Heard learned counsel for the appellant. None appears for the respondent.

2.      Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.   The case of the complainant in nutshell is that the complainant has purchased a Hero Honda Splendor motor cycle  after making down payment of Rs.25,000/- from the OP on condition to repay the  loan amount in  20 EMIs at the rate of  Rs. 1,222/- per month. Complainant stated to have made over 20 number of postdatedcheques (PFC) vie Nos. 611431 to 611450 under his account maintained at PuriGramya Bank, Garhbanikilo Branch. The PDCs were  to be encashed on 2nd of every month but OP No.1 issued  a letter to clear the arrear dues without contravening the agreement. OP No.1  also issued another letter on 18.7.2007 to pay the dues failing which the vehicle would be repossessed. Since PDCs have been pending with OP No.1 but arrear has been shown against the complainant,latter filed the complaint case alleging about deficiency in service on the part of the OPs.

4.      OPs filed written version stating that they have taken precaution and they have issued notices before seizure and accordingly on 10.12.2007 the vehicle was repossessed because they have observed the formalities for repossession. There is no deficiency in service on their part.

5.      After hearingboth the parties, the learned District Forum passed the following order:-

“xxxxxxxxx

In the result, the complaint is allowed on contest against the OPs. The OPs are directed to refund Rs.27,444/- to the complainant. The compensation for mental agony is fixed at Rs.5000/- and litigation cost is assessed at Rs.2000/- payable by the OPs. The entire sum of Rs.34,444/- be paid by OPs to the complainant within two months from the date of communication of this order failing which the OPs are liable to pay interest @9% per annum over the said amount till the date of payment.”

6.      Learned counsel for the appellant submitted that  the learned District Forum committed error in law by not considering the written version with proper perspectives. Moreover, he submitted that the complainant was not regularly paying the instalments for which there was arrear and there was violation of the condition of the agreement. Since arrears were pending, they have repossessed the vehicle with due notice to the complainant. As per the agreement, they have repossessed the vehicle but the learned District Forum ought to have considered this and apply judicial mind to the facts of the case. Therefore, he submitted to set aside the impugned order by allowing the appeal.

7.      Considered the submission of learned counsel for the appellant and perused the impugned order including the DFR.

8.      It is admitted fact that the vehicle was financed by the OPs. It is admitted that during sanction of loan 20 numbers of PDCs for payment of EMIs were handed over to the OP No.1. Now the only question arises whether the complainant has proved the deficiency in service on the part of the OP – Bank. As discussed above, the PDCs submitted by the complainant are pending with OP No.1 and the appellant wanted to implead Andhra Bank as a partywithout taking any responsibility. Moreover, the learned District Forum  hasalready discussed in detail at para – 8 of the impugned order which is as follows:-

                   “xxxxxxxxx

                   8.      It is admitted case of both the parties that the complainant availed loan for purchase of Hero Honda Splendor motor cycle from the OPs Bank and some PDCs were delivered to the OPs bank drawn on PuriGramya Bank, Garhbanikilo Branch on the condition that towards repayment of the loan, the PDCs should be encashed. It is the written version as well as evidence affidavit filed by the OPs Bank that the PDCs were not presented for collection on the advice of the complainant. Any document with regard to such advice purported to have been given by the complainant to the OPs Bank, has been produced in the case. It has not been specifically averred in the written version nor has it been sworn in the evidence affidavit that the complainant had verbally requested the OPs not to present the PDCs for collection. Despite such plea taken in the written version, in the evidence affidavit, document has been produced with the plea raised by the learned counsel for the OPs that the PDCs werepresented and those were not encashed. The document produced by the OPs Bank  related to PuriGramya Bank, Nayagarh Branch. But the PDCs were to be collected from PuriGramya Bank, Garhbanikilo Branch of which statement of accounts has been produced showing that the complainant had sufficient funds for encashment of the PDCs. Therefore, contrary to the plea raised in the written version, document has been filed by OP 1 which does not relate to the PuriGramya Bank, Garhbanikilo Branch, hence, the submissions of the learned counsel for the OPs are not acceptable. Anything contrary to the plea raised in the pleading is liable to be rejected. Therefore, when it is stated in the written version that the PDCs were not presented, the document of PuriGramya Bank, NayagarhBranch referred to above has to be kept out of consideration.”

9.      In view of the aforesaid discussion and clear order of the learned District Forum, we affirm the view of learned District Forum so far deficiency in service of OPs are concerned because the OPs have committed deficiency in service for not encashing the PDCs but on the other hand repossessed the vehicle and depriving the complainant for his legitimate expectation for maintaining his livelihood by way of self-employment. But the operative proration of the order directing refund of down payment of Rs. 25,000/- is not agreed to because the loan is only payable after down payment is made.

10.    Be that as it may, we are of the view that deficiency in service should be removed by the OPs and for that deficiency in service, we award compensation of Rs.20,000/- to the complainant and the litigation cost of Rs.2,000/-. The payment should be made within a period of 45 days from today failingwhich the operative part of the impugned order would remain unaltered.

11.    Appeal is disposed of accordingly. No cost.

         DFR be sent back forthwith.

         Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.