Andhra Pradesh
Chittoor-II at triputi
CC/37/2016
Ammineni Niranjan, S/o Jayaram Naidu - Complainant(s)
Versus
HDFC Bank Ltd., by its Authorised Signatory - Opp.Party(s)
G.Ramaiah Pillai
08 Feb 2017
ORDER
Filing Date: 23.04.2016
Order Date:08.02.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,
CHITTOOR AT TIRUPATI
PRESENT: Sri.M.Ramakrishnaiah, President ,
Smt. T.Anitha, Member
WEDNESDAY THE EIGHTH DAY OF FEBRUARY, TWO THOUSAND AND SEVENTEEN
C.C.No.37/2016
Between
Ammineni Niranjan,
S/o. Jayaram Naidu,
Hindu, aged 35 years,
D.No.18-36-S9-1174,
Flat No.102, S.V.Nilayam,
Madhura Nagar,
Tirupati. … Complainant.
And
1. HDFC Bank Ltd.,
By its Authorised Signatory,
19-8-180, 1st Floor, Krishna Towers,
19th Ward, AIR Bypass Road,
Tirupati 1.
2. HDFC Bank,
Registered office,
By its Authorised Signatory,
HDFC Bank House,
Senapathi Bapat Marg,
Lower Panel (West),
Mumbai – 400 013.
3. HDFC Bank,
By its Authorised Signatory,
17/126, GVR Enclave,
Trunk Road,
Nellore – 524 001. … Opposite parties.
This complaint coming on before us for final hearing on 31.01.17 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.G.Ramaiah Pillai, counsel for complainant, and Sri.Samanchi Srinivasulu, counsel for opposite parties, and having stood over till this day for consideration, this Forum makes the following:-
ORDER
DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT
ON BEHALF OF THE BENCH
This complaint is filed under Sections–12 and 14 of C.P.Act 1986, by the complainant against the opposite parties 1 to 3 for the following reliefs 1) to direct the opposite parties 1 to 3 to pay the present cost of the vehicle for selling the vehicle without following the prescribed procedure and for infringing the rights of the customer in a sum of Rs.15,62,603/-, 2) to direct the opposite parties to pay compensation of Rs.3,00,000/- and 3) to pay Rs.5,000/- towards costs of the litigation.
2. The brief averments of the complaint are:- that the complainant being an un-employee purchased a vehicle INNOVA 2.5 g E3(Limited Edition) for which tax invoice was issued for Rs.12,89,916.917/- dt:08.11.2014. For this purpose, complainant availed loan of Rs.11,06,438/- from opposite party No.1 under loan agreement No.28975691, agreeing to repay the same within 60 months at the rate of Rs.23,920/- per each monthly installment and executed a hypothecation agreement. The installment is commencing from 30.07.2014. Copy of the loan agreement was not furnished to the complainant, but obtained his signatures on the pointed places of the agreement. The vehicle was registered as AP-03-URTR-0602 on 08.11.2014, subsequently regular registration was held and its registration No.AP-03-BM5589. A sale certificate was also issued by Harsha Auto Agencies Pvt. Ltd. on 08.11.2014. The vehicle was insured with ICICI Lombard General Insurance Company Ltd. for the period from 08.11.2014 to 07.11.2015, for ID value of Rs.12,20,671/- on payment of premium of Rs.51,650/-.
3. That the complainant was paying the installments regularly. While so, he was found default in payment of 3 installments due by 29.01.2016. Consequently, the vehicle was seized on 28.01.2016 by the agents of opposite party No.1 without any prior notice and not even allowed the complainant to take his bag and baggage containing his personal records from the vehicle. Thereafter, opposite party No.1 issued letter dt:29.01.2016 calling upon the complainant to pay Rs.10,12,825.51/- on or before 13.02.2016 if he wishes to release the vehicle, otherwise the vehicle will be sold as per the terms and conditions of the loan agreement and the sale proceeds will be credited to the loan account. If surplus amount is there, it will be refunded.
