Date of filing : 28-01-2010 Date of order : 30-10-2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C. 19/2010 Dated this, the 30th day of October 2010 PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER K.Subrahmanyan, S/o.Raman, Kunnummal House, } Complainant Meladukam, Pullur.Po, Kasaragod. (Adv. Babuchandran.K, Kasaragod) The Manager, } Opposite party Shriram Transport Finance Co.Ltd, Kunnaruvath Building, North Kottachery, Kanhangad, Kasaragod.Dt. (Adv.B.Ramakrishna Bhat, Kasaragod) O R D E R SRI.K.T.SIDHIQ, PRESIDENT Bereft of unnecessaries the case of the complainant is as follows. Complainant under a loan cum hypothecation agreement with the opposite party purchased a lorry (goods carriage) bearing Reg.No.KL-13B-8705 in December 2009. As per the terms of contract complainant was to pay `8,500/- as monthly instalment for 3 years. Complainant paid `11,500/- on 8-12-2009 and `8,500/- on 04-01-10. The complainant himself was driving the vehicle as self employment for his livelihood. But on 13-01-10 opposite party repossessed the vehicle forcefully. Though complainant approached opposite party and questioned the illegal act they issued him a letter and told that it is an acknowledgment for the repossession of the said vehicle and they are going to sell the vehicle in public auction. The signature contained in the letter was obtained by opposite party in a blank letter heads at the time of granting loan. Complainant was not defaulted any instalments at the time of repossession. Due to the said illegal re-possession complainant became unemployed. Apart from that he also lost `1,20,000/- that is spent for purchasing the vehicle. Hence the complaint for an order against opposite party directing them to return the vehicle and a payment of `1,000/- per day from 14-01-10 to till delivery of vehicle towards loss of income together with a compensation of `10,000/- and cost `5,000/-. 2. According to opposite party the complainant voluntarily surrendered the vehicle on 31-12-2009 by executing a surrender letter due to some misunderstanding arose between the complainant and his guarantor. The complainant had defaulted payment of the amount due as per the said agreement. Hence there is no deficiency in service on their part. The complainant is not a consumer since the relationship between the complainant and opposite party is under loan cum hypothecation agreement. 3. Complainant filed proof affidavit and Exts A1 to A3 marked. On the side of opposite party Jinson M. Branch Manager of opposite party filed affidavit and Exts B1 & B2 marked. Both sides heard. Documents perused. 4. Ext.B2 is the copy of Ext. A3 which is said to be the acknowledgement of the surrender of the vehicle to opposite party. 5 According to opposite party due to some misunderstanding between the complainant and the guarantor, complainant surrendered the vehicle on 31-12-2009. It is also the contention of opposite party that complainant had defaulted payment of the monthly instalment, amount as per the Ext.B1 agreement. Opposite party also contended that complainant is not a consumer since the relationship between complainant and opposite party is arising out of a loan cum hypothecation agreement. 6. But we are unable to accept any of the points urged by the opposite party. According to complainant Ext.A3 is a document concocted by the opposite party for the purpose of the case. According to him the vehicle was forcefully repossessed from him and at the time of executing Ext.B1 loan cum hypothecation agreement opposite party had obtained his many signatures in blank letter heads of the opposite party and Ext.A3 is one of such letter head converted as acknowledgment of surrender. On a close scrutiny of Exts A3 & Ext.B2 it appears that what is stated by the complainant is true. In Ext.A3 & Ext.B2 the date of surrender is said to be on 31-12-2009. If so why did they accept `8500/- towards the monthly finance instalment on 4-1-2010 as per Ext.A2 is remained unexplained. A prudent reasonable man would never pay any monthly instalment after surrendering the vehicle voluntarily. Further complainant also stated during enquiry that the RC of the vehicle is still with him and had the vehicle been surrendered as alleged by opposite party then they would have obtained RC from him or the complainant would have surrendered the RC also along with the vehicle. 7. Another contention of opposite party is that complainant defaulted monthly instalment payments. But Exts A1 & A2 receipts prove that there is no default in payment of monthly instalments. 8. Therefore it is clear that opposite party has committed a high handed action and they forcefully re-possessed the vehicle without any reasons and violating all canons of trade practice. It amounts to deficiency in service as envisaged under the Consumer Protection Act. 9. The Hon’ble National Commission in the case Tata Finance Ltd V. Francis Soeiro 2008 CTJ 979(NC) has held that taking possession of a vehicle by use of force was not justified. The Hon’ble Supreme court in the case of ICICI Bank V Shants Deo Sharma &Ors 2008 CTJ 677 (SC) has held that it was appropriate to remind financial institutions that they are bound by law and the recovery of loan or seizure of vehicles can only be done through legal means. 10. The Delhi State Commission in the case of Tapan Bose V ICICI Bank Ltd & Ors 2008 CTJ 177(CP) has held that hire purchase agreement/loan agreement/hypothecation contract are contracts of civil nature and any dispute arising from it has to be settled by way of civil remedy and not by muscle men. In that case opposite party was directed to pay `5 lakhs as damages to the complainant along with punitive costs `50 lakhs. 11. The above judgment is an answer to the contention of opposite party that complainant is not a consumer since the relationship between the complainant and opposite party is under loan-cum-hypothecation agreement and complainant has not availed any service from opposite party. 12. Again the Hon’ble National Commission in the case of MAGMA FINCORP LIMITED V ASHOKUMAR GUPTA reported in III (2010) CPJ 384 (NC) relying on the earlier decision in the case of Citicorp Maruti Finance Ltd V S.Vijayalaxmi III (2007) CPJ 161 has dismissed the revision petition filed by the financier on the ground that they failed to comply with the full legal requirements of Reserve Bank of India guidelines. 13. From the facts set out above it is clear that opposite party is has committed grave deficiency in the service rendered by them to opposite party. They not only repossessed the vehicle from the custody of the complainant but even shown the audacity to concoct documents to justify their illegal act. If this is not deficiency in service then what else it is? Opposite party alleged that there was some misunderstanding between complainant and opposite party and that was the reason for surrendering the vehicle. But nothing is brought before us to establish that contention. Therefore it is quite unbelievable. 14. Therefore it is clear that opposite party acted arbitrarily and thereby caused loss to the complainant. The opposite party is therefore liable to compensate the complainant for the loss hardships & mental agony caused to the complainant. 15. Relief & Costs. According to complainant he had an aggregate loss of `1,26,000/- due to the illegal re-possession of the vehicle by opposite party. That figure is not disputed by opposite party. That apart he became unemployed. The prayer of the complainant is an order to opposite party to return the vehicle to complainant together with compensation and costs. We are of the view that since the relationship between the complainant and opposite party is already shattered the return of the vehicle to the complainant and thereby restoration of their relationship would may lead to further issues in future. Hence it would be just and convenient to direct the opposite party to refund the amount already spend and incurred by the complainant for the vehicle together with compensation and costs. Hence the complaint is allowed and opposite party is directed to pay a refund `1,26,000/- that the complainant spent to make the vehicle roadworthy together with a compensation of `30,000/- for the loss hardships & mental agony suffered by the complainant and a cost of `4,000/-. On receipt of the above payment complainant shall return the RC of the vehicle to opposite party and execute necessary documents for the transfer of the vehicle. Time for compliance of this order is limited to 30 days from the date of receipt of copy of the order. Failing which opposite party shall be liable to pay interest @ 12% for `1,26,000/- from the date of complaint till payment. Sd/- Sd/- MEMBER PRESIDENT Exts. A1.8-12-09 Receipt issued by OP A2.04-01-2010 receipt issued by OP A3. 14-01-10 letter issued by OP B1.Loan Cum Hypothecation Agreement B2.14-1-10 copy of letter PW1.K.Subramanyan DW1. Jinson Sd/- Sd/- MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT
| | HONORABLE P.Ramadevi, Member | HONORABLE K.T.Sidhiq, PRESIDENT | , | | 
