Date : 07/03/2013
O R A L O R D E R
Per Mr.K.B.Gawali, Hon`ble Member.
1. These are the cross appeals directed against the judgment and order dated 10/07/2008 passed by the Dist. Forum, Ahmednagar whereby the appellant bank is held partly liable to pay the compensation. The appellant ICICI bank ( herein after “appellant bank” ) has filed the appeal No. 893/2008 for setting aside the impugned judgment and order. Whereas the appellant Dharmaji Gund ( herein after “Complainant” ) has filed appeal No. 896/2008 for enhancement of the compensation.
2. The issue involved in both the appeals is the same and hence we have decided to dispose off these appeals by a common judgment and order.
3. The facts leading to the present appeal are as under :
That the complainant is a farmer having owned 22 acres of land. That, for better cultivation of the said land he had purchased tractor and trolley along with other implements from Sai Sonalika Firm, Ahmednagar on 05/10/2005 for the total cost of Rs 6,50,000/-. That out of the total cost of Rs 6,50,000/- he had paid cash Rs 1,50,000/- and Rs 5,00,000/- were made available as loan from the appellant bank. That the agreement of loan was executed and the schedule of instalments was prepared by the appellant in English. That, he had requested to provide him the said schedule in “Marathi”, however, the appellant bank neglected the same. It was contended by him that he paid instalment of loan upto June 2006. However, in the month of Nov. 2006 when the sowing operation of rabi crop was in progress the representative of the appellant bank visited his field and repossessed the tractor and trolley forcibly without any notice. That, on 26/02/2007 he paid Rs 50,000/- and he was given the possession of the tractor/trolley. It was contended by the complainant that tractor and trolley was in the possession of the appellant bank for three months during which on proper care was taken, therefore the tractor was damaged and some parts were also stolen by which there was a loss of Rs 30,000/-.
4. He further contended that till the month of June 2007 he had paid total Rs 2,33,614/- as against the actual due amount of Rs 1,64,687/-. He therefore alleged that Rs 68,936/- were recovered from him by the appellant in excess than whatever was due. Thus by contending that the respondent bank has committed deficiency in service and also unfair trade practice by repossessing the tractor and trolley, he approached to the Dist. Forum with his complaint seeking direction to the appellant bank to refund amount of Rs 68,936/- with interest. It was also sought to pay him Rs 50,000/- towards cost of the spare parts of his tractor which were stolen during the period of repossession by the appellant bank and Rs 50,000/- towards mental agony along with Rs 10,000/- as cost of the complaint.
5. The appellant bank appeared before the Dist. Forum and resisted the claim. It was submitted that the respondent /complainant had obtained total loan of Rs 5,00,000/- which consisted Rs 3,95,000/- towards purchase of tractor, Rs 75,000/- towards trolley and Rs 30,000/- towards purchase of implements on 05/10/2005. That entire loan amount was to be paid in 18 six monthly equal instalments. That the first instalment was due on 01/12/2005. It was further contended that the complainant had executed hypothecation agreement in favour of the appellant bank. That, as per the terms of the agreement appellant bank was empowered to repossess the tractor and trolley on the default of payment of instalment. That, the respondent had failed to pay first instalment which was due on 01/12/2005, the tractor and trolley was repossessed on 26/11/2006 . That, the complainant was also issued pre sale notice dated 01/12/2006 for giving him opportunity to settle the loan account. Accordingly the complainant deposited Rs 1,05,636/- towards loan of tractor and Rs 24,309/- towards loan of trolley and Rs 4601/- towards instalments of loan of implements. On depositing the above said amounts the said tractor and trolley was returned to the complainant. It was specifically contended by the appellant that no excess amount of Rs 68/936/- was recovered from the complainant. The other allegations regarding tractor and trolley during the period of repossession with the appellant were denied and thus requested to dismiss the complaint with cost of Rs 5000/-
6. The Dist. Forum after going through the papers and hearing the parties has partly allowed the complaint and directed the appellant bank to pay to the complainant Rs 10,000/- towards compensation against alleged financial loss Rs 1000/- as mental agony and Rs 700/- as the cost of the complaint.
7. Aggrieved and dissatisfied by the said judgment and order the present appeal is filed in this Commission. The appeal was finally heard on 13/02/2013. Adv. U.N.Shete was present for the appellant bank whereas Adv.Kulkarni was present for the complainant. We heard both the counsels finally and the appeal was reserved for the judgment and order.
8. The learned counsel Shri.Shete present for the appellant bank submitted that the respondent /original complainant did not pay the first instalment of Rs 12,620/- was due on 01/12/2005. This facts was not considered by the Dist. Forum while passing the impugned judgment and order. The tractor and trolley was repossessed in the month of Nov. 2006 for non-payment of first instalment due on 01/12/2005 and not for the instalment which was due in the month of Dec. 2006, as wrongly held by the Dist. Forum. He further contended that as per terms and condition of the loan agreement the financier has a right to seize the asset on default of payment of loan instalment. Hence, by repossessing the tractor there was no deficiency on the part of the appellant bank. In support of his above said contention the learned counsel for complainant relied on the following citations.
i) Surendra Kumar Sahoo –V/s- Branch Manager Indusind Bank Ltd in Revision Petition No.3319/2012 decided on 01/10/2012 by the Hon’ble National Commission.
ii) M/s.Magma Fincarp Ltd.-V/s- S.H.Subhankar Singh in Revision Petition No.1552/2011 decided on 13/07/2012 by the Hon’ble National Commission.
