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Judgment
R.K. Agrawal, J., President
Delay condoned.
The present Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (for short "the Act"), has been preferred by the Petitioner/Complainant questioning the correctness and legality of the impugned Order dated 05.07.2016, passed by the State Consumer Disputes Redressal Commission, Chhattisgarh (for short "the State Commission") in First Appeal No. 71 of 2015. By the Impugned Order, the State Commission has dismissed the First Appeal filed by the Complainant and upheld the Order dated 04.11.2010 passed by the District Consumer Disputes Redressal Commission, Bilaspur, Chhattisgarh (for short, the "District Forum") dismissing his Complaint.
Succinctly put, the material facts leading to filing of the Complaint are that the Complainant had purchased a Bajaj Tempo Excel 2 Pick Up Van on 19.04.2004 from the Respondent No.1, namely, Vishal Motors (hereinafter to be referred to as the "Dealer"), the Dealer of the Respondent No.2, Bajaj Tempo Ltd., the Manufacturer (hereinafter referred to be as the "Manufacturer") for a sum of 3,80,000/-. He paid a sum of 87,000/- in cash to the Dealer and rest of the amount was got financed from the Respondent No.3, HDFC Bank Ltd (hereinafter to be referred to as "the HDFC"). The Complainant was required to repay his loan in 36 equated monthly installments of 11,270/-. The Complainant also paid a sum of 3,000/- to the Dealer towards insurance, registration, road tax, accessories etc. According to the Complainant, at the time of purchasing the Van, he was informed by the Dealer that it was a new brand Vehicle. The Complainant took the Vehicle to his native place Pendra and started using it for transportation of goods. However, about 8 to 10 days of its purchase, the hub-rod of the Vehicle had broken and there was also complaint of frequent failure of power break or steering. On complaint, the Dealer rectified the defects in the Vehicle. After some time, the Vehicle again broke down in a jungle and the Dealer sent a Mechanic along with Complainant to rectify the defects. On examination of the Vehicle, the Mechanic informed the Complainant that there was a manufacturing defect in the Vehicle which could not be rectified permanently. It was not a new Vehicle. Earlier, the Vehicle was sold to some other person and when he failed to repay the loan installments, the Vehicle was repossessed and sold to the Complainant. However, the defect was cured by the said Mechanic. Subsequently, when the Complainant was coming to the Show Room of the Dealer, the hub was again broken and it was got replaced by the Dealer with a bigger size of hub then the actual size of broken hub. Complainant alleged that due to repeated defects in the Vehicle he suffered a huge loss and could not pay the installment of the loans on due dates. It is further averred by the Complainant that because of delay of one month in payment of an installment, the HDFC forcibly repossessed the Vehicle without issuing any notice to him. Feeling aggrieved, the Complainant filed a Complaint before the District Forum.
The Complaint was contested by the Opposite Parties by filing their separate Written Statements. In its Written Version, the Dealer denied the allegation of giving an old vehicle to the Complainant in place of a new one. It was pleaded that if it would have been an old vehicle, the Original Registration No. CG-10A-7054 could not have been issued in the name of Complainant and the Registration ought to had been in some other's name. It was further urged that there was no manufacturing defect in the Vehicle and all the defects were cured to the entire satisfaction of the Complainant. It was contended that only due to default on the part of the Complainant in making the installment of his loan, the Vehicle in question was repossessed by the HDFC. There was no deficiency in service on their part and the Complainant was trying to shift the onus upon them for his inaction in making the payment of loan to HDFC.
Similarly, in its Written Version, the Respondent No.2, the Manufacturer while admitting the purchase of Bajaj Tempo Excel 2 Pick Up Van by the Complainant, has pleaded that there was no manufacturing defect in the vehicle as alleged by the Complainant. It was further submitted that they were not aware of any loan facility being availed of by the Complainant and the Vehicle having been taken over by the HDFC due to default on his part in making the payment of installments. There was no privity of contract between the Complainant and the Respondent No.2.
In its Reply to the Complaint, the Respondent No.3, HDFC submitted that the Complainant was sanctioned loan amount of 3,23,000/- and after deducting the first installment, a sum of 3,12,263/- was reimbursed to the Complainant which was to be paid by him in 35 equated monthly installments. It was stated that the Complainant was earning a sum of 1,000/- per day by using the Vehicle but he was not paying the monthly installments of the loan on due dates which fact can also be substantiated from the loan account statement of the Complainant dated 06.11.2008. Therefore, there was no deficiency in service on their part.
On appraisal of the evidence adduced by the Parties before it, the District Forum came to the conclusion that the Complainant has failed to prove that the Vehicle was old one and not a new vehicle and there was any deficiency in service on the part of the HDFC in re-possessing the vehicle for default in repayment of loan. The English translation of the relevant portion of the Order which is in vernacular language, is as under:-
" On perusal of the case against the Respondent No.3 Bank who has granted the loan to the Complainant, it is ascertained that Complainant only paid two installments and the said fact has also been admitted by Complainant himself. If the payment was to be made through cheque in the instant case, then there should have been sufficient funds available in the bank account of the Complainant whenever the cheques were to be presented in regards to payment of his installments and to substantiate that there were sufficient funds available at the time of realization of cheques of EMIs, the Complainant should have furnished his bank account statement, but the Complainant has failed to do so. If the sufficient funds were available each month for realization of the EMI cheque then it would have been the responsibility of the Respondent No.3 Bank to encash the cheque, but firstly the onus to prove availability of funds in his account rest with the Complainant, which was not followed by the Complainant. Therefore, in the above circumstances, whether the Complainant deposited the two installments in cash or the same were drawn from his account is not clear."
