Date of Filing:18.07.2008<br /> Date of Order:07.10.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 7TH DAY OF OCTOBER 2008<br /> PRESENT<br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 1600 OF 2008<br /> <br /> Sri. Vijaykumar,<br /> S/o Govindaraj,<br /> R/at No. 44, No.127/7<br /> 8th Cross, O.P.H. Road <br /> Bhorjana Market, Shivajinagar <br /> Bangalore 560 051. Complainant<br /> <br /> V/S<br /> <br /> M/s. ICICI Bank,<br /> Commissariat Street,<br /> Bangalore 560 001. Opposite Party<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed U/Sec. 12 of the Consumer Protection Act, 1986 claiming Rs. 85,977/- with interest and costs.<br /> The brief facts of the case are that the opposite party offered excellent service and provides loan for purchase of two wheelers under competitive rate of interest with zero processing fee. In pursuance of said propaganda complainant intended to purchase Hero Honda Splendor Plus Motor Cycle from M/s Lakshmi Motors and paid a sum of Rs.15,525/- as advance and requested the opposite party to arrange for loan of Rs.28,875/- to be paid to M/s Lakshmi Motors. The opposite party paid a sum of Rs.28,875/- to M/s. Lakshmi Motors and the complainant was delivered with vehicle bearing registration No.KA 02 EN 9047 valued at Rs.44,400/-. The loan availed with the opposite party was without any processing fee and was granted on 29/10/2004 which was agreed to be repaid in 24 monthly EMI of Rs.1,639/-. Complainant had paid 17 installments out of 24 installments to be paid. There was no default on the part of the complainant in payment of 17 installments. The total sum of Rs.27,863/- was paid against the loan amount of Rs. 28,875/-. Inspite of no default, the opposite party employed musclemen who called themselves as executives of the Bank who drove away the vehicle in March-2007. Repeated requests and demands to the opposite party to redeliver the vehicle was of no avail. The opposite party on the ground that no amounts have been paid towards the loan, intimated the complainant orally that they have sold the vehicle for Rs.25,000/- and the entire sum is appropriated towards the due. The opposite party has sold the vehicle for atleast Rs.35,000/- after appropriating balance amounting to Rs.11,023/- the balance available would have been Rs.23,977/- which ought to have been paid to the complainant. The seizure of the vehicle without notice to the complainant and selling away without notice is against law, equity and natural justice, when there is no default. The opposite party had no authority to sell the vehicle without the complainant’s consent. Hence, the complaint.<br /> 2. Notice was issued to opposite party. Opposite party was put in appearance through advocate and defence version filed stating that the complainant is not a consumer. The complainant is misusing and abusing the process, he himself being a party to the contract and having committed breach of the terms of contract. It is denied that the opposite party made any propaganda for any excellent services. It is a bank, governed by the guidelines of the Reserve Bank of India. It is true that the complainant availed a loan, but it is false that the loan is only Rs.28,875/-. The actual loan amount advance to the complainant is Rs.33,000/-. It is true that the amount paid to M/s Lakshmi Motors and the complainant has executed an agreement hypothecating the vehicle as a security for the loan. The complainant became a defaulter, and also the payment of installments became irregular. His ECS drawn towards the payment of installments were also bounced nearly 12 times. The complainant forfeit all his right and he became liable to pay the amount of Rs.17,793.85. The vehicle in question hypothecated always remained with the opposite party and it has every right to sell under the contract. The opposite party after giving sufficient opportunity to the complainant had seized the vehicle on 10/01/2007. The opposite party has issued pre-sale notice on 13/01/2007 under registered post bringing to the notice of the complainant of the default committed in the payment of installment and consequent to that the vehicle has been possessed will be sold as per the agreement if not responded. Despite notice, the complainant did not take any action either to pay the amount or even sought for time, or pleading inability to pay immediately. The vehicle was sold after obtaining valuation from the approved valuator, in a public auction on 15/02/2008 for a highest price. The balance payable to the complainant is only Rs.3,436/- which any time he can collect it. In view of all these reasons stated above, the opposite party requested to dismiss the complaint. <br /> 3. Affidavit evidence of both the parties filed. Arguments are heard.<br /> 4. The point for consideration is:<br /> “Whether there was deficiency of service on the part of the opposite party?”