BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
F.A.No.317/2013 against C.C.No.28/2012, Dist. Forum, Mahabubnagar.
Between:
1. HDFC Bank Ltd., Represented by its Branch Manager
4th floor, Lala Land Mark, No.5-4-94 to 97,
Ranigunj, M.G.Road,
Secunderabad.
2. HDFC Bank Ltd.,
Represented by its Branch Manager,
Kaladi Complex, Govt. Hospital Road,
New Town,
Mahabubnagar. … Appellants/
Opp.parties
And
R.Govardhan Reddy, S/o.Papi Reddy,
Age: 40 yrs., Rajpally Village, Narva Mandal,
Mahabubnagar District. … Respondent/
Complainant
Counsel for the Appellants : M/s.P.Prasad.
Counsel for the respondent : Mr.N.Narender Goud.
QUORUM: HON’BLE SRI JUSTICE GOPALAKRISHNA TAMADA, PRESIDENT,
SRI T.ASHOK KUMAR, HON’BLE MEMBER,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
FRIDAY, THE TWENTY THIRD DAY OF MAY,
TWO THOUSAND FOURTEEN.
Oral Order: (Per Sri S.Bhujanga Rao, Hon’ble Member)
***
This appeal is directed against the order dt.22.1.2013 of the District Consumer Forum, Mahabubnagar made in C.C.No.28/2012.
The respondent/complainant filed the complaint in C.C.No.28/2012 seeking direction to the appellants/opp.parties to stop auction of the LMV tractor bearing A.P.22 Q 5331 and release vehicle after receiving due amount or to pay cost of the vehicle i.e. an amount of Rs.6,01,100/-, to pay Rs.1 lakh towards financial loss for seizure of the vehicle, Rs.30,000/- towards compensation for adopting unfair trade practice and deficiency in service and Rs.20,000/- towards costs of the complaint to the complainant.
The brief case of the complainant as per the complaint is that he purchased LMV tractor bearing no.AP 22 Q 5331, model 2008 for total cost of Rs.6,01,100/- for his livelihood. The complainant paid down payment of Rs.1,38,100/- and for balance of Rs.4,63,000/- including documentation charges, the complainant approached the opposite parties for finance and the opposite parties agreed to give loan on mortgage of land to the complainant. He obtained loan of Rs.4 lakhs towards engine and Rs.63,000/- for trailor from the opposite parties, by mortgaging 8 acres of land situated at Rajpally Village. Both of them entered into an agreement in the month of December,2008. Thereafter the complainant paid the instalments half yearly at Rs.55,800/- from January,2009 to December,2011 i.e. five instalments totalling to Rs.2,79,000/- as per the terms and conditions of the opp.parties.
While matters stood thus, in the month of February, 2012, the opp.parties forcibly seized the vehicle, in the absence of the complainant, without giving any notice to the complainant by damaging the steering, when the complainant was due only one instalment. Thereupon, the complainant approached the opp.parties, and requested to take due instalment amount and handover the vehicle, but the opp.parties demanded to pay entire future instalments due amount also. So saying, the opposite parties refused to release the vehicle. Such act of opposite parties amounts to deficiency in service and unfair trade practice. Hence the complaint.
Resisting the complaint, the opp.parties filed counter/written version, denying the material allegations made in the complaint and contended that the complainant was very irregular in making payment of the loan instalments, when the opposite parties demanded the complainant to pay the amount, the complainant on his own approached the opp.parties and surrendered the tractor on 15.02.2012 by executing a surrender letter dt.15.2.2012 stating that he was not in a position to pay the loan instalments to the opp.parties. They have not violated any terms of the agreement. After surrender of the tractor, the opp.parties issued loan termination notice dt.16.02.2012 intimating about possession of the tractor and requested the complainant to take back the vehicle by paying Rs.3,43,447/- towards closure of the account, in compliance of the agreement, to avoid any kind of litigation.
The opp.parties further contended that after issuing the pre-sale notice, the bank has taken the valuation of the subject tractor from authorised valuer and valued the tractor at Rs.2,40,000/-. On 27.03.2012 the opposite parties conducted auction for sale of the vehicle. The auction was confirmed in favour of Mr.P.Ramalinga Reddy and the vehicle was released on 27.03.2012. The total sale consideration of Rs.2,50,000/- has been adjusted to the loan account of the complainant. After adjustment, still there was balance of Rs.90,958/- in the loan account of the complainant, the same was informed to the complainant on 26.03.2012 and requested to pay the balance amount of Rs.1,02,121-82 ps. Thus there is no deficiency in service on the part of the opp.parties. Hence the complaint is liable to be dismissed.
