State Consumer Disputes Redressal Commission
M/S.Mahindra And Mahindra Financial ... vs Aslam Sarfaraj Shaikh on 2 May, 2014
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FA/No.1467 & 902-2008
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI CIRCUIT BENCH AT AURANGABAD.
Date of filing : 25/08/2008
Date of order : 02/05/2014
FIRST APPEAL No : 902 of 2008
IN COMPLAINT CASE NO : 57 OF 2008
DISTRICT CONSUMER FORUM: AHMEDNAGAR.
M/s.Mahindra and Mahindra Financial Services Pvt.Ltd
Branch office Srirampur Tq.Srirampur,
Dist. Ahmednagar,
Through its Authorised Signatory
Anil Bhaurao Salve APPELLANT
VERSUS
1. Aslam Sarfaraj Shaikh
R/o.Ward No.1 Srirampur Tq.Srirampur,
Dist. Ahmednagar.
2. The Sub.Divisional Road Transport Officer
Srirampur Dist. Ahmednagar.
3. The Director (President)
Mahindra & Mahindra Pvt.Ltd
Gateway building Apollo,
Mumbai 39. RESPONDENTS
Present : Adv.Shri.A.K.Patani for the appellant.
Adv.Shri.Narwade Patil for the respondent No.1.
None for respondent No. 2.
Adv.Shri.S.A.Pradhan for the respondent No. 3.
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FA/No.1467 & 902-2008
(2)
Date of filing : 26/08/2008
Date of order : 02/05/2014
FIRST APPEAL No : 1467 of 2008
IN COMPLAINT CASE NO : 57 OF 2008
DISTRICT CONSUMER FORUM: AHMEDNAGAR.
Aslam Sarfaraj Shaikh
R/o.Ward No.1 Srirampur Tq.Srirampur,
Dist. Ahmednagar. APPELLANT
VERSUS
1. M/s.Mahindra and Mahindra Financial Services Pvt.Ltd
Kamble Complex near Hotel Uday Palace,
Newasa road at Shrirampur,
Dist. Ahmednagar,
2. Regional Transport Officer
RTO Office Srirampur,
Dist. Ahmednagar.
3. The Managing Director-cum Chairman
Mahindra & Mahindra Pvt.Ltd
Gateway building Apollo Bandar,
Mumbai 39. RESPONDENTS
Present : Adv.Shri.Narwade Patil for the appellant.
Adv.Shri. A.K.Patani for the respondent No.1.
None for respondent No. 2.
Adv.Shri.S.A.Pradhan for the respondent No. 3.
Coram : Mr.S.M.Shembole, Hon'ble Presiding Member.
Mr.K.B.Gawali, Hon'ble Member.
ORALORDER Page 3 of 16 FA/No.1467 & 902-2008 Per. Mr.K.B.Gawali, Hon'ble Member.
1. Both these appeals have been originated from the common judgment and order dated 09/07/2008 passed by the Dist. Consumer Forum Ahmednagar, in CC.No.57/2008. The appeal NO. 902/2008 is filed by the original opponent No. 1 i.e. Mahaindra & Mahindra Finance Services Pvt.Ltd whereas the appeal No. 1467/2008 is filed by the original complainant namely Shri. Aslam Sarfaraj Shaikh. The respondent No. 1 in either of these appeals are the original complainant and opponent No. 1 respectively whereas respondent Nos. 2 and 3 in both these appeals are the original opponent Nos. 2 and 3 which are RTO Shrirampur and Mahindra & Mahindra manufacturing company, Mumbai respectively. For better understanding the appellant in appeal No. 902/2008 is herein after termed as " the opponent finance company" and the appellant in appeal No. 1467/2008 is termed as the "Complainant" The respondent No. 2 in both the appeals is hereinafter termed as "RTO Shrirampur" and respondent No. 3 in both the appeals is herein termed as the "Opponent manufacturing company"
2. The issue involved in both these appeals being the same, we have decided to dispose of them by a common judgment and order.
