FIRST APPEAL NO. 504 OF 2010
FIRST APPEAL NO. 536 OF 2010
Heard learned counsel for the parties in both the appeals.
2. Since both the appeals arise out of common impugned order passed by the learned District Forum, Rayagada in C.C. No. 76 of 2010, both the appeals are heard analogously. This common order shall govern the result of both the appeals.
3. These appeals are filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.
4. The factual matrix leading to the case of the complainant is that the complainant had purchased a Tata Tipper being financed by OP Nos. 1 and 2 for Rs. 19,00,000/-. It is alleged inter alia that after the vehicle was purchased during warranty period the vehicle started trouble. Therefore, the complainant took the vehicle to OP No.3 who detained the vehicle for some time due to non-availability of parts. After the vehicle was repaired OP Nos. 1 and 2 asked OP No. 3 not to release the vehicle because the complainant was a defaulter. Complainant alleged that he was not a defaulter because he has paid the EMI regularly. However, without knowledge of the complainant OP Nos. 1 and 2 repossessed the vehicle from the workshop of OP No.3. Complainant alleging deficiency in service and unfair trade practice on the part of the OPs filed the complaint.
5. OP Nos. 1 and 2 filed joint written version denying all the allegations. They have averred that the complaint is not maintainable under the Act and the complainant having not engaged driver cannot claim as a consumer. It is also averred that the matter is between the financer and borrower and he cannot raise complaint before the Consumer Forum. There is already clause that the matter can be settled by the arbitrator but the complaint has not filed such case. Therefore, he submitted that the complaint should be dismissed.
6. OP No. 3 filed written version stating that the complainant has purchased the vehicle from OP No.3 on payment of consideration and whenever he brought the vehicle, it was repaired. But in the month of March, he brought the vehicle for repairing and after repairing, he did not take the vehicle for which OP No. 3 sent notice on 26.3.2010 to take back the vehicle but the complainant did not come. In the meantime, OP Nos. 1 and 2 repossessed the vehicle from his workshop. Since it is a dispute between the complainant and OP Nos. 1 and 2, he has no role in this case. So, he prayed for dismissal of complaint against him.
7. After hearing both parties, learned District Commission passed the following order:-
“xxx xxx xxx
The petition of the complainant is allowed on contest against the OPs with cost. The complainant is entitled to get refund of Rs.7,70,300/- which he has paid towards EMI from May 2009 till November, 2009, initial deposit of Rs.2,60,000/- and the insurance amount of Rs.76,000/- along with compensation @ Rs.1000/- per day from 28.03.2010 till its final payment from OPs 1 and 2 and OP No.3 who has received the vehicle on 24.01.2010 and not given the service till it is repossessed by OPs 1 and 2 on 27.03.2010 i.e. for 64 days @ Rs.3000/- per day which comes to Rs.1,92,000/- as on 27.03.2010.
If there is any manufacturing defect in the vehicle it is to be sorted out between the OPs 1 and 2 with OP No. 3 and after such repossession of a new vehicle, they have relieved the complainant from future burden sine the cost of the vehicle is more than the finance amount granted by them.
The OPs 1, 2 and 3 are directed to pay a litigation cost of Rs.5000/- (Five thousand) in addition to the above awarded amount. The OPs are directed to comply the above order with one month of receipt of this order failing which the complainant is at liberty to execute the same by invoking the provisions u/s 25 and 27 of the C.P.Act.”
8. Learned counsel for the appellant in FA No. 536 of 2010 submitted that learned District Commission has committed error in law by not considering the materials and the written version filed by OP Nos. 1 and 2 with proper perspectives. He further submitted that OP Nos. 1 and 2 have got the EMI from the complainant but the complainant became defaulter in some payment of the EMIs. He further submitted that as per the agreement they have issued the notice but the complainant became defaulter and thereafter they repossessed the vehicle from the garage of OP No.3. They have no deficiency in service on their part. He also raised the pecuniary jurisdiction of the learned District Forum to entertain the complaint. He, therefore, submitted that the impugned order should be set aside by allowing the appeal.
9. None appears for the appellant in FA No. 504 of 2010. We have gone through the appeal memo. OP No. 3 has averred that he has no any role in this case. He has well performed his agreement by asking the complainant to take back the vehicle. Therefore, the impugned order directing him to pay compensation and penalty should be set aside.
10. Learned counsel for the complainant who is respondent in both the appeals submitted that learned District Forum has analyzed the case properly. According to her OP Nos. 1 and 2 have violated the agreement and also they have committed illegality by not issuing notice to the complainant before repossession. Therefore, the action of OP nos. 1 and 2 are illegal. She also submitted that OP No.3 having made transpierce with OP Nos. 1 and 2 has given the vehicle to them without the knowledge of the complainant. She also averred that no notice was issued regarding repossession of the vehicle and removal of vehicle from the workshop of OP No.3. However, she supports the impugned order.
11. Considered the submission of the learned counsel appearing for the appellant in FA No. 536 of 2010 and the learned counsel for the respondent in both the appeals and perused the DFR including the impugned order.
