Date of Filling:      14.02.2017

                                                                                                                       Date of Disposal:  27.09.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT: THIRU.  J. JUSTIN DAVID, M.A., M.L.                                .…. PRESIDENT

                   TMT.      K. PRAMEELA, M.Com.                                        ….. MEMBER-I

                   THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.                 ..… MEMBER-II

CC.No.11/2017

THIS FRIDAY THE 27^th   DAY OF SEPTEMBER 2019

C.Radhakrishnan,

S/o.Chanderasekar,

No.15/1, Shankar Linganar Street,

Red Hills, Chennai -600 052.                                                           …..Complainant.

                                             //Vs//

Shriram Transport Finance Company Limited,

Represented by Authorized Officer,

No.126, Bye-Pass Road,

1^st Floor, Red Hills,

Chennai - 600 052.                                                                             …..Opposite party.

This Complaint is coming upon for final hearing before us on 13.09.2019 in the presence of M/s. Ramesh Kumar Chopra, counsel for complainant and on behalf of the opposite party M/s.S.Prabakaran Advocate filed written version and proof affidavit but the opposite party has not filed his written argument and oral argument and after perusal of both side evidences and complainant’s oral argument, this forum delivered the following.

ORDER

PRONOUNCED BY THIRU. J. JUSTIN DAVID,  PRESIDENT

This complaint has been preferred by the complainant Under Section 12 of the Consumer Protection Act-1986 against the opposite party for seeking a direction to return the vehicle bearing registration No.TN-20-AT-0495 in the same condition when it was illegally stolen by the opposite party and to pay a sum of Rs.10,00,000/- towards compensation for causing damages due to illegal possession of the vehicle and to pay a sum of Rs.1,00,000/- towards cost of proceedings.

2.The brief  facts of the complaint is as follows:-

The complainant entered into hire-purchase agreement in respect of vehicle bearing registration No.TN-20-AT-0495 under hire-purchase contract No.0312020012. As per terms of the agreement, the complainant has to pay Rs.13,449/- per month for 36 months from 05.01.2014 to 05.12.2016.  The complainant has paid the monthly hire-purchase dues along with the dues towards the loan regularly and also the complainant has paid a sum of Rs.17,500/- for the above said vehicle and a sum of Rs.5,200/- for another vehicle bearing registration No.TN-01-R-9685 on 24.09.2015.  But the receipts was given by the opposite party on 25.09.2015 for Rs.5,200/- and receipt was given for Rs.17,500/- on 03.10.2015.  The complainant’s vehicle was seized on 17.08.2015 immediately after a re-agreement and there was no intimation regarding seizure of the said lorry and there is no prior notice with break up figure towards the dues. The opposite party has not intimated to the complainant about the vehicle being sold in public auction and there was no auction notice given to the complainant.  The complainant has made several representations to the opposite party, but there was no response and therefore the complainant sent legal notice dated 04.07.2016 calling upon the opposite party to pay a sum of Rs.10,00,000/- towards compensation for negligent act and deficiency in service and to return the vehicle. But there was no reply from the opposite party.  The above act opposite party’s amounts to negligent and deficiency in service, thereby the complainant had to run from pillar to post to get information regarding whereabouts his vehicle.  Therefore the complainant suffered mental and financial loss due to the act of the opposite party.  Hence the complainant prays for an order to return the vehicle bearing registration No.TN-20-AT-0495 in the same condition when it was illegally stolen by the opposite party and to pay a sum of Rs.10,00,000/- towards compensation for the loss due to illegal possession of the vehicle and to pay a sum of Rs.1,00,000/- towards cost of this litigation.

3. The brief contention of written version of the opposite party is as follows:-

This complaint is not maintainable either in law or on facts and the same is liable to be dismissed. The complainant is not a consumer and the alleged dispute raised in the complaint is commercial in nature.  The complainant has admitted that he had made payments towards the due amount for another vehicle bearing registration No.TN-01 R 9685 under Hypothecation Agreement and hence the subject matter of the complaint is not intended for the livelihood of the complainant and the financial facilities were obtained by him for two vehicles from the opposite party and therefore the transaction is for the commercial purposes. The relationship between the complainant and the opposite party is that of debtor and creditor and the dispute arose under the hypothecation agreement and the transactions taken place under the said agreement are commercial in nature and being governed by the provisions of contract act and the complainant is not at all a consumer as defined in the Consumer Protection Act.  The complainant approached the opposite party on 12.12.2013 for vehicle loan.  As requested by the complainant, the opposite party availed a vehicle loan for the vehicle bearing No.TN-20-AT-0495 for a sum of Rs.3,32,808/- by entering into the hypothecation cum loan agreement dated 12.12.2013 and the complainant agreed to repay the said amount together with interest of Rs.1,52,230/- for 36 EMIs commencing from 05.01.2014 to 05.12.2016.  In the mean time the complainant has also availed four working capital loans all in totally for a sum of Rs.97,199/- subsequent to the above said loan.  The complainant has paid the dues for some months and the complainant did not pay the outstanding dues for seven months.  Thereafter providing reasonable opportunity to the complainant, the opposite party had repossessed the vehicle bearing No.TN-20-AT-0495 and intimated the complainant immediately.  Thereafter the complainant has paid the outstanding dues of Rs.17,500/- only on 03.10.2015.  After repossessed, the opposite party had intimated the complainant through paper publication regarding auction sale of the said vehicle.  During auction sale, the said vehicle was sold for a sum of Rs.2,25,000/-.  The complainant issued a cheque bearing No.067056 for a sum of Rs.15,000/- on 25.11.2016, but the above said cheque was returned.  Thereafter no payment was made by the complainant till date. Therefore there is no deficiency in service committed to the complainant and the vehicle was reposed and also as per the hypothecation cum loan agreement entered between the complainant and the opposite party.  Hence the complainant prayed before this forum for compensation and to hand over the vehicle bearing No.TN-20-AT-0495 is unsustainable and cannot be granted under the provisions of Consumer Protection Act and there is no unfair trade practice on the part of the opposite party. Therefore this forum may be pleased to dismiss the complaint with exemplary costs.

4.  In order to prove the case, on the side on the complainant, proof affidavit submitted for his evidence and Ex.A1 to Ex.A10 were marked.  While so, on the side of the opposite party, the proof affidavit is submitted as his evidence and Ex.B1 to Ex.B7 were marked.

5. At this juncture, the points for determination before this Forum is as follows:-

(1)Whether there is any deficiency in service on the side of the opposite party as alleged in the complaint?

(2)Whether the opposite party is liable to return the vehicle bearing registration No.TN-20-AT-0495 to the complainant?

(3)Whether the complainant is entitled for compensation and cost as claimed in the complaint from the opposite party?

            (4) To what other reliefs, the complainant is entitled to?

6.Point Nos. 1& 2:-

On perusal of the complaint, the proof affidavit and documents filed on the side of the complainant and written version, proof affidavit and documents filed on the side of the opposite party this forum finds that the opposite party sanctioned a loan of Rs.3,32,808/- to the complainant on hire purchase agreement dated 12.12.2012 by hypothecating the complainant’s vehicle bearing registration No.TN-20-AT-1495.  As per the agreement the complainant has to repay the loan amount at the rate of 13,449/- per month in 36 months commencing from 05.01.2014 to 05.02.2016.  The opposite party filed Ex.B2 loan cum hypothecation agreement and Ex.A3 copy of registration certificate of the vehicle bearing No.TN-20-AT-0495 and the complainant also filed copy of registration certificate as Ex.A1.  Therefore Ex.A3 and Ex.A1 are one and the same documents.

7. According to the complainant he has paid the monthly installment up to 03.10.2015, but the opposite party without prior notice seized the vehicle and sold the same in public auction and the opposite party has not issued any auction notice to the complainant.  On the other hand, the opposite party contended that the complainant had paid the due for some months and did not paid the outstanding dues for seven months and the opposite party provided reasonable opportunity to the complainant to pay the due and the same was not utilized by the complainant and therefore the opposite party repossessed the vehicle and sold the same for a sum of Rs.2,25,000/-.  The opposite party has not stated in the written version when the opposite party seized the vehicle from the complainant. The opposite party admitted in the written version the complainant has paid the outstanding amount of Rs.17,500/-only on 03.10.2015 after repossessing of the vehicle by the opposite party.  The opposite party has not stated in the written version or proof affidavit how much outstanding amount payable by the complainant up to date of seizure of the vehicle from the complainant’s custody.  The opposite party filed Ex.B6 letter dated 25.08.2015 in the said letter the opposite party stated that the complainant has not paid the monthly installment payments of Rs.2,34,460/- as on 17.08.2015.  In the said letter also the opposite party has not stated the details of payment and the balance amount payable by the complainant and how much remaining monthly installment payable up to 17.08.2015.  Further as per clause 6 of the loan cum hypothecation agreement in the event of borrower committing any act of default then the opposite party is entitled to call upon the borrower to pay the outstanding balance of the said credit facilities together with interest.  But here in this complaint the opposite party has not sent any notice call upon the borrower to pay the outstanding amount before seizure of the vehicle.  The opposite party issued notice to the complainant to pay the balance amount otherwise the opposite party has no other option except to sell the vehicle.  Hence the opposite party issued Ex.B6 notice dated 25.08.2015 only after seized the vehicle in violation of the terms and conditions mentioned in the loan cum hypothecation agreement.

8. The learned counsels for the complainant argued that the opposite party seized the complainant’s vehicle without prior notice to the complainant and thereafter auctioned the vehicle without issuance of auction notice to the complainant and the same amounts to deficiency in service on the part of the opposite party and relied on the following decision

STATE CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA

FA.No.A/03/1528

Smt. Leelavati

W/o.Gyanchand Paande.                                                   …..Appellant.

