Tamil Nadu

South Chennai

CC/353/2013

A.Srinivasan - Complainant(s)

Versus

Bajaj Finance Ltd., - Opp.Party(s)

J.R.Prabakaran

04 Jul 2022

ORDER

                                                   Date of Complaint Filed   : 29.10.2013

                                                   Date of Reservation        : 17.06.2022

                                                   Date of Order                 : 04.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                             : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,            :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN, B.Sc., MBA.,      : MEMBER II

 

CONSUMER COMPLAINT No.  353/2013

MONDAY, THE 4^th DAY OF JULY 2022

A.Srinivasan,

S/o K.Alavandar,

No.17/4, A.M. Kailasam Street,

Erukkancherry,

Chennai – 600 118.                                                        ... Complainant                          

 

..Vs..

1.The Manager,

   Bajaj Finance Limited,

   Akurdi,

   Pune – 411 035.

   Maharashtra, India.

 

2.The Manager,

   Bajaj Finance Limited,

   (AF Vertical),

   C/o. Bajaj Auto Ltd,

   2^nd Floor, Bharani Business Centre,

   2/A, Dr. Bhanumathi Ramakrishna Road,

   Saligramam, (Near Bharani Hospital),

   Chennai – 600 093.                                               ...  Opposite Parties

 

******

Counsel for the Complainant            :M/s. J.R. Prabhakaran

Counsel for the Opposite Parties       : M/s. S. Parthasarathy

 

        On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Parties, we delivered the following:

 

 

ORDER

Pronounced by the Member-I, T.R.Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to return the Motor bike bearing Reg. No. TN-05-AL-5298 to the Complainant and to pay a sum of Rs.5,00,000/- towards compensation for the deficiency in service to the Complainant and to pay a sum of Rs.2,00,000/- towards mental agony and Rs.20,000/- cash which was stolen by the agents of the 2^nd Opposite Party and direct the Opposite Parties to pay a sum of Rs.30,000/- towards the cost of this case.

2.     The averments of Complaint in brief are as follows:-

The Complainant had availed loan for the purchase of Bajaj Pulsar 150 CC bike from the Opposite Parties by hypothecating his bike. A down payment of Rs.24,315/- had been paid to the dealer. He could not able to pay EMI from May 2013 to July 2013. On 16.07.2013 he had received call over phone from the 2^nd Opposite Party to repay the dues, for which he had informed and agreed to pay the due amounts within three days. And on the same day i.e., on 16.07.2013 at 5.40 pm when he had parked his vehicle in the Verandah of his mother-in-law’s house at Valasarawalkam, Chennai, his vehicle was found to be stolen and he had lodged a complaint before the Valasarawalkam Police Station on 16.07.2013 at 6.30 pm and had also informed about the same to the Insurer of his vehicle, namely Oriental insurance Company and on 18.07.2013 he had sent the information of his stolen vehicle to the 2^nd opposite party to their Anna Salai Address, as mentioned in the Registration Certificate of the Vehicle, which was returned as “left”. Thereafter had intimated the 2^nd Opposite Party about the theft of the Vehicle. A Pre-sale intimation notice dated 22.07.2013, which was received by him on 25.07.2013, stating that the vehicle was surrendered by the Complainant on 18.07.2013 and agreed to adjust the sale proceeds out of sale of the vehicle. He wonders how the subject vehicle subjected to theft on 16.07.2013 could be voluntarily surrendered on 18.07.2013 when he was in possession of two keys and original Registration Certificate and the said facts would clearly show that the vehicle has been illegally repossessed by the Opposite Parties through goondas and rowdy elements had fraudulently stolen the vehicle having trespassed the verandah belonging to his mother-in-law’s house and it is the Opposite Parties who had breached the contract and not the Complainant. On 18.07.2013 he had sent the information of his stolen vehicle to the 2^nd opposite party to their Anna Salai Address, as mentioned in the Registration Certificate of the Vehicle, which was returned as “left”. Thereafter had intimated the 2^nd opposite party about the theft of the Vehicle. A Loan recall notice dated 17.07.2013 sent by the 1^st opposite Party and received by him on 27.07.2013, subsequently another notice dated 22.07.2013, which was received by him on 25.07.2013. The alleged total outstanding in notice dated 17.07.2013 was Rs.21,341/- and in notice dated 22.07.2013 was Rs.23,341/-. The Respondent without adhering to any law using goondas and rowdy elements had trespassed and stolen his vehicle and the Opposite party had illegally attempted to justify their illegal acts by issuing notice after very long period of six days alleging he had voluntarily surrendered his bike, despite he being a lawyer and a law abiding citizen, who had agreed to pay 3 months instalments of Rs.8,514/- immediately. The act of the Opposite Party amounts to theft and stealing his bike without any notice amounts to violation of Principles of natural justice and arbitrary and further amounts to malafide exercise of power. For the deficiency in service made by the 2^nd Opposite party approached this Commission seeking damages for the loss suffered by him. Hence the Complaint.