During the course of enquiry, in order to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A13. The opposite parties have not adduced any evidence, though opportunity was given.
Upon hearing the counsel for both the parties and on consideration of the material placed on record, the District Forum came to the conclusion that the complainant is entitled to only the amount paid by him. Consequently, the District Forum allowed the complaint, in part, directing the opp.parties jointly and severally to refund the amount of Rs.2,79,000/-, which is paid by the complainant towards the loan instalments and to pay compensation of Rs.1,000/- and costs of Rs.500/- to the complainant.
Aggrieved by the said order, the opp.parties filed the above appeal urging that the respondent/complainant has not paid the agreed instalments and voluntarily surrendered the tractor vide letter dt.15.02.2012. That after the surrender of the tractor, the appellants issued the pre-sale notice on 16.02.2012 and requested the respondent/complainant to take back the tractor after paying Rs.3,43,407/-. As there was no response from the respondent/complainant, the tractor was sold in open auction for an amount of Rs.2,50,000/- and the same was adjusted to the loan amount and the respondent is due and liable to pay roughly an amount Rs.1,20,000/- as on the date of auction. The District Forum, without considering the voluntary surrendering of the vehicle, has erroneously ordered to refund the amount. That the District Forum failed to appreciate the fact that the tractor was used by the respondent for his agricultural purpose for some time and the fact of depreciation on the vehicle. Therefore, the question of return of the said instalments does not arise. Therefore, the impugned order of the District Forum is liable to be set aside .
In this appeal, the appellants/opp.parties filed petition in I.A.No.741/2014 praying to receive the documents namely a). copy of the Lr.Dt.15.02.2012 of the respondent/complainant addressed to the Bank, b). copy of the authorisation lr.dt.15.02.2012 of the appellant bank to repossession agency, c). copy of the pre-repossession intimation Lr.dt.15.02.2012 to Police Station, d). copy of the post–repossession intimation lr.dt.15.02.2012 to police station, e). copy of the surrender lr.dt.15.02.2012 of the respondent/complainant as additional evidence. After hearing both the parties and after considering the contents of the petition, the petition was allowed and the documents were received and marked as Exs.B1 to B5 subject to proof and relevancy.
We heard the counsel for both the parties and perused the entire material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
The undisputed facts of the case are that the complainant purchased the subject tractor for his livelihood and that the complainant availed a loan of Rs.4,63,000/- from the opp.party bank to purchase the tractor and entered into a loan agreement with the bank agreeing to pay the loan amount by way of half yearly instalments at Rs.48,720/- commencing from January 2009.
The case of the complainant is that he paid half yearly instalments regularly from January,2009 to December 2011 amounting to Rs.2,79,000/- and obtained receipts from the opp.parties .While so, in the month of February,2012, the opp.parties forcibly seized the vehicle in his absence, without any prior notice , when only one instalment was due. On the other hand, the contention of the appellants/opp.parties is that the complainant was very irregular in making payment of loan instalments and when they demanded the amount due, the complainant on his own surrendered the tractor on 15.02.2012 by executing a surrender lr.dt.15.02.2012.
The complainant denied to have voluntarily surrendered the vehicle to the opposite parties by executing the original of Ex.B5 surrender letter dt.15.02.2012. He has also denied the fact that he has given Ex.B1 surrender letter dt.15.02.2012. The opposite parties have not filed any evidence affidavit of their staff or the evidence affidavit of any of the witnesses to Ex.B1 and B5. The opp. parties have not explained as to why they have taken the originals of Ex.B1 and B5 from the complainant, on the same date i.e. 15.02.2012 for the same purpose i.e. surrender of the vehicle. The opp.parties therefore failed to prove that Ex.B1 surrender letter was given by the complainant.
