(Delivered on 11/12/2017)
PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. This appeal is filed by the original opposite party Nos. 1&2 (for short O.P.) feeling aggrieved by the order dated 16/04/2012 passed by the District Consumer Forum, Nagpur in consumer complaint No. CC/11/228, by which the complaint has been partly allowed.
2. The facts in brief giving rise to the present appeal are as under,
The original complainant/ respondent herein in purchased two wheeler by making down payment of Rs.14,879/- and also by obtaining loan of Rs.22,800/- from the O.P./appellant herein. He paid twenty instalments till September-2009. He deposited total Rs.19,000/-. However, he could not pay further some instalments due to his financial difficulty. It is alleged by the respondent herein that the said vehicle was seized by the appellant without prior intimation to him and it was also sold without prior notice to him. Therefore, alleging deficiency in service on the part of the appellant, he filed consumer complaint against the appellants, claiming from them Rs. 33,879/- with interest and compensation of Rs. 50,000/- .
3. The original O.P./appellant appeared before the District Consumer Forum and filed reply and thereby resisted the complaint. It denied that the vehicle was seized without any intimation or notice. According to it, though intimation was given from time to time to the respondent herein but he neglected to pay the balance instalments and therefore, as per terms and conditions of the loan agreement , the vehicle was seized on 14/06/2009. Thereafter again intimation was given to him. Moreover, after the said intimation also the amount was not paid and therefore, it sold seized vehicle on 30/07/2009 and intimation about same was also given to the respondent. Thus, the deficiency in service of the appellant cannot be alleged as that vehicle was seized as per terms and conditions of the loan agreement for non payment of due instalments and therefore, the complaint may be dismissed.
4. The District Consumer Forum below after giving opportunity of adducing evidence to both the parties and also after hearing both the parties found that the original O.P./appellant did not produce before it the notice issued prior to the seizure of vehicle and notice issued before and after sale of the vehicle and loan agreement showing terms & conditions. Therefore, the Forum held that in the absence of any evidence the defence raised by the original O.P./appellant cannot be accepted. Therefore, the Forum accepted the aforesaid case of the complainant/respondent herein and held that he is entitled to the amount of Rs.22,500/- i.e. after deducting Rs.11,300/- towards depreciation value from Rs.33,800/- paid by the complainant/respondent herein to the appellant. The Forum therefore, directed that Rs.22,500/- be paid along with interest at the rate of 9% p.a. from 14/06/2009 to the original complainant /respondent herein and also to pay him compensation of Rs.2,000/- for physical & mental harassment and litigation cost of Rs. 2,000/-.
5. As observed above the O.P. filed this appeal against the said order. Advocate Mr. M.R. Joharapurkar appearing for the appellant and Advocate Mr. R.B. Nikule appearing for the respondent and perused the entire record of appeal.
6. Advocate of the appellant relied on reply of notice dated 22/10/2010 filed by the original complainant as issued by the appellant and submitted that in that reply it was specifically stated by the appellant that the respondent herein did not pay due installments though demanded and hence, seized and sold the vehicle. He also submitted that the Forum did not consider that reply. He also produced in appeal the copy of loan agreement and statement of account and submitted that the same can be considered in appeal to show that the vehicle was seized as per terms and conditions of loan agreement when four installments were not paid by the respondent herein and that account statement shows that sale proceeds are credited to the account of original complainant /respondent herein. He also submitted that reply filed before the District Consumer Forum as issued by the appellant to the notice of the complainant was not denied by the complainant /respondent herein in it, which was specifically stated that for non payment of dues and after giving intimation the vehicle was seized by the appellant. He thus submitted that as District Consumer Forum did not consider that reply in right prospective and it is not disputed by the original complainant/respondent herein that some installments were due from him, it cannot be said that the appellant rendered deficient service to the respondent herein due to seizure of the vehicle for non payment of installments. Hence, he requested that the impugned order may be set aside and complaint may be dismissed
7. On the other hand, the learned advocate of the original complainant /respondent herein supported the impugned order and submitted that necessary documents as observed by the Forum were not filed by the appellant and hence they cannot be considered in appeal. He also submitted that the District Consumer Forum below has rightly held that defence of the appellant cannot be accepted for want of above documents. Hence, he requested that appeal may be dismissed.
8. We have perused the reply notice dated 22/10/2010 which was produced before the District Consumer Forum by the complainant /respondent herein. In that reply it is stated by appellant that the complainant /respondent herein was requested to pay the outstanding dues as per the terms and conditions of the Loan Agreement or to hand over possession of the vehicle but he neither paid the outstanding amount nor handed over the possession of the vehicle and therefore, possession of the vehicle has been taken by the appellant on 14/06/2009 and it was sold on 30/07/2009.
9. It was the specific case of the complainant in complaint (para No. 5) that the vehicle has been seized from him without any notice or prior intimation. In our view when it was such specific case of the complainant before the District Consumer Forum, it was incumbent upon the appellant to produce notice in writing issued to the complainant prior to seizure of the vehicle and after seizure of the vehicle & also prior to its sale calling upon him to pay amount as per said notice. Moreover, it was also incumbent upon the appellant to produce on record of the District Consumer Forum, the copy of loan agreement to show its terms and conditions. In the absence of any copy of loan agreement, and notice on record of the District Consumer Forum, we find that it cannot be said that the vehicle has been seized as per terms and conditions of agreement inconsequence of non payment of installments. Moreover, no documents were produced before the District Consumer Forum about sale proceeds of the vehicle received after its sale. No reason is given by the appellant as to why before the District Consumer Forum the copy of agreement of loan, notices and statement of loan account were not produced. Hence, in the absence of any explanation for non production of said material documents before the District Consumer Forum, no permission can be granted for production of any said documents in appeal.
10. We also find that the appellant cannot rely on reply notice given to the respondent to show that it seized the vehicle after due notice to the respondent particularly as per terms and conditions of the loan agreement when there was no agreement or notice before the District Consumer Forum.
11. Hence, we find no merit in this appeal and we also find that the District Consumer Forum has properly considered the material brought on record in right perspective and rightly partly allowed the complaint. Therefore, there is no merit in this appeal and it deserves to be dismissed.
ORDER
i. The appeal is dismissed.
ii. No order as to cost in appeal.
iii. Copy of order be furnished to both the parties, free of cost.
