KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL Nos. 281/2021 & 94/2022

COMMON JUDGMENT DATED: 29.03.2023

(Against the Order in C.C. 86/2020 of CDRC, Alappuzha)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

APPEAL No. 281/2021

APPELLANTS:

1. State Bank of India, Mavelikkara Branch, Gomodath Complex, Opposite Pvt. Bus Stand, Mavelikkara-690 101 represented by its Chief manager, Shamji M.

2. State Bank of India, Chennithala Branch, P.B. No. 1, NSS Karayogam Building, Chennithala-690 105 represented by Chief Manager, SBI Mavelikkara Branch, Shamji M.

(By Adv. Narayan R.)

                                                Vs.

RESPONDENT:

John P. Mathew, S/o P.M. John, Parankamoottil House, Chennithala South Muri, Thirpperumthura Village, Mavelikkara Taluk, Alappuzha-690 105.

                                   (By Adv. P. Nandakumar)

APPEAL No. 94/2022

APPELLANT:

John P. Mathew, S/o P.M. John, Parankamoottil House, Chennithala South Muri, Thirpperumthura Village, Mavelikkara Taluk, Alappuzha-690 105.

                                      (By Adv. P. Nandakumar)

RESPONDENTS:

1. State Bank of India, Mavelikkara Branch, Gomodath Complex, Opposite Pvt. Bus Stand, Mavelikkara-690 101 represented by its Chief manager, Shamji M.

2. State Bank of India, Chennithala Branch, P.B. No. 1, NSS Karayogam Building, Chennithala-690 105 represented by Branch Manager

(By Adv. Narayan R.)

COMMON JUDGMENT

SRI. AJITH KUMAR D.: JUDICIAL MEMBER

The appellants in Appeal No. 281/2021 are the opposite parties and the appellant in Appeal No. 94/2022 is the complainant on the file of the Consumer Disputes Redressal Commission, Alappuzha (District Commission for short) in C.C. No. 86/2020.  As per the order dated 07.07.2021 the District Commission had directed the opposite parties to return the Mahindra Bolero car bearing Reg. No. KL 31 B 6247 in a road-worthy condition to the complainant after collecting the balance dues of Rs. 11,643/.  The complainant has filed the appeal claiming compensation from the opposite parties.  The opposite parties too challenged the order that there was no deficiency in service on their part and hence sought for setting aside the order of the District Commission. 

2.  The facts contained in the complaint in brief are as follows: The complainant had availed a car loan from the 1^st opposite party which fell in arrears.  The 1^st opposite party had initiated revenue recovery proceedings and the complainant remitted Rs. 51,970/- as monthly instalments through the Revenue Department from 14.10.2014 onwards.  While effecting the repayment the 1^st opposite party had initiated proceedings under SARFAESI Act and repossessed the car from the residence of the complainant.  The car was taken in to custody with police aid after breaking open its window and hooking it on a crane.  Repossession of the vehicle was made while there was prompt repayment of instalments. On 13.08.2019 a settlement was made between the complainant and the 1^st opposite party for a total amount of Rs. 2,90,520/-.  On the date of settlement Rs. 20,000/- was remitted. On 03.12.2019 Rs. 63,000/- and Rs. 14,000/- were withdrawn by the 2^nd opposite party from the pension account of the complainant and transferred to the 1^st opposite party’s account towards the car loan.  The above transfer was done without the consent or knowledge of the complainant.  On 21.12.2019 the complainant had further remitted an amount of Rs. 1,30,000/- as per the direction of the Chief Manager.  But the complainant came to know that though a total amount of Rs. 51,970/- was remitted through revenue department, only Rs. 20,000/- was credited to the car loan account.  Rs. 1,30,000/- paid by the complainant on 21.12.2019 and Rs. 77,000/- withdrawn from the pension account of the complainant were transferred to the account of different individuals.  On 24.12.2019 the complainant obtained a statement of accounts for the period from 10.05.2010 to 21.12.2019 and he realized that Rs. 19,907/- paid by him on various dates was not credited to the car loan account and hence he preferred a complaint before the Banking Ombudsman, Thiruvananthapuram.  The debit slips submitted by the opposite parties were not those signed or written by the complainant.  The Ombudsman, without taking evidence closed the complaint.  The opposite parties have no right to deduct pension amount of a retired soldier without his consent.  In view of the settlement between the parties on 13.08.2019 the total arrears in the car loan were fixed as Rs.2,90,520/-.   

3.  Thereafter Rs. 2,27,000/- was realized from the pension account of the complainant and Rs. 31,970/- was remitted by way of R.R. proceedings. A further amount of Rs. 19,907/- was paid by him on various dates.  Even then the car still remains in the yard of the 1^st opposite party.  Opposite parties are not ready to hand over the vehicle.  Hence the complaint.

