BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 06/2006

Dated : 16.11.2009

Complainants:

1. P. Sasidharan Nair, Konathu Kulangara, Vattiyoorkavu P.O, Thiruvananthapuram.

Addl. Complainants:

2. S. Harikumar, S/o late P. Sasidharan Nair, Konathu Kulangara, Vattiyoorkavu P.O, Thiruvananthapuram.

    

3. R. Girija, W/o late P. Sasidharan Nair, Konathu Kulangara, Vattiyoorkavu P.O, Thiruvananthapuram.

    

4. Sobhanakumari, D/o late P. Sasidharan Nair, Konathu Kulangara, Vattiyoorkavu P.O, Thiruvananthapuram.

    

5. Santha, D/o late P. Sasidharan Nair, Konathu Kulangara, Vattiyoorkavu P.O, Thiruvananthapuram.

(By adv. B. Vijayakumar)

Opposite party:

Collection Manager, RAPG, ICICI Bank, Kamala Towers, Opposite Geethanjali Hospital, Vazhuthacaud, Thiruvananthapuram.

(By adv. Koliacode K. Rajeev)

This O.P having been heard on 15.10.2009, the Forum on 16.11.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Facts of the case are as follows: With the finance of the opposite party complainant has purchased a Honda Activa Scooter from Marikar Motors on 24.05.2004. At the time of availing the loan from the opposite party, complainant was forced to issue 36 blank cheques to the opposite party. The due date of the payment of the first instalment was on 24.06.2004 onwards at Rs. 1,078/- per month. But due to some financial problem the complainant could not deposit one month's instalment as such one of the cheque leaves was dishonoured. Due to that reason the opposite party from that month onwards directly approached the complainant and collected the monthly instalment. Complainant remitted the monthly instalments upto 21.09.2005. During the month of September complainant met with an accident and was undergoing treatment and hence he was unable to pay the monthly instalment from October onwards. When one of the officials of opposite party approached the complainant in the first week of December, complainant assured him that the amount will be paid on the due date that is on 24.12.2005 itself and he was amenable for the same. But on 15.12.2005 some goondas of the opposite party came to the house of the complainant and took away the scooter by force when the wife of the complainant was all alone in the house. When the complainant went to the office of the opposite party for the release of the vehicle after paying 3 months instalments they refused to release the vehicle. Complainant is ready to pay the dues upto January 2006 and also the expenses incurred for taking the vehicle for which the opposite party is not willing. As per the complainant the act of the opposite party amounts to unfair trade practice. The opposite party has no right to take away the vehicle by force because only 19 instalments were over whereas 17 more instalments are remaining. When the complainant approached the opposite party they were not even prepared to hear the complainant. As per the direction of the Forum the complainant had remitted Rs. 6,790/- to the opposite party on 17.01.2006 to release the vehicle. Altogether complainant has remitted Rs. 32,965/- to the opposite party. Complainant prays for refund of the amount with interest and compensation.

In this case opposite party remained exparte. At the preliminary stage of this case there was representation from the opposite party's side. At the time of trial the complainant filed a petition (I.A 02/06) to release the vehicle which has been repossessed by the opposite party. In that petition the complainant stated that he is ready to pay the dues. As per records the due was Rs. 6,819/-. This Forum allowed the petition and directed the complainant to pay the amount and directed the opposite party to receive the amount and release the vehicle. But they did not comply the order and thereafter they did not appear before this Forum. They accepted the amount from the complainant, but did not hand over the vehicle to the complainant. Thereafter complainant had filed a prosecution petition against the opposite party. That petition is still pending. Thereafter opposite party did not appear before this Forum and they remain exparte. Meanwhile complainant in this case expired and hence impleaded the legal heirs of the complainant as additional complainants 1 to 4. As per I.A. No. 489/06 the original complaint was also amended.

In this case the 1^st additional complainant has filed proof affidavit for and on behalf of other complainants also. From the side of complainants 7 documents were marked as Exts. P1 to P7. He was examined as PW1 and there was no cross from the side of opposite party. Hence the affidavit filed by the complainant stands uncontroverted and unchallenged.

Points that would arise for consideration are:-

1. Whether there is deficiency in service and unfair trade practice from the side of opposite party?

2. Whether the complainant is entitled to get the reliefs and costs?

In support of the complaint, complainant has filed proof affidavit and Exts. P1 to P7 were marked. Opposite party remained exparte. Ext. P1 is the booking form of the vehicle. Ext. P2 is the payment receipt issued by the opposite party dated 13.06.2005 for Rs. 1,078/-. Ext. P3 is the payment receipt dated 21.09.2005. Ext. P4 is the No Objection Certificate issued by the opposite party. In this document opposite party has informed the complainant that the financial liability on the vehicle is terminated and to remove their hypothecation from the insurance books. Ext. P5 is the postal receipt of sending D.D to the opposite party. Ext. P6 is the signed acknowledgement card by the opposite party.

At the time of repossessing the vehicle the complainant has paid 19 instalments the remaining instalments are 17. Immediately after the seizure of the vehicle the complainant approached the opposite party and requested to release the vehicle after receiving the due instalments, but the opposite party was not ready to hear the request of the complainant. After filing the complaint before this Forum as per the direction of this Forum complainant had paid Rs. 6,790/- to the opposite party to release the vehicle. Opposite party received the amount, but did not release the vehicle and thereby violated the order of this Forum. In this case complainant had remitted Rs. 32,965/- to the opposite party for the vehicle. As per Ext. P1 the price of the vehicle is Rs. 39,584/-. The complainant purchased the vehicle on 24.05.2004. Opposite party took away the vehicle on 15.12.2005. The complainant used the vehicle only for 1½ years. Due to the accident, complainant has not been able to pay 3 instalments from October to December. The complainant agreed with the opposite party that he will pay the amount on the due date i.e on 24.12.2005, opposite party agreed that. But on 15.12.2005 they forcibly repossessed the vehicle from the complainant's house when his wife alone was in the house. The act of the opposite party is against law and justice. There are various higher court decisions against the unlawful repossession of the vehicle by the financiers. The act of the opposite party in taking the vehicle by force amounts to unfair trade practice and their deficient service. And moreover the opposite party has not complied the order of this Forum. In this case the affidavit filed by the complainant stands uncontroverted. From the evidences and documents on record, we find that the complainants have succeeded to prove their case. In our view average life span of a motor bike is about 10 years. Complainant had used the vehicle for 1½ years. Accordingly we deduct Rs. 4,965/- from Rs. 32,965/- towards depreciation. Hence the complaint is allowed.

In the result, opposite party is directed to refund Rs. 28,000/- (Rs. 32,965/- - Rs. 4,965/-) with 12% annual interest from 17.01.2006 and Rs. 1,500/- as costs. Time for compliance one month from the date of receiving the order. Thereafter 12% annual interest shall be added to the entire amount.

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 16^th day of November 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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C.C. No. 06/2006

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Booking form of the vehicle

P2 - Payment receipt issued by the opposite party dated

13.06.2005 for Rs. 1,078/-.

P3 - Payment receipt dated 21.09.2005.

P4 - No Objection Certificate issued by the opposite party.

P5 - Postal receipt of sending D.D to the opposite party.

P6 - Acknowledgement card signed by the opposite party.

P7 - Copy of Banker's cheque for Rs. 6,820/-.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT