Madhya Pradesh

StateCommission

A/09/990

Gopal Singh Dakad - Complainant(s)

Versus

Mahindra and Mahindra Financial Ser. - Opp.Party(s)

Sh.Arvind Verma

15 Nov 2018

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,

PLOT NO.76, ARERA HILLS, BHOPAL

 

                                      FIRST APPEAL NO. 990 OF 2009

(Arising out of order dated 28.04.2009 passed in C. C. No.94/2008 by District Forum, Shivpuri)

 

GOPAL SINGH DHAKAD,

S/O SHRI RAM CHANDRA DHAKAD,

VILLAGE-BHEEMPUR, TEHSIL-POHRI,

DISTRICT-SHIVPURI (M.P.)                                                                                                               ….       APPELLANT.

 

Versus

 

1. MAHINDRA & MAHINDRA FINANCE SERVICE LTD,

    CHANDRAVANDINI NAKA, NEAR JAI BHARAT PETROL PUMP,

    JHANSI ROAD, GWALIOR

    THROUGH MANAGER.

 

2. MAHINDRA & MAHINDRA FINANCE LIMITED,

    HAZI SANDU MARKET, MAHAL ROAD,

    SHIVPURI (M.P.) THROUGH MANAGER.                                                                                ….       RESPONDENTS.   

                     

BEFORE :

            HON’BLE SHRI JUSTICE SHANTANU S. KEMKAR   :    PRESIDENT

            HON’BLE SHRI S. D. AGARWAL                                 :    MEMBER

            HON’BLE DR. (MRS) MONIKA MALIK                         :    MEMBER

         

COUNSEL FOR PARTIES :

Shri Arvind Verma, learned counsel for the appellant.

            Shri Vikas Rai, learned counsel for the respondents.

                                                     O R D E R

                                       (Passed On 15.11.2018)

                   The following order of the Commission was delivered by Dr. (Mrs) Monika Malik, Member:

           

                   This appeal by the complainant/appellant assails the order dated 28.04.2009 passed by the District Consumer Disputes Redressal Forum, Shivpuri in C.C.No. 94/2008, whereby the complaint filed by him has been partly allowed.  The complainant has filed this appeal for enhancement of compensation.

2.                     Briefly put, the case of the complainant is such that he had filed a complaint alleging deficiency in service against the opposite party, of forcefully repossessing of the Maruti 800 AC car, which was purchased by him on 05.12.2006 and was financed via opposite party.  The complainant alleged that as owing to ill health, he could not deposit 2-3 instalments, the opposite party forcefully repossessed the vehicle and raised an unfair demand for payment of Rs.10,000/-.

3.                     The opposite parties resisted the complaint, stating that the complainant was given appropriate time regarding deposition of pending instalments, which he could not deposit.  The vehicle was eventually repossessed, after obtaining his consent. As per terms

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and conditions of Hypothecation Cum Loan Agreement, the financer has a right to repossess the vehicle and further sell it to recover the dues.

4.                     The District Forum held that the opposite parties have not been able to put forward the consent allegedly obtained by them from the complainant, before repossession of the vehicle.  Learned District Forum holding opposite parties deficient in service partly allowed the complaint and relieved the complainant from the penal interest charged by the opposite parties, for a period from when the vehicle was repossessed, till its handover to the complainant.  The opposite parties were ordered to give the statement of the pending loan instalments to the complainant and there were directions to handover the vehicle to the complainant.

5.                     The complainant felt aggrieved by the impugned order, filed this appeal for enhancement of compensation.

6.                     Heard. Perused the record.

7.                     Learned counsel for the complainant/appellant vehemently argued that there was default in the payment of only two instalments on the complainant’s/appellant’s part, and he had requested the opposite parties that he will deposit the same in the near future, but the opposite parties forcefully seized the vehicle from his house on 23.02.2008, using muscle power. He argued that the District Forum vide impugned order has not clarified regarding pending loan instalments.  He further argued that the complainant/appellant deserves to be compensated, on account of forceful seizure of his vehicle by the opposite parties/respondents, despite of the fact that he has never been a habitual defaulter.  Furthermore, the opposite parties/respondents have sold the vehicle to recover the dues, therefore, the impugned order directing the repayment of the loan instalments is not sustainable. Learned counsel gave reference of decision of Hon’ble Supreme Court in Citicorp Maruti Finance Ltd. Vs S. Vijayalaxmi AIR 2012 SC 509 and a decision of this Commission in Mahesh Kumar Vs Manager, ICICI Bank Ltd. 2008(4) M.P.H.T.1 (CPC)

8.                     Learned counsel for the opposite parties/respondents argued that as per Hypothecation Cum Loan Agreement, entered into between the complainant and the opposite parties, the opposite parties/respondents have right to repossess the vehicle, when there is default in payments, on part of the borrower.  There is no provision to give any notice to this effect. The vehicle was repossessed from the complainant/appellant, with his

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consent.  He argued that the repossessed car was sold to recover the dues and there is no ground for the complainant/appellant to be compensated.  He placed reliance on the decision of the Hon’ble Supreme Court in Suryapal Singh Vs Siddha Vinayak Motors & Anr. III (2012) CPJ 4 (SC) and a decision of Hon’ble National Commission in Surendra Kumar Sahoo Vs Indusind Bank Ltd.  IV (2012) CPJ 322 (NC) and in Mahindra & Mahindra Finance Co.Ltd. Vs Sankatha Prasad & Ors.IV(2011) CPJ 359 (NC).

8.                     The complainant has alleged that the opposite parties/respondents forcefully repossessed the vehicle without prior notice, though only two instalments were left unpaid on his part.  The opposite parties/respondents have categorically submitted that it is within their rights to repossess the vehicle, as per loan agreement entered into between two parties.

9.                     As per opposite parties’ / respondents’ submission, the complainant/appellant did not repay instalments from December-2007 onwards.  Close perusal of the record reveals that the opposite parties/respondents vide their letter dated 01.02.2008 had asked the complainant/appellant to deposit the outstanding amount of Rs.17,500/- only, along with delay payment charges. It is an admitted position that this vehicle was repossessed on 25.02.2008.

10.                   The District Forum has held that the opposite parties could not put forward evidence to substantiate that the consent of the complainant/appellant was obtained before repossessing the vehicle in question. The opposite parties were held deficient in service on account of forcefully repossession of the vehicle. Since there is no appeal by the opposite parties/respondents against the impugned order, the order attains finality as far as their liability is concerned.

11.                   This appeal was once dismissed for want of appearance of the appellant, which was later restored. It is pertinent to mention that during the pendency of the appeal, the vehicle was sold to recover the dues.  Therefore, the part of the impugned order dealing in the aspect of handover of the vehicle, after repayment of pending loan instalments has become infructuous. We however are, of a considered view that the complainant/appellant deserves to be compensated on account of deficiency in service on part of the opposite parties/respondents as has been held above and because of which the complainant/appellant was made to suffer. On this account, the opposite

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parties/respondents are directed to pay a sum of Rs.25,000/- to the complainant/appellant, within two months from today.  The opposite parties/respondents shall also bear appellant’s cost of this appeal which is quantified as Rs.2,000/-.  With the above modification in the impugned order, the appeal is partly allowed.

 

(JUSTICE SHANTANU S. KEMKAR)  (S. D. AGARWAL) (DR. MONIKA MALIK)

                     PRESIDENT                          MEMBER                  MEMBER