Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order :  29.02.2016

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. The vehicle No. JH – 05U 8823 was forcibly repossessed by the opposite party, hence damage to the complainant be granted to the tune of Rs. 3,00,000/- ( Rs. Three Lacks only ) with interest @ 12% till its realization.
2. To direct the opposite party no. 1 to 3  to issue NOC to the complainant of vehicle No. JH – 05U 8823, and close Loan file of the complainant.
3. To pay Rs. 1,00,000/- ( Rs. One Lack only ) as compensation and litigation costs.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. The complainant is a handicapped and disabled person, therefore, the complainant took said vehicle No. JH – 05U 8823, for his livelihood, the photocopy of the certificate of his disability is annexed in this application.
2. Opposite party no. 1 and 2approcahed the complainant to purchase Second hand vehicle which is in their hand, and on physical verification of the said vehicle, the complainant found that the said vehicle stood in the name of Julan Singh and the said vehicle model is of 2008. Therefore, company fixed the price of said vehicle is Rs. 6,53,873/- and issued cheque of the same amount vide cheque no. 645477 dated 27.12.2011, and said vehicle was transferred, in the name of the complainant which stood hypothecated with opposite party no. 1. The complainant is annexing the photocopy of the cheque and photocopy of the book of Registration, and other papers.
3. The said vehicle no. JH 05U 8823 is an old vehicle and after taking delivery of said vehicle, the complainant met huge expenditure upon the said vehicle to the tune of Rs. 2,50,000/- for road worthy condition of the said vehicle.
4. The complainant met the entire cost of the said vehicle such as road tax, permit cost and Insurance cost etc. and complainant is plying the said vehicle on road from January 2012, after repayment of the loan upon the said vehicle to the opposite party no. 1 to 3. At the time of taking loan, the opposite party no. 2 and 3 promised the complainant  to give benefits or relaxation in the interest of loan of said vehicle, because the complainant comes under the purview of the handicapped and disabled person.
5. The complainant started payment of instalment to the opposite party from months of February 2012, and paid to the opposite party upto Rs. 8,34,258/- against the said loan.
6. In the meantime, the opposite party without giving any notice to the complainant repossessed the said vehicle no. JH 05U 8823 on 22.11.2013, on 10.01.2014 and 07.02.2014 by his musclemen/recovery agent, opposite party no. 4 and kept the same idle for the period of one month 15 days and released the vehicle, after taking Rs. 10,000/- each time but, the said amount has not been debited by the opposite parties in the account of complainant.
7. Sunil Kumar Singh and Pankaj Kumar Singh are authorised musclemen of the said Shri Ram Transport Finance Company and they put the complainant in loss in plying the said vehicle.
8. The vehicle of the complainant was repossessed by opposite party no. 1 to 4 on false accusation and the said vehicle was kept in the possession of another person, therefore, the valuable parts of the vehicle was removed and caused loss of the complainant of more than Rs. 3,00,000/-.
9. The complainant has paid Rs. 8,34,258/- + Rs. 30,000/- against the outstanding of Rs. Rs. 6,53,873/-, but the opposite party, without any reason realising vexatious charges or interest upon the said loan account of truck no. JH – 05U 8823 and not issuing N.O.C. to the complainant.
10. It is known to the opposite party that the complainant is a disable person, hence no relief in interest has been granted by opposite party and opposite party are trying to realise, excess amounts from the complainant, which is grave deficiency on the part of the opposite party.
11. The account statement of loan submitted by the opposite party is very excessive and in place of Rs. 6,53,873/- the opposite party is showing outstanding loan of Rs. 7,00,000/- + Rs. 30,000/- + Rs. 30,000/- + Rs. 30,278/- and Rs. 29,368/-, which have not taken by the complainant, but the opposite party, to take more money from the complainant, are adopting this practice of hiring and recovery and penalising the borrower by taking resort to strong arms tactics.