3. The brief facts leading to both these appeals are that the complainant was doing the business of public carrier ( Transport ) That, for his said business he had purchased Mahindra max Page 4 of 16 FA/No.1467 & 902-2008 vehicle from the Shriram Automobiles, Ahmednagar as manufactured by opponent manufacturing company in the month of July 2005. That, for purchase of his vehicle the complainant had obtained loan of Rs 3,82,000/- from the opponent finance company. The said vehicle was registered with RTO Shrirampur having registration No. MH-17-T-5258 and also obtained permit for transport of passengers. It was contended by the complainant that immediately after purchase of the said vehicle he noticed certain technical problem in its gear box. That, when contacted with the opponent manufacturing company it was told that within 4 to 5 months of use the said defect would be removed. However, the said defects persisted. That, the complainant by his letter dated 02/06/2007 intimated to the opponent finance company about the said defects and further the lapse on the part of the dealer in not removing the said defects. Hence, he filed consumer complaint bearing No. 403/2007 before the Dist. Consumer Forum claiming change of gear box. This complaint was decided by the Dist. Consumer Forum on 25/01/2008 allowing the complaint.
4. It was further contended by the complainant that due to the said defect in the vehicle he could not use the same, due to which he could not make there payment of installments of loan to the opponent finance company. He further submitted that during the pendency of the said complaint bearing No. 403/2007, the opponent finance company by its notice dated 26/06/2007 demanded the outstanding loan of Rs 51,047/- and by further Page 5 of 16 FA/No.1467 & 902-2008 notice dated 05/10/2007 demanded Rs 76,489/-. That, by the said notice the complainant was given ultimatum for payment of the said outstanding loan amount within 7 days and was also made clear that failing to make the payment, the said vehicle would be repossessed. That, although he had requested to the opponent fiancé company that he had already filed consumer complain against opponent manufacturing company, till the said complaint was decided no action regarding repossession of the vehicle be taken by it. However, the opponent finance company on 07/02/2008 illegally reposessed the said vehicle.
5. The complainant contended that, since the said vehicle was not in use from July 2007 on account of defective gear box he could not earn any income which resulted in to defaulting repayment of loan and therefore the opponent manufacturing company was responsible for the repossession of the said vehicle. He therefore filed complaint before the Dist. Consumer Forum seeking direction to the opponent No. 1 as not to sale the said vehicle and to maintain status quo till the final decision of the complaint. He had also sought direction against the RTO as not to make any change in the ownership of the vehicle till the final decision of this complaint. That, the opponent No. 1 should return the vehicle to the complainant. He had also sought direction against opponent No. 3 to make payment of outstanding loan installments from Jully 2007 onwards to the opponent finance company. He had also sought direction to pay a compensation of Rs 10,000/- towards mental and Page 6 of 16 FA/No.1467 & 902-2008 physical harassment and Rs 5000/- towards cost of the complaint against the opponent finance company and opponent manufacturing company.
6. The opponent finance company by way of its written version contested the complaint. It was submitted that the complainant was sanctioned loan of Rs 3,82,000/- and considering financial charges of Rs 1,19,216/- the total amount payable was Rs 5,01,216/- which was agreed to be paid in 48 monthly installments each of Rs 10,442/- as per the agreement. It was contended that, as per clause 29 of the said agreement if any dispute would arise about the said agreement the same shall be referred to Arbitration in Mumbai only. Hence, it was averred that the Dist. Consumer Forum had no jurisdiction to entertain the complaint. It was also contended that, since the vehicle was purchased from the commercial purpose the complainant was not a consumer U/Sec. 2(1)(d) of the Consumer Protection Act. That, as per clause 14 of the agreement the opponent finance company was empowered to reposeses the vehicle in the event of any default committed by the complaint. It was further contended that, at the time of filing of written version the complainant was in arrears of Rs 92,815/-. Thus it was contended that the complainant himself has admitted to have defaulted the payment of installments. The, opponent finance company therefore had repossessed the vehicle as per the terms of the agreement. Hence, there was no deficiency in service on its part.
