Per Shri D.N.Khamatkar, Hon'ble Member: Mr.Siraj Ahmed M.Yusuf Khan (hereinafter referred as complainant) had filed consumer complaint on 12/01/2001 which was numbered as C.C.no.09/2001. Brief facts leading to the complaint can be summarized as under:- The complainant wanted to purchase Mahendra Commander jeep. Hence, he approached to the ASI Enterprises, a dealer of Mahendra vehicles. Price of the vehicle was Rs.2,79,323/-. The complainant approached for a loan to opponent i.e. Escorts Finance Limited (hereinafter referred as to Opponent) for raising a loan of Rs.2,79,323/-. Opponent agreed to advance a loan of Rs.2,79,323/- @11.30% p.a. The interest amount was calculated as Rs.94,312/-. Accordingly the opponent sanctioned a loan of Rs.3,73,635/- which were to be paid in 36 installments. Out of 36 installments 5 installments were paid in advance and complainant was to give cheques of 36 installments in advance. As per the conditions the complainant paid Rs.51,895/- i.e. five installments of Rs.10,379/- each at the time of taking loan. Apart from this consideration he has also made the following payments: a) 3% service charge of Rs.8,370/-. b) Down of payment Rs.323/-. c) Agreement charges Rs.10,000/- and d) Registration charges Rs.9,419/- As per the loan agreement, the payments were made up to 26/05/1999. The opponent got executed the hire purchase agreement for the vehicle. The complainant got delivery of the vehicle from the dealer on 28/05/1996 and got registered with RTO, Pen on 28/05/1996 with registration no.MH-6-C-6407. Till September- 1998 the complainant made payment of Rs.3,45,918/- to the opponent. From October-1998 onwards the complainant was not able to pay the monthly installments and on 19/02/1999 the opponent took forcible possession of the vehicle. The complainant had filed FIR with Turbhe police station. The complainant received a letter dated 27/04/1999 from the opponent on 05/05/1999. By the said letter, the opponent informed the complainant that complainant is in arrears of the loan amount and Rs.1,30,900/- is the outstanding amount and asked the complainant to deposit the same within 10 days. The complainant through legal notice dated 12/05/1999 requested the R.T.O. not to transfer the vehicle without his signature. Similarly, the complainant served a notice to the opponent dated 14/05/1999 asking copy of loan agreement and transfer of vehicle in name of third party will make them liable for legal damages. Similarly, one Mr.Agarwal on behalf of complainant had written a letter to the opponent on 27/05/2000. As the opponent did not pay any heed to the notices sent by the complainant, the complainant filed consumer complaint praying following reliefs: a) The opp.party be order and decreed to pay to the complainant the sum of Rs.6,91,349/- for the loss caused to him and the compensation being the amount of the claim as mentioned in the complaint. b) That interest at the rate of 21% p.a. or at such rate as may be deemed and proper be also allowed on the amount of Rs.6,91,349/- claimed by the complainant from the date of complaint till realization. c) Costs and expenses be allowed to the complainant as may be deemed just and proper in respect of the above complaint. d) That the delay, if any, in filing the complaint be condoned. e) Such other and further reliefs as may be deemed just and proper in the circumstances of the case. Accordingly, notice was issued to the opponent. However, he did not appear and hence, public notice was published in the news paper. Despite of the public notice the opponent remained absent and hence, the matter was proceeded ex-parte. Admittedly, the complainant had taken a loan for purchasing the vehicle from the opponent. A loan amount is Rs.2,79,323/- and thereon interest is Rs.94,312/- and loan was to be paid in 36 installments and the period for payment was from 27/05/1996 to 26/05/1999. In the Month of May, June-1996 at the time of taking loan, the complainant has paid five installments of Rs.10,379/- amounting to Rs.51,895/-. In stead of executing the agreement of hypothecation, the opponent has executed a hire purchase agreement. From August-1996 to September-1998 the complainant had paid 23 installments amounting to Rs.2,38,717/-. Apart from the aforesaid amount he has paid Rs.20,694/- and Rs.6,500/- on 24/04/1998 and the opponent has acknowledged the said by issuing receipt no.42781 and 6612 dated 24/09/1998 as interest and penalty. Thus the complainant has paid Rs.3,45,918/- to the opponent. It is also on record that the complainant was not in a position to pay the installments from October-1998 onwards. It is the contention of the complainant that the opponent had taken forcible possession of the vehicle on 21/02/1999 and contended that possession of the vehicle was wrongful and unlawful. Opponent has issued a letter on 27/04/1999 which is received by the complainant on 05/05/1999. In the said letter the opponent has stated that he is the owner of the vehicle and that an amount of Rs.1,30,900/- is outstanding and pay the same within 10 days. On the basis of submissions made before us following points arise for our consideration and we record our finding on the same as follows: Points: Findings 1. (a) Whether the action of opponent of taking possession of the vehicle amounts to unfair trade practice? Yes. (b) If yes what should be the compensation? As per final order. 