BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No. 281/2002 Filed on 05/07/2002 Dated: 17..08..2009 Complainant: P. Murugan, Varuvilakathu Veedu, Choozhattukotta, Malayam- P.O., Thiruvananthapuram. (By Advs. A. Rajasenan & Pramod)
Opposite parties:
Bajaj Auto Finance Ltd., Registered Office Mumbai Pune Road, Akurdi, Pune-411 035. Branch Manager, Bajaj Auto Finance Ltd., 1st floor, Deedi Automobiles, Kaimanom Junction, Pappanamcode, Thiruvananthapuram-40.
(By Adv. James Ninan)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 14..10..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 25..06..2009, the Forum on 17..08..2009 delivered the following:
ORDER
SMT. BEENA KUMARI. A., MEMBER:
Brief facts of the case are as follows: The complainant had purchased one Bajaj Boxer Motor Cycle through the Hire purchase Finance agreement dated 16/8/2000 by the opposite parties. As per the agreement the complainant had arranged sufficient balance in his account for the encashment of the cheque already possessed by the 2nd opposite party for and on behalf of 1st opposite party, that due to some financial problem the complainant failed to arrange sufficient balance in his account for the month of March to May, 2002. During the first week of April 2002 the matter was orally informed to the Branch Manager and he was convinced why the complainant failed to arrange funds in his account, that the complainant informed the Branch Manager that he will clear all dues during the first week of June 2002 and it was agreed by the 2nd opposite party. While so on 4/6/2002 the complainant received a letter from the office of the 2nd opposite party directing him to pay the dues within seven days. Even without such a notice the complainant was ready to clear the dues as promised to the 2nd opposite party. Prior to the expiry of the said seven days mentioned in the notice the 2nd opposite party repossessed the vehicle on 7/6/2002 and the said matter was not informed to the complainant, that the complainant was under the belief that the vehicle was stolen and he had undergone much pain and sufferings. On 8/6/2002 from the Vanchiyoor Police Station it was directed to enquire with the 2nd opposite party and on that enquiry it was confirmed that the vehicle is with them. After giving a notice to clear all dues and prior to the expiry of the period mentioned in the notice the seizure of the vehicle is improper and against law for which they are liable to compensate. On 10/6/2002 the complainant had cleared all the dues and the 2nd opposite party had collected an amount of Rs. 1,000/- as vehicle seizing charges. As per the complainant the 2nd opposite party has no right to take any charge as seizing charges because the vehicle was seized prior to the expiry of the notice issued by the opposite parties. The act of the opposite parties caused pecuniary loss, mental agony and untold hardships to the complainant. Hence this complaint.
2. In this case the opposite party Bajaj Auto Finance Ltd filed their version contending the case of the complainant. The opposite parties stated that the complainant has defaulted the monthly payment and failed to pay the installments. The opposite party made several requests and demands to the complainant to clear the dues of the Company but the complainant has not cared to clear the dues. The complainant has violated the terms and repudiated the contract with the Company. As such the Company was forced to repossess the vehicle in question as per the terms of agreement. The opposite parties further stated that at the time of repossession of the vehicle an amount of Rs.3,745/- was due from the complainant and hence the vehicle in question was repossessed by the Company. The opposite parties submitted that the seizing charges of Rs. 1,000/- were paid to the agency vide their receipt dated 10/6/2002 for Rs.1,000/- . The opposite party has only recovered this amount of Rs.1,000/- from the complainant at the time of handing over the vehicle. The opposite party is also relying upon Supreme Court citation in case of Trilok Singh Vs. Sathyadeo Tripathi AIR 189, SC 850, the Hon'ble Supreme Court has taken stand that on default of any one installment the financier has got every right to terminate hire purchase agreement even without notice and seize the vehicle. The opposite party stated that there is no deficiency of service or unfair trade practice on the side of opposite parties.
3. In this case the complainant had adduced evidence by filing affidavit in lieu of chief examination Exts. P1 and P2 were marked on his behalf. The opposite parties also filed affidavit and produced 2 documents marked as Ext.D1 and D2. 4. Points that would arise for consideration are: Whether there is deficiency in service or unfair trade practice from the side of opposite parties? Reliefs and costs?
