Complaint filed on: 20-04-2010 Disposed on: 25-10-2010 BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 C.C.No.880/2010 DATED THIS THE 25th OCTOBER 2010 PRESENT SRI.D.KRISHNAPPA., PRESIDENT SRI.GANGANARASAIAH., MEMBER SMT. ANITA SHIVAKUMAR. K, MEMBER Complainant: - Mohammed Iqbal S/o. Mahaboob Sab, Aged about 55 years, Residing at No.1667, 2nd Main, 2nd Cross, Shampur, AMC Road, Bangalore-560 045 V/s Opposite parties: - 1. ICICI Bank Ltd, ICICI tower, No.1, Commissiarate Road, Bangalore Rept by its General Manager 2. The Branch Manager, ICICI Bank Ltd, Near Oxford Dental College, Hosur Road, Bommanahalli, Bangalore O R D E R SRI. D.KRISHNAPPA., PRESIDENT., The Grievance of the complainant against the opposite parties in brief is, that he had availed vehicle loan from the Ops to purchase a Toyota Qualis Van agreeing to repay the same in 36 equal monthly installments of Rs.10,698/- each, the first installment was to be paid on 5-10-2006. That he had paid 29 installments upto Sept.2009. Due to his financial difficulties, he could not pay the remaining installments. Ops seized his vehicle on 22-10-2009 by using muscle power without informing him. OPs have also sold his vehicle on 23-11-2009 for Rs.1,92,000/-. Upto Sept.2009, he had paid Rs.3,20,242/-. That Ops who sold his vehicle for Rs.1,92,000/- after adjusting Rs.74,886/- due to them have not refunded his excess money of Rs.1,17,114/- despite issue of legal notice, Ops therefore have caused deficiency in their service and has prayed for a direction to the Ops to refund Rs.1,17,000/- with interest at 18% per annum and to grant other reliefs. 2. This forum had ordered notice to OP No.2 only, who has appeared through his advocate and filed version, admitting the loan transaction and method of repayment has stated by the complainant. It is further contended that the complainant committed default in payment of first installment as seen from the account extract. The complainant has committed default in payment of subsequent installments also. That the vehicle was seized on 11-9-2009 and not on 22-10-2009, the vehicle was sold for Rs.1,75,500/- and denied that the complainant was due only Rs.74,886/- and he was entitled for excess amount of Rs.1,17,114/-. Further alleging that the complainant committed default and when did not pay the balance amount which was to be ended on 5-9-2009, they re-possessed the vehicle and sold it by issuing pre sale notice dated 10-10-2009. That too after intimation to the concerned local police. It is further alleged that Ops were due Rs.1,53,792/- and after appropriating the sale processed towards loan account of the complainant a sum of Rs.24,862/- was excess amount payable to the complainant, but he did not got and receive the said amount and thereby denying all other allegations has prayed for dismissal of the complaint. 3. In the course of enquiry into the complaint, the complainant and 2nd OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant alongwith the complaint has produced a copy of RC and his loan account extract, copy of legal notice. 2nd OP has produced copy of loan application, copy of hypothecation deed loan account extract and copy of notice alleged to had been issued to the complainant as a pre sale notice. We have heard the counsel for both the parties and perused the records. 4. On the above materials following points for determination arise. 1) Whether the complainant proves that the Ops have caused deficiency in their service in selling the car without pre sale notice? 2) To what reliefs, the complainant is entitled to? 5. Our findings are as under: Point no.1: In the affirmative Point no.2: See the final Order REASONS 6. Answer on Point No.1: As could seen from the contention of the parties, we have referred to above in brief, the fact that the complainant borrowed a loan Rs.3,00,000/- from the 2nd OP for purchase of car repayable in installments and that lost installment was to be paid on 5-9-2009 is not all in dispute. But the claim of the complainant that he had paid 29 equated installments regularly is denied by the 2nd OP through his version and affidavit evidence by contending that the complainant had defaulted in payment of installment regularly even from the first installment itself and that OP to substantiate his contention has produced account extract of the loan account of the complainant. The complainant has also produced the loan account extract. As evident from this extract, the complainant found to have not paid the installments regularly and even as admitted by the complainant he after paying 29 installments has committed default in payment of the balance installments. The OP, it is found in exercise of his right of re-possessing, re-possessed the vehicle on 11-9-2009 and has stated as on that day the complainant was due in a sum of Rs.1,53,792/-. The complainant has not denied this fact and the amount due by him as on the date seizer of the vehicle, in his affidavit evidence. As such we are inclined to hold that the complainant was due Rs.1,53,792/- as on the date of seizer of the vehicle. As per the agreement, the complainant as a party agreed for seizure of the vehicle in the event of committing default in repayment of loan. Therefore the 2nd OP rightly seized the vehicle and it can not be found fault. Thus, the complainant has failed to prove that Op seized the vehicle by use of muscle power illegally. 