2. What order if any? As per final order. Observation: 1. It is a fact that complainant has taken a loan from the opponent and the loan amount is Rs.2,79,323/- and the interest amount is of Rs.94,312/-. It is also a fact that the complainant has deposited 23 installments till September-1998. From October-1998 onwards the complainant failed to deposit the installments. Hence, we came to the conclusion that till September- 1998 the complainant has paid all the installments regularly and the opponent also not objected to the delay in the payment of installments. The complainant himself admits that from October-1998 he was not able to make payment of installments regularly. It is the contention of the complainant that the opponent has taken forcible possession of the vehicle on 19/02/1999 by using muscle power. As against this, on record there is a letter issued by the opponent dated 27/04/1999 which is received by the complainant on 05/05/1999 wherein the opponent for the first time informed to the complainant that he owes Rs.1,30,900/- as an outstanding amount and informed the complainant to deposit the amount within 10 days, failing which he will be constrained to exercise the contractual legal rights to take back the possession of the vehicle. In the complaint compilation, there is a No Objection Certificate (NOC) issued by RTO on 29/04/1999 for transferring the vehicle in the name of third party. Thus, it is clear that before receipt of notice by the complainant, the opponent has taken NOC for transferring the vehicle to the third party and on the basis of this, conclusion can be drawn that the opponent has unilaterally and arbitrarily taken possession of the vehicle on 19/02/1999 as contended by the complainant. Further on behalf of the complainant one Mr.Omprakash Agarwal had written to the opponent on 27/08/2000 which is replied by the opponent. In reply dated 02/06/2000, the opponent states that, “ Said client persistently started making default in the payment of monthly installments and due to the said default the vehicle was repossessed by us and before repossession, the said client was duly intimated regarding the outstanding”. He further written that, “We repossess the vehicle and after waiting for long period and hearing nothing from the said client and after several correspondence from our side, we sold the said vehicle”. Further Mr Omprakash Agarwal on behalf of complainant written a letter dated 05/06/2000. However, there is no reply to that letter. Moreover, the opposite party failed to establish and show that their action of taking possession of the vehicle is after following all contractual obligation. All the aforesaid facts prove beyond doubt that action of taking possession of the vehicle by the opponent amounts to unfair trade practice and accordingly, we answer issue no.1 in Affirmative. As regards the prayer of the complainant he has prayed an amount of Rs.6,91,349/-. He has paid an amount of Rs.3,45,918/- and he has demanded an amount of Rs,6,91,349/- along with interest @21% p.a. However, the amount claimed as compensation is not justifiable. The complainant has used the vehicle from 1996 to 1999 and if we consider the depreciation, the cost of the vehicle will come to Rs.1,95,526.10 (279,323 – (2,79,323 x 30%)). So, at the time of taking possession of the vehicle the cost of the vehicle comes to Rs. 1,95,526.10. we find it would meet the ends of justice if compensation is awarded for this amount of Rs.1,95,526.10 i.e. to say Rs.1,96,000/- along with interest @9% p.a. from the date of filing of consumer complaint i.e. date 12/01/2001 till its realization. Since complainant is compensated along with interest towards pro-rata value of vehicle since being a defaulter, he has invited the action no separate compensation is awarded for mental agony. For the reasons stated above, we answer point no. 1 (a) and (b) accordingly and pass the following order:- :-ORDER-: 1. The complainant is partly allowed. 2. The Opp.party is directed to pay to the complainant Rs.1,95,600.10 along with simple interest @9% p.a. from the date of complaint i.e. 12/01/2001 till its realization. 3. In the given circumstances, both the parties to bear their own costs. 4. Copies of the order herein be furnished to the parties. | 
