DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA <br /> <br /> CC. No. 118 of 22-04-2008<br /> Decided on : 03-03-2009 <br /> <br /> Kirpal Singh aged about 39 years S/o Sh. Jarnail Singh, R/o Village Kot Shamir, Tehsil & District Bathinda. ... Complainant<br /> Versus<br /> <br /> 1.ICICI Bank Limited, (Commercial vehicle loan Deptt.) Bibiwala Road, Opposite 100' Road, Bathinda, through its Manager<br /> 2.ICICI Bank Limited, Head Office: Banjara Hills, Hyderabad through its Chairman/Managing Director<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. Pritam Singh Dhanoa, President<br /> Dr.Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> Present : Sh. Naresh Garg, Advocate, counsel for the complainant<br /> Sh. Sanjay Goyal, Advocate, counsel for the opposite parties. <br /> <br /> O R D E R<br /> <br /> SH. PRITAM SINGH DHANOA, PRESIDENT <br /> <br /> 1. This complaint has been filed by Sh. Kirpal Singh, a resident of village Kot Shamir, Tehsil and District Bathinda, under section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against ICICI Bank Limited, through Manager of its Bathinda Branch and Chairman/Manager Director at Hyderabad, for issuance of direction to release his Tralla alongwith tools and accessories or in the alternative to pay him a sum of Rs. 12,50,000/- and costs of tarpaulins and tools in the sum of Rs. 20,000/- with further direction to deliver the route permit and to pay a sum of Rs. 64,400/- on account of damages to the cement loaded in the said vehicle and a sum of Rs. 80,000/- per month from 03-04-2008 till the date of finalisation of dispute alongwith a sum of Rs. 1,00,000/- on account of compensation for mental and physical harassment and costs in the sum of Rs. 25,000/-.<br /> 2. As per averments made in the complaint, the complainant purchased Ghora Tralla bearing registration No. RJ-31GA/0865 in the year 2005, and secured loan in the sum of Rs. 10,42,942/- for purchase of chasis of the said vehicle on 17-11-2005 and a sum of Rs. 3,50,000 for construction of its body on 29-11-2005. The amount of loan secured by the complainant for chasis was to be refunded in 53 equal installments of Rs. 23,056/- each w.e.f. December, 2005 and loan secured for the purpose of construction of body of his vehicle was to be refunded in 47 equal installments of Rs. 8,576/- each. The amount of installments included the amount of interest thereon.<br /> 3. The complainant has been regularly paying the installments, but the opposite parties have debited certain amount to his loan account on account of “over due charges” on the ground of delay in deposit of installments, without consent and information to the complainant. At the time of advancement of loan, the opposite parties secured blank cheques duly signed from the complainant but the columns meant for mentioning the amount were left blank by him on their asking. On protest, being raised by the complainant, for debiting the amount in his account on account of overdue charges, officials of the opposite parties started giving threats that they will fill blank cheques as per their choice and after getting them dishonoured from his bankers, would file criminal complaints against him. The opposite parties have employed musclemen in the States of Punjab, Rajasthan, Haryana and Delhi, to impound the vehicles of the loanees under them, at their instance.<br /> 4. The vehicle purchased by the complainant was impounded by the opposite parties with the help of their musclemen at Arjansar, near Suratgarh (Rajansthan), in the month of January, 2007 and in the month of January, 2008, it was detained at Ajmer in the same State. On being approached by the complainant, they did not pay any heed, but his vehicle was released after sometime on payment of Rs. 10,000/- on each occasion by their musclemen against receipts. The opposite parties have not shown the said amount in the statement of account of the complainant. As per statement issued by the opposite parties on 03-04-2008, the complainant did not deposit two installments of loan from 2005 to 2008, but this lapse has taken place due to harassment and humiliation by the officials of the opposite parties and the musclemen employed by them and due to impounding of his vehicle, he could not earn any income. The appeals made by the complainant for deposit of the amount to the officials of the opposite parties were not heard.