BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
FA.No.473/2010 against C.C.No.12/2009 District Forum, VIZIANAGARAM.
Between
The Branch Manager,
HDFC Bank Limited,
Opposite to Sun School
Dabagardens, Visakhapatnam. ..Appellant/
O.P.No.3
And
1. Ch.Satish Kumar,
S/o.Venkateswar Rao
Door No.455, HUDCO Colony
Vizianagaram.
2. Siva Sivani Agencies,
Door No.2-4-H.S.E.W.S.65/6,
M.V.P.Colony, Visakhapatnam.
3. Sri Balaji Financial Service,
Door No.24-6-57, Lingadharipeta
Opp. To Rajyalakshmi theatre,
Vizianagaram.
4. Varun Auto Centre,
Day and Night Centre,
Srikakulam. Respondents/
O.Ps. 1,2 and 4.
(Respondents 2 to 4 are not necessary parties to this appeal)
Counsel for the Appellant : M/s. J.Lokesh Reddy
Counsel for the Respondent : M/s. T.V.Sridevi-R1
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,
AND
SMT.M.SHREESHA, HON’BLE MEMBER,
TUESDAY, THE THIRTY FIRST DAY OF JULY,
TWO THOUSAND TWELVE
Order (Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.C.No.12/2009 on the file of District Forum, Vizianagaram, opposite party No.3 preferred this appeal.
The brief facts as set out in the complaint are that the complainant purchased a Hero Honda Motor Cycle bearing No.AP30/E 9921 from Varun Centre and paid an amount of Rs.10,000/- and obtained loan from Centurian Bank and paid an amount of Rs.32,672/- towards instalments covered by 11 receipts The complainant submitted that at the time of purchasing the motor cycle, its value was Rs.38,000/- and in all, he paid Rs.42,672/-. The complainant submitted that thereafter he changed the financier from Centurian Bank to HDFC Bank, Dabagardens, Visakhapatnam. The complainant submitted that though he paid the entire amount as per the receipts filed, the personnel of opposite parties seized the vehicle without assigning any reasons. The complainant submitted that he issued a registered notice to opposite parties to clarify as to why the vehicle was seized and the notice of opposite party No.1 returned whereas notices were served on opposite parties 2 to 4 but they failed to reply. Hence the complaint for a direction to the opposite parties to hand over the seized vehicle and pay Rs.10,000/- towards mental agony, Rs.10,000/- towards damages.
Opposite party No.3 filed counter resisting the complaint. It admitted that the complainant purchased the motor cycle with its financial assistance. It submitted that subsequent to the purchase of the vehicle, the complainant failed to pay the instalment amounts and committed default and as such it was constrained to seize the vehicle . It submitted that it informed the complaint vide their notice and demanded him to pay the due amount of Rs.37,574/- on or before 22-10-2008 but he did not pay and hence they were constrained to seize the vehicle and submitted that there is no deficiency in service and prayed to dismiss the complaint with costs.
Based on the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties to hand over the custody of the seized vehicle by 3rd opposite party within three days together with compensation of Rs.10,000/- and damages of Rs.5,000/-.
Aggrieved by the said order, opposite party No.3 preferred this appeal.
Exs.B1 to B6 are filed by way of additional evidence.
The facts not in dispute are that the complainant purchased a Hero Honda vehicle for a sum of Rs.39,900/- on 30-5-2006 and the complainant submits in his affidavit that he paid an amount of Rs.32,672/- to Centurian Bank, the details of which are as follows:
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S.No. Receipt No. Date Amount paid To whom
1. 0787822 10-8-2007 Rs.1,526.00 Sri Balaji Financial Services
Vizianagaram.
2. 0785512 11-7-2007 Rs.2,852.00 Siva Sivani Agencies,
Visakhapatnam.
