By Smt. C.S. Sulekha Beevi, President,<br /> <br /> <br /> 1. Complainant purchased a bajaj CT 100 motor cycle by availing finance from opposite party. The EMI was Rs.1,338/- to be repaid from 05-11-2006 till 05-4-2009. Due to financial difficulties complainant defaulted the instalments of April, June and August, 2007. When opposite party informed that the vehicle would be seized complainant contacted the executive of the bank who instructed to pay at least two instalments to avoid repossession. Then complainant paid Rs.3,100/- towards two instalments and penal charges. Thereafter complainant tried his level best not to commit default. He paid instalments for the months, September, October and November. While so, the executive of the bank came to his house and informed that he is not paying any instalment. Complainant showed the receipts of the amounts deposited, to the executive who was convinced about the payment and went back. The mode of repayment was such that complainant would remit the amount in his Savings Bank account maintained with Bank of Baroda from where opposite party used to collect the instalment using the post dated cheques submitted to opposite party at the time of agreement. On 05-12-2007 when complainant went to his bank to remit the instalment for the month of December he found that there was a balance of Rs.1,400/- in his account. On the impression that the balance was sufficient to clear a single EMI of December he remitted only Rs.500/- on that day. On 14-12-2007 he went to attend his computer classes as usual after parking the vehicle by the side of the road. When he returned he found the vehicle was missing. Suspecting theft he went to the police station and lodged a complaint. Later he received information from opposite party that the vehicle has been repossessed for default. Complainant went to the police station and withdrew the complaint. It is submitted that if opposite party had informed about the default before repossession, as done by them earlier, complainant would have made some arrangement and remitted the defaulted amount. Complainant took leave from his work and approached opposite party to get release of the vehicle. He was asked to come on Monday. On Monday he was asked to pay the entire loan in order to get release of the vehicle. Though complainant offered to pay the defaulted instalments with charges opposite party did not accede to it. The act of opposite party in repossessing the vehicle without notice or knowledge caused loss of reputation among his friends and his working place and it caused much mental agony. Complainant alleges deficiency in service and prays for return of his vehicle along with compensation of Rs.25,000/-.<br /> <br /> 2. Opposite party filed version admitting the finance transaction with complainant. It is submitted that as per the terms and conditions of the loan if complainant fails to remit monthly instalments within due date of each month complainant is liable to pay additional financial charges. From the complaint itself it is clear that complainant has defaulted repayments. The allegation that the executive promised that if two instalments are paid the vehicle will not be repossessed and that complainant paid Rs.3,100/- to the executive is denied as false. It is also denied that the executive of opposite party told the complainant that he has not repaid a single instalment. Complainant defaulted in repaying the monthly instalments. On 10-12-2007 opposite party issued a letter to complainant requesting him to repay the amounts due within seven days. Complainant neither repaid nor did he reply. Opposite party after intimating Station House Officer of Kuttippuram Police Station peacefully and without using force took repossession of the vehicle. After taking repossession the same was informed to the Police Station. Thereafter on 24-10-07 opposite party issued a notice by registered post to complainant informing that the vehicle has been repossessed and demanding to pay the amount due to opposite party. Though complainant received this letter he did not reply. Later after complying all formalities the said vehicle was sold to one Mr. Haneefa Pulikkalathodi Rs.13,000/- which was the most possible market value. This was credited to the account of complainant. On 15-01-2008 opposite party issued registered notice to complainant informing sale of the vehicle and demanding to pay Rs.15,582/- as balance due. Though complainant received this notice he neither replied nor paid the due amount. There is no deficiency in service and complainant is not entitled to any reliefs. It is also submitted that after repossession of the vehicle on 17-12-2007 opposite party issued a notice to complainant stating that the agreement executed between parties is terminated with effect from 17-12-2007. Hence there is no consumer relationship between complainant and opposite party after 17-12-2007 and therefore complainant is not a consumer. That complaint is to be dismissed.<br /> <br /> 3. Evidence consists of the affidavit filed by the authorised agent of the complainant. Exts.A1 to A3 marked for complainant. Opposite party has filed affidavit. Exts.B1 to B10 marked for opposite party. Either side has not adduced any oral evidence.<br /> <br /> 4. Points for consideration:-<br /> (i) Whether complainant is a consumer.