4. On 05.02.2016, the complainant obtained loan account details, which shows (number of over dues) EMIs were due in a sum of Rs.95,639.05/-. The complainant addressed a letter through his lawyer on 19.02.2016 to opposite party No.1, to reconsider his request to accept overdue amount of Rs.95,639.05/- and release the vehicle within 7 days. He also undertakes to pay the remaining installments regularly. On 22.03.2016 opposite party No.1 sent reply through its lawyer denying the averments of the notice dt:19.02.2016 and directed the complainant to pay Rs.10,26,357.69/- towards closure of the loan amount and get the vehicle released within 7 days, failing which they will proceed for sale of the vehicle and appropriate the sale proceeds in the loan account. If surplus amount is there, it will be refunded and if there is any shortfall, it will be recovered through legal means. That the complainant in pursuance of the said letter made a request on 30.03.2016 to give one month time to pay the entire loan amount less pre-closure charges.
5. Surprisingly, HDFC Bank, Nellore (opposite party No.3), who is in no way concerned informed the complainant by its letter dt:31.03.2016 that the complainant failed to pay the outstanding amount, therefore, they have sold the vehicle, but no sale notice is issued and sale proceedings are informed. It amounts to deficiency in service. That opposite parties have not given an opportunity to the complainant to participate in the sale proceedings. Hence the complaint.
6. Opposite party No.1 filed its written version and the same is adopted by opposite parties 2 and 3. In the written version, opposite parties contended that the complainant availed vehicle loan of Rs.11,06,438/- and agreed to repay the same along with contractual interest in 60 monthly installments of Rs.23,920/- per month. EMIs commenced from 05.09.2014 and it will be completed by 05.08.2019, but not commenced from 30.07.2014 as alleged by the complainant. Complainant was very irregular in payment of loan even after repeated follow-up and demand notices. As per the terms and conditions of the loan agreement, the opposite parties recalled loan and got issued loan recall notice dt:07.01.2016 demanding the complainant to pay the total outstanding amount of Rs.9,68,788.99/- and further informed the complainant that in case of his failure, the hypothecated vehicle will be repossessed.
7. Out of 17 installments made by the complainant, 12 installments were got bounced and further the loan amount is due for 4 installments for an amount of Rs.95,680/- as on the date of repossession. Opposite party issued loan recall notice on 07.01.2016 demanding the complainant to pay a sum of Rs.9,68,788.99/-, failing which the vehicle will be repossessed. Inspite of the said notice, complainant did not approach the opposite party nor paid the installments. As the opposite parties have no alternate repossessed the vehicle. At the time of repossession, the complainant did not allow the opposite parties either to take possession of the vehicle or even to inspect the vehicle. In the meanwhile, police patrol van came there and enquired what is happening. On explaining the facts and on perusing the documents, the police instructed the complainant to handover the vehicle along with key to East Police Station, Tirupati. On that the complainant himself drove the vehicle and parked the same in the premises of East Police Station, Tirupati, without handovering the key intentionally.
8. On 29.01.2016 the opposite party took the vehicle from the police station by following due process of law by issuing post repossession intimation letter dt:29.01.2016 to the East Police Station, Tirupati, and obtained acknowledgement from the police station. After taking possession of the vehicle, the opposite party issued pre sale notice dt:29.01.2016 demanding the complainant to pay Rs.10,12,825.51/- on or before 13.02.2016 and further informed that on his failure to pay the amount, opposite parties will be constrained to sell the hypothecated vehicle, but the complainant failed to pay the amount and get the vehicle released. The complainant got issued a letter requesting the opposite party to receive the outstanding loan amount without insisting for the payment of total amount, his request was not accepted based on their experience and behavior of the complainant and the same was intimated to the complainant through reply notice dt:22.03.2016. In the said notice dt:22.03.2016 it was also informed that if the complainant failed to pay the total amount within 7 days after receipt of the said notice, the vehicle will be sold. Inspite of the said notice, the complainant did not choose to pay the loan amount and approached the Forum. The complainant did not say that he is not a defaulter, similarly he did not say that his 12 payments were not bounced and 4 installments are not due, out of 17 installments as on the date of repossessing the vehicle. The complainant having remained as chronic defaulter he is trying to take undue advantage of the repossession and sale of the hypothecated vehicle. The opposite parties relied on some decisions in support of their case, referring those decisions in the written version. There is no deficiency in service on the part of the opposite parties and prays the Forum to dismiss the complaint with costs.
9. On behalf of the complainant, he himself filed chief affidavit as P.W.1 and got marked Exs.A1 to A10. For the opposite parties one Sai Kumar Varaganti filed his chief affidavit as R.W.1 and no documents marked on their behalf though certain photocopies were filed in the Forum. For the reasons best known to the opposite parties, reported no documents for the opposite parties. The learned counsel for both parties have filed their respective written arguments.
