KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. FA No. 342/09 JUDGMENT DATED: 11-12-2009 PRESENT: SMT. VALSALA SARANGADHARAN : MEMBER SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER APPELLANTS 1. Shriram Transport Finance Co. Ltd., Mookambika Complex, Lady Desika Road, Mylapore, Chennai, rep. by its Branch Manager, V.K. Sunil Kumar. 2. Branch Manager, Shriram Transport Finance Co. Ltd., Geetha Commercial Complex, Nagambadom, Kottayam. (Rep. by Sri. Sasthamangalam R. Jayakrishnan) Vs RESPONDENTS 1. Radhakrishnan, Vadakkemadom, Maruvanthuruthu P.O., Vaikom, Kottayam. 2. Vasudevan Unni, Vadakkemadom, Maruvanthuruthu P.O., Vaikom, Kottayam. (Rep. by Adv. Sri. R.S. Kalkura & others) JUDGMENT SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The above first appeal is preferred from the order dated 19th February 2009 passed by CDRF, Kottayam in CC No. 179/07. The complaint therein was filed by the respondents herein as complainants against the appellants/opposite parties alleging deficiency in service in taking forcible possession of the vehicle owned by the complainants and in selling the said vehicle without the consent of the complainant. The complainants also alleged deficiency in service on the part of the opposite parties in demanding a further sum of Rs. 2,64,191/- towards the loan transaction. The opposite parties entered appearance and contented that there was a higher purchase agreement entered into between the complainants and opposite parties and that the opposite parties were having the power and authority to repossess the vehicle on default in making monthly instalments due to the opposite parties under the higher purchase agreement and that they have also empowered to effect sale of the vehicle which was hypothecated under the said higher purchase agreement. It is further contended that a further sum of Rs. 2,64,191/- was due and that the opposite parties are legally entitled to recover the balance amount due under the loan transaction. 2. Before the Forum below, Exts. A1 to A4 documents were produced from the side of the complainants. No evidence was adduced by the opposite parties. On an appreciation of the facts, circumstance and the documentary evidence available on record, the Forum below passed the impugned order allowing the complaint in CC No. 179/07. Thereby the opposite parties are directed to pay Rs. 10,000/- as compensation to the complainants with cost of Rs. 1,000/-. The opposite parties are also further directed to return the cheque leafs or signed papers if any collected from the complainants at the time of sanctioning the loan. The opposite parties are also restrained from taking any action against the complainants for realization of any amount from the complainants under the loan transaction. Aggrieved by the said order, the present appeal is filed by the opposite parties therein. 3. When this appeal was taken up for admission hearing, the learned Counsel for the appellants submitted his arguments based on the terms and conditions incorporated in the agreement entered into between the parties. It is further submitted that the impugned order was passed without taking into consideration the documentary evidence available on record. It is further contended that loan was availed for commercial purpose and so the complaint in CC 179/07 cannot be entertained by CDRF, Kottayam as the complainant is not a consumer coming within the ambit of the Consumer Protection Act, 1986. Thus, the appellants requested for admitting the present appeal. Though notice was served on the respondents, there was no representation for the respondents. We also received the records from the Forum below in CC No. 179/07. 4. The fact that the respondents/complainants are the owners of the vehicle bearing Registration No. KL 7 AH 5923 is not in dispute. They are also the registered owners of the aforesaid vehicle. Admittedly, the respondents/complainants availed financial assistance from the appellants/opposite parties by executing an agreement dated 05-01-2005 and thereby they took a loan of Rs. 2,75,000 from the appellants/opposite parties. It is to be noted that the appellants/opposite parties have not produced the aforesaid loan agreement dated 05-01-2005. The admitted facts would make it clear that there was no such higher purchase agreement as contended by the opposite parties; but the so called higher purchase agreement was only a loan agreement entered into between the complainants and the opposite parties for availing loan of Rs. 2,75,000/- from the opposite parties. 