Ex.B2 is the copy of authorisation letter dt.15.02.2012 of the opp.parties to repossession agency. Ex.B3 is the copy of the repossession intimation to the police station dt.15.02.2012. Ex.B4 is the copy of post repossession intimation to the police station. All these three documents are dated 15.02.2012 only, on which date the complainant said to have given Exs.B1 and B5 surrender letters. If really the complainant has voluntarily surrendered the vehicle to the opp.parties on 15.02.2012, there is no necessity for the opp.parties to give original of Ex. B2 authorisation letter to re-possession agency, and pre re-possession intimation and post repossession intimation to the police station on one and the same date i.e.15.02.2012. Ex.B4 post repossession intimation to the police does not contain the date and time of repossession of the vehicle. It is significant to note that all the five documents i.e. Exs. B1 to B5 came into existence on 15.02.2012 only. The opp.parties have not explained the reason for obtaining all the five documents on one and the same date. The opp.parties have not adduced any evidence to prove that they have demanded the complainant to pay the instalments due, at any time, prior to the alleged surrender of the vehicle on 15.2.2012.
Under these circumstances, the opp.parties failed to prove that Exs.B1 and B5 letters are given by the complainant. Therefore, the case of the opp.parties that the complainant voluntarily surrendered the vehicle to the opp.parties on 15.02.2012 cannot be believed.
It is the case of the appellants/opposite parties that after surrender of the tractor, the opp.parties issued loan termination notice dt.16.02.2012 intimating about possession of the tractor and required the complainant to take back the vehicle by paying Rs.3,43,447/- towards closure of the account and after issuing pre-sale notice, the bank has taken the valuation of the subject tractor from authorised valuer, who valued the tractor at Rs.2,40,000/- on 27.03.2012. That the opp.partiies conducted open auction for sale of the vehicle and the auction was confirmed in favour of Mr.Ramalinga Reddy for a sum of Rs.2,50,000/- and the vehicle has been released on 27.3.2012. The opposite parties have not filed the alleged loan termination notice dt.16.02.2012 and copy of the pre sale notice said to have given by the opposite parties to the complainant and the valuation certificate given by the authorised valuer. The opp.parties have not filed a piece of paper in proof of the alleged auction of the subject vehicle. In the absence of any evidence, it is not possible for us, to accept the above said contention of the opp.parties.
Further, it might be true that the complainant committed default in payment of instalments of the loan amount, but the opp.parties cannot high handedly repossess the vehicle from the possession of the complainant, especially in the absence of the complainant. However, in view of the fact that the complainant did not pay the instalments amount due, nor he paid the entire loan amount to the opp.parties, the complainant is not entitled to claim cost of the vehicle. The complainant did not come forward to pay the amount due and take back the vehicle from the opp.parties. Infact, he did not seek any relief for returning of the vehicle, expressing his readiness to pay the instalments due and undertaking to pay the future instalments without committing any default. Under these circumstances, we cannot direct the opp.parties to return the vehicle to the complainant .
The District Forum directed the opp.parties to refund a sum of Rs.2,79,000/- which was paid by the complainant towards the loan instalments amount. As seen from the order, while directing the opp.parties to refund the said sum, the District Forum has not taken into consideration the fact that the complainant used the tractor for his agricultural purpose from the date of purchase in 2008 till the date seizure in the month of February,2012 and the fact of depreciation on the vehicle. Had the District Forum considered the said two facts, it would have not directed the opp.parties to refund the entire paid instalments to the complainant. The total cost of the vehicle is Rs.6,01,100/- as on the date of the purchase. Having regard to the above said facts, in our considered view, it is just and reasonable to direct the opp.parties to refund a sum of Rs.1,50,000/- out of Rs.2,79,000/- the amount paid by the complainant.
In the result, the appeal is allowed in part, directing the appellants/opp.parties to refund a sum of Rs.1,50,000/- instead of Rs.2,79,000/- to the complainant, as ordered by the District Forum. The impugned order of the District Forum is accordingly modified retaining the remaining portion of the impugned order. In view of the facts and circumstances of the case, there shall be no order as to costs.
PRESIDENT
MEMBER
MEMBER
Dt.23.05.2014
Additional Evidence filed by the appellants/
Opp.parties before this Commission:
Ex. B1 : Xerox copy of the Lr.Dt.15.02.2012 of the respondent/complainant
addressed to the appellant no.2 bank.
Ex.B2 : Xerox copy of the authorisation lr.dt.15.02.2012 of the appellant
Bank to repossession agency.
Ex.B3 : Xerox copy of copy of the pre-repossession intimation
Dt.15.02.2012 to Police Station,
Ex.B4 : Xerox copy of the post–repossession intimation
lr.dt.15.02.2012 to Police Station,
Ex.B5 : Xerox copy of the surrender lr.dt.15.02.2012 of the respondent/
complainant to appellant bank.
PRESIDENT
MEMBER
MEMBER
Pm* Dt.23.5.2014
