BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT.

Complaint No. : 70

Date of Institution : 17.3.2010

Date of Decision : 8.11.2010

Balwinder Singh aged about 39 years s/o Balbir Singh r/o opposite New Grain Market, near Lajwanti Cotton Mill, Kotkapura Road, Jaitu Tehsil Faridkot.

...Complainant Versus

1. ICICI Bank Ltd. Branch Office near DAV College, Bathinda through its Branch Manager.

2. ICICI Bank Ltd. Branch Office near Bus Stand Faridkot through its Branch Manager.

3. Mahanvir Parshad Employee of ICICI Bank Ltd. Branch Office Near DAV College, Bathinda.

4. ICICI Bank Ltd. Registered office, Landmark, Race Course Circle, Vadodara 390 007 through its MD.

...Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh. Ashok Kumar President

Dr. H.L. Mittal Member

Present: Sh. Ashu Mittal counsel for the complainant.

Sh. Amrit Bansal counsel for the opposite parties No. 1, 2 and 4.

ORDER

Complainant has filed the present complaint against the opposite parties for illegally confiscating the truck of the complainant bearing registration No. PB-04 K 9776 alongwith documents and to pay Rs. 2,00,000/- on account of harassment, mental agony and financial loss to the complainant besides costs of the complaint.

2. Briefly stated, the case of the complainant is that the complainant obtained a loan of Rs. 11,00,700/- from the opposite parties for purchase of truck in the month of January, 2007 and after release of loan the complainant purchase the truck for Rs. 12,23,000/- by spending Rs. 1,22,300/- from his own pocket. The truck was registered with the District Transport Office, Faridkot with registration No. PB 04 K 9776. As per terms and conditions of the loan transaction the loan amount was to be paid back in 47 equal installments of Rs. 28,932/- each including the interest @ 10.73% per annum, so the complainant is consumer of the opposite parties. At the time of advancement of loan the opposite parties got 10 signed blank cheques from the account of the complainant in OBC bank branch office Jaitu. The repayment of the loan was to commence on 5.2.2007 and the complainant paid installments regularly for 7 months. Then the truck met with an accident in July, 2007 near Rohtak causing substantial loss to the truck as a result of which the truck could not be plied for about 4 months. Due to accident there was no income from the truck and the complainant could not make payment of three installments for the months of September, October and November, 2007. On 28.10.2007, the opposite party No. 3 accompanied with Kamaldeep Singh and Harjit Singh who claimed to be the employees of the ICICI Bank came to the house of the complainant to collect the due installments and complainant promise to pay Rs. 30,000/- on 4.11.2007. On 5.11.2007, opposite party No. 2 alongwith Kamaldeep Singh came to the house of complainant and collected Rs. 30,000/- from the complainant in the presence of Hakam Singh. The opposite party No. 2 promised that he would issued the receipt in a few days but they never issued the receipt of that amount, so the complainant stopped paying further installments. On 28.11.2007 the opposite parties forcibly confiscated the truck alongwith the precious timber loaded in it which the complainant was taking from Patel Wood Products Ltd. Jallandhar to be delivered to Arvind Project Pvt. Ltd. Dera Bassi and the truck was taken to Bathinda. The complainant informed the owners of above Patel Wood Product Ltd. who sent their executive Sohan Lal Sharma. Then the complainant alongwith said executive contacted the opposite party No. 1 who compelled the complainant and above named executive to submit affidavits admitting the alleged legality of the opposite parties in confiscating the truck and in the compelling circumstances the complainant had to submit the affidavit dated 30.11.2007 the drafting of which was done by the opposite parties as per their wishes. After that the complainant requested the opposite parties many times to release the truck in question but to no avail. After 2.6.2009 the complainant again approached the opposite parties to release the truck but to no avail . The opposite parties have even not refunded the amount of Rs. 1,22,300/- spent by the complainant from his own pocket and an amount of Rs. 65,000/- spent by the complainant for fitting accessories and the amount of Rs. 2,32,524/- paid to the opposite parties out of the loan amount, which amounts to deficiency in service and unfair trade practice. Complainant is also entitled for compensation of Rs. 2,00,000/- with costs of the complaint. Hence this complaint.

3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 18.3.2010 complaint was admitted and notice was ordered to be issued to the opposite parties.

