Karnataka

Bidar

CC/20/2016

Sharnappa s/o Jeetappa - Complainant(s)

Versus

Indian Bank - Opp.Party(s)

B.S.Balade Advocate

08 May 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                 C.C.No. 20/2016

 

                                                                                                  Date of filing : 14/03/2016

 

                                                                                             Date of disposal : 08/05/2017

 

 

P R E S E N T:-                    (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                              (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                              Member.

 

                                   

 

                                               

COMPLAINANT/S:          Sharanappa, S/o Jeetappa,

                                          Age :major, Occ: Business,

                                             R/o Yarnalli, Tq. & Dist. Bidar.

                                              

 

 

                                          (By Shri. B.S. Balade, Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-                   The Branch Manager,

                                              Indian Bank,

                                                 Branch at H.No. 8-9-214, Ist Floor,

                                                 Udgir road, Sindol Tyres Building,

                                                 Opp. Akkamahadevi College,

                                                 Bidar.

                               

                                           (By Shri. K.Baburao, Advocate )   

 

                                                

::   J UD G M E N T  : :

 

 

By Shri. Jagannath Prasad Udgata, President.

 

              The complainant has approached this forum u/s. 12 of the C.P.Act, 1986 against the opponents.  The gist of the case is as under.  

 

2                     The complainant is native of village Yarnalli, Tq.& Dist.Bidar.  The complainant has availed Car loan of Rs. 1,59,822/- and  purchased a Car bearing no. KA-38/6226, by executing  hypothecation  agreement  from the O.P. bank.  The complainant avers that, the O.P.’s   duty bound to render services so long in the process of recovering the loan amount with accrued interest.   The O.P. has not given sufficient time to the complainant to repay the loan amount.  The O.P. on 09/04/2014 abruptly had seized the vehicle of the complainant. Hence, complainant filed an application for one time settlement of all outstanding dues.   The O.P. never responded to the officer.  The O.P. after seizing the vehicle, got the vehicle burnt while it was parked in the premises of the seizing agency.   Thereafter the seizing agency lodged the complaint with Gandhi Gunj P.S., Bidar and the Police issued FIR in Crime  no. 234/20015 on 29/11/2015.  The  vehicle was duly insured and the validity of such insurance of the said vehicle was valid till 19/04/2014.  Due to the seizer of vehicle,  the complainant  could not renewed the vehicle within the stipulated time.  Due to non renewal of the vehicle  insurance the complainant  could not claim the compensation from the Insurance Company.  Thus the O.P. has committed unfair trade practice in not accepting the offer of one time settlement in normal and formal manner and seizing of the vehicle of the complainant.  Hence complainant sustained loss @ per day in come of Rs. 1,200/- and the complainant suffered mentally and  financially and claims loss to the tune of Rs.6,00,000/-.  Hence the complainant before this Forum.

 

 

3.              After receipt of the Court’s notice, the  O.P. has appeared before this Forum, and filed written version.  The O.P. stated that the complaint is misconceived both in law and on facts, and it is not maintainable since there is no service sought by the complainant from the O.P. bank and there is no specific allegations against the O.P. bank regarding the alleged deficiency of service which is mandatory for filing the complaint.  The complainant is not ‘Consumer’ as defined under the Act.  He has not hired the services of the bank on any consideration paid or to be paid.  When there is no relation between the parties, the complaint in the present form is not maintainable.  It is evident that the complainant is claiming relief in respect of commercial transaction which is beyond the purview of Consumer Protection Act.   The O.P. has not disputed that the complainant availed loan of Rs. 1,59,882/- on 31/03/2011 for purchase of Car and purchased the Indica Car bearing Regn.No.KA 38/6226 with the bank.  This loan was sanctioned on the recommendation of Karnataka Tourism Department and before disbursing the loan, the bank had explained the terms and conditions and  Rules of bank on accepting the same only the complainant hypothecated the Car and executed documents.

 

4.                  In reply to para no.2 of the complaint, the O.P. bank denies the allegation of the complainant that after sanctioning the loan bank has not given him sufficient opportunity to repay the amount.  In fact after purchase of the Car the complainant got huge benefit, but he intentionally and deliberately failed to pay the loan instalments.  The O.P. bank has given sufficient opportunity to the complainant for repayment of loan instalments, but he did not pay any heed, hence the O.P. bank has seized the hypothecated Car through seizure Agency on 09/04/2014.  His contention that due to seizure of the Car, he has sustained loss of income of  Rs.1,200/- per day, it shows that the matter involved is commercial in nature, which is beyond the scope of Consumer Protection Act.  It is false to say that the complainant approached the bank for one time settlement.  In fact, after availing the loan and getting benefit, he never approached the bank either for repayment of loan or one time settlement.  It is true that the seized Car is burnt by some miscreants while it was in the custody of seizure agency, relating to which; case in crime No. 234/2015 is registered in Gunj Police Station Bidar.  The contention of the complainant that the O.P. bank ought to have got renewed the policy to claim the amount from insurer is not correct.  The complainant intentionally and deliberately did not hand over the document to the seizure agency, due to which the policy could not be renewed.  The further contention of the complainant that the O.P. bank adopted unfair trade practice in not recovering the dues in normal course.  In fact the O.P. bank has given sufficient opportunity to the complainant for repayment of amount due, but the complainant did not come forward and now he is making such false allegation of unfair trade practice.  The claim o the complainant of compensation of Rs. 6.00 lakhs is totally wrong and illegal hence the complaint may be dismissed with costs.

 

5.              The parties have produced documents as described at the end of this order have led their respective evidence.  They have been heard at length considering which the following points arise for our consideration.

          1. Does the O.P. Bank prove that, the complainant is not a  

             consumer and hence cannot seek relief from the Forum?

 

   2. Does the complainant prove that, there has been a deficiency      

       of service in the part of the Opponents?

 

1.  

3.  What order?

 

6.              Our answers to the points stated above are as follows:-

 

1.   In the negative.

          2.    In the affirmative.

2.  As per the final order, owing to the following:

 

                                                                                                      

                                                                                             

 :: REASONS ::

 

7.  Point No.1.   The O.P. has raised a hue and cry that, the complainant claiming a loss of Rs. 1,200/- per day as income was using the vehicle for commercial purpose and hence is precluded to approach this Forum.  In the versions, the bank also high lights that, ( para 5) the loan was sanctioned apropos to the recommendation of the Tourism Department and was used as a Taxi.  So ipsofacto it means the complainant was plying the vehicle for eking out his livelihood and hence the case comes under the explanation of section 2(1) (d) of the C.P.Act, 1986.  Secondly, the definitions of section 2(1) (o) of the C.P.Act, 1986, interalia includes services like financing and banking, and in the instant case, the Bank having financed the procurement of the vehicle cannot wriggle out from it’s status of service provider and it’s defence on that aspect is hollow and baseless.  Hence we answer this point accordingly.                

 

8. Point No.2:-   The bank in it’s versions had admitted the seizure of the vehicle on 09/04/2014 through it’s seizing agency and the follow up parking of the same at the seizing agency’s premises.  It is no where stated by the Bank, before effecting seizure, any notice was served upon the complainant.  The Hon’ble Apex Court in the case of I.C.IC.I Bank V/s Prakash Kaur, reported in 2001(1) S.C.C. 481, has been pleased to hold as follows:-

                       “ Practice of hiring recovery agents who are musclemen is deprecated and needs to be discouraged”.

 

                The ratio of the Supreme Court was once again reiterated in the case- Citicorp Maruthi Finance Ltd. V/s Vijayalaxmi reported in 2012 (1) S.C.C. I, and even the National Commission following the ratio of S.C. in the case of M/s Sundaram Finance Ltd V/s Sh. Atul Kumar, reported in 2014 (4) C.P.R. 724 ( N.C.) has been pleased to hold as follows:-

 

                “ Musclemen cannot be allowed to interfere with peace of society and vehicle cannot be possessed without intervention of the Court”.

 

9.              That apart, when the Bank got the seizure effected without notice on 09/04/2014 and took possession of the vehicle, morally, legally, rationally it was incumbent upon the bank to safeguard the object.  In this case, the bank knowingly or unknowingly, deliberately or not has failed to upkeep the vehicle seized from the custody of the complainant, which itself is not only deficiency of service or unethical trade practice but also a mighty criminal breach of trust and hence we answer the point no.2 in the affirmative.

 

10. Point No.3:-    Brooding over to assess the loss sustained by the complainant on account of seizure of the vehicle illegally, albeit he has claimed an in come loss of Rs. 1,200/- per day, no material has been laid before us substantiating such a claim.  Hence, we negate such assertion.  However, in Ex.P.5 ( Insurance Certificate) we observe  the I.D.V. of the vehicle was declared by the complainant at Rs. 2,40,000/- as on 20/04/2013.  The seizure having taken place on 09/04/2014, the value of the vehicle, allowing 10% depreciation would work out to be Rs. 2,16,000/- and this is amount to be made good by the O.P. Bank and therefore, we proceed to pass the following:

 

:: ORDER ::

 

   

       The complaint is allowed in part.

 

1.  The O.P. Bank is directed to reimburse a sum of Rs. 2,16,000/- along with interest @ 12% p.a. calculated from the date of seizure i.e. 09/04/2014, till the date of realisation.

 

2. The O.P. is further directed to pay a sum of Rs.10,000/- as compensation towards the mental agony undergone by the complainant together with litigation expenses of Rs. 5,000/-.

 

 

 

           d)  Four weeks time is granted to comply the order. 

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 08^th  day of  May-2017 )

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                            

 

 

 

Documents produced by the complainant

1. Ex.P.1- Copy of Registration Certificate.  
2. Ex.P.2-Motor Vehicles Taxation Card.
3. Ex.P3- Copy of Authorisation ,dt. 08/11/2013.   
4. Ex.P.4-Copy of Permit, dt. 10/05/2011.
5. Ex.P.5- Original Insurance Certificate.  
6. Ex.P.6- Copies of Bank statement (04 sheets )
7. Ex.P.7-Letter addressed to The Manager Indian Bank by the complainant.
8. Ex.P.8- Customer copy of vehicle seizure.
9. Ex.P.9- Copy of legal notice, dt. 18/01/2016.
10. Ex.P.10- Original reply to the legal notice, dt. 30/01/2016.
11. Ex.P.11 to P.28 Challans of Indian Bank. ( 18 Challans )

 

 Document produced by the Opponent.

 

1. Ex.R.1 – On Demand Promissory Note
2. Ex.R.2-  Copy of Agreement of Hypothecation of Movables.
3.  Ex.R.3- Copy of E- Stamp.
4. Ex.R.4- Letter addressed to Sri. Sharnappa by Indian Bank,

dt .06/12/2013

1. Ex.R.5  Acknowledgement Card    
2. Ex.R.6. Letter addressed to Sri. Sharnappa by Indian Bank,dt.17/02/2014.
3. Ex.R.7- Letter addressed to Sri. Sharnappa by Indian Bank,dt.19/08/2014.
4. Ex.R.8- Letter addressed to Sri. Sharnappa by Indian Bank, dt.03/04/2014.
5. ExR.9- Copy of F.I.R.
6. Ex.R.10- Bank statement of account (04 sheets )
7. Ex.R.11- Bank statement of account (08 sheets )
8. Ex.R.12- Bank statement of account (02 sheets )

 

 

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.

 

mv.