BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 102 of 2015

Date of Institution: 20.2.2015

Date of Decision: 12.7.2016  

Mr.Jagtar Singh S/o Sh. Sulakhan Singh R/o Village Bhail Dhai Wala, Tehsil Khadoor Sahib, Tarn Taran

Complainant

Versus

Indusind Bank Ltd  through its Chairman/Managing Director, Principal Officer service through its Branch Office at 39, Platina Plaza, Mall Road, Amritsar through its branch manager

Opposite Party

Complaint under section 12 & 13 of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant : Sh.Deepinder Singh, Advocate

              For Opposite Party   : Sh.Aman Prasher,Adv.

Coram

Sh.S.S.Panesar, President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.S.S. Panesar, President.

1.       Jagtar Singh  has brought the instant complaint under section  12 of the Consumer Protection Act, 1986 on the allegations that complainant has got  one truck having registration No. PB-46-K-1976 financed from opposite party. The said vehicle was being used by the complainant for the self employment for earning his livelihood. The complainant, as such, is the consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant has paid all the due installments to opposite party. Opposite party on 23.11.2012 forcibly repossessed the vehicle bearing registration No. PB-46-K-1976 belonging to the complainant. The complainant was making all the due installments to the opposite party and the opposite party without issuing prior notice or any demand thereof , forcibly with the help of unscrupulous elements repossessed the vehicle belonging to the complainant. It is pertinent to mention over here that the opposite party has not issued any demand  or  any prior notice to the complainant to pay any amount due or whatever before  repossessing the said vehicle. The aforesaid act of the opposite party in forcibly repossessing the vehicle from the complainant by using muscleman and gunda elements is an act of deficiency in service and mal-practice which is not sustainable in the eyes of law. It is further stated that the complainant earlier filed a complaint on same cause of action , which was ,however, withdrawn due to some technical defect. The complaint was filed through power of attorney of the complainant and now the said defect has been removed and the complaint is being filed by the complainant  in person with the liberty to file the fresh complaint has been accorded by the District Forum. The complainant has sought the following reliefs vide instant complaint :-

(i)      Opposite party be directed to return the said vehicle having registration No. PB-46-K-1976 to the complainant or in the alternative to pay back the amount paid by the complainant alongwith interest @ 12% p.a. from the date of payment till realization.

(ii)     Compensation of Rs. 50000/- be also awarded to the complainant alongwith cost of litigation.

Hence, this complaint.

2.       Upon notice, opposite party appeared and contested the complaint by filing written statement taking certain preliminary objections therein inter alia that the present complaint is not maintainable in the present Forum. The  complainant earlier through his special attorney holder filed similar complaint on similar cause of action and trial in the said case was completely conduct, but the complaint was withdrawn by the complainant ; that the present complaint is time barred on limitation ; that complainant is residing Abroad and the present complaint has been filed under forged and fabricated signature of the complainant, hence legal action in accordance with law is liable to be taken against the person ; that the complainant does not fall under the definition of consumer . The vehicle is a commercial transport vehicle and the same is being used by the complainant for commercial activity; that the complainant is intentional and willful defaulter, hence he has no right or locus standi to file the present complaint ; that  the complainant is stopped by his act and conduct from filing the present complaint ; that complainant has not approached this Forum with clean hands and is guilty of suppression of material facts from the knowledge of this Forum ; that jurisdiction of this Forum is barred as per clause 19 and 23 of the Loan agreement duly executed by the complainant in favour of the opposite party ; that as per clause 15 of the Agreement, the opposite party has full rights to repossess the vehicle in case of willful default on the part of the complainant and the opposite party has repossessed the  same from Mr.Karamjit Singh as per clause 15 of the Loan agreement ; that complainant has  settled abroad quite earlier after taking loan from the opposite party and he has sold the vehicle illegally to Mr. Karamjit Singh to which he was having no right to  do so. Otherwise the complainant is habitual and intentional defaulter in making regular installments  to the opposite party  and till date his account is irregular. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid to prove the case, Sh.Deepinder Singh,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1, copy of order dated 18.9.2014 Ex.C-2, copy of account statement Ex.C-3, copy of repossession certificate Ex.C-4, copy of purchase bill Ex.C-5, copy of registration certificate Ex.C-6 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Sh.Aman Prashar,Adv.counsel for the opposite party tendered into evidence affidavit of Sh. Raman Kant, Manager Ex.OP1, another affidavit of Sh.Raman Kant Ex.OP2, statement of account Ex.OP3, copy of settlement dated 24.8.2015 Ex.OP4 and closed the evidence on behalf of the opposite party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       Ld. Counsel  for the opposite party has vehemently contended that vehicle in dispute was financed by the opposite party and the complainant was defaulter as per statement of account Ex.OP3. The complainant owe a sum of Rs. 7,84,899/50 paise towards the amount financed by the opposite party. The complainant was a defaulter as per clause 15 of the  loan agreement. Opposite party had full right to repossess the vehicle  in case a willful default on the part of the complainant. Opposite party has  repossessed the same from one Karamjit Singh as per clause 15 of the loan agreement. The complainant has settled Abroad quite earlier after taking loan from the opposite party and he also sold illegally the vehicle in dispute to Karamjit Singh to which he was having no right to do the same. Otherwise the complainant was habitual and intentional defaulter in making regular installments to the opposite party and till date his account is irregular.  As such the opposite party has acted within its right and repossessed the vehicle in dispute. Ld.counsel for the opposite party has further contended that the vehicle in dispute has already sold in public auction by the opposite party and at present no consumer dispute exists inter se parties. The complainant has absolutely got no right to approach the Consumer  Forum for redressal of his alleged grievance and it is contended that complaint is liable to be dismissed being meritless.