<br /> (ii) Whether opposite party is deficient in service.<br /> (iii) If so, reliefs and costs.<br /> <br /> 5. Point (i):-<br /> <br /> Opposite party amended the version as per orders in amendment application I.A.120/08 and incorporated the contention that after repossession of the vehicle the loan agreement was terminated by issuing notice to complainant. That the consumer relationship between parties has therefore ceased to exist after 17-12-2007 and that complainant is no more a consumer. Admittedly, finance was availed by execution of the agreement. Though the genesis of the transaction is this agreement we do not consider that the consumer relationship between parties is wholely and solely dependent upon this agreement. The definition of service under Section 2(1)(o) of the Act includes facilities in connection with banking, financing etc. We do not think that the unilateral termination of an agreement would bring an end to the consumer relationship between the parties. For these reasons we hold that complainant is a consumer. Point found in favour of complainant.<br /> <br /> <br /> <br /> 6. Point (ii):-<br /> <br /> Before entering into the main dispute between parties, we think that it is necessary to settle the issue raised by counsel for opposite party that the evidence tendered through affidavit by authorised agent of complainant is in admissible. Opposite party placed reliance upon the decision rendered by Apex Court in Janki Vashdeo Vs. IndusInd Bank 2005 KLT (2) 265 SC. This complaint was filed and conducted by the authorised agent of complainant who is none other than the brother of the complainant. An agent is defined under Rule 2(b) of the Kerala Consumer Protection Rules 1998 as amended in 2005 as under:<br /> <br /> “ 'agent' means a person duly authorised by a party to appear and to institute or file any complaint, appeal or revision or other petition or reply and to conduct the same on his behalf before the District Forum or State commission”. <br /> <br /> IN VOICE Vs. Tamil Nadu SCDRC 2003 CTJ 682 (CP) NCDRC it was held that there is no prescribed form for authorising an agent. It can be in the form of a power of attorney or in a plain paper duly attested. The complainant herein has filed the duly attested authorisation. Consumer Protection Act provides for an alternative system of consumer justice by summary adjudication. Under the Act it is for the Forum to decide whether at all cross examination is required or the matter can be disposed off on the basis of evidence by means of affidavit. Thus the procedure for adjudication is more of inquisitional type and not of the adversary nature adopted in Civil Courts. It was held by Apex Commission in Consumer Education & Research Society Vs. New India Assurance Co. Ltd., decided on 13-12-2007 R.P.No.2721/2007 that technicalities in procedure are not to be encouraged because the only procedure which is prescribed under the Act is to follow the principles of natural justice. The decision relied by counsel for opposite party is rendered with regard to discussion of the word 'acts' in order III R.1 & 2 of Civil Procedure Code. In that case, it was observed by the Apex Court that a power of attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness by mounting the box. In our view this decision is applicable to Civil courts where the adjudication is of adversary nature and the principles laid are not applicable to the inquisitive type of adjudication before a Consumer Forum. For the above reasons we hold that the evidence tendered by the authorised agent on behalf of complainant is admissible.<br /> <br /> 7. The undisputed facts of the case are (i) that complainant purchased a motor cycle with the finance provided by opposite party (ii) that the amount availed was Rs.32,900/- and the total to be repaid was Rs.40,140/- (iii) that the loan was to be repaid in EMI of Rs.1,338/- before 5th of every month starting from 05-11-2006 and ending on 05-4-2009. (iv) That the vehicle was repossessed by opposite party. The mode of repayment was such that complainant had to remit the instalments in his Savings Bank account maintained with Bank of Baroda, Tirur Branch from where opposite party could collect the amount using the post dated cheques submitted by complainant at the time of execution of loan agreement. Complainant affirms that he has repaid Rs.22,630/- to opposite party. He is aggrieved that opposite party illegally repossessed the vehicle without notice, knowledge and consent. It is also his case that sale of the vehicle by opposite party during the pendency of this case before the Forum is highly contumacious.<br /> <br /> 8. As against this opposite party contends that complainant has remitted only 15,142/- towards the loan and has committed repeated default of instalment. That opposite party issued a notice on 10-12-2007 prior to repossession and the vehicle was repossessed peacefully on 17-12-2007and that too after duly informing the concerned Police Station.<br /> <br /> 9. The following payment is contended to be made by complainant.