JUDGMENT 22.11.2010 Justice Pritam Pal, President 1. The aforementioned two appeals arise out of one and the same order dated 12.2.2009 passed by the District Consumer Forum- I, U.T. Chandigarh whereby complaint bearing No.873 of 2008 filed by complainant Sona Bhattacharjee was allowed with costs of Rs.5000/- and ICICI Bank was directed to pay to the complainant Rs.1,63,482/- alongwith interest @ 18% p.a with effect from 18.8.2007, within thirty days from the receipt of copy of the order, failing which it was made liable to pay penal interest @24% p.a. from 18.8.2007 till actual realization. 2. The parties hereinafter shall be referred to as per their status before the District Consumer Forum. 3. In nutshell, the facts culminating to the commencement of these two appeals may be recapitulated thus ; The complainant took a loan of Rs.5,80,000/- from OPs for purchasing a Tavera Vehicle bearing Registration No.HR-68-T-6469 vide agreement dated 27.7.2006. She executed various documents as asked by OPs and also gave postdated cheques to OP No.2 as security. She was making regular payment of installments through ECS/Auto Debit but she could not pay two installments amounting to Rs.14,703/- each as on 28.2.2007 as the vehicle met with an accident and resultantly she suffered huge losses as her source of livelihood affected due to non-plying of the said vehicle. On 18.8.2007 OP-3 alongwith three persons came to the house of the complainant and forcibly took away the vehicle arbitrarily and illegally. She went to the Police Station, Sector-31 and submitted complaint for adopting illegal means by OPs in taking possession of the vehicle. On 20.8.2007 the husband of the complainant alongwith his family friend approached OPs 2 & 3 and requested to return the vehicle and gave an assurance in writing to make the defaulted payment alongwith interest on which OP NO.3 assured to return the vehicle after taking permission from their Mumbai head office. However, on 3.9.2007 the complainant was surprised to receive a pre-sale notice dated 23.8.2007 and on the same day her husband again approached OPs and offered to make the payment of four installments alongwith interest and in turn OP-3 asked the complainant to give the undertaking in the shape of affidavit. Accordingly the complainant submitted the affidavit dated 9.10.2007 and waited for a week in order to have outcome of the permission being sought by OP No.3 from their head office to accept the amount of defaulting installments and to release the vehicle but to no avail. Thereafter, she alongwith her husband went to the office of the OPs No.2 & 3 for depositing the defaulting installments and other dues and getting released the vehicle which was not done on the pretext that the approval from the head office was yet to come. In the month of December 2007 also complainant approached OPs but they stated that they would release the vehicle only on deposit of the total outstanding amount i.e. Rs.5,48,351/-. The complainant had taken an All India Tourist Permit for the said vehicle valid from 9.11.2006 to 28.9.2007, however, the same could not be used due to repossession of the vehicle and the amount of Rs.10,000/- went waste. Apprehending that her vehicle would be sold at a throw away price, the complainant also filed a civil suit in order to get back the possession of the vehicle from OPs wherein they filed written statement and wrongly mentioning that they had issued notices dated 14.3.2007 and 15.5.2007 to the complainant and further that the loan was recalled through letter dated 23.8.2007 which in fact was not a recall notice but a pre-sale letter. However, the said civil suit was later on withdrawn on 21.7.2008. The illegal repossession of the vehicle had acted against the complainant like a double edged weapon as OPs had been asking for total outstanding amount alongwith interest particularly when the vehicle was in their possession and complainant could not earn her livelihood and suffered loss of Rs.1500/- per day with effect from 18.8.2007 on account of non-plying the vehicle. It was further alleged that with the passage of time the value of the vehicle had depreciated and complainant was unable to make use of it. Hence, alleging deficiency in service and unfair trade practice on the part of OPs, complainant filed complaint before the District Consumer Forum. 