                                                             //VS//

Mahaveer Finance India Limited                                      ….Respondent

“It is held that now it is well settled law that without prior notice no financer can attach or seize the hypothecated vehicle.  But it appears that the copy of impugned judgment and order that the District Consumer Forum, Nagpur without considering the settled position of law, committed error in dismissing the complaint.”

(AP) STATE CONSUMER DISPUTES REDRESSAL COMMISSION

FA.No.222/2008

(against CC.No.866/2006 District Forum-I Hyderabed)

HDFC Bank.                                                             ……….Appellant/Opposite party.

                                 //VS//

B.Srinivas.                                                                 …….Respondent/Complainant.

“It is held that it is clear that even though the hire purchase agreement may give right to take possession of the vehicle, money lenders/financial institution/banks have no power to take possession by use of force and have to follow the statutory remedy which may available under the law.

May be that the procedure of law is slow, but that is no excuse for use of force for repossessing the vehicle, it the contention of the petitioner that it can take possession of the vehicle by means of force is accepted the rule of jungle would prevail and might would be right.  Therefore, we may hold that the possession of vehicle without issuing prior notice is unjust and illegal”.

9. The above decisions are applicable to the fact of the present complaint.  In this complaint also the opposite party took possession of the vehicle from the custody of the complainant without issuing prior notice and also sold the vehicle without issuing auction notice.          The opposite party contended that they issued auction notice in the paper and filed Ex.B7 copy of paper publication.  In Ex.B7 it is written as follows:

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The said Ex.B7 is not an auction notice within the meaning of circular issued by the RBI.  The opposite party has to issue an auction notice to the complainant stating the details of outstanding amount payable by the complainant and in default sell the vehicle in public auction and also the opposite party has to give 15 day time to pay the balance amount.  But here in this complaint, the opposite party has not given any time for payment of outstanding amount and the opposite party has not mentioned the outstanding amount payable by the complainant.  Hence Ex.B7 cannot be treated as auction notice.  The opposite party seized the vehicle and the same was sold by the opposite party without notice is illegal. The complainant is the owner of the vehicle and he availed loan of Rs.3,32,808/- and also paid some installment to the opposite party but the opposite party seized the vehicle from the complainant  and sold the same in public auction without following the due process of law.  The above attitude of the opposite party amounts to deficiency in service.  The complainant prays for return of the vehicle since the opposite party already sold the vehicle question of return of the vehicle does not arise. On the other hand the complainant is entitled for cost of vehicle.

10. The opposite party seized and sold the vehicle illegally without following due process of law and thereby committed deficiency in service.  Under these circumstances there is deficiency in service on the part of the opposite party and the opposite party is liable to refund of Rs.3,00,000/- towards cost of the vehicle to the complainant. Thus the point No.1 and 2 are answered accordingly.

11.Point No.3:-

The complainant claimed a sum of Rs.10,00,000/- towards compensation for loss sustain due to illegal possession of the vehicle and also prays for an order to pay a sum of Rs.1,00,000/- towards cost of the proceeding.  The complainant is the owner of the vehicle and he used the vehicle for his livelihood.  Therefore the complainant is a consumer within the meaning of the Section 2(d) of the Consumer Protection Act-1986.  Because of the illegal seizure of the vehicle by the opposite party the complainant was unable to use the vehicle for his livelihood.   The complainant proved that he used the vehicle for his livelihood and seizure of the vehicle is illegal and therefore the complainant has suffered financial loss and mental agony.  Therefore the complainant is entitled a sum of Rs.50,000/- towards compensation for causing mental agony and financial loss to the complainant due to illegal possession of the vehicle by the opposite party.  Further the complainant is entitled for cost of Rs.10,000/- from the opposite party.  Thus the point No.3 is answered accordingly.

12.Point No.4:-

In the result, this complaint is allowed in part.  Accordingly opposite party is hereby directed to refund a sum of Rs.3,00,000/- (Rupees three lakhs only) to the complainant towards cost of vehicle bearing Registration No.TN-20-AT-0495. The opposite party further directed to pay sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for causing mental agony and financial loss due to illegal possession of the vehicle by opposite party and also to pay sum of Rs.10,000/-(Rupees ten thousand only) towards cost of litigation to the complainant.

The above said amount shall be  payable by the opposite party  within two months from the date of receipt of the copy of this order failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum of this 27^th September 2019.

    -Sd-                                               -Sd-                                                              -Sd-

MEMBER-II                                   MEMBER-I                                                 PRESIDENT.

List of documents filed by the complainant:-

List of documents filed by the opposite party:-

    -Sd-                                               -Sd-                                                              -Sd-

MEMBER-II                                   MEMBER-I                                                   PRESIDENT.