This complaint coming before us for final hearing on 25-07-14                                in the presence of Sri. M.Srinivasa Rao, advocate for complainant; the opposite party remained set exparte; after hearing complainant, upon perusing the material on record, and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-      The complainant filed this complaint under section 12 of The Consumer Protection Act seeking compensation of Rs.1,00,000/- for depression made of his lively hood by forcibly taking the vehicle; Rs.50,000/- for cheating and for costs. 

2.   In brief the averments of the complaint are these:

          The complainant purchased a vehicle bearing No.AP 07 TU 7542 with the financial assistance given by the opposite party.  The complainant on      25-02-12 executed hypothecation agreement infavour of the opposite party.  The complainant is maintaining his livelihood by driving the said vehicle.  The complainant used to pay installments to the opposite party regularly.  The complainant is unable to pay some installments regularly due to ill health.  The opposite party then sent its recovery staff, they quarreled with the complainant, abused and forcibly took away the said vehicle in spite of protests. The recovery staff of the opposite party at that time informed the complainant no amount need be paid towards further installments.  On account of opposite party’s attitude the complainant lost his livelihood and suffered a lot in maintaining his family.  Recently the opposite parties sent his staff to the complainant’s house, abused the complainant and his family members in filthy language and by caste.  The staff of the opposite party threatened the complainant with filing of cases against him and his family members in case of failure to pay the balance amount.  The complainant got issued legal notice to the opposite party on 15-04-2014 who  in turn gave reply with false allegations.  The complaint therefore be allowed. 

3.      The opposite party for the reasons best known to it remained exparte after receiving summons.       

4.  Exs.A-1 to A-3 were marked on behalf of the complainant.

5.   Now the points that arose for consideration in this complaint are:

1.       Whether the opposite parties taking away the vehicle forcibly amounted to deficiency in service?

2.       Whether the complainant is entitled to compensation if so to what amount?

3.       To what relief?      

6.      POINT No.1:-   The complainant filed affidavit reiterating the averments made in his complaint.  Exchange of notices took place in between the complainant and opposite party (Exs.A-2 & A-3) prior to filing this complaint.     In Ex.A-2 notice the complainant mentioned that he purchased vehicle AP 07 TU 7542 with the financial assistance of the opposite party by executing hypothecation agreement.  The opposite party in its reply mentioned that the complainant purchased the said vehicle under loan cum hypothecation dated 25-02-2012. It can therefore be inferred that the complainant purchased AP 07 TU 7542 by executing loan cum hypothecation agreement infavour of the opposite party   though in Ex.A-1 (copy of RC issued by the Transport Department) it was mentioned that the said vehicle was subject to hire purchase agreement with M/s. Sreeram Transport Finance Company. 

7.      In Trilok Singh and Ors. V.Satya Deo Tripathi, AIR 1979 sc 850, it was held has that under the Hire Purchase Agreement, the financier is the real owner of the vehicle, therefore, there cannot be any allegation against him for having the possession of the vehicle. 

8.      In the Managing Director, Orix Auto Finance (India Ltd.,) Vs. Sri Jagmandar Singh Appeal (civil) 1070 of 2006 dated 10-02-2006  the Supreme Court held “

           “If agreements permit the financier to take possession of the financed vehicles, there is no legal impediment on such possession being taken. Of course, the hirer can avail such statutory remedy as may be available. But mere fact that possession has been taken cannot be a ground to contend that the hirer is prejudiced. Stand of learned counsel for the respondent that convenience of the hirer cannot be overlooked and improper seizure cannot be made. There cannot be any generalization in such matters. It would depend upon facts of each case.   

9.      The National Consumer Disputes Redressal Commission in M/s.Sreeram Transport Finance Company Limited and another Vs.M.Chamanlal 2012(14) CPR 75 (NC) referred to the decision pronounced by the Supreme Court in Suryapal Singh Vs Sidhivinayaka Motors 2012 (2) CPJ 8 (SC).  In the said decision the National Consumer Disputes Redressal Commission has reiterated the observation of the Supreme Court as detailed infra:

       “Under the Hire Purchase Agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee/trustee, therefore, taking possession of the vehicle on the ground of non-payment of installment has always been upheld to be a legal right of the financier.  

10.    As the opposite party remained exparte this Forum lost the opportunity of knowing the nature of agreement with the complainant, issuance of notices for recovery of the amount prior to repossession and sale.  Therefore the contention of the complainant that the opposite party forcibly took away the vehicle remained unchallenged and uncontraverted.  We therefore hold that the opposite party committed deficiency in service and answer this point against the opposite party.  

11.  POINT No.2:- The complainant claimed compensation of Rs.50,000/- as the opposite party cheated him while taking the vehicle.  The complainant in his complaint mentioned the following

          “At the time of taking the vehicle, the staff of the opposite party has stated that the installments paid by the petitioner and for the balance installments, they are taking away the said vehicle, hence the loan amount is cleared off and the petitioner need not to be pay any amount to the opposite party ……… they have threatened and his family members that to immediately pay the balance amount to the opposite party, otherwise they will file false cases against him and his family members and so saying they went away.”  

The complainant did not file any notice from the opposite party to prove that the opposite party claimed balance amount.  Therefore the said contention of the opposite party cannot be accepted.

12.    The complainant also claimed Rs.1,00,000/- as damages as the opposite party took away his source of livelihood and thereby subjected him and his family to starvation.  In this case conduct of the complainant also has to be taken into consideration while awarding damages.  Ex.A-2 notice issued by the complainant was silent as to when the opposite party forcibly repossessed the vehicle and when it was sold.  But in its reply the opposite party mentioned that it sold the vehicle on 22-12-2012 for Rs.1,10,000/- on account of bad condition and improper maintenance of AP 07 TU 7542.  The complainant after lapse of about an year and five months approached this Forum for the reasons best known to him.  Absence of essential particulars in the complaint as well as in affidavit leads us to draw an inference that the complainant did not place the relevant facts before this Forum.  Under those circumstances granting a sum of Rs.50,000/- will meet ends of justice.  We therefore answer this point accordingly infavour of the complainant. 

13.    POINT NO. 3:      In view of above findings in the result the complaint is partly allowed as indicated below: 

1. The opposite party is directed to pay Rs.50,000/-(Rupees fifty thousand only) together with interest @ 9% p.a. from the date of order till payment. 
2. The opposite party is directed to pay Rs.2,000/-(Rupees two thousand only) towards costs. 
3. The opposite party is directed to deposit the above amounts within six weeks from the date of receipt of the order. 

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 04^th day of August, 2014.

MEMBER                                 MEMBER                                          PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:-  NIL

PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.