3. Brief facts of the Written Version are as follows:

Taking possession of the vehicle is part and parcel of the Loan Agreement  Vide No. L2WCHE01413397 and the vehicle is a security under clause 21 of the said Agreement and the Complainant admitted that he had paid 3 loan instalments as on July,2013 and it is an admitted fact that he had violated the terms and conditions of the Agreement and as per clause 9, 19 (a,b,o) the Complainant has to regularize the loan instalment without any default, he had also violated Clause 10(ii) of the Agreement by commiting default, at the time of peaceful repossession of the Complainant vehicle he was in default of Rs.8514/- (3 EMI’s) with future EMI payable at Rs.11352/-, hence he is due and payable a sum of Rs.24,341/- as on 22.07.2013. He is a defaulter and as a defaulter he cannot maintain a complaint alleging deficiency of service against the Opposite Parties and had quoted judgments in support of the repossession made, judgments held by Hon’ble Supreme Court as follows, 1) As per the terms and conditions of the Hire Purchase/Hypothecation Agreement they can repossess the vehicle, 2) After registration of FIR , direction of the Civil Court to hand over the vehicle which was upheld by High Court, but the Possession was restored to the Financier by the Apex Court, and 3) on default committed, the Financer is entitled to repossess the vehicle and order of Our Hon’ble State Commission that in the repayment of arrears of dues and if the Financier repossess the vehicle without prior notice to the hirer does not come under the purview of Deficiency of Service and also 4) the Orders of Hon’ble National Commission if any dispute arises as per the Hire Purchase/Hypothecation Agreement in the event of default in repaying outstanding dues, EMIs, the repossession of the vehicle is not deficiency of service. As the Complainant is in default in paying the monthly instalments, there is no deficiency or unfair trade practice on the part of the Opposite Parties. The amount of Rs.24,195/- was paid to the dealer and not to them, and they have no knowledge about Complainant is an advocate as he had signed as a proprietor showing employment details of Mogambigai Arts. It is his bounden duty to pay the instalments without default and on 08 12.2011 he had executed an undertaking letter to that effect. Since he had committed default without co-operating with the 2^nd Opposite Party, their regional office requested on 15.07.2013 to send loan recall notice and on the request on 16.07.2013 they had despatched loan recall notice dated 17.07.2013. The Complainant when requested to acknowledge their recall notice and to surrender the vehicle on 16.07.2013, had challenged the 2^nd Opposite party to take the vehicle which would be parked at Valasarawalkam and based on the information of their representative they had taken peaceful possession of the vehicle and immediately intimation of repossession had been served to Local Police Station. Hence they had not illegally repossessed the vehicle of the Complainant recruiting goonda element or by force or trespassing but only based on the information of the Complainant itself about the Parking place which was at Valasaravakkam they had took peaceful possession of the vehicle. On conferred right under the loan agreement to repossess the vehicle under hypothecation, in case of default committed in paying the monthly instalment by the customer and exercising their rights and following the procedures they had repossessed the vehicle of the Complainant as admitted by the Complainant that he had committed default in paying the monthly instalments, hence they had not committed any deficiency of service and the Complainant had not suffered any mental agony. Hence the Complaint is to be dismissed.

