STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDGIARH

Appeal No.1949 of 2008

ICICI Bank, Madhya Marg, Sector 9, Chandigarh through its Branch Manager.

                                                                                    ..…Appellant.

Versus

Smt. Ram Murti wife of Sh. Satish Kumar resident of VPO Lambia, Distt. Mohali, Punjab.

                                                            ..…Respondent.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

                        HON’BLE MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

                        HON’BLE MRS. NEENA SANDHU, MEMBER.

ARGUED BY: Sh. Sandeep Suri, Advocate for the appellant.

                        Sh. Dilip Kataria, Advocate for the respondent.

MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

1.                     This is an appeal against the order of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 21.10.2008 passed in complaint case No.1093 of 2007 : Smt. Ram Murti Vs. ICICI Bank.

2.                     Briefly stated the case of the complainant is that he purchased a new Indica car on 16.11.2005 by paying a sum of Rs.1,62,000 to the manufacturer company and the remaining amount of Rs.2,10,000/- was financed by the OP Bank. It was averred by the complainant that he paid the installments of the car upto August 2006. It was alleged in the complaint that when the car was being driven by one Sh. Madan Lal near Gurudwara Shri Lambiya Sahib, Phase VIII, Mohali, musclemen of OP stopped the car and took forcible possession of the car after beating Sh. Madan Lal. The complainant, it was averred, lodged an FIR (C-3) against the OP. Alleging forcible possession of his car by the OP with a view to grab the hard earned money of the complainant, the complainant had filed the present complaint.

3.                     The version of OP Bank is that the complainant along with Satish Kumar had applied for a finance facility and based on their application, the Bank was agreeable to grant finance. It was stated that the complainant and said Satish Kumar had promised that in case loan was granted to them, they shall clear all the installments on the due dates and there would be no default. It was further agreed to by the complainant that in case of default, the complainant shall handover the possession of the vehicle, which was hypothecated with the Bank against the said loan and the Bank would be free to take over possession of the said vehicle in case of any default. It was next stated that the alleged possession of the vehicle was taken on 23.2.2007. As per the OP, the complainant had failed to clear the dues of the Bank and further, no FIR had been lodged against it. It was asserted by the OP that it had repeatedly called upon the complainant to clear all the dues of the Bank and get the vehicle released as the Bank was always ready to return the vehicle in question. As per the OP, the vehicle of the complainant was now in the possession of the police authorities. Pleading no deficiency in service on its part, OP prayed for dismissal of the complaint.

4.                     As regards the preliminary objection of OP regarding the present complaint being not maintainable as the complainant had earlier filed a similar complaint bearing No.910 of 2007, the learned District Forum recorded that the earlier complaint was not decided on merits and the same was dismissed as withdrawn and as such, the dismissal of the earlier complaint as withdrawn did not debar a second complaint on the same cause of action. Accordingly, this preliminary objection raised by the OP was overruled.

5.                     The learned District Forum, in its analysis of the complaint on merits, firstly while dealing with the allegation of forcible possession of the vehicle by the OP, recorded in the impugned order that neither the complainant was present at the time when the possession of the vehicle was allegedly taken forcibly of by the musclemen of the OP nor the said Madan Lal or any other eye witness has filed his affidavit to support this allegation of the complainant. The learned District Forum further recorded that FIR (C-3) was not a substantive piece of evidence to prove forcible possession. It, therefore, held the view that in the absence of the affidavit of said Madan Lal or of any other eye witness, it could be said if any force was used to take possession of the vehicle from said Madan Lal and thus, the learned District Forum turned down this allegation of the complainant.

6.                     The learned District Forum then dwelling to the issue of default in payments, recorded in the impugned order that as per the loan agreement, the rate of interest would be in accordance with the terms specified in the annexures. It further recorded that in case of default of payment, an additional interest @24% per annum was to be charged by the Bank as was mentioned in Clause 15 of Part III of the Credit Facility Application Form. It has also been recorded that Column No.3 with respect to the interest had not been filled by the OP and it appeared to the learned District Forum that it was to be filled up by the OP Bank at its own wish. As per the learned District Forum, when the vehicle of the complainant was taken possession of by the OP, it was only 1 years and 3 months old and its value on the date of repossession was shown to be Rs.3 Lacs in the FIR (C-3). The learned District Forum thus deemed it proper to deduct a sum equivalent to 15% of its value i.e. Rs.55,770/- and after deducting the said amount, it calculated the value of the car to be Rs.3,16,045/- and did not include in this amount the amounts spent by the complainant on insurance, registration and accessories. Thus, as per the learned District Forum, the value of the car on the date of repossession could not be said to be less than Rs.3,00,000/-. It further recorded that out of the loan amount of Rs.2,10,000/-, since the complainant had returned  installments worth Rs.38,700/- as per Annexure C-1 (Rs.31,831/- principal amount and Rs.6,8,69/- interest), the principle amount due from the complainant was only Rs.1,78,169/- and thus the entire loan amount stood paid with the taking over possession of the car by the OP. Thus, in the view of the learned District Forum, the OP on that date was liable to pay Rs.1,21,831 to the complainant i.e. (Rs.3,00,000 – Rs.1,78,169). The learned District Forum was further of the view that since the OP Bank had charged the complainant interest @24% per annum on the delayed payment, thus, it was also liable to pay interest at the same rate on the amount of Rs.1,21,831 till the date of realization.