5. Points (i) & (ii) : In this case the main allegation of the complainant against the opposite parties are that the opposite parties sent a letter to the complainant directing him to pay the dues within seven days. The complainant had received the letter on 4/6/2002. Then the complainant was ready to close the dues as promised to the 2nd opposite party. But the opposite parties prior to the expiry of the said seven days mentioned in the notice repossessed the vehicle on 7/6/2002 and the matter was not informed to the complainant. As per the complainant after giving a notice to clear all dues and prior to the expiry of the period mentioned in the notice the seizure of the vehicle is improper and against law. To prove his contentions he has produced the documents. Ext.P1 is the notice issued by the opposite parties to the complainant on 4/6/2002 in that notice the opposite parties clearly stated that to remit the outstanding amount of Rs. 2,595/- within seven days from the date of this letter, besides penal interest is applicable as on date of payment. The opposite parties had not objected the statement of the complainant that prior to the above said 7 days the opposite parties seized the vehicle of the complainant. Hence the acts of the opposite parties in seizing the vehicle before the date mentioned in the notice is illegal and improper and hence there is deficiency in service from the side of opposite parties. Ext.P2 is the copy of receipt issued by the opposite parties for an amount of Rs.1,000/- received from the complainant as vehicle seizing charges.
6. Ext.D1 is the receipt produced by the opposite parties, in that receipt the opposite parties had paid Rs.1,000/- to Mr. Jayakumar on account of seizing charges of the complainant's vehicle. Ext.D2 is the copy of agreement between the complainant and the opposite parties. As per this agreement the opposite parties shall be entitled to take possession of the vehicle without any notice. But in this case the opposite parties sent notice to the complainant to remit the dues within 7 days from the date of receipt of the notice. Hence the opposite parties should not take possession before that period. There are many higher Court decisions in connection with the unlawful repossession of the vehicles by the financiers. In Shibi Francis Vs. State of Kerala and another in WP(c)No:21411 of 2006 (II) the Hon'ble High Court finds that the financier can repossess the vehicle only by lawful means and not by force. Hence the seizure of the vehicle in this case is against law, the opposite parties had taken possession of the vehicle without informing the complainant, and prior to the notice date. Hence the opposite parties are liable to refund the unlawfully charged vehicle seizure charge from the complainant and also liable to pay compensation to the complainant. Hence the complaint is allowed.
In the result the opposite parties are directed to refund Rs.1,000/- to the complainant and also shall pay Rs.2,000/- as compensation and Rs.1,500/- as costs. Time for compliance one month from the date of receipt of this order. Thereafter 12% annual interest also shall be paid to the entire amount till the date of realization.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 17th day of August, 2009.
BEENA KUMARI. A., MEMBER.
G.SIVAPRASAD, PRESIDENT.
S.K. SREELA, MEMBER. ad. O.P.No.281/2002 APPENDIX I. Complainant's witness : NIL
II. Complainant's documents: P1 : Photocopy of letter dated 4/6/2002 issued to the complainant by opposite parties. P2 : Photocopy of receipt No.70108736 dated 10/6/2002 for Rs.1,000/- issued by opposite parties.
III. Opposite parties' witness : NIL
IV. Opposite parties' documents:
D1 : Photocopy of cash voucher dated 10/6/2002 for Rs.1,000/-.
D2 : Photocopy of agreement dated 16/8/2000.
PRESIDENT
ad. BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No. 281/2002 Filed on 05/07/2002 Dated: 17..08..2009 Complainant: P. Murugan, Varuvilakathu Veedu, Choozhattukotta, Malayam- P.O., Thiruvananthapuram. (By Advs. A. Rajasenan & Pramod)
Opposite parties:
Bajaj Auto Finance Ltd., Registered Office Mumbai Pune Road, Akurdi, Pune-411 035. Branch Manager, Bajaj Auto Finance Ltd., 1st floor, Deedi Automobiles, Kaimanom Junction, Pappanamcode, Thiruvananthapuram-40.