<br /> 5. On 02-04-2008, Gurmail Singh, driver of the complainant was coming with his vehicle from Niwara in the State of Rajasthan, with 560 bags of J K Cement worth Rs. 1,25,000/- loaded therein to Bathinda. As his vehicle reached Chitaurgarh, the musclemen employed by the opposite parties forced to stop it and took the same in their possession alongwith documents, cement bags, tarpaulins, tools and other accessories. The tank of the vehicle of the complainant was filled with 450 ltrs of diesel worth Rs. 15,000/- and all the 14 tyres thereof were new. The cost of the tarpaulins lying in the vehicle is Rs. 20,000/-. On 03-04-2008, the complainant met S/Sh. Amit Ahuja, Mahavir Parshad and Megh Raj, officers of the opposite parties and sought their intervention for release of vehicle, but instead of listening him, they started giving threats and warned him if the amount due on account of installments alongwith Rs. 20,000/- for payment to musclemen engaged by him, is not paid, then his vehicle will not be released. As the complainant expressed his inability to deposit such a huge amount, they threatened to mis-appropriate the cement bags loaded in the Tralla and to involve his driver in the criminal case. The complainant also approached Sh. Krishna Bali, Senior Manager, posted at Patiala, who also gave similar threats. On 03-04-2008, complainant sent a complaint to Senior Superintendent of Police, Bathinda, against the opposite parties and endorsed copies thereof to various higher authorities. Thereafter, the opposite parties had released the cement bags loaded in the Tralla of the complainant, which he dropped in the premises of M/s J K Cement Works, Village Gill Patti. As reported by consignee to the complainant, 280 bags of cement have been damaged and he has refused to accept the delivery thereof. The cost of damaged cement bags is worked out as Rs. 64,400/-, which the consignee may deduct from freight charges. The complainant received letter dated 10-04-2008, from the opposite parties on printed proforma under the head “Pre-sale letter” stating that he should pay a sum of Rs. 6,50,275/-, outstanding against him, advanced for purchase of chasis of Tralla and another sum of Rs. 2,10,991/- advanced for purchase of body thereof, otherwise they will sell his vehicle in the open market. In order to avoid such action and litigation, the complainant issued cheque No. 133990 dated 16-04-2008, in the sum of Rs. 63,264/- on account of two installments of loan due, to be paid by him. The said cheque has been drawn by him from his account State Bank of India and issued in favour of the opposite parties and sent to them vide letter dated 17-04-2008, but they did not not release his vehicle and other articles and he is incurring loss of Rs. 80,000/- per month. As such, there is deficiency in service on the part of the opposite parties. Hence, this complaint.<br /> 6. On being put to notice, the opposite parties filed written version resisting the complaint by taking preliminary objections; that complainant is using his vehicle for commercial purposes, as such complaint is not maintainable before this Forum and that intricate questions of law and facts are involved and for proving it, elaborate evidence is required to be led by the parties, as such, complainant be directed to avail remedy in the civil court; that complaint is not maintainable as financer can reposses the vehicle in case of default in payment of installments of loan; that there is no deficiency in service on the part of the opposite parties; that complainant has mis-represented the facts in the complaint with malafide intention regarding payment of installments of loan due towards him and complaint being false and vexatious is liable to be dismissed. On merits, it is admitted that complainant is big transporter and is using the vehicle for commercial purposes. It is submitted that as per agreement of loan, the complainant is supposed to deposit the installments of loan secured, for purchase of chasis of his Tralla by 15th of every month and for purchase of body thereof by first of every month and he is required to pay a sum of Rs. 450/- in case his any cheque is dishonoured by his bankers alongwith penal interest. It is submitted that at the time of advancement of loan, the complainant was advised to adhere to repayment schedule of loan and he had signed the said document of loan after understanding the contents. They deny that threat has been given. It is denied that blank cheques duly signed by the complainant were secured by the opposite parties for payment of installments of loan, advanced to him, or that they have employed musclemen and complainant paid them amount in the sum of Rs. 10,000/- on two occasions after his vehicle was impounded by them. It is submitted that the officials of the opposite parties personally visited the complainant and also served notices dated 08-09-2007, 15-11-2007, 12-10-2007 and 11-02-2008, through speed post, directing him to deposit the installments of loan, but he did not bother to do so and threatened the officials of the opposite parties to involve them in false cases. It is contended that the opposite parties are well within their right, to reposses the vehicle in case of default in payment of amount of loan by the complainant. It is submitted that the opposite parties have no concern with S/Sh. Mahabir Prashad and Megh Raj. It is contended that complainant himself expressed inability to repay the amount of loan and his driver surrendered the vehicle himself and surrender letter has been signed by the complainant. The opposite parties had also given intimation to this effect to the concerned Police Station, before repossessing his vehicle, without using any force. It is admitted that cement bags loaded in the vehicle were delivered to the complainant through his driver after his vehicle was impounded. It is denied that complainant has suffered any loss due to impounding of his vehicle or due to any act attributable to the opposite parties or that they are liable to pay him any compensation or to release his vehicle until he repays the amount of loan outstanding towards him. Rest of the averments, made in the complaint have been denied and prayer has been made for dismissal of the same.<br /> 7. On being called upon, by this Forum, to do so, the learned counsel for the complainant, submitted affidavits of the complainant Ex. C-1 and Ex. C-11, and copies of documents Ex. C-2 to Ex. C-10 and Ex. C-12 to Ex. C-19. On the other hand, learned counsel for the opposite parties furnished affidavit of Sh. Krishna Bali, Collection Manager, Ex. R-1 and copies of documents Ex. R-2 to Ex. R-8, and closed their evidence.<br /> 8. We have heard, the learned counsel for the parties and perused the oral and documentary evidence and written submissions, adduced on record, by the parties, carefully, with their kind assistance.<br /> 9. At the outset, learned counsel for the complainant Sh. Naresh Garg, Advocate, has submitted that musclemen employed by the opposite parties have repossessed the Tralla of the complainant from the State of Rajasthan, without service of notice upon him although he had remitted the amount through cheque, drawn on the account, maintained by his brother. Learned counsel has argued that taking over Tralla of the complainant by by use of force, employed by the opposite parties, without service of notice upon him, amounts to deficiency in service , even if a couple of installments were not paid as per the repayment schedule and the opposite parties are liable, to pay the cost of diesel filled in the tank of the vehicle of the complainant at the time of seizure thereof, cost of tools and accessories and to return the route permit and to pay him compensation for loss caused to the bags of the cement loaded therein and compensation for physical and mental harassment and costs incurred by him for filing of complaint. In support of his contentions, the learned counsel has placed reliance upon 2007 (IV) CPJ 184 Sankatha Prasad Vs. Mahindra and Mahindra Finance Co. Rewa (MP) & Ors., wherein the owner of the vehicle seized by the opposite party paid the installments of loan regularly. It was held that as per agreement, the opposite party is required to serve prior notice upon the owner of the vehicle before seizing the same and repossession of such vehicle without notice is arbitrary and amounts to deficiency of service. The learned counsel has also relied upon 2007 (III) CPJ 108 Prasan Mohapatra Vs. Magma Leasing Limited & Ors, wherein it was held that seizure of the vehicle by financier before the installment became due, amounts to deficiency of service. The learned counsel has further replied upon 2007(III) CPJ 161 (NC) Citicorp Maruti Finance Limited Vs. S. Vijayalaxmi, wherein it was held that practice of hiring musclemen as recovery agent is deprecated and needs to be discouraged as recovery of loan can be effected only through legal means. It was further held that banks cannot employ goondas for taking possession by force and slow procedure of law is no excuse for use of force for repossessing the vehicle.