4.     The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to ExA-16 were marked. The Opposite Parties submitted its Proof Affidavit and Written Arguments. On the side of the Opposite Parties, documents Ex.B-1 to Ex.B-9 were marked.

5.    Points for consideration:-

1. Whether the Opposite Parties had committed deficiency of service to the Complainant?

2. Whether the Complainant is entitled for reliefs claimed in the Complaint and entitled for any other relief/s?

 

Point No.1:-

It is an undisputed fact that the Complainant had availed loan for the purchase of Bajaj Pulsar 150 CC bike from the Opposite Parties. It is also not in dispute that the Complainant had not paid EMI from May 2013 to July 2013.

The Dispute arises on the alleged repossession of the vehicle of the Complainant on 16.07.2013 by the Opposite parties.

The Contention of the Complainant is that on 16.07.2013 he had received call over phone from the 2^nd Opposite Party to repay the dues, for which the Complainant had informed and agreed to pay the due amounts within three days. And on the same day i.e., on 16.07.2013 when he had parked his vehicle in the Verandah of his mother-in-law’s house at Valasarawalkam, Chennai, his vehicle was found to be stolen and he had lodged a complaint before the Valasarawalkam Police Station on 16.07.2013 (EX.A-6) and had also informed about the same to the Insurer of his vehicle, namely Oriental insurance Company on 17.07.2013 (Ex.A-7) and on 18.07.2013 he had sent the information of his stolen vehicle to the 2^nd opposite party to their Anna Salai Address(Ex.A-9), as mentioned in the Registration Certificate of the Vehicle, which was returned as “left” (Ex.A-10). He had received a demand notice dated 17.07.2013 sent by the 1^st Opposite Party which was actually despatched on 24.07.2013 and received by him on 27.07.2103 (Ex.A-8) wherein the total loan outstanding was demanded or to surrender his vehicle along with keys and original papers to avoid legal proceedings against him and his asset. And by another notice under caption Pre-sale intimation notice dated 22.07.2013 (Ex.A-11), which was received by him on 25.07.2013, wherein it was mentioned that the vehicle was surrendered by the Complainant on 18.07.2013 and he was called to settle the total outstanding dues within 10 days and to take back the vehicle, failing which his vehicle will be sold and after adjustment of sale proceeds, balance if any will be paid to him. He came to know after the receipt of Ex.A-11 that the vehicle has been illegally repossessed by the Opposite Parties. Even on 25.07.2013 through his letter by RLAD sent to the 2^nd opposite Party he had intimated about his stolen vehicle as well as the letter sent to their Anna Salai Address which was returned as left and the same was received by the 2^nd Opposite Party. Further he had issued a reply notice on 02.08.2013 (Ex.A12) to the above demand notices dated 17.07.2013 and 22.7.2013 (Ex.A-8) and (Ex.A-11). Hence the Opposite Parties by illegal repossession of his vehicle had committed deficiency and had made him to suffer mental agony. The Complainant relied upon judgment and order reported in (2007) 2 Supreme Court Case 711, wherein in reference made to paragraph no.16, wherein the Hon’ble Apex Court had observed that “Before we part with the matter, we wish to make it clear that we do not appreciate the procedure adopted by the Bank in removing the vehicle from the possession of the writ petitioner. The practice of hiring recovery agents, who are muscle men, is deprecated and needs to be discouraged. The Bank should resort to procedure recognized by law to take possession of vehicles where the borrower may have committed default in payment of the instalments instead of taking resort to strong-arm tactics”. And Order reported in III (2007) CPJ 161 (NC), wherein the Hon’ble National Commission has upheld the Order of the District Forum of the finding that the Opposite Party bank had committed deficiency of service by repossessing the vehicle before the time given in making one time settlement, by modifying the order of State Commission with regard to the grant of punitive damages.

