PER SHRI. S.S. PATIL - HON’BLE MEMBER :

1)This is the complaint regarding deficiency in service on the part of Opposite Parties as the Opposite Parties sold the hypothecated vehicle of the Complainant without his consent. 
 

3)The Complainant further stated that he used the said bike for some days (a vague statement by the Complainant). He also vaguely stated that he paid installments of repayment of the loan to the Opposite Party. He has not stated specifically as upto what date he paid the installments.

4)The Complainant has further stated that on 09/06/07, the above said vehicle was stolen form Girgaon Chaupati. His brother Rizwan lodged complaint of theft of the said vehicle with Gamdevi Police Station.

5)The Complainant has also submitted that the information regarding the theft of the vehicle was given to the office of Opposite Party orally. Copy of FIR was also given to the Opposite Party. After investigation, the police filed the case as ‘A’ final i.e. undetected. (The Complainant has wrongly stated that the file was finally closed on 11/06/07. Actually the FIR was of date 11/06/07).

6)The Complainant has further stated that, on 27/08/07, he also informed the R.T.O. & requested the R.T.O. not to transfer the said vehicle. The Complainant then visited the Insurance Company to lodge the claim but the Insurance Company also refused the same. From the reliable sources the Complainant came to know that the above said vehicle was seized by the Opposite Party on 09/06/07 from Girgaon Chaupati. The Complainant was informed that, the Opposite Party had seized the said vehicle because the Complainant did not repay the loan installments in time. It was also informed to the Complainant that the said vehicle was sold by the Opposite Party.

7)The Complainant has further stated that on 02/02/09, he sent a letter to Opposite Party No.1 in respect of the above facts and asked the Opposite Party clarification. However, Opposite Party did not respond to his letter. The Complainant has stated that due to the act of the Opposite Party, he has lost his vehicle, which caused him mental agony as he was under the impression that the vehicle was stolen. The Complainant has further stated that he had paid Rs.35,300/- as a down payment towards the purchase of the said vehicle. He also paid 3 EMI’s of Rs.2,035/- each i.e. he paid Rs.6,105/- regularly as a repayment of the loan obtained from the Opposite Party. But the Opposite Party miscalculated and misapplied the same and thereby spoiled his image in the bank. The entire episode caused harassment to the Complainant. Therefore, the Complainant further submitted that he is entitled to receive Rs.35,300/- + Rs.6,105/- with interest @ 18% p.a. from the date of payment and Rs.4 Lacs compensation for causing mental agony alongwith cost of the complaint.

8)The Complainant has attached the xerox copies of the following documents in support of his complaint. Duplicate receipt of Rs.35,300/- and trade certificate issued by Raj Motors, Bank Statement, FIR, ‘A’ Certificate, closing the police file, complaint to RTO Office by the Complainant, Delivery Note, letter dtd. Nil addressed to Opposite Party.

9)The complainant was admitted and the notices were served on the Opposite Parties. Opposite Parties filed their combined written statement wherein they denied the allegations of deficiency in service and unfair trade practices adopted by them.

10)The Opposite Parties have stated that the Complainant has come with false story of theft of the vehicle in order to avoid the payment of monthly installments due and payable by him. The Complainant was well aware of all the terms and conditions of the loan agreement as he has mentioned even the agreement number, the tenure of loan, interest to be paid, etc, in his complaint. Inspite of the knowledge of amount of the installments, and date on which it should be paid, the Complainant defaulted in making the payment.

11)From the contents of para 11 of written statement it appears that the said vehicle was transferred to 3^rd party but the Opposite Parties did not disclose the name of this 3^rd party.

12)The Opposite Parties have admitted that the Complainant had approached ICICI Bank Ltd. for sanction of a loan for purchase of two wheeler in 2007. An amount of Rs.58,820/- was sanctioned by the Opposite Parties. For the purchase of Bajaj make Pulsar 200CC model DTSIES M/cycle. The Complainant paid down payment of Rs.35,306/- to Raj Motors, the Dealer. For the loan, a loan cum hypothecation agreement bearing No. LTMUM 9989248 was entered into. This loan was to paid by the Complainant within a period of 36 months starting from 10/05/07 and ending on 10/06/2010. The amount of EMI being Rs.2,035/- p.m. to be paid on or before 10^th of each month. The rate of interest was fixed as 18.4% p.a.

