Heard learned counsel for the appellant. None appears for the respondent.

2.     Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.   The case of the complainant in nutshell is that the complainant  in order to maintain his livelihood has purchased one second hand truck bearing Registration No.OR-05-H-1596 from Gopal Mohanty by executing an agreement on 16.6.2006 for Rs.2,80,000/- out of which he made down payment of Rs. 80,000/- and OP No.1 financed rest amount of Rs.2,00,000/-. It is alleged inter alia that due to default in making payment  of instalments OP No.1 seized the vehicle on 1.3.2008 illegally without issuing any demand notice. Complainant alleging about deficiency in service filed the complaint case.

4.     OP No.1 filed written version stating that the vehicle in question was financed to the tune of Rs. 2,50,000/- and one agreement was executed between the parties on 10.7.2006. It was agreed between the parties that the complainant would pay Rs.3,56,125/-  in 32 instalments. Complainant paid Rs.11,329/- on 4.9.2006 and Rs,11,000/- on 27.11.2006 and thereafter defaulted in making payment of the EMIs. Thereafter, notice was issued to the complainant and guarantor. The OP denied to have seized the vehicle forcibly. There is no deficiency in service on their part.

5.     Learned District Forum after hearing both parties

passed the following order:-

                        “xxx   xxx   xxx

As regards the second question for consideration, once we have come to a conclusion that the vehicle in question was not seized either forcibly or illegally, the complainant is not entitled for the releif’s as claimed for. But on the other hand, while allowing the complaint petition, we hold that OP 1 having seized the vehicle, having not released the same in spite of the orders dt. 9.11.08 and 4.12.08, the OP 1 is directed to pay a sum of Rs.2,50,000/- to the complainant as per Annex-1(of OP) dt. 25.9.08 and to close the loan account.

Complaint is not entitled to get any compensation or litigation expanse etc.”

6.     Learned counsel for the appellant submitted that the learned District Forum has committed error in law by passing the impugned order while it is observed by the learned District Forum that seizure of the vehicle was not illegal, on the other hand when deficiency in service was not found with the OP, the impugned order ought not to have been passed. Learned District Forum failed to apply judicial mind to all these facts. So, he submitted to set aside the impugned order by allowing the appeal.

7.     Considered the submission of learned counsel for    the appellant and perused the DFR including the impugned order.

8.     It is admitted fact that the vehicle was financed by OP No.1. It is not in dispute that the vehicle was seized on 1.3.2008 for which the court has intervened and passed orders on 11.9.2008 and 4.12.2008 to release the vehicle. It is not in dispute that the vehicle was not released but is a fact that the complainant has only proved payment of some instalments and yet remained as defaulter. So the learned District Forum has rightly come to a conclusion that the complainant being defaulter to pay the whole amount, the vehicle was seized. However, the order sheets dated 11.9.2008 and 4.12.2008 show that learned District Forum has passed  order to release the vehicle but the vehicle has not been released. During continuation of the proceeding if the order of the learned District Forum is not carried out, same would amount to deficiency in service. It should be remembered that deficiency in service is not  to be only counted as on the date of filing  of the complaint but deficiency in service has to be also found during pendency of the complaint.

9.     It is always welcome to remove the deficiency in service during pendency of the complaint. But the reverse is not permissible. Therefore, the learned District Forum has rightly observed that the though the seizure is not illegal but defaulted in carrying out the orders of the learned District Forum dated 11.9.2008 and 4.12.200 is illegal. Therefore, we agree with the finding of the learned District Forum but the operative portion of the impugned order requires modification. Therefore, while modifying the operative portion of the impugned order we direct the OP to pay Rs.2.00 lacs as compensation to the complainant for not removing the deficiency in service during pendency of the complaint. This amount will be adjusted by the appellant towards the outstanding loan amount and no amount would  be charged by the appellant against the respondent/complainant. Rest of operative portion of impugned order is set aside. No cost.

           DFR be sent back forthwith.

           Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.