State Consumer Disputes Redressal Commission
Jitendrasingh Harbhajansingh Bhambra vs Shriram Trance Port Finance Ltd on 3 January, 2020
1 FA/07/2018
Date of filing :05.01.2018
Date of order :03.01.2020
MAHARASHTRA STATE CONSUMER DISPUTE
REDRESSAL COMMISSION,MUMBAI, BENCH AT
AURANGABAD.
FIRST APPEAL NO. : 07 OF 2018
IN COMPLAINT CASE NO.: 605 OF 2017
DISTRICT CONSUMER FORUM : NANDED.
Jatindrasingh s/o Harbhajansingh Bhamra,
R/o Abchalnagar, Nanded. APPELLANT
VERSUS
Shriram Transport Finance Co. Ltd,.
3rd floor, Jaya Chembers, Janki Nagar,
Hingoli road, Nanded. RESPONDENT
CORAM : Smt.S.T.Barne, Hon`ble Presiding Judicial
Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv.Smt.S.M.Zarkar for appellant,
Adv.R.S.Gangakhedkar for respondent.
JUDGMENT
(Delivered on 03/01/2020) Per Smt.S.T.Barne, Hon'ble Presiding Judicial Member.
1. The appellant Jatindrasingh s/o Harbhajansingh Bhamra has preferred this appeal against the judgment and order in CC No.605/2017 decided by District Consumer Forum Nanded on 14.12.2017. The appellant is the complainant and respondent is the 2 FA/07/2018 opponent in the original complaint. Hence, they are hereinafter referred as complainant and opponent as per their status in the complaint.
2. The complainant has filed complaint u/sec.12 of Consumer Protection Act,1986 before District Consumer Forum. It is alleged therein that he is resident of Abchalnagar, Nanded. He is the owner of truck number MH-26-H-7471. He is maintaining his family by running said truck. He has purchased said truck by raising loan of Rs. 6,75,000/- on 25.02.2015 with the finance assistance of opponent. He was supposed to make repayment of said loan by 48 monthly instalment of Rs. 22,100/- till March 2019. Since April 2015 to July 2017 he was supposed to make payment 28 instalments of Rs.6,18,800/-. He has made repayment of Rs. 2,92,000/- by that time and the amount of Rs.3,26,800/- remained unpaid till July 2017. The complainant time and again requested the opponent to accept the amount which was due towards the instalments. However, he started demanding Rs.9,50,000/- lump sum. As the opponent refused to accept payment by instalment, the arrears of instalment were increasing day by day On 15.07.2017 the complainant had been to Panjab. In his absence the representative of opponent unloaded Ultra take cement bags from his truck at Gangakhed Dist.Parbhani and repossessed the vehicle. When the opponent went to request the opponent to accept the amount of arrears of instalments the opponent refused to accept it and demanded Rs 9,50,000/- in lump sum. The opponent also caused threatening to complainant that they would sale the vehicle by 11.10.2017. The act of the opponent is amounting to unfair trade practice and deficiency in service 3 FA/07/2018 towards the complainant. Hence, he has filed complaint against the opponent before District Consumer Forum, Nanded. The complainant claimed relief of injunction against the opponent restraining them from alienating the vehicle, Rs. 25,000/- towards mental agony and Rs. 30,000/- per month till getting possession of said vehicle from the opponent.
3. The opponent Insurance Company has filed its reply before District Consumer Forum. Copy of the same is at page No 59. The opponent has denied all adverse allegations in the complaint. It is submitted on behalf of opponent that there is no cause of action to file the complaint. The complaint is not tenable before District Consumer Forum for the relief claimed. The complainant is in arrears of loan instalments. It is difficult to recover the amount of arrears from the complainant which is in arrears till 19.10.2017 towards instalment & Penal interest amounting to Rs. 6,35,971/-. The complainant has hypothecated the truck with the opponent against the loan amount. The complainant was supposed to pay monthly instalment of Rs. 22,100/- on or before 5th day of the month and if he failed to make repayment within said time it was agreed to charge 3% penal interest on the said amount. The complainant has paid only amount of Rs. 2,44,050/- when he was supposed to make payment of Rs.6,22,645/- till 05.07.2017 out of Rs.3,78,595/- is the principle amount and Rs. 1,32,867/- is against interest and penal interest. It is the contention of opponent that the allegation made by the complainant are false. The opponent is ready to handover the possession of vehicle, if the complainant made payment of Rs.5,11,462/- against the arrears of amount. The complainant is 4 FA/07/2018 defaulter. However, he has deliberately filed this complaint. Hence, the opponent prayed for dismissal of complaint.