<br /> 10. On the other hand, learned counsel for the opposite parties Sh. Sanjay Goyal, Advocate, has submitted that complainant has failed to regularise his account inspite of service of notice upon him and the opposite parties have seized his vehicle and gave notice of the said fact to the local police. The learned counsel has argued that opposite parties have exercised their rights to reposses the vehicle due to non-payment of installments of loan and have released 560 bags of cement loaded therein on proper receipt, as such, there is no deficiency in service on their part and complainant is not entitled to the reliefs prayed for. In this regard, learned counsel for the opposite parties relied upon 2005(2) CLT (Pb) 430 ICICI Bank Limited Vs. Gurdial Singh, wherein possession of vehicle financed by the opposite party was taken over due to default in payment of two installments. The plea of the complainant was that no notice has been given to him for payment of instalment, but the same was repelled with the verdict by our own Hon'ble State Commission that when the agreement was drawn, the due dates for the payment of installments were also mentioned and post-dated cheques for realising the loan amount on the due date had been delivered by the complainant to the opposite party, as such, notice is required for payment of installment. The order passed by the Consumer Forum allowing the complaint, was set aside and direction was given to the appellant/opposite party to proceed to dispose of the car as per the rules with further direction not to charge any interest from the date of repossession. The learned counsel has further relied upon 2006(3) CLT 330 Ram Deslahara Vs. Magma Leasing Ltd., wherein petitioner did not pay the arrears of installment despite service of demand notice by the respondent-finance company because of which vehicle was seized against which loan was secured by the complainant, it was held by the Hon'ble National Commission that financier does not render any hire purchase transaction to the owner of the vehicle, as such, complainant is not consumer under the financier in the ambit of its definition given in the Act.<br /> 11. Admittedly, complainant secured loan in the sum of Rs.10,42,942/- from the opposite parties on 17-11-2005 for the purchase of chasis of Ghora Tralla bearing registration No. RJ-31GA/0865, which he was to refund in 53 equal installments in the sum of Rs. 23,056/- w.e.f. December, 2005 and he further secured loan in the sum of Rs. 3,50,000/- for construction of body of this vehicle on 29-11-2005 from the opposite parties which he was to refund in 47 installments in the sum of Rs. 8,576/- each w.e.f. Janauary, 2006, alongwith interest at contractual rate. The complainant has himself admitted that he committed default in payment of two installments of loan before his vehicle was seized by the musclemen engaged by the opposite parties, in the State of Rajasthan on 02-04-20098, when it reached near Chitauragarh. The opposite parties have produced on record the copy of letter dated 02-04-2008, Ex. R-5, addressed to S.H.O. Police Station concerned, informing him that they intend to reposses the vehicle for default in repayment of loan. They have further produced on record copy of another letter dated 03-04-2008, Ex. R-6, vide which intimation has been given to S.H.O. Police Station, concerned again after the possession of the vehicle by the opposite parties. The perusal of copy of agreement of loan Ex. R-7, reveals that the opposite parties were entitled to take possession of the vehicle in case of default in repayment of loan. The complainant himself has brought on record the copies of notices dated 15-11-2007, 12-10-2007 and 08-09-2007, Ex. C-17 to Ex. C-19 respectively, served upon him by the opposite parties asking him to make payment of remaining amount of loan alongwith interest and amount payable on account of dishonour of cheques delivered by him and also other charges in terms of agreement. The opposite parties have also produced on record copy of Pre-sale letter dated 10-04-2008, Ex. R-2, addressed to the complainant asking him to pay balance amount of Rs. 6,50,275/- alongwith over due charges at the rate of 24 percent per annum and other contractual charges within a period of seven days from the date of receipt of notice failing which, he has been warned that his vehicle may be repossessed and disposed of in terms of agreement of loan. They have also produced on record postal receipts showing despatch of above said documents to the complainant. Therefore, we are unable to accept the plea of the complainant that no notice before repossession of his vehicle and sale thereof has been given by the opposite parties. As per copy of statement of account Ex. C-3, produced on record by the complainant himself, he has committed numerous defaults in the payment of his loan on account of which, the opposite parties have claimed over due charges. He has even deposited cash on certain occasions on account of dishonour of cheques, deposited by him at