SANKAR PRASAD MISHRA vs SUBODH PATTNAIK & 2 ORS.

The challenge in this revision petition is to the order dated 16.7.2013 passed by the Odisha State Consumer Disputes Redressal Commission, Cuttack (hereinafter referred as State Commission'') in First Appeal No.55 of 2008, Subodh Pattnaik and others vs. Sankar Prasad Mishra, vide which, while allowing the appeal, the order passed by the District Forum, Boudh dated 22.8.2007 in Consumer Case No.49 of 2006, allowing the said complaint, was set aside.

Briefly stated, the facts of the case are that the complainant/respondent purchased one Bolero-XL vehicle from the OP-10 ''Auto Centre '' by obtaining financial assistance from the OP-1- Bank. The amount of loan sanctioned was Rs.3,92,000/- and the same was paid to OP-10 ''Auto Centre'' on 05.03.2015. The complainant agreed to re-pay the said loan in 48 monthly instalments of Rs.9,948/-. It has been stated in the complaint that he gave 10 post-dated cheques for Rs.4,95,364/- to the OP-Bank. The said vehicle was, however, delivered to the complainant on 09.08.2005, i.e., almost after 5 months of the payment of loan amount to the dealer because the complainant paid the margin money of Rs.80,000/- to the dealer on that date. It has been alleged by the complainant that he had deposited a sum of Rs.25,000/- in cash with the dealer but the same was not accounted for by him. Further, OP-10 ''Auto Centre'' had made an offer to give a discount of Rs.36,034/- on the actual price of the vehicle.

It is stated that the said vehicle was re-possessed by the OP-Bank forcibly without giving him prior notice and they demanded a sum of Rs.30,000/- from him. The complainant filed the consumer complaint, in question, seeking direction to the OPs to pay a sum of Rs.2,00,000/- as compensation and Rs.10,000/- as cost of litigation.

The complaint was resisted by the OP-10 ''Auto Centre'' by filing a written reply before the District Forum, in which they stated that the vehicle was handed over to the complainant on 9.8.2005 after the margin money of Rs.80,000/- was paid to them by means of demand draft. The ICICI Bank had already made payment of Rs.3,92,000/- to them on 5.3.2005. The OP-10 denied that they ever made an offer of discount of Rs.36,034/- on the vehicle. The OP-Bank also denied the allegations made by the complainant, saying that he did not pay the instalments due in time, despite issuing of demand notice.

The District Forum, after taking into account the contentions raised by the parties, directed the OP-Bank to pay compensation of Rs.1,00,000/- to the complainant and also directed OP-10 to pay Rs.5,000/- to the complainant for excess running of the vehicle, before its delivery to the consumer. Being aggrieved against this order, the Bank challenged the same by way of first appeal before the State Commission, which was allowed, vide impugned order dated 16.7.2013 and the order passed by the District Forum was set aside. It was stated by the State Commission that after going through the account statement, it was seen that the complainant had not paid the EMI''s on due dates. Once he had availed loan from the bank, it was his duty to re-pay the loan in time.

At the time of hearing before me, the learned counsel for the petitioner/complainant has drawn attention to the medical certificate placed on record, saying that the complainant had suffered fracture of three fingers of the right foot and hence, he was advised rest for the period 6.11.2013 to 9.2.2014. He was declared medically fit to join his duty w.e.f. 10.2.2014. The learned counsel explained that the delay of 139 days in filing the present petition should be condoned, considering the fact that the petitioner could not come to Delhi to engage a lawyer to pursue his case.

The learned counsel has further drawn my attention to the grounds of the revision petition and argued that there was a receipt dated 28.2.2005, issued by the OPs regarding receiving of Rs.25,000/- from the petitioner, issued by the Auto Centre, but this fact had not been mentioned in the written statement filed by the OP. The State Commission has not touched upon the issue as to why the M/s. Auto Centre retained the extra money of Rs.25,000/-. Moreover, the cost of the vehicle was Rs.4,28,966/- as per the advertisement of Mahindra Mahautsav, 2005 and not Rs.4,72,000/-. The State Commission also failed to appreciate that the imposition of 10.25% interest per annum was quite high, whereas the prevailing rate of interest in the market was only 4.5 to 7% per annum. The learned counsel further argued that when the vehicle was handed over to the petitioner, it had already run 1822 kms. and hence, the dealer could not have charged full

amount for the vehicle. The order passed by the State Commission should therefore, be set aside and the order passed by the District Forum maintained. In addition, the Respondent-Bank should be held liable to pay a sum of Rs.1,00,000/- as compensation to the petitioner/complainant for deficiency in service.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

It is an admitted fact that the petitioner/complainant raised loan from the ICICI Bank for the said vehicle for Rs.3,92,000/-, which was sanctioned to him on 5.3.2005. The facts brought out on record indicate that in addition to the amount of Rs.3,92,000/-, the complainant was required to pay the margin money of Rs.80,000/- to the dealer, which was not paid till 9.8.2005. It is made out that there could be some kind of dispute or difference of opinion between the complainant and the dealer regarding the exact amount payable to the dealer. However, since the loan amount already stood paid by the Bank to the Dealer, the Bank had to charge interest from the petitioner as per the agreed terms and conditions, governing the sanction of the loan. In case the vehicle was not delivered to the petitioner on account of any reason, he cannot force the Bank to start their instalments from the date of delivery of the vehicle only. The action of the Bank, therefore, in re-possessing the vehicle, or taking steps for recovery of their legitimate dues from the complainant is in order and no deficiency in service has been proved on the part of the Bank. The District Forum have therefore, taken an erroneous view that the Bank was liable to pay compensation to the complainant on this count. Moreover, in so far as the rate of interest on the loan being charged by the Bank is concerned, the grant of loan by a bank in such cases is governed by the agreed terms and conditions between the parties. In case, the complainant was aggrieved in any manner with the Bank, in so far as the rate of interest is concerned, he should have negotiated agitated the matter with them, at the time of obtaining such loan. He could have gone to some other Bank or financial institution, which were offering better rate of interest to him. It is beyond the purview of the Consumer Fora to adjudicate whether the rate of interest charged by the Bank from its clients was in order or not. The deficiency on the part of the Bank, in so far as the quantum of interest being charged is concerned, is also not proved.

Regarding the allegations of the petitioner that the vehicle had already run 1822 kms. and hence, he was entitled for some compensation/discount on that count from the dealer, it is clear that the complainant should have raised such issue at the time of taking delivery of the vehicle. The deficiency in service on the part of the dealer on this count is, therefore, not established.

In so far as the amount of Rs.25,000/- paid by the complainant to the dealer is concerned, a copy of the receipt has been produced on record, but it is not understood as to why the complainant had made payment of Rs.80,000/- as margin money to the dealer, if he had already made part payment of Rs.25,000/- to him. There is no other proof on record to indicate that this money was even paid to the dealer. The dealer has also not accepted this version of the complainant in the reply filed before the District Forum.

The State Commission, vide impugned order, observed that the Bank was required to charge interest for delayed payment, because the complainant failed to pay EMIs in time. The State Commission have also rightly observed that due to non-delivery of the said vehicle, the complainant could not have avoided the payment of EMIs to Bank in time. I therefore, find that that there is no illegality, irregularity or jurisdictional error in the order passed by the State Commission, and the same is upheld. This revision petition is held to be without any merit and the same is ordered to be dismissed in limine, with no order as to costs.