5. Admittedly, the complainants committed default in making payment of monthly instalments. According to the complainants, they committed default of two instalments. The monthly instalment was fixed at Rs. 14,000/-. But the case of the opposite parties is that the complainants were chronic defaulters and a sum of Rs. 72,200/- was due from the complainants to the opposite parties as on 06-12-2005. Ext.A2 demand letter dated 06-12-2005 would show the aforesaid demand of Rs. 72,200/- made by the complainants by way of the arrears of monthly instalments inclusive of penal interest of Rs. 7,800/-. It is true that the complainants failed to remit the aforesaid amount of Rs. 72,200/- and thereby the appellants/opposite parties took possession of the aforesaid vehicle by force. The opposite parties would contend that they did not take forcible possession of the vehicle; but it was with intimation to the complainants. Ext.A3 telegram issued by the Divisional Manager of the opposite party Sri Ram Group of Companies, Ernakulam to the first complainant Radhakrishnan would give a clear indication that they informed the first complainant Radhakrishnan about the forcible possession of the vehicle only by that telegram. This would also give an indication that the vehicle was taken possession by the opposite parties without the knowledge and consent of the complainants and that the complainants were informed about the so called repossession of the vehicle by A3 telegram. This circumstance would justify the case of the complainants that the vehicle was taken possession by force and without the knowledge or consent of the complainants. 6. There is no quarrel about the fact that the vehicle was taken possession by the opposite parties on 09-12-2005 and thereafter the opposite parties sold the vehicle. There is nothing on record to show the consideration for the said sale of the vehicle by the opposite parties. The opposite parties have not produced any document to substantiate their case regarding the sale of the vehicle or about their contention that Rs. 2,64,191/- was due from the complainants towards the loan transaction. Admittedly, the opposite parties are conducting financial transactions and they have been maintaining regular accounts in the course of their business. But no such account or other supporting document are forthcoming from the side of the opposite parties. The admitted fact would show that the complainants availed a loan of Rs. 2,75,000 from the opposite parties with an understanding to repay the aforesaid amount with interest by way of monthly instalments at the rate of Rs. 14,000/- and that the complainants committed default in making payments towards the monthly instalments; that the opposite parties took possession of the vehicle from the complainants by force and that the opposite parties sold the aforesaid vehicle without the knowledge or consent of the complainants who are the registered owners of the aforesaid vehicle. Thereafter the opposite parties made a further demand for Rs. 2,64,191/- by the letter dated 09-07-2007 (Ext.A5). 7. It is a settled position that bank or financier has no authority to take forcible possession of the vehicle which was purchased by the owner by availing financial assistance from the bank or financier. It is held by the apex Court in ICICI Bank Vs Prakash Mumar reported in (2007) 2 SCC 711 (SC) that the bank or financier is not expected to take forcible possession of the vehicle which was purchased with the financial assistance availed from the bank or financier. The very same view has been adopted by the Hon’be National commission in City Corp. Maruthi Finances Ltd. Vs. Vijayalakshmi reported in III (2007) CPJ 161 (NC). The Hon’ble Supreme Court and the National Commission have also held that taking forcible possession of the vehicle by the bank or financier would amount to deficiency in service as the bank or financier is not expected to take law into their hands; but they have to submit themselves to the jurisdiction of the concerned court of law. Thus, it can very safely be held that the appellant/opposite parties committed deficiency in service by taking forcible possession of the vehicle bearing Reg. No. KL 7 AH 5923 from the possession of the complainants (respondents) who are the registered owners of the said vehicle. The appellants/opposite parties have also committed deficiency in service by effecting sale of the said vehicle covered by the loan agreement without the consent or knowledge of the owners of the vehicle namely, the complainants herein. Thus, in all respects the Forum below is perfectly justified in finding the opposite parties deficient in rendering services to the complainants/consumers who availed the financial service of the opposite parties by availing loan of Rs. 2,75,000/- for the purpose of purchasing the vehicle bearing Regn. No. KL 7 AH 5923. The Forum below has also taken into consideration the admitted fact that more than Rs. 1,17,000/- was paid by the complainants to the opposite parties towards the loan transaction. Thus, the Forum below can be justified in passing the impugned order dated 19-02-2009 in CC No. 179/07 directing the opposite parties to pay Rs. 10,000/- as compensation for the inconveniences suffered by the complainants with costs of Rs. 1,000/-. The Forum below is also justified in restraining the opposite parties from demanding or realizing any amount from the complainants under the loan transaction and also in directing the opposite parties to return the cheque leafs or other signed papers if any collected from the complainants at the time of availing the loan amount of Rs. 2,75,000/-. The admitted facts and the available evidence on record would show that the present appeal lacks bonafidies and merits and the same deserves dismissal at the admission stage. The appellants/opposite parties could not show any prima-facie case for admitting the present appeal. Hence this Commission is pleased to dismiss the present appeal at the admission stage itself. In the result, the above appeal is dismissed. No order as to costs. M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER Sr. | 
