ORDER : Dr. D.P. Choudhury, J. (President) 1. This appeal is directed u/s. 15 of the Consumer Protection Act, 1986 (hereinafter called the "Act") against the order dated 30.10.2017 passed by the learned District Forum, Nabarangpur in C.C. No. 55 of 2017 wherein the District Forum has directed the opposite parties to pay the total deposited amount of Rs. 6,79,892/- against the vehicle in question immediately, inter alia to pay Rs. 42.000/- as compensation besides litigation cost of Rs. 3,000/- to the complainant. 2. Appellants representing Mahindra and Mahindra Finance Service Limited were the opposite parties whereas the respondent was the complainant before the learned District Forum. Hereinafter the parties to this appeal shall be referred to with reference to their respective status before the District Forum. FACTS 3. The unshorn details of the case of the complainant is that in order to maintain his livelihood he purchased a Renault Duster vehicle for Rs.11,00,000/- on being financed by opposite party No.1. A sum of Rs.7,50,000/- with usual interest was financed by opposite party No.1. Necessary loan-cum-hypothecation agreement was executed by the complainant with the OP No.1. The vehicle was registered under the R.T.A., Nabarangpur vide Registration No. OD-24-B-0099 in the name of the complainant. Out of 36 instalments the complainant paid 27 instalments but he did not pay the EMIs for the period from 22.4.2015 to 30.3.2016 on the ground that he was ill during that period. 4. It is alleged inter alia that on 23.5.2017 while complainant had been to Umerkote for his business, the people of opposite party-No. 1 repossessed the vehicle from the house of the complainant due to default in payment of the loan amount. When the complainant contacted opposite party No. 1 for negotiation, opposite party No. 1 demanded heavy outstanding money arbitrarily. On 19.7.2017 complainant received a letter from opposite party No. 1 demanding to repay the loan along with interest within seven days failing which the opposite parties would dispose of the vehicle on auction. Since the seizure of the vehicle was not performed in accordance with the guidelines of the RBI and the complainant was deprived of the vehicle resulting suffering mentally and financially, complainant filed the complaint before the learned District Forum. 5. Since the seizure of the vehicle was not performed in accordance with the guidelines of the RBI and the complainant was deprived of the vehicle resulting suffering mentally and financially, complainant filed the complaint before the learned District Forum. 5. Opposite parties filed written version stating that the complaint is not maintainable under law before the learned District Forum and the complainant has no locus standi to file such case. The Opposite parties admitted about the loan-cum-hypothecation agreement and extended the loan of Rs. 7,50,000/- with usual interest to the complainant on his request. It was agreed between the parties that as long as the loan remains unpaid totally, the borrower/complainant shall repay the loan amount along with interest in periodical instalments. Not only the loan amount would be paid but also the complainant would pay the interest along with 3% of balance principal outstanding and DPC in the event of default in payment of EMIs. Out of 36 instalments the complainant paid only 27 instalments. Thereafter, the complainant defaulted in payment of the EMIs. Since he was in default of payment of EMIs, the loan amount remained outstanding along with interest and other charges. In spite of request, the complainant did not repay the rest of the principal amount and interest. So the complainant in terms of the agreement took up the custody of the vehicle after duly informed to the complainant as the complainant is a chronic defaulter in payment of loan with interest. So no deficiency of service is attributable to the opposite parties. FINDINGS OF DISTRICT FORUM 6. The learned District Forum after going through the pleadings and necessary documents filed by both the parties framed three issues such as (A) is the complainant a consumer against the OPs?, (B) is there any deficiency in service on the part of the OPs in regard to the present transaction? and (C) Is there any remedy available to the parties in the lis?. The learned District Forum while answering Issue No. B observed at Para - 8 that the burden of proof does not lie on the complainant as in view of the peculiar facts and circumstances of the case, he should be relieved from the burden as it would cause injustice to the complainant. The learned District Forum while answering Issue No. B observed at Para - 8 that the burden of proof does not lie on the complainant as in view of the peculiar facts and circumstances of the case, he should be relieved from the burden as it would cause injustice to the complainant. It is further observed that learned counsel for the OPs failed to file affidavit of OPs or any evidence or submissions to defend the allegation for which there is serious deficiency in service committed by the OPs. As such the learned District Forum passed the order directing the OPs to pay back the total deposit amount of Rs. 6,79,892/- against the vehicle in question to the complainant and payment of compensation of Rs. 42,000/- with litigation cost of Rs. 3,000/- to the complainant. SUBMISSIONS 7. Being aggrieved with the above order of the learned District Forum the appeal is filed herewith. 8. Learned counsel for the appellants submitted that the learned District Forum has erred in law by not appreciating the case of the OPs in true perspective and thus directed to pay the total deposited amount to the complainant along with compensation and litigation cost. Learned District Forum should not have entertained the consumer complaint as the agreement shows any dispute between the parties would be filed at Mumbai which has jurisdiction but not at Nabarangpur. 9. It is further submitted by the learned counsel for the appellants that since the respondent was supposed to pay 36 instalments and in default of payment of Rs. 1,90,835/- for 9 instalments, the opposite parties are justified in claiming the defaulted amount along with delay payment charges (DPC) and cheque bounced charges etc. The action taken by the opposite parties is thoroughly in accordance with the agreement executed between the opposite parties and the complainant and as per the norms of the RBI guidelines. As such, there was no deficiency of service by the opposite parties and the learned District Forum has failed to appreciate such fact by overlooking the written version and the loan-cum-hypothecation agreement filed before the learned District Forum. Since the order of the learned District Forum is wrong and against the fact and law, the same should be set aside by allowing the appeal. 