3. The Opposite Party no. 1 to 3 in their written statement have submitted as follows :-

1. From perusal of the complaint petition under reply it appears that the complainant has prayed for compensation for the alleged deficiency in service on the part of opposite parties.
2. At the very outset it is stated that the answering opposite party no. 1 herein is a limited company incorporated and registered under the companies Act 1956 having its registered office at 3^rd floor, Mookambika complex no. 4, lady desika road, mylapore, Chennai – 600004. Tamil Nadu and having several branch offices across the country having one of such branch office at Luv Kush Tower, exhibition Road, Patna, Bihar.
3. The opposite party no. 1 is engaged in a business of Asset Finance including Hire Purchase Financing, Loan Financing and Leasing of vehicle, commercial as well as private to the individual and the person in need of vehicle.
4. From perusal of the complaint petition under reply, it appears that the complainant has filed the instant complaint petition claiming damages amounting to Rs. 3,00,000/- on account of repossession of his vehicle bearing no. JH 05U 8823 and further prayed for a direction to the opposite parties to issue NOC in respect of the said vehicle and to close loan file of the same.
5. At the very outset the answering opposite parties raised a preliminary objection with regard to maintainability of the complaint petition in view of the fact that neither any cause of action has arisen till date nor any deficiency in service has been caused on the part of the answering opposite parties.
6. It is incorrect to say that opposite party no. 1 and 2 had approached the complainant to purchase a second hand vehicle and the company had fixed the price of the said vehicle. It is relevant to state that as stated above, the opposite party no. 1 to 3 are not seller of vehicle rather they simply deal in Hire Purchase Financing, Loan Financing and Leasing of vehicles, commercial as well as private and in fact, the complainant was desirous to purchase a truck which he had negotiated from the original owner of the said vehicle and thereafter contacted the office of the opposite party no. 1 to 3 for grant of loan and after being satisfied and understanding the terms and conditions of loan, he had given his consent and thereafter loan of Rs. 7,00,000/- was sanctioned and accordingly, cheque for an amount of Rs. 6,53,873/- was handed over to him after deducting incident charges such as service charge, first insurance amount, body insurance, documentation etc. well within the knowledge of the person concerned as well as after receipt of written consent in this regard and thus, any plea that he was not aware about those charges is not justified and fit to be ignored. Apart from that the contention that he purchased the said vehicle from the opposite party no. 1 and 2, if the vehicle was sold by the opposite party no. 1 and 2, there would not be any occasion to issue any cheque in favour of the complainant.
7. It is stated that it would be evident from the statement of account that the complainant was never punctual in depositing the installment against the loan advances to him resulting which the officials were compelled to take steps for seizure of the vehicle after issuance of proper notice.

4. Rejoinder to written statement filed on behalf of opposite party no. 1, 2 and 3 are as follows :-

1. It is submitted that the deponent/credit manager has not annexed authority letter along with the written statement to show/established that the credit manager is authorized  and competent person to swear and to file written statement on behalf of opposite party no. 1, 2 and 3. It is very difficult to say that credit manager is authorized person to file detail and comprehensive written statement on behalf of opposite party no. 1, 2 and 3.
2. It is respectfully submitted that the allegations made in the complaint petition comes within the preview of Consumer Protection Act and the grievance of the complainant is just fair and reasonable. The complainant has filed the present complaint before this Forum for redressing his genuine grievance. The complainant is partially handicapped and purchased the vehicle only for earning his livelihood by employing himself. Thus the complainant is consumer and the complaint filed by him is maintainable. He has disclosed all relevant facts in his complaint which are necessary for proper adjudication of the complaint.
3. It is submitted that the opposite party no. 1 keep printed form of term and conditions in fine print which restrict and often exclude liability under the contract. This gives an unique opportunity to the company to exploit the weakness of the individuals like complainant by imposing upon him terms which often look like a kind of private legislation. The terms and conditions of the agreement are not disclosed nor a clear, fair and reasonable effort to bring the attention of the complainant on it at the time of contracting. The copy of the agreement has not been served to the complainant even after making request to the opposite party no. 3 several times. In the presence of the other customer the complainant requested opposite party no. 3 to deliver copy of agreement but except giving assurance no step has been taken to serve the copy of agreement. The complainant discharged all the obligation upon him and regularly paid the installment, but without serving the notice and without giving prior information to the complainant, the opposite parties with the help of muscleman had taken possession of the vehicle bearing registration number JH 05U 8823.

The facts asserted by both the parties have been narrated in the aforementioned paragraphs.

The learned counsel for the complainant has submitted that before repossessing the vehicle in question no notice was given to the complainant or his family members as per terms and conditions mentioned by the opposite parties in the agreement which is still in their possession.

