AT HYDERABAD.

F.A. 1008/2007 against C.D  7/2005, Dist. Forum,  Nellore.

Between-

Smt. SK. Habibunnisa,

W/o. Basheer Ahammed

H.No. 28/1356, Venkateswarapuram

Nellore-524 005.                                         ---                         Appellant/

                                                                                                 Complainant

                                                                    And

The Branch Manager

Shriram Transport Finance Company Ltd.,

H.No. 17-301, Trunk Road,

Nellore.                                                        ---                        Respondent/

                                                                                                 Opposite Party     

Counsel for the Appellant-                         P.I.P.

Counsel for the Resps-                               Mr. K. Maheswara Rao.

QUORUM-

                          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

and

SRI G. BHOOPATHY REDDY, MEMBER

MONDAY, THIS THE  FOURTEENTH  DAY OF JULY  TWO THOUSAND EIGHT

Oral Order- (Per Hon’ble Justice D. Appa Rao, President)

                                                          -----

          The unsuccessful complainant is the appellant.

          The case of the complainant in brief is that she borrowed Rs. 2,60,000/- to purchase a vehicle  No. A.P. 09 V 5570  under Hire Purchase agreement Dt. 31.10.2001  with the respondent.  The respondent had seized  the vehicle without orders of any court on 6.7.2003.  She committed default in repayment of amount.  She requested the respondent to release the vehicle.  The respondent was not the owner nor entitled to seize the vehicle.  She also filed W.P. No. 17495/2004 before the  High Court of A.P. questioning legality of the seizure.  Despite her requests the respondent did not release the vehicle which amounts to deficiency  in service.  She had sustained a loss of Rs. 30,000/- per month.   Therefore, she prayed for  an amount of Rs. 5,40,000/- with interest at the rate of 24 percent p.a., and further compensation of Rs. 1,00,000/- towards mental agony and costs.

          Respondent resisted the case.  It alleged that  it  is a non-Banking Financial Company.    The complainant is a hirer and executed the agreement . The hirer is not a  consumer  as  defined in the  Consumer Protection Act.   The defaulted hirer has no right to claim any vehicle, in any forum, unless and until the agreement is in force.  The ownership under this agreement is vested in it (opposite party) but not with the complainant.  If any dispute arises between the parties with regard to the terms of the agreement, it shall be settled, according to Arbitration Act.  The complainant paid only 11 instalments in full, and part of 12^th instalment as on 26.5.2003, and committed default of  further hire instalments.  The opposite party made several  demands to pay arrears by issuing notices dated 6.6.2002, 6.3.2003, 6.6.2003 and 27.6.2003.  After receipt of notices, she gave an undertaking on 15.4.2003 admitting the liability.  After lapse of time, it took possession of the vehicle on 8.7.2003 at Hyderabad, and the same was intimated on 10.7.2003.  The complainant filed Writ Petition No.17495 of 2005 before the High Court of A.P. questioning the  legality in seizing the vehicle, and the same was dismissed on several grounds. The complainant came forward with  same defence attracting  the doctrine of resjudicata.  The complainant also issued a legal notice Dt.  22.11.2003  to RTO Nellore not to transfer the vehicle, and copy of the same was forwarded to the Superintendent of Police, Nellore.  The RTO Nellore issued fresh R.C. after issuing notices to both of them  on 13.9.2004.  The complainant approached several authorities, and submitted her grievance.  Therefore it prayed for dismissal of the complaint.

          The complainant in proof of her case filed affidavit evidence, and filed Exs. A1 to A16,  while the respondent did not file  either affidavit or any documents.  The Dist. Forum dismissed the complaint holding that since the complainant had committed default, the respondent was entitled to seize the vehicle.  Holding  it would not amount to deficiency in service,  dismissed the complaint. 

          Aggrieved by the said decision, the complainant preferred this appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective.  The Dist. Forum had failed to note that the respondent while taking possession of the vehicle did not follow the procedure established under the law.  She was entitled to the amount besides compensation.