13)The Opposite Parties have further averred that in case of delay or default on the part of Complainant, the Complainant was to pay penal charges calculated at the rate of 2% p.m. on each installment in default. It was also stated by the Opposite Parties that the Complainant was aware that in case of default, Opposite Parties were entitled to repossess the said vehicle as per agreement. It is further alleged by the Opposite Parties that, the Complainant failed to pay the installment. However, the Opposite Parties have not specifically stated the period and month for which the Complainant had defaulted in paying the installments. The Opposite Parties have specifically stated that inspite of repeated requests & reminders, the Opposite Party failed to pay installments and therefore, they asked the Complainant to surrender the vehicle. But there are no any documents to support this allegation of the Complainant that they had repeated requests and reminder sent to the Complainant. It appears that the Opposite Parties are stating in the air only without producing any cogent document in this behalf.

14)The Opposite Parties have specifically stated that that the Complainant thereafter surrendered the vehicle. Here also the Opposite Parties suppressed the fact as to when the Complainant surrendered the vehicle.

15)The Opposite Parties have further stated that they gave post sale notice and then sold the vehicle for a sum of Rs.48,500/-. Here also the Opposite Parties did not mention the date as to when they sold the vehicle.

16)The Opposite Parties have asserted that, they gave sufficient time and notice to make payment but Complainant did not pay the EMI.

17)The Opposite Parties have further stated that still they have to recover a sum of Rs.23,639/- from the Complainant.

18)The Opposite Parties have denied that the copy of the loan agreement was not given to the Complainant. In support of this statement the Opposite Parties have stated that “the Complainant has correctly stated in para 4 of the complaint the agreement number, tenure and interest amount etc. this shows that the Complainant was well aware of all the terms and conditions of the said agreement.

19)The Opposite Parties have further stated that the date of surrender and sale are almost one year after the dates alleged by the Complainant. However, the Opposite Parties have failed to mention these dates. Opposite Parties must have these dates within them but they have purposely suppressed the same.  

21)The Opposite Parties have attached the xerox copies of the following documents –

       Application for two wheeler loan, Credit facility application, unattested deed of hypothecation, irrevocable power of attorney given by the Complainant, Pre-sale notice dtd.10/07/08, Post sale notice dtd.25/08/08.

       In this respect we noted that the Opposite Parties have mentioned in the list of document, the document as information to police station regarding possession by the Opposite Parties. However, this document has not been actually attached by the Opposite Parties with their written statement with the obvious intention to suppress the date on which they repossessed the vehicle or it may be the reason that they have not informed this repossession to the police. This written statement was also accompanied with the affidavit of evidence of one Rajesh Wankhede, on the behalf of Opposite Parties.

22) Thereafter, the Complainant also filed his affidavit of evidence in which he reiterated the facts mentioned in the complaint.

23) During the proceeding the Opposite Parties sent interrogatories to the questionnaires Complainant putting some questionnaires on the points of allegations mentioned in the complaint such as, non receipt of the loan agreement payment of installments, etc. the Complainant filed reply to this application of the Opposite Parties containing interrogatories. At the outset in the reply, the Complainant has stated that filling of interrogatories is not maintainable. But it is clear that during the proceeding interrogatories are allowed and the concerned party should give relevant and appropriate replies to the relevant questions raised by the party immediately after the receipt of these interrogatories to avoid the delay in the proceedings.

24) Thereafter, the Complainant filed his answers to the parawise interrogatories. The answer to the 1st question is that the Complainant had orally asked for the copy of the loan agreement. Therefore, it is clear that the Complainant has not given any letter to the Opposite Parties asking for the loan agreement.

25) Further the Opposite Parties have asked to produce the evidence of payment of installments of repayment of the loan but instead of producing the evidence and clearly stating the dates of payment of installments, the Complainant has stated only he has attached the ECS Statement at Exh.‘B’ to his complaint. If this statement is perused there appears so many irregularities in this statement after Aug., 2007 and the Complainant has not clarified about these irregularities.