12. It is admitted fact that the complainant has purchased the tipper having got finance from OP Nos. 1 and 2. It is also not in dispute that the complainant remained defaulter for some EMIs. It is also not in dispute that the vehicle after giving trouble taken to OP No.3 who after repairing kept the vehicle but the complainant did not come to take the same. It is also not in dispute that OP Nos. 1 and 2 repossessed the vehicle from the workshop of OP No.3.
13. The only question arises in this case whether the complainant has proved the deficiency in service or unfair trade practice on the part of the OPs. The complainant did not prove the case. The agreement in question was filed later on. Clause - 15.2 of the agreement is as follows:-
“xxx xxx xxx
15.2 Upon concurrence of an Event of Default, the Borrower shall be bound to return the Asset to the Lender at such location, as the Lender may designate, in the same condition in which it was originally delivered to the Borrower, ordinary wear and tear excepted. The Borrower shall not prevent or obstruct the Lender from taking the possession of the Asset. For this purpose the borrower covenants & confirms that the Lender’s authorized representatives, servants, officers and agents will have unrestricted right of entry and shall be entitled to forthwith, or at any time without notice to the Borrower, to enter upon the premises, or garage or go down where the vehicle(s) are lying or kept, and to take possession or recover and receive the same and if necessary to break open any such place. The Lender will be well within its rights to use tow-van or any carrier to carry away the Asset. The Borrower shall be liable to pay any towing charges and other such expenses incurred by the lender for taking the possession of the Asset cost of safe keeping of the asset and for its sale etc. if the Lender takes possession of the Hypothecated Asset, the Lender shall not be responsible for any loss or deterioration of or damage to the Hypothecated Asset whether by theft, fire, rain, flood, earthquake, lightning, accident or any other cause whatsoever.”
14. Learned counsel for OP Nos. 1 and 2 submits that as per this agreement they have acted upon. But the complainant says that this agreement was not followed. We have gone through the documents filed by the parties. No doubt the complainant has proved the invoice and the RTO certificate which are not disputed. Complainant only submits that he has not been served with any notice before repossession. OP Nos. 1 and 2 shown the statement of account where they have stated in the last column, there is Rs.7,17,300/- pending against the complainant. When the vehicle has been repossessed on 27.3.2010, the calculation till 21.4.2010 must be clear from the statement itself. Apart from this, the statement shows that there are three cheques bounced but those facts have not been stated by the OPs in their written version. So the statement of account as produced are also not free from doubts. Besides the OPs have produced the letters shows that they have intimated the complainant from time to time about the arrears. The learned counsel for the appellant referred letter dated 12.1.2010 where the amount has been also there. There, it has been stated that if the complainant does not pay that amount then they would repossessed the vehicle as per the terms and conditions of the agreement. Finally, they have also produced the letter dated 12.4.2010 where they have stated that they have already repossessed the vehicle. But nowhere they said that the vehicle has been repossessed from the Bharat Motors under intimation to the complainant. Clause 15.2 as stated above does not cover the manner of repossession of the vehicle in default of payment of loan taken by the complainant. On the other hand, we are compelled to observe that repossession of vehicle without any notice or observing due process of law by OP Nos. 1 and 2 is not in accordance with law. Therefore, we are compelled to observe that the repossession is illegal. We are reinforcing our view by observing that there should be at least one notice to the complainant that they are going to repossess the vehicle for default of EMIs from the Bharat Motors workshop because once the Bharat Motors became the Service Centre of the vehicle and the vehicle has been lying there, it is for the complainant to settle the amount with OP No.3 but no way OP Nos. 1 and 2 are concerned.
15. In view of aforesaid observation, we are of the view that learned District Forum has discussed well that OP Nos. 1 and 2 have committed deficiency in service. So far OP No. 3 is concerned, OP No. 3 is a service provider so far repairing of the vehicle is concerned. OP No. 3 has given a letter on 26.3.2010 asking the complainant to take up the vehicle but the vehicle has been repossessed on the next day.
16. Be that as it may, the complainant failed to establish the unfair trade practice or deficiency in service on the part of OP No.3 rather OP No. 3 has informed after repossession to the complainant that OP Nos. 1 and 2 have repossessed the vehicle and if he wants he may settle the account. Hence, we are of the view that the finding of the learned District Forum as to role of OP No. 3 is not concurred herewith.
17. In view of aforesaid analysis, we hereby concurred the impugned order partly. So far operative portion of impugned order is concerned appellant submitted that there is outstanding of Rs.7,17,300/- but the impugned order has been passed to return the money and this portion needs interference by the Commission. Since there is illegality regarding repossession of the vehicle, we hereby direct OP Nos. 1 and 2 to return the vehicle to the complainant towards removal of deficiency in service or return the deposited margin money of Rs.2,60,000/- and not to demand any amount towards outstanding from the complainant and issue NOC in favour of the complainant. There is no order against OP No. 3 to be complied. OPs 1 and 2 are directed to pay compensation of Rs.2,00,000/- to the complainant and they are also directed to pay Rs.5,000/- towards litigation cost to the complainant. If any payment has been made during pendency of the appeal the same should be adjusted. The order should be complied with within 45 days from today.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
