STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.

APPEAL NO.251 OF 2009

1.      ICICI Bank Limited, SCO No.151-152, Sector 9, Madhya Marg, Chandigarh through its Manager.

2.      The Collector Manager, ICICI Bank Limited, SCO No.151-152, Sector 9, Madhya Marg, Chandigarh.

                                                ………Appellants.

Versus

1.      Sh. Inderjit Dhiman son of Sh. Babu Ram, 94, Phase 7, Mohali.

2.      GE Countrywide Consumer Finance Services Limited, SCO No.72-73, Sector 8, Chandigarh.

…Respondents.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL (RETD.), PRESIDENT.

HON’BLE MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

                        HON’BLE MRS. NEENA SANDHU, MEMBER.

Argued By:            Sh. Sandeep Suri, Advocate for the appellants.

                        Sh. P. S. Sarna, Advocate for respondent No.1.

                        Respondent No.2 already exparte.

MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

1.                     This is an appeal filed by OPs No.1 and 2 against the order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 17.10.2008 passed in complaint case No.306 of 2008 : Sh. Inderjit Dhiman Vs.  ICICI Bank Limited and others.

2.                     Briefly stated the case of the complainant is that she got financed his second hand Indica car from OP No.3 – G.E. Countrywide for a sum of Rs.2,25,000/- out of which Rs.1,65,000/- was taken as loan whereas the remaining amount of Rs.60,000/- was paid to OPs in advance on 16.4.2004. It was averred by the complainant that he was to pay monthly installment of Rs.4,750/- to OP No.3 w.e.f. 7.5.2004 till 7.3.2008. It was next averred that when the complainant had paid 14 installments, OPs No.1 and 2 approached him through their executive in the month of May 2005 and assured that they would clear his entire loan amount with OP No.3 by opening his car O.D. Account with their Bank for Rs.1,50,000/-.  As per the complainant, they further told him that he would not had to pay any amount to OP No.3 and they will themselves clear his loan account with OP No.3 and would also get NOC and only thereafter, the complainant would start repaying the amount. It was also told to the complainant that in case of any default on the part of the complainant, he would have to pay interest thereupon till actual payment. On this assurance, the complainant paid OPsNo.1 and 2 an amount of Rs.1,500/- as processing feet etc. as well as handed over the registration certificate of the said car and on 26.7.2005, OPs No.1 and 2 gave him a draft of Rs.1,25,239.00. It was next averred that when the complainant approached OP No.3 with this amount of Rs.1,25,239/- to make full and final payment of the due amount, he was shocked to see that apart from this amount, OP No.3 asked him to also deposit an amount of Rs.19,500/- more. When, this fact was informed to OPs  No.1 and 2 by the complainant, they told the complainant to deposit this amount of Rs.19,500/- from his own pocket , which amount was assured to be adjusted in his car O.D. Account by OPs No.1 & 2. The case of the complainant is that OP No.3 did not issue any NOC rather asked the complainant to pay further installment and he was made to deposit Rs.10,000/- with OPs No.1 & 2 contrary to their assurance that they would start charging him only after issuance of NOC by OP No.3. Subsequently, officials of OPs No.1 & 2 forcibly entered the house of complainant in his absence on 29.3.2006 at 9:00 pm and illegally took away his car without his knowledge or consent. Thereafter, complainant served a legal notice dated 21.8.2006 asking them to return the vehicle and further to issue NOC and not to charge any interest till NOC issued but to no avail. Alleging forcible repossession of her car as deficiency in service and unfair trade practice on the part of OPs, the complainant had filed complaint before the learned District Forum.

3.                     The version of OPs No.1 & 2 is that they had rightly issued a demand draft of Rs.1,25,239/- in favour of OP No.3 as this was the only amount which was to be required to pay for the purpose of clearance of loan account of the complainant with OP No.3. It was next stated that once the finance facility had been used by the Complainant he was liable to pay interest on the same. These OPs next stated that as per terms and conditions of finance facility, complainant was to pay a minimum amount of 5% of the outstanding including interest on monthly basis which he failed to do. These OPs have denied averment regarding obtaining of NOC from OP No.3. They have also denied the receipt of any processing fee of Rs.1500/- from the complainant. The case of OPs No.1 & 2 is that the complainant had provided  the RC of the vehicle with the promise that he shall provide NOC in order to transfer the hypothecation in favour of their bank but he failed to do so. As regards deposit of Rs.19500/- it is stated by these OPs that they were not responsible for the same as it was done by the complainant at his own. It is admitted by OPs No.1 & 2 that they had taken the possession of the car as per terms and conditions of the agreement but had denied the use of any force or coercion in repossessing the car. As per these OPs they were always ready and willing to return the vehicle of the complainant subject to clearing of all outstanding dues by the complainant as on 3.6.2006 which he refused to pay. It is stated that on failure of the complainant to pay the dues, OPs No.1 & 2 sold his vehicle on 17.5.2006 for a sum of Rs.1,05,000/- only to the highest bidder after inviting bids but still an amount of Rs.33,720/- are due towards the complainant as on 3.6.2006 plus interest. Pleading no deficiency in service or any unfair trade practice on their part, these OPs prayed for dismissal of the complaint.

4.                     The learned District Forum in its analysis of the complaint has recorded in the impugned order that from perusal of Annexure P-13 it was clear to the learned District Forum that the vehicle was not voluntarily surrendered by the complainant but it was case of theft because Annexure P-13 did not bear his signatures and there was no mention on this document that he refused to sign. It further observed that the OP Bank failed to serve any notice on the complainant before taking possession of his car even in Annexure P-13 does not mention the place of surrender and thus it was proved before the learned District Forum that the story as regards voluntarily surrender of the vehicle by the complainant as propounded by OPs No.1 & 2 was a false story. The learned District forum was further of the viewed that before selling the vehicle in question OP Bank did not get its value assessed from any valuer and they also did not issue any notice for the sale of the said vehicle to the complainant. As per the learned District Forum no opportunity was granted to the complainant to participate in the alleged auction, which as per the learned District Forum, did not appear to had been held at all. The learned District Forum also referred to the case of Magma Leasing Limited Vs. Bharat Singh, 2007  (1) CLT 565 wherein it was held that the experience shows that one or two years old vehicles are sold at half or little more value to the known people or friends or for any other consideration. The learned District Forum  also did not accept the contention of learned counsel for OP Bank that sale price should be ordered to be adjusted on 17.5.2006, the date on which the vehicle was auction. In view of the learned District Forum the adjustment of loan amount was to be taken from 29.3.2006 when the OP Bank took forcible repossession of the car and not from arbitrary date i.e. 17.5.2006 when the vehicle was auctioned. Holding all the OPs deficient in service, the learned  District Forum allowed the complaint with the following directions:-

“(a)      OP No.1 & 2 shall pay a sum of Rs.2,00,000/- (Rupees Two Lacs only) for committing theft of the vehicle on 29.3.2006.

(b)       OP No.1 & 2 shall adjust the amount of Rs.,1,85,000/- against the loan amount due from the complainant w.e.f. 29.3.2006.

( c)      OP No.3 shall forthwith issue N.O.C. regarding the loan account of the vehicle in question and shall also pay Rs.25,000/- to the complainant as compensation.

(d)              OPs No. 1 to 3 shall pay Rs.5000/- as cost of litigation jointly & severally.

(e)              The OP No.1 & 2 shall over-haul the account of the complainant in accordance with above directions and shall pay the excess amount to the complainant within 30 days from the date of receipt of copy of this order, failing which the OPs shall be liable to pay the same alongwith penal interest @12% per annum thereon since the filing of complaint i.e. 20.3.2008 till realization.”

5.                     Aggrieved by the said order of learned District Forum, OPs have filed the present appeal. The appeal having been taken on board, notice was sent to the respondent and record of complaint case was summoned from the District Forum. Sh. Sandeep Suri, Advocate appeared on behalf of the appellants/OPs No.1 and 2 whereas Sh. P. S. Sarna, Advocate represented the OPs. None appeared on behalf of respondent No.2 (OP No.3), who was also proceeded exparte before the learned District Forum.

6.                     Sh. Sandeep Suri, Advocate learned counsel for the appellants/OPs No.1 and 2 submitted that IN Para No.8 of the complaint, the complainant had alleged forcible repossession of the car but the complainant has not placed on record any evidence whatsoever to prove his contention of forcible repossession. The learned counsel further submitted that in fact, the vehicle had been voluntarily surrendered by the complainant and he has only made up a false story regarding forcible repossession of the vehicle by OPs No.1 and 2. As regards the procurement of NOC, he submitted that OP No.3 did not give the NOC and there was no fault in this regard of appellants/OPs No.1 and 2. The learned counsel, however, admitted to the payment of Rs.10,000/- made by the complainant to the OP Bank but he also clarified that the complainant was also required to pay interest on his over draft facility w.e.f. July 2006 to March 2007 @Rs.5000/- per month but he paid only a sum of Rs.10,000/-, which amounted to only two installments. He thereafter referred to Page No.36 to prove his contention that the vehicle had been voluntarily surrendered by the complainant. Page No.36 of the appeal paper book is a printed form of the Bank giving general information of the asset, which had been repossessed. He submitted that the vehicle had been repossessed from the complainant at 7:30 PM and a proper inventory for the same had also been made. However, the complainant refused to sign this document. The next submission of learned counsel was that even though admittedly the IDV of the car at the time of getting the same insured had been recorded as Rs.1,75,000/-, the learned District Forum in Para No.10 of the order had assumed this price to be Rs.2,50,000/- and after deducting 20% from this amount, it held OPs No.1 and 2 liable to pay the complainant a sum of Rs.1,85,000/-. He pointed out that even this amount was Rs.10,000/- more than the IDV of the car at the time of its insurance. He reiterated that the car had never been forcibly repossessed as the same had been voluntarily surrendered by the complainant and therefore, prayed that the impugned order was liable to be set aside. He, therefore, prayed that the appeal be allowed and the impugned order be set aside.