(By Adv. James Ninan)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 14..10..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 25..06..2009, the Forum on 17..08..2009 delivered the following:
ORDER
SMT. BEENA KUMARI. A., MEMBER:
Brief facts of the case are as follows: The complainant had purchased one Bajaj Boxer Motor Cycle through the Hire purchase Finance agreement dated 16/8/2000 by the opposite parties. As per the agreement the complainant had arranged sufficient balance in his account for the encashment of the cheque already possessed by the 2nd opposite party for and on behalf of 1st opposite party, that due to some financial problem the complainant failed to arrange sufficient balance in his account for the month of March to May, 2002. During the first week of April 2002 the matter was orally informed to the Branch Manager and he was convinced why the complainant failed to arrange funds in his account, that the complainant informed the Branch Manager that he will clear all dues during the first week of June 2002 and it was agreed by the 2nd opposite party. While so on 4/6/2002 the complainant received a letter from the office of the 2nd opposite party directing him to pay the dues within seven days. Even without such a notice the complainant was ready to clear the dues as promised to the 2nd opposite party. Prior to the expiry of the said seven days mentioned in the notice the 2nd opposite party repossessed the vehicle on 7/6/2002 and the said matter was not informed to the complainant, that the complainant was under the belief that the vehicle was stolen and he had undergone much pain and sufferings. On 8/6/2002 from the Vanchiyoor Police Station it was directed to enquire with the 2nd opposite party and on that enquiry it was confirmed that the vehicle is with them. After giving a notice to clear all dues and prior to the expiry of the period mentioned in the notice the seizure of the vehicle is improper and against law for which they are liable to compensate. On 10/6/2002 the complainant had cleared all the dues and the 2nd opposite party had collected an amount of Rs. 1,000/- as vehicle seizing charges. As per the complainant the 2nd opposite party has no right to take any charge as seizing charges because the vehicle was seized prior to the expiry of the notice issued by the opposite parties. The act of the opposite parties caused pecuniary loss, mental agony and untold hardships to the complainant. Hence this complaint.
2. In this case the opposite party Bajaj Auto Finance Ltd filed their version contending the case of the complainant. The opposite parties stated that the complainant has defaulted the monthly payment and failed to pay the installments. The opposite party made several requests and demands to the complainant to clear the dues of the Company but the complainant has not cared to clear the dues. The complainant has violated the terms and repudiated the contract with the Company. As such the Company was forced to repossess the vehicle in question as per the terms of agreement. The opposite parties further stated that at the time of repossession of the vehicle an amount of Rs.3,745/- was due from the complainant and hence the vehicle in question was repossessed by the Company. The opposite parties submitted that the seizing charges of Rs. 1,000/- were paid to the agency vide their receipt dated 10/6/2002 for Rs.1,000/- . The opposite party has only recovered this amount of Rs.1,000/- from the complainant at the time of handing over the vehicle. The opposite party is also relying upon Supreme Court citation in case of Trilok Singh Vs. Sathyadeo Tripathi AIR 189, SC 850, the Hon'ble Supreme Court has taken stand that on default of any one installment the financier has got every right to terminate hire purchase agreement even without notice and seize the vehicle. The opposite party stated that there is no deficiency of service or unfair trade practice on the side of opposite parties.
3. In this case the complainant had adduced evidence by filing affidavit in lieu of chief examination Exts. P1 and P2 were marked on his behalf. The opposite parties also filed affidavit and produced 2 documents marked as Ext.D1 and D2. 4. Points that would arise for consideration are: Whether there is deficiency in service or unfair trade practice from the side of opposite parties? Reliefs and costs?
5. Points (i) & (ii) : In this case the main allegation of the complainant against the opposite parties are that the opposite parties sent a letter to the complainant directing him to pay the dues within seven days. The complainant had received the letter on 4/6/2002. Then the complainant was ready to close the dues as promised to the 2nd opposite party. But the opposite parties prior to the expiry of the said seven days mentioned in the notice repossessed the vehicle on 7/6/2002 and the matter was not informed to the complainant. As per the complainant after giving a notice to clear all dues and prior to the expiry of the period mentioned in the notice the seizure of the vehicle is improper and against law. To prove his contentions he has produced the documents. Ext.P1 is the notice issued by the opposite parties to the complainant on 4/6/2002 in that notice the opposite parties clearly stated that to remit the outstanding amount of Rs. 2,595/- within seven days from the date of this letter, besides penal interest is applicable as on date of payment. The opposite parties had not objected the statement of the complainant that prior to the above said 7 days the opposite parties seized the vehicle of the complainant. Hence the acts of the opposite parties in seizing the vehicle before the date mentioned in the notice is illegal and improper and hence there is deficiency in service from the side of opposite parties. Ext.P2 is the copy of receipt issued by the opposite parties for an amount of Rs.1,000/- received from the complainant as vehicle seizing charges.
6. Ext.D1 is the receipt produced by the opposite parties, in that receipt the opposite parties had paid Rs.1,000/- to Mr. Jayakumar on account of seizing charges of the complainant's vehicle. Ext.D2 is the copy of agreement between the complainant and the opposite parties. As per this agreement the opposite parties shall be entitled to take possession of the vehicle without any notice. But in this case the opposite parties sent notice to the complainant to remit the dues within 7 days from the date of receipt of the notice. Hence the opposite parties should not take possession before that period. There are many higher Court decisions in connection with the unlawful repossession of the vehicles by the financiers. In Shibi Francis Vs. State of Kerala and another in WP(c)No:21411 of 2006 (II) the Hon'ble High Court finds that the financier can repossess the vehicle only by lawful means and not by force. Hence the seizure of the vehicle in this case is against law, the opposite parties had taken possession of the vehicle without informing the complainant, and prior to the notice date. Hence the opposite parties are liable to refund the unlawfully charged vehicle seizure charge from the complainant and also liable to pay compensation to the complainant. Hence the complaint is allowed.