It has been further submitted that the vehicle in question was taken out from the complainant by opposite party no. 4 who is henchman/muscleman of opposite party no. 1, 2 and 3. The learned counsel for the opposite parties have denied the aforesaid allegation and submitted that the vehicle in question have been taken out from the possession of the complainant in legal manner as he has defaulted in paying the installment.

 Heard both the parties in detail.

It is the case of the complainant that the vehicle in question was given to him after paying Rs. 6,53,873/- ( Rs. Six Lack Fifty Three Thousand Eight Hundred Seventy Three only ) and after taking the aforesaid vehicle he has invested Rs. 2,50,000/- ( Rs. Two Lack Fifty Thousand only ) in the vehicle for making the same for road worthy.

It is further case of the complainant that despite paying the installment the vehicle in question was repossessed on 22.11.2013, 10.01.2014 and 07.02.2014 by muscleman /recovery agent which was released after 15 days after taking Rs. 10,000/-.

It has been also asserted by the complainant that he has paid Rs. 8,34,258/- ( Rs. Eight Lack Thirty Four Two Hundred Fifty Eight only ) + 30,000/- ( Rs. Thirty Thousand only ) i.e. total in Rs. 8,64,258/- ( Rs. Eight Lack Sixty Four Thousand Two Hundred Fifty Eight only ) against  outstanding of Rs. 6,53,873/- ( Rs. Six Lack Fifty Three Thousand Eight Hundred Seventy Three only ).

The opposite parties in their written statement have admitted that complainant has deposited amount of Rs. 8,34,258/- ( Rs. Eight Lack Thirty Four Thousand Two Hundred Fifty Eight only ) against the loan advance to the complainant i.e. 7,00,000/- ( Rs. Seven Lacks only ) but still amount of Rs. 5,15,995/- ( Rs. Five Lack Fifteen Thousand Nine Hundred Ninety Five only ) is due against the said loan for final settlement by 04.11.2014.

No purpose will be served in repeating the same fact again and again.

The complainant’s allegation that he has not received any notice before repossession by muscleman has not been replied satisfactorily by the opposite parties because they have not given any chit of paper which proves that they have informed the complainant by letter etc. or they have given notice through phone call. They have not asserted that on which phone number they have intimated the complainant about due installment or by what agency they have taken the vehicle in possession.

From bare perusal of the written statement filed by the opposite parties, it further appears that the copy of the agreement has not been annexed with written statement filed by the opposite parties because the grievance of the complainant that he has not been given the copy of the agreement is a serious matter.

The complainant is a handicapped which has not been denied and his contention that he was made to sign on printed paper which he could not understand has not been replied satisfactorily.

It is needless to say that the Hon’ble Supreme Court of India and Hon’ble national Commission in contena of judgments have been pleased to hold that the repossession of vehicle by muscleman is illegal.

In absence of making agency through which opposite parties have taken the vehicle in possession we have no option but to accept the contention of complainant that vehicle in question was taken into repossession through muscleman.

It has also been asserted by the opposite parties that the matter be sent to arbitration but this prayer has been made in year 2015 while this case appears to be filed on 10.04.2014.

It goes without saying that this Forum is not bound to send any case to arbitration.

For the reason stated above we find and hold that the aforesaid fact clearly proves deficiency on the part of opposite parties.

Accordingly we direct the opposite parties jointly and severally to return the vehicle in question to the complainant, if the vehicle is in the possession of opposite parties within a period of one months from the date of receipt of this order or certified copy of this order failing which the opposite parties will have to pay an interest @ 10% on the total amount paid by the complainant to opposite parties i.e. Rs. 8,34,258/- ( Rs. Eight Lack Thirty Four Thousand Two Hundred Fifty Eight only ) till the aforesaid order is complied.

The opposite parties are further directed that the installment during which the vehicle in question has been in their possession will not be realized from the complainant.

The complainant is also directed to pay the due installment through Bank Cheque etc. to the opposite parties and opposite parties will give receipt of the aforesaid amount                          ( installment ) to the complainant.

Opposite parties are further directed to immediately handover the copy of the agreement to the complainant so that he could know the real detail about the agreement an can act as per terms of the agreement in future.

Opposite parties are further directed jointly and severally to pay Rs. 50,000/- ( Rs. Fifty Thousand only ) to the complainant by way of compensation and litigation costs within the aforesaid period of one month.

Accordingly, this case stands allowed to the extent indicated above.

                                        Member                                                                   President