The Contention of the Opposite Parties are that they have been conferred right under the loan agreement to repossess the vehicle under hypothecation, in case of default committed in paying the monthly instalment by the customer and exercising their rights and following the procedures they had repossessed the vehicle of the Complainant as admittedly he had committed default in paying the monthly instalments and further the Complainant when requested to acknowledge their recall notice and to surrender the vehicle on 16.07.2013, had challenged the 2^nd Opposite party to take the vehicle which would be parked at Valasarawalkam and based on the information of their representative they had taken peaceful possession of the vehicle and immediately intimation of repossession had been served to Local Police Station. Hence they had not committed any deficiency of service and the Complainant had not suffered any mental agony. The Opposite Parties had quoted judgments in their version in support of the repossession made, judgments held by Hon’ble Supreme Court as follows, 1)As per the terms and conditions of the Hire Purchase/Hypothecation Agreement they can repossess the vehicle, 2) After registration of FIR , direction of the Civil Court to hand over the vehicle which was upheld by High Court, but the Possession was restored to the Financier by the Apex Court, and 3) on default committed, the Financer is entitled to repossess the vehicle and order of Our Hon’ble State Commission that in the repayment of arrears of dues and if the Financier repossess the vehicle without prior notice to the hirer does not come under the purview of Deficiency of Service and also 4) the Orders of Hon’ble National Commission if any dispute arises as per the Hire Purchase/hypothecation Agreement in the event of default in repaying outstanding dues, EMIs, the repossession of the vehicle is not deficiency of service. The said Judgements and orders were not circulated by the Opposite Parties.

Considering the facts and circumstances of the case and on careful reading of the documents filed in support of contentions made on either side, the Opposite Parties without following the procedures laid down under law in repossessing the vehicle of the Complainant by not making any demand either to pay the arrears of monthly instalments or to settle the entire loan outstanding under the subject hypothecation agreement, to the Complainant before repossessing the vehicle and issuance of demand notice dated 17.07.2013 as found in Ex.A-8, is clearly after repossession of the vehicle and the same was found to be despatched on 24.07.2013, which was found to be received by the Complainant only on 27.07.2013, wherein the Complainant was called upon to settle the outstanding dues within 7 days and the said notice had not also disclosed about the repossession of the Complainant’s vehicle made by the Opposite Parties, though the vehicle was repossessed by them on 16.07.2013 itself and whereas in the Pre-sale intimation notice dated 22.07.2013 as found in Ex.A-11 sent to the Complainant, which was found to be received by the Complainant on 25.07.2013, it was mentioned that the vehicle was voluntarily surrendered by the Complainant on 18.07.2013, and in contrary, the opposite parties in their Written Version in Page No.8, in Paragraph no. d) that the representative of the Opposite Parties requested the Complainant to acknowledge the loan recall notice on 16.07.2013, which was not accepted by the Complainant and on challenge made by the Complainant, the Opposite Parties had repossessed the vehicle, such an admission would itself clearly shows that the Opposite Parties had acted in high handed manner taking law into their hands, which is not permissible and not sustainable and further the opposite Party would rely upon their Demand Notice dated 17.07.2013 (Ex.A-8) wherein demand made to the Complainant to settle the outstanding dues with 7 days or to surrender his vehicle, which was also not followed by the Opposite Parties, hence the act of repossession of the Complainant’s vehicle is arbitrary and with high handedness taking law into their own hands would clearly amounts to deficiency of service as held by the Hon’ble National Commission in Citicorp Maruti Finance Ltd Vs- S.Vijayalakshmi, reported in III (2007) CPJ 161 (NC). Further this Commission would like to observe that in spite of genuine steps taken the Complainant in intimating about his stolen vehicle as per Ex.A-6, A-7, A-9, A-10, A-12, his vehicle has been unlawfully repossessed by the Opposite Parties. Hence this Commission is of the considered view that the Opposite Parties had committed deficiency of service and thereby had caused mental agony to the Complainant. Accordingly Point No.1 is answered.