4. On giving opportunity of hearing to both the parties District Consumer Forum, Nanded pleased to dismiss the complaint. Hence, the complainant has preferred this appeal on the following grounds.
That, the District Consumer Forum has committed error in deciding the complaint. The District Consumer Forum failed to consider that the complainant has deposited the amount of Rs. 2,00,000/- in the District Consumer Forum to show his bonafide to make repayment. The District Consumer Forum failed to consider that the opponent made statement that they never insisted the complainant to make payment in lump sum. However, in their reply they are claiming that if complainant made payment of Rs.5,11,462/- they are ready to handover the vehicle to the complainant. The District Consumer Forum failed to consider deficiency in service on the part of opponent. The District Consumer Forum also failed to consider that the complainant has made payment of Rs.2,92,000/- to the opponent from time to time. Then he has deposited Rs. 2,00,000/- in the District Consumer Forum. The opponent without issuing notice have possessed the vehicle. Hence, the complainant is requesting for setting aside the judgment and order of District Consumer Forum.
5. On the respective submissions between the parties following points arise for our determination. We have noted them along with our findings accordingly for the reasons to follow.
5 FA/07/2018
Sr.No. Points. Findings.
1. Whether there is deficiency in service No.
on the part of opponent?
2. Whether there requires interference No.
in the judgment and order of District
Consumer Forum?
3. What order? As per final order.
REASONS
6. Point No.1&2 :- Learned Adv. for appellant argued that the complainant raised loan of Rs. 6,75,000/- from opponent bank to purchase truck in the month of April 2015. It was to be repaid by 48 monthly instalments of Rs. 22,100/- each by March 2019. In the month of July 2017 near about 28 instalments were to be paid the amount of which comes to be Rs.6,18,800/- . The complainant paid amount of Rs.2,92,000/- from time to time. The complainant was ready to deposit few instalments. However, opponent refused to accept it and therefore, amount of arrears was increasing. With this attitude the opponent have committed deficiency in service. The opponent further seized the vehicle by unloading the goods from truck on 15 July 2019 forcibly without giving prior notice and again committed deficiency in service and adopted unfair trade practice. The opponent was insisting the complainant to deposit the amount of Rs. 9,50,000/- in lump sum which clearly reveals from their reply itself. The District Consumer Forum committed error by ignoring the instances of deficiency in service on the part of opponent. On behalf of opponent it is argued that admittedly by July 2017 in all 28 instalments were remained unpaid, amounting to Rs. 6,18,800/-. However, the complainant is claiming that he paid Rs. 2,92,000/- till 6 FA/07/2018 then and amount of Rs. 3,26,800/- was in arrears and when it has become impossible to recover the amount from complainant the vehicle is seized and the intimation is also given to police. The opponent was ready to hand over the possession on receiving the arrears amount towards the instalments. However, this complainant was in default and there is no deficiency in service on the part of opponent. Hence, the opponent supported the judgment of District Consumer Forum.
7. The complainant has produced some payment receipts against the payment made and documents of the vehicle. Copy of intimation to police, copy of inventory and clerking sheet, copy of notice forwarded to opponent, the bank statement of loan account of the complainant, copy of deed of hypothecation, statement of monthly instalment schedule.
8. Admittedly, the complainant has raided loan from opponent of Rs. 6,75,000/- in the month of April 2015. It was agreed to make repayment of said loan within 48 instalments payable with the instalment of Rs. 22,100/- each till March 2019. Admittedly, the complainant was supposed to pay 28 instalments by 5th July 2017 which amounts comes to Rs. 6,18,800/-. According to complainant he made payment of Rs.2,92,000/- towards the said instalments and amount of Rs.3,26,800/- was in arrears. It is alleged by the complainant that the opponent was claiming in lump sum amount of Rs.9,50,000/-. Therefore, amount of arrears of instalment was increasing. There is not a single document produced by complainant to show that he has made efforts to make payment of instalment 7 FA/07/2018 regularly. In fact, payment receipt produced on record itself shows that he was not regular in payment. As mentioned earlier he was in arrears of Rs. 3,26,800/-. The complainant is also claiming that the opponent took possession forcibly by unloading goods i.e. Ultra take cement boxes from the vehicle. No such document is produced on record to show that the vehicle is repossessed forcibly. There is no immediate complaint or subsequent one, to that effect against the opponent.