7. It is the next allegation of the complainant that the 2nd OP has sold the vehicle without any notice or intimation to him and has not refunded the excess sale price of the vehicle. As against this the 2nd OP has contended that they had issued a pre sale notice on 10-10-2009 called upon the complainant to pay the termination amount of Rs.1,53,792/- and he in support of his contention produced a postal cover alleged to had been sent to the complainant but returned un-served. No doubt in this copy, we find that the OP stated to had informed the complainant about amount due and in the event of failure to pay that balance money in 7 days, they would sell the vehicle. The complainant denied to have received any such pre-sale notice, under this circumstance, burden is on the OP to prove that pre sale notice was sent and served on the complainant. But they have not produced any such proof, in proof of service of pre sale notice. Though notice of seizer is not contemplated, but principles of nature justice warrant a pre sale notice to the complainant in which the OP is required to give an opportunity to the complainant to pay the entire outstanding amount if he so desire and got the vehicle released instead of allowing the vehicle to be sold by the OP, with this objective the pre sale notices assume importance. But the OP without affording such an opportunity to the complainant found to have hurridly and unilaterally sold the vehicle which in our view is contravention of principle of natural justice. 8. Learned counsel representing the OP in the arguments submitted that pre sale notice is not warranted and in this behalf, he has relied upon two decisions of the Hon’ble National Commission reported in II (2010) CPJ page 54 and 163. In the first decision the Hon’ble National Commission has held that the complainant did not prove any prejudice caused to him therefore upheld the contention of the financier. But in the case on hand, prejudice has caused to the complainant as he lost the vehicle once for all. In the second case, seizer was challenged and the Hon’ble National Commission held that the vehicle was seized for default committed in repayment and therefore found no fault in the seizer. Facts of those two decisions are not similar to the facts of the case before us. Thus the OP do not derive any benefits from those decisions. 9. The complainant though has questioned the correctness of the sale of his vehicle without issuing a pre sale notice but has not asked for substantial relief by way of damages. He has only prayed for a direction to the OPs to pay him the excessive sale proceeded of Rs.1,17,000/- on the ground that his vehicle was sold by the OP for Rs.1,92,500/- and he was due Rs.74,886/- to the OP and therefore is entitled for that excess amount. Whereas, the OP denying to have sold the vehicle for Rs.1,92,000/- stated to had sold the vehicle for Rs.1,75,500/- appropriated Rs.1,53,792/- out of that amount towards due by the complainant and stated only Rs.24,862/- was in excess. The complainant has not contravened this statement of the OP by producing any documents in proof of that vehicle having been sold for Rs.1,92,000/-. He could have called for the sale details from the OP but did not choose to do so. Further he also not challenged the amount said to be due from the OP. Under this circumstance, we do not find any substance in the contention of the complainant to conclude that vehicle was sold for Rs.1,92,000/-. The complainant since has not proved his contention, the statement of the OP that they have released excess amount of Rs.24,862/- after dischargel of the complaint liability has to be accepted and that amount becomes repayable to the complainant. This forum having held that the OP has failed to provide an opportunity to the complainant by issue of sale notice which undoubtedly amounts to un-trade practice. OP too has failed to produce documents evidencing the value for which the vehicle was sold, when the vehicle was admittedly valued by their valuer at Rs.2,45,000/- considering all these aspects of the matter, we find that the OP for their indulgence in unfair trade practice is to be directed to pay damages to the complainant besides their liability to refund the excess money. With the result, we answer point No.1 in the affirmative and pass the following order: ORDER The complaint is allowed. OP is directed to refund Rs.24,862/- with interest at 9% per annum from 23-10-2009 till the date of payment. OP shall also pay Rs.8000/- to the complainant as damages for un-trade practice, that the OP indulged in selling the vehicle. OP shall pay the above amounts within 50 days from the date of this order. Failing which, he shall pay interest at 9% per annum on the second relief from the date of this order till the date of payment. Op shall also pay cost of Rs.1500/- to the complainant. Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 25th October 2010. Member Member President
| | [HONORABLE Ganganarsaiah] Member[HONORABLE Sri D.Krishnappa] PRESIDENT[HONORABLE Anita Shivakumar. K] Member | |
