Kerala

StateCommission

165/2006

The Manager - Complainant(s)

Versus

Baiju.K - Opp.Party(s)

R.Jagadish Kumar

15 Dec 2010

ORDER

First Appeal No. 165/2006

(Arisen out of Order Dated 17/11/2005 in Case No. First Appeal No. 492/2004 of District Kollam)

1. The Manager

Centurian Bank Ltd,Pallimukku Jn.,Kollam

BEFORE:
	HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT

PRESENT:

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEALNO. 165/2006

JUDGMENT DATED 15.12.2010

PRESENT:-

JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT

APPELLANTS

1. The Manager,

Centurian Bank Ltd.

C/o Sarathy Motors,

Pallimukku junction,

Kollam.

2. M/s. Centurian Bank Ltd.,

Syam Scion PMG junction,

Law College Road,

Thiruvananthapuram.

(Represented by its officer Santhosh)

(Rep. by Adv. Sri. R. Jagadish Kumar)

RESPONDENT

Baiju K,

Baiju Mandiram,

Edakkidam P.O., Kottarakkara, Kollam

(Rep. by Adv. Sri. Reghukumar)

JUDGMENT

JUSTICE SHRI.K.R.UDAYA BHANU : PRESIDENT

Appellants are the first opposite parties/ Financiers in O.P. 492/2004 in the file of CDRF, Kollam. The appellants are under orders to refund Rs. 8,022/- ie. the amount remitted by installments and the margin money of Rs. 14,218/- with interest at 9% from the date of order and also to pay Rs. 20,000/- as punitive damages.

The facts on the case is that the complainant availed a loan of Rs. 34,200/- for the purchase of Bajaj Pulser motorcycle. As per the loan agreement the amount has to be repaid @ Rs. 1,337/- in 36 installments. The complainant defaulted 3 installments and the opposite party forcibly seized the vehicle on 27.11.2004. The opposite parties issued notice directing to remit the full loan amount in balance ie. 29,860/- Although the complainant approached the opposite parties to remit the due installments the opposite parties were not willing.

According to the opposite parties it is after issuing notice that the vehicle was sold. According to them, the Hire Purchase Agreement contained specific provision enabling the opposite party to seize the vehicle. According to them there is no deficiency of service on their part.

The evidence consisted the testimony of Pw1,and Exts. P1 to P6.

It is the contention of the counsel for the appellant with the law at the time enabled the opposite party to seize the vehicle and sell it. The counsel has relied on the decision in Charanjit Singh Chadha Vs. Sudhir Mehra AIR 2001SC 3721 and the decision of the High court of Kerala in Sadasivan Vs. Indurstial Credit and Syndicate Ltd. 2002 KLT SN 35.

It is pointed out by the counsel for the respondent/complainant that the complainant had obtained the order from the Forum on 6.12.2004 restraining opposite parties from selling the vehicle as per Ext. P5 Notice dated 29.11.2004, and the opposite parties had provided time up to 6.12.2004 to remit the loan amount. It is pointed out that the records have been manipulated to evade the order of

The Forum restraining the opposite parties from selling the vehicle. Further the opposite parties have not produced any evidence as to the particulars of the sale ie. the date of sale, the amount received on sale etc. The complaint was filed and interim order obtained within 7days from the date of receipt of Ext. P5 Notice . As pointed out the counsel for the respondent the conduct of the financing institutions in forcibly re-possessing the vehicle has been deprecated and held illegal in a number decisions of the High Court of Kerala , The Supreme Court and the National Commission(Business Bankers Vs. Anandan 2005 KHC 38, Citicorp Maruthi Finance Ltd., Vs. S. Vijayalaxmi III (2007) CPJ 161( NC). It is pointed out that in the instant case Ext. P1 is only a loan agreement, although mentioned as hire purchase agreement as the owner was the complainant and not the Finance Company. In the circumstances, we find that the contention of the counsel for the appellant in this regard cannot be sustained. The appellant is not entitled to the relay on the decisions cited as to the legality of forcible possession of the vehicle as the appellant is not the owner.

The Counsel for the appellant has pointed out that the complainant has used the vehicle for at least for 17 months. Hence it will not be proper to order to pay the entire amount remitted and the margin money and the amount of punitive damages. As already noted the amount of each installment is Rs. 1,337/- We find that it would be proper to treat the above amount as the amount towards the use of the vehicle. The above sum would workout to Rs. 22,729/- The amount ordered to be paid towards the amount paid for installments and the margin money would workout to 22,240/- The conduct of the opposite party in selling the vehicle evidently after receipt of the order from the Forum restraining from the proposed auction sale is highhanded . Hence we find that the direction to pay punitive damages is not to be interfered with. In the circumstances, the order of the Forum directing to refund the amount paid towards installments and margin money is set aside. The amount of Rs. 20,000/- ordered to be paid as punitive damages is sustained. The amount is to be paid within 3 months from the date of receipt of the order, failing which the complainant would be entitled for interest at 12% from the date of the order of the Forum ie. 17.11.2004.