4. In response to the notice, the opposite parties No. 1, 2 and 4 filed written statement taking legal objections that the complainant was using the vehicle for commercial purpose so the complainant does not fall within the ambit of consumer. The complaint is time barred as the cause of action arose on 4.11.2007. The Forum has got no territorial jurisdiction to try and entertain the present complaint as the vehicle was financed from Bathinda and only Forum at Bathinda has got the jurisdiction to try the present complaint. On merits, it was alleged among other things that the vehicle in question has been used for commercial purpose. However, it is admitted that the complainant was financed Rs. 11,00,700/-. The complainant never issued any blank cheques nor signed on any blank stamp paper rather complainant executed loan agreement in favour of bank. The complainant was habitual defaulter and he made the default in repayment from very beginning but he intentionally concealed the above said facts and story regarding payment of Rs. 30,000/- without receipt is false and no such complaint was ever made to bank in two and a half years. It was specifically mentioned in the agreement between the complainant and the opposite parties that in case of default in repayment that bank shall be entitled to take the possession of the vehicle and as such bank was within its right to take the possession even on single default but officials of the opposite parties many a time requested the complainant to make the payment but complainant never bothered to make the payment and thereafter the complainant himself surrendered his vehicle and it is denied that the vehicle was confiscated forcibly. However, police of Jaitu was informed before and after taking the possession of the vehicle and no loss was suffered by the complainant. On 29.11.2007, a notice was again sent to the complainant that if he is interested to retain the vehicle then he can take back the same otherwise it shall be sold and complainant opted to retain the vehicle. It is further added that after taking possession a pre sale notice was issued to the complainant whereby he was directed to make the payment of due amount but on failure the vehicle was sold for Rs. 1,60,000/- as per terms of agreement. After selling the vehicle, amount of Rs. 9,23,504/- was due for which also a notice was sent to the complainant but to avoid his liability he filed the present complaint. So, there is no deficiency or unfair trade practice on the part of opposite parties. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5. All the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence her affidavit Ex.C-1, copy of receipt dated 4.10.2007 Ex.C-2, copy of repayment schedule Ex.C-3, copy of affidavit of Sohan Lal Sharma Ex.C-4, affidavit of Hakam Singh Ex.C-5, acknowledgment of cheque Ex.C-6, letter dated 22.8.2008 Ex.C-7, copy of policy Ex.C-8, copy of bank account of complainant Ex.C-9, copy of DDR dated 22.6.2007 Ex.C-10, copy of order dated 2.6.2009 Ex.C-11 and closed his evidence.

6. In order to rebut the evidence of the complainant the opposite party No. 1 tendered in evidence affidavit of Nirmal Sharma Ex.R-1, resale notice dated 29.11.2007 Ex.R-2, receipt No. 201 Ex.R-3, survey report Ex.R-4, pre payment of commercial vehicle loan Account Ex.R-5, account statement Ex.R-6, asset possession kit Ex.R-7, certificate Ex.R-8, letter No. 425706 Ex.R-9, information to police station Ex.R-10 and Ex.R-11, asset information Ex.R-12, account statement Ex.R-13, affidavit of Sohan Lal Ex.R-14 and closed the evidence.

7. We have heard learned counsel for parties and have very carefully gone through the affidavits & documents on the file.

8. The main contention raised by the learned counsel for the complainant in the present case is that up to 4.10.2007 complainant had already paid seven installments. Thereafter, the truck in question met with an accident in July, 2007 causing substantial loss to the truck so complainant became unable to make payment for the months of September, October and November, 2007. On 28.10.2007, installment was collected by the agent of the opposite parties but no receipt was issued to him. Truck was illegally confiscated by the opposite parties on 28.11.2007 alongwith the timber loaded in it. On 5.7.2008, truck met with an accident and an FIR was registered against the complainant and he was finally acquitted from the said case on 2.6.2009. Complainant approached the opposite parties to release the truck to enable him to ply the same and repay the loan but to no avail. The opposite parties have not even refunded Rs. 1,22,300/- spent by the complainant from his own pocket for purchasing the truck and a sum of Rs. 65,000/- spent by him on accessories. The conduct of the opposite parties in confiscating the truck amounts to deficiency in service and trade mal practice. Therefore, the complainant is entitled to the relief claimed. In support of the contention that financed vehicle cannot be repossessed by the financier forcibly as such a conduct amounts to gross deficiency in service. Complainant have heavily relied upon judgment of Hon'ble National Commission in Standard Chartered Bank Versus H.S. Saini 2010 (1) CPC-279.

