BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah , B.Com B.L., President
And
Sri. M.Krishna Reddy , M.Sc., M.Phil., Male Member
Thursday the 3rd day of February , 2011
C.C.No 60/07
Between:
B. Nazeer Ahammed, S/o B. Abdul Sattar,
R/o H.No. 25-72, Kothapeta Street, Atmakur, Kurnool District. …Complainant
-Vs-
1. ICICI Bank Limited, Represented by its Branch Manager,
Kurnool Branch, U-Con Plaza, Park Road, Kurnool.
2. ICICI Bank Limited, Represented by its Manager,
ICICI Bank Towers level-V, Hyderabad Branch, Begum Pet, Hyderabad.
3. ICICI Bank Limited, Registered Office, Represented by its Director,
Landmark, Race Course Circle and Vadodara, Mumbai. …Opposite Parties
This complaint is coming on this day for orders in the presence of Sri.M.Azmathulla, Advocate, for complainant, and Sri.P.Madhu Sudhana Reddy, Advocate for opposite party No.1 and opposite party No. 2 & 3 set exparte upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. T.Sundara Ramaiah, President)
C.C. No. 60/07
1. This complainant is filed under section 12 of C. P. Act, 1986 praying to direct the opposite parties:-
(a) To release (possession) the vehicle bearing Registration No.AP-21-W-3552 to the complainant in a food condition and to pay Rs.1,500/- per day till the vehicle is handed over to the complainant,
OR
To direct the opposite parties to pay Rs.9,50,000/- towards cost of the vehicle,
(b) To direct the opposite parties to pay Rs.25,000/- towards compensation for damaging the reputation of the complainant and Rs.25,000/- towards mental agony and hardship,
(c ) To pay interest at the rate of 18% pre annum,
(d) To grant costs of this complaint,
- To pass such other relief or reliefs as the honorable Forum may deems fit and proper under the circumstances of the case.
2. The case of the complainant in brief is as under:- The complainant is the owner of the lorry bearing No.AP-21-W-3552. The complainant is running the said lorry for transportation. His livelihood is entirely based on the earning of his lorry. The complainant obtained a loan of Rs.75,000/- under loan No. LAN No.LVKNO-00004063488, repayable in 22 equally monthly installments of Rs.3,665/- each. He also obtained a loan of Rs.9,98,000/- under loan No. LVK NO-00003931108 repayable in 52 equated monthly installments of Rs.22,440/- each. The complainant entered in to an agreement of hypothecation with opposite party No.2. The complainant paid all monthly installments up to February, 2007. Surprisingly on 08-02-2007 opposite party No.1 seized the lorry of the complainant near Bellary Chowrastha Kurnool without any prior intimation or notice. Immediately the complainant approached the opposite party No.1 and explained about the installments paid by him. Opposite party No.1agreed to release the lorry of the complainant on 23-03-2007. Opposite party No.1 issued a presale notice to the complainant, showing the outstanding amount. The complainant on 30-04-2007 approached the opposite party No.1 and requested to release the lorry. The opposite party No.1 refused for it. Then the complainant got issued a registered representation to the R.T.O., Nandyal and requested him not to transfer the lorry to any one. Again on 05-05-2007 the complainant got issued registered legal notice to the opposite party No.1 and requested to release the lorry. Opposite party No.1 received the said notice and kept quite. Due to the illegal seizure he sustained huge loss and he was put to mental agony. Hence the complaint.
3. Opposite party filed written version, stating that the complaint is not maintainable. The complainant had taken a loan from opposite party No.1. The relation ship between complainant and opposite party is that of debtor and creditor and not that of consumer and service provider. The complainant is not a consumer. The dispute raised by the complainant is not a consumer dispute. The complainant is not a consumer as defined under section 2 (d) of Act. It is admitted that the complainant took loan of Rs.9,98,000/- and Rs.75,000/- from opposite party bank to purchase a lorry bearing No. AP 21 W 3552. The complainant executed the vehicle loan cum hypothecation agreement on 01-06-2005 in favour of the bank. As per the terms and conditions of the hypothecation agreement, in case of delay or default in making payment of installments, opposite party bank is entitled to take possession of vehicle. The complainant committed default in payment of installments to the bank. The bank was compelled to take lawful possession of the hypothecated vehicle after following due procedure. The complainant has been a chronic defaulter from the beginning. The complainant did not take any steps to pay the outstanding amount in order to release the vehicle that was seized. The opposite party sent pre sale notice dated 23-03-2005 to the complainant, terminating the agreement and demanding final settlement of loan amount. As the complainant did not take steps to pay the outstanding amount, the bank sold the vehicle of the complainant in auction on 23-04-2007. After the sale of the vehicle, the complainant became liable to pay to the bank a sum of Rs.1,26,909/-. It was intimated to the complainant through post sale notice dated 25-04-2007. On receipt of the said notice, the complainant filed the present complaint on 25-05-2007. There is no deficiency of service on the part of the opposite parties. The complaint is liable to be dismissed.