7.                     Sh. P. S. Sarna, Advocate learned counsel for respondent No.1 (complainant) submitted that the order of learned District Forum was detailed, well reasoned and justified and the same should be upheld.

8.                     We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties. In this appeal, the issues to be decided qua the appellants are that whether the vehicle had been repossessed forcibly or not? and Has the account of the complainant been properly cleared by OPs No.1 and 2 after the sale of the car?

9.                     Coming to the first issue with regard to the repossession of the car, it is the case of the complainant that the car had been forcibly repossessed at 9 PM on 29.3.2006 from his house when the complainant was not available whereas as per the appellants, the car had been voluntarily surrendered by the complainant and a proper inventory for the same had been made. However, the complainant had refused to sign the said inventory and as per that the vehicle had been repossessed at 7:30 PM. A critical perusal of this document i.e. General Information Assets at Page 36 of appeal paper book, brings out that the place from where the asset has been repossessed has not been indicated. Further, the time of repossession has been stated to be 7:30 PM and under the column “Signature of the person surrendering the asset”, it has been stated “Refused to sign”. This document has only been signed by a representative of the possession agency of some one with the name “A. Singh”. There is, however, no independent evidence to corroborate that the complainant had refused to sign this document. There is also no affidavit of the collector of the vehicle confirming this contention that the complainant had refused to sign. Furthermore, there is no averment that this document had been filled by the complainant. In the face of categoric denial of the complainant that he was not present at the time of forcible repossession of the car from his house, the contention of OPs No.1 and 2 that the complainant had refused to sign this document is not believable particularly when it is the case of OPs No.1 and 2 that the complainant had voluntarily surrendered the car. If that was the case, no reason has been indicated as to why the complainant had thereafter refused to sign the inventory document. The appellants have also not got this endorsement “Refused to sign” authenticated by any other independent witness. In view of the foregoing circumstances, we have no reason not to accept the allegation of the complainant that the vehicle in question had been repossessed forcibly in his absence from his house. Thus, it is clearly a case of forcible repossession of the asset, however, we do not agree with the observation of the learned District Forum that it is a case of theft on the part of OPs No.1 and 2. The Appellants are clearly guilty of unfair trade practice and therefore, liable to compensate the complainant for this unethical conduct of theirs.

10.                   Coming to the second issue with regard to clearing of the account of the complainant, the contention of appellants is that the learned District Forum has erred in taking the value of the car as Rs.2,25,000/- at the time of its purchase and after application of depreciation clause, having come to the conclusion, that the vehicle was worth Rs.1,85,000/- at the time of repossession whereas the IDV of the car in the insurance document had been indicated as Rs.1,75,000/- by the Complainant himself. In this context, the more authentic document to go by is the insurance policy of the car, as per which, the IDV has been indicated to be Rs.1,75,000/- and thus, it should be this value, which should form the basis of the final settlement of the OD Account of the complainant and not Rs.1,85,000/- as calculated by the learned District Forum and therefore, to this extent, the impugned order needs to be modified.

11.                   Consequently, the appeal filed by OPs No.1 and 2 is partly allowed and the impugned order qua OPs No.1 and 2 i.e. the appellants is modified to read as under: -

“(a) OPs No.1 and 2 shall pay a sum of Rs.2,00,000/- (Rupees Two Lac Only) for forcible repossession of the vehicle on 29.3.2006;

(b) OPs No.1 and 2 shall adjust the amount of Rs.1,75,000/- instead of Rs.1,85,000/- against the loan amount due from the complainant w.e.f. 29.3.2006.”

12.                   Subject to the above modifications, the rest of the impugned order is upheld.

13.                   Copies of this order be sent to the parties free of charge.

Pronounced.

13^th May 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[MAJ. GEN. S. P. KAPOOR (RETD.)]

MEMBER

Sd/-

[MRS. NEENA SANDHU]

MEMBER

Ad/-

APPEAL NO.251 OF 2009

Argued By:            Sh. Sandeep Suri, Advocate for the appellants.

                        Sh. P. S. Sarna, Advocate for respondent No.1.

                        Respondent No.2 already exparte.

                                                …..

                        Vide our detailed order of even date recorded separately, this appeal filed by OPs No.1 and 2 has been partly allowed.