RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 1328 OF 2015
(Against the judgment & order dated 03-11-2015 in Complaint Case No. 278/2006 of the District Consumer Forum, Varanasi)
Smt. Nirmala Chaudhary
W/o Sri Aangad Ram
R/o Flat No.M-3, 4th Foor
Krishna Parisr Avasi Samiti
Opposite Vishal Mega Mort
Civil Line, District Allahabad, U.P.
...Appellant
V/s
Branch Manager
M/s. Magma Leasing Co. Ltd.
Branch Office 3/3 S P Marg
Civil Line, District Allahabad.
...Respondent
AND
APPEAL NO. 1617 OF 2015
(Against the judgment & order dated 03-11-2015 in Complaint Case No. 278/2006 of the District Consumer Forum, Varanasi)
Magma Fincorp Limited
(Magma Leasing Limited)
Having its regd. Office at
24, Park street, Kolkata-16
Interalia its Branch Office at
3/3 S.P. Marg, Civil Lines
Allahabad
Through Branch Manager
...Appellant
V/s
- Nirmala Chaudhary
660-D, 9th Avenue
Loco Colony, Allahabad.
- Banaras Automobile
Ram Nagar, Varanasi.
Through its Manager
...Respondents
BEFORE:
HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
HON'BLE MRS. BAL KUMARI, MEMBER
For the Appellant : Mr. Anil Kumar Mishra, Advocate.
For the Respondent : Mr. Rajesh Chadha, Advocate.
:2:
Dated : 28-11-2016
JUDGMENT
PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
Vide judgment and order dated 22-05-2015 passed in Complaint No. 278 of 2006 Smt. Nirmala Chaudhary V/s M/s. Magma Leasing Limited and others, the District Consumer Forum, Allahabad has allowed said complaint partly and has ordered opposite parties no.1 and 2 to pay Rs.3,25,000/-; the value of vehicle to the complainant with interest at the rate of 8% per annum from the date of filing complaint till the date of actual payment. The District Consumer Forum has further ordered that complainant is entitled to get Rs.50,000/- as compensation as well as Rs.5,000/- as cost of the case from opposite parties no.1 and 2.
Both parties of the complaint felt aggrieved with the judgment and order passed by District Consumer Forum. As such, complainant filed above Appeal No. 1328 of 2015 Smt. Nirmala Chaudhary V/s Branch Manager, Magma Leasing Limited and opposite parties no.1 and 2 filed above Appeal No. 1617 of 2015 Magma Fincorp Limited V/s Smt. Nirmala Chaudhary under Section-15 of the Consumer Protection Act 1986 before State Commission.
Learned Counsel Mr. Anil Kumar Mishra appeared for Smt. Nirmala Chaudhary complainant in both appeals.
Learned Counsel Mr. Rajesh Chadha appeared for Magma Fincorp Limited opposite party in both appeals.
We have heard learned Counsel for the parties in both appeals and have perused impugned judgment and order as well as records.
In Appeal No. 1328 of 2015 learned Counsel for the complainant/ appellant has contended that the amount of compensation as well as cost awarded by the District Consumer Forum is inadequate. Rate of interest allowed by the District Consumer Forum is also very low.
Learned Counsel for the respondent/opposite party has opposed appeal and contended that the District Consumer Forum has committed
:3:
error in accepting claim of appellant/complainant. The complaint is liable to be dismissed in toto.
In Appeal No. 1617 of 2015 learned Counsel for the appellant/ opposite party has contended that the impugned judgment and order passed by the District Consumer Forum is against evidence as well as law. It should be set aside and complaint should be dismissed.
Learned Counsel for the respondent/complainant has opposed this appeal and contended that this appeal should be dismissed.
We have considered submissions made by learned Counsel for the parties in both appeals.
After having gone through pleadings of parties the admitted facts emerged before us are that the complainant Smt. Nirmala Chaudhary obtained financial assistance/loan on 18-08-2001 from opposite party Magma Fincorp Limited and this loan was repayable in 35 E.M.Is of Rs.9,784/-. But complainant Smt. Nirmala Chaudhary made default in payment of E.M.I. Consequently on 15-01-2005 the opposite party Magma Fincorp Limited took possession of vehicle purchased with said loan and parked it in the garage of opposite party no.3 M/s. Banaras Automobiles. Thereafter complainant Smt. Nirmala Chaudhary deposited the whole amount due on 25-01-2005 with seizure charge of Rs.6,000/-. She further deposited D.P.C. charge on 23-09-2005. Ultimately no objection certificate was issued to her on 22-05-2006 but the vehicle seized was not released to the complainant by opposite party no.3 M/s. Banaras Automobiles who made further demand of parking charges at the rate of Rs.100/- per day.
In paragraph 10 of the written statement filed by opposite parties no.1 and 2 namely M/s. Magma Leasing Limited and Branch Office of M/s. Magma Leasing Limited it has been stated that release letter was issued on 31-03-2005 in favour of complainant to get release of vehicle after payment of yard charges. It has been further stated that again letters were sent to complainant on 12-04-2005 and 23-04-2005 to get her vehicle released after payment of yard charges but she did not get released her vehicle.