As far as the vehicle in question was old is concerned, it has only been alleged in the complaint. The name, date etc. has not been stated by the Complainant as to which Mechanic told the Complainant that the said vehicle was old nor the Complainant has filed copy of any job-card to substantiate that on which date his vehicle was in the workshop of Respondent No.1. Therefore, on the basis of the above analysis, it is clear that the reference to the vehicle being old is just an allegation which is not liable to be accepted without any evidence."
Dis-satisfied by the said Order, the Complainant preferred the First Appeal No. 71 of 2015 before the State Commission. Vide Order dated, 05.07.2016, the State Commission upholding the Order of the District Forum, has dismissed the Appeal filed by the Complainant. The English translation of the relevant portion of the Order which is in vernacular language, is as under:-
" The Appellant mainly objected that despite deposit of Rs.87,000/- by the Appellant, the vehicle of the Appellant was illegally seized by the Respondent No.3. This issue was not considered by the Ld. District Forum. The District Forum also did not provide any just opportunity to the Appellant to produce evidence. We perused the complaint which was mainly against Respondent No.1 that Respondent No.1 sold the old vehicle by stating it to be new and it was submitted in column 9 of the complaint that :-
"9. That the Complainant was getting the vehicle repaired by the mechanic and mechanic informed him that this vehicle was having manufacturing defect due to which power break and steering is failing repeatedly and these faults cannot be permanently removed because these are manufacturing defects."
and in Column 13, it has been stated against Respondent No.3 that "on defaulting only one installment by the Complainant, the Respondent No.3 without any prior written notice and demand notice took away his vehicle and committed deficiency in service." It has also been alleged by the Appellant/Complainant that he has paid an amount of Rs.87,000/- and Rs.23,000/- to Respondents. The Appellant submitted two receipts of installments amounting to Rs.11,270/- dated 28.10.2004 and Rs.11,290/- dated 12.01.2015. The Appellant had to repay the finance availed by him from Respondent No.3 in installments. The receipts produced by the Complainant are of different years. The Appellant has not been able to prove that he had regularly repaid the loan. The Respondent No.3 has furnished a copy of the loan agreement according to which the Bank was entitled to get back the financed vehicle in the event of default. As per the demand notice dated 01.10.2005 issued by the Respondent No.3 served upon Appellant an amount of Rs.1,30,961/- was outstanding on the Appellant. It has not been submitted by the Appellant that as to when the vehicle was taken away by the Respondent No.3, but it has been admitted that he had defaulted in payment of EMI because of which the Respondent No.3 took away his financed vehicle. within the definition in service.
EMIs as per loan agreement.
The act of the Respondent No.3 does not fall The Appellant was required to regularly pay the
It has also been argued by the Appellant that District Forum did not give him sufficient opportunity to adduce evidence. We have perused the records. As per order sheet dated 19.08.2009, Written Statement was filed by Respondent No.2. Thereafter, the case was fixed for arguments for continuously 5 dates. The case was fixed for 04.01.2010 for submission of documents and evidence. After eight hearings, the case was finally fixed for orders on 03.11.2010. It is clear from the above that District forum gave sufficient opportunity for submission of evidence. This objection of the Appellant is not liable to be admitted that District Forum did not give him opportunity to adduce evidence."
Hence, the present Revision Petition by the Complainant.
We have heard the learned Amicus-Curiae, Ms. Anushree Menon for the Petitioner and Mr. Dileep Poolakkot, learned Counsel for the Respondent No.2, the Manufacturer at length and also perused Original Record of the Fora below summoned in the case. Respondent No.1 and 3 had been proceeded ex-parte vide Order dated 25.04.2018.
The crux of arguments of the Amicus-Curiae for the Petitioner/ Complainant is that the Complainant was given an old Vehicle by the Respondent No.1 Dealer and there was manufacturing defect in the Vehicle as it had started giving trouble within 8 to 10 days of its purchase. The Mechanic of the Dealer informed the Complainant that the defects were not curable permanently due to manufacturing defect. She further contended that no notice was served upon the Complainant by the Respondent No.3, HDFC before re-possessing the vehicle despite having been received a sum of 87,000/- and 23,000/-.
Per contra, Learned Counsel appearing for the Respondent No.2, the Manufacturer submitted that there is concurrent finding of facts returned by the Fora below that there was no manufacturing defect in the Vehicle in question and as such there was no deficiency in service on their part.
