D.O.F:14/01/2013

D.O.O:13/11/2019

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

CC.No.10/2013                                                                                                                                                

Dated this, the 13^th   day of November 2019

PRESENT:

SRI.KRISHNAN.K                        : PRESIDENT

SRI.RADHAKRISHNAN NAIR.M: MEMBER

SMT.BEENA.K.G                            : MEMBER

Sailendran. C.K aged 32 years,

S/o Bhaskaran,

R/at Charalam Kottayan

Madam House, Pettikundu – (P.O)

Hosdurg Taluk, Kasaragod                                    : Complainant

(Adv: A. Manikandan)

                                                            And

1. Bajaj Auto Finance,

Bajaj Finance Ltd,

Rep: by its Manager,

Akurdi, Pune -  -411035

(Adv: A.M Abdul Jamal)

2. The Branch Manager,                                 : Opposite Parties

Bajaj Auto Finance Ltd,

Zain Arcade, Near Chandragiri Bridge

Kasaragod

O R D E R

SRI.KRISHNAN.K : PRESIDENT

            This complaint filed under section 12 of Consumer Protection Act

            Facts of the case in brief as follows:-

            The complainant purchased Motor Cycle Discover 150 from authorized dealer at Kanhangad on 25/04/2011later registered as KL – 60 C 5469.  Vehicle is subject to hire purchase agreement with Opposite Party.  Its office at Kasaragod is manged by Opposite Party No:2.  Loan is arranged by dealer through Opposite Party No:2.  Total loan amount was Rs. 38000/- to be repaid in 36 monthly installment of Rs.1515 through its agent of Opposite Party No:2.  Two months installments become due since agent did not came for collection.  But to the surprise, vehicle was seized on 30/11/2012 by handling overa surrender letter and taking possession of vehicle by force.  In the letter it is written that Rs.5595/- is the balance outstanding to be paid within seven days.  Next day complainant approached the Opposite Party, with the said amount but the Opposite Party was not ready to.

            Complainant received the notice dated 01/12/2012 as pre-sale intimation stating that complainant voluntarily surrendered the vehicle on 30/11/2012 outstanding due is shown as Rs.34800/- to be paid within seven days.

            Complainant did not surrender vehicle voluntarily.  The seizure is against all principals of law and guidelines. The Opposite Party did not credit installment, paid nor supplied calculation schedule.  The complainant is ready to pay correct amount payable and thus Opposite Party is liable to return the vehicle or to pay Rs. 58,000/- value of vehicle, and Rs. 50,000/- compensation and cost of the litigation.

            The Opposite Party appeared before the forum and filed written version. Opposite Party admitted that complainant availed loan of Rs. 38000/- hypothecating the vehicle and complainant is a debtor of Opposite Party. The dispute between debtor and creditor is not maintainable, that complainant is not a consumer and complainant himself surrendered the vehicle on 30/11/2012 a sum of Rs. 9045/- and a sum of Rs.25755/- are due as EMI, total due is Rs.34800/- to Opposite Party and complainant liable to pay dues and complaint may be dismissed.

            Complainant filed chief affidavit and he was cross examined as Pw1 Ext A1 to A5 documents marked from his side.  All the Ext A1 to A5 are cash receipts for loan payment.  The Opposite Party produced Ext B1 to Ext B4 document and marked

Points for consideration are:-

1. Whether there is any deficiency in service of Opposite Party in re – possessing the vehicle.
2. Whether complainant is entitled for compensation? If so for what reliefs?

The allegations of the complainant is that he obtained loan facility from Opposite Party on the tune of Rs. 35,000/- in respect of new scooter and paid installment regularly however, due to certain constraints complainant could not pay the entire amount.  In November 2012 Opposite Party took possession of the scooter facility but Opposite Party demanded a sum of Rs.34800/- more in its defense the Opposite Party took the plea that at the time of re- possessing the vehicle, total outstanding of the balance amount was Rs. 34800/-

      This is a case of talking forcible possession of the vehicle by the Opposite Party for the purpose of recovering two un-paid installments.  On account of illegal act as much lower value than its actual value.  Therefore crux in this matter is as to whether the Opposite Party has illegally repossessed the vehicle or not.  As per the terms and conditions of the loan agreement.  The Opposite Party has the absolute right to take possession of the vehicle in case of default in payment of EMI’s.

            In identical cases Honourable National commission in citi corp finance Vs. Vijayalakshmi and subsequently confirmed by Honurable supreme court in ICICI Bank Vs Prakash Kaur ( Arising out of SLP(crl) 15/2007SCC held that for recovery of dues either through a loan agreement or hypothecation or hire –purchase agreement taking the possession of the object or the articles against which the loan agreement is made, is illegal and is not permissible by law and the consumer has to be compensated adequately for the mental agony, harassment, public humiliation emotional suffering physical discomfort and financial loss.  Such type of instant Justice  cannot be permitted in a civilized society where there is effective rule of law.

            According to complainant he was ready to pay the amount dues and had sought two days time to pay the amount but the Opposite Party re-possessed the vehicle. It is not in dispute that the Opposite Party has rendered the financial assistance of Rs. 35,000/- payable in 36 installments and that the complainant has not paid all the installments but has paid only Rs.22725/-  as evidenced under Ext A5.  In the instant case Opposite Party has re –possessed the vehicle, without giving notice it is untrade practice Opposite Party cannot appropriate the amount. By selling away the vehicle.  Hence we are of the considered view that Opposite Party shall pay Rs. 22725/- the amount already paid by complainant by way of monthly installments and Opposite Party is not entitled to claim any more amounts from complainant since they are in possession of the vehicle since 30/11/2012 onwards.  The Opposite Party is entitled to sell the vehicle to any intending buyer if not sold, and appropriate its proceeds thereof. Since acts of Opposite Party amounts to unfair trade practice and amounts deficiency in service, for which Opposite Party has to compensate the complainant.  Complainant is also eligible for cost of the litigation.

            In the result complaint is allowed partly directing the Opposite Party to refund Rs. 22750/- the amount already collected from complainant and also pay Rs. 5000/- (Rupees Five thousand only) for compensation to unfair trade practice and deficiency in service and also directed to pay Rs.5000/- (Rupees Five Thousand only) as the cost of the litigation within 30 days of the receipt of the order.

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MEMBER                                                      MEMBER                                          PRESIDENT  

Exhibits

A1.R.C

A2.Surrendering letter

A3. Pre-Sale letter

A4. Receipts

A5. Series- receipts

B1. The notarized copy of the loan agreement

B2. Agreement

B3. Pre-sale intimation notice

B4 Payment schedule

Witness Examined

Pw1. Sailendran. C.K

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MEMBER                                                      MEMBER                                          PRESIDENT

Forwarded by Order

Ps/                                                                                Senior Superintendent