Per Mr B A Shaikh, Hon’Ble Presiding Member
1. This appeal is filed by the original opposite party, who is hereinafter referred to as the appellant. The appellant assailed the order dtd.15.02.2011, passed by District Consumer Forum, Chandrapur in consumer complaint No.124/2010, by which the complaint has been partly allowed.
2. The case of the original complainant, who is hereinafter referred to as the respondent, as set out by him in consumer complaint in brief is as under.
The respondent purchased a truck described in the complaint in the month of November, 2003 for total consideration of Rs.6.00 Lacs. The respondent obtained loan of Rs.6.00 Lac from the appellant for purchasing the said truck. The respondent repaid whole loan amount as per agreement to the appellant. The appellant did not issue “No Due Certificate” though demanded by the respondent. The respondent had gone for his treatment to Punjab State. The appellant seized that vehicle from the house of the respondent in his absence and without giving prior intimation or notice to him (respondent). Therefore, the respondent issued notice dtd.17.06.2010 through his advocate to the appellant and demanded back his vehicle. The appellant did not return that vehicle. Hence, the respondent filed a consumer complaint before the Forum below seeking direction to the appellant to return his said vehicle and to pay him compensation of Rs.50,000/- for loss caused to him and also to pay him litigation cost of Rs.2,000/-.
3. The appellant resisted that complaint by filing reply before the Forum below. The case as set out by the appellant in that reply in brief is as under.
The respondent had actually obtained loan of Rs.7.25 Lacs from the appellant on 30.03.2007 and it was to be repaid as per agreement dtd.30.03.2007 with interest @ 14.03% p.a. from 30.04.2007 till 30.12.2010 i.e. within 45 monthly instalments of Rs.24,585/- each, total amounting to Rs.11,06,325/-. The respondent did not repay that loan as per agreement and that he was in arrears of the instalments. He was unable to pay balance instalments. Hence, he voluntarily surrendered the vehicle to the appellant on 28.04.2010 and gave possession letter dtd.28.04.2010. On 30.04.2010 the appellant intimated the respondent that arrears of Rs.3,81,598/- be paid within seven days or otherwise the seized vehicle will be sold. The respondent did not clear the said arrears. Therefore, the appellant sold the said vehicle for Rs.3.65 Lacs and credited that amount to the loan account of the respondent. Still Rs.6,04,385/- are due from the respondent. The said information was also given to the respondent, but he suppressed the said information. Moreover, the loan was obtained by the respondent for commercial purpose. There is no deficiency in service on the part of the appellant. Therefore,
the appellant prayed that the complaint may be dismissed.
4. The Forum below after giving opportunity of adducing evidence to both parties, heard their respective advocates and then decided the complaint by passing impugned order. The Forum below did not agree with the defence taken by the original opposite party / appellant and after considering evidence brought on record came to the conclusion that the vehicle was not actually surrendered by the respondent and that it was seized by the appellant when actually the respondent had gone to Punjab for his treatment. The Forum below also observed in the impugned order that the appellant adopted unfair trade practice by illegally seizing the vehicle from the possession of the respondent and therefore, the Forum below directed the appellant to refund Rs.6.00 Lacs to the respondent with interest @ 6% p.a. from 10.08.2010 till its realisation by him and also to pay him compensation of Rs.25,000/- for physical & mental harassment and litigation cost of Rs.2,000/-.
5. The original opposite party thus feeling aggrieved by the said order, filed this appeal. We have heard advocate Mr J M Gandhi appearing for the appellant and advocate Mr P A Sahare appearing for the respondent. We have also called the record & proceedings of the complaint bearing No.CC/10/124 and perused the same. We have also perused the record & proceedings of the appeal.
6. The submission of the learned advocate of the appellant in brief is as under.
a. The complaint is liable to be dismissed on the sole ground that the registration certificate of the vehicle shows the owner of vehicle as Jagroop Singh Bchhatersingh Singh Sidhu, whereas the consumer complaint was filed by the complainant in the name as Jagruk Singh Bachinder Singh Sidhu.
b. The complaint is also liable to be dismissed on the ground that the appellant was joined in the complaint through Branch Manager, which is not permissible under the law.
c. There is no averment in the complaint as to how much amount of the loan was obtained by the respondent and how much of the amount he repaid and therefore, on this ground the complaint is not maintainable.
d. The respondent has not stated in the complaint the purpose for which the vehicle was purchased by him. Actually he had employed a driver for driving that vehicle. Moreover, he has also got two other vehicles. Therefore, it can be said that the vehicle was purchased by him for commercial purpose and hence on this ground also the complaint is not maintainable.