4. On behalf of the complainant Ex.A1 to A8 are marked and the sworn affidavit of the complainant is filed. On behalf of the opposite parties, Ex.B1 to B9 are marked and the sworn affidavit of OP.No.2 is filed.
5. Both sides filed written arguments.
6. The points that arise for consideration are:
(i) Whether the complainant is a consumer?
(ii) Whether there is deficiency of service on the part of the OPs?
(iii) Whether the complainant is entitled to the relief as prayed for?
(iv) To what relief?
7. Point No.1:- Admittedly the complainant availed loan of Rs.9,98,000/- and Rs.75,000/- to from the opposite party bank, for the purchase of a lorry bearing No. AP 21 W 3552 and executed hypothecation agreement in favour of the opposite parties on 01-06-2005. The loan amount of Rs.9,98,000/- with interest is agreed to be paid by the complainant in 52 monthly installments at Rs.22,440/- each per month. The loan amount of Rs.75,000/- was agreed to be paid by the complainant in 22 monthly installments at Rs.3,665/- each per month commencing from 01-08-2005. Admittedly the opposite parties seized the vehicle and took possession of the vehicle of the complainant on 09-03-2007 and the same was sold in open auction for realising of the outstanding amount. Subsequently to the sale of the vehicle by the opposite parties, the complainant filed the present complaint.
8. It is the case of the opposite parties that the relation between the complainant and the opposite party is that of the debtor and creditor and that the complainant is not a consumer within the meaning of section 2 (1) (d) of the Act. The complainant in his sworn affidavit has stated that he is a running the lorry purchased by him for transportation, that his livelihood is based on the earnings of his lorry and that he has no other source of income. The opposite parties did not place any documents to show that the complainant was having number of vehicles and that he was doing transport business. It is submitted by the learned counsel appearing for the OPs that the OPs seized the vehicle of the complainant as the complainant committed default in payment of installments and sold the said vehicle for recovery of outstanding amount. He also argued that the sale of the vehicle seized by the financier does not amount to service as defined in section 2 (1) (O) of the Act. In support of his contention, he relied on a decision reported in III (2006) CPJ 247 (NC) wherein the National Consumer Disputes Redressal Commission held that under hire – purchase transaction, financier not renders service within the meaning of C.P. Act and the complainant is not a consumer. In the present case also the OPs proceeded against the hypothecated vehicle of the complainant as per the terms and conditions of the hypothecated agreement entered in to between the complainant and the OPs. It is not the case of the complainant that the OPs employed powerful person and forcibly seized the vehicle with muzzle power. According to the complainant that the vehicle was seized and taken possession by the opposite parties without prior intimation. In the sworn affidavit of the opposite parties, it is clearly stated that before taking possession of the vehicle, the complainant was given, Ex.B5 notice demanding him to pay outstanding amount, but he did not pay the amount. It is also stated that the pre intimation notice Ex.B8 was given to the complainant before vehicle was taken possession by the opposite parties. As seen from Ex.B8, it is very clear that the complainant was given a telegraphic notice dated 08-03-2007 intimating that he committed default in repayment of the loan. It is also mentioned in Ex.B8 that as per the hypothecation agreement, the vehicle would be taken into possession. Therefore, the contention of the complainant that he was not given any intimation before the vehicle was taken possession by the opposite parties cannot be accepted. In the light of the observation made by the National Commission in the above cited decision, we have no hesitation to hold that the complainant is not a consumer within the meaning of Section 2 (1) (d) of the Act.
9. Point 2 & 3 :- It is the case of the complainant that he did not commit any default in payment of the installments to the bank and that his vehicle was surprisingly seized by the opposite parties on 08-02-2007 near Bellary Chowrastha without any prior intimation. According to the opposite parties the possession of the vehicle was taken on 09-03-2007 after giving pre intimation notice to the complainant. Except affidavit evidence of the complainant there is no evidence on record to show that his vehicle was seized by the OPs on 08-02-2007 near Bellary chowarastha. The complainant did not file the affidavit of the driver or the cleaner of the vehicle to show that his vehicle was seized on 08-02-2007 by the opposite parties. It is stated in the affidavit evidence of the opposite parties that the vehicle was repossessed on 09-03-2007 and before taking possession of the vehicle; the complainant was issued pre intimation notice dated 08-03-2007. There is documentary evidence on record to show that the vehicle of the complainant was taken possession by the opposite parties on 09-03-2007. The contention of the complainant that his vehicle was seized on 08-02-2007 is not supported by satisfactory evidence.