3. 0578672 12-6-2007 Rs.2,852.00 -do-
4. 1613883 19-11-2006 Rs.5,704.00 -do-
5. 1941484 17-11-2006 Rs.1,426.00 -do-
6. 1738896 31-10-2006 Rs.4,278.00 -do-
7. 2365112 24.03-2007 Rs.2,852,00 -do-
8. 2606558 30-1-2008 Rs.4,278.00 -do-
9. 10344851 17-6-2008 Rs.2,852.00 -do-
10. 3076798 29-3-2008 Rs.1,426.00 -do-
11. 11634491 27-8-2008 Rs.1,426.00 -do-
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Rs.32,672.00
Amount deposited at the
Time of obtaining loan Rs.10,000-00
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Rs.42,672.00
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It is the complainant’s case that he paid Rs.42,672/- totally and thereafter he changed his financier to HDFC bank as Centurian bank was taken over by HDFC bank, who seized the vehicle without assigning any reason.
It is the appellant/opposite party No.3/HDFC bank case that the complainant has defaulted payments and that they have issued notice vide Ex.B1 dated 5-6-2008 calling upon the complainant to pay an amount of Rs.32,245.56 within seven days and they filed the dispatch proof of this letter but the acknowledgement that complainant has received the notice has not been filed. Ex.B2 is another notice issued by HDFC bank calling upon the complainant to pay Rs.37,574/-. Ex.B4 is the legal notice got issued by the complainant to the opposite parties for which opposite parties replied vide Ex.B5 stating that the vehicle would be auctioned if the complainant did not pay the due amounts. Ex.B6 is the statement of loan account of the complainant from 04-1-2005 to 04-1-2010 and his instalment starting date is 5-8-2006 and ending date 5-7-2009 by which time he is due Rs.40,567-93 inclusive of all penalty and service charges.
The learned counsel for the appellant contended that the District Forum has considered the amount paid to the dealer as well as the insurance company. We observe from the record that there is no acknowledgement from the complainant for the presale notice issued by the opposite party. The loan agreement has also not been filed. The counsel for the opposite party submitted that the vehicle is still lying with them since the year 2008 and on the direction of this Commission the vehicle was evaluated by a mechanic who submitted that the battery is damaged and is valued at Rs.20,000/- plus Rs.2,500/- for repairs and the vehicle is still lying with the opposite party and the bank has no objection to release the vehicle provided the complainant pays Rs.35,000/-. As against this, the counsel for the complainant submitted that the complainant already paid Rs.32,672/- to Centurian Bank through agents/opposite parties 1 and 2 evidenced under receipts which is now merged with opposite party No.3 and that opposite party 3 did not refute this submission. The date of disbursal of loan is 28-6-2006 and the instalment start date is 5-8-2006 and the notice said to have been issued by appellant/opposite party No.3 is dated 5-6-2008 in which an amount of Rs.32,245.56 ps. has been demanded as due. Whereas in the statement dated 04-1-2010, the total instalments over due without the extra charges is Rs.21,236.93. Keeping in view the balance of equities that there is negligence on both sides, the appellant/O.P.3 for not filing an acknowledgement as proof before issuing any presale notice and we also observe from Ex.B2 that it is undated and the statement, B6, reflect most of the payments made by the complainant as evidenced by the receipts filed before the District Forum. There is also contributory negligence on behalf of the complainant in not paying the balance amount due and taking the vehicle because of which the vehicle is still lying with the appellant since 2008. The vehicle cost itself is Rs.39,000/- and the amount paid by the complainant is Rs.32,672/- to the bank and paid Rs.10,000/- to the dealer towards initial payment. We are of the considered view that the complainant should pay an amount of Rs.10,000/- (i.e.50% of total instalments over due as per Ex.B6) keeping in view the balance of equities, we direct opposite parties not to charge the penal charges as the vehicle is lying with them since the year 2008 and we also take into consideration the depreciation and the fact that the battery is damaged and the vehicle is lying with opposite party for more than four years and the complainant shall pay Rs.10,000/- and take back his vehicle within four weeks from the date of receipt of this order.
In the result this appeal is allowed setting aside the order of the District Forum and the complainant is directed to pay Rs.10,000/- to opposite party no.3 and take back his vehicle within four weeks of receipt of this order. No order as to costs in this appeal.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.31-7-2012
