( Delivered on 29/10/2018)

Per Smt. Jayshree Yengal, Hon’ble Member

1. This appeal challenges the order dated 29/03/2011 passed by the District Consumer Forum, Nagpur partly allowing the consumer complaint bearing No. 432/2010 and thereby directing the opposite party (for short OP) Nos. 2 and 3/appellants herein to return the vehicle bearing registration Number MH-40/A-3246 to the complainant within 30 days of  receipt of the order and to recover the balance amount from the complainant after giving detailed information in respect of the outstanding balance . It is further directed that in case the OP is unable to comply the aforesaid directions, then the  OP Nos. 2 and 3 to return Rs. 3,68,303/- to the complainant which she has paid to them with 9 percent per annum interest from 31/07/2010 i.e. from the date of the order till its realization. It is further directed that the OP Nos. 2 and 3 to pay Rs. 20,000/- and Rs. 2,000/-  to the complainant as compensation for mental and physical harassment and litigation expenses respectively.
2. The respondent No. 1 Smt. Nandabai Sureshji Dongre is being referred as the complainant and respondent No. 2 Jaika Motors Ltd. is referred as OP No. 1. The appellant No. 1 Tata Motors Finance Ltd. Mumbai and appellant No. 2 Tata Motors Finance Ltd. through its Regional Manager, Civil Lines are being referred as OP Nos. 2 and 3, for the sake of convenience.
3. The case of complainant in brief is as under.

1. The complainant Smt. Nandabai Sureshji Dongre purchased a Tata Victa motor vehicle bearing registration No.  MH-40/A-3246 from OP No. 1 Jaika Motors Ltd. by availing financial assistance from OP Nos. 2 and 3 namely Tata Motors Finance Ltd by executing  hire purchase agreement. The cost of the vehicle was Rs. 4,97,932/-. The complainant paid Rs. 90,000/- as down payment and  availed  loan of Rs. 4,07,932/- from the OP Nos. 2 and 3. The complainant purchased the said vehicle on 30/03/2006. The loan was to be repaid by monthly installment of Rs. 12,250/- The complainant was regularly repaying the loan by installment and she paid total Rs. 4,40,000/- till 27/09/2009. She had never received  any letter or notice from the OP in respect of the repayment of the loan.
2. The OP without issuing any notice forcibly repossessed the complainant’s vehicle. The complainant sought for the details in respect of the outstanding loan amount. The OP however never furnished any details. The OP illegally repossessed the complainant’s vehicle on 27/11/2009. The complainant repeatedly requested the OP Nos. 1 and 2 to return her vehicle and also sought for the details of her loan account. The complainant by letter dated 10/02/2010 informed the OP, her readiness to pay the outstanding balance towards  the loan as she could not pay due to certain financial constraints. The Ops despite receipt of the aforesaid letters failed to comply the same. The OP ignoring the request of the complainant sold her vehicle by auction.
3. The complainant alleged that the OP not only illegally and forcibly  repossessed her vehicle but also did not furnish the details in respect of  total consideration received  on sale of that vehicle by auction. The amount to be adjusted against her loan account and her outstanding balance. The complainant therefore alleging deficiency in service and unfair trade practice filed a consumer complaint  and sought for directions against the OP for return of her vehicle and payment of Rs. 5,00,000/- as compensation for injustice, defamation and monitory loss suffered by the complainant. The complainant sought for Rs. 15,000/- more towards cost of litigation.