10. Now the points for consideration are:-
(i). Whether the complainant is a chronic defaulter as alleged by the opposite
parties? and Whether there is deficiency in service on the part of the
opposite parties?
(ii) Whether the complainant is entitled to the reliefs sought for?
(iii) To what relief?
11. Point No.(i):- in order to prove this point, the burden lies on the opposite parties. The opposite parties contended that the complainant is irregular in payment of installments and that he is a chronic defaulter in paying the installments as agreed in the hypothecation agreement. They are further contending that out of 17 installments upto January 2016 i.e. by the date of repossession, the complainant made 13 payments, out of which 12 payments which were made through cheques, were got bounced and 4 installments were due / overdue, and only one installment was made good. The opposite parties have filed as many as 10 documents (photocopies). When the Forum asked the opposite parties to file the originals of the documents they relied upon, they simply reported no documents for them. However, for the sake of convenience and for appreciation of facts of the case, for proper adjudication, some of the documents were marked by the Forum, while discussing the case for disposal , the same are as follows – Ex.B1 is loan agreement dt:30.07.2014. Ex.B2 is loan recall notice dt:07.01.2016. Ex.B3 is pre-repossession intimation to East Police Station dt:28.01.2016. Ex.B4 is post- repossession intimation to police station dt:29.01.2016. Ex.B5 is inventory and notary attestation dt:29.01.016. Ex.B6 is pre-sale notice dt:29.01.2016. Ex.B7 is post- sale notice dt:31.03.2016. Ex.B8 is statement of account dt:18.07.2016 and Ex.B9 is reply notice dt:22.03.2016.
12. Though the opposite parties contended that out of 17 installments by 29.01.2016 (date of repossession) the complainant made 13 payments, out of which 12 payments were bounced, as they were given through cheques and 4 installments were due, only 1 installment is made good. The statement of account under Ex.B8 shows that the complainant has made payments as follows – 1st installment commenced on 05.09.2014 paid the installment of Rs.23,920/-, 2nd installment amount of Rs.23,920/- was paid on 06.10.2014, 3rd installment amount of Rs.23,920/- was paid on 05.11.2014, 5th installment amount of Rs.23,920/- was paid on 07.01.2015, 6th installment is concerned out of Rs.23,920/- the complainant paid only Rs.1,222/-, for 7th installment a sum of Rs.24,000/- was paid on 11.03.2015, for the month of April 2015 and May 2015, he paid Rs.50,000/- on 21.05.2015, for the month of June 2015 no amount is paid, for the month of July 2015 a sum of Rs.23,000/- was paid, 10th installment was paid on 27.08.2015 in a sum of Rs.24,000/-, and next installment of Rs.23,800/- was paid on 30.09.2015, another installment amount of Rs.24,000/- was paid on 31.10.2015, and last installment amount of Rs.23,850/- was paid on 30.11.2015. Thus the complainant has paid a total sum of Rs.3,13,472/- by 30.11.2015. So, the statement given by the opposite parties proved to be false. They have collected cheque bouncing charges and also overdue charges from the complainant. Out of 17 installments by 29.01.2016, the complainant paid the installments till 30.11.2015 i.e. 13 installments were already paid. So, the word chronic defaulter does not have legs to stand.
13. If after 30.11.2015 no payments were made by the complainant i.e. only for the month of December 2015 and June 2015 installment amounts were due. The loan period is in force upto 05.08.2019 i.e. total loan released is Rs.11,06,438/- is to be paid in 60 installments @ Rs.23,920/- per each month / installment. Thus the complainant is entitled to continue the payments as prescribed in the loan agreement upto 05.08.2019. What the opposite parties have to do is, if the complainant committed default in payment of any installment, the opposite parties are at liberty to issue notice to the complainant communicating that complainant is a defaulter for a particular month or for a particular period, but no such notice was admittedly given to the complainant. When the complainant made payments up to November 2015, what made the opposite parties to recall the loan by 01.07.2016. The recall notice was said to have been served on the complainant, for which the complainant requested one month time for clearing the overdue amounts and also undertake that he will continue the installments without any irregularity on his part, but his request was not considered by the opposite parties admittedly.