26) It is further clarified by the Complainant that the Opposite Parties never furnished any statement regarding the outstanding dues payable by the Complainant.

27) The Complainant has also replied that vehicle was sold & the outstandings have been recovered. This is the answer to the question of Opposite Parties “whether the theft of your vehicle relieves you from repayment of the loan ? ” The reply is not a correct answer to the question.

28) The Complainant also replied that on 1/09/07, he had made the payment as per Exhibit ‘B’. This is also a vague answer to the question.

29) The Complainant has also replied that the vehicle was stolen, complaint was lodged, after closing the case on in October 24, 2007, he tried to lodge insurance claim but he was told the whereabouts of his vehicle i.e. he knew, where the vehicle was i.e. he knew that the vehicle was with Opposite Parties.

30) Further the Complainant has replied that the Opposite Parties were well aware of the progress of the investigation and certificate issued by the police. He has also replied that the acknowledgement is enclosed with his complaint. However, this is the wrong statement. There is nothing attached to the complaint, showing that the Complainant has intimated the theft of the vehicle, its progress and the final closure of the complaint by the police to the Opposite Parties.

31) The Complainant has further replied that he vent to ICICI Lombard Head Office at Malad to lodge his insurance claim.

32) When a question has been put to the Complainant - as per his say the vehicle was stolen in June, 2007, Insurer refused to lodge the claim, when he knew that the vehicle was seized by the Opposite Parties and what steps he took thereafter ? the Complainant has replied that in November, 2008, he tried to meet Opposite Parties but it was not materialized and by that time the vehicle was sold by the Opposite Parties.

       In this respect the Complainant has skipped the question i.e. when the Complainant knew that the Opposite Parties have seized the vehicle 06/06/07 (actually it should be 09/06/07).

33) The Complainant has further replied that in November, 2008, he came to know from the office bearers of the Opposite Party No.1 bank that, the Opposite Parties have sold his vehicle.

34) The question was put to the Complainant that, “which of your cheques have bounced ?” The reply given was – “as per Complainant’s statement “the Complainant has again not clarified the cheques bounced. Here he was supposed to give number of the cheques against the dates on which they bounced. The Complainant has given a vague answer. Regarding the query that how this bouncing of cheques spoilt his name, the Complainant has not replied to this question but irrelevantly stated that the Opposite Parties sold his vehicle. Even realizing their mistake of selling the vehicle illegally, Opposite Parties refused him loan for another vehicle. He was black listed in their list. This is not a relevant answer to the question put to the Complainant. It was expected from him to answer the point as to how, the bouncing of cheques spoilt his name. but the Complainant did not answer or explain about the bouncing of cheques.

35) Thereafter, the Complainant filed its written argument wherein he reiterated the facts mentioned in his complaint. The Opposite Parties also filed their written argument wherein they reiterated the facts and points mentioned in their written statement.

36) We heard the Ld.Advocate for both the parties and perused the papers submitted by the m and our findings are as follows –

          The Complainant has availed the loan facility from the Opposite Parties for purchasing a motor bike. Accordingly the Opposite Parties have sanctioned the loan of Rs.58,820/- to the Complainant on 04/04/06. The loan was to be repaid in 36 installments. Each installment was of Rs.2,035/-. The Complainant was supposed make the payment from May, 2007. The Complainant paid 3 installments to the Opposite Parties. It is the allegation of the Complainant that inspite of regular payment of the installments, the Opposite Parties seized his vehicle without his knowledge on 09/06/07. In this respect we carefully scrutinized the papers submitted by the Complainant in respect of paying the installments. We found that the cheques have bounced and there is no regular payment of the installments. However, the Complainant has suppressed these facts and even in interrogatories, he has given evasive answers to the interrogatories of the Complainant.

