Andhra Pradesh

Nellore

CC/31/2017

Edam Seenamma, W/o. Venkateswarlu - Complainant(s)

Versus

Padmapriya Financiers, Rep. by its Proprietor - Opp.Party(s)

N.Seenaiah

12 Oct 2017

ORDER

Date of Filing     :14-03-2017

                                                                             Date of Disposal:12-10-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Thursday, this the 12^th day of  OCTOBER, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                         Sri K. Umamaheswara Rao, M.A., B.L., Member

 

C.C.No.31/2017

Edam Seenamma,

W/o.Venkateswarlu,

Hindu, Aged about  50 years,

R/o.Vengalrao Nagar,

Nellore.                                                                                        ..… Complainant      

                                                             Vs.

 

Padmapriya Financiers, Represented by it’s Proprietor,                                                                                        D.No.24/3/61, Beside Sainadh Bike Finance, Dargamitta,  Nellore.                                                                 ..…Opposite party

                                                             .

          This complaint coming on 10-10-2017  before us for hearing in the presence of Sri Nakka Seenaiah, advocate for the complainant and                                              opposite party called absent  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

                       (ORDER BY  Sri.Sk.MOHD.ISMAIL, PRESIDENT)

 

           The complainant filed  this complaint against  the opposite party  under Section-12 of Consumer Protection Act, 1986 to return the complainant’s vehicle   or to return Rs.1,01,600/-  the amount that was paid by the complainant, Rs.50,000/- damages for causing  mental agony,  costs  of this complaint  and submits  to allow the complaint with costs.

 

2.   The brief averments of the complaint  are as follows that:-  the complainant submits that  he  obtained Auto Rickshaw loan for  Bajaj Auto RE Compact Diesel BSIII from the opposite party vide Loan Agreement  No.FR1900 in the month of March, 2015  and its registration number is AP 26 TE 0817.  Complainant paid an amount of Rs.20,000/- to the opposite party towards down payment of the said vehicle. Complainant paid 15 instalments  regularly up to                 30-09-2016. 

The complainant submits that  due her ill-health and regular treatments in the hospital his son will not paid  instalments regularly for two months.  The opposite party threatened the complainant to pay the entire due amount, if she fails to pay the same, the opposite party will took the vehicle and auctioned to the 3^rd parties.  The complainant also issued a legal notice to the opposite party on                  31-10-2016  through his counsel to give some time for payment of the instalments, the opposite party received the  said legal notice on 02-11-2016, but he did not give any reply to it.  Complainant further submits that in the month of January, 2017 while the complainant kept her  auto at Autonagar, Nellore for  tinkering work, the opposite party took away the auto by breaking  the lock without giving prior notice to the complainant. The opposite party further states that they will sell it to 3^rd parties by conducting auction, alleging that the complainant did not paid instalments regularly. Complainant further  submits that except three instalments, complainant paid all the instalments to the opposite party, but the opposite party  without hearing  the complainant’s words forcibly took complainant’s vehicle and trying to sell it to the 3^rd parties by conducting the auction and thereby violating the rules.  The complainant is ready to pay  balance instalments to the opposite party.  Thus it is a clear case of deficiency in service by the opposite party towards complainant who is a customer to the opposite party and it is also crystal clear that opposite party behaved in negligent manner towards complainant by defeating his repeated requests.  As such  complainant suffered not only mental agony but also monitory loss for which opposite party is liable to pay damages to the complainant.  Thus the complainant is constrained to file present complaint and submits to allow the complaint with costs.

 3.    The opposite party did not file written version.

 4.     On behalf of the  complainant, P.W.1 was examined and Exs.A1 to A5 were marked.

  5.   On behalf of the opposite party, no evidence was adduced and no documents were marked.

  6.    On behalf of the complainant written arguments filed.

  7.    On behalf of the opposite party no written arguments filed.

             8.    Perused the written arguments submitted on behalf of the complainant.

            9.     Arguments on behalf of complainant heard.

.         10.     Now the points for consideration are:

1. Whether the complaint filed by the complainant under Section-12 of Consumer Protection Act, 1986  is maintainable?
2. To what relief, the complainant is entitled?

            11.  POINT No.1: The learned  counsel for the complainant submits  by relying upon Exs.A1 to A5 that the complainant purchased Auto bearing                      No.AP 26 TE 0817 and  paid a sum of Rs.20,000/- to the  opposite party and the complainant also paid 15 instalments regularly upto 30-09-2016.  Complainant failed to pay instalments, the opposite party took the  auto by breaking the lock  without giving  any prior  notice to the complainant and conducted  auction and sold the same to the third parties and  inspite of issuing of  legal notice as the  opposite party  failed to return the auto  the complainant filed his complaint  against the opposite party direct the opposite party  either  to return the  auto bearing No.AP 26 TE 0817  or to return the amount that was  paid by the  complainant and for costs of Rs.50,000/- and submits to allow the complaint with costs.

           The opposite party did not attend the Forum and no written version was filed and no affidavits and  documents filed on behalf of the opposite party as the opposite party failed to participate in the proceedings, hence an adverse inference has to be drawn  against the opposite party. 

 

           The complainant is submitting  that the complainant purchased an auto bearing No.AP 26 TE 0817 and paid a sum ofRs.20,000/- in the month of March, 2015 and subsequently  the complainant paid 15 instalments and inspite of issuing  of legal notice, the opposite party took  the auto and sold the same  in public auction and caused deficiency of service to the complainant  and submits to allow the complaint with costs.