14. So far as “repossession of the vehicle” is concerned, no prior notice of repossession was given to the complainant. In this regard, the opposite parties contending that when they went to the complainant to take possession of the vehicle, the complainant did not allow them either to take possession of the vehicle or to inspect the vehicle even. During discussions between the complainant and opposite parties, police patrolling van came there and enquired what is going on. The opposite parties explained the situation to the police, on that the police directed the complainant to handover the vehicle to East Police Station, Tirupati, along with key, on that the complainant handover the vehicle in question to east police, but did not handover its key. On 29.01.2016 the opposite parties gave pre-repossession intimation under Ex.B3 dt:28.01.2016 to the East Police Station. Later on the next day i.e. 29.01.2016 the opposite parties have given post-repossession intimation to East Police Station under Ex.B4. These two documents Exs.B3 and B4 clearly shows that repossession notice was also not served on the complainant. Thus the procedure followed by the opposite parties in respect of the repossession of the vehicle itself is bad and invalid. The repossession notice was not given to the complainant admittedly. Then according to opposite parties they have given pre-sale notice dt:29.01.2016 under Ex.B6, pre-sale notice is different from that of the sale notice. Under Ex.B7 the opposite parties have given post-sale notice dt:31.03.2016, but no sale notice was given to the complainant. That apart the opposite parties did not mention anywhere in their written version or in the evidence affidavit of R.W.1 or in the written arguments as to when they have conducted the sale proceedings, where the sale was conducted, how many bidders have participated in the sale, whether such sale proceedings were conducted by way of public auction, who stood as highest bidder, for what amount the vehicle was sold i.e. what is the highest bid knocked-down etc. particulars. Simply they are contending that they have given pre-sale notice under Ex.B6 and also given post sale notice under Ex.B7, without furnishing the date of sale and concerned details / particulars regarding the sale / auction of the vehicle.
15. By the date 30.11.2015 the complainant has already paid a sum of Rs.3,13,472/- as per the particulars of statement of account dt:18.07.2016 under Ex.B8. The same document itself shows at 4th page 4th column that payment received in cash is Rs.10,52,000/-, though the agreement of sale will be in force up to 05.08.2019, it shows that the vehicle was disposed-of in the month of March 2016 itself for a sum of Rs.10,52,000/- and that amount was appropriated for the loan account and still balance amount due is shown as Rs.19,583/-. If the total installments of 60 were recovered at the rate of Rs.23,920/- per each installment, the total amount comes to Rs.14,35,200/-, but by 31.03.2016 itself the opposite parties have sold away the vehicle and recovered a total sum of Rs.13,65,472/- i.e. Rs.10,52,000/- by way of sale of the vehicle and Rs.3,13,472/- by way of installments collected from the complainant. So, the opposite parties without giving any notice, informing the complainant that he committed default in payment of installments for any month at any time, the opposite parties without giving notice prior to repossession of the vehicle and also without giving any sale notice and without giving any opportunity to the complainant to participate in the alleged auction, they have disposed-of the vehicle by means of what they intends. It was also not disclosed by the opposite party to whom the vehicle was sold and who paid the said Rs.10,52,000/- towards cost of the vehicle, when it was paid, where it was paid and to whom it was paid. So, the procedure adopted by the opposite parties for repossession of the vehicle and sale of the vehicle is quite irregular and legal, and those procedures were unsustainable in law. Under the above circumstances, we are of the opinion that there is clear deficiency in service on the part of the opposite parties. Accordingly, this point is answered.
