By Smt. C.S. Sulekha Beevi, President,

1. Complainant purchased a TVS Victor motor cycle, KL10-Q/2027 on 13-3-2003 by availing loan of Rs.30,000/- from opposite party. The amount was repayable in 20 EMI of Rs.1,788/- each commencing from April, 2003 and ending in October, 2004. That the first instalment was collected on the date of purchase itself. Complainant had issued 19 post dated cheques to opposite party for realising the instalments. Due to unforeseen reasons a few instalments were defaulted by complainant. Opposite party repossessed the vehicle without any notice. Subsequently a representative approached complainant and offered a 'one time settlement' and informed that if complainant paid Rs.3,000/- before 30^th April, 2004 all the overdue interest and other charges will be waived. Complainant then paid Rs.3,000/- on 19-4-2004 to the representative. That complainant was under the impression that he need not pay any further amount. That opposite party collected further instalments using the post dated cheques but did not return the vehicle. Complainant was told that the vehicle is retained to ensure payments. Complainant had to purchase a Vespa Scooter for his use by spending Rs.5,000/-. When complainant approached opposite party in October, 2004 requesting to return the vehicle he was informed by opposite party that the Registration Certificate of the vehicle is submitted to Regional Transport Officer for cancellation of endorsement, and that the vehicle will be returned in mid of November, 2004. To the surprise of complainant, he received a letter from opposite party on 05-11-2004 intimating to clear arrears of Rs.9,497/- on or before 18-10-2004 failing which the vehicle will be sold. Though complainant immediately approached opposite party he was informed that the vehicle was already sold by auction on 01-11-2004. That the vehicle was a well maintained one with extra fittings, had covered hardly 5000kms and was having market value of more than Rs.45,000/-. Complainant alleges that opposite party has illegally seized the vehicle without notice and sold the same which amounts to deficiency in service. Hence this complaint.

2. Opposite party filed version admitting the finance transaction with complainant. That complainant committed repeated defaults. Even after frequent reminders he did not make the payments. A letter was issued requesting to clear the arrears. The vehicle was repossessed as per terms of the agreement. After repossession a letter was issued on 08-10-2004 informing about repossession and calling upon the complainant to pay Rs.9,497/- and to take release of the vehicle. Complainant did not respond to this and so the vehicle was sold on 01-11-2004 at the available highest market value. Opposite party admits that complainant remitted Rs.3,000/- by cash in April, 2004, but contends that this amount was paid before repossession. The allegations that the vehicle was repossessed without notice and that opposite party offered 'one time settlement' by payment of Rs.3,000/- is denied. Other allegations in the complaint are denied as false. That there is no deficiency in service and that complaint is to be dismissed.

3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A9 marked for complainant. Opposite party filed counter affidavit. Exts.B1 to B5 marked for opposite party. Either side has not adduced any oral evidence.

4. Points for consideration:-

(i) Whether opposite party is deficient in service.

(ii) If so, reliefs and costs.

5. Point (i):-

The undisputed facts of this case are that (i) complainant availed loan of Rs.30,000/- from opposite party. (ii) the loan was to be repaid in 20 instalments of Rs.1,788/- each commencing from 13-3-2003 and ending on 07-10-2004. (iii) that complainant committed default of a few instalments. (iv) that the vehicle was repossessed by opposite party.

6. It is the case of complainant that after repossessing the vehicle, a representative of opposite party approached complainant and offered a 'one time settlement' and informed that if complainant paid Rs.3,000/- before 30^th of April, 2004 all other overdue charges would be waived. It is his further case that believing this he paid Rs.3,000/- on 19-4-2004. It is also the case of complainant that without releasing the vehicle opposite party continued to recover the instalments by using the post dated cheques.

7. Denying these allegations it is affirmed by opposite party in para 16 and 17 of the affidavit that the vehicle was repossessed by opposite party on 08-10-2004 and that at the time of repossession the outstanding due was Rs.6,495/-.

8. Complainant has not stated the exact date of repossession. But his case is that the vehicle was repossessed prior to the completion of loan period. The rival contention raised on the part of opposite party is that the vehicle was repossessed on 08-10-2004 which is after the date of last instalment. Opposite party has admitted the payment of Rs.3,000/- on 20-4-2004. But the contention that it was paid after repossession as one time settlement is denied. This contention of complainant that Rs.3,000/- was paid subsequent to repossession of the vehicle is inconsistent with his statements in Ext.A8 lawyer notice. In Ext.A8 dated, 16-11-2004 complainant states that when he approached opposite party after repayment period of loan and requested for cancellation of hire purchase endorsement, he was informed by opposite party that due to non-clearance of cheques an amount of Rs.3,000/- more has to be paid to finally settle the accounts. It is also stated in Ext.A8 that even after payment of Rs.3,000/- the vehicle was repossessed forcefully alleging default in EMI. Therefore as per the averments in Ext.A8 the case of complainant is that he had repaid whole loan and only when he approached opposite party requesting for hire purchase cancellation did opposite party demand payment of Rs.3,000/-. This contradicts the pleadings and his affirmation in the affidavit. Therefore we are unable to accept the contention of complainant that the vehicle was repossessed prior to 08-10-2004. We hold the version of opposite party that the vehicle was repossessed on 08-10-2004 as believable and acceptable.

