BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER C.C. No. 62/2008 Filed on 02.04.2008 Dated : 15.02.2010 Complainant: Ibrahim Kunju, Ibrahim Manzil, Near Lakshom Veedu Colony, Vayyattu, Venjaramoodu, Thiruvananthapuram-695 607.
(By adv. S. Vijayakumaran) Opposite parties:
M/s ICICI Bank Ltd., ICICI Bank Towers, Bandra, Kurla Complex, Mumbai-400 051. ICICI Bank Ltd., Thiruvananthapuram Branch, RAPG Division, 2nd Floor, Kamala Towers, Ganapathy Kovil Road, Vazhuthacaud, Thiruvananthapuram -14 represented by its Manager. Kallingal Automobiles, Nedumangadu, Thiruvananthapuram represented by its Proprietor.
This O.P having been heard on 29.01.2010, the Forum on 15.02.2010 delivered the following: ORDER SMT. BEENAKUMARI.A: MEMBER
The complainant in this case is a small scale business man and he owned a pick up Auto bearing Reg. No. KL-01 7797 by which he conducted the business by driving the vehicle himself. The 3rd opposite party is the dealer of Bajaj Pick up Auto. With the instigation of the staff of the 3rd opposite party and the staff of the 2nd opposite party the complainant exchanged his vehicle with a new one. The specific assurance were that the complainant need not go anywhere for the loan purposes good value will be given for the old vehicle, the new vehicle will be insured with 2nd opposite party free of cost and the monthly instalments will be collected by the agents of the 2nd opposite party directly from the residence of the complainant. By such inducing the complainant put some signature on some blank papers and some printed forms and as per the direction of the office staff of 2nd and 3rd opposite parties the complainant took the vehicle to the office of the 3rd opposite party on 30.09.2007. The 3rd opposite party informed that loan is arranged for an amount of Rs. 1 lakh and the value of the new vehicle is Rs. 1,28,000/-. The 3rd opposite party assessed the value of the old vehicle to Rs. 18,000/- which was very low than the actual value. The complainant was not amenable with this price and thus he tried to return the old vehicle. At this juncture the 3rd opposite party informed that a loan for Rs. 1 lakh had already been sanctioned and whether the complainant exchanged the old vehicle or not he must pay interest of the loan or else legal measures will be taken for realizing the same. Thus the complainant was compelled to avail the new vehicle and thus he paid an amount of Rs. 10,000/- to the 3rd opposite party on 11.10.2006. The staff of the 3rd opposite party came to the residence of the complainant with form for opening account with Dhanalakshmi Bank, Ernakulam Branch and they themselves filled up the form and took the complainant to the bank and account was opened and two cheque books were procured in which there were 35 cheque leaves ranking from 065561 to 065580 and 065541 to 06555. The complainant was made to sign all those blank cheque leaves and were handed over to the 3rd opposite party as additional security towards the loan. An additional amount of Rs. 10,000/- was collected from the complainant on 17.10.2006 towards insurance, road tax and registration of the vehicle. The vehicle was handed over to the complainant and the registration number of the vehicle was KL-21 3049. Inspite of the repeated requests the opposite parties failed to hand over the R.C book and tax token of the vehicle to the complainant. Inspite of specific undertaking from the side of 1st opposite party, they failed to collect the monthly instalments promptly and thus by July 2007 two instalments became due. Without any demand for the dues the vehicle was taken by force by the hired goondas of the 1st and 2nd opposite parties. By letter dated 02.08.2007 the opposite parties informed the complainant that the vehicle is in their custody and falsely stated in that notice that they had earlier given notice to pay the dues and further demanded the complainant to produce the R.C book and other documents of the vehicle which is already in their custody by colluding with the 3rd opposite party. The 1st and 3rd opposite parties colluded together to defraud the complainant. Then the complainant visited the office of the 2nd and 3rd opposite parties and expressed his willingness to pay the dues to which the opposite parties were not ready to receive the amount. Thereafter the complainant received a letter dated 13.08.2007 demanding to clear the dues of Rs. 13,786/-. Immediately on receipt of the letter complainant approached the opposite parties with the amount but the opposite parties demanded closure of the loan by paying the entire loan amount with future interest which is against all the existing laws. Thereafter the complainant received a notice of the 1st opposite party informing that the vehicle is sold for Rs. 35,000/- and