4. The Ops resisted the complaint by filing their written version and denied all the adverse allegations of the complainant.
5. The OP No. 1/ Jaika Motors Ltd. specifically submitted that from the receipts filed by the complainant, it appears that the complainant did not repay the loan in time and probably the OP Nos. 2 and 3 has proceeded to repossess the complainant’s vehicle. The OP No. 1 is not concerned with the procedure adopted by OP Nos. 2 and 3 and therefore prayed for dismissal of the complaint as against it.
6. The OP Nos. 2 and 3 in their reply specifically submitted that they had given financial assistance of Rs. 4,40,000/- to the complainant. The complainant had repaid total amount of Rs. 3,68,303/- and Rs. 2,07,499/-  were outstanding against the loan and the complainant failed to repay the loan regularly by monthly installments as per terms and conditions of the hire purchase agreement. The OP Nos. 2 and 3 had legally repossessed the complainant’s vehicle and therefore the complaint deserves to be dismissed as frivolous and complainant therefore is not entitled to any relief as prayed.
7. The Forum after hearing both the sides and perusing the documents on record partly allowed the complaint as aforesaid.
8. The Forum has specifically held that the OP Nos. 2 & 3 have  not adopted legal recourse to recover the outstanding loan &  the OP Nos. 2 and 3 have failed to issue  any notice to the complainant about outstanding balance etc. The recourse adopted by the Ops Nos. 2 and 3 is contrary to the ratio laid down by the Hon’ble National Commission in the case of City Corp Finance Ltd. Vs. S. Vijayalaxmi reported in NCC Part 212.
9. The learned Forum below has further observed that the complainant be given detailed statement in respect of the loan amount and in case the OP Nos. 2 & 3 are  unable to provide the same then the complainant  is entitled to refund of the total amount which she has paid to them. The OP Nos.  and 3 in their own written version have admitted that the complainant has paid Rs. 3,68,303/- towards the loan amount.
10. Thus, observing accordingly, the Forum below partly allowed the complaint. Being aggrieved by the said order, the OP Nos. 2 and 3 have preferred this appeal and they challenged the impugned order mainly on the ground that the Forum ignored the submission made by them in their  written version that the vehicle in dispute had been already sold out and therefore the directions to return the vehicle to the complainant cannot be complied. Therefore said directions be set aside as it is rendered unexecutable and therefore unsustainable in law. The impugned order therefore deserves to be quashed and set aside and the appeal deserves to be allowed.  
11. Counsel for the appellant and respondent No. 1 were present at the time of final hearing and filed a pursis submitting that  written notes of arguments filed by them be treated as their oral arguments. None was present for respondent No. 2. We perused the written notes of arguments filed by both the parties. We also perused the impugned order, copies of the complaint, written version and documents filed on record.
12. We find that the OP Nos. 2 and 3/appellant’s herein in their written version specifically submitted that the complainant had repaid Rs. 3,68,303/- as against the total amount of loan availed of Rs. 4,40,000/-. The OPs have also submitted that the repossessed vehicle of the respondent No. 1/complainant is resold for Rs. 2,32,000/- by following the legal process as the complainant had expressed her inability to repay the loan due to financial crisis.
13. The appellant’s have not proved by cogent evidence that they had issued notice to the respondent No. 1/complainant before repossessing the vehicle and adopted due process of law to recover the loan. The Forum in the impugned order therefore has rightly observed that the appellants have rendered deficiency in service, by relying on the judgment passed by the Hon’ble National Commission in the case of City Corp Finance Ltd. Vs. S. Vijayalaxmi reported in NCC Part 212.  For the aforesaid reason, we find no infirmity or illegality in the impugned order in holding that the appellants have rendered deficiency in service. However issuing directions to return the vehicle would result into an un-executable order as the appellants themselves have submitted that the vehicle is already resold.
14. For the aforesaid reasons, we are of the opinion that the appeal deserves to be partly allowed and the impugned order deserves to be modified. In the result, we pass the following order.

ORDER

1. The appeal is partly allowed.
2. The direction given in clause No.  II of operative part of the impugned order is substituted as under:-

The appellants/OP Nos. 2 and 3 to refund Rs. 3,68,303/- to the complainant within 30 days of the receipt of the present order with 9 percent per annum interest from 31/7/2010 till its realization by the original complainant.

3. The rest of the impugned order is maintained.
4. No order as to cost.
5. Copy of order be furnished to both the parties, free of cost.