BEFORE THE ADDITIONAL BENCH OF A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA.No.889/2006 AGAINST C.D.No.123/2004 DISTRICT FORUM-III, HYDERABAD
Between:
V.Vidya Sagar Sharma, S/o.V.Gurunatham
Aged about 40 years, Occ:Civil Contractor,
Civil Engineer, R/o.H.No.2-41/4, Plot No.18,
Nizampet Road,
Kukatpally, Hyderabad. Appellant/
Complainant
A N D
ICICI Bank Ltd.,
Represented by its Collection Manager
ICICI Bank, Rapg Level-II, West Wing,
1-11-256, Street No.1, Begumpet,
Hyderabad-16. Respondent/
Opposite party
Counsel for the Appellant: Mr.K.Bhaskar Rao.
Counsel for the Respondent:-Respondent served.
QUORUM: SMT.M.SHREESHA, MEMBER
&
SRI K.SATYANAND, MEMBER
THURSDAY, THE TWENTY NINTH DAY OF OCTOBER,
TWO THOUSAND NINE
Oral Order( Per Sri K.Satyanand,Hon’ble Member)
***
Not satisfied with the relief granted by the District Forum, the complainant preferred this appeal.
The facts that led to filing this appeal are briefly as follows:
The complainant obtained a car loan of Rs.1,50,000/- from the opposite party bank on 30-3-2001. The said vehicle was delivered to the complainant on 1-5-2001. The bank loan was marked to be discharged in 60 instalments of Rs.3,488/- per month. The complainant claimed to have paid instalments regularly till 18-11-2003 and yet the opposite party sized the vehicle on 12-1-2004 high handedly without any prior notice and with the help of unsocial elements. Subsequently the complainant approached the bank and they justified their seizure saying that the complainant fell in arrears to a tune of five instalmetns. He also claimed to have paid January instalment by way of a DD for Rs.5576/-. The complainant further alleged that on account of the unlawful seizure, he was deprived of the vehicle and as such he could not keep up the business appointment and ultimately lost civil contract with MCH. Thereupon the complainant allegedly issued a notice claiming Rs.2,00,000/- by way of compensation.
The opposite party bank filed counter admitting the grant of loan and the volume of loan and contended that there was an agreement for the clearing of the loan in 60 instalments at the rate of Rs.3,488/-. However the bank contended that the repayments were erratic and as many as 26 cheques were dishonoured and in lieu thereof, he paid cash. Ultimately it maintained that he fell in arrears and therefore claimed to have seized the vehicle and issued a notice dated 12-1-2004 stipulating 7 days time to clear all the arrears outstanding due to the bank in a sum of Rs.99,825/- and take back the seized vehicle. Instead of complying with that he approached the Forum subsequently. He violated the terms of the agreement and he even violated RTA by changing the vehicle to one operated by LPG gas. As he did not respond to the notice, the opposite party claimed to have sold away the vehicle for Rs.1,20,000/- appropriated the same towards the amount outstanding due to it and also having deposited Rs.9,951/- as the amount the complainant was entitled to after the discharge of the loan. It also relied upon the circumstance that the Forum dismissed the IA for the interim release of the vehicle. Thus the opposite party canvassed that there were no merits in the complaint.
The complainant filed his own affidavit and relied upon documents marked as Exs.A1 to A14. The opposite party on the other hand relied upon Exs.B1 to B7.
On a consideration of the evidence adduced on either side, the District Forum found that there was deficiency of service on the part of the opposite party bank and therefore ordered payment of Rs.25,751/- from the date of failure to comply with the order till the final payment as also costs in a sum of Rs.2,000/-.
Not satisfied with the quantum of relief he got as obviously he prayed for more of compensation to a tune of Rs.2,00,000/- besides the release of the vehicle, he preferred this appeal on the grounds inter-alia that the District Forum erred in relying upon Ex.B1 which was merely a model of hypothecation agreement not signed by the complainant. The District Forum ought to have noticed that the opposite party had collected interest at 14.51% on the amount of Rs.1,50,000/- and the complainant had paid 33 instalments which came to Rs.1,15,104/- and apart from that the opposite party by selling the vehicle in question obtained Rs.1,20,000/- by way of sale proceeds and therefore it ought to have come to the conclusion that the complainant had cleared the entire loan and restored the vehicle to him. The District Forum failed to see that the opposite party did not issue any notice before the seizure and therefore it is violative of various judgements including BIRABHADRA SAHOO v. MANAGING DIRECTOR, SHRIRAM CITY UNION FINANCE LTD. & OTHERS reported in 2004 CPJ (III) Page 306 and in this view of the matter, the District Forum ought to have allowed the CD by awarding Rs.2,00,000/- besides ordering restoration of the vehicle. It ought to have seen that this episode tarnished his reputation.