further demanding an amount of Rs. 75,179/- from the complainant. No notice regarding the termination of loan agreement was issued to the complainant and no notice regarding the proposed auction of the vehicle was given to the complainant. The complainant had every right to participate in the auction of the vehicle and thus law mandates that notice is to be issued to the complainant. The said action of the opposite parties amounts to unfair trade practice and deficiency in service. The complainant further pleads that the vehicle was only nine months old when it was seized and the actual price of the vehicle along with its accessories was Rs. 1,30,000/- and only 5% depreciation of value comes within one year and the value of the vehicle as on the date of sale was Rs. 1,23,500/-. The complainant stated that the vehicle was only hypothecated with the 1st opposite party and not under hire purchase and thus the opposite parties do not have any authority to seize the vehicle and sell it without any notice unilaterally and arbitrarily. The complainant is entitled to get back an amount of Rs. 13,321/- together with interest from the opposite parties. The complainant is also entitled to receive the 35 cheque leaves from the opposite parties and also entitled to Rs. 5,000/- towards mental agony suffering and business loss which were attributed by the opposite parties. For the redressal of his grievance the complainant has filed this complaint before this Forum. The opposite parties accepted the notice issued from this Forum, but they never turned up to contest this case. The complainant has filed affidavit in lieu of oral evidence and he has produced 16 documents. The documents produced by the complainant were marked as Exts. P1 to P16. The affidavit filed by the complainant stands unchallenged since nobody has cross examined him. Points that would arise for consideration are:- Whether there is unfair trade practice or deficiency in service occurred from the side of opposite parties? Whether the complainant is entitled to get the reliefs and costs?
Points (i) & (ii):- The case of the complainant is that without issuing prior notice the 1st and 2nd opposite parties seized his vehicle and sold it out. As per the complainant the act of the opposite party is illegal and amounting to unfair trade practice and deficiency in their service. The complainant states that he was paying the loan instalment amount promptly to the opposite parties till the 6th instalment. Thereafter the opposite parties did not come to his residence to collect the instalment amount as per the undertaking given by the opposite parties. The complainant states that as per the compulsion of the opposite parties he had exchanged his old vehicle and brought the new vehicle which was seized by the 1st and 2nd opposite party with the collusion of the 3rd opposite , the dealer of the vehicle. The value of the new vehicle was Rs. 1,28,000/-. As per the opposite parties they sold the vehicle for Rs. 1,10,179/-. The vehicle was only nine months old when it was seized. And the opposite parties are demanding an amount of Rs. 75,179/- from the complainant as the balance amount he has to pay. As per the complainant he is entitled to get back an amount of Rs. 13,321/- together with interest from the opposite parties. To prove his contentions the complainant has produced 16 documents. That documents were marked as Exts. P1 to P16. Ext. P1 is the receipt issued by the 3rd opposite party dated 11.10.2006 for the acceptance of Rs. 10,000/-. Ext. P2 is the receipt issued by the 3rd opposite party for an amount of Rs. 18,000/- towards the price of old vehicle dated 30.09.2006. Ext. P3 is the insurance certificate issued by ICICI Lombard. As per this document insurance premium is Rs. 3,264/- in the name of the complainant. Accordingly insured value of the vehicle is Rs. 1,14,824.60. Ext. P4 is the pass book of the complainant. Ext. P5 to P10 are the payment receipts of 1st opposite party for the payment of EMI of Rs. 3,197/-. Ext. P11(a) and P11(b) are the copies of letter dated 12.08.2007 and 13.08.2007 issued by the 2nd opposite party to the complainant informing that if the complainant did not pay the amount and take delivery of the vehicle within seven days, opposite parties will take steps to dispose the vehicle. As per this document the opposite parties demanded Rs. 1,10,179/- as full and final settlement of loan amount. Ext. P12 is the amortization schedule. As per this document principal amount is Rs. 1,00,000/-, EMI amount is Rs. 3,197/- and total instalment is 36. In this case the complainant has paid 6 EMI. Accordingly the total amount ought to have paid to the opposite party is Rs. 86,709.43. Ext. P13 is the notice dated 19.11.2007 to the complainant demanding payment of