1. This appeal is preferred against the order dated 30/03/2011 passed in CC No. 415/2010 by the District Forum, Nagpur by which the complaint has been partly allowed.
2. The case of the complainants, as set out in the complaint, in brief is that the complainant No.1 made down payment in cash to Jaika Motors of Nagpur who was the dealer of the Truck, for purchasing a Truck called as Tata 909. Complainant No.1 also obtained loan of Rs.650000/- from the original Opposite Party (for short OP) and paid it to the said Jaika motors towards the balance price of that truck. Accordingly, he purchased the said truck in the year 2006. The said loan of Rs.650000/-, as per agreement, was to be repaid by monthly installments of Rs.16650/-. The complainant No.1 regularly paid the said installments till 25/7/2008. He sold the said vehicle to the complainant No.2 on 25/7/2008 and, at that time, it was agreed that remaining 24 monthly installments would be paid by complainant No.2. However, the vehicle could not be transferred in the record of the RTO in the name of complainant No.2. The complainant No.2 paid total amount of Rs.2,33,100/- to the OP by installments. Only ten installments were due. However, on 10/2/2010 the OP forcibly seized that vehicle from the possession of its driver. On the next day, the complainant No.2 went to the OP No.2 and shown readiness to pay Rs.30000/- to get released the vehicle. However, the OP demanded whole of the balance amount of Rs.170000/-. The OP No.2 also showed his willingness for paying Rs.170000/- on 3/5/2010 and he accordingly prepared a cheque for that amount to be handed over to OP. The OP refused to take the same. The OP without any notice to the complainant, sold that vehicle. The complainants, therefore, served legal notice dated 28/6/2010 to the OP but of no use. Therefore, both the complainants prayed that either the vehicle be returned to them or alternatively, OP be directed to refund them Rs.483500/- with interest which they paid to it towards repayment of loan. They also claimed Rs.250000/- as compensation towards mental harassment and Rs.20000/- towards cost of the complaint.
3. The OP resisted the complaint by filing written version. It submitted that the truck was purchased by complainant No.1 for commercial purpose by obtaining loan of Rs.6 lac from it, and it was to be repaid by first installment of Rs.16650/- and remaining 45 monthly installments of Rs.18900/- each. The complainant No.1 illegally sold the said vehicle to complainant No.2 and its no prior permission was obtained for the same. The complainant No.1 failed to pay the said installments regularly. It also submitted that it legally seized the vehicle from the complainants and despite of notice to them, no balance amount was paid, after seizure of the vehicle and, therefore, the said vehicle has been sold by it for recovery of the balance loan amount. The complainants paid Rs.633877/- out of total amount of Rs.784800/-. Therefore, it is submitted that complaint may be dismissed.
4. The District Forum below, after considering evidence brought on record came to the conclusion that the vehicle was purchased by complainant for maintenance of livelihood of his family members and hence he is a consumer. It also held that the complainant No.2 falls within the ambit of the beneficiary of that vehicle and, that the OP received some of installments from him, and, therefore, he is also a consumer. It also observed that as per written version of OP, it received substantial amount of Rs.633877/- out of total amount of Rs.784800/- from the complainants and that there is no evidence to show that any notice or intimation was given by OP to the complainants about the arrears of the installments or making of demand of the same from them. It also found that as per the condition No.18 of the agreement entered into by both the parties, it was necessary for the OP to serve demand notice to the complainant whenever, they are in arrears of the installments, but no such demand notice was served to the complainants by OP and hence the action on the part of OP amounts to unfair trade practice. In order to come to that conclusion, the Forum below has relied upon the observations made by the Hon’ble National Commission in the case of City Corp finance Ltd. Vs. S.Vijayalaxmi. The Forum below also observed in the impugned order that there is no evidence to prove that any intimation of sale of the vehicle was given by the OP to the complainants and that the vehicle is still recorded in the name of complainant No.1. It also observed that it had passed an order on 12/7/2010 directing the OP not to sell the vehicle or transfer it, but the OP filed no document to show that it sold that vehicle before that order. Thus, the Forum below came to the conclusion that the OP illegally seized the vehicle and, therefore, it is to be returned to the complainants and if it is unable to return the same, it is liable to refund Rs.4,83,500/- with interest to the complainant. It, therefore, directed the OP either to return that vehicle to complainant No.1 or to refund Rs.4,83,500/- with interest @9% p.a. from the date of complaint i.e.8/7/2010 to the complainant and also to pay him Rs.15000/- towards mental harassment and Rs.3000/- towards cost of the complaint.