Point No.2 :-

As the subject vehicle of the Complainant was reported to be unsold by the Counsel for Opposite Parties and the same was lying in the yard of the Opposite parties, as rightly pointed out by the Counsel for the Complainant that even if the vehicle is ordered to be returned back by the Opposite Parties the vehicle kept idle for the past 9 years in the yard of the Opposite Parties, the vehicle could not be utilized by the Complainant, hence the relief of ordering the Opposite Party in returning back the vehicle would not serve any purpose to the complainant. Further the Opposite Parties had committed deficiency of service by unlawfully repossessing the subject vehicle and the same was kept unsold after deduction of a sum of Rs.21,341/- as demanded in Ex.A-8, the Opposite Party is liable to pay a sum of Rs.52,523/- (being Rs.73,864/- being the Invoice value of the subject vehicle less Rs.21,341/- being the Outstanding amount to be paid by the Complainant as per Ex.A-8), together with interests at the rate of 9% per annum from the date of filing of the Complaint, i.e., from 29.10.2013 till the date of this order, to pay a sum of Rs.1,00,000/- towards compensation for deficiency of service and for the mental agony and also to pay a sum of Rs.10,000/- towards costs of the proceedings. And the Complainant is not entitled for any other relief/s. Accordingly Point No.2 is answered.

In the result the complaint is partly allowed. The Opposite Parties 1 and 2 are jointly and severally directed to pay a sum of Rs.52,523/- (Rupees Fifty Two Thousand Five Hundred and Twenty Three Only), (being Rs.73,864/- the Invoice value of the subject vehicle less Rs.21,341/- being the Outstanding amount to be paid by the Complainant as on 17.07.2013), together with interest at the rate of 9% per annum from the date of filing of the Complaint, i.e., from 29.10.2013 till the date of this order, to pay a sum of Rs.1,00,000/- towards compensation for deficiency of service and for the mental agony and also to pay a sum of Rs.10,000/- towards costs of the proceedings, to the Complainant, within 8 weeks from the date of the order, failing which the Complainant is entitled to recover the above said amounts with interest at the rate of 9% per annum from the date of the order till the date of realization.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 4^th of July 2022.

  

S. NANDAGOPALAN                                                            T.R. SIVAKUMHAR                                                       B.JIJAA

         MEMBER II                                                                           MEMBER I                                                           PRESIDENT

 List of documents filed on the side of the Complainant:-

 

Ex.A1	24.11.2011	Cash Receipt No.604243 of KLN Automobile (P) Ltd
Ex.A2	26.11.2011	Cash Receipt No.604262 of KLN Automobile (P) Ltd
Ex.A3	30.11.2011	Cash Receipt No.604328 of KLN Automobile (P) Ltd
Ex.A4	05.12.2011	R.C. Book – No. TN-05-AL-5298
Ex.A5	13.01.2012	SBT Bank Statement of the Complainant
Ex.A6	16.07.2013	Police Complaint of the Complainant
Ex.A7	17.07.2013	Letter of the Complainant to the Oriental Insurance Co. Ltd.
Ex.A8	17.07.2013	Legal Notice of the 1st Opposite Party along with returned Postal Cover
Ex.A9	18.07.2013	Letter of the Complainant to the 2nd Opposite Party along with RPAD Receipt
Ex.A10	19.07.2013	RPAD Returned
Ex.A11	22.07.2013	Letter of the 1st Opposite Party along with Cover
Ex.A12	25.07.2013	Letter of the Complainant to the 2nd Opposite Party along with RPAD Receipt and acknowledgement cards.
Ex.A13	31.07.2013	FIR in Crime No.909/2013 Lodged by the Complainant
Ex.A14	02.08.2013	Reply Notice of the Complainant along with postal receipts and postal acknowledgement
Ex.A15	06.08.2013	Letter of the 1st Opposite Party BFL/LD/1341/08/2013-14 along with postal cover
Ex.A16	25.09.2013	Reply issued by the 1st Opposite Party

List of documents filed on the side of the Opposite Partyies-

Ex.B1	-	Loan Agreement with Schedule
Ex.B2	-	Statement of Account
Ex.B3	-	Return Memo
Ex.B4	-	Application Form
Ex.B5	-	Undertaking letter dated 08.12.2011
Ex.B6	-	LRN
Ex.B7	-	Police Intimation
Ex.B8	-	Presale
Ex.B9	-	Reply Notice dated 25.09.2013

 

S. NANDAGOPALAN                                                             T.R. SIVAKUMHAR                                                    B.JIJAA

         MEMBER II                                                                          MEMBER I                                                         PRESIDENT