7.                     In view of its above discussion, the learned District Forum allowed the complaint and directed the OP to pay the complainant a sum of Rs.1,21,831/- along with interest @24% per annum w.e.f. 23.2.2007 till actual realization. OP was also directed to pay a sum of Rs.10,000/-  to the complainant as costs of litigation and order was directed to be complied with within a period of 30 days from the date of receipt of copy of the order failing which, OP was made further liable to be prosecuted under Section 27 of the Consumer Protection Act, 1986.

8.                     Aggrieved by the said order of learned District Forum, OP has filed the present appeal. The appeal having been taken on board, notice was sent to the respondent and record of complaint case was summoned from the District Forum. Sh. Sandeep Suri, Advocate appeared on behalf of the appellant whereas Sh. Dilip Kataria, Advocate appeared for the respondent/complainant.

9.                     Sh. Sandeep Suri, Advocate learned counsel for the appellant submitted that the learned District Forum itself had come to the conclusion that the vehicle in question was not forcibly repossessed and even thereafter arbitrarily, it has directed the OP Bank to pay the complainant a sum of Rs.1,21,831/- along with interest @24% per annum. He further submitted that the vehicle in question was in police custody and the Bank had always offered the complainant to collect the vehicle after paying the dues of the Bank and it was the complainant who never came forward to collect the vehicle in question. He also submitted that admittedly, the complainant had failed to pay regular EMI and thus, the Bank had the right to repossess the vehicle as per the agreement. He, therefore, prayed that the impugned order be set aside and the complainant had directed to take the vehicle from the custody of the police after clearing the amount due to the Bank. The learned counsel also clarified that the Bank was only charging interest @7.74% and not @24% as recorded in the impugned order by the learned District Forum. He, therefore, prayed that at least the impugned order be modified to this extent that the interest payable is reduced to 7.74% and not @24% per annum.

10.                   In response, Sh. Dilip Kataria, Advocate for the respondent submitted that the OPs had forcible taken possession of the vehicle and had committed a grave offence in doing so and further they had deprived the complainant of the use of the vehicle. He prayed that in fact, it was a case where the compensation granted should be enhanced and the impugned order be modified to this extent.

12.                   We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties.

13.                   Firstly, we wish to clarify that the complainant has not filed any appeal against the impugned order and therefore, it now cannot raise the question of forcible possession of the vehicle because in the impugned order, the learned District Forum has come to a categoric finding that the complainant has failed to prove forcible repossession of the vehicle in the absence of any affidavit filed by the driver of the car at the time of its repossession or any other evidence by an eye witness to prove this factum of forcible repossession. The only question now before us is whether the compensation ordered to be paid is legally justified or not. Admittedly, the value of the car was Rs.3,71,818/- as shown in the insurance cover and the same had been purchased in December 2005 and the same had been repossessed on 23.2.2007, thus, the complainant had used the car for one year and three months. Admittedly, also the value of the car as indicated in the FIR is Rs.3 Lacs. The Bank had only extended the loan to the extent of Rs.2,10,000/- out of which the complainant had paid back principle amount of Rs.31,831/- and interest component of Rs.6,869/- through the EMIs up to the date of repossession. Thus, on the date of repossession of the car, the principle amount due to be paid by the complainant amounted to Rs.1,78,000/- whereas it had repossessed the car of the value of Rs.3 Lacs. Thus, we are in consonance with the view held by the learned District Forum that the OP Bank was required to pay back the complainant a sum of Rs.3,00,000 – Rs.1,78,169 = Rs.1,21,831. Since, the Bank has withheld this amount from the date of possession of the vehicle, it is liable to return this amount to the complainant with due interest. The learned counsel for the appellant had submitted that the loan had been extended to the complainant @7.74% and thus, the award of interest @24% is excessive. We after careful perusal of the loan agreement, find that it clearly indicated in the loan agreement at Para No.15 of the declaration by the applicant and co-applicant that in place of default in payment, the rate of interest payable would be 24% per annum.

13.                   Thus, in view of the fact that the OP Bank had illegally retained the balance amount due to the complainant after repossession of the vehicle, we are in consonance with the view held by the learned District Forum that the Bank is liable to pay the same rate of interest on the due amount to the complainant as it would have charged the complainant for the delay in payment of EMIs. Consequently, finding no merit in the appeal, the same is dismissed and the impugned order is upheld.

14.                   Copies of this order be sent to the parties free of charge.

Pronounced.

19^th April 2010.

Sd/-

 [JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[MAJ. GEN. S. P. KAPOOR (RETD.)]

MEMBER

Sd/-

[MRS. NEENA SANDHU]

MEMBER

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