the time of securing loan. As such, we do not find substance in the plea of the complainant that he committed default only twice but otherwise had been regularly making payment of installments of loan. Therefore, we are unable to attach much significance to the copy of letter dated 03-04-2008, of the complainant addressed by him to Senior Superintendent of Police, Bathinda, Ex. C-4, after the opposite parties have already seized his vehicle in terms of agreement. The complainant has also produced copy of letter dated 17-04-2008, and account payee cheque dated 16-04-2008 in the sum of Rs. 63,264/- , Ex. C-8 and Ex. C-10, respectively, addressed to opposite party No. 1 to accept the amount of cheque against two outstanding installments of loan. He has also produced on record postal receipts showing deposit of the same, but the opposite parties have not admitted receipt of the above said letter and cheque, sent by the complainant. Even if, it be presumed for arguments sake, that cheque was sent by the complainant, his plea does not sound well that the opposite parties did not collect the amount and credit the same to his loan account. Moreover, he has not accounted for his defaults in deposit of the amount outstanding towards him on account of over due charges on loan as shown in the copy of statement of account, referred above.<br /> 12. There is no cogent evidence to show that tank of the vehicle of the complainant was filled with diesel worth Rs. 15,000/- and about number and cost of tarpaulins. As per admitted facts 560 bags of cement loaded in the Tralla of the complainant have been returned. There is no positive evidence to show damage caused to some of the bags of cement loaded in his vehicle, cause of damage and its date. In the absence of any evidence, we cannot place much reliance on bare averments made in the complaint and in the affidavit of the complainant tendered in evidence. Similarly there is no cogent evidence about tools and accessories and amount paid by the complainant to musclemen of opposite parties except his affidavits which are self serving documents. <br /> 13. In the light of our above discussion and being fortified by the ratio judgements delivered in the authorities relied upon by the learned counsel for the opposite parties, we have no option but to hold that there is no deficiency in service on the part of the opposite parties for which compensation and costs may be awarded to the complainant as prayed for by him in the complaint. We have carefully gone through, the authorities relied upon by the learned counsel for the complainant, but have come to the conclusion, that facts and circumstances thereof, were quite distinguishable from those of the case in hand. In the case 2007(IV) CPJ 184 (Supra), no prior notice was served by the financier before seizing <br /> <br /> <br /> the vehicle and in 2007 (III) CPJ 108 (Supra), installment of loan had not become due on the day of seizure whereas in 2007(III) CPJ 161 (NC) (supra), agreement was void and as 14 days notice was given by the financier for making one time settlement before seizure of his vehicle, it was sold without serving repossession notice to him. As such, these authorities do not advance the case of the complainant against the opposite parties, so far as seizure of his vehicle hypothecated to them for securing loan, is concerned. The opposite parties are entitled to repossess the vehicle after giving notice interms of agreement.<br /> 14. For the aforesaid reasons, we have come to the conclusion that no indulgence of Consumer Forum is warranted, as sought by the complainant, through the instant complaint, hence the same is dismissed. However, the opposite parties shall dispose of the vehicle seized for default of amount outstanding towards the complainant, if he does not deposit the same alongwith interest upto date, within a period of two months from the date of receipt of copy of this order, in terms of agreement, for realisation of the amount outstanding towards him. In case the amount is deposited within the stipulated time period by the complainant, then the opposite parties shall deliver his vehicle alongwith route permit, tools and accessories, if any and then will not be entitled to claim interest after the date of repossession. <br /> 15. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. The copies of this order be sent to the parties, free of costs as permissible under the rules, on the subject.<br /> File be indexed and consigned. <br /> Pronounced :<br /> 03-03-2009 (Pritam Singh Dhanoa)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> <br /> (Amarjeet Paul ) <br /> Member