37) The second point of dispute is, as per the Complainant, the vehicle was seized by the Opposite Parties without his knowledge but, as per the Opposite Parties, the Complainant has surrendered the vehicle. The Opposite Parties have suppressed the date on which the vehicle was surrendered. In support of their above said statement they have produced one documents signed by the Complainant wherein the description of vehicle attached was given as BAJAJ PULSAR 150. No registration number was there, there was no Engine number, No chassis number. This letter was purported to be written by the Complainant to the ICICI Bank Ltd., Bandra Kurla Complex. This document is an undated. No place was mentioned. It is only a xerox copy and it is not a proved documents. The Complainant has in his affidavit of evidence has specifically averred that “no notice of recovery was ever served upon him. He further vehemently stated that “I have never surrendered my vehicle & as I was capable to pay the loan amount. The Opposite Parties have intentionally suppressed the facts as to when the said vehicle was surrendered. In absence of any authenticated document it can not be said that the vehicle was surrendered by the Complainant to the Opposite Parties voluntarily.

38) Naturally when the installments were not paid by the Complainant regularly, the hypothecated vehicle was taken charge of. However, the Bank cannot repossess the vehicle without issuing any notice or giving intimation to the person in possession of even a hypothecated vehicle. As stated earlier, the cheques have bounced and there was no regular payment of installments of repaying loan, still the Opposite Parties have also failed to give any notice to this effect and did not call upon the Complainant to repay the loans. The Opposite Parties have attached letter dtd.10/07/08 calling upon the Complainant to pay Rs.72,139.01 but there is no acknowledgment from the Complainant. The letter does not bear any signature of the Opposite Parties. This letter also does not say that the vehicle was surrendered but it says that the “vehicle is taken into our custody.” Even this letter is not an on intimation to the Complainant before the vehicle was taken into custody. As this letter does not bear a signature of an authorized person, it cannot be said that it is an authentic letter sent by the Opposite Parties to the Complainant. Therefore, from the above facts it appears that the Opposite Parties have taken the vehicle in to their possession, without giving any intimation to the Complainant. This is a sheer deficiency in service on the part of Opposite Parties.

39) The Complainant lodged a FIR in respect of the said vehicle at Gamdevi Police Station stating that it was stolen on 09/06/07. The Opposite Party has not clarified that as to when the Complainant surrendered the vehicle. Therefore, it appears that the vehicle was taken into custody by the Opposite Parties on or about 09/06/07. From the papers it is seen that the Complainant has paid Rs.35,300/- as a down payment towards the purchase of the said vehicle and Rs.6,105/- towards payment of 3 installments (EMIs). The total payment of Rs.41,405/- was made by the Complainant for acquiring the new said Pulsar Bajaz Motorcycle. The Complainant has also stated in his complaint that he had used this vehicle for ‘some times’. The new vehicle was purchased in March, 07. The amount of Rs.6,015/- was paid towards the installments of repayment of loan. It is the contractual obligation of the Complainant towards the Opposite Parties. Therefore, when the vehicle was taken into custody, the Complainant suffered a loss of Rs.35,300/- paid by him towards the down payment for the purchase of the said vehicle and the Opposite Parties were in possession of the vehicle. As they did not inform the Complainant while taking the vehicle in their possession, and sold it without giving notice to the Complainant as stated earlier, the Complainant is entitled to get this amount of Rs.35,300/- with interest from 09/06/2007 till its payment. In our candid view, the Complainant is also entitled to for the compensation for the mental agony and physical harassments caused to him as Opposite Parties took the possession of the vehicle without his knowledge and sold it without intimation. Therefore, in view of the above observation, we pass the following order -

        a.Complaint No.180/2009 is partly allowed.

        b.Opposite Parties are jointly and/or severally liable for the deficiency in service provided to the Complainant.

        c.Opposite Parties are directed to pay jointly and/or severally Rs.35,300/- (Rs. Thirty Five Thousand Three

         Hundred Only) to the Complainant alongwith interest @ 9% p.a. from 09/06/2007 till its payment.

       d.Opposite Parties are also directed to pay jointly and/or severally Rs.5,000/- (Rs. Five Thousand Only) to the        

        Complainant as compensation for mental agony caused to the Complainant because of the deficiency in service

        on the part of Opposite Parties.

       e.Opposite Parties are directed to pay jointly and/or severally Rs.3,000/- (Rs. Three Thousand Only) to the     

        Complainant towards legal expenses of this complaint.

     f.Opposite Parties No.1 & 2 are directed to comply with the above order jointly and/or severally within 30 days

       from the receipt of this order.

     g.Certified copies of this order be furnished to the parties free of cost.