F.A.No.256 OF 2005 AGAINST C.D.No.327 OF 2001 DISTRICT CONSUMER FORUM-I HYDERABAD

Between

1.     The Escorts Consumer Credit Ltd.,
IV Floor, Lumbini Arcade, 1-10-73/2
Begumpet, Hyderabad, rep. by its
authorized signatory Mr.Pradeep Faujdar
S/o Khajan Singh

2. The Managing Director
    Escorts Consumer Credit Ltd.,
    Prince Arcade, III Floor,
   22/A, Cathedral Road  
   Chennai-086                                                                                                                                                                       Appellant/opposite parties  

          A N D

Smt R.A.Vineela W/o T.Prasanna Kumar
Aged about 32 years Occ: Teacher
R/o 16-2-752/K/43, Dilsukhnagar
Opp: Shiva Ganga Theatre,
Gaddiannaram, Hyderabad

Respondent/complainant

Counsel for the Appellant                        Sri A.Venkatesh

Counsel for the Respondent                    Sri Served

QUORUM:      THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

                                                          &

SMT M.SHREESHA, MEMBER

                                 FRIDAY THE SIXTH DAY OF JUNE

      TWO THOUSAND EIGHT

   Oral Order ( As per the Smt M.Shreesha, Member)
***

            Aggrieved by the order in C.D.No.327 of 2001 on the file of District Forum-I, Hyderabad the opposite parties preferred this appeal.

          The brief facts as set out in the case are that the complainant paid a sum of Rs.12,790/- to Adi Laxmi Motors Private Limited as down payment and balance of Rs.31,450/- financed by opposite party no.1 under hypothecation agreement dated 11.2.2000 as loan amount and the said loan shall be payable at Rs.2,125/- in EMI.  It is submitted that the complainant’s husband met with an accident on 23.12.2000 and the complainant had to meet his expenditure towards treatment, because of which he could not pay the monthly installments totaling Rs.6375/-.  In all the complainant paid to the opposite party a sum of Rs.32,295/- including the down payment.  On 27.3.2001 without issuing any notice to the complainant forcibly took away the vehicle which was in the custody of her brother.  The complainant’s husband visited opposite partyno.1 and offered to pay the balance installments amount and pay back their money in case vehicle is not given back.  The complainant got issued a legal notice dated 10.4.2000 but did not receive any reply.  Hence the complaint.

          Opposite party filed counter stating that the forum has no jurisdiction to entertain the dispute and it is to be settled only by arbitration.  The complainant had defaulted within a few months of the payment and therefore opposite parties acted as per the terms and conditions of the agreement by resorting to repossession of the vehicle which is their legal right as per the hire purchase agreement.   Hence there is no deficiency of service on their behalf .

          The District Forum based on the evidence adduced i.e., Exs.A1 to A13 and Ex.B1 and B2 allowed the complaint directing opposite party to pay Rs. 25,000/- along with costs of Rs.1,000/-.

          Aggrieved by the said order the opposite party preferred this appeal.

          The learned counsel for the appellant/opposite party submitted that the complainant after going through all the terms and conditions signed the agreement and agreed to abide by the same.  Therefore, on default of payment of many installments, the appellants are justified in seizing the vehicle by exercising their rights under Hire Purchase Agreement.  The appellants issued a notice to the respondent to pay the outstanding amount and take back the vehicle but the respondent failed to comply with the terms and therefore sold the vehicle in the open market to the best available price.  The vehicle was sold to Rs.33,000/-  on 27.5.2000 and the sale proceeds were adjusted to the account of the respondent herein.  The respondent is still due and liable to pay an amount of Rs.9015/- under the agreement.  He further contended that M/s Adilaxmi Motors Private Limited is just and necessary party to the proceedings.

          We have perused the material on record.

          The facts not in dispute are that opposite party no.1 had advanced a loan to the complainant for the balance amount of RS.31,430/-  due on the hire purchase agreement.  It is also an admitted fact that the complainant did not pay all the installments in time and became a defaulter.  Exs.A4 to A12 are the receipts for the amounts paid by the complainant.  It is pertinent to note that no notice was issued to the complainant prior to taking the repossession of the vehicle.  Ex.B2 on which the learned counsel for the appellant has relied upon is dated 30.3.2001 in which it is clearly stated that the vehicle is now in their possession and demanded the complainant to pay Rs.41,625/- which includes the future EMI’s. 

It was held by the National Commission in Citicorp Maruti Finance Ltd. Vs. S.VIJAYALAXMI reported in III 2007 CPJ, 161 (NC) that notice is to be given before repossession.  The National Commission also observed that it is unjust to direct consumer to pay outstanding balance amount when vehicle is repossessed by force.

In the instant case the notice is given after repossession of the vehicle without given an opportunity to the complainant to pay the dues prior to repossession which is an act of deficiency of service committed by the opposite parties.  The District Forum has rightly observed that the complainant has already used the vehicle for few months so he is entitled to only an amount of Rs.25,000/- and not Rs.32,295/- which was totally paid by him.  There was no interest or damages awarded.  For the aforementioned reasons we see no reason to interfere with the well considered order of the District Forum.

          In the result this appeal is dismissed.  Time for compliance 4 weeks.

                                                                   PRESIDENT          LADY MEMBER

                                                                                    6.6.2008

Kmk*