<br /> (i) The payment as per Ext.A3 receipts Date Amount<br /> 300<br /> 06-11-2006 1,000<br /> 05-12-2006 1,000<br /> 01-01-2007 1,110<br /> 05-02-2007 1,340<br /> 05-03-2007 1,340<br /> 07—5-2007 1,340<br /> 04—7-2007 1,350<br /> 06—9-2007 1,350<br /> 05-10-2007 1,400<br /> 05-11-2007 1,500 <br /> 05-12-2007 500 - Rs.13,530<br /> (ii) EMI paid to 14th instalment )<br /> (05-12-2007 ie; 1,338 – 500 = 838 ) 838<br /> collected as per cheque No.810765) )<br /> <br /> (iii) Payment made directly to collection )<br /> agent - admitted by opposite party ) 28—9-2007 3,100 - Rs.17,468<br /> <br /> (iv) Initial contribution of complainant )<br /> towards purchase price (no docu- ) 5,000<br /> ments) )<br /> -------------<br /> 22,468<br /> ========<br /> <br /> 10. The total payment made to Savings Bank account and the amount directly paid to the collection agent would be Rs.17,468/-. Ext.B2, Ext.B10 and Ext.A2 reveals that opposite party has collected the EMI for the month of December on 06-12-2007 vide cheque No.810765. The EMI for the month of November was collected on 07-11-2007 vide cheque No.810766. Thus apparently the two EMI immediately preceding repossession has been paid. Complainant contends to have paid EMI for the month of October. This is disputed by opposite party and contends that the cheque No.810768 for the month of October was dishonoured. As per Ext.A3 series, he has deposited Rs.1,400/- in his account on 05-10-2007. In Ext.B2 the cheque No.810768 for the month of October is noted to have bounced on 05-10-2007. But there is sufficient balance of Rs.1,400/- in his account on the said date. By some mistake opposite party has considered the payment to month of October as uncleared. Opposite party ought to have taken note of this fact at least when complainant produced Ext.B2 before opposite party. The repayments evidenced by the above documents sufficiently prove that complainant has repaid three consecutive EMI immediately preceding the repossession of the vehicle. The total number of EMI to be paid prior to the repossession (ie; upto 05-12-2007) is 14 instalments. The total amount to be repaid in 14 instalments is Rs.18,732/- (14 x Rs,1,338/-). Complainant has repaid more than Rs.15,000/-. Thus complainant has repaid a major portion of the amount of instalments prior to repossession. It is vehemently clear from the documents that complainant though had committed some default due to financial difficulties was extremely diligent in repaying the instalments. There was no intention of willful evasion of payments.<br /> 11. The vehicle was repossessed by opposite party on 17-12-2007. Complainant submits that the vehicle was taken possession illegally by force without his knowledge and consent. He is also aggrieved that opposite party did not issue any notice prior to repossession. Per contra, opposite party submitted that the vehicle was repossessed peacefully after giving due notice to complainant as well as the concerned Police Station. Opposite party relies upon Ext.B3 and B4 documents. Ext.B3 is a notice purported to be send by opposite party to complainant prior to repossession. Ext.B4 is a letter purported to be issued to Kuttippuram Police station intimating intention of repossession. Complainant has specifically denied both these documents and contends that neither has he received any notice as Ext.B3 nor has any communication been issued by opposite party to Kuttippuram Police Station prior to repossession of the vehicle. Opposite party contends to have send Ext.B3 and B4 communications by courier service. Opposite party has produced the consignment notes as Ext.B3(b) and B4(b). Complainant, vehemently denied receiving any notice by courier and contended that these are fabricated. We have to say that these consignment notes do not contain the signature or seal of the courier office. These notes do not contain any description of the article send. Opposite party has specifically pleaded in the version that Ext.B7 and Ext.B9 notices were send to complainant by registered post. Along with Ext.B7 and B9 the postal receipts and acknowledgement cards are also produced by opposite party. Complainant from the very beginning has admitted receiving these registered notices but denied receiving any notice through courier. So the burden is heavy upon opposite party to prove that Ext.B3 and B4 notices were served. Even then opposite party has failed to produce PoD(Proof of delivery). Opposite party has not examined any one from the courier service as a witness to prove service of Ext.B3 and B4. It is also to be noted that in the version opposite party is totally silent as to the mode by which this important notice dated, 10-12-2007 (Ext.B3) was send. Regarding Ext.B4 notice, complainant emphatically states that no such communication was received by the Police prior to repossession. It is his case that as soon as he found the vehicle missing he approached the police station and lodged a complaint. When later he came to know that opposite party has repossessed the vehicle he withdrew the complaint. Opposite party has offered no explanation why opposite party opted to send these notices by courier when Ext.B7 and B9 were sent by registered post and why the mode of sending Ext.B3 and B4 was not specifically stated in the version. We cannot refrain from stating that it has come to our notice in other cases before us that ICICI bank is producing such vague and unfilled consignment notes of the same courier service. For these reasons we are not impelled to accept the service of Ext.B3 and B4 without proof of delivery to the consignee. We therefore, have