In the result the opposite parties are directed to refund Rs.1,000/- to the complainant and also shall pay Rs.2,000/- as compensation and Rs.1,500/- as costs. Time for compliance one month from the date of receipt of this order. Thereafter 12% annual interest also shall be paid to the entire amount till the date of realization.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 17th day of August, 2009.
BEENA KUMARI. A., MEMBER.
G.SIVAPRASAD, PRESIDENT.
S.K. SREELA, MEMBER. ad. O.P.No.281/2002 APPENDIX I. Complainant's witness : NIL
II. Complainant's documents: P1 : Photocopy of letter dated 4/6/2002 issued to the complainant by opposite parties. P2 : Photocopy of receipt No.70108736 dated 10/6/2002 for Rs.1,000/- issued by opposite parties.
III. Opposite parties' witness : NIL
IV. Opposite parties' documents:
D1 : Photocopy of cash voucher dated 10/6/2002 for Rs.1,000/-.
D2 : Photocopy of agreement dated 16/8/2000.
PRESIDENT
ad. BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No. 281/2002 Filed on 05/07/2002 Dated: 17..08..2009 Complainant: P. Murugan, Varuvilakathu Veedu, Choozhattukotta, Malayam- P.O., Thiruvananthapuram. (By Advs. A. Rajasenan & Pramod)
Opposite parties:
Bajaj Auto Finance Ltd., Registered Office Mumbai Pune Road, Akurdi, Pune-411 035. Branch Manager, Bajaj Auto Finance Ltd., 1st floor, Deedi Automobiles, Kaimanom Junction, Pappanamcode, Thiruvananthapuram-40.
(By Adv. James Ninan)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 14..10..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 25..06..2009, the Forum on 17..08..2009 delivered the following:
ORDER
SMT. BEENA KUMARI. A., MEMBER:
Brief facts of the case are as follows: The complainant had purchased one Bajaj Boxer Motor Cycle through the Hire purchase Finance agreement dated 16/8/2000 by the opposite parties. As per the agreement the complainant had arranged sufficient balance in his account for the encashment of the cheque already possessed by the 2nd opposite party for and on behalf of 1st opposite party, that due to some financial problem the complainant failed to arrange sufficient balance in his account for the month of March to May, 2002. During the first week of April 2002 the matter was orally informed to the Branch Manager and he was convinced why the complainant failed to arrange funds in his account, that the complainant informed the Branch Manager that he will clear all dues during the first week of June 2002 and it was agreed by the 2nd opposite party. While so on 4/6/2002 the complainant received a letter from the office of the 2nd opposite party directing him to pay the dues within seven days. Even without such a notice the complainant was ready to clear the dues as promised to the 2nd opposite party. Prior to the expiry of the said seven days mentioned in the notice the 2nd opposite party repossessed the vehicle on 7/6/2002 and the said matter was not informed to the complainant, that the complainant was under the belief that the vehicle was stolen and he had undergone much pain and sufferings. On 8/6/2002 from the Vanchiyoor Police Station it was directed to enquire with the 2nd opposite party and on that enquiry it was confirmed that the vehicle is with them. After giving a notice to clear all dues and prior to the expiry of the period mentioned in the notice the seizure of the vehicle is improper and against law for which they are liable to compensate. On 10/6/2002 the complainant had cleared all the dues and the 2nd opposite party had collected an amount of Rs. 1,000/- as vehicle seizing charges. As per the complainant the 2nd opposite party has no right to take any charge as seizing charges because the vehicle was seized prior to the expiry of the notice issued by the opposite parties. The act of the opposite parties caused pecuniary loss, mental agony and untold hardships to the complainant. Hence this complaint.
