Date   : 28.01.2013.

Per Mr.K.B.Gawali, Hon`ble Member.

1.       The present appeal is filed by appellant/org.opponent against the judgment and order dated 16.8.2007 passed by District Forum Nanded in C.C.No.206/2005, whereby the original opponent was held liable to pay compensation. Respondent herein is the original opponent.

2.       The facts leading to the present appeal are briefed as under.

          That, respondent/org.complainant had obtained loan of Rs.3,37,000/- from the appellant for purchasing four wheeler bearing No.MH-26B-8616 for carrying passengers.  Amount of loan was to be repaid within three years from 25.9.2001 to 25.7.2004 in 36 monthly equated instalments each being of Rs.12,142/-. It was contended that he repaid the entire loan and there were no dues to be recovered against him. It was further contended that he had paid Rs.13,000/- towards repayment of loan by way of demand draft dated 28.6.2003.  However appellant did not credit the said amount to his loan account. He further alleged that amount of Rs.11,863/- though debited to his account towards insurance premium, the said amount was not paid to the Insurance Company. He also alleged that on 9.5.2005 his vehicle was illegally repossessed by the appellant without any notice and retained till September 2005.  He therefore  sustained loss of monthly income of Rs.20,000/- i.e. total Rs.1 lakh.  He therefore  filed the complaint before District Forum seeking direction to pay him compensation  of Rs.1 lakh towards loss of his business and also to return the demand draft of Rs.13,000/- which was not deposited in his account and also to declare that there were no dues of the appellant in respect of the said loan against him.

3.       Respondent appeared before the Forum and contested the claim by way of it`s written version. It was contended that the complaint was bad for mis-joinder and non-joinder of necessary party and that the District Forum had no territorial jurisdiction to try the said complaint. That, the said vehicle was purchased for commercial activity and hence he was not a consumer under Consumer Protection Act. It was also contended by the appellant that complainant was not regular in repayment and therefore  interest @ 3% per month on the due amount was to be recovered from him.  As regards amount of Rs.13,000/- due to inadvertence the amount remained to be credited in the account of respondent, whereas amount of Rs.11,249/- was paid to the Insurance Company on 20.9.2002 and he was issued policy. It was further contended that respondent was in arrears of Rs.71,658/- as on 11.10.2005 and therefore  vehicle was rightly repossessed.  There was no deficiency in service on the part of appellant and hence complaint be dismissed.

4.       District Forum after going through the record and hearing the parties allowed the complaint partly and directed the appellant to return the demand draft of Rs.13,000/- to respondent and to pay interest on the said amount @ Rs.36% p.a. from 1.5.2003 till realisation of the entire amount. It was further directed to pay Rs.25,000/- as mental agony and Rs.2000/- as cost of complaint.  That, the amount of compensation  towards mental agony and cost of complaint could be adjusted against arrears to be paid by the respondent to appellant.  It was also directed to return the vehicle to the respondent after calculating exact amount due to be paid by the respondent.

5.       Aggrieved by the said judgment and order present appeal is filed in this Commission. Appeal was finally heard on 8.1.2013.  Adv.Shri.D.E.Padwale was present for appellant, none was present for respondent.  Appeal was reserved for judgment.

6.       Learned advocate Shri.D.E.Padwale submitted that District Forum had no territorial jurisdiction to try and entertain the complaint. He further contended that as per clause No.22 & 23 of the agreement, the dispute between parties was to be adjudicated by the arbitrator having territorial jurisdiction at Mumbai.  Therefore  District Forum had no jurisdiction to entertain the complaint.  It was also contended that order regarding direction to pay interest @ 36% p.a. on Rs.13,000/- was arbitrary and erroneous.  That, the fact of non-deposition of the demand draft was due to inadvertence and not deliberate act and hence directing interest @ 36% is against the principles of natural justice. Awarding compensation  of Rs.25,000/- towards mental agony is also unreasonable. He thus contended that order passed by District Forum is baseless and requires to be quashed and set aside.

7.       We have perused the record as well as considered oral submission as made by learned counsel  for the appellant. It is an admitted fact by appellant that demand draft of Rs.13,000/- which was dated 28.4.2003 was remained to be deposited in the loan account of respondent. Therefore  there was loss of  interest on the said amount. It is further observed that appellant has nowhere mentioned the exact outstanding amount of loan which was due to be paid by the respondent on the date of repossession of the vehicle i.e. on 11.5.2005.  There is also no proof to show that respondent was given notice before repossession of the vehicle. Therefore it can be concluded that there is deficiency in service committed by the appellant.  However the order giving direction to pay interest @ 36% on the amount of demand draft of Rs.13,000/- does not appear to be just and proper. Further amount of compensation towards mental agony as awarded by District Forum at Rs.25,000/- is also excessive and unreasonable. We are therefore inclined to modify the judgment and order passed by District Forum to the extent of Clause No.2 & 3. In the above said facts and circumstances we pass the following order.

                                                O   R    D    E    R

1.     Appeal is partly allowed.

2.     The order passed by the Forum below is modified as under. That, the appellant is directed to return demand draft of Rs.13,000/- to the respondent and to pay interest @ 9% p.a. on the said amount instead of @ 36% p.a. from 1.5.2003 till realisation of the entire amount of interest.

3.     Appellant is also directed to pay Rs.10,000/- towards the mental agony instead of Rs.25,000/-.

4.     Rest of the order is confirmed.

5.     No order as to cost in appeal.

6.     Copies of the judgment be issued to both the parties.

Pronounced on dated 28.01.2013.