BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.

Complaint Case No.19/2017.

Date of Instt.: 20.01.2017.

Date of Decision: 24.08.2017.

Rajpal son of Surja Ram, resident of village Pilimandori, Tehsil and District Fatehabad.

..Complainant

     Versus

Chola Mandlam Investment and Finance Company Limited, First Floor of Yes Bank, Opposite ICICI Bank, Anaj Mandi, Fatehabad, Tehsil and District Fatehabad through its Branch Manager.

..Opposite Party

Before:       Sh.Raghbir Singh, President.

                   Sh.R.S.Panghal, Member.

                   Smt. Ansuya Bishnoi, Member.     

Argued By :  Sh.N.S.Malik, Adv. for the complainant

                    Sh. Ashish Goyal, Advocate for opposite party.         

ORDER

           The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant with the averments that the complainant is registered owner of the vehicle i.e. Eisher Canter 1059 bearing registration No.HR-62-4205 and he got financed the above-said vehicle from the OP Company and thereafter the complainant was making the payment of the installment of Rs.13,500/- per month in the office of the OP from time to time. Therefore, he is the consumer of the OP as defined the Consumer Protection Act, 1986. It is further averred that on 06.12.2016 when the complainant was going to Rajasthan on his aforesaid vehicle and reached Sanjhepur Border (Rajasthan) the employees of the OP impounded the aforesaid vehicle of the complainant and taken the possession of the same from the complainant forcibly and illegally with the threat that the complainant has not deposited the installments of the loan on time. It is also further averred that  the complainant was making the payment of the installment of loan from time to time and due to snatching of the vehicle the complainant is suffering economic loss of Rs.2000/- per month and he is also suffering from mental agony and physical harassment. It is further averred that the complainant served a legal notice to the OP through registered post to handover the vehicle. However, the OP refused to receive the same. The complainant  also asked the OP several times to handover the aforesaid vehicle but the OP refused to do so. Hence, the present complainant.

2.                On notice the OP appeared and resisted the claim of the complainant by filing a written statement wherein certain preliminary objections have been taken that the present complainant is not maintainable in the present form;  that  this form has no territorial jurisdiction to try and entertain the present complaint,  that the complaint is false and frivolous and have been filed with ulterior motive to  evade the liability in terms of the agreement between the complainant and OP. In reply, on merits it is submitted that the answering respondent is a renowned finance company and is engaged in the business of providing loan facility to the aspiring consumers who intends to finance the vehicle on a easy term loan facility and it is the complainant himself who had approached the respondent company for providing financial assistance for purchase of Eicher Canter 10.59 in the month of April and it is on the request of the complainant, the respondent company had disbursed a financial assistance to the tune of Rs.3,37,500/- to the complainant for purchase of the  above stated vehicle on monthly EMI of Rs,13500/-. That the complainant as a token of its repayment of loan had also got executed loan agreement form in favour of the respondent and as per the terms and conditions of the loan agreement, in case of none adhering to the financial Discipline by the borrower, the respondent Company were having due authority to repossess the vehicle, in the eventuality of the non-payment of installment amount under the loan agreement. That since the day of releasing the loan amount to the complainant, the complainant  had not  adhered to the premium payment schedule and on the date of repossession of the finance vehicle by the respondent company a huge amount was found due and outstanding towards the complainant under the  loan account No.XVFPHSR00001397630. It is further submitted that prior to taking of a peaceful possession of the vehicle several correspondences were made to the complainant to make payment of the outstanding amount but the complainant malafidely had not made payment of the outstanding dues and constrained to the same, the  possession of the vehicle in question was taken in a very peaceful way and the respondent company even after in receipt of possession of the vehicle, had corresponded with the complainant vide its letter dated 10.12.2016 wherein required him to make payment of the entire outstanding dues and had further made clarified to the complainant that in eventuality of not making payment of the due amount, the respondent company will sell the vehicle after assessing its value but the complainant had not steeped ahead and the respondent company with a view to minimize their loss to some extent, after adopting due procedure had sold the vehicle for an amount of Rs.2,30,000/- to One Rajan Gandhi son of Tirlok Chand and the said purchaser had deposited the entire amount with the respondent company and the respondent company undertakes to adjust that very amount in the loan account of the complainant and will reserve their right to recover the balance amount from the complainant.

3.                 The OP further submitted that there is no deficiency on the part of OP in the present matter and the complaint filed by the complainant is without any merits and as such the same deserves dismissal.

4.                 In evidence the complainant tendered his affidavit as Ex.CW1 wherein he has reiterated the submissions as made in the complaint. It support of his case the complainant also tendered documents as Annexure C1 to C7. On the other hand the OP tendered affidavit of Abhijit Legal Manager of the company of OP as Ex.RW1/A an documents as Annexure R1 to R8.

5.                 The learned counsel for the complainant in his arguments reiterated the submissions made in the complainant and contended that although payment of the loan installments was made by the complainant on time yet the OP without giving any notice to the complainant took the possession of the vehicle in question forcibly and illegally. This amount to unfair trade practice and deficiency in service on the part of the OP.