10. It is the case of the Opposite parties that the complainant committed default in payment of the monthly installments and that the hypothecated vehicle was seized on 09-03-2007. Admittedly the complainant took two loans from the opposite bank and agreed to repay the same in installments. Ex.B3 and B4 are copies of repayment schedules. The particulars of the installments paid by the complainant are shown in Ex.B3 and B4. The opposite party in its affidavit evidence clearly stated that the complainant committed default in payment of the installments Ex.B1 and B2 are statement of accounts showing the particulars of payments made by the complainant to the bank. As seen from Ex.B1 and B2, it is very clear that the complainant did not pay the installments in time and committed default. The opposite party in its affidavit evidence clearly stated that the complainant did not pay the installments due within the time and that the bank also issued notice dated 06-02-2007 to the complainant. In Ex.B5 notice it is very clearly mentioned that an amount of Rs.37,717/- is due by the complainant under loan No. LVKNO00003931108 and Rs.5,558/- under loan No. LVKNO00003931108. The complainant filed Ex.A1 receipts issued by the bank to show that he did not commit any default in payment of the installment to the bank. As seen from the receipts also, it is very clear that the complainant did not make installment within the time. As seen from the entries in Ex.B1 and B2, it is very clear that the complainant did not pay the installment in time and paid over due charges to the bank. Admittedly there is a hypothecation agreement executed by the complainant and the bank. It is not the case of the complainant that the opposite party bank has no rights to take possession of the vehicle in case of default. Admittedly the bank got right to take possession of the hypothecated vehicle in case of default in payment of installment by the complainant. There is record to show that the complainant committed default in payment of installments. Therefore the opposite party bank rightly took possession of the vehicle on 09-03-2007 after issuing pre intimation notice to the complainant.
11. The opposite party after taking possession of the vehicle sold the said vehicle in open auction on 23-04-2007. It is not the case of the complainant that he was not given pre sale notice before the vehicle was sold. The complainant in his complaint clearly mentioned that he received pre sale notice Ex.A8, dated 23-03-2007. Ex.B.7 is the post sale notice. The complainant got issued notice to the opposite parties subsequent to the sale of the vehicle. By the date of the legal notice got issued by the complainant, the vehicle was already sold. The learned counsel appearing for the complainant relied on a decision reported in (2009) CJ 463 (A.P) in support of his contention. In the said case the financier seized the vehicle without prior notice and sold the same without intimating to the complainant. The facts of the present case are entirely different from the facts of the case cited above.
12. In the present case on hand the opposite parties have taken possession of the hypothecated vehicle as the complainant committed default in payment of the installments. Notice was given to the complainant before the vehicle was taken possession. Before the sale of the vehicle also the complainant was informed by giving notice. In spite of the same the complainant did not pay the arrears. The opposite party proceeded, as per the terms and conditions of the policy to recovery the outstanding amount. There is no deficiency of service on the part of the opposite parties. The complainant is not entitled to the reliefs as prayed for.
13. In the result the complaint is dismissed. In the circumstance no costs.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 3rd day of February, 2011.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nill For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1 Bunch of installment Payment receipt as to loan account No.LVKNO00003931108 and LVKNO00004063488 covering the period from 14-08-2006 to 01-02-2007.
Ex.A2. Office copy of legal notice dt.30-04-2007 along with postal receipts.
Ex.A3. Postal acknowledgement of Ex.A2 by RTO, Nandyal.
Ex.A4. Office copy of legal notice dt. 05-05-2007 along with postal receipts.
Ex.A5. Postal acknowledgement of Ex.A4 by OP1.
Ex.A6 Photo copy of certificate of registration issued by RTO, Nandyal.
Ex.A7 Photo copy of Certificate cum Policy Schedule.
Ex.A8 Photo copy of Presale Notice dt.23-03-2007.
List of exhibits marked for the opposite parties:
Ex.B1. Photo copy of Statement of Chassis account of ICICI Bank dt.24-04-2007.
Ex.B2. Photo copy of Statement of Body account of ICICI Bank dt.24-04-2007.
Ex.B3 Photo copy of Repayment schedule of chassis account of ICICI Bank dt.19-07-2007.
Ex.B4 Photo copy of Repayment schedule of Body account of ICICI Bank dt.19-07-2007.
Ex.B5 Photo copy of notice dt.06-02-2007, (both loans).
Ex.B6 Photo copy of Presale Notice dt.23-03-2007.
Ex.B7 Photo copy of Post sale Notice dt.25-04-2007.
Ex.B8 Photo copy of Pre Intimation dt.08-03-2007.
Ex.B9 Photo copy of Post Intimation letter dt.09-03-2007.
Sd/- Sd/-
MALE MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