7.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the opposite party has neither issued any prior notice before repossessing the vehicle in dispute nor the opposite party has declared the complainant a defaulter. Both these requirements  were a condition precedent for  repossessing the vehicle in dispute. The act of the opposite party in repossessing the vehicle in dispute without issuing prior notice or declaring the complainant a regular defaulter is illegal and has no existence in the eyes of law. Reliance in this connection can be had on  L & T Finance Ltd. & Anr.-Petitioners Vs. Rampada Maity-Respondent 2016(2) CLT page 343 (NC) , wherein it has been laid down that in our view when a transporter finance company such as the petitioner before us, finances a vehicle and there is a default on the part of the borrower in servicing the loan taken by him, it must necessarily issue a notice to him expressing its intention to repossess the vehicle in exercise of the power conferred upon it under the loan agreement before the vehicle is actually repossessed by it. The purpose behind insisting upon such a notice being given to the borrower is to give him an opportunity to approach the financer and either bring the payment if already made by him to the knowledge of the financer or to convince the financer that it was on account of reasons beyond his control that he could not service the loan and, therefore, the default committed by him may be condoned. It is quite possible that the financer may get convinced from the circumstances so explained by the borrower and may not insist upon repossessing the vehicle, his primary objective being to recovery of loan given to the borrower and not to repossess the vehicle financed by it. If a vehicle is repossessed, without giving such a notice to the borrower, not only it has the potential to disrupt the business or profession in which the borrower is engaged using the vehicle, it may also result in his image and reputation in the society being lowered on account of the abrupt, sudden and forcible seizure of the vehicle by the financer. If a notice expressing intention to repossess the vehicle on the default of the borrower is given to him, he gets ample opportunity to prevent the proposed seizure by approaching the financer and either paying the amount which he has unable to pay alongwith appropriate interest and/or penalty on that amount or to dispose of the vehicle at his own level and repay the loan taken by him. Therefore, in all fairness, the financer must given a reasonable notice to the borrower before repossessing the vehicle financed by it and in no case the vehicle should be repossessed by use of force. In our opinion, the seizure of the vehicle in such circumstances constitutes deficiency in service causing tremendous mental torture and stress to the borrower who all of a sudden finds himself without the vehicle which he had purchased albit with the financial assistance taken from the lender. The borrower in such circumstances does not get an opportunity to arrange the requisite finances to repay the  amount which he defaulted in paying to the lender before the vehicle comes to be repossessed by the lender. The mental torture and agony would be greater when the vehicle is  repossessed in his absence. We are of the considered view that since there was a deficiency on the part of the company in rendering services to the complainant/respondent, the said company ought to pay suitable compensation to the complainant. Further reliance can be had on Mahabaleshwar Co-operative Bank Ltd.-Petitioner Vs. Vijay Kumar Eshwar Paduvani & Anr.-Respondent 1(2016) CPJ 292 (NC) wherein it has been laid down that bank did not issue any notice prior to seizure of vehicle nor did they declare complainant as defaulter- When bank statement itself shows that only an amount of Rs. 1,45,545/- due on 18.5.2005 then on what basis bank declared that an amount of Rs. 5,82,400/- is due as in June 2005 which is only one month subsequent to 18.5.2005. The Hon’ble National Commission found that deficiency in service and unfair trade practice on the part of the petitioner was established.

8.       Ratio of the judgement supra is fully applicable to the facts of the present case. From the aforesaid discussion, it transpires that opposite party in repossessing the vehicle is guilty of deficiency in service and unfair trade practice qua the complainant and the complainant as such, is entitled to repossession of the vehicle in dispute. As such opposite party is directed to re-deliver the vehicle bearing registration No. PB-46-K-1976 to the complainant. Opposite party is also directed to pay compensation to the tune of Rs. 10000/- to the complainant and cost of litigation are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of this order ; failing which, complainant shall be at liberty to get the order executed through the indulgence of this Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated: 12.7.2016                                                 

/R/