BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.380 of 2015
Date of institution: 03.08.2015
Date of Decision: 16.06.2016
Maya Devi wife of Kirpa Shankar resident of # 186 L, B S Colony, Sector 56, Chandigarh.
……..Complainant
Versus
1. IndusInd Bank, Consumer Finance Division, SCO No.22 to 24, Phase 3B2, Mohali through its Manager/authorised person.
2. Naresh, employee/Executive of IndusInd Bank, Consumer Finance Division, SCO No.22 to 24, Phase 3B2, Mohali having Mobile No.8288039394.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Kulwinder Singh, counsel for the complainant.
Shri Vishal Kaushal, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) handover the vehicle to her immediately.
(b) to pay her Rs.1,00,000/- for physical harassment and mental agony etc.
(c) pay her Rs.50,000/- as compensation for not plying the vehicle on road.
(d) pay her Rs.10,000/- taken from the complainant without issuance of any receipt.
(e) to pay her Rs.21,000/- as costs of litigation.
The case of the complainant is that in the year 2013 she purchased a three wheeler vehicle Victory Plus D 5 +1 passenger vide invoice dated 29.06.2013 from M/s. Kay Ess Automobiles, Phase-V, Mohali. The total cost of the vehicle was Rs.1,98,500/- . The vehicle was got financed from OP No.1 for Rs.1,54,000/- which was to be repaid in monthly installments of Rs.6800/- per month of 36 installments. The complainant had been paying monthly installments to OP No.1 regularly till April, 2015. On 28.05.2015 OP No.2 came to the house of complainant alongwith 4-5 musclemen and forcibly took three wheeler from the complainant without any notice and giving receipt of the vehicle on the ground that the complainant had not deposited the installment of May, 2015. The complainant immediately approached the OP No.1 but OP No.1 advised the complainant to come after some days. Thereafter the complainant contacted the OPs many times and lastly in the 2nd week of July, 2015 when she was asked to deposit an amount of Rs.30,000/- and only then her vehicle would be released. The OPs took Rs.10,000/- from her but refused to issue any receipt and advised the complainant to come on 27.07.2015 when they would release the vehicle on receipt of Rs.20,000/-. On 27.07.2015 the complainant approached the OPs but they flatly refused to release the vehicle and told her that they have sold the same to somebody. The complainant was threatened when she asked the OPs that without her consent how they can sell the vehicle. Due to the acts of the OPs, the complainant has suffered mental agony, harassment and tension. Hence, the complainant has filed the present complaint.
2. Upon notice, the OPs appeared and filed reply in which they took preliminary objections that the complainant has concealed material facts from this Forum and the complainant has purchased and used the vehicle for commercial purpose, thus she is not consumer. On merits, they have pleaded that the complainant was to pay the installment on or before 7th day of each month. The complainant was unable to pay the installments and when the official of the OPs asked her to sign the surrender document of the vehicle, she flatly refused to sign it and she wants to retain the vehicle. The complainant has also purchased another vehicle i.e. PIAGGIOO APE bearing registration No.PB-65-X-2576 and the complainant is using both the vehicles for commercial purpose. Before sale of the vehicle, the OPs had already issued legal notice dated 16.05.2014 and when no response was received to it, the OPs sent pre sale notice to the complainant. Denying any unfair trade practice and deficiency in service on their part, the OPs have sought dismissal of the complaint.
3. Evidence of the complainant consists of her affidavit Ex.CW-1/1; affidavit Rajeshwari Ex.CW-1/2 and copies of documents Ex.C-1 to C-7.
4. Evidence of the OPs consists of affidavit of Vishal Hans, their Legal Manager Ex.OP-1/1; affidavit of Mandeep, their Collection Executive Ex.OP-1/2 and copies of documents Ex.OP-1 to OP-13 and Mark-A.
5. We have heard learned counsel for the parties and have also gone through written arguments filed by them.
6. Purchase of three wheeler by the complainant from M/s. Kay Ess Automobiles, Mohali under the Hire Purchase Agreement with duly executed with OP No.1 is not disputed. Against the loan amount of Rs.1,54,000/- the complainant has admittedly repaid Rs.1,29,000/- principal as well as interest on 30.04.2015. The monthly installment of Rs.6,800/- which was duly for the month of May, 2015 was yet to be paid when on 28.05.2015 OP No.2 forcibly took away the three wheeler in question and without any notice, consent and approval of the complainant, OP No.1 has sold off the three wheeler in order to realize the outstanding amount against the loan. The act of the OPs is, therefore, challenged by the complainant in the present complaint as an act of unfair trade practice.