4.  The opposite parties filed version that the complaint is not maintainable either in law or on facts.  The complainant had availed a car loan to the limit of Rs. 5,60,000/- on 20.05.2010 and purchased a Mahindra Bolero car.  The repayment of the loan amount was fixed in 84 equal monthly instalments of Rs. 8,948/- each.  The complainant had signed and executed the agreement for car loan on 20.05.2010.  Thereafter the loan account in the name of the complainant became irregular and hence it was classified as Non-Performing Asset (NPA). The complainant was not ready to regularize the account.  So demand notice under SARFAESI Act was issued in October 2013 against which the complainant filed a writ petition before the Hon’ble High Court.  The writ petition was closed with a direction to the complainant to regularize the account within 3 months which was not complied with.  So, revenue recovery proceedings were initiated.  The revenue authorities allowed the complainant to remit the dues in 36 monthly instalments commencing from 19.10.2014.  But he remitted only Rs. 31,970/- and the revenue authorities remitted the said amount in the parking account with the 1^st opposite party. The complainant remitted Rs. 20,000/- directly towards his car loan account on 13.11.2015.  The said amount also was transferred from its parking account to the income account, as the loan account of the complainant turned NPA.  When the account is classified as NPA no interest could be applied to the said account.  Hence the 1^st opposite party transferred Rs. 31,970/- to its income account from the parking account.  Even after the receipt of the demand notice under SARFAESI Act the complainant was not ready to settle the loan account.  As per the order of the Chief Judicial Magistrate, Alappuzha in M.C. No. 247/2015, the 1^st opposite party had taken possession of the car on 07.07.2015.  The seized vehicle was kept in the garage maintained by a private agency deputed by the opposite parties.  The opposite parties had to pay monthly rent to the private agency for keeping the vehicle in their garage.  Later on a compromise settlement was arrived at on 13.08.2019.  At the time of compromise settlement, the closure balance of the loan account of the complainant was             Rs. 6,76,345/-.  The 1^st opposite party is also entitled to get garage charges from the date of possession till settlement.  The complainant had submitted a signed debit slip for Rs. 1,98,520/- to enable the bank to debit the said amount from his account.  As per the compromise, the complainant had agreed to pay Rs. 2,18,520/- along with Rs. 72,000/- as yard charges for parking the seized vehicle.  So the total amount agreed to be remitted is Rs. 2,90,520/-.  The complainant remitted an amount of Rs. 20,000/- on the very same day.  Thereafter Rs. 77,000/- was recovered from his account on the basis of the signed debit slips.  On 21.12.2019 Rs. 1,30,000/- was remitted by the complainant towards the loan account.  Thereafter, no amount was remitted by the complainant.  As per the compromise a sum of Rs. 83,520/- has to be recovered from him.  The period of compromise settlement expired on 31.12.2019.  The complainant thus failed to pay the amount as agreed.  He had violated the conditions of the settlement and he is liable to pay the entire balance amount of Rs. 7,77,261/- and yard charges for Rs. 1,07,250/-.  So the total amount due from the complainant as on 30.12.2020 is Rs. 8,84,511/-.  The opposite party had initiated various steps for recovery of the loan amount.  The amount paid by the complainant through revenue recovery proceedings was duly acknowledged by the 1^st opposite party.  The opposite parties had no intention to defame the reputation of the complainant.  On the basis of the settlement offer letter duly signed and submitted by the complainant to the 1^st opposite party, the loan account of the complainant was settled for Rs. 2,90,520/-.  The period fixed for payment of the amount had expired on 31.10.2019.  As the date of settlement of the loan account expired on 31.10.2019 the opposite parties are not willing to proceed with the time barred settlement.  The payment of Rs. 51,970/- through revenue authorities cannot be debited from the settlement amount.  The opposite parties never agreed to deduct payments from the settlement amount.  The allegation that the amounts remitted by the complainant on various dates were not credited is incorrect.  The payments made by the complainant were duly credited in the loan account.  The 1^st opposite party never submitted any fabricated or false documents.  Without remitting the balance amount due towards the car loan the 1^st opposite party is not in a position to hand over the vehicle to the complainant and the complainant is not entitled to get any compensation from the opposite parties.  There is no deficiency of service.  The prayer for returning the vehicle cannot be allowed without fixing the balance amount due to the opposite parties.  Hence the prayer is premature which is liable to be dismissed. 

5.  The District Commission after considering the evidence let in by the complainant as PW1, the Chief Manager of the opposite party as RW1, Exts. A1 to A15 and Exts. B1 to B15 had passed the impugned order, which is challenged by both sides. 