9. On the other hand learned counsel Shri.B.B.Kulkarni present for the “complainant” submitted that though the Forum below held that the forcible seizer of the tractor/trolley in question was unlawful and the said vehicle was in possession of the appellant for three months depriving the complainant from its income, it has awarded a meagre amount of Rs 10,000/- as against the amount claimed @ Rs 2/- lakh. He further argued that even the Forum failed to consider the expenditure of Rs 15000/- incurred by the complainant on the repairs of the vehicle in question which was damaged as the same was kept unattended and in a standing position for three months in the custody of the appellant. He therefore requested to enhance the amount compensation by allowing his appeal No. 896/2008.
The leanred counsel relied on following citation
Citycorp Maruti Finance Ltd. –V/s- S.Vijayalaxmi revision petitioner reported in 2007 (3) CTR 191 (NC)
10. We have perused the record and also considered the oral submissions made by the learned counsel present for the rival parties. The appellant in appeal No. 893/2008 has challenged the judgment and order of Dist. Forum below on the following major grounds.
i) That the tractor/trolley repossessed due to non-payment of first instalment Rs 12,620/- which was due on 01/12/2005 but it has wrongly observed that the same was non-payment of second instalment and that the repossession was prior to the due date of the said second instalment i.e. Dec. 2006.
ii) Secondly the Dist. Forum has not considered the terms of agreement of loan as per which the appellant is empowered to repossess the financed vehicle without any notice.
11. As regards the first ground of challenge even if it is accepted that the tractor/trolley was seized due to non payment of first instalment due on 01/12/2005, the said seizer does not appear to be justifiable. The question is when the first instalment was outstanding why the second instalment which was due on 01/06/.2006 was accepted by the appellant. In fact while accepting the second instalment it was necessary on the part of appellant to make aware to the respondent of the outstanding amount of the first instalment which was total Rs 15,980/-. In fact this outstanding amount could have been recovered from the respondent imposing delay charges if any along with the third instalment due on Dec. 2006. But without informing about the first outstanding instalment to the respondent and after accepting the second instalment the tractor/trolley were seized that too forcibly by the appellant which definitely amounts to deficiency in service on the part of the appellant.
12. Although as per the agreement the appellant is authorised to seize the vehicle in question but not by using muscle power. The respondent also made complaint with Hon’ble Government about the said forcible possession and hence we have to believe that there was forcible seizer of vehicle in question. That the citation as relied on by appellant though supported the action of seizer vehicle but they do not support the forcible seizer. In fact the ratio given in the citation as relied on by the learned counsel for the complainant, it is held by the Hon’ble National Commission that “ A financier is not invested with the right to possess the vehicle, for which loan has been given by it, by use of force under any law, precedent or code of conduct”.
13 It is further observed that tractor and trolley when seized on 26/11/2007 and released on 27/02/2007 i.e. almost three month, it was in the custody of the appellant in a standing possession. Therefore on the one hand the respondent is deprived of it’s use and on the other hand it was kept un attended and standing at one place for the said period. Although, however an expenditure of Rs 15000/- is alleged to have incurred on repairs the same has not been proved and therefore the appellant can not be made liable to pay the said compensation except the loss of income which the respondent could have earned during the said period of three month.
14. Complainant’s major claim as per his complaint are (1) grant of compensation of Rs 2,00,000/- towards loss of income for three month (2) Rs 15000/- towards expenditure stated have been incurred as it was damaged by keeping the vehicle at one place & (3). Refund of Rs 68,936/- with interest.
i) As far as the loss of income is concerned considering the detainment of said tractor/trolley for three months, we find that the compensation as awarded by the Forum appears tobe quite low. Although there is no any clear evidence to decide the extend of compensation, we find it proper and reasonable to work out the compensation at Rs 500/- per day for considering monthly working days of the tractor at 20 days i.e. total 60 days for the three month. Thus the amount of compensation works out to Rs 30,000/- ( Rs 500 x 60 ).
ii) As regards the expenditure of Rs 15000/- towards repairs, there is no reliable evidence on record to prove the same. There are certain receipts on record about repairs which are dated Feb. 2008 i.e. after one year from the date of release of tractor.
iii) As about the claim of excess amount, it is the contention of the complainant that upto 29/02/2007 he paid Rs 2,33,614/- as against the amount of Rs 1,64,687/- which was due as per the account of the appellant. However, it is observed that one of the receipt of Rs 50,000/- dated 26/02/2007 is in the name of Shri.Raosaheb Reddy and not in the name of the complainant, hence the same is not be considered. Therefore we deduct the amount of Rs 50,000/- and the amount paid to the appellant as per the receipt works out of Rs 1,83,614/- which is excess by Rs 18,927/-. However, it is observed that the amount paid by the complainant to the appellant as per their settlement at the time of release of tractor as contended by the appellants and no specifically denied by the complainant. Hence, the complainant’s is claim of refund of said amount can not be accepted.
15. In view of the aforesaid facts and observations we therefore find that the compensation towards loss of income at Rs 30,000/- requires tobe paid to the complainant. Secondly the amount of mental and physical harassment and the cost of complaint also require to be enhanced reasonably. We therefore modify the judgment and order passed by the Forum below and proceeds to pass the following order.
O R D E R
1. The appeal No. 893/2008 filed by the I.C.I.C.I. Bank Ltd is dismissed.
2. The appeal No. 896/2008 filed by the original complainant is partly allowed.
3. The impugned judgment and order passed by the Dist. Forum is modified and substituted as under.
a) The appellant bank is directed to pay to the complainant
Rs 30,000/- ( Rs thirty thousand only ) as compensation
towards loss of income, Rs 2000/- as mental and physical
harassment and Rs 1000/- towards cost of the complaint within a period of 30 days from the date of receipt of this
order.
b) On failure to pay the said amount within a stipulated
period the appellant bank shall have to pay the above said amount with interest @ 6 % p.a. till its realisation.
4. No order as to cost of these appeals.
5. Copies of the judgment be issued to both the parties.
