BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.159 of 2015
Date of institution: 09.04.2015
Date of Decision: 11.07.2016
Ajay Kumar son of Ayudhya Parshad resident of House No.269, Village Barmajra, Tehsil and District SAS Nagar (Mohali).
……..Complainant
Versus
Manager, Hinduja Leyland Finance, SCO No.39, 2nd Floor, Phase-5, Sector 59, Mohali.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K.Aulakh, Member.
Present: Ms. Rameet Bakshi, Amicus Curiae.
Complainant in person.
None for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
(a) release the vehicle of the complainant.
(b) pay him compensation to the tune of Rs.1,00,000/- towards damages.
The case of the complainant is that he purchased three wheeler from M/s. Pioggo Vehicles Pvt. Ltd., Mohali. The complainant got the vehicle financed from the OP for Rs.1,49,000/-. The installments of the loan amount @ Rs.6,300/- per month commenced from 15.05.2013. Since then the complainant had been paying the installments regularly and his cheque never dishonoured. On 07.04.2015 at about 9.00 AM the employees and the Manager of the OP picked up the vehicle forcibly on the ground that installments of the loan are not being paid for the last 2-3 months because the pre-paid cheques of the complainant were lost by the OP. Due to forcible picking up of the vehicle, the complainant is suffering losses. There is no fault or default on the part of the complainant in making the payment of installments. Hence, the complainant has filed the present complaint.
2. The OP in the preliminary objections of the written statement has pleaded that the complainant has not approached this Forum with clean hands and has suppressed the material facts from this Forum. The complaint is bad for non joinder and mis-joinder of necessary parties. On merits, it is pleaded that the complainant has failed to repay the monthly installments timely for which Additional Finance Charges used to put in the account of the complainant in default of making repayment of loan on time. At the time when the complainant surrendered the vehicle to the OP, about 6 EMIs alongwith other charges were due towards him which is violation of terms and conditions of the loan agreement executed between the parties. The complainant himself surrendered the three wheeler to the OP by requesting that he is not in a position to repay the monthly installments due towards him by promising that whenever he arranges the entire overdue amount he would pay the same and get the possession of the vehicle back. But by narrating wrong facts, the complainant has filed the present complaint. The OP has complied with the order dated 14.04.2015 of this Forum and handed over the possession of the vehicle to the complainant. As such the complaint has become infructuous as the main relief claimed has been granted by this Forum. After taking the possession of the vehicle, the complainant himself approached the OP and issued a cheque for an amount of Rs.41,300/- on account of overdue payment outstanding against him. However, this cheque was dishonoured and the complainant has not made the payment due towards him even after a specific demand through legal notice issued by the OP. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-7.
4. Evidence of the OP consists of affidavit of Ram Kumar, its Legal Officer and copies of documents Ex.OP-1 to OP-2.
5. We have heard learned amicus Curiae and have gone through the file. None appeared for the OP to address arguments.
6. The purchase of three wheeler by the complainant from the OP under hire purchase agreement dated 19.04.0213 duly executed with the OP is not disputed. Against the total loan amount of Rs. 1,49,000/-, the complainant has admittedly repaid a total sum of Rs.2,09,100/- as on 07.04.2015. On 07.04.2015 the officials of the OP forcibly took away the possession of the vehicle in question without any prior notice, consent and approval of the complainant. The officials of the OP while taking forcible possession of the vehicle informed the complainant that he has been defaulter in making 2-3 monthly installments because pre-paid cheques of the complainant submitted by him with the OP are lost by the OP and, therefore, the OP is not able to get the EMI for this period and he being a defaulter the vehicle in being taken away from him. The complainant has challenged the action of the OP for illegally dispossessing him of his vehicle as he is not in default of any payment because the pre-paid cheques, if lost by the OP, the OP could have asked for substituted cheques from him which it has failed to do and the OP, therefore, cannot take the benefit of its own wrongs.
7. It is admitted fact between the parties that during the course of proceedings of the present complaint, the OP has released the vehicle in question to the complainant in compliance with the interim order dated 10.04.2015 passed by this Forum. Thus, the release of vehicle on 24.04.2015 by the OP clearly shows that the vehicle in question was in their illegal possession from 07.04.2015 till 24.04.2015. Thus the act of illegal dispossession of the vehicle by the OP amounts to unfair trade practice having been indulged by the OP, ipso facto is proved during the course of proceedings.
8. The OP has no right whatsoever, during the currency of the loan agreement, to take away forcible possession of the property of the complainant i.e. the vehicle in question. Thus, the seizure of the vehicle/dispossession and repossession without notice has certainly caused the complainant mental agony and harassment as his livelihood has been disrupted and affected. Further the image and reputation of the complainant in the society is also lowered on account of abrupt, sudden and forcible seizure of the vehicle by the OP, without any fault of the complainant. Thus, the act of the OP, as stated above, i.e. the seizure of vehicle without notice and release of the same after the interim orders of the Forum, in our opinion is an act of deficiency in service committed by the OP. Therfore, the complainant ought to get suitable compensation from the OP.
9. In order to arrive at the conclusion of what should be the fair compensation, which the OP should pay to the complainant under the facts and circumstances of the case, we go back to the statement of account of the loan account of the complainant Ex.OP-2. Admittedly the loan has been granted by the OP to the complainant for purchase of vehicle in question under hire purchase agreement on 19.04.2013. The complainant is in possession of the vehicle since then and is plying the same by way of self employment for earning his livelihood. The complainant has not been defaulter from 15.05.2013 to 07.04.2015 as the complainant has proved the payment of installments from copy of bank pass book of Union Bank of India Ex.C-7. The OP has in fact as a counter blast to the present complaint has further harassed the complainant by presenting cheque bearing No.32011519 which was already in its possession for an amount of Rs.41,300/- knowing fully well that the matter is pending before this Forum. Thus, the complainant has suffered further harassment in the hands of the OP. Whatever is the outstanding against the complainant, as per terms of the hire purchase agreement, the OP is well within its right to recover the same by following the due process as per law and not by resorting to undue pressure and harassment to the complainant. As per statement of accounts Ex.OP-2 there are certain details of bounced cheques and the amounts due against the cheques has been already stood paid through the account of the complainant as per details mentioned in the pass book, still the OP has given no intimation about the adjustment of the installments to the complainant. Further the OP has failed to show any document or statement of account showing the outstanding amount of Rs.41,300/- as on 28.04.2015 against the complainant.
10. Further as per the complainant the OP has not released the insurance policy of the vehicle in question. In the pleadings, the OP has not denied this fact. Rather, put a counter that insurance policy has not been released because the complainant has not made the due payment. Thus the retention of valuable document/security of the complainant by the OP has further aggravated the mental harassment and agony to the complainant as this act also amounts to unfair trade practice and deficiency in service on the part of the OP. 11. On the basis of above discussions and facts and evidence on record as appreciated, we are of the considered opinion that the complaint deserves to be allowed and the complainant deserves to be compensated. In support of our above findings we take the support of the recent decision of Hon’ble National Commission rendered in L&T Finance Ltd. & Anr. Vs. Rampada Maity, 2016(2) CLT 343 wherein it has been held that “when there is nothing on record that the OP has exercised their right of repossessing the vehicle, after terminating the loan agreement, the act of the OP of repossessing the vehicle during the currency of loan agreement, is an act of unfair trade practice and deficiency in service.
12. Therefore, the complaint is allowed with the following direction to the OP:
(a) to pay to the complainant compensation of Rs.30,000/- (Rs. Thirty thousand only) towards mental agony and harassment.
(b) to pay Rs.20,000/- (Rs. Twenty thousand only) to Ms. Rameet Bakshi, Amicus Curiae, for providing legal assistance to the complainant.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
July 11, 2016.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