e. The complaint is barred by limitation as the vehicle was registered in the name of Jagrup Singh Bachattar Singh Sidhu on 04.04.2006 and the consumer complaint was filed on 10.08.2010.
f. The respondent filed false documents in support of his case, which cannot be relied on.
g. There is no document showing as to how the respondent assessed the loss and therefore, on this ground also the
complaint is liable to be dismissed.
h. The respondent himself surrendered the vehicle to the appellant on 28.04.2010 by executing possession receipt in favour of the appellant and this fact was not considered properly by the Forum below.
e. The complicated questions of law & facts are involved in the complaint and the Forum, therefore, cannot entertain the complaint and it is the Civil Court, which can only decide the dispute.
f. The respondent did not repay the entire loan and as he was unable to repay the balance loan, he surrendered the vehicle.
g. The Forum below erred in holding that the transaction is doubtful in as much as the burden was lying on the respondent only to establish his case and he failed to discharge the said burden.
h. The respondent had simply sought the relief of return of the truck and he did not ask for payment of the price of the truck and thus the Forum below erred in giving direction to the appellant to pay him Rs.6.00 Lacs with interest.
i. Impugned order is thus illegal and it needs to be set aside.
7. The appellant’s advocate relied on the decisions in the following cases in support of his aforesaid submission.
i. Cholamandalam Investment & Finance Co Ltd., Vs. Subhash Madhavappa Shivpuje in First Appeal No. A/307/2007, decided on 02.04.2013 by the learned State Commission, Aurangabad.
In that case, the complainant was defaulter in payment of instalments and that there was no evidence to show that the appellant forcefully repossessed the vehicle. Hence, it is held in the said case that the appellant did not commit any deficiency in service.
ii. Surendra Kumar Sahoo Vs. Branch Manager, Indusind Bank, 2012(4) CPR 313 (NC).
In that case, as per agreement there was no need to give
prior notice for seizure of the vehicle due to default in payment of instalment. It is held that non-payment of the instalment gives legal right to financer to repossess the vehicle.
iii. Suryapal Singh Vs. Siddha Vinayak Motors & Ors., in Revision Petition No.2771/ 2011, decided on 19.10.2011.
Under the facts & circumstances of that case, it was found by Hon’ble National Commission that the impugned order does not suffer from any jurisdictional error, illegality or material irregularity for interference in revision petition filed under Section 21(b) of Consumer Protection Act, 1986. Therefore, the said revision petition was dismissed.
- Sri Jasobanta Narayan Ram Vs. Branch Manager L&T Finance Ltd., in First Appeal No.888 of 2013, decided by Hon’ble National Commission on 04.03.2014.
In that case, the complainant had purchased two trucks with the loan raised from opposite party. The complainant did not show as to how he can qualify to come under definition of “consumer” given under Consumer Protection Act, 1986 when he has not given any clarification about the use of operation of the other truck. Therefore, Hon’ble National Commission observed that on this sole ground the complaint deserves to be dismissed.
Moreover, it is also observed that as the complainant was
defaulter in payment of the instalments, the opposite party had right of repossession of the vehicle and therefore, deficiency in service on the part of opposite party is not proved.
8. On the other hand, the learned advocate of the respondent supported the impugned order and submitted that the Forum below passed the order after duly appreciating evidence brought on record and there is no merit in the appeal and it may be dismissed with cost.
9. It is the case of the respondent that he had obtained loan on his vehicle from the appellant and he repaid the entire loan amount. It is also pertaining to note that initially in the reply filed to the complaint by the appellant, it was stated by the appellant that it paid the loan of Rs.7.25 Lacs as per agreement dtd.30.03.2007 to the respondent and it was to be repaid by him from 30.04.2007 till 30.12.2010 by monthly instalment of Rs.24,585/-.
Thereafter, the appellant changed its stand before the Forum below. The appellant in its affidavit filed before the Forum on 01.01.2011, stated that initially loan of Rs.6.00 Lacs was obtained by the respondent from it on 04.02.2006 and it was to be repaid with interest @ 15.66% p.a. by month instalment of Rs.24,496/- and an agreement to that effect was also executed, but subsequently the respondent obtained loan of Rs.7.25 Lacs from the appellant on the same vehicle and it was to be repaid in 45 instalments @ 24,585/- per month and that as the said loan granted subsequently, was not repaid as per second agreement, the respondent surrendered that vehicle on 28.04.2010.
10. In our view, the stand taken by the appellant subsequently to the filing of reply to the complaint, can be said to be after thought, in as much as the second agreement of loan produced by the appellant as per direction of the Forum below shows its date on top portion as 10.04.2006 and its last two pages show dates as 10.03.2007 above alleged signatures of borrowers, guarantor and authorised signatory (page Nos.18 & 19) it is not shown as to why the date of that agreement is not shown as 30.03.2007, which is mentioned in its reply filed to the complaint about providing of the loan.