5. Feeling aggrieved by that order, the OP has preferred this appeal.
6. The learned advocates of both the parties filed their written notes of arguments. We have today heard their respective advocates. We have also considered their written notes of arguments and the documents produced by them on record of this appeal.
7. The learned advocate of the appellant submitted that the District Forum below has failed to properly consider the facts that the loan was obtained by the complainant No.1 for commercial purpose and hence he is not a consumer and that the appellant sized the vehicle because of non payment of dues as per terms of agreement and that the respondents paid only Rs.633872/- and used the vehicle for long time and earned money. He, therefore, submitted that the complaint is liable to be dismissed and hence appeal may be allowed and impugned order may be set aside.
8. On the other hand, the learned advocate of the respondent Nos.1 & 2 herein/original complainants supported the impugned order and submitted that the appellant did not serve any notice to the respondents demanding any dues or before sell of the vehicle and hence the seizure of the vehicle without any notice is illegal. He further submitted that no documents are produced by the appellant showing for how much amount, the vehicle has been sold and to whom it is sold. He further submitted that the impugned order is legal and proper and hence appeal may be dismissed.
9. It is pertinent to note that the complainant No.1 had purchased the vehicle for maintaining his livelihood by obtaining loan from the appellant and hence he is a consumer U/s 2 (1)(d) of Consumer Protection Act. Moreover, he sold the vehicle on 25/7/2008 to the complainant No.2 and remaining 24 installments were to be paid by complainant No.2. Therefore complainant No.2 is also a consumer being a beneficiary as defined U/s 2(1)(d) of the Consumer Protection Act.
10. It is also pertinent to note that the appellants produced no documents to show that it served any notice to the complainants/respondents herein demanding any amount due either before sell of the vehicle or after its seizure. In our view, therefore, in the absence of any such document, the Forum below has rightly held that the seizure of the vehicle is against the condition No.18 of the agreement entered into both the parties and thus the seizure of the vehicle is illegal.
11. As per the complaint, an amount of Rs.483500/- was totally paid by the complainants to the appellants and the complainant was ready to pay balance amount of Rs.1,70,000/- to the appellant but the same was not accepted and the vehicle was illegally sold by the appellant. We find that the said contention of the complainants is to be accepted since no document is produced by the appellant showing as to what was the amount due on the date of seizure. The complainants produced copy of the cheque dated 3/5/2010 showing that it was drawn in the name of appellant for Rs.170000/-. We find that the said plea of the complainants can be accepted that they wanted to pay Rs.170000/- to the appellant on 3/5/2010 towards entire balance, but the appellant did not accept the same. The appellant has not stated in its written version as to on which date it sold the seized vehicle and for which amount the said vehicle is sold. Therefore, there is a reason to believe that the appellant has suppressed material facts in this case and, therefore, adverse inference can be drawn against it.
12. It is not shown by the appellant as to what is the amount of sell proceeds of that vehicle which is credited to the loan account of complainant/respondent herein towards recovery of loan. The Forum below, under these facts and circumstances has rightly come to the conclusion that there is deficiency in service provided by the original OP to the complainants.
13. The Forum below directed the appellant to refund entire amount of Rs.4,83,500/- paid by the respondents herein to it. We find that the vehicle was purchased in the year 2006 and it was seized by the appellant in the year 2010. Thus, the complainant used the said vehicle for about 4 years and thereby earned money. There is no material to show as to what is the amount earned by the respondents herein by the truck on obtaining loan from the appellant. Hence a lumpsum amount of said earning is to be assessed on the basis of the nature of the vehicle, its use and period of use. We find that it is to be presumed that the respondents earned Rs.83,500/- during the said period and hence the said amount of Rs.83,500/- is to be deducted from the amount of Rs.4,83,500/- which the respondents have paid to the appellant. Thus, the original complainant/respondents herein are entitled to Rs.4 lac with interest as specified in the impugned order.
14. We also find that compensation of Rs.15000/- awarded towards mental harassment is excessive and it should have been Rs.5000/- only. Thus, the appeal deserves to be partly allowed, and accordingly, following order is passed.
ORDER
i. The appeal is partly allowed.
ii. The directions given clause No.3 & 4 of the impugned order are modified to the effect that the original OP/appellant shall pay to the original complainant No.1/respondent No.1 herein Rs.4 lac with interest @9% p.a. from the date of complaint i.e. fom 8/7/2010 till its realization and shall pay compensation of Rs.5000/- to him towards mental harassment.
iii. Rest of the impugned order is maintained.
iv. No order as to costs in appeal.
v. Copy of the order be furnished to both parties free of cost.
