JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The petitioner/complainant purchased a JCB Loader and got the same financed from the respondent to the extent of Rs.10,40,000/-. The loan taken by the petitioner/complainant was payable in 34 monthly installments. The complainant/petitioner having defaulted in timely payment of the installments, the vehicle was forcibly seized by the respondent on 09.01.2013 at about 10:30 pm. The vehicle was later sold by the respondent though the sale consideration is not disclosed in the affidavit which the respondent had filed before the District Forum. 2. Being aggrieved from the seizure and sale of the vehicle, the petitioner/complainant approached the concerned District Forum by way of a Consumer Complaint. The respondent did not file written version to the complaint but still it was allowed to file an affidavit placing its case before the said forum. 3. The District Forum having dismissed the Consumer Complaint, the petitioner approached the concerned State Commission by way of an appeal. The said appeal also having been dismissed, the petitioner is before this Commission. 4. It transpired during the course of hearing that an award has been passed against the petitioner awarding a sum of Rs.66,882/- in favour of the respondent alongwith interest. The Consumer Complaint came to be dismissed on account of the said awarded passed against the petitioner. Being aggrieved from the order passed by the fora below, the complainant/petitioner is before this Commission by way of this Revision Petition. 5. Though in its affidavit filed before the State Commission, the respondent had alleged that the vehicle was seized after giving notice to the complainant/petitioner, no such notice or proof of its service upon the petitioner/complainant was produced before the concerned District Forum. The case of the petitioner/complainant is that no notice at all was issued to him before forcible seizure of the vehicle in the night of 09.01.2013 after abusing his driver and pushing him out of the vehicle. There is no evidence or even allegation of any notice having been issued to the petitioner/complainant before selling the vehicle seized from him. There is no evidence produced by the respondent to prove the procedure adopted by it for the sale of the vehicle which it had forcibly seized from the petitioner/complainant. There is no evidence or even allegation of a public notice of the sale having been issued by the respondent before selling the said vehicle. 6. Even if the petitioner/complainant had defaulted in timely payment of the installments, payable to the respondent, the vehicle could not have been seized in the manner it was forcibly seized on 09.01.2013 after abusing the driver, pushing him out of the vehicle and snatching its key from him. The vehicle could have been re-possessed by the respondent only after following the due process of law required for this purpose. Forcible seizure of the vehicle in the aforesaid manner particularly when no prior notice is given to the petitioner/complainant before seizing the vehicle nor any notice is given to him giving an opportunity to him to pay the dues before selling the vehicle, constitutes grave deficiency on the part of the respondent in rendering services to the petitioner/complainant. 7. In ICICI Bank Ltd. Vs. Prakash Kaur & Ors. (2007) 2 SCC 711, the petitioner purchased a truck getting it financed from ICICI Bank. He having defaulted in payment of the instalments, the possession of the truck was taken by the Bank by use of force. The truck having not been returned to him, a Writ Petition was filed by him, seeking registration of an FIR. Disapproving the course of action adopted by the Bank, the Hon’ble Supreme Court directed the Bank to forthwith release the truck to the petitioner. The Hon’ble Supreme Court was of the view that instead of taking resort to strong arm tactics, the bank should resort to procedure recognized by law to take possession of vehicle in cases where borrower itself defaulted in payment of instalments. During the course of a separate judgment, Hon’ble Dr. Justice A.R. Laxmanan noted that the recovery/collection agents who are contractors hired by the banks, physically and mentally torture them and force them into paying the dues and the self-respect of a man and his stature in society is immaterial to such agents. His Lordship also observed that many a times even notice is not given to the borrowers who purchased the vehicles on hire-purchase basis and the vehicle is seized in public places deliberately in order to cause embarrassment to the borrower. In a subsequent decision CITICORPN. Maruti Finance Ltd. Vs. S. Vijalaxmi IV (2011) CPJ 67 (SC), a Three Judges-Bench of the Hon’ble Supreme Court reiterated as under: “We reiterate the earlier view taken that even in case of mortgaged goods subject to Hire Purchase Agreements, the recovery process has to be in accordance with law and the recovery process referred to in the Agreements also contemplates such recovery to be effected in due process of law and not by use of force. Till such time as the ownership is not transferred to the purchaser, the hirer normally continues to be the owner of the goods, but that does not entitle him on the strength of the agreement to take back possession of the vehicle by use of force”. 8. Relying upon the aforesaid decisions, this Commission vide its order dated 13.03.2015 in R.P. No.3054 of 2014 (Manager, Shri Ram Transport Finance Co. Ltd. vs. R. Suresh & Ors.) inter-alia held as under:- “8. In our view, when a transporter finance company such as the petitioner before us, finances a vehicle and there is a default on the part of the borrower in servicing the loan taken by him, it must necessarily issue a notice to him expressing its intention to repossess the vehicle in exercise of the power conferred upon it under the loan agreement before the vehicle is actually repossessed by it. The purpose behind insisting upon such a notice being given to the borrower is to give him an opportunity to approach the financer and either bring the payment if already made by him to the knowledge of the financer or to convince the finance that it was on account of reasons beyond his control that he could not service the loan and, therefore, the default committed by him may be condoned. It is quite possible that the financer may get convinced from the circumstances so explained by the borrower and may not insist upon repossessing the vehicle, his primary objective being to recovery of loan given to the borrower and not to repossess the vehicle financed by it. If a vehicle is repossessed, without giving such a notice to the borrower, not only it has the potential to disrupt the business or profession in which the borrower is engaged using the vehicle, it may also result in his image and reputation in the society being lowered on account of the abrupt, sudden and forcible seizure of the vehicle by the financer. If a notice expressing intention to repossess the vehicle on the default of the borrower is given to him, he gets ample opportunity to prevent the proposed seizure by approaching the financer and either paying the amount which he was unable to pay alongwith appropriate interest and/or penalty on that amount or to dispose of the vehicle at his own level and repay the loan taken by him. Therefore, in all fairness, the financer must give a reasonable notice to the borrower before repossessing the vehicle financed by it and in no case the vehicle should be possessed by use of force. ……… ……… 11. … In our opinion, the seizure of the vehicle in such circumstances constitutes deficiency in service causing tremendous mental torture and stress to the borrower who all of a sudden finds himself without the vehicle which he had purchased albit with the financial assistance taken from the lender. The borrower in such circumstances does not get an opportunity to arrange the requisite finances to repay the amount which he defaulted in paying to the lender before the vehicle comes to be repossessed by the lender. The mental torture and agony would be greater when the vehicle is repossessed in his absence.” For the reasons stated hereinabove, the complainant/petitioner is entitled to appropriate compensation from the respondent for the aforesaid deficiency in the service. 9. As far as award passed in favour of the respondent is concerned, if the petitioner wants to challenge the same, he has to take recourse to the procedure prescribed in the Arbitration & Conciliation Act, 1996. The award cannot be a subject matter of the Consumer Complaint. The Consumer Fora has no authority to go into the merits or otherwise of the award and take a view on its merit, though, suitable compensation can certainly be awarded to the petitioner/complainant for the deficiency on the part of the respondent in rendering service to him as a consumer. 10. For the reasons stated hereinabove, the impugned orders are set aside and the respondent is directed to pay a sum of Rs.3 lacs as compensation to the petitioner/complainant within six weeks from today. It is made clear that the respondent shall be at liberty to enforce the award in accordance with law. If the petitioner so desires, he shall also be entitled to challenge the award in accordance with law. | 