10. Since the order of the learned District Forum is wrong and against the fact and law, the same should be set aside by allowing the appeal. 10. In this case, notice was held to be sufficient against the complainant but he has not participated for the reasons best known to him. However, the matter is considered taking into account the pleadings of both the parties and evidence adduced by both the parties. We have perused the evidence on record adduced by both parties, pleadings of both parties and considered the argument of learned counsel for the appellants. POINTS FOR DISCUSSIONS 11. Whether there is deficiency in service on the part of the OPs? DISCUSSION 12. It is an admitted fact that the complainant purchased the Renault Duster vehicle for Rs.11,00,000/- and OP No.1 has financed Rs.7,50,000/- along with interest of Rs.2,49,000/- to be payable in 46 EMIs. Admittedly, there was loan-cum-hypothecation agreement executed by both the parties. As such, the complainant was to pay Rs.9,99,000/- on such instalments. It is also an admitted fact that the complainant paid 27 EMIs but did not pay the rest of the instalments already due to his ailingness. It is admitted fact that since the complainant became defaulter, the vehicle was repossessed by opposite party No. 1, but the learned District Forum has observed the following:- "XXX XXX XXX 8. Pursuing all the evidences produced by the OPs and complainant, along with their submissions, this forum is brushed off of any doubts to opine that the cause of action, arose at Nabarangpur district, an agreements are all executed at the O/o. OP 1, the hypothecated vehicle also registered with the R.T.A., Nabarangpur, hence all the facts consolidated throws the burden of jurisdiction under this forum to adjudicate the complaint of its merit, and this forum feels to repudiate from the burden would inflict a great injustice unto the complainant. 9. The OPs representing the company is an NBFC company and all NBFC companies so registered, are guided by the rules and guidelines prescribe by the Reserve Bank of India, and such guidelines to adequate the credit system of the country. The term deficiency defined under Sec. 2(1)(g) of the C.P. Act, 1986, which reads as followed. 9. The OPs representing the company is an NBFC company and all NBFC companies so registered, are guided by the rules and guidelines prescribe by the Reserve Bank of India, and such guidelines to adequate the credit system of the country. The term deficiency defined under Sec. 2(1)(g) of the C.P. Act, 1986, which reads as followed. 2(1)(g) 'deficiency means any fault in perfect shortcomings or inadequacy in quality, nature, and manner or performance which is required to be intentional by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. 10. The counsel of OPs have failed to adduce affidavits of OPs, any evidences or submissions to defend the said allegations. 11. Hence, this forum, on perusal of all the evidences as discussed above, of the view that, the OPs has acted, arbitrarily, capriciously, malfeasantly to the prejudice of the interest and rights of the complainant, and there is serious deficiency in services committed by the OPs for which they are liable to be impounded with heavy compensation. However, they have advanced a loan of Rs.9,99,000/- with interest to which the complainant admits, and have recovered Rs.6,79,892/- and repossessed the vehicle with hired musclemen and auctioned the same while the complainant was undergone medical treatment, hence is illegal, highhanded. As thus the complaint is allowed against the OPs." 13. On perusal of DFR, we find there is already written version filed in detail and also copy of the loan-cum-hypothecation agreement has also been filed with schedule-1 and 2. It is not known how those documents have remained out of notice of the District Forum because at Para 10 above it has observed that opposite parties have failed to adduce evidence or any evidence or submission to defend the said allegation, Moreover, the observation of the learned District Forum is not clear as to show the deficiency of service on the part of the opposite parties was observed by it without going through the written version and the loan-cum-hypothecation agreement executed by the complainant and the opposite parties. Learned District Forum has observed about definition of deficiency of service but did not discuss the facts which led to come to a conclusion that opposite parties have acted arbitrarily, capriciously and maliciously to the prejudice of the interest and rights of the complainant and there is serious breach of agreement committed by the opposite parties. Had the learned District Forum gone through the written version and required documents i.e. loan-cum-hypothecation agreement the matter would have been otherwise. CONCLUSION 14. In view of the above, we are constrained to observe that the learned District Forum has given the finding about deficiency of service without scanning the materials produced by the opposite parties and being only swayed away by the submission of the complainant. When deficiency of service is not proved by the complainant, on the other hand, opposite parties have proved the loan-cum-hypothecation agreement and written version which clearly shows that in case of default of payment of instalment the vehicle can be taken into custody of lender, hardly there is deficiency of service in the instant case. Adding to this, it goes without saying that as per complaint, complainant even after being cured has not paid EMIs became chronic defaulter of payment of loan and interests. Hence, we do not agree to the finding of the learned District Forum, the written version and the deficiency of service committed by the complainant. 15. In the result, the order of the learned District Forum is liable to be set aside and we do so. The appeal is allowed. No cost. Free copy of this order be supplied to both the parties. Statutory dues, if any, be refunded to the appellant. DFR be sent back forthwith.