9. Learned counsel for the opposite parties however repelled the aforesaid contentions on the ground that the complainant repaid only six installments of loan of February, March, April, June, August and October. Therefore, opposite party was well within their right to take possession of the truck. Otherwise also, complainant himself surrendered the vehicle on 28.11.2007 and by now the opposite parties have sold out the vehicle for Rs. 1,60,000/- as per terms of the agreement between the parties. In support of the contention in view of the default of the payment of installment bank was well within right in taking possession of the truck in question. Reliance has been placed upon judgment of Hon'ble State Commission, Punjab, Chandigarh in ICICI Bank Limited, Ranjit Avenue, Amritsar through Shri Parminder Dhami, Regional Manager Versus Gurdial Singh son of Sh. Lachhman Singh R/o Ram Tirath Road, New CPWD Office, Amritsar at present 309/14, Sawan Singh Colony Mohalla Arafwala, Kapurthala 2005 (2) Judicial Reports Consumer-11.

10. We have keenly considered the rival contentions in the light of evidence on record. Controversy between the parties in the present case veers around the point as to whether truck in question was confiscated by the opposite parties or the same was surrendered to the opposite parties by the complainant himself. From the record on the file particularly document witnessing information to the police station about possession and after possession dated 28.11.2007 Ex.R-11 it cannot be denied that at the relevant time of alleged surrender of truck it was loaded with timber which was got released by representative of M/s Patel Wood Products Ltd. Jallandhar for its delivery to Arvind project Pvt. Ltd. Dera Bassi. In this connection affidavit filed by said representative named Sohan Lal Sharma is Ex.C-4. Therefore, it cannot be said that truck was surrendered by the complainant to the opposite parties himself. Otherwise also, it is difficult to believe that the complainant would take the truck for surrender to the opposite parties with timber lying on it. Stance of the complainant that in fact truck was confiscated by the employees of the opposite parties appears to be correct. In any case it was forcibly taken possession of by the opposite parties from the complainant. In H.S. Saini case supra cited by the learned counsel for the complainant forcible repossession of financed vehicle for default of payment of installments amounts to gross deficiency in service. Ruling of Gurdial Singh case supra relied upon by the learned counsel for the opposite parties is not helpful to them in the face of ruling of National Commission in H.S. Saini case supra. It is also noticed that the opposite parties have sold out the vehicle for meagre amount of Rs. 1,60,000/- even against the valuation of their surveyor prior to the sale. In our considered opinion by doing the aforesaid act i.e taking forcible possession of truck in question and its sale later on for paltry amount as aforesaid opposite party has been found to be not only deficient in service but indulging in unfair trade practice. It is noticed that the opposite parties have not disclosed the name of the person to whom the said vehicle was sold out and have not even produced the relevant record witnessing such sale to be in compliance of the terms and conditions of the agreement between the parties.

11. In view of our above discussion complaint filed by Balwinder Singh is partly accepted and opposite parties No. 1, 2 and 4 are directed to refund the additional amount of Rs. 1,22,300/- spent by the complainant to purchase the truck in question after availing loan to the tune of Rs. 11,00,700/-. However, no bill in support of incurring of Rs. 65,000/- for accessories has been produced, therefore a lump sum amount of Rs. 30,000/- for the purpose can be given on account of accessories. In this way, opposite parties No. 1, 2 and 4 are directed to pay Rs. 1,52,300/- to the complainant besides Rs. 5,000/- consolidated amount of compensation and litigation expenses totaling Rs. 1,57,300/- to the complainant, within the period of one month from the date of the receipt of the copy of this order, failing which the opposite parties No. 1, 2 and 4 shall pay the above mentioned amount of Rs. 1,57,300/- alongwith interest at the rate of 9% per annum from the date of the decision of this complaint till realization of the amount. However, the right of the opposite parties No. 1, 2 and 4 to recover the balance loan amount in installments shall remain intact. In case no compliance is made out of this order, complainant shall be entitled to proceed under the provisions of Sections 25 and 27 of the Consumer Protection Act. Copies of the order be sent to the parties free of costs. File be consigned to the record room.

Announced in open Forum:

Dated: 8.11.2010

Member President (Dr. H.L. Mittal) (Ashok Kumar)