Presented by Sri G.S.Pradhan, President .<br /> <br /> The present complaint pertains to deficiency of service as envisaged under the provision of Consumer Protection Act and its brief history is as follows:-<br /> The Complainant has purchased one Maruti Omini vehicle bearing Regd. No. OR-15-K-4383 with a down payment of Rs. 40,000/-(Rupees forty thousand)only and Rs. 8,696/-(Rupees eight thousand six hundred ninety six)only vide money receipt No. 12930 Dt.13/04/2006 and M.R. No. 12931 Dt.14/04/2006 for finance of the said vehicle and the rest amount of Rs. 1,91,000/-(Rupees one lakh ninety one thousand)only was being financed by the Opposite Party No.2(two) to be payable in forty eight equal monthly installment of Rs.5,225/-(Rupees five thousand two hundred twenty five)only each as per the term and condition agreed by the Parties. The Complainant was regularly paying the installment and he has paid the last installment on February 2008. But on Dt.15/04/2008 the Opposite Party No.2(two) with some hired goonda forcibly took away the vehicle from the possession of the Complainant on the way while the Complainant was going to Burla, V.S.S. Medical Hospital for treatment of his deceased father. The Complainant alleges that with out serving any prior notice or any order passed by any Court, the Opposite Party No.2(two) forcibly took away the vehicle from the possession of the Complainant is illegal. The Complainant repeatedly approached to Opposite Party No.2(two) to deposited the outstanding installment and to release the said vehicle, but in vain.<br /> <br /> Hence the Complainant filed this case praying for a direction to be given to Opposite Parties to release and handover the said vehicle bearing Regd. No. OR-15-K-4383 hence forth to the complaint and Rs. 1,35,000/-(Rupees one lakh thirty five thousand)only as compensation towards loss, mental agony and litigation expenses.<br /> <br /> The Opposite Parties, in their version, denies the complainant to be a consumer but claims that he is a borrower availing of loan of Rs. 1,91,000/-(Rupees one lakh ninety one thousand)only to purchase a Maruti Omini vehicle by entering into an agreement with the Opposite Parties vide No. HO/G/0020/05/000015 Dt.30/04/2006. The Opposite Parties admits that the Complainant made a down payment of Rs.48,696/-(Rupees forty eight thousand six hundred ninety six)only. In term of the agreement the rest amount will be paid by the Complainant along with interest on forty eight equal monthly installment i.e. Rs. 5,225/-(Rupees five thousand two hundred twenty five)only per month. The Opposite Parties claims that, the Complainant is a habitual defaulter in payment of installment and by Dt. 15/04/2008 there was outstanding installment dues to the tune of Rs. 26,350/-(Rupees twenty six thousand three hundred fifty)only apart from others dues as per the statement of account. Despite repeated requests, the Complainant deliberately failed and neglected to regularise the loan and hence the Opposite Parties took possession of the vehicle complying all the legal procedure. The Opposite Parties has every sort of right as per the agreement executed by them to take repossession of the vehicle in case it default of payment.<br /> <br /> The Opposite Parties contends that, after repossession of the vehicle, Regd. Notice with A.D. was issued to the Complainant on Dt.17/04/2008 asking to deposit the total outstanding amount of Rs. 1,69,630/-(Rupees one lakh sixty nine thousand six hundred thirty)only and to take back the vehicle with in 7(seven) days but the Complainant did not come forward to deposit the outstanding amount. Therefore on Dt.12/05/2008 the Opposite Parties have executed an agreement for sale of the vehicle with one Pawan Kumar Agrawal and handed over the possession of the vehicle after receiving a sum of Rs. 75,000/-(Rupees seventy five thousand)only.<br /> <br /> The Opposite Parties claims as per the agreement the dispute between the Parties is to be adjudicate by an Arbitrator and hence the present dispute is not maintainable in the Consumer Forum. The Opposite Parties prey for dismissal of the complaint with cost.<br /> <br /> Perused the complaint, version of the Opposite Parties and the copies of documents filed by the Parties in support of their respective cases and find as follows:-<br /> <br /> The Opposite Party No.1(one) is the Regional Office of Opposite Party No.3(three), the financing company and the Opposite Party No.2(two) is the branch office of Opposite Party No.1(one) are dealing with all types of finance to its customer. The Opposite Parties are being financing company and the complaint availing of its services as such, is a consumer of the Opposite Parties and the cause of action having arisen and the Opposite Parties carrying on business with in the territorial jurisdiction of this Forum, the present complaint is very much triable by this Forum. The terms and condition of the agreement executed by the Parties to refer any dispute arisen between the Parties can not take away the right of the Complainant to agitate the matter in the Consumer Forum, neither does it oust the jurisdiction of the Consumer Law Agencies to try the same.