D.o.F:2/3/09

D.o.O:22/02/2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                                CC.64/09

                   Dated this, the 22nd    day of February 2010

PRESENT:

SRI.K.T.SIDHIQ                                         : PRESIDENT

SMT.P.RAMADEVI                                    : MEMBER

SMT.P.P.SYAMALADEVI                                      : MEMBER

Muneer.P.M,

S/o Muhammed Kunhi,

Rahmath Road,Poochakkad, Keekkan,         : Complainant

Pallikkara,Kasaragod

(Adv.Shukkur,kasaragod)

Branch Manager,

IndusInd Bank,Hosdurg,Kanhangad,              : Opposite party 

(Adv.Manikandan,Hosdurg)

                                                       ORDER

SRI.K.T.SIDHIQ     : PRESIDENT

      In nutshell ,the case of the complainant is that the opposite party repossessed  his motor cycle alleging default in the monthly instalment remittances and also sold the vehicle to third party without giving any opportunity  to take back the vehicle after closing the loan.  Thereby he sustained pecuniary loss of Rs.25,000/-.  Hence the complaint.

2.    According to opposite party ,the complainant was very irregular  in repayment of the loan and he  was not ready to clear off the defaulted  instalments and other charges inspite of repeated demands.  Hence the vehicle was repossessed.  The said vehicle is sold by complying all the formalities and the amount is adjusted to the loan debt.  After the sale an amount of Rs.8640/- was only standing in the credit of the complainant  which includes the excess sale amount and premature interest.  Bank has adjusted the said amount towards the charges for seizure of the vehicle, repossessing charges, auction charges and expenses towards the changing of RCin to the name of purchaser.  So after adjustment there is no amount payable to the complainant.  Hence the complaint is liable to be dismissed.

3.   Complainant filed affidavit in support of his case.  Exts.A1 & A2 marked.  Complainant cross examined  by the  counsel for opposite party.  On the side  of  opposite party, Sri.Viju Janardhanan , Manager  Personal Product Division Indus Ind Bank Kanhangad has filed affidavit .  Exts.B1 to B3 marked.  Both sides heard.  Documents perused.

4.  Ext.A1 is  telegram dtd. 4/3/2008 issued to the complainant.  The telegram read as follows:

   DUE TO NON PAYMENT OF HIRE MONEY YOUR VEHICLE HAS BEEN REPOSSESSED.  KINDLY SETTLE THE ENTIRE LOAN ACCOUNT  AND TAKE BACK THE VEHICLE WITHIN FIVE DAYS OTHER WISE WE WILL SELL THE VEHICLE ANY LOSS OCCUR  WE   WILL TAKE LEGAL ACTION AGAINST YOU.

                                                                                                               INDUSIND BANK,KANHANGAD.

           It is the case of the complainant that he approached opposite party on the  next day of receiving the telegram but the opposite party informed him that the vehicle is already sold to third party.  It is also the case of the complainant that even after repossessing the vehicle the opposite party had withdrawn money from his bank account though the cheques entrusted  by him to opposite party for the realization  of EMI’s.

     Ext.A2 is the statement of Bank account pertaining to the complainant.  As per that it is seen that the opposite party had  collected 16 monthly instalments of Rs.1136/- each totalling Rs.18276/- from the  account of the complainant.

5.   Ext.B1 is the copy of the loan agreement executed by the  complainant with opposite party at the time of availing loan.  Ext.B2 is the copy of the receipt dtd.8/3/08 for Rs.30,000/- said to have collected from one  Mr.Gopalan towards the purchase of the vehicle from the opposite party.  Ext.B3 is the statement of account pertaining to the complainant’s loan.

      Though opposite party has given 5 days time to settle the loan account and repossess the vehicle as per Ext.A1 dtd.4/3/08.  It is seen that the vehicle was alleged to have sold to one Gopalan on 8/3/2008 itself.  As stated by the complainant he has not even given the time mentioned in Ext.A1 telegram to settle the account and take back the vehicle.  From Ext.A2 statement of account it is clear that opposite party has   realized the monthly instalments even after repossessing the motor cycle.

6.  The following deficiencies are apparent from the facts narrated above

a.        The vehicle was repossessed without recourse to lawful means

b.        The cheques obtained from the complainant at the time of executing  the loan agreement was sent for collection and realized EMI’s even after repossessing  the vehicle.

c.         The vehicle was sold without giving sufficient notice and time to the complainant to take back his vehicle after closing the loan.

d.        The opposite party had made unjust enrichment by appropriating the balance due after selling the vehicle illegally towards the charges for seizure of the vehicle, re-processing charges, auction charges and expenses towards changing the RC to the name of purchase of the vehicle etc.

7.   The hon’ble Supreme Court and National Consumer Disputes      Redressal Commission in a catena of decision has held that repossession of a vehicle without recourse to the lawful mean itself amounts to deficiency in service Some of the cases reported are. : (2007) 2 SCC 771 ICICI Bank vs. V Prakash Kumar & others , 2007 CTJ 1145 Citicorp Maruti Finance Ltd. Vs S Vijayalakshmi, 2009 CTJ 840 (CP) (NCDRC) Tata Motors vs. Indrasen choubey & others.

          Moreover, relying on the above decision in the case of ICICI Bank  the Hon’ble Kerala State Commission also held that it was incumbent upon the financier to approach the  court for redressal of their grievance and they were never expected to take forcible  possession of the vehicle(Appeal No.48/08) decided on  8/12/09.

          Therefore, the opposite party is liable to compensate the complainant adequately for the loss and hardship he suffered.

 8. From Ext.A2&B3 documents it is clear that the complainant had remitted Rs.8000+1136x16=26276/- towards the loan transaction to the opposite party.  Now the complainant has lost both the money and the vehicle and opposite party thereby acquired unjust benefits.  Therefore, the complainant  is entitled   for the refund of the amount he paid to opposite party along with compensation for the hardships and mental agony he suffered.

         In the result complaint is allowed .  The opposite party is directed to refund Rs.26276/- to the complainant  that he paid by instalments to opposite party towards the purchase of the vehicle along with a compensation of Rs.5000/- and a cost of Rs.3000/-.  Time for compliance is limited to 30 days from the date of receipt of copy of the order.  Failing which the said amount of Rs.26276/- will carry interest @12% per annum from the date of complaint till payment.

MEMBER                                       MEMBER                            PRESIDENT

Exts.

A1-Copy of telegram

A2-statement of account

B1- loan agreement

B2- 8/3/08-duplicate  receipt

B3-29/6/09-Statement of account

MEMBER                                       MEMBER                            PRESIDENT

eva/