 

To rebut  the version of complainant, the opposite party was absent and no affidavit  or documents were filed on behalf of  the complainant.

In Citycorp. Maruti Finance Limited Vs.                         S. Vijayalaxmi reported in  2012(1) CPC 140 (SC) = 2011 (4) CPJ 67 (SC).

            Wherein the Hon’ble Apex Court held as follows that;  “Even in case of mortgaged goods subject to  hire purchase agreement the recovery process has to be in accordance with Law  and the recovery process referred to  in the  agreements also  contemplates   that recovery to be effected in due process of law and not by use of force.”

In   ICICI Bank Vs.  Shanti Devi  Sharma and others reported  in 2008 (7)  SCC 532 = 2008 CTJ  677  (SC) (CP).

 

               Wherein the Hon’ble Apex Court held that the recovery of loss  or seizure  by  vehicles should be done  only by legal means.

 

In    ABN Amro Bank Vs. Sangeet Srivastava, 2007 CTJ 606 (NC) = 2007 (2) CPJ 269 (NC).

 

                Wherein the  Hon’ble National Commission held  that “Repossessing   of a  car on the ground of  default in payment  of a few instalments and  selling the same amounted  to  deficiency in service and the  bank was made  liable  to pay back the mortgage money  of  Rs.65,223/-  deposited  by the complainant and also pay compensation  of Rs.5,000/-.”

	In Indian Seamless Financial Services Limited Vs. Ranjana S. Patel reported in III (2012) CPJ 405 (NC), and
	In  Magma Finance Corporation Limited & Anorther Vs. Ratul Dutta reported in II (2011) CPJ 344 (W.B.)

          Wherein  the Hon’ble National Commission  and  State Commission of West Bengal held that Law does not permit  forcible seizure  and repossession without notice not justified. Following the above decisions, we are of the opinion  that  as notice was given to the complainant before the seizure  of the auto, the seizure  of the auto not only illegal  and selling the auto is also against law.

          Following the  above decisions, we are of the opinion that there is no rebuttal evidence of P.W.1  and  Exs.A1 to A5, we are of the opinion  that the opposite party   seized  the vehicle without notice  and  sold the same in public auction .  Though the  complainant paid a sum of Rs.81,596/- as per Ex.A1.  The  opposite party  have  not issued legal notice to the complainant   demanding him for the payment of the balance of the due  amount but inspite of proceeding in that manner, the opposite party  sold the vehicle and seized  the vehicle and sold the same in public auction which causes  much inconvenience to the  complainant and hence we are of the opinion that the act of the opposite party is deficiency of service.

                  By relying upon the above decisions and the discussion made above, we are of the opinion that  the opposite party failed to take legal steps against the complainant by issuing  legal notice to the complainant demanding him  for the payment of the due amount and sold the said auto in auction and hence we are of the opinion that the act of the opposite party amounts  to deficiency of service. 

                  By relying upon the above  decisions and the discussion made above, we answer this point in favour of  complainant and against the opposite party.

 

12.   POINT No.2:  In view of our answering on point No.1 in favour of  the  complainant  and  against the opposite party, we are of the opinion that the complaint filed by the complainant has to be allowed.

 In the result,   the complaint is allowed partly with costs as there is no possibility to return  the Auto Rickshaw, the complainant is entitled for the refund of the advance amount  paid by the complainant with interest  at the rate of                 18% p.a. on Rs.81,596/-.

In the result, the complaint is allowed partly  with costs and the opposite party is directed to pay a sum of Rs.81,596/- (Rupees eighty one thousand five hundred and  ninety six only) with interest @ 18% p.a. on Rs.81,596/-  from the  Ex.A3 notice  dated 31-10-2016 till the date of payment.

The complainant is also awarded damages of Rs.5,000/- (Rupees five thousand only) against  opposite party.

The opposite party is also directed to pay costs of Rs.5,000/- (Rupees five thousand only) towards the  expenses of the complainant in filing the complaint.

          The opposite party  is directed to comply the order within 30 days from the date of communication of this order.

          Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the  12^th day of  OCTOBER, 2017.

 

            Sd/-                                                                                  Sd/-

      MEMBER                                                                         PRESIDENT

 

                                      APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -

01-07-2017

Sri Edam Seenamma, W/o.Venkateswarlu, Vehicle Owner, SPSR Nellore District. (Proof affidavit filed).

 

Witnesses Examined for the opposite party

-Nil-

 

                           EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	-	Photostat copy of  statement of account issued by the opposite party.
Ex.A2  -	-	Photostat copies of fifteen receipts in favour of complainant issued by the opposite party.
Ex.A3  -	31-10-2016	Legal notice  from complainant’s advocate to the opposite party alongwith registered post receipt.
Ex.A4  -	-	One postal acknowledgement  received from the opposite party sent by the complainant’s advocate.
Ex.A5  -	-	Photostat copies of three  Central Clinical  Laboratory Reports dated 23-01-2017 and  cash / credit receipts on 23-01-2017 in favour  of complainant  issued by the opposite party.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTY

-Nil-

 

 

                                                                                                            Id/-

                                                                                                      PRESIDENT

Copies to:

 

1.	Sri N. Seenaiah, Advocate, Fthekhanpet, Nellore.
2.	Padmapriya Financiers,  Represented by it’s Proprietor,                                                                                         D.No.24/3/61, Beside Sainadh Bike Finance, Dargamitta,  Nellore.

 

Date when free copy was issued: