National Consumer
Disputes Redressal Commission
Circuit Bench at Pune,
FIRST APPEAL NO. 720 of 2003
(From the order dated 28.8.2003 passed in Complaint
No. 40 of 2002 by the State Commission,
Tata Finance Ltd.,
82,
Ahdheri (East) Mumbai 400093.
And Branch Office at
18th June Road,
Panajim,
Versus
Francis Soeiro,
Son of lat Shri Anthony Cosmos
Soeiro,
House No.925, Naik Waddo,
Aldona, Bardez,
BEFORE:
HONBLE MR. JUSTICE M.B.SHAH,
PRESIDENT.
HONBLE
MR. S.K.NAIK, MEMBER.
For the Appellant : Mr.P.M.Sharma,
Advocate.
For the Respondent : In Person
Dated the 22nd Feburary , 2008
O R D E R
M.B.SHAH, J. PRESIDENT
This cases illustrates how a financial company can ruin a person who takes loan from it for earning his livelihood.
Admittedly, in this case, the Complainant used the new vehicle, after having its body-building, for 2 to 3 months, and the same was seized from the Complainant on the ground that he failed to pay instalments. Thereafter, it was auctioned and sold at unjustifiably low price. By such an act, the Complainant, a poor person, who has taken loan for purchase of the chasis and thereafter spent huge amounts for its body-building, seats, accessories, etc., again by taking loan from the relatives, has lost his life saving and is made a debtor. His entire dream of having a vehicle for self-earning/employment is frustrated for years together.
The State
Commission accepted the say of the Complainant that the Appellant
unjustifiably, arbitrarily and mala fidely took away the vehicle, Tata LP
407, for the purpose of which the
Complainant has taken a loan of Rs.3 lakhs from the Appellant for purchase of chasis
and sold it thereafter.
Against the order dated 28.8.2003 passed by the State Consumer Disputes Redressal Commission, Panaji, Goa, in Complaint No. 40 of 2002, Appellant, Tata Finance Ltd., has preferred this appeal.
It
is the say of the Complainant that loan was taken for the purchase of chassis
of Tata LP 407. At the time of taking the loan, he was required to pay
Rs.31,839/- which included service charges of Rs.1,500/-. And, thereafter, he
was required to pay monthly instalment of Rs.10,700/- p.m. for a period of
35 months. It is further contended
that:
.(a) the signature of the
Complainant was taken on the agreement dated 1.2.1999 but the same was not
given to him till a police complaint was lodged on the ground of forceful
possession of the vehicle by the Opposite Party Financier.
.(b). after purchase of the
vehicle, the vehicle was required to be kept in the garage for body building
and it took unduly long time and hence he could ply the vehicle only in
September, 1999.
.(c). he was required to spend
Rs.2,23,550/- for its body building, seats, accessories, etc., so as to bring
the vehicle road-worthy, and, for this purpose, he was required to sell
jewellery and also obtained loan from other persons.
Thereafter,
within four months, the Opposite Party forcefully took away the possession of
the said vehicle on the ground that
there was failure to pay instalments. It is contended by him that by
letter dated 03.01.2001 the Appellant demanded some excess amount. At that
time, he drew the attention of the representative of the Appellants at Goa that
he had made the payments regularly.
Despite this, they forcibly took possession of the vehicle on 27th
January, 2001. For this purpose, a
complaint was lodged at Police Station. He further contended that despite
repeated visits to the Appellants office at Bombay and Goa the vehicle was
sold to a third party and the Appellant refunded only amount of Rs.26,190/- to
the Complainant.
Before the State
Commission, as none appeared for the Opposite Party despite service of summons
by the Commission as well as notice by post, the State Commission decided the
matter on the basis of evidence brought on record by the Complainant. The State
Commission accepted the say of the Complainant that he paid, in all,
Rs.3,55,500/- towards instalments for the loan of Rs.3,00,000/- which he had
taken, and, that the Appellant negligently did not include certain payments
made by the Complainant and proceeded under the false belief that the
Complainant had defaulted in paying some instalments. The State Commission also
held that as per Clauses 18 and 20 of the hire purchase agreement entered into
between the parties Appellant was required to issue notice prior to
confiscation/repossession of the vehicle and there was nothing to show that
such notice was given before repossessing the vehicle. Thereafter, the State
Commission observed that the draconian
action of confiscation of the vehicle amounted to grave deficiency in service
on the part of the Appellants. The State Commission accepted the version of the
Complainant that for making the luxury passenger bus the Complainant was
required to spend Rs.7,55,854/-. Therefore, it directed the Appellant to pay
the said amount with interest at the rate of 15% p.a., and also to pay
exemplary costs quantified at Rs.50,000/-
At
the time of hearing of this appeal, the learned counsel appearing on behalf of
the Appellant firstly contended that the ex-parte impugned order passed by the
State Commission requires to be set aside and an opportunity should be given to
the Appellant to defend its case.
It is difficult
to accept the aforesaid contention because after service of summons and the
notice by post, for which acknowledgement is received by the State Commission, if officers of the
Appellant were negligent in not appearing before the State Commission, there
was no alternative for the State Commission but to proceed ex-parte. Hence, on
this ground the order passed by the State Commission cannot be said to be in
any way erroneous.
Further, if we
remit the matter to the State Commission for retrial after a lapse of six
years, the whole purpose of speedy trial would be frustrated, and the poor
consumer who has taken loan from all the sources would be at a great loss.
On merits, the
learned counsel for the Appellant, however, relied upon the notice dated
3.1.2001 given by the Appellant to the Complainant wherein it has been stated
as under:
As
your are aware, we had entered into the above Hire Purchase Agreement with you
Mr.Francis Soeiro as hirer and pursuant thereto entrusted to you the hirer the
captioned vehicle on hire purchase basis.
As
per the terms and conditions of the hire purchase agreement and more
particularly the Second Schedule thereof, you hirer are required to pay the
monthly hires on the stipulated dates as incorporated therein.
You
the hirer have failed to pay the monthly hires as indicated below.
Consequently, on account of the said delay/arrears, you are also liable to pay
us compensation for the said due dates in the line with the agreement together
with further compensation till the date of payment.
Arrears
of monthly hires are as under:
|
Sl. No. |
Due Date |
Hire
Amount |
|
1. |
15.7.2000 |
5,000.00 |
|
2. |
15.8.2000 |
11,350.00 |
|
3. |
15.9.2000 |
11,350.00 |
|
4. |
15.10.2000 |
11,350.00 |
|
5. |
15.11.2000 |
11,350.00 |
|
6. |
15.12.2000 |
11,350.00 |
|
|
Total Amount
|
61,750.00 |
We, therefore, hereby call upon you to
pay the full overdue amount and the compensation thereof within 14 days from
the date thereof, failing which we shall take further action as we are
entitled to under the Hire Purchase Agreement to recover our dues.
As
against this, the Complainant immediately pointed out that there were no
defaults in payment of the instalments as stated in the said notice. He further
pointed out that the demand of instalment at the rate of Rs.11,350/- is also
unjustified. Because, as per the original agreement, the Complainant was
required to pay a sum of Rs.10,700/- as instalment. In support of his
contention and from the chart which is produced on record by the Appellant, it is apparent that
-
on 26.6.2000 the Appellant has
received cash amount of Rs.11,350;
-
instalment cheque dated 15.2.2000
for a sum of Rs.11,350/- was cleared;
-
instalment cheque dated 15.4.2000
for a sum of Rs.11,350/- was cleared;
Similarly, Cheques dated 15.5.2000; 15.6.2000; 15.7.2000; 15.8.2000;
15.9.2000, all for the sum of Rs.11,350/- each were cleared.
It is true that
cheques dated 15.10.2000, dated 15.11.2000, and dated 15.12.2000 were not
cleared. But, as per the notice, the demand was for six instalments. Therefore,
the aforesaid notice stating that there was failure on the part of the
Complainant to pay the instalments on 15.7.2001, 15.8.2000, and 15.9.2000, is
totally unjustified.
For
this purpose, Respondent who is appearing in person vehemently pointed out that
he repeatedly requested the officers of the Appellant at Goa and Bombay that he
has paid the instalments for the month of July, August, and September, and,
therefore, notice demanding the said amount be cancelled and possession of the
vehicle be not taken.
However, the
learned counsel appearing on behalf of the Appellant vehemently contended that
there were default/defaults prior to 15th June, 2000. He, therefore,
contended that the Appellant was justified in seizing the vehicle and selling
the same. He further submitted that before sale also notice was given to the
Complainant.
In our view,
when the notice demanding exaggerated amount is issued and the person who has
taken the loan from various sources including the loan for purchasing the
chassis from the Appellant would not be in a position to pay the said
unjustified amount. Because of the alluring advertisement Complainant took an
adventure of purchasing chassis and of building a luxury passenger vehicle and
has suffered immensely by forcefully taking away the possession of the vehicle
by the Appellant.
Further, it is to be reiterated that to take possession of the vehicle by use of force cannot be justified. It is to be stated that the Complainant had not used the vehicle. He had used the vehicle only for 2 to 3 months and the vehicle was seized from the Complainant. Thereafter, it was auctioned and sold unjustifiably at a low price. By such an act of the appellant, a poor man who has taken loan for purchase of the chasis and for building body has lost his life saving and is made a debtor. His entire dream of having a vehicle for self-earning/employment is frustrated for years together.
Hence,
in such circumstances it cannot be said that the order passed by the State
Commission directing the Appellant to refund the loss suffered by the Appellant
can be said to be in any way erroneous or illegal.
In
the result, the appeal is dismissed. There shall be no order as to costs.
J.
( M.B.
SHAH )
PRESIDENT
( S.K.
NAIK )
MEMBER