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7. The opponent RTO Shrirampur by its written version submitted that the said vehicle i.e. Mahindra max model 2005 was registered with it on 08/07/2005 in the name of the complainant. The opponent manufacturing company i.e. opponent No. 3 however, did not remain present before the Dist. Consumer Forum.
8. The Dist. Consumer Forum after considering the evidence on record submitted by the parties to the dispute partly allowed the complaint by way of its impugned judgment and order directing the opponent finance company to issue no dues certificate to the complainant and also to pay Rs 10,000/- towards mental and physical harassment and Rs 1000/- as cost of the complaint. It is held by the Dist. Consumer Forum that on the basis of the record available the complainant had not deposited 8 to 9 installments and therefore as per the agreement the opponent finance company was empowered to reposses the vehicle. However, it is held that the opponent finance company has taken the possession of the vehicle without having any order from the competent court. In support of the said observations the Dist. Consumer Forum has relied upon the ratio given in the case of C.T.Corp Maruti Finance Ltd -V/s- S.Vijayalaxmi 2007 (3) CPR 191 (NC) and further considering that said vehicle was sold by the opponent finance company it has denied the claim regarding return of the vehicle and accordingly passed the impugned judgment and order.
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9. Aggrieved and dissatisfied by the said judgment and order the present appeals have been filed by the opponent finance company and original complainant in this Commission. Both these appeals were jointly heard on 20/03/2004 finally. Adv.Shri.Narwade Patil was present for the complainant whereas Adv.Shri. A.K.Patani was present for the opponent finance company, none appeared for the opponent RTO. Adv.Shri.S.A.Pradhan was present for the opponent manufacturing company. That all the three Ld. Counsel have already submitted their written notes of arguments. We also heard the Ld. Counsel present for the respective parties and the matter was adjourned for judgment and order.
10. The Ld. Counsel Shri. A.K.Patani for the opponent finance company submitted that, the reasons given by the complainant i.e. defects in the vehicle for non repayment of loan were not sustainable and not acceptable. He submitted that the alleged defects of gear box has nothing to do with opponent finance company. He further submitted that the complainant himself has admitted to have made default in the repayment of loan and as per the agreement the opponent finance company is very well empowered to reposses the vehicle. He further contended that the vehicle in question came to be surrendered by the complainant himself. Hence, the question of forceful repossession did not arise. However, the Dist. Consumer Forum has failed to consider this point and has passed the impugned judgment and order granting the relief which was not sought by the complainant. It has Page 9 of 16 FA/No.1467 & 902-2008 contended that the impugned judgment and order passed by the Dist. Consumer Forum requires to be quashed and set aside. In support of his arguments he relied upon the following case laws:
i. The Managing Direction, Orix Auto Finance (India) Ltd -
V/s- Shri. Agmandirsingh and another 2006 (2) all MR (S.C.) 68 wherein it is held that the agreement in permit the financer to take possession of the financed vehicle, there is no legal impediment for such possession being taken.
ii Shrinivas -V/s- M /s Mahindra Finance 2011 (3) CPR 113 (NC) in which it is held that the Hon'ble National Commission that seizer of vehicle under agreement for default in payment of installments can not be considered as deficiency in service.
iii. Surendrakumar Sahoo -V/s- Branch Manager, Indusland Bank- 2012 (4) CPR 313 (NC) in which it is held by the Hon'ble National Commission that the financer can repossees the vehicle for default of payment of installments.