9. Complainant is aggrieved that the repossession was without notice and only for a small amount and therefore illegal. The loan availed by complainant is Rs.30,000/-. As per the details of payment as affirmed in the affidavit complainant has repaid Rs.31,608/- upto 12-10-2004. The date of last instalment as per Ext.A2 chart is 07-10-2004. The payments are not fully regular. There is some default in between the instalments. But complainant has repaid a major portion of the loan within time. Even as per Ext.B1 which is dated, 09-10-2004 the arrears outstanding after including all penalty and overdue charges as on the date of repossession is only Rs.6,495/-. In Ext.B3 it is stated by opposite party that as on 09-10-2004 the total instalment repaid is Rs.30,396/-. It is also shown in Ext.B3 that only two instalments are overdue. It is evident that the vehicle was repossessed for the default of a very small amount and that complainant has repaid major portion of the loan. It is also seen from Ext.A5 that opposite party has encashed a cheque on 12-10-2004 after repossession of the vehicle.

10. Complainant pleads and affirms that the vehicle was repossessed without issuing any notice. Though opposite party contends to have issued a letter to complainant prior to repossession this contention is not supported by any documentary evidence and hence totally unacceptable. It is proved from the materials on record and evidence adduced that opposite party has repossessed the vehicle without any notice. If opposite party had issued notice prior to repossession alerting the complainant about default and arrears if any, complainant could have made arrangements to remit the amount which was a very small amount and he could have avoided loss of the vehicle. The non issuance of notice prior to repossession in this case, definitely in our view, amounts to serious illegality.

11. Opposite party affirms that the vehicle was sold on 01-11-2004 after sufficiently intimating the complainant to pay the balance outstanding and take release of the vehicle. It is submitted on behalf of complainant that the only notice received by him from opposite party is Ext.A7, which is a registered letter dated, 11-10-2004. Complainant swears that he received this letter only on 05-11-2004. It is seen on Ext.A7(b) which is the cover in which Ext.A7 letter was send that this letter was send by registered post only on 02-11-2004. This means the letter intimating the complainant that the vehicle will be sold was send by opposite party on 02-11-2004 after sale of the vehicle on 01-11-2004. The deficiency is obvious. We cannot refrain from stating that this act of opposite party Bank is highly oppressive and painted with fraud and malafideness. Ext.A7 sufficiently proves the case of the complainant that the vehicle was sold without any notice to him. From the above discussions we are able to conclude that the act of opposite party repossessing and selling the vehicle without notice and that too when complainant had repaid a major portion of the loan is gross deficiency in service. We find opposite party deficient in service.

12. Point (ii):-

 

Complainant prays for the following reliefs;-

(i) to direct opposite party to deliver him a brand new TVS Victor motor cycle

or it's value being Rs.65,000/-.

(ii) to pay Rs.50,000/- as compensation for deficiency.

(iii) to pay Rs.4,000/- as costs.

13. As already discussed, if complainant had been served with a notice prior to repossession the whole mishap of repossession and sale of the vehicle could have been avoided. The complainant herein was not given a chance to make payment and get release of the vehicle because no intimation was served to him prior to sale. It has also to be considered that complainant has repaid more than Rs.30,000/- towards the loan. The vehicle was brand new one purchased on 13-3-2003 and sold on 01-11-2004. Opposite party has not furnished any details of the sale. The consideration received by opposite party in auctioning the vehicle is suppressed by opposite party. When the vehicle was sold to recover such a small amount (less than Rs.10,000/-) then the balance ought to have been paid by opposite party to the complainant after settlement of accounts. We have no hesitation to hold that complainant has to be adequately compensated for the loss of the vehicle. Taking into consideration the depreciation of the vehicle we hold that complainant is entitled to Rs.20,000/- as damages for loss of the vehicle. In the present case opposite party which is a Bank has issued intimation regarding sale of the vehicle after selling the vehicle which we consider has to be viewed seriously. Such practice by a Bank which deals with public money has to be put to a halt. We hold that imposing punitive damages by way of interest @ 6% per annum upon the above amount from the date of complaint till payment will serve to improve the quality of service rendered by opposite party and also put to halt to such malafide actions.

14. In the result we allow this complaint and order opposite party to pay to the complainant Rs.20,000/- (Rupees Twenty thousand only) as damages along with interest @ 6% per annum from the date of complaint till payment together with costs of Rs.1,500/- (Rupees one thousand five hundred only) within one month from the date of receipt of copy of this order.

Dated this 17th day of March, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A9

Ext.A1 : Photo copy of the certificate of registration in respect of vehicle

No.KL10/Q-2027 given by Joint RTO., Perintalmanna to complainant.

Ext.A2 : Computer print of repayment schedule given by opposite party to

complainant.

Ext.A3 : Copy of the letter dated, 21-3-2003 by opposite party to complainant.

Ext.A4 : Savings Bank Account No.2044 issued by Manager, South Indian Bank Ltd.,

Perintalmanna to complainant.

Ext.A5 : Statement of account for the period from 16-5-2004 to 04-11-2004

given by Manager, South Indian Bank Ltd., Perintalmanna to complainant.

Ext.A6 : Repayment receipt No.697006 dated, 20-4-2004 from opposite party

to complainant.

Ext.A7(a & b) : Registered letter with cover dated, 11-10-2004 send by opposite party

to complainant.

Ext.A8 : Photo copy of the lawyer notice dated, 16-4-2004 issued by complainant's

counsel to opposite party.

Ext.A9 : Photo copy of the letter send by opposite party to complainant.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B5

Ext.B1 : Computer print of letter dated, 09-10-2004 send opposite party to complainant.

Ext.B2 : Photo copy of the Account Statement from 13-5-2000 to 13-5-2008 relating to

complainant.

Ext.B3 : Computer print of Statcard as on 09-10-2004 in favour of complainant.

Ext.B4 : Loan-cum-Hypothecation Agreement executed between complainant and

opposite party.

Ext.B5 : Two Wheeler and Consumer Loan Application Form submitted by

complainant to opposite party.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER