ORAL

The present Revision Petition, under Section 21(b) of Consumer Protection Act, 1986 (for short “the Act”) has been filed against the order dated 07.06.2019 of the Tamil Nadu State Consumer Disputes Redressal Commission (for short “the State Commission”).  Two Appeals were filed before the State Commission against the order of the District Consumer Disputes Redressal Forum, Ramanathapuram (for short “the District Forum”) dated 30.12.2011.  Appeal No.95 of 2015 was filed by the Petitioner and Appeal No.47 of 2014 was filed by the Complainant.  Appeal No.47 of 2014 was filed by the Complainant for enhancement of compensation.  Vide impugned order, while Appeal of

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the Petitioner was dismissed, the Appeal of the Complainant was allowed.

2.       The brief facts of the case are that the Complainant wanted to purchase the subject vehicle and for that he had taken a loan from the Petitioner.  His allegations were that since there was some default, officials of the Petitioner came to seize the vehicle.  However, instead of taking the vehicle, they just took away the RC and insurance policy of the subject property in 2005.  He cleared the loan in the year 2009 and thereafter, the Petitioner had issued No Due Certificate to him.  His case was that his RC and insurance policy were never returned to him by the Petitioner despite receiving payments.  He also sent a notice as soon as the RC was seized by the Petitioner but the same was not replied.  Aggrieved he filed the Complaint before the District Forum.

3.       The plea of the Petitioner was that the Complaint was belated and hence liable to be dismissed.  They also denied the seizing of the RC or any other document.  The case of the Respondent was that they had never taken any document either at the time of giving the loan or subsequently.  Their case was that the complaint was false and liable to be dismissed.

4.       Parties led their evidences before the District Forum.  After hearing the arguments of learned counsel of the parties and perusing the evidence on record, the District Forum reached to the conclusion

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that the RC book was seized by the Petitioner and was not returned and held that it amounted to deficiency in service and issued the following directions:

“ISSUE-2

The first relief demand of return of original R.C.Book and original documents lodged at the time of granting loan and in the event of refusal to deliver the R.C.Book, ₹5,000/- is to be given towards the approximate expenses for obtaining the duplicate R.C.Book.  The claim made by the Complainant towards income loss is excessive.  Any income loss could be fixed only after the closure of the loan by the complainant from 28.02.2009.  For that and deficiency of service and for getting duplicate R.C.Book process ₹15,000/- is fixed.  ₹500/- is allowed as cost.

In conclusion, the petition is allowed for the complainant, the deficiency of service on the part of the respondent and to get duplicate R.C.Book and process and expenses, ₹15,000/- and towards the cost of ₹500/- the respondent is directed to pay is ordered.”

5.       In Appeal no.95 of 2015, the Petitioner had impugned the said order whereby the same contentions had been raised which had been raised before the District Forum.  The main argument of the Petitioner was that the Complaint was barred by limitation since it was filed beyond the period of two years.  It is submitted that even for the sake of arguments, it is admitted that the RC book was seized by the petitioner it was seized in the year 2005 and the Complaint since had been filed in the year 2010 was hopelessly barred and was liable to be dismissed.  It was argued that the cause of action was not of the nature of the continuous cause of action.  The second argument that the RC was never seized.  The State Commission after hearing the arguments of

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the parties and perusing the evidence led by the parties, on the issue of period of limitation held as under:  

“17.       In the present complaint during the period of repayment in the year 2004 itself, the complainant sent a letter to the opposite party demanding the returning of R.C. Book. No reply was received from the opposite party whether they have received the original R.C. book from the complainant or his wife? The Xerox copy of the R.C. Book is marked by the complainant as Ex.A10 before the District Forum. In this document, we find that there is some entries mentioning as “Original verified” there under the Manager has sighed affixing his official seal as Manager, Canara Bank, Manjoor. No date was mentioned in the endorsement. The complainant borrowed the loan from the opposite party only for purchasing a tractor with trailor and he purchased the said vehicle by arranging additional amount of Rs.1,00,000/- with his savings and purchased the vehicle for Rs.3,70,000/-. Therefore, the original R.C. Book might have been produced before the Manager of the Bank only after purchasing the vehicle and it would not have been produced at the time of sanctioning of loan. In Ex.B2, Memorandum of Agreement it has also been noted that the loan was sanctioned only for purchasing a vehicle to be used in agricultural purpose. In a letter, Ex.A3 dated 07.11.2005, written by the complainant to the opposite party claiming returning of R.C. Book by the complainant was handed over to the Canara Bank Manager on 07.11.2005 and it was acknowledged by the opposite party by putting their seal. The seal belongs to the bank and also one signature found place in the letter it was also not denied by the opposite party. As per the case of the opposite party, the cause of action arose on the date of demanding of R.C. Book. But, no reply was sent by the opposite party whether the R.C. Book was received either from the complainant or his wife on the date of 15.03.2004 as noted in Ex.A3. In the present complaint the cause of action arose only on the entire repayment of loan borrowed by the complainant in the year 2009. Therefore, the complaint is not barred by limitation as it has been filed within two years from the date of entire repayment of the loan amount and the point is answered accordingly.”

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6.       It also concluded that the evidence on record clearly shows that the RC was taken by the Petitioner in 2005 and held as under:

“19.       Moreover, we have to consider the conduct of the officer of the opposite party bank when they admitted the steps taken in the year 2004 they have not come forward to explain as to what happened at that time. Whether the vehicle was taken away or whether the R.C. Book was seized or not? At the same time, the opposite party has not sent any reply after receiving the information in Ex.A3 submitted by the complainant. If the R.C. Book was not received from the complainant, the opposite party ought to have replied it immediately by stating that the R.C. Book was not recovered. We have also considered the fact that in the year 2009 after payment of entire loan amount the opposite party had sent a letter under Ex A-13, dated 09.03.2009 to the Registering Authority, Regional Transport Office, Ramanathapuram informing to cancel the Hypothecation endorsement made by them in the R.C. Book and Form-35 for that purpose also signed by the opposite party bank manager. The above document was marked only by the complainant and there is no explanation as to how the letter addressed to the Registering Authority came into the hands of the complainant.

20.         It is the duty of the opposite party to explain as to how the above letter was acquired by the complainant. But, the opposite party has not explained as to whether it was handed over to the complainant or not and if the letter was handed over to the complainant, we can presume that the case of the complainant may be true. The opposite party has also failed to explain the reason for handing over the official letter to the complainant. The opposite party also issued a certificate on 10.12.2009 stating that the loan account has been closed and said letter was marked by the complainant as Ex.A2. As per the case of the complainant, even after requesting the opposite party to return the original R.C. Book and also sending two lawyer notices to the complainant requesting the opposite party to return the R.C. Book, they have issued only “No Due Certificate” and cancellation of Hypothecation endorsement only.

21.       xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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22.         The counsel for the opposite party would contend that as per the Motor Vehicle Act and Banking Rules the original R.C. Book will always be in the custody of the owner of the vehicle and in case of hypothecation, the hypothecation endorsement alone would be entered in the R.C. Book. Without the original R.C. Book, the owner of the vehicle will not be able to run the vehicle on the road. Xerox copy of the R.C. Book will be handed over by the owner of the vehicle to the bank. Whereas, the counsel for the complainant represented that the complainant was doing agricultural work for earning income for him and his family’s livelihood from the tractor and trailor. In these above circumstances, the bank officials seized the original R.C. Book of the tractor and thereafter they did not return it to the complainant. However, the complainant paid the entire loan amount only on the assurance given by the bank officials for returning it on entire payment. If the version of the opposite party is true they ought to have sent a timely reply for any one of the letter and intimation sent by the complainant to them. Mere keeping silence of the opposite party would amount to deficiency in service since Section 2 (g) of Consumer Protection Act 1986 defines the ‘deficiency’ means any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. Therefore, in our considered opinion, the act of not sending a reply by the opposite party to the complainant’s letter amounts to deficiency in service on the part of the opposite party. We have also to consider the status of the complainant and when the complainant being an illiterate and poor farmer approached the opposite party for better income by purchasing a tractor and trailor by availing loan. The loan was sanctioned by the opposite party and the complainant repaid it with some default. But, the complainant is not able to get back the R.C. Book. Even though there is some possibility of getting duplicate/certified copy of the R.C. Book. The complainant would have the grievance of non-availability of original R.C. Book whenever he wants to dispose of the vehicle. The learned District Forum passed the award directing the opposite party to pay a sum of Rs.15,000/- as a total compensation in our view which requires some modifications and accordingly the compensation