Rs. 75,179/- an amount due and payable by the complainant after adjusting the sale proceeds as per their accounts. In this letter the 1st and 2nd opposite parties stated that they disposed off the vehicle for Rs. 35,000/-. In this notice the opposite party stated that they issued letter dated 07.08.2007 informing the complainant regarding the disposal of the vehicle if the complainant is not paying the outstanding amount of Rs. 1,10,179/- within a period of 7 days. But the complainant stated that the opposite parties did not send such a letter on 07.08.2007. Ext. P14 is the reply notice issued by the complainant to the opposite parties dated 29.01.2008. Through this reply notice the complainant demanded to refund an amount of Rs. 13,321/- from the opposite parties. Ext. P15 is the postal receipt of the notice. Ext. P16 is the returned acknowledgement card signed by the opposite party's counsel. The opposite parties in this case remained exparte. Even though they have accepted notice from this Forum, they never turned up to contest the case. The affidavit filed by the complainant stands unchallenged. We have perused all the documents, pleadings and evidences adduced by the complainant carefully. The price of the Bajaj Pickup Auto is Rs. 1,28,000/-. The complainant had paid Rs. 28,000/- to the 3rd opposite party directly. Exts. P1 and P2 are the evidence for that payment. The loan amount sanctioned by the 1st and 2nd opposite party is Rs. 1,00,000/-. The complainant has paid Rs. 19,488/- in 6 instalments to the 1st and 2nd opposite parties. Exts. P5 to P10 receipts are the evidence for that payment. Ext. P3 policy copy shows that the complainant had paid an amount of Rs. 3,264/- towards insurance premium. Hence the complainant had paid an amount of Rs. 40,752/- towards the price of the vehicle. The price of the vehicle is Rs. 1,28,000/-. The date of purchase was 11.10.2006. The 1st and 2nd opposite parties seized the vehicle on 02.08.2007 i.e; 10 months after the date of purchase. The opposite parties stated in Ext. P13 letter that they have disposed of the vehicle for an amount of Rs. 35,000/-. But we cannot find it is reasonable since the actual price of the vehicle is Rs. 1,28,000/-. The vehicle is used only for 10 months. The depreciation values comes only 5% per year. Accordingly the price of the vehicle ought to have got is Rs. 1,20,600/- (Rs. 1,28,000/- - Rs. 7,400/-). As per the opposite parties the balance amount due to them is Rs. 1,10,179/-. Hence as per the calculation of the opposite party himself the complainant has to get back Rs.10,421/- (Rs. 1,20,600 - Rs. 1,10,179) . And moreover the complainant had paid Rs. 28,000/- as instalment to the dealer. Since the complainant had paid an amount of Rs. 40,752/- towards the price of the vehicle, the complainant is entitled to get that amount from the 1st and 2nd opposite parties. The vehicle was only hypothecated with the 1st opposite party and not under hire purchase and thus the opposite parties have no authority to seize the vehicle and sell it without notice. There are various higher courts decision against the unlawful repossession of the vehicles by the financier. The act of the opposite parties in seizing the vehicle without notice is illegal and against law and justice. Hence the opposite parties are liable to compensate the complainant for their unfair trade practice and deficient service. Hence the complaint is allowed. In the result, the 1st and 2nd opposite parties are jointly and severally directed to pay Rs. 50,000/- to the complainant as compensation and costs. Time for compliance one month from the date of receipt of this order. Otherwise 9% annual interest shall be paid to the entire amount. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15th day of February 2010.
BEENAKUMARI. A : MEMBER
G. SIVAPRASAD : PRESIDENT S.K. SREELA : MEMBER jb
C.C. No. 62/2008 APPENDIX I COMPLAINANT'S WITNESS : NIL II COMPLAINANT'S DOCUMENTS : P1 - Original receipt No. 967 dated 11.10.2006 P2 - Original receipt No. 966 dated 30.09.2006 P3 - Insurance certificate issued by opposite party. P4 - Pass book of the complainant. P5 - Payment receipt dated 11.01.2007 P6 - Payment receipt dated 23.01.2007 P7 - Payment receipt dated 13.04.2007 P8 - Payment receipt dated 30.06.2007 P9 - Payment receipt dated 23.07.2007 P10 - Payment receipt dated 31.07.2007 P11(a)- Presale notice dated 02.08.2007addressed to complainant. P11(b)- Photocopy of the speed post addressed to complainant. P12 - Amortization schedule P13 - Notice dated 19.11.2007 to the complainant. P14 - Reply notice dated 29.01.2008 P15 - Postal receipt of the notice P16 - Acknowledgement card
III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : NIL PRESIDENT
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