Ld. Judicial Magistrate then Finance Company was not legally competent to repossess the vehicle given to complainant on superdari without prior approval of the learned Judicial Magistrate Mandi (HP). 12 Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018)
19. Submission of learned Advocate appearing on behalf of Finance Company that vehicle in question was used for commercial purpose and present consumer complaint does not fall within the jurisdiction of District Forum and on this ground appeal filed by the Finance Company be allowed is decided accordingly. As per Section 2(o) of Consumer Protection Act 1986 service of any description relating to Finance Company falls within the definition of service as defined under Section 2(o) of Consumer Protection Act 1986 and Consumer Forum has jurisdiction to entertain and dispose of present consumer complaint.
20. Submission of learned Advocate appearing on behalf of Finance Company that in view of Arbitration clause in the loan agreement Consumer Forum has no jurisdiction to entertain and dispose of consumer complaint and on this ground appeal filed by Finance Company be allowed is decided accordingly. State Commission is of the opinion that as per Section 3 of Consumer Protection Act 1986 relief under Consumer Protection Act 1986 is additional relief not in derogation of any other law. It is well settled law that Arbitration clause in the agreement does not oust the jurisdiction of Consumer Forum. See 2005 (IV) CPJ 51 NC titled Juliet V. Quadros Versus Malti Kumar & Ors. See 2008 (1) CPJ 404 NC Associated Road Carriers Limited Versus Kamlender Kashyap & Ors.
13Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018)
21. Submission of learned Advocate appearing on behalf of Finance Company that dispute inter se parties is relating to settlement of accounts and settlement of accounts dispute is not within the jurisdiction of Consumer Forum and on this ground appeal filed by Finance Company be allowed is decided accordingly. State Commission is of the opinion that present matter is not relating to settlement of accounts dispute but is relating to procedure adopted by Finance Company for repossession of vehicle. It is proved on record that Finance Company has not adopted proper procedure for repossession of vehicle. Finance Company has not prepared inventory report signed by complainant or her authorized agent and Finance Company has also not issued notice to the complainant for repossession of vehicle. It is proved on record that Finance Company has not adopted due process of law and has committed deficiency in service. See 2017 (II) CPJ 542 NC titled L&T Finance Ltd. Versus Shaikh Khayum & Anr. See 2017 (II) CPJ 561 NC titled Satya Narayan Adhikari Versus Moyank Poddar & Ors.
22. Submission of learned Advocate appearing on behalf of Finance Company that learned District Forum has granted excessive punitive compensation to the tune of Rs.40000/- (Forty thousand) to the complainant and on this ground appeal be allowed is decided accordingly. State 14 Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018) Commission is of the opinion that complainant is widow aged 65 years and is senior citizen and it is proved on record that complainant has sustained mental agony and harassment and State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to reduce punitive compensation amount as ordered by learned District Forum.
23. Submission of learned Advocate appearing on behalf of Finance Company that excessive litigation costs to the tune of Rs.5000/- (Five thousand) has been granted by learned District Forum to the complainant and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that complainant is widow aged 65 years and is senior citizen and complainant has engaged Advocate before learned District Forum and also paid litigation expenses. State Commission is of opinion that it is not expedient in the ends of justice and on the principles of natural justice to reduce the litigation costs as ordered by learned District Forum.
24. Submission of learned Advocate appearing on behalf of complainant that order of learned District Forum did not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that order of learned District Forum is in accordance with law and in accordance with proved facts and it is not expedient in the 15 Shri Ram Transport Finance Co. Ltd. & Ors. Versus Smt. Kiran Devi alias Kiran Loomba (F.A. No.191/2018) ends of justice and on the principles of natural justice to interfere in the order passed by learned District Forum. Point No.1 is decided accordingly.
Point No.2: Final Order
25. In view of findings upon point No.1 above appeal is dismissed. Order of learned District Forum is affirmed. Parties are left to bear their own litigation costs before State Commission. Order of Learned Judicial Magistrate First Class District Mandi Annexure C-4 qua release of vehicle in question on superdari to complainant in FIR No.142 of 2011 registered under Section 379 IPC shall form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 11.04.2019.
*GUPTA* 16