<br /> <br /> <br /> REASONS<br /> <br /> 5. It is an admitted case of the complainant that the complainant has purchased Hero Honda motor cycle from the dealer M/s. Lakshmi Motors. The complainant has stated that he has taken loan from opposite party bank to the extent of Rs. 28,875/-. This statement of the complainant is not correct. The complainant has not come with true facts. As per the document produced by the complainant himself i.e. the account statement dated 31.08.2007 taken from the opposite party bank the loan advanced by the opposite party bank is Rs. 33,000/-. Therefore, the allegation of complainant that he has taken loan of Rs. 28,875/- is against records and it is on the face of it false. The complainant became defaulter in payment of loan installments. As per the account statement produced by the complainant himself several cheques were bounced. Admittedly, the vehicle was hypothecated with the opposite party bank since the bank has advanced loan for purchasing the vehicle. The complainant was due of Rs. 17,793/- to the opposite party bank. Since, the complainant was irregular in payment of installments the opposite party bank as per the terms of agreement executed by complainant in favour of opposite party seized the vehicle on 10.01.2007 and the opposite party bank has issued a pre-sale notice on 13.01.2007 under registered post to the complainant. The copy of pre-sale notice sent to the complainant has been produced by the opposite party bank. It is stated in the notice that the vehicle has been taken to the custody of bank for non-payment of dues despite of several reminders. Opportunity was given to complainant to remit the amount along with over due charges and seven days time was given to the complainant to pay the dues and take delivery of the vehicle. On failure of the payment it is stated in the notice that it will be assumed that complainant is no longer interested in settling the account and hence, necessary steps will be taken to dispose off the asset to the best quote received by the bank. Sale proceeds received will be credited to the account. It is further stated in the notice that the complainant will come forward in settlement of account in full and take delivery of the asset. Inspite of the pre-sale notice the complainant did not settle the claim and has failed to pay the dues. The opposite party bank obtained valuation report from the approved surveyors. The surveyor had shown the approximate market value of the vehicle at Rs. 24,000/-. The opposite party bank has produced valuation report. Since, the complainant did not come forward to settle the account the opposite party bank sold the vehicle in public auction on 15.02.2007 to highest bidder. The highest bid amount was Rs. 25,000/-. The bid was accepted and approved. The amount realized on account of sale of the vehicle through public auction same was disposed towards the loan account of the complainant after defraying the expenses. The opposite party has produced auction proceeding papers. As per the account statement the outstanding due was Rs. 17,793/-. The opposite party bank has charged Rs. 2,500/- towards Repo charges and Rs. 350/- charged towards valuator charges and Rs. 410/- is shown towards parking and other charges. The total amount which was due to opposite party was Rs. 21,054/- and the vehicle was sold in public auction for Rs. 25,000/-. As per the statement of account produced by the opposite party Rs. 3,436/- is the balance amount which is payable to the complainant. The opposite party bank has come forward that the complainant can collect or receive the balance amount at any time. The complainant has taken account statement on 31.08.2007. He has filed complaint on 18.07.2008 nearly after more than 11 months. He has not challenged the account statement and he has not complained to the opposite party bank about the correctness of the account statement. The vehicle was seized on 10.01.2007. The opposite party bank had issued pre-sale notice to the complainant on 13.01.2007. The complainant has not taken any steps for about six months. He has not approached the bank for settlement of account. He has not replied to the presale notice of the bank. The complainant has not approached with his grievance to the Banking Ombudsman after seizure of the vehicle. He has filed this complaint before this forum on 18.07.2008. Taking into consideration of all these facts and circumstances of the case there is absolutely no deficiency of service on the part of opposite party bank. The complainant has miserably failed to prove as to what was the deficiency in service on the part of opposite party. The complainant has taken loan with the opposite party bank with an agreement to make payment regularly by way of monthly installments and he has failed to make payment as per the agreement. Several cheques have been bounced. Under these circumstances the opposite party bank has seized the vehicle as per the terms and conditions of the hypothecation agreement and after seizure of the vehicle an opportunity was given to the complainant by sending presale notice. For this also there was no response from the complainant. Therefore, ultimately the opposite party bank put the seized vehicle to public auction and vehicle was sold to the highest bidder and amount so realized was adjusted towards the loan account of the complainant. The opposite party bank is always ready and willing to pay back the balance amount of Rs. 3,463/- to the complainant. So under these circumstances there is absolutely no merit in the complaint. It is devoid of merit. Therefore, the complaint deserves to be dismissed. In the result I proceed to pass the following:<br /> ORDER<br /> <br /> 6. The complaint is dismissed. However, the opposite party bank is directed to pay Rs. 3,436/- to the complainant by way of cheque / D.D. directly to the complainant. Parties to bear their own costs.<br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> 8. Pronounced in the Open Forum on this 7TH DAY OF OCTOBER 2008. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> <br /> Rhr<br />