no hesitation to conclude that opposite party has repossessed the vehicle without prior notice to complainant. In the instant case interestingly opposite party has collected the EMI on 06-12-2007 and repossessed the vehicle on 17-12-2007. Ext.B2 proves that there was a balance of Rs.1,862/- on 05-12-2007 in the saving bank account of complainant. On 06-12-2007 EMI of Rs.1,338/- was collected b y opposite party. The repossession of the vehicle by opposite party is therefore without any basis. It was argued by counsel for opposite party that the vehicle was repossessed peacefully. According to complainant the vehicle was repossessed without his knowledge and consent and in a deceitful manner when he had parked the vehicle by the side of the road to attend his computer class. Repossession without notice knowledge and consent on the back of the borrower is definitely forceful repossession. There is no element of peace in such an act of repossession. We therefore hold that opposite party has repossessed the vehicle without basis and forcefully which is illegal, and amounts to deficiency in service.<br /> 12. After repossession opposite party has issued Ext.B7 pre sale notice and Ext.B9 post sale notice by registered post. Complainant submits that on coming to know of the repossession he was willing to pay the defaulted amount if any and take release of the vehicle. But opposite party insisted that he should pay the entire loan amount. Complainant admits receiving Ext.B7. In this notice complainant has been called upon to pay Rs.28,582/- along with overdue charges @ 24% per annum and other contractual charges within seven days. The agent of complainant who appeared in person vehemently pointed out that though the complainant repeatedly requested opposite party that he was ready to pay the defaulted amount opposite party did not heed to the request. The Apex Commission has held in Tata Finance Ltd Vs. Francis Soerio 2008 CTJ 979 (CP) NCDRC that the issuance of notice demanding huge amount after illegal repossession amounts to deficiency in service. The principles laid in this decision are applicable to the facts of this case.. It was also argued on behalf of complainant that despite pendency of this case before the Forum opposite party has sold the vehicle which is a contemptful act. This argument is not without force. The complaint was filed on 19-12-2007 and notice was issued from the Forum to opposite party on 31-12-2007. Opposite party affirm to have sold the vehicle on 14-01-2008. It is seen from the acknowledgement that the notice in the instant case was received by opposite party on 07-01-2008. Opposite party functions within a distance of less than one kilometer from this Forum. The acknwloedgement card was received back in this Forum on 08-01-2008. In the complaint the prayer is for return of the vehicle. It is crystal clear that opposite party has sold the vehicle after receiving notice from the Forum which we consider to be malafide and contumelious.<br /> 13. It is submitted by opposite party that the vehicle was sold on 14-01-2008 to one Pulikathodi Haneefa for a consideration of Rs.13,000/-. It was argued on behalf of opposite party that the vehicle was sold for the highest available market prices. After sale opposite party issued Ext.B9 informing the sale of the vehicle for Rs.13,000/- and calling upon him to pay the balance of Rs.15,582/- towards final settlement of the loan. Opposite party relied upon Ext.B6 and Ext,B8 and argued that Rs.13,000/- was the maximum value that could have been fetched for the vehicle. We find it difficult to accept this argument for the simple reason that in Ext.B6 which is a valuation report the surveyor who conducted the valuation has assessed the market value of the vehicle to be Rs.12,500/- on 18-12-2007. The Surveyor has added in his note that this value for the vehicle is without original documents sale letter and that if the vehicle is sold by original owner, with original documents and sale letter it may fetch better value. The surveyor has not noted any defects to the vehicle. The vehicle was purchased by complainant on 05-11-2006 and repossessed by opposite party on 17-12-2006 and sold on 14-01-2008. A brand new vehicle without major repairs or defects and which was sufficiently in good working condition ought to have fetched better value. Opposite party did not inform the complainant the date of the auction. Complainant submitted that if the vehicle was sold for such nominal price he would have paid Rs.13,000/- and bought back the vehicle. Having knowledge about the dispute it was obligatory on the part of opposite party to inform the auction to the complainant. The vehicle which is just a year old is sold for less than half the price. Hence the sale as well as the sale consideration in our view is unjustifiable. The act of opposite party, needless to say is highly malafide and lacks transparency. Opposite party could have obtained leave of the Forum prior to sale of the vehicle. We have to state that the claim of Rs.15,582 in Ext.B9 is unjustifiable, because after repossession for nominal default, such payment would result in double enrichment to opposite party. We hold that complainant is not liable to pay this amount or any other amount to opposite party upon this transaction.