:4:
After having gone through the pleadings of parties and evidence on record the District Consumer Forum has observed that letter dated 31-03-2005 mentioned in written statement of above opposite parties is not on record and above letters dated 12-04-2005 and 23-04-2005 mentioned in written statement are fabricated. The District Consumer Forum has drawn conclusion that opposite parties no.1 and 2 have committed deficiency in service by not releasing vehicle to the complainant even after having issued no objection certificate to her.
District Consumer Forum has mentioned in the impugned judgment and order that the said opposite parties have not released vehicle even making defiance of order of State Commission passed on 18-03-2008.
Learned Counsel for opposite party/appellant has failed to show us release order dated 31-03-2005 mentioned in above paragraph 10 of written statement of opposite party/appellant. Learned Counsel for opposite party/appellant has further failed to show that letters dated 12-04-2005 and 23-04-2005 mentioned in above paragraph 10 of written statement were delivered to or served on complainant/respondent. There is nothing on record to show that the above letters were delivered to or served on complainant. Considering evidence on record and circumstances of the case we are of view that District Consumer Forum has rightly held that above letters mentioned in paragraph 10 of written statement are fabricated.
In ground ‘d’ of grounds of appeal appellant/opposite party has alleged that as per terms of loan agreement complainant had to pay the repo and other charges in consequence of repossession. Hence she is bound to pay the yard charges.
We have considered the plea raised in grounds of appeal. In terms of loan agreement the complainant is liable to pay charges arising out of repossession of vehicle to the appellant/opposite party only and not to any other person. Vehicle has been kept in garage of opposite party/ respondent No.2 by opposite party/appellant and not by complainant/ respondent. As such, opposite party/appellant was liable to pay yard
:5:
charges to the opposite party/respondent no.2 and might have recovered it from complainant/respondent alongwith loan amount.
The respondent/complainant has deposited whole loan amount due on 25-01-2005 with seizure charge of Rs.6,000/-. She has further deposited D.P.C. charges on 23-09-2005. Thereafter appellant/opposite party has issued no objection certificate to the respondent/complainant. No objection certificate shows that no other charge was due against complainant/respondent in respect of loan in question and in view of conclusion drawn above the conditional release order dated 31-03-2005 as well as letters dated 12-04-2005 and 23-04-2005 alleged by appellant/ opposite party are fabricated and have not been delivered to or served on complainant/respondent.
In view of above, after having gone through whole facts and evidence on record, we are of the view that appellant/opposite party has committed deficiency in service by not releasing vehicle to the complainant even after having issued no objection certificate to complainant on payment of loan amount alongwith other charges arising out of repossession of vehicle. The conclusion drawn by District Consumer Forum cannot be said to be against law and evidence.
Report commissioner shows that by efflux of time the vehicle has been ruined and it has lost its value. The District Consumer Forum has rightly awarded compensation of Rs.3,25,000/- on the basis of insured value of vehicle. The amount of compensation fixed by the District Consumer Forum is appropriate and reasonable.
Rate of interest fixed by District Consumer Forum is also reasonable.
In view of conclusion draw above, we are of the view that there is no sufficient ground for interference in the impugned judgment and order passed by District Consumer Forum. Appeal No. 1617 of 2015 filed by opposite party Magma Fincorp Limited has no merit and is liable to be dismissed.
District Consumer Forum has awarded compensation of Rs.50,000/- to the complainant in addition to insured value of vehicle
:6:
which is Rs.3,25,000/-. The District Consumer Forum has awarded interest also at the rate of 8% per annum. Relief granted by District Consumer Forum appears adequate and appropriate. Further more prayer clause of Appeal No. 1328 of 2015 filed by complainant is defective. Relevant part of relief clause is quoted below:-
“In view of the facts and circumstances of the case and grounds stated hereinabove the appellant is most respectfully prayed to this Hon’ble Commission kindly may graciously be pleased to allow this appeal by modifying the impugned judgment and order passed by learned D.C.R.F. Varanasi and directed to the respondent for giving a plot on the old rte or make payment of Rs.19,50,000/- (Nineteen Lakhs fifty thousand) with 18% interest along by awarding compensation against the physical and mental agony against the respondent.”
In view of defective prayer clause of appeal as well as for reasons mentioned above Appeal No. 1328 of 2015 filed by complainant/ appellant also has no merit and is liable to be dismissed.
In view of conclusions drawn above Appeal No. 1328 of 2015 filed by complainant as well as Appeal No. 1617 of 2015 filed by opposite party both are dismissed.
Parties shall bear their own costs in both appeals.
The amount deposited by appellant Magma Fincorp Limited under Section-15 of the Consumer Protection Act 1986 in Appeal No. 1617/2015 shall be remitted to the District Consumer Forum concerned for making disposal in accordance with law.
Let copy of this order be made available to the parties within 15 days positively as per rules.
This judgment shall be placed on the record of Appeal No. 1328/2015 with its copy to be laid on the record of other Appeal No. 1617/ 2015.
( JUSTICE A. H KHAN )
PRESIDENT
( SMT. BAL KUMARI )
MEMBER
Pnt.