<br /> <br /> It is not disputed by the Parties that, the Complainant has purchased one Maruti Omini vehicle being financed by the Opposite Party No.2(two) with a down payment of Rs. 48,696/-(Rupees forty eight thousand six hundred ninety six)only and the balance finance amount to be payable in forty eight monthly installment i.e. Rs.5,225/-(Rupees five thousand two hundred twenty five)only per month. The repossession of the said vehicle for non payment of some monthly installment by the Opposite Parties are also not disputed. The Complainant contends that, he has paid in total a sum of Rs. 1,32,296/-(Rupees one lakh thirty two thousand two hundred ninety six)only towards installment of the vehicle to the Opposite Parties. The Complainant files copies of money receipt to prove its case which is not disproved by the Opposite Parties. Further the Complainant has also filed two numbers of affidavit who were present at the time of repossession of the vehicle by the Opposite Party No.2(two) with hired goonda. The only grievance that propelled the Complainant to knock the door of the Forum seeking remedy there of is that, instead of resorting to means as prescribed by law, the Opposite Parties resorted to strong arm tactic and forcibly took away the vehicle of the Complainant. The Opposite Parties have resold the vehicle with out giving an opportunity to the Complainant to sell the same with the best price available to him. The Opposite Parties have not filed the deed of Hire Purchase agreement executed between the Parties. However as per the said agreement entered into between the Parties, the Opposite Parties were required to issue notice prior to confiscation/repossession of the vehicle but no any evidence is led by the Opposite Parties to prove that such notice was given before repossessing of the vehicle. The Opposite Parties claim that Regd. Notice was issued to Complainant prior to repossess and resold of the vehicle to one Pawan Kumar Agrawal. Copies of notice was filed but no acknowledgment of receipt was filed by the Opposite Parties to prove its case. Further, the copies of agreement executed between the Opposite Parties to one Pawan Agrawal is not as per law and is self made documents to suit the case of the Opposite Parties.<br /> When a person desires to purchase a vehicle and not having sufficient money on hand borrows the amount needed from a money lender/financer or a Banker and pays it over to the vender of the vehicle, the transaction between the person and money lender will unquestionably be a loan transaction. In such a case the vehicle purchased by the person is registered in his name and remains at all material times so registered in his name. The persons remains in possession and is the owner of the vehicle. By an agreement executed by the Parties, the vehicle can be given as security for the loan advanced. In such a case the right to seize the vehicle is merely a license to ensure compliance with the terms of the so called hire-purchase agreement. The Bank can not take repossession of vehicle by force for which loan is advanced. It at all there is a clause in hire purchase agreement executed between the parties is against the principle of law. The financer/Bank can take repossession of the vehicle in case where the borrower may have committed default in payment of installment through proper procedure recognised by law instead of taking resort to strong arm tactics. In the case of Citi Crop Maruti Finance ltd Vs S. Vijaya Laxmi reported in C.P.R. 2007 (3) page 191 N.C. Hon'ble National Commission holds that “A financier is not invested with the right to repossess the vehicle, for which loan has been given by it, by force under any law, precedent or code of conduct.”<br /> <br /> In view of aforesaid facts and circumstances of the case as discussed, the Opposite Parties by forcible taking away the Maruti Omini vehicle from the possession of the Complainant and resold the vehicle at unjustifiably low price, without issuing any prior notice to the Complainant before repossession and resell of the vehicle have committed grave deficiency in service by the Opposite Parties.<br /> <br /> In the circumstances of the case, the Forum concludes that the Hire purchase agreement between the complainant and the Opposite Parties stands terminated.<br /> <br /> Complaint allowed and ordered as follows:-<br /> The Opposite Parties are directed jointly and severally to pay a sum of Rs. 1,32,296/-(Rupees one lakh thirty two thousand two hundred ninety six)only the total installment amount received from the Complainant and also to pay Rs. 20,000/-(Rupees twenty thousand)only towards damages including cost to the Complainant with in 30(thirty) days from the date of Order, failing which, the total amount will carry 12%(twelve percent) interest per annum till the date of payment.<br /> <br /> Complainant disposed of accordingly<br />