11. The Ld. Counsel Shri. Narwade Patil for the complainant by way of his arguments submitted that, since in the bigning the said vehicle had major defects for which opponent manufacturing company and its dealer were responsible . He further submitted that the Dist. Consumer Forum Ahmednager by its order dated Page 10 of 16 FA/No.1467 & 902-2008 25/01/2008 also directed the opponent manufacturing company and its dealer to replace the gear box of the vehicle by new one. That, because of the defective vehicle the complainant could not ply the said vehicle on road since month of Jully 2007 and therefore as there was no earning he could not deposit further installments of loan. The Ld. Counsel Shri. Narwade Patil therefore contended that it is the opponent manufacturing company which is responsible for non payment of said installments of loan. That both the opponent finance company and opponent manufacturing company belonging to Mahindra and Mahindra Company and therefore both of them in collusion with each other had illegally and forcibly taken the possession of the dispute vehicle. He therefore contended that the Dist. Consumer Forum ought to have directed to the opponent No. 1 to restore the possession of the vehicle by directing the opponent No. 3 to replace the gear box and to pay the balance installments of the loan amount to the opponent No. 1. He therefore requested to allow the appeal of the complainant and dismiss the appeal filed by the opponent finance company. In support of his arguments he relied on the following citations amongst other:
i. City Corp Maruti Finance Ltd -V/s S. Vijayalaxmi III (2003) cpj 161 (NC).
ii Jagrut Nagrik and another -V/s- East Africa and another (IV) 2008 CPJ 116 (NC).
iii Maruti Udyot Ltd -V/s- Nangram Bairwa and another- I (2009) CPJ 203 (NC).Page 11 of 16
FA/No.1467 & 902-2008 iv Hindustan Motors Ltd -V/s- Malwa Engineering Corporation and others III (2001) CPJ 13 (NC).
v Ramesh S. Patil -V/s- Ajay Agro Agency and another III (2002) CPJ 296 (NC).
vi Ghiluram -V/s- Escorts Ltd IV (2003) CPJ 38 (NC). vii Maruti Udyog Ltd-V/s- Narendrakumar Warma and another II (2008) CPJ 22 (NC).
12. The Ld. Counsel Shri. A.S.Bajaj for opponent manufacturing company submitted that the present opponent manufacturing company had nothing to do with the action of repossession of vehicle on 07/02/2008. It is further submitted that although the Dist. Consumer Forum passed the order dated 25/01/2008 for replacement of gear box within one month, he could not comply the same as the said vehicle was already possessed by the opponent finance company on 07/02/2008. Hence, the order passed in CC.No. 304/2007 had became infractous. The Ld. Counsel Shri.Pradhan who also argued the matter orally submitted that the opponent manufacturing company can not be held responsible for making of default in repayment of loan as claimed by the complainant and hence the appeal of the complainant be dismissed against it.
13. We have carefully gone through the papers for both the appeals containing copies of complaint, written version filed by the opponent finance company, opponent RTO, the notices issued by Page 12 of 16 FA/No.1467 & 902-2008 the opponent finance company to the complainant for payment of the defaulted loan installments, impugned judgment and order, appeal memos, written notes of arguments filed by all the three Ld. Counsel of the respective parties and other documents.
14. There are two major questions which arise for our consideration (i) Whether both the appeals can be allowed and (ii) Whether the impugned judgment and order requires our intervention.
15. In order to consider the question No. 1 above, we have to verify the prayer made by the appellant in the respective appeals. The opponent finance company in appeal No. 902/2008 has prayed for setting aside the impugned judgment and order. The grounds on the basis of which the opponent finance company had made the said prayer are, that the opponent finance company has acted as per the loan agreement in repossession of the vehicle. It is contended that the complainant himself has admitted to have defaulted the loan installments due to the alleged defects in the vehicle that before the repossession of the vehicle. The opponent finance company by its notice dated 26/06/2007 and further by another notice dated 05/12/2007 had asked the complainant to pay the defaulted amount of loan within a period of 7 days, else the vehicle would be repossessed. It is therefore contended by the Ld. Counsel Shri. Patani for the opponent finance company that following due procedure it has repossessed the vehicle and therefore Page 13 of 16 FA/No.1467 & 902-2008 there was no deficiency in service. It is further contended that by Ld. Counsel while passing the order dated 09/07/2006 which is under appeal, the Dist. Consumer Forum has acted beyond the prayer of the complainant. In fact both these contention of the Ld. Counsel Shri.Patani are not sustainable and hence can not be accepted. Although, the opponent finance company had given pri- possession notice to the complainant, it does not appear that it had given pre-sale notice of the said vehicle to the complainant. There are also no documents on record to show the price at which the said vehicle was sold. Had the opponent finance company given pre- sale notice the complainant could have availed the opportunity to participate in the sale proceeds of the said vehicle. However, though as per the case laws relied upon by the Ld. Counsel Shri. Patani, the opponent finance company was empowered to reposses the vehicle it has not followed due procedure of selling of the vehicle which amounts to deficiency in service on the part of the opponent finance company.