7. The OPs in their written statement, as well as during the course of proceedings have admitted having received a sum of Rs.1,29,000/- as on 30.04.2015 against the outstanding loan from the complainant. The OPs have failed to show any document to prove their contention that the vehicle in question was surrendered by the complainant as the complainant has failed to repay the balance amount. Further the OPs have failed to show any notice having been sent to the complainant before repossessing the vehicle and even so much so before selling the vehicle repossessed from the complainant. The OPs have failed to show any notice of proposed date of sale to the complainant. No public notice has been given by the OPs in newspaper before selling the vehicle of the complainant though the OPs have admitted having sold the vehicle after repossession.
8. As per loan agreement, the OPs have the right to recover the loan amount and in the event of default the OPs are well within their rights to terminate the loan agreement and recover the arrears due upto the date of termination and future installments for the unexpired period besides repossessing and selling the assets financed by it. But such right is not available to the OPs before terminating the loan agreement. No where there is on record that the OPs have exercised their right of repossessing the vehicle after terminating the loan agreement. Admittedly the loan agreement is in currency on the day i.e. on 28.05.2015 when OP No.2 at the instance of OP No.1 has forcibly repossessed the vehicle and OP No.1 without following the due process at the back of the complainant has sold the repossessed the vehicle.
9. Thus from the above discussions, based on the appreciation of evidence and facts on record, the complainant has proved that the act of the OPs in repossession of the vehicle and during the currency of the loan agreement and further the sale of vehicle without following a fair, transparent process is an act of deficiency and unfair trade practice on the part of the OPs.
10. As per the OPs in their written statement as well as clarified during the course of proceedings that the vehicle in question has been sold for Rs.25,000/- and after giving the benefit of sale proceeds of Rs.25,000/- still an amount of Rs.85,800/- is outstanding against the loan account of the vehicle in question.
11. The primary objective of the OPs is to recover the loan given to the complainant and not to repossess the vehicle financed by it. Once the vehicle is repossessed, without giving such a notice to the borrower, a pre-judicious cause to the borrower as his business or profession is disrupted as he is engaged in the business and earning his livelihood by using the vehicle. Further the image and reputation of the borrower in the society is also lowered on account of abrupt, sudden and forcible seizure of the vehicle by the lenders. The seizure of vehicle without notice and further disposal of the vehicle without following the fair and reasonable due process, in our opinion is an act of deficiency in service committed by the OPs causing tremendous mental torture and stress to the complainant, who all of a sudden finds herself without the vehicle which she had purchased with the financial assistance of the OPs. Therefore, the complainant ought to get suitable compensation from the OPs.
12. The next question which arises as to what should be the fair compensation which the OPs should pay to the complainant in the facts and circumstances of the case. Admittedly the vehicle was used by the complainant for about two years before it came to be seized on 28.05.2015. The vehicle was purchased at a total cost of Rs.1,98,500/- and was sold for a consideration of Rs.25,000/- by the OPs. The complainant had contributed Rs.44,500/- from her pocket and further arranged a loan of Rs.1,54,000/- for purchase of the vehicle. Though the complainant has repaid a sum of Rs.1,29,000/- in 24 monthly equated installments of Rs.6800/- , thus against the sale consideration of Rs.1,98,500/-, the complainant has already paid the said sum when the personal contribution of Rs.44,500/- plus loan repaid Rs.1,29,000/- plus sale consideration of vehicle after repossession i.e. Rs.25,000/- are clubbed together. The complainant has also used the vehicle for about two years to earn her livelihood. Thus, the total cost of the vehicle considering the contribution, repayment made and the sale proceeds, all stands paid by the complainant. The OP nowhere is entitled to recover the outstanding loan amount of Rs.85,800/- and we permit the complainant not to pay the said amount treating the said amount is no more recoverable from the complainant as the complainant has already paid the total cost of the vehicle in question. In support of our above findings we take the support of the recent decision of Hon’ble National Commission rendered in L&T Finance Ltd. & Anr. Vs. Rampada Maity, 2016(2) CLT 343.
13. Therefore, the complaint is allowed with the following directions to the OPs:
(a) to pay to the complainant Rs.1,98,500/- (Rs. One lac ninety eight thousand five hundred only) towards the value of the vehicle in question and further not to recover the outstanding amount of Rs.85,000/- from the complainant.
(b) to pay to the complainant compensation of Rs.50,000/- (Rs. Fifty thousand only) towards mental agony, harassment etc.
(c) to pay to the complainant a sum of Rs.10,000/- (Rs. Ten thousand only) for costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
June 16, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