6.                 On the other hand the learned counsel for the OP rebutted the contentions of the learned counsel for the complainant and reiterated the submissions made in the written statement filed by the OP. The learned counsel vehemently contended that since the day of releasing the loan amount, the complainant had not adhered to the premium payment schedule and on the date of repossession of the financial vehicle a huge amount was found due against the complainant as such action of the OP in taking amount was found due against the complainant as such action of the OP in taking possession is perfectly in accordance with the terms and condition of the agreement and the same is sustainable in the eyes of law. It is also contended by the learned counsel for OP that before taking the vehicle in possession a lot of correspondence was made with the complainant and the possession of the vehicle was taken in a peaceful manner and by giving a prior notice to the concerned police station. It is also further contended that to recover the loss/outstanding amount the vehicle was sold by following the due procedure. The counsel further prayed for dismissal of the complaint being devoid of any merit.

7.                 We have heard the contentions of the learned counsel for the parties and have also perused the documents placed on record of the file. From perusal of the record of present case it is revealed that there is  no evidence of any notice having been sent to the complainant before repossessing the vehicle on 06.12.2016,  that if he does not pay the outstanding amount, the vehicle will be repossessed by the OP. In this regard the Hon’ble National Commission vide its order dated 13.03.2015 in Revision Petition No.3054 of 2014 titled as Manager, Shri Ram Transport Finance Comp.Ltd Vs. Suresh and others inter-alia held as under:-

                   “In our view, when a transporter finance company such as the petitioner before us, finance a vehicle and there is a default on the part of the borrower in servicing the loan taken by him, it must necessarily issue a notice to him expressing its intention to repossess the vehicle in exercise of the power conferred upon it under the loan agreement before the vehicle is actually repossessed by it. The purpose behind insisting upon such a notice being given to the borrower is to give him an opportunity to approach the financer and either bring the payment if already made by him to the knowledge of the financer or to convince the finance that it was on account of reasons beyond his control that he could not service the loan and therefore, the default committed by him may be condoned. It is quite possible that the financer may get convinced from the circumstances so explained by the borrower and may not insist upon repossessing the vehicle, his primary objective being to recovery of loan given to the borrower and not to repossess the vehicle financed by it. If a vehicle is repossessed, without giving such a notice to the borrower, not only it has the potential to disrupt the business or profession in which the borrower is engaged using the vehicle, it may also result in his image and reputation in the society being lowered on account of the abrupt, sudden and forcible seizure of the vehicle by the financer. If a notice expressing intention to repossess the vehicle on the default of the borrower is given to him, he gets ample opportunity to prevent the  proposed seizure by approaching the financer and either payment the amount which he was unable to pay along with appropriate interest and/or penalty on that amount or to dispose of the vehicle at his own level and repay the loan taken by him. Therefore, in all fairness, the financer must give a reasonable notice to the borrower before repossessing he vehicle financed by it and in no case the vehicle should be possessed by use of force.

                   In our opinion the seizure of the vehicle in such circumstances constitutes deficiency in service causing tremendous mental torture and stress to the borrower who all of a sudden finds himself without the vehicle which he had purchased albit with the financial assistance taken from the lender. The borrower is such circumstances does not get an opportunity to arrange the requisite finances to repay the amount which he defaulted in paying to the lender before the vehicle comes to be repossessed by the lender.”

8.                     A perusal of the record further reveals that for selling vehicle in question the OP has taken only one quotation i.e. from Rajan Gandhi. No other quotation from any other person is not on the file. Therefore, we are of the opinion that a standard norm has not been adopted by the OP for selling the vehicle. Therefore it cannot be said that the vehicle was sold without following a fair and transparent process. From perusal of the record it is also revealed that before selling the vehicle by calling quotation the OP Company did not convey the date to the complainant on which the said vehicle was proposed to be sold.  As a result, the complainant lost an opportunity to make a bid to purchase the vehicle repossessed from him. We are of the opinion that the OP ought to have intimated the date of intended sale to the complainant that he would  be able to participate in the sale process.

9.                     From the reasons state of  hereinabove we are of the opinion that there is a deficiency on the part of OP in rendering services to the complainant

10.              The next question which arises is what would be the fair compensation which the OP should pay to the complainant in the fact and circumstances of the case. Admittedly the vehicle was used by the complainant for about five years before it came to be seized by the OP on 06.12.2016. From perusal of the Annexure C-7 (Insurance Policy) it is revealed that the value of vehicle on 06.06.2016 was Rs.5,22,500/- as assessed by the Insurance Company. However, the vehicle has been sold for Rs.2,30,000/- by the OP on 31.01.2017 by calling a quotation. We are of the opinion that the vehicle has been sold on a less price from the market value. Therefore, we direct the OP to make a payment of Rs.2 lacs in lump sum to the complainant within one month.  A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.

Announced in open Forum.                                                            (Raghbir Singh)

Dated: 24.8.2017.                                                                             President

                        (R.S. Panghal)            (Ansuya Bishnoi)

                        Member                          Member