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amount is increased to Rs.2,00,000/- in our view which would meet the ends of justice and accordingly, the opposite party is directed to pay a sum of Rs.2,00,000/- as compensation for deficiency in service committed by the opposite party and the point No.2 is answered accordingly.”

7.       Thereafter, following directions were issued by the State Commission:

23.       In the result,

a) F.No.95/2015:-

The appeal, filed by the opposite party in F.A.No.95/2015, is dismissed as devoid of merits. No order as to costs in this appeal.

b) F.A.No.47/2014:-

In the result, the appeal filed by the complainant in F.A.No.47/2014 is allowed and the order of the learned District Forum, Ramanathapuram, made in C.C.No.47/2010, dated 30.12.2011 is modified as follows;

a) The opposite party is directed to pay a sum of Rs.2,00,000/- (Rupees Two lakhs only) instead of Rs.15,000/- as compensation to the complainant for deficiency in service committed by the opposite party followed by the mental agony suffered by the complainant.

b) The opposite party is also directed to pay a sum of Rs.5000/- instead of Rs.500/- as costs to the appellant/ complainant.

Time for compliance:- One month from the date of receipt of copy of this order, failing which the amount of compensation of Rs.2,00,000/- shall carry interest at the rate of 9% per annum from the date of default till its realization.”

8.       This order is impugned before me.  Same arguments which had been raised before the District Forum as well as the State Commission have been raised before me.  The jurisdiction of this Commission under Section 21(b) of the Act is limited.  This Commission is not empowered

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or has the jurisdiction to re-assess or re-appreciate the evidence and substitute its opinion to that of the concurrent findings of the facts by the Forum below.  This Commission can only interfere where it is shown that the Forum below have not exercised their jurisdiction properly or have exceeded their jurisdiction or the findings are perverse or on that account any injustice has been done to the Petitioner.  In the present case, from the perusal of the orders of the Forum below, it is apparent that the findings are based on the cogent evidence led by the parties.  Learned Counsel for the Petitioner has failed to point out any piece of evidence which was not there but has been relied upon or any piece of evidence which was there and has not been considered.  The conclusion arrived at by the Forum below based on the evidence adduced before it cannot be substituted merely because it does not suit the Petitioner.  As regards the period of limitation is concerned, admittedly, the Complainant has clearly held that when the RC was seized on account of default in payment of instalment of the loan amount, he was promised that the RC would be returned when he would clear his loan amount.  This clearly shows that the cause of action in this case had accrued in favour of the complainant only when the Petitioner refused to return his RC after he cleared his loan in 2009.  As regards the fact that the RC had been seized by the Petitioner, the Forum below has given a distinct finding on this fact after taking into

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consideration the communications on record which are also in the form of legal notice of the complainant.                  

9.       The Hon’ble Supreme Court in “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269”,  has held as under:

“23.     Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said  power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora”.

10.     Again in “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286,” the Hon’ble Supreme Court has reiterated the same principle and has held as under:

“17.     The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their

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jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity.  In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

11.    I am satisfied that there is no merit in the present Revision Petition.  The Revision Petition is dismissed in limine with no order as to costs.