9. On the other hand according to opponent admittedly the complainant was supposed to make payment of 28 instalments amounting to Rs.6,18,800/- by July 2015. However, only amount of Rs.2,44,050/- was deposited by the complainant and thus huge amount was in arrears. The opponent has produced the statement showing the details of payment made and also agreement of hypothecation showing terms and conditions for repayment of loan. From which it reveals that the amount of Rs.5,12,000/- was in arrears till July 2015 against the arrears of instalments and the penal interest payable in default as agreed in the hypothecation agreement. It reveals that continuously for about a year no amount towards the instalment in arrears was paid between July 2016 to July 2017. Therefore, there appears substance in the argument on behalf of opponent that it was become impossible to recover amount from complainant. It reveals that in the agreement itself the complainant has agreed to make payment on or before 5th day of each month. It is mentioned in the agreement that in the event of default, if the borrower has committed one or more default the finance company is at liberty to seize the hypothecated assets or any part or portion 8 FA/07/2018 thereof, being confiscated, attached or taken into custody by any authority or becoming the subject of any legal proceedings.
10. The learned Adv. for appellant has placed reliance upon the judgment of this Commission in FA/343/2013 decided on 16.12.2013 in Balasaheb Lad Vs. Shriram Transport Finance. The judgment of Hon'ble National Commission in Revision Petition No. 1657/2009 - A. Ganesan Vs. Manager, Indusind Bank Ltd,. decided on 30.10.2009 wherein the action on the part of finance company in repossessing the vehicle on default of borrower to make repayment of instalments is held proper by holding that there is no deficiency in service on the part of opponent financer.
11. In the case in hand admittedly the huge amount was in arrears against the 28 instalments which were supposed to be paid amounting to Rs. 6,18,000/- on the date of seizer of vehicle as against which hardly amount of Rs.2,44,000/- was paid by the complainant by that time and the complainant himself approached to the District Consumer Forum when he himself was in default of payment of instalments.
12. The complainant gave emphasis on the point that after filing the complaint he has deposited amount of Rs. 2,00,000/- with District Consumer Forum. However, it can not be ignored that while approaching District Consumer Forum itself the complainant was in default. Therefore, merely because the complainant has deposited Rs. 2,00,000/- is no sufficient to satisfy the amount which was actually in arrears till then.
9 FA/07/2018
13. Apart from this the complainant has given much emphasis on the point that there is no pre seizure notice given to complainant. In fact when the complainant was in arrears of huge amount by committed breach of terms and conditions of the hypothecation agreement and for about one year no payment was made against the arrears before seizure of vehicle. When there was reason for opponent to believe that it is difficult to recover the amount the opponent has seized the vehicle by giving intimation to police. On the contrary there is no bonafide shown by the complainant that he has made any effort to make repayment by regular payment as agreed and even there is no evidence to show that any force is used by opponent in seizure of the vehicle. There appears no substance in the contention of complainant that the opponent has committed any deficiency in service.
14. Lastly we would like to mention here that after seizure of the vehicle instead of approaching to Civil Court the complainant approached to District Consumer Forum by claiming the relief of injunction restraining the opponent from alienating or transferring the vehicle in any manner, which is not within the jurisdiction of District Consumer Forum. The opponent has raised objection that there is arbitration clause on the basis of which the complainant was supposed to take initiative for arbitration proceeding. However, it can not be ignored that there is no bar in filing the complaint for deficiency in service if any mal trade practice is adopted by the opponent service provider. In this case however, the complainant failed to establish any kind of such deficiency in service on the part of 10 FA/07/2018 opponent. Hence, we are of the opinion that the District Consumer Forum has rightly concluded the complaint and there requires no interference in the judgment and order of District Consumer Forum. Hence, we answer the points accordingly and pass following order.
ORDER
1. The appeal is dismissed.
2. No order as to costs.
Mr.K.M.Lawande Smt.S.T.Barne, Member Presiding Judicial Member UNK