16. It is further revealed that, the complainant has failed to pay all the installments of loan till July 2006 i.e. for about 24 months ( July 2005-Jully 2007 ). The vehicle came to be repossessed on 07/02/2008 and since the complainant failed to deposit further installments it was not proper on the part of the Dist. Consumer Forum to direct to return the vehicle to the complainant. However, as the complainant used the said vehicle only for 2 and half year and paid almost half of the amount payable to the finance Page 14 of 16 FA/No.1467 & 902-2008 company, it can not be expected from the complainant to repay the balance loan amount as the said vehicle has already been taken in his possession by the opponent finance company. We therefore find that the Dist. Consumer Forum has rightly passed the clause (1) of the order directing the opponent finance company to issue "no dues certificate" to the complainant. The complainant in his complaint though not made a express prayer in his complaint regarding issue of no dues certificate he had made prayer at the end of the complaint to grant any other just relief to the complainant. Hence, under this prayer the clause 2 (a) of the order it is very well covered. Further for deficiency in service the Dist. Consumer Forum has rightly awarded the compensation of Rs 10,000/- and also cost of the complaint as Rs 1000/-. Hence, we find that the appeal filed by the opponent finance company having no merit deserves to be dismissed.
17. As regards the appeal No. 1467/2008 filed by the complainant it is prayed by the complainant that to direct the opponent finance company and the manufacturing company to maintain statues-quo in respect of the said motor vehicle by handing over the custody of the vehicle to the complainant. He has further made prayer to direct the opponent No. 3 to replace the gear box and further to direct the opponent No. 3 to pay the installments of loan which are due from the month of July 2007 till the date of replacement of the gear box of the vehicle etc. In fact all these prayers are not sustainable and hence can not be accepted. The complainant's claim about return Page 15 of 16 FA/No.1467 & 902-2008 of the vehicle without repayment of outstanding loan can not be accepted. It is very interesting to note that the complainant has claimed replacement of gear box in this appeal which is filed against the judgment and order 09/07/2008. It is to be noted that there is no prayer for replacement of gear box. In fact the complainant have already filed another complaint bearing No. 304/2007 in which the Dist. Consumer Forum by its order dated 25/01/2008 has already sanctioned his prayer and therefore the said prayer is now out of place in this appeal. The prayer of directing the opponent manufacturing company to deposit the loan installments also appears to be irrelevant and can not be accepted. Replacement of gear box and repayment of loan are these two separate things and hence it can not be placed together as the authorities of making finance and manufacturing of the vehicle are different. The case laws pertaining to the case of Citi Corp Maruti Finance Ltd -V/s- Vijayalaxmi (Supra) as relied upon by the Ld. Counsel Shri. Narwade Patil for the complainant is not applicable to the present case as the facts and circumstance are different. In the case under citations no notice was given before reposessing of the vehicle however, in the present case the opponent finance company had given notice before repossession and same has been admitted by the complainant. The other citations almost deal with manufacturing defects and hence they are not applicable to the issue involved in the present case. We thus find that, the appeal filed by the complainant also has no merit and hence deserves to be dismissed.
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18. In view of the aforesaid facts and observation we reply the question No. 2 in affirmative and hold that there is no reason to interfere with the impugned judgment and order passed by the Dist. Consumer Forum . Hence, we pass the following order.
ORDER
1. Both the appeals bearing Nos. 902/2008 and 1467/2008 are hereby dismissed.
2. No order as to cost in this appeal.
3. Copies of the judgment and order be sent to both the parties.
K.B.Gawali S.M.Shembole Presiding Member Presiding Judicial Member A.H.Patil Steno H.G.