6.  Perused the records of the District Commission.  On an evaluation of the evidence on record it is seen that the complainant had purchased the car by availing a loan from the opposite parties and there was dereliction on the part of the complainant to effect prompt repayment.  Hence the opposite parties had initiated revenue recovery proceedings and subsequently got repossession of the vehicle by resorting to the provisions of SARFAESI Act.  Later, a settlement was also arrived at on 13.08.2019.  According to the opposite parties the complainant was not able to remit the total amount as agreed in the settlement whereas the complainant would contend that money was withdrawn from his pension account without his knowledge and consent.  According to him an amount in excess to that fixed in the settlement was realized from his account.  The evidence would also reveal that the opposite parties had realized an amount of Rs. 72,000/- as yard charges for keeping the vehicle after repossession.  It is also revealed that certain payments made by the complainant towards the loan account were not seen credited to his account.  The stand taken by the opposite parties is that the amount was not credited since the account was converted as a Non Performing Asset.  The amount realized through revenue recovery proceedings was also not counted while entering into the compromise agreement. Though money was realized as yard charges, it could be seen that the opposite parties did not initiate any proper measures for keeping the vehicle in a safe condition.  In the appellate stage the condition of the vehicle was inspected by the company representative.  The inspection report submitted by the Service Manager of Meridian Motor would show that the vehicle was kept in a very bad situation.  The photographs of the vehicle were also enclosed with the report filed by the concerned person.  The pitiable condition of the vehicle could be gathered from the photographs.  The learned counsel for the opposite party would submit that there is no deficiency of service on the side of the opposite parties and as long as the complainant did not remit the entire amount fixed in the settlement the concession given as per the settlement cannot be given to the complainant.  It is true that there is violation of conditions fixed for repayment and the opposite parties cannot be blamed for the initiation of revenue recovery proceedings and proceedings under the SARFAESI Act.  As long as the loan amount is not paid in full the bank is at liberty to initiate proper proceedings for realization of the debt.  But at the same time it is the duty of the opposite parties to keep the vehicle in a safe and proper condition.  Though the opposite parties had realized Rs. 72,000/- as yard charges, the present condition of the vehicle would reveal that the opposite parties were not diligent in retaining the vehicle in proper custody.  Though they raised a contention that a private agency was engaged for keeping the vehicle the evidence on record would show that the opposite parties were not kind enough to retain the vehicle properly despite the fact that the opposite parties had collected amount in excess to that fixed in the settlement.  The hard-earned money of the complainant was utilized for repayment of the loan amount on an expectation that he can recover the possession of the vehicle.  When the vehicle was repossessed, the opposite party was duty bound to retain the same in safe custody so as to enable the complainant to get back the same in a proper condition on closure of the account.  Obviously there is deficiency of service from the part of the opposite party in not retaining the vehicle after repossessing the same from the complainant.  The District Commission had passed an order directing the opposite parties to return the Mahindra Bolero car in a road-worthy condition after receiving Rs. 11,643/- from the complainant.  This order is vague as the term “road worthy condition” cannot be precisely interpreted while executing it.  The learned counsel for the opposite parties had assailed the order passed by the District Commission on the reason that the order is unenforceable as no one could execute the same as directed.  There is serious lapse on the part of the opposite parties in not retaining the vehicle in proper custody though a sum of Rs. 72,000/- was collected from the complainant as yard charges.  This dereliction amounts to deficiency of service and the complainant is entitled to get compensation for the loss suffered by him. No doubt, the complainant is also a faulty person as he had defaulted in effecting repayment.  So he cannot claim compensation in respect of the entire hardships caused and the damage of the vehicle.  But at the same he is entitled to get a reasonable compensation in view of the deficiency of service on the part of the opposite party in not keeping the vehicle in proper condition even after collecting a considerable amount as yard charges.  Hence it is found that a modification of the order passed by the District Forum is required.  The opposite parties are directed to return the Mahindra Bolero car bearing Reg. No. KL 31 B 6247 to the complainant by receiving Rs. 11,643/-, the dues outstanding towards his loan account.  The opposite parties are directed to return Rs. 72,000/- collected as yard charges from the complainant and also pay compensation to the tune of Rs. 25,000/- to the complainant with respect to the damage caused to the vehicle in not retaining the same in safe custody. 

 In the result, Appeal No. 94/2022 is allowed in part.

1. The opposite parties are directed to return the Mahindra Bolero car bearing Reg. No. KL 31 B 6247 to the complainant by receiving Rs.11,643/-, the dues outstanding towards his loan account. 
2. The opposite parties are directed to return Rs. 72,000/- collected as yard charges from the complainant and also pay compensation to the tune of Rs. 25,000/- to the complainant with respect to the damage caused to the vehicle in not retaining the same in safe custody. 

 Appeal No. 281/2021 is dismissed. 

Parties shall bear their respective costs.

                          Sd/-

AJITH KUMAR  D. : JUDICIAL MEMBER

                         Sd/-

                                                                        BEENA KUMARY. A         : MEMBER  

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