16. Point No.(ii):- In order to answer this point, the burden lies on the complainant. The complainant relied on Exs.A1 to A10. In support of his case, Ex.A1 is tax invoice issued by Harsha Toyota dt:08.11.2014 in which the date of order was mentioned as 31.07.2014 for Rs.12,89,916.91/-. Ex.A2 is Harsha Auto Agencies Pvt. Ltd. ledger account dt:01.04.2014 to 31.03.2015. Ex.A3 is Certificate of Insurance Cum Policy Schedule in the name of the complainant. Ex.A4 is notice given by the opposite parties dt:29.01.2016 informing that they have recovered possession due to default of payment of monthly installments and the vehicle will be sold by the bank under the terms of the power conferred upon the opposite party as per the loan agreement in case he fails to pay a sum of Rs.10,12,825.51/- on or before 13.02.2016 and get the vehicle released. Ex.A5 is the reply notice dt:19.02.2016 by the complainant through his advocate stating that he is paying the EMI amounts, but found overdue EMIs amounting to Rs.95,639.05/- as per loan account details dt:09.02.2016, as he could not pay due to unavoidable circumstances. Since he defaulted in paying the EMI amounts, his vehicle was seized forcibly by your agents without any prior notice and not even allowed him to take his bag and baggage containing his personal information which is kept in the vehicle, which amounts to a drastic action on the part of the agents of the opposite parties. That he wishes to release the vehicle by paying the outstanding amount on or before 13.02.2016. In case he did not repay the outstanding amount within the stipulated time the sale process shall commence at the bank’s convenience and discretion etc. He requested the opposite parties to reconsider his request to accept 4 overdue installments in a sum of Rs.95,639.05/- and release the vehicle which was forcibly seized by the agents of the opposite parties within 7 days. He also undertakes to pay the remaining installments regularly. Else, he will refer the dispute to District Forum and he will claim compensation of Rs.1,00,000/- for causing mental agony and Rs.5,000/- towards legal expenses etc. admittedly his request was not considered by the opposite parties. Ex.A6 is reply notice dt:22.03.2016 got issued by the opposite parties informing the complainant that the allegations made in the notice are false and frivolous and requested the complainant to pay Rs.10,26,357.69/- within 7 days from the date of the notice, failing which the opposite party will proceed with the sale of the vehicle. Ex.A7 is another notice got issued by the complainant requesting the opposite parties to grant one month time to pay the entire loan amount less pre-closure charges of Rs.47,798.13/- and other miscellaneous expenses to enable the complainant to pay the entire amount due to the bank. Ex.A8 is intimation dt:31.03.2016 given to the complainant stating that he failed and neglected to pay whole of the amount outstanding. Pursuant to the rights vested in the opposite parties in the loan agreement, they have sold the vehicle for which the said loan was availed by the complainant and which was repossessed by the opposite parties on committing default by the complainant, that after adjusting the sale proceeds less expenses against the amount outstanding a sum of Rs.19,582.91/- is due and payable by the complainant. In this notice also nowhere it is mentioned that the vehicle was sold and whether it was sold by way of public auction and after giving any publication inviting the bidders. Thus, in every aspect the latches were apparent on the part of the opposite parties. Though the complainant got time up to 05.08.2019, the opposite parties could not grant one month time to the complainant for paying the entire amount due and take back possession of the vehicle. It also apparent on reply notice and notice got issued by the opposite parties that the agents of the opposite parties have seized the vehicle. Under the above circumstances, it is apparent on the face of the record that the procedure followed by the opposite parties in respect of seizure of the vehicle, sale of the vehicle etc. are irregular and without giving any opportunity to the complainant. In this regard, the learned counsel for the complainant relied on a decision reported in III(2009) CPJ 9(NC) HDFC - Bank Ltd. Vs. Balwinder Singh, the brief facts of the case are that Tata Indica DLS car was purchased by the respondent (Balwinder Singh) with the financial assistance from the HDFC Bank, as there was some default, musclemen engaged by the HDFC Bank / its agents forcibly took the possession of the vehicle, which compelled the consumer to file a complaint before the District Forum. The District Forum on the facts and circumstances of the case directed that Rs.4,00,000/- may be paid as compensation for mental and physical harassment. This vehicle was also sold subsequent to re-possession and Rs.1,65,000/- was realized by the petitioner / HDFC Bank. The District Forum observed that “the vehicle was snatched by the opposite parties on 20.07.2007. The opposite parties shall not be entitled to any interest with effect from that date on the amount remaining unpaid after adjusting the sale price of Rs.1,65,000/-. The opposite parties are, therefore, directed to return the cheques received by them and to redraw the account of the complainant and ascertain the principal amount due from him on 20.07.2007 and adjust the amount of Rs.1,65,000/- towards the principal amount. The remaining amount, if any, shall be adjusted out of the compensation amount of Rs.4,00,000/-. The opposite parties shall pay the balance amount to the complainant within 30 days from the date of receipt of the copy of the order, failing which they would be liable to pay the same with penal interest @ 12% p.a. from the date of complaint i.e.01.10.2007 till realization. In addition, they would also be liable