Having bestowed our anxious consideration to the facts of the case and the submissions made by the Amicus-Curiae as well as the Counsel for the Respondent No.2, the Manufacturer, we are of the considered view that the Vehicle supplied to the Complainant on 19.04.2004 by the Respondent No.1 Dealer, was not an old Vehicle as the Fora below had rightly observed that the Original Registration Certificate bearing No. CG-10A-7054 was issued originally in the name of the Complainant, Prem Lal Halwai and the year of manufacturing of the vehicle was also mentioned as 2004. If it would have been sold earlier to some other person, the Vehicle ought to have been transferred in the name of the Complainant which is not the case here.
Except the bald assertion by the Complainant that he was informed by the Mechanic of the Respondent No.1, Dealer that there was manufacturing defect in the Vehicle, the Complainant has failed to lead any cogent evidence to substantiate his contention. No Expert opinion is available on record in support of the said submission. The defects in the Vehicle such as breaking of hub-rod and failure of power break or steering, cannot be construed, by any stretch of imagination, the manufacturing defects in the Vehicle. Hence, there is no force in the said contention.
So far as, the re-possession of the Vehicle by the HDFC due to default on the part of the Complainant in making the repayment of loan taken from them, is concerned, we do not find any merit in the said contention. It is the say of the Complainant that the Vehicle was forcibly re-possessed by the HDFC without issuing any notice to him and there was a delay of one month only in making the instalment due. Further, he had paid 87,000/- in cash and 23,000/- towards two installments of the repayment of the loan to the HDFC but despite of receiving the said amounts the HDFC had repossessed the Vehicle. The Complainant had obtained a loan of 3,12,263/- from the HDFC for purchasing the Vehicle in the question. He was required to repay his loan in 35 equated monthly instalment of 11,270/- each starting from 16.09.2004. A bare perusal of the Original Records received from the Fora below would reveal that the Complainant had placed on record only two receipts of payment of instalments to the HDFC dated 28.10.2004 and 12.01.2005 for 11,270/- and 11,290/- respectively. As recorded in the Order of the District Forum, the Complainant had admitted that he had paid only two instalments towards repayment of the loan to the HDFC and despite sufficient opportunities having been granted he has not produced any evidence regarding payment of 83,000/- in cash to the HDFC or regular payment of the instalments due. The HDFC has sent a letter dated 01.10.2005 to the Complainant calling upon him to pay the outstanding amount of 1,30,961/- within a period of seven days from the date of receipt of letter. The relevant portion of the letter is extracted below:-
" This has reference to the above Agreement No. and Loan cum Hypothecation agreement and our previous correspondences regarding the payment of the overdue under the said Loan cum Hypothecation Agreement.
You are put to notice that, you the Borrower have committed breach of the terms and conditions of the Loan cum Hypothecation Agreement by your failure to pay the Installments on due date, despite being called upon to do so.
You are further put to notice that an aggregate amount of Rs.130961 is due and recoverable from you under the said Loan cum Hypothecation agreement as on 1st October 2005 the breakup of the above amount is as under:
Installments overdue : Rs.117021
LPP & CBC charges : Rs.13940
Total Due : Rs.130961
You have despite our demand as aforesaid failed and neglected to respond to the requisition contained in our said notice. In the circumstances, therefore we now call upon and demand that you the Borrower pay us an amount of Rs.1340961.
In the event you the Borrower fails to make the payment within the stipulated time we shall be constrained to terminate the Loan cum Hypothecation Agreement and in such eventuality you shall not only become liable to pay immediately all the amounts due and payable under the Loan cum Hypothecation Agreement, you shall also be under obligations to surrender the Vehicle/Machinery.
We, therefore, hereby finally call upon you to pay the said sum of Rs.130961/-within 7 days from the date thereof, failing which we shall take such further action as we are entitled to under the Loan Cum Hypothecation Agreement and the documents executed by you. "
There is no denial from the Complainant regarding receiving the said letter by him. Further, as per Clause 17.2 (i) of the Agreement for Vehicle Loan and Guarantee (hereinafter to be referred to as "Loan Agreement") executed between the Complainant and the HDFC, the HDFC was entitled to re-possess the Vehicle in case of default on the part of the Complainant in paying the outstanding amount. The said Clause 17.2 (i) is extracted below:-
" Without any notice and assigning any reason and all the risk and expenses of the Borrower and if necessary as Attorney for and in the name of the Borrower take charge and/or possession of, seize, recover, appoint receiver of and remove the Hypothecated Vehicle. The Bank will be within its right to use tow Van to carry away the Vehicle and /or"
In our considered view, there is no doubt at all that the Complainant has miserably failed to pay the due instalments at time to the HDFC and they were well within their rights as per afore-extracted Clause 17.2(i) of the Loan Agreement to re-possess or seize the Vehicle in case of default in repaying the loan. Therefore, there was no deficiency in service on the part of the HDFC in taking over the charge of the Vehicle from the Complainant.
For the aforesaid reasons, we do not find any material irregularity or jurisdictional error in the Impugned Orders passed by the fora below warranting our interference in Revisional Jurisdiction u/s 21(b) of the Act. Consequently, the Revision Petition is dismissed devoid of any merit.