DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.
Present: Sri Manoranjan Hazra,President.
Rajalaxmi Das,Member.
C.C.No.339/2008
Ramesh Chandra Singh,
At:Sutahat Christian Sahi,
PS:Lalbag,PO:Buxibazar,
Dist:Cuttack. …..… Complainant.
Vrs.
1. The Manager,
TATA Motors Finance Ltd.,
Gurudwar, Unit-3, Bhubaneswar, Dist: Khurda.
2. General Manager,
TATA Motors Ltd. B.H,P.C, Bezzola Complex,First Floor,
V.N.Purab Marg, Chembur, Mumbai.
3. Mourya Motors Ltd.,
At Plot No.C1, Industrial Area,
Pataliputra, Patna. Bihar. …… Opposite Parties.
JUDGMENT DT.21.12.09
Sri Manoranjan Hazra,President.
Alleging deficiency in service against the Opposite Parties., the present complaint is filed.
1. The brief facts of the case of the complainant are that in order to maintain his livelihood, the complainant purchased a Tata Tipper bearing Regd. No.OR-05-S-0753 being financed by Opposite Party No.1.The total finance amount was of Rs.9,06,375/- which was to be repaid by 35 monthly instalments.While the matter stood thus, the complainant repaid a sum of Rs.4,47,000/- till March,08.Due to mechanical defect, the said vehicle was kept in the garage for repair and in the month of June,08, the same was brought to road.As the vehicle was in the garage and there was no income out of the same, the complainant failed to repay some instalment amounts, as such in the month of
August,08, the Opposite Party No.1 forcibly seized the vehicle at Cuttack by handing over a repossess list to the driver under Annex-3. Inspite of repeated requests, as the vehicle was not handed over to the complainant finally on 15.9.08 the complainant filed this complaint for release of the vehicle, to pay 18% interest to the loss of his business, Rs.10,000/- towards loss and damage etc towards mental agony and harassment and Rs.5000/- towards cost of litigation.
2. Though the Opposite Party No.1 entered its appearance and filed its version, during course of argument it was found that Opposite Parties. 2 & 3 are involved in the matter of financing the vehicle as well as seizure thereof. Therefore on the direction of this Forum vide order dt.20.5.09 Opposite Parties. 2 & 3 entered their appearance and filed separate versions. The version as filed by Opposite Party No.1 was subsequently adopted by Opposite Party No.2. The Opposite Parties. 1 & 2 in their joint version alleged that the complaint is not maintainable because the complainant is not a consumer as defined U/S.2(1)(d) of the Consumer Protection Act. There is no cause of action for filing the present complaint. It is further stated that the Opposite Party No.2 having not entered into any agreement with the complainant in respect of the vehicle in question, but on the other hand complainant have entered into the loan agreement with Opposite Party No.1. Opposite Parties.1 & 2 are different and independent entities. It is stated that the complainant availed a loan of Rs.7,25,000/- from Opposite Party No.1 to purchase vehicle in question by entering into an agreement dt.12.3.04 bearing No.40854674. The said loan amount was to be repaid by 35 equal monthly instalments of Rs.25,890/- except the first instalment of Rs.24,115/-. As per clause-8 of the said loan agreement, the complainant had executed an irrevocable power of attorney in favour of Opposite Party No.1. The last instalment was payable on 10.2.07. As the complainant defaulted in repayment of the instalment amount, Opposite Party No.1 assigned the loan account of the complainant in favour of Opposite Party No.3 of Bihar on 1.3.07 in accordance with Clause-32 of the loan agreement. After such assignment on 1.3.07, the complainant did not pay any amount to Opposite Party No.1 It is specifically denied by Opposite Party No.1 that repossession of the vehicle was not taken by it on 18.8.08 but On the other hand the same was repossessed by Opposite Party No.3 by using the same format of Opposite Party No.1. Lastly it is stated that as the loan amount was assigned to Opposite Party No.3, the present complaint against Opposite Parties. 1 & 2 is not maintainable On the other hand complainant is to take steps against Opposite Party No.3 and as such prayed for dismissal of the complaint.
3. Opposite Party No.3 filed its separate version alleging interalia that the present complaint is not maintainable because the disputed question as raised by the complainant are complicated questions of facts which can not be decided in this Forum and the present complaint is not maintainable against it as the complainant neither availed nor hired any services from it. It is further stated that the complainant had to avail loan from Opposite Party No.2 and purchased the vehicle in question. As the complainant became a chronic defaulter in payment of instalment dues and as the financer(Opposite Party No.2) could not recover the same, Opposite Party No.2 sold the port folio to it and after such purchase, Opposite Party No.3 intimated the same to the complainant for payment of outstanding dues to it. As the complainant did not pay the outstanding dues, this Opposite Party having no other way repossessed the vehicle in question. After such repossession though the complainant approached for release of the vehicle, did not make any payment thereby the vehicle was sold to one Ajay Sahoo for Rs.3,00,000/- on 25.10.08. Therefore the present complaint is not maintainable and prayed for dismissal of the same.
4. In view of the pleadings of the parties, the question for consideration are
(a) Whether Opposite Parties. 1 & 2 are one and the same?
(b) Whether the complainant was duly noticed by OP No.3 before seizure of the vehicle?
(c) Whether assignment of the loan amount by either Opposite Party No.1 or Opposite Party No.2 to Opposite Party No.3 was duly intimated to the complainant?
(d) Whether Opposite Party No.3 after accepting the assignment of the loan account intimated the same to the complainant?
(e) Whether the complainant is entitled for the reliefs as prayed for?
5. As regards the first point for consideration, it is vehemently argued by the learned counsel for Opposite Parties. 1 & 2 that as Opposite Parties. 1 & 2 are two different and distinct entities, the addition of Opposite Party No.2 amounts to mis-joinder of parties as such the present complaint is liable to be dismissed. Such contention is not acceptable because the agreement under Annex-A produced on behalf of Opp. Parties.1 & 2 clearly reveals that the loan and hypothecation agreement was made on 12.3.04 between Tata Motors Ltd(Opposite Party No.1) a Company incorporated under the Indian Companies Act,1913 and having its registered office at Bombay House,24,Homi Modi Street,Mumbai, herein after called Tata Motors. Similarly Annex-B the deed of assignment reveals that Tata Motors Ltd. a Company incorporated under the Indian Companies Act,1913 having its operating division known as Tata Motor Finance at DGP House, Mumbai, is sufficient to say that both O.Ps 1 & 2 are one and the same.
6. As regards the second question for consideration, no document is forth coming from the side of Opposite Party No.3 to show that before seizure of the vehicle by it under Annex-3 on 18.8.08, a demand was made for repayment of the outstanding dues. Therefore in absence of any prior demand, the seizure as made under Annex-3 is said to be illegal.
7. As regards the third and fourth questions for consideration, it is the case of the Opposite Parties. 1 & 2 that as the complainant failed to repay the loan amount and could not be recovered from him, the loan account was assigned to Opposite Party No.3 for its collection etc. The same is also admitted by Opposite Party No.3 in its version and it is further case of the Opposite Party No.3 is that after such assignment, the complainant was intimated about such fact but not a single scrap of paper is forth coming from the side of Opposite Party No.3 to show that the complainant was intimated regarding such assignment. Similarly no document is produced on behalf of Opposite Parties 1 & 2 to show that the complainant was duly intimated in writing regarding the assignment made to Opposite Party No.3. Annex-B shows that the assignment was made on 1.3.07 but the instalment card produced by the complainant shows that even after March,07 the Opposite Parties. 1 & 2 have received loan amount from the complainant. Therefore such acts of Opposite Parties not only amount to deficiency in service but also amounts to unfair trade practice.
8. As regards the last question for consideration, it is the specific stand taken by O.P No.3 that after seizure of the vehicle though the complainant approached it for release of the vehicle, did not clear up the outstanding dues. So having no other way the vehicle was sold on 25.10.08 to one Ajay Sahoo. But in support of the same not a single scrap of paper is produced by Opposite Party No.3 to show that before such sale, the complainant was duly intimated i.e. a presale notice was given to the complainant. Similarly as regards selling of the vehicle to one Ajay Sahoo for Rs.3,00,000/-, not a single scrap of paper is produced in support of the same. That being so we hold that the stand taken by Opposite Party No.3 is not acceptable on the other hand we hold that due to such act of O.Ps 1,2 & 3 the complainant is entitled for the reliefs as prayed for.
9. While allowing the complaint petition, we direct Opposite Parties.1,2 & 3 who are jointly and severally liable to hand over the vehicle in question as was in condition on 18.8.08 or in the alternative to pay a sum of Rs.10,00,000/-. Further the Opposite Parties are to pay a compensation of Rs.20,000/- to the complainant along with Rs.2000/- towards litigation cost. All the above directions are to be complied within one month from the date of this order.
Judgment pronounced in the open Forum on this the 21st day of December,2009 under the seal and signature of this Forum.
Member. President.