Neither side addressed arguments or filed written arguments. Hence perused the entire record.
The point that arises for consideration is
1. Whether the complainant is entitled to the release of the vehicle as prayed for?
2) Whether the complainant is entitled for the enhancement of compensation by way of damages to a tune of Rs.2,00,000/-?
3) Whether he is entitled to interest at 12%p.a..?
4) Whether there are any good grounds to modify the order of the District Forum?
The basic facts establishing the jural relationship of the complainant being the customer of the opposite party and the opposite party having provided the financial service of funding by way of giving a loan to the complainant for purchasing the vehicle are not at all in controversy. Neither of the parties filed the agreement between them and what the opposite parties filed as Ex.B1 is mere a dummy format of the agreement which takes us nowhere. However, the conditions of the loan are well established by collating the pleadings on either side which more or less agree upon the basic terms namely the amount advanced as loan, the quantum of monthly instalment, the number of monthly instalments so on and so forth. It is the common case of both parties that the complainant had paid 33 instalments, though complained to be irregular and those 33 instalments account for an amount of Rs.1,15,104/- . It is also not in controversy that 27 instalments were still due by that time to the opposite party. The complainant however contended that the opposite party collected interest at the rate of 14.51% and as such the amount paid would cover the loan amount taken. This line of argument is untenable for the reason that even according to the complainant, the monthly instalment was fixed at Rs.3,488/- which obviously was inclusive of the monthly interest element and therefore he cannot turn around and question the rate of interest. So taking the monthly instalment of Rs.3,488 as the basis, the amount that would be found as outstanding due to the opposite party towards rest of the 27 instalments would surely come to Rs.94,176/-. So the contention of the appellant that the loan stood discharged even by the payment of 33 instalments cannot be accepted. According to the opposite party in the sale of the vehicle, the opposite party realized as much as Rs.1,20,000/-. In that view of the matter, the District Forum computed the amount due to the complainant and quantified it at Rs.25,751/- .
But in the process of affecting the seizure and the sale, the opposite party surely violated law in as much as there is absolutely no evidence brought on record by them that the seizure was preceded by a due notice of proposed seizure. Similarly the opposite party also failed to tender any proof to show that the sale of the vehicle was duly notified to the complainant. As a matter of fact these two lapses on the part of opposite party constitute deficiency of service if one goes by the law laid down in Maruti Finance Ltd versus S. Vijayalaxmi III (2007) CPJ 161 (NC).
As a logical consequence it follows therefore that the status quo of the complainant’s possession of the vehicle has to be restored in normal circumstances but the opposite party emphatically maintained that the vehicle was sold away. The complainant did not take any steps to prove that the contention of the opposite party that it was sold away was false. So the relief of restoration of the vehicle was rendered impossible. In other words, if we go by the facts already found on record, the specific relief of restoring the vehicle cannot be acceded to. This however does not mean that the loss of the complainant cannot be otherwise compensated.
Strictly speaking those violations entitle the complainant to claim the restoration of the vehicle but as explained above we are not in a position to order the restoration of possession in favour of the complainant. It is therefore in these circumstances that we have to move to determine the next point.
The complainant for his part did not tender any evidence to show that the vehicle would have fetched more than Rs.1,20,000/-. In this situation wherein the complainant did not tender any evidence as to the market value of the vehicle as on the date of seizure on one hand and the opposite party likewise failed to prove that the vehicle was sold to Rs.1,20,000/- in the bid, the only way in the interest of justice is to meticulously evaluate the loss suffered by the complainant under the head of compensation and cast the relief in terms thereof. This is exactly what the District Forum did, but it over simplified the loss that the complainant suffered by accepting every assertion made by the opposite party without any demur. Virtually what the District Forum awarded was the amount outstanding due to the complainant after taking out an account of the whole transaction on the lines indicated by the opposite party. The relief granted by the District Forum did not provide for any additional compensation for the injury suffered by the complainant by way of seizure of the vehicle without any notice, sale of the vehicle without any notice and on the top of it the ignominy of being deprived of a vehicle without following the due process of law. In these circumstances, we feel that that the complainant/appellant deserved to be compensated with an enhanced amount of compensation than what the District Forum awarded. In this view of the matter, we are inclined to enhance the compensation to Rs.50,000/- instead of Rs.25,751/- without disturbing the rate of interest and costs awarded by the District Forum.
In the result, the appeal is allowed and the order of the District Forum is modified as above. The respondent/opposite party is directed to comply with the modified order within six weeks from the date of receipt of the order.
Sd/
MEMBER.
Sd/-
MEMBER
JM Dt.29-10-2009