2. In this case the opposite party Bajaj Auto Finance Ltd filed their version contending the case of the complainant. The opposite parties stated that the complainant has defaulted the monthly payment and failed to pay the installments. The opposite party made several requests and demands to the complainant to clear the dues of the Company but the complainant has not cared to clear the dues. The complainant has violated the terms and repudiated the contract with the Company. As such the Company was forced to repossess the vehicle in question as per the terms of agreement. The opposite parties further stated that at the time of repossession of the vehicle an amount of Rs.3,745/- was due from the complainant and hence the vehicle in question was repossessed by the Company. The opposite parties submitted that the seizing charges of Rs. 1,000/- were paid to the agency vide their receipt dated 10/6/2002 for Rs.1,000/- . The opposite party has only recovered this amount of Rs.1,000/- from the complainant at the time of handing over the vehicle. The opposite party is also relying upon Supreme Court citation in case of Trilok Singh Vs. Sathyadeo Tripathi AIR 189, SC 850, the Hon'ble Supreme Court has taken stand that on default of any one installment the financier has got every right to terminate hire purchase agreement even without notice and seize the vehicle. The opposite party stated that there is no deficiency of service or unfair trade practice on the side of opposite parties.
3. In this case the complainant had adduced evidence by filing affidavit in lieu of chief examination Exts. P1 and P2 were marked on his behalf. The opposite parties also filed affidavit and produced 2 documents marked as Ext.D1 and D2. 4. Points that would arise for consideration are: Whether there is deficiency in service or unfair trade practice from the side of opposite parties? Reliefs and costs?
5. Points (i) & (ii) : In this case the main allegation of the complainant against the opposite parties are that the opposite parties sent a letter to the complainant directing him to pay the dues within seven days. The complainant had received the letter on 4/6/2002. Then the complainant was ready to close the dues as promised to the 2nd opposite party. But the opposite parties prior to the expiry of the said seven days mentioned in the notice repossessed the vehicle on 7/6/2002 and the matter was not informed to the complainant. As per the complainant after giving a notice to clear all dues and prior to the expiry of the period mentioned in the notice the seizure of the vehicle is improper and against law. To prove his contentions he has produced the documents. Ext.P1 is the notice issued by the opposite parties to the complainant on 4/6/2002 in that notice the opposite parties clearly stated that to remit the outstanding amount of Rs. 2,595/- within seven days from the date of this letter, besides penal interest is applicable as on date of payment. The opposite parties had not objected the statement of the complainant that prior to the above said 7 days the opposite parties seized the vehicle of the complainant. Hence the acts of the opposite parties in seizing the vehicle before the date mentioned in the notice is illegal and improper and hence there is deficiency in service from the side of opposite parties. Ext.P2 is the copy of receipt issued by the opposite parties for an amount of Rs.1,000/- received from the complainant as vehicle seizing charges.
6. Ext.D1 is the receipt produced by the opposite parties, in that receipt the opposite parties had paid Rs.1,000/- to Mr. Jayakumar on account of seizing charges of the complainant's vehicle. Ext.D2 is the copy of agreement between the complainant and the opposite parties. As per this agreement the opposite parties shall be entitled to take possession of the vehicle without any notice. But in this case the opposite parties sent notice to the complainant to remit the dues within 7 days from the date of receipt of the notice. Hence the opposite parties should not take possession before that period. There are many higher Court decisions in connection with the unlawful repossession of the vehicles by the financiers. In Shibi Francis Vs. State of Kerala and another in WP(c)No:21411 of 2006 (II) the Hon'ble High Court finds that the financier can repossess the vehicle only by lawful means and not by force. Hence the seizure of the vehicle in this case is against law, the opposite parties had taken possession of the vehicle without informing the complainant, and prior to the notice date. Hence the opposite parties are liable to refund the unlawfully charged vehicle seizure charge from the complainant and also liable to pay compensation to the complainant. Hence the complaint is allowed.
In the result the opposite parties are directed to refund Rs.1,000/- to the complainant and also shall pay Rs.2,000/- as compensation and Rs.1,500/- as costs. Time for compliance one month from the date of receipt of this order. Thereafter 12% annual interest also shall be paid to the entire amount till the date of realization.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 17th day of August, 2009.
BEENA KUMARI. A., MEMBER.
G.SIVAPRASAD, PRESIDENT.
S.K. SREELA, MEMBER. ad. O.P.No.281/2002 APPENDIX I. Complainant's witness : NIL
II. Complainant's documents: P1 : Photocopy of letter dated 4/6/2002 issued to the complainant by opposite parties. P2 : Photocopy of receipt No.70108736 dated 10/6/2002 for Rs.1,000/- issued by opposite parties.
III. Opposite parties' witness : NIL
IV. Opposite parties' documents:
D1 : Photocopy of cash voucher dated 10/6/2002 for Rs.1,000/-.
D2 : Photocopy of agreement dated 16/8/2000.
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
