Date of Filing:13.06.2007 Date of Order: 21.05.2008 BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 21ST DAY OF MAY 2008 PRESENT Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President. Smt. D. LEELAVATHI, M.A.LL.B, Member. Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member. COMPLAINT NO: 1172 OF 2007 H.P. Nagaraj, S/o Late Parvathaiah, R/at No.45/7, Sri. Surya Malleswara Nilaya, Basavanapura Main Road, II Cross, Gayathri Extension, Devasandra, K.R. Puram, Bangalore-560 036. Complainant V/S 1. The Tata Finance Limited, Rep. by its Managing Director, Regstered Office at BEZZOLA Complex, B.N. Vurav Mark, Chembur, Mumbai-400 071. 2. The Branch Manager, M/s Tata Fiance Limited, Branch Office at No.404, Oxford House, III Floor, Rustom Bagh Main Road, Bangalore-560 017. 3. M/s Tata Motors Limited, A company registered under Companies Act, Having its registered offict at Bezzola Complex, I Floor, V.N. Purav Marg, Chembur, Mumbai-400 071, By its Managing Director. Opposite Parties ORDER By the President Sri. S.S. Nagarale This is a complaint filed U/Sec.12 of the Consumer Protection Act, 1986 for release of the Tata Sumo bearing registration No.KA-03 C-2845 and costs. The facts of the case are that, the complainant availed vehicle advance of Rs.3,50,000/- from the opposite party under HPA No.CAR 811043 on 10/6/2004 for purchase of 4 wheeler vehicle TATA SUMO Se bearing registration No. KA-03-2845 and in terms of sanction of the loan he was required to repay the loan amount together with interest in 36 installments. The complainant has been very regular in payment of monthly installments up to June-2006, when he paid a sum of Rs.15,000/- on 7/6/2006. The complainant was not well in the month of July and August-2006 and it is for that reason, the complainant could not go to the office of the opposite party to pay the installments from August-2006. There was neither demand nor any notice to the complainant by the opposite parties calling upon him to regularize the account. The officials of the opposite parties have seized the vehicle bearing No.KA-03 C-2845 without any intimation to the complainant. The complainant was forced to approach the opposite parties several times personally. The opposite party No.2 did not give any information regarding position of the seized vehicle. The complainant gave representations to the opposite parties on 05/12/2006 to accept the overdue installments and to release the vehicle. The complainant issued legal notice on 7/2/2007 demanding the opposite parties to accept the overdue installments and to release the vehicle immediately. The complainant so for has repaid the total sum of Rs.4,12,302/- towards the amount due to the opposite parties. The opposite parties received the legal notice and failed to comply the demand. 2. Notice was issued to opposite parties by RPAD. Opposite parties No.1 and 2 put in their appearance through advocates and filed defense version. Advocate for opposite party No.3 filed a memo for adopting the version of opposite party No.1 and 2. The opposite parties No.1 and 2 filed defence version stating that, the complainant had approached M/s TATA Finance Ltd., for availing finance for purchase of a vehicle for his commercial activities and agreed to abide by the terms and conditions as stipulated by the opposite party No.1. As per the agreement the complainant is liable to pay the monthly installment on the respective due dates failing which the complainant had agreed to pay overdue compensation charges as mentioned in the agreement. As the complainant had purchased the vehicle for commercial activities he will not come within the purview of the Act and he is not entitled to maintain the present complaint. Even after the act of repossession the complainant never come forward to settle the entire dues under the contract in spite of the fact he was duly advised that if the account is not settled the vehicle will be sold in open auction as per the terms of the agreement. As no positive response was forthcoming the vehicle was sold in the auction on 27/10/2006 for Rs.2,50,000/-. The complainant reputedly advised to settle the due or to arrange for finance from known sources and to settle the same to the company and he was advised that if he fails to do so the vehicle will be sold. The complainant had chosen to settle the account and hence the vehicle was sold. In respect of the payment made this opposite party had accounted the same and the allegation that the complainant had paid Rs.4,12,302/- towards installments are denied. Only due to the defaulted attitude the vehicle was repossessed and as the complainant failed and neglected to pay the dues under the agreement the vehicle was sold in auction. As the complainant had committed default in payment of his monthly installments and hence in addition to the monthly installments he became liable to pay overdue charges. In view of all these reasons stated above, the opposite parties No.1 and 2 prayed to dismiss the complaint. 3. Complainant filed affidavit evidence and on behalf of the opposite parties one V. Vijayasarathi has filed affidavit evidence. Arguments heard. 4. The points for consideration are:- 1. Whether there was a deficiency in service on the part of the opposite parties? 2. Whether the complainant is entitled to be compensated for seizure of his vehicle? REASONS 5. I have perused the complaint, defence version and documents. It is an admitted case of the parties that, the complainant has availed vehicle loan of Rs. 3,50,000/- from the opposite parties on 10/6/2004. The complainant has purchased TATA SUMO vehicle. The loan was to be repaid with interest in 36 installments. It is the case of the complainant that he was regular in payment of installment up to June-2006. Complainant was not well in the month of July and August-2006. Therefore, he could not go to the office of opposite party and pay the installments from August-2006. However, he made arrangements to regularize the account by paying over due installments. It is the case of the complainant that, there was neither demand nor any notice from the opposite parties to the complainant calling upon him to pay the balance amount, but surprisingly the opposite parties have seized the vehicle bearing registration No.KA-03 C-2845 without any intimation to the complainant. The opposite parties did not give any information regarding the position of the seized vehicle. Complainant was forced to issue legal notice on 7/2/2007 demanding the opposite party to