11. The respondent has denied in his affidavit the said second loan agreement filed on record. He also denied that he was granted second time loan of Rs.7.25 Lacs on 30.03.2007. He has also denied his signature on the said second loan agreement dtd. 10.03.2007 filed on record. Therefore it was incumbent on the appellant to refer the said second loan agreement to the handwriting expert for obtaining his opinion in respect of the signatures of the respondent as disputed by him. In absence of any expert opinion about the signatures appearing on the second loan agreement, it is very difficult to rely on second loan agreement. Moreover, it is not explained by the appellant as to how it granted a loan of Rs.7.25 Lacs second time on the same vehicle when the period of first loan agreement was not over. The first loan agreement is dtd.02.03.2006, which is produced on record. The second loan agreement is dtd.10.04.2007. The first loan agreement shows its period from 27.03.2006 to 27.02.2009. It is also pertinent to not that though on the top of second agreement there is a stamp of the date 10.04.2007 about payment of stamp duty to the government, page Nos.18 & 19 of the said document shows a overwriting on the figure of the month. It appears that the dates 10.04.2007, by overwriting was changed as 10.03.2007. There is no attestation to the said overwriting. Thus, the said second loan agreement is a very suspicious document and considering above discussed facts & circumstances and in the absence of cogent evidence, we find that the said subsequent second loan agreement cannot be relied upon to prove that the appellant second time paid loan of Rs.7.25 Lacs on same vehicle to the respondent as per said agreement.
12. No doubt, the appellant produced account statement showing amount relating to second loan. However, the said account statement cannot be relied upon since it can be prepared at any time. Considering all aspects of the case, it can be said that the said account statement of second loan is after thought. Another material aspect of the present case is that though the railway ticket produced on record by the respondent shows that he had gone to Punajab State from 15.04.2010 to 31.05.2010. The appellant seized that vehicle in his absence on 28.04.2010 without prior notice and prepared false and forged document of surrender. Appellant has not produced any report of handwriting expert to prove that the signature appearing on the alleged surrender letter dtd. 28.04.2010 is of the respondent only. In view of preparation of the false and forged surrender letter, it is sufficient to hold that the appellant did not come with clean hands before the Forum below and its defence raised before the Forum below is not reliable.
13. The difference in the name of the respondent as mentioned in the registration certificate of the vehicle and as given in the complaint has got no relevance when there was no such defence raised by the appellant before the Forum below and as such there is no dispute of ownership of the vehicle.
14. The appellant filed reply to the complaint and did not raise objection that the complaint is not maintainable as it is filed against it through Branch Manager and though the respondent has not made averment about amount of the loan obtained and about its repayment. Therefore, no such plea can be raised for the first time in this appeal.
15. It is not proved by the appellant that the vehicle was purchased for commercial purpose by the respondent as he also owned two other vehicles. Hence, it cannot be said that complainant purchased the truck in question for commercial purpose.
16. The complaint is not barred by limitation since the vehicle was seized on 28.04.2010 and the complaint was filed on 10.08.2010 i.e. within two years from the date of seizure of the vehicle.
17. We, thus, find that Forum below has properly considered the evidence brought on record. We find that the appellant failed to prove that it advanced second time loan of Rs.7.25 Lacs to the respondent. It is also not the case of the appellant that the previous loan of Rs.6.00 Lacs was not fully repaid with interest by the respondent. Thus it can be said the seizure of the vehicle for non-payment of the second loan constitutes deficiency in service on the part of appellant and also said seizure is illegal and it amounts to adoption of unfair trade practice by the appellant.
18. So far as the relief granted by the Forum about refund of Rs.6.00 Lacs with interest to the respondent is concerned, the Forum below has rightly granted that relief as the vehicle belonging to the respondent has been illegally seized and sold by the appellant.
19. Moreover, we also find that the Forum below has rightly awarded compensation of Rs.25,000/- and litigation cost of Rs.2,000/-, considering all facts & circumstances of the present case.
20. We also find that the aforesaid decisions relied on by the learned advocate of the appellant are not applicable to the facts & circumstances of the present case since they are totally different from those of the said cases.
21. In the result of the above discussion, we find no merit in this appeal and it deserves to be dismissed.
ORDER
i. The appeal is dismissed.
ii. No order as to costs in this appeal.
iii. Copy of the order be furnished to both parties free of cost.
iv. Original record & proceedings of the complaint bearing No. 124/10 be sent back to District Consumer Forum, Chandrapur.