to punishment as provided under Section-27 of the C.P.Act. The opposite parties shall also pay Rs.10,000/- as costs of the litigation. In appeal the Hon’ble State Commission confirmed the order of the District Forum and dismissed the appeal of the HDFC Bank. The Hon’ble National Commission also dismissed the appeal holding that the petitioner has dragged the complainant up to the level of National Commission;, we hereby award Rs.25,000/- as exemplary cost. We also direct the HDFC Bank not to resort to illegal practice of engaging musclemen directly or through their recovery agents in future. As the petitioner has already paid Rs.2,50,000/- to the respondent in compliance of our order dt:12.01.2009, the balance amount shall be payable as per the orders of the Fora below and the cost imposed by us within a period of 4 weeks from the date of this order”. They also relied on another decision reported in III (2009) CPJ 53(NC) – Naeem Bhai Vs. Mohd. Anwar & Ors. In this case, Shriram Transport Finance Company had financed a bus to be run by Shri Mohd. Anwar, the complainant. Due to default of a few installments, the vehicle was forcibly seized in an uncivilized manner on 10.06.2005 by the financier and that was given to the custody of Shri Naeem Bhai. It is the case of the complainant that the vehicle was illegally repossessed with a view to sell the same in collusion with Shri Naeem Bhai to earn illegal profits. The complainant also submitted that Shri Naeem Bhai did not release the vehicle when he approached him. In this case, the District Forum due to non-return of the vehicle by the financier and Sri Naeem Bhai resulted in award of compensation to the tune of Rs.10,000/- only though the District Forum held that there was deficiency in service on the part of the financier. Aggrieved by the order of the District Forum, the complainant filed appeal before the State Commission. The District Forum held that only the financier is liable for deficiency in service, against which the financer had not filed any appeal. Accordingly, it became final, qua the financier. In appeal, the State Commission re-apprised the facts and evidence and came to the conclusion that all the three opposite parties were liable for the deficiency in service and they were directed to return the vehicle to the complainant or in lieu thereof pay the compensation to the tune of Rs.2,50,000/-, as per the insured declared value as contained in the insurance policy document within one month, failing which interest at 9% shall be payable with effect from the date of the State Commission order. The State Commission also directed the opposite parties to pay the complainant Rs.50,000/- as compensation and Rs.5,000/- as costs within a period of one month, failing which, interest @ 9% p.a. shall also be payable with effect from the date of the State Commission order. Aggrieved by the order, Sri.Naeem Bhai has filed the revision petition disowning liability of responsibility for the deficiency in service rendered to the complainant. The complainant has filed revision petition for enhancement of compensation. The Hon’ble National Commission in the facts and circumstances of the case held that the liability of Naeem Bhai to be limited to Rs.50,000/- and hence this amount deposited by him in the District Forum may be released to the complainant by the District Forum after proper verification. Rest of the amount awarded by the State Commission shall be directly paid by the opposite parties 1 and 2 before the District Forum i.e. financier. However, there shall be no order as to costs and revision petition disposed-of accordingly. They also relied on another decision reported in III (2009) CPJ 79 (NC) – Capital Trust Ltd. Vs. Sanjay Dutt & Anr. The factual matrix of this case are that TVS motorcycle was purchased by the complainant, Shri Sunjay Dutt on hire purchase basis by availing finance from M/s. Capital Trust Ltd. at the time of delivery, the complainant paid margin money of Rs.18,438 against Rs.43,435/- price of the vehicle. The balance was to be paid in equal monthly installments. It is the case of the complainant that he had paid Rs.33,920/- till July 2005. Subsequently, the hire purchaser forcibly took possession of the vehicle and sold the same, forcing the consumer to file a complaint before the District Forum. The District Forum disbelieved the contention of the respondent that no force was used and directed the opposite parties, the trader and financier to pay to the complainant the admitted amount of Rs.33,920/- paid by complainant himself in addition to Rs.5,000/- as compensation and Rs.1,000/- towards costs of the litigation. Aggrieved by the order of the District Forum M/s.Capital Trust Ltd. filed an appeal before the State Commission. The State Commission held that it is a case of taking the possession of the vehicle with force for non-payment of two installments against loan raised by the complainant for purchase of vehicle, which was sold by the hirer purchaser. The State Commission did not find any merit in the appeal and dismissed the same. Dissatisfied by the order of the State Commission, the financier had filed the revision petition before the Hon’ble National Commission. The Hon’ble National Commission was pleased to dismiss the revision petition with exemplary cost of Rs.25,000/- to be paid by the petitioner to the respondent, as the matter was dragged upto the level of National Commission. The facts of the above decisions are squarely applicable to the facts of the case on hand, as the opposite parties herein also adopted irregular procedure for seizure of the vehicle through their agents, from East Police Station, Tirupati, without prior notice to the complainant and also selling away the vehicle without sale notice to the complainant. Thus the rights of the complainant were infringed due to irregular activities of the opposite parties.
17. Under the above circumstances, we are of the opinion that the complainant is entitled for the reliefs sought for. However, the vehicle is not available with the opposite parties, as per the facts and circumstances of the case, as it was sold away for a sum of Rs.10,50,000/-, which was appropriated to the loan account of the complainant. So, the vehicle cannot be ordered to be delivered back to the complainant. Since, the loan was already closed by the opposite parties and state that balance amount of Rs.19,583/- said to be due from the complainant. The present cost of the vehicle also cannot be awarded as prayed for by the complainant, as he has used the vehicle for one year. Therefore, he is entitled for compensation. Accordingly this point is answered.
18. Point No.(iii):- in view of our discussion on points 1 and 2, we are of the opinion that the complainant has established that there is deficiency in service on the part of the opposite parties, and as the opposite parties have adopted irregular and illegal procedure in seizure of the vehicle without prior notice to the complainant and sold away the vehicle without sale notice to the complainant and without disclosing the facts of date of sale, place of sale, time of sale, list of bidders participated in the auction and the name of the highest bidder etc. particulars. Under the above circumstances, we are of the opinion that the complainant is entitled to a compensation of Rs.2,00,000/- from the opposite parties and accordingly the complaint is to be allowed.
In the result, complaint is allowed in part directing the opposite parties 1 to 3 to pay a sum of Rs.2,00,000/- (Rupees two lakhs only) towards compensation to the complainant after deducting the balance amount of Rs.19,583/- (Rupees nineteen thousand five hundred and eighty three only) out of the compensation amount. The opposite parties 1 to 3 also directed to pay a sum of Rs.2,000/- (Rupees two thousand only) towards costs of the complaint. The opposite parties 1 to 3 further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, failing which the balance compensation amount of Rs.1,80,417/- shall carry interest at 9% p.a. from the date of complaint, till realization.
Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 8th day of February, 2017.
Sd/- Sd/-
Lady Member President
APPENDIX OF EVIDENCE
Witnesses Examined on behalf of Complainant/s.
PW-1: Ammineni Niranjan (Chief Affidavit filed).
Witnesses Examined on behalf of Opposite PartY/S.
RW-1: Sai Kumar Varaganti (Chief Affidavit filed).
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s
Exhibits (Ex.A) | Description of Documents |
Tax Invoice for Rs. 12,89,916.91 ;( Rs.12,89,917/-) issued by Harsha Toyota in favour of the complainant towards cost of the vehicle INNOVA 2.5 G (E3) LIMITED EDITION. Dt: 08.11.2014. | |
True copy of ledger account in respect of the complainant towards payment of vehicle totaling Rs. 15,62,603/- from Dt: 01.04.2014 to 31.03.2015. | |
Copy of ICICI Lombard General Insurance, Mumbai for the vehicle ID value for Rs.12,20,671/- validating from 08.11.2014 to 07.11.2015. Policy No. TIL/10224571. Dt: 08.11.2014. | |
Notice by the Opposite party No.1 to the complainant to pay entire loan amount of Rs. 10,12,825.51 by 13.02.2016. Dt: 29.01.2016. | |
O/c of legal notice to opposite party No.1 requesting them to allow him to pay 4 over due installments. Dt: 19.02.2016. | |
Reply notice by R.P.A.D by the advocate on behalf of opposite party No.1. Dt: 22.3.2016. | |
O/c of Rejoinder of complainant to opposite party No.1 and to their advocate and copy to opposite party No.2. Dt: 30.03.2016. | |
HDFC Bank Limited, Nellore letter informing the complainant that the seized vehicle has been sold etc. Dt: 31.03.2016. | |
O/C of letter to opposite party No.1 with a request to furnish the copy of loan documents under RTI Act. Dt: 13.04.2016. | |
Enquiry particulars regarding RM877599083IN issued by the Post Master, Tirupati HO. |
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s
-NIL-
Sd/-
President
// TRUE COPY //
// BY ORDER //
Head Clerk/Sheristadar,
Dist. Consumer Forum-II, Tirupati.
Copies to:- 1. The complainant.
2. The opposite parties.
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