accept the over due installments and release the vehicle immediately. But the opposite parties have not complied with the demand. On account of the conduct of the opposite parties the complainant was put to great mental agony, tension, hardship and monetary loss. It is the case of the complainant that he has paid in all sum of Rs. 4,12,302/- to the opposite parties. Complainant was getting income of Rs.900/- per day from the vehicle. Therefore, the opposite parties are liable to pay the damages to the complainant from 9/8/2006 at the rate of Rs.900/- per day. The complainant has given details of calculation of his claim. He has specified the payments made by him and the loan taken by him. Admittedly, the complainant had taken loan of Rs.3,50,000/- from the opposite parties and he has repaid the amount of Rs.3,85,587/- till seizure of the vehicle. The case of the opposite parties that on 9/8/2006 the vehicle was taken from possession of the complainant and the vehicle was sold in auction on 27/10/2006 for Rs.2,50,000/-. The amount realized by way of sale was accounted to the account of the complainant. The opposite parties were directed to produce account statement and as per the directions of the Forum the opposite parties submitted statement of account. On perusal of the account statement there is no entry of credit of Rs.2,50,000/- to the loan account of the complainant. The opposite parties have not produced any records or papers to show that the vehicle was sold for Rs.2,50,000/- in the public auction. The defence version filed in this case has not been signed by the opposite parties or their representatives or Power of Attorney Holder. The defence version has been signed by advocate. The defence version has not been verified. Such a defence version cannot be considered as defence version in the eye of law. The defence version submitted in this case has no authenticity. Therefore, the case made out by the complainant has to be accepted as true and correct because there is no defence version signed and submitted by the opposite parties. Affidavit filed by Vijayasarathi is said to be authorized signatory of opposite parties also cannot be considered. Because the opposite parties have not produced any documents or record to show that Vijayasarathi is an authorized signatory of opposite parties. In the vakalath filed by the opposite parties, Vijayasarathi is shown as GPA Holder of opposite parties. But no document is produced to show that Vijayasarathi is GPA Holder of opposite parties. Therefore, even the affidavit filed by Vijayasarathi has no legal sanctity and such affidavit has no value. It is very unfortunate that the complainant had suffered a lot due to the illegal and unauthorized act of the opposite parties. Complainant who had taken loan from the opposite parties for purchase of vehicle and he has repaid the substantial loan amount. The opposite parties without issuing any notice or intimation had seized the vehicle from the possession of the complainant and put the vehicle to auction without intimation. The opposite parties have not produced any record or documents to show that the notice was issued to the complainant before seizure of the vehicle. The opposite parties have not issued any records to show that the demand notice was issued due to the complainant for payment of installment. The opposite parties in this case have acted high handedly in seizing the vehicle and put the same to auction. The opposite parties have not produced any records or documents to show that the vehicle was sold in public auction for Rs.2,50,000/- and the said proceed was credited to the account of complainant. Therefore, by looking into the records and documents and the statement of account produced by the opposite parties it shows there was a deficiency in service on the part of the opposite parties. The Consumer Protection Act is enacted to safeguard the better interest of the consumers. The protection of the consumers is the need of the society. The Consumer Protection Act has made an attempt to remove the helplessness of a consumer which he faces against powerful business houses. In this case a poor man who had taken loan for purchasing vehicle for his livelihood and he has repaid the substantial loan amount instead of that the opposite party a financial company without issuing demand notice or seizure notice had seized the vehicle of the complainant and made him to suffer lot and after seizure of the vehicle the vehicle was sold in public auction without intimating the complainant and the amount realized out of the auction of the vehicle was not credited to the account of the complainant as per the statement submitted by the opposite parties. So under these circumstances, the complainant in this case needs to be suitably compensated for the loss sustained by him. The complainant has sought a relief of release of the vehicle but since the vehicle had been sold by the opposite parties after seizure. Therefore, now at this stage it is not possible to direct the opposite parties to release the seized vehicle. The only relief that could be granted to the complainant in this case is grant of compensation for his loss, mental agony, harassment, tension etc.,. As per the loan amount is concerned, the statement of account of opposite parties shows nil balance. The statement of account does not reflect true and correct figure. The statement of account cannot be believed or accepted. Taken into consideration of all the facts and circumstances of the case, the ends of justice will be met in awarding global damages of Rs.2,50,000/- to the complainant for illegal seizure and taking possession of the vehicle and also for mental agony, harassment and hardship caused to the complainant. In the result, I proceed to pass the following:- ORDER 6. The complaint is allowed. The opposite parties are directed to pay Rs.2,50,000/- as compensation to the complainant within 30 days from the date of this order. If the opposite parties failed to comply the order within 30 days in that event the compensation amount carries interest at 10% p.a from the date of this order till realization. The complainant is also entitled to Rs.5,000/- towards costs of the present proceedings from the opposite parties. 7. Send the copy of this Order to both the parties free of costs immediately. 8. Pronounced in the Open Forum on this 21ST DAY OF MAY 2008. Order accordingly, PRESIDENT We concur the above findings. MEMBER MEMBER
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