          It is not in dispute that the complainant borrowed Rs. 2,70,000/- from the respondent under Hire Purchase agreement Dt. 31.10.2001 for purchase of  vehicle No. A.P. 09 V 5570.   The amount is repayable with interest 17.5 percent p.a., in 36 monthly instalments,  commencing from 5.12.2001 to 5.11.2004.   It is also not in dispute that the complainant had paid 11 monthly instalments  and part of 12^th instalment as on 26.5.2003, and committed default in payment of remaining instalments.  The respondent thereupon seized the vehicle on 8.7.2003,  and sold it away on 16.4.2005 for Rs. 2,25,000/-.  Evidently, the complainant had filed this complaint even before the respondent sold away the vehicle in auction. 

Immediately after seizure, the complainant had issued a registered legal notice evidenced under Ex. A1 Dt. 16.8.2003 questioning the illegal seizure made by the respondent,  and directed it to return the vehicle and agreed for one time settlement.  When the respondent did not give any reply the appellant issued a police report under Ex. A2 Dt. 21.6.2004 alleging that possession was taken illegally from her. When the police did not take action, she filed W.P. No. 17495/2004 (Ex. A6) for mandamus declaring the inaction on the part of the police on the complaint Dt. 21.6.2004 as illegal and unjust, arbitrary and direct them to register a case against respondent.  The said W.P. was dismissed with a direction to  the complainant to approach the concerned Magistrate and file  a complaint for appropriation action.  Subsequently she filed a private complaint evidenced under Ex. A6.  

          Admittedly the respondent issued a notice on 10.7.2003 informing that they have taken possession of the vehicle on 8.7.2003 directing her to pay balance due failing which  “ We will be forced to take necessary action as per the terms and conditions of the Hire Purchase Agreement.” (Vide Ex. A11.)  In their notice  Ex. A12 Dt. 31.7.2003 they directed  her to pay Rs. 97,960/- as the balance due.   

Having taken possession, the respondent approached the Regional Transport Authority to transfer the vehicle to its name in place of complainant.  On that, the Registering Authority issued notice on 12.8.2004 to surrender Certificate of Registration, for which she protested.  Ultimately, the respondent had sold away the vehicle after publishing the same in newspapers evidenced under Ex. A4 for Rs. 2,25,000/-.

          The respondent company alleged that still an amount of Rs. 1,22,599/- was due by giving following calculations-

Amount finance -                                                                    Rs. 2,70,000/-

Finance Charges at the rate of 17.50 percent for 36 months                               Rs. 1,41,750/-

                                                                                                -----------------

Total Agreement value                                                             Rs. 4,11,750/-

Less- Instalment amount paid by the

        Hirer as on 26.5.2003.                                                    Rs. 1,30,830/-

                                                                                      -----------------

                                                                                      Rs. 2,80,920/-

Add-  ODC charges as on 8.7.2003   Rs. 32,241/-

Add-  Seizing expenses                     Rs.   4,873/-

Add-  Insurance premium paid         Rs.  11,500/-

Add-  RTO Expenses                         Rs.  18,065/-                 Rs.    66,679/-

                                                          ----------------                   ------------------

                                                                                                Rs. 3,47,599/-

Less- Sale proceeds received as on 16.4.2005                         Rs. 2,25,000/-

                                                                                                ------------------

Total amount due as on 16.4.2005.                                      Rs. 1,22,599/-

                                                                                                =============

          As earlier pointed out, it has issued a notice  Ex. A32  Dt.31.7.2003  directing her to pay Rs. 97,960/- only.  Later it  changed its mind not only calculated  the interest at the rate of 17.50 percent  on the said amounts but also added Rs. 66,679/- towards  auction  and other charges, and demanded her to pay Rs. 1,22,599/-.  This was after recovery of amount by sale of vehicle  and receipt of Rs. 1,30,830/- towards instalments.   

The complainant contends that the very seizure was illegal, as it was made without giving any notice as contemplated under the agreement.  She also contended that no notice was issued before selling away the vehicle.  Since all these proceedings were illegal, she was entitled not only to the amounts paid by her but also compensation towards illegal seizure,  besi