<br /> 14. Before parting with the discussion on this point we think that it is necessary to express our opinion regarding the nature and format of Ext.B1 which is the photo copy of the loan agreement. Initially a photo copy of the standard terms and conditions of this agreement which is Ext.B1(b) was produced before us. The terms and conditions running into pages was in such fine print that nothing could be read or deciphered by the Forum. We directed the counsel for opposite party to produce an enlarged print of the terms and conditions and this is Ext.B1(a). It is candid that the agreement signed by the complainant is in such fine print which makes it totally impossible for the borrower to read and understand. Apparently the complainant has signed the agreement as instructed by opposite party and without reading or understanding it. The method adopted by opposite party in advancing loan by making the borrowers sign in agreements which are in such fine print and later enforcing these terms and conditions is nothing but unfair trade practice. From the totality of facts, evidence and materials placed before us the acts of opposite party in forcefully repossessing the vehicle without any notice to complainant and that too when complainant has remitted the immediately preceding instalments regularly, selling the vehicle at unjustifiably low price without notice to complainant especially when the complaint is pending before the Forum amounts to gross deficiency in service. We find opposite party deficient in service.<br /> 15. Point (iii):-<br /> Complainant claims for return of his vehicle and for compensation of Rs.25,000/- towards hardships and mental agony suffered by him. The vehicle having been sold already the prayer for return of the vehicle has become infructuous. Complainant is definitely entitled to be compensated for the loss of his vehicle. The loan availed was Rs.32,900/- and complainant contends to have contributed Rs.5,000/- initially. He has repaid almost half of the loan availed. The vehicle was in good condition and was used only for about a year. Taking into consideration the depreciation we are of the view that an amount of Rs.22,000/- as compensation for the loss of vehicle and deficiency meted by complainant would be sufficient compensation to the complainant. The mental agony and hardships suffered by him also is to be compensated. It was submitted that he felt highly humiliated and defamed before his friends and near ones when the vehicle was repossessed without his knoweldge on the false pretext of default. We hold that an amount of Rs.2,500/- towards mental agony and hardships together with cost of Rs.1,500/- would meet the ends of justice.<br /> 16. In the result we order opposite party to pay Rs.22,000/- (Rupees Twenty two thousand only) to complainant as compensation for deficiency in service and loss of the vehicle and compensation of Rs.2,500/- (Rupees Two thousand five hundred only) towards mental agony and hardships together with cost of Rs.1,500/- (Rupees one thousand five hundred only) within one month from the date of receipt of copy of this order. We also order opposite party to stop the practice of making the borrowers sign in loan agreements which are in fine print making it impossible for the borrower to read and understand the terms and conditions.<br /> Dated this 25th day of November, 2008.<br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> MOHAMMED MUSTAFA KOOTHRADAN, Sd/-<br /> MEMBER E. AYISHAKUTTY, MEMBER<br /> <br /> APPENDIX<br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 to A3<br /> Ext.A1 : Photo copy of the statement of remittance details regarding loan<br /> by complainant to opposite party. <br /> Ext.A2 : Photo copy of the extract of accounts statement dated, 15-12-2007<br /> for the period from 05-11-2006. <br /> Ext.A3 : Photo copy of the receipts (12 Nos.) from Bank of Baroda<br /> to complainant.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1 to B10<br /> Ext.B1(a) : Photo copy of the enlarged print of terms and conditions of agreement.<br /> Ext.B1(b) : Photo copy of the standard terms and conditions of agreement.<br /> Ext.B2 : Photo copy of the bank account No.20015125 at Bank of <br /> Baroda in the name of complainant.<br /> Ext.B3 : Loan Recall Notice dated, 10-12-2007 send by opposite party to <br /> complainant.<br /> Ext.B4 : Information about possession dated, 10-12-07 send by opposite party<br /> to Station House Office, Kuttippuram Police Station. <br /> Ext.B5 : Photo copy of the letter dated, 18-12-2007 send by opposite party<br /> to Station House Office, Kuttippuram Police Station. <br /> Ext.B6 : Valuation report dated, 18-12-2007 prepared by Ranjish Puthukkudi,<br /> Insurance Surveyor, Loss Assessor, Valuer & Engineer.<br /> Ext.B7 : Photo copy of the Pre Sale notice dated, 18-12-2007 send by opposite<br /> party to complainant.<br /> Ext.B8 : Certified true extract of computer print out of accounts statement dated, <br /> 10-3-2008 for the period from 05-11-2006. <br /> Ext.B9 : Photo copy of the Post Sale notice dated, 15-01-2008 send by opposite<br /> party to complainant.<br /> Ext.B10 : True photostat copy of the accounts statement dated, 19-12-2007 for the <br /> period from 05-11-2006.<br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> MOHAMMED MUSTAFA KOOTHRADAN, Sd/-<br /> MEMBER E. AYISHAKUTTY, MEMBER