4. On the other hand, OPs contested the complaint and filed reply inter-alia stating therein that the complainant had earlier filed civil suit which was withdrawn unconditionally and as such her complaint before the Fora did not lie which was an abuse of process of law. It had been specifically stated by OPs in the civil suit that the bank had been ready and willing to hand back the vehicle to the complainant provided complainant clears all the outstanding dues but she did not come forward. It was denied that the vehicle of the complainant met with an accident. It was pleaded that the complainant was a chronic defaulter from the very beginning and was repeatedly issued notices to clear the dues and two such notices were dated 14.3.2007 and 15.5.2007 and they also duly intimated to the police vide notice dated 4.7.2007. It was further pleaded that as complainant failed to make payment as per terms and conditions of the agreement, so OPs took the possession of the vehicle by following due procedure/process and no force was used. In fact the possession of the vehicle was handed over by the complainant on 21.8.2007. The husband of the complainant approached the bank on 22.8.2007 and promised to clear the outstanding dues including other charges to which the Bank readily agreed but complainant did not turn up. Pleading that there was no deficiency in service or unfair trade practice on their part a prayer was made for dismissal of the complaint. 5. The District Consumer Forum after going through the evidence and hearing the counsel for parties allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved against the said order , opposite party as well as complainant have come up in their respective appeals. 6. We have heard learned counsel for the parties and gone through the file carefully. The main point of arguments raised on behalf of the ICICI bank is that once the complainant had opted for availing remedy by filing civil suit, she could not invoke the jurisdiction of the consumer Fora when the civil suit was withdrawn without any liberty or permission of the court to invoke the jurisdiction of the court again on the same cause of action. In support of his contention he placed reliance upon the following authorities ; (i) S.James Vincent Vs Greater cochin Development authority& Anr. 1993 STPL(CL)222 NC (ii)M.P.Oxide Batteries Pvt. Ltd. Vs M.P.Electiricty Board 1994 STPL (CL)98 NC (iii) M/s Special Machines Vs Punjab National Bank 1989 STPL (CL)38NC Further, the complainant did not pay the installments and when the vehicle was repossessed a sum of Rs.4,99,264/- was due from the complainant on 18.8.2007. Thus, the bank had rightfully taken possession of the vehicle and no force was used. It was argued that the vehicle could not be sold as the matter was sub-judice but still the District Forum issued direction for refund of the amount by assessing the value of the accidental vehicle whereas the vehicle was still standing with OPs. On the other hand, the learned counsel for complainant submitted that the loan was to be recalled before taking steps of repossession of the vehicle and issuance of pre-sale letter thus the action of OPs in repossessing of the vehicle without the loan amount being recalled was arbitrary and illegal due to which complainant suffered financial loss. It was submitted on behalf of the complainant that the compensation awarded by the District Forum was not adequate and it should be enhanced. 7. Admittedly the civil suit was withdrawn on 21.7.2008 whereas complaint before the District Forum was instituted thereafter. As envisaged under Section-3 of the Consumer Protection Act,1986 the remedy under the Consumer Protection Act is in addition to and not in derogation of the provisions of any other law for the time being in force so complaint of the complainant was maintainable. The authorities cited by the learned counsel for OPs are not applicable to the facts of the instant case. In S.James Cincent’s case (Supra)the complainant had suppressed the factum of filing of civil suit whereas in the case in hand complainant had clearly mentioned in the complaint about the suit and its withdrawal, thus there was no suppression of fact. In M.P. Oxide’s case, civil suit and writ petition filed by the complainant were dismissed but in the instant case it was only withdrawn. Similarly in M/s Special Machines Karnal’s case during the pendency of the civil suit, complaint was filed whereas in the instant case the complaint was filed after the suit was withdrawn. 8. It is pertinent to mention here that the car was purchased by the complainant on 7.7.2006 for Rs.7,26,384/- and she claimed to have spent Rs.10,000/- on its registration, thus, the IDV of the car was Rs.7,36,384/- It was repossessed by the OP on 18.8.2007 after a period of 13 months. The District Forum after calculating depreciation @ 10% assessed the value at Rs. .6,62,746/- on that date. A sum of Rs.4,99,264/- only was due from complainant and after adjusting the said amount the OPs were rightly held liable to pay to the complainant a sum of Rs.1,63,482/- w.e.f. 18.8.2007 alongwith interest @ 18% p.a. The learned District Forum rightly observed that as complainant was a defaulter in paying installments so the award of interest @ 18% would take care of other part of compensation. The contention of Bank that the vehicle was still in its possession and complainant could take back the same after paying the due amount alongwith interest is without any justification because the vehicle in question was repossessed in August,2007 ,so after more than three years of its use it would have become worthless and if parked idle, it would have become a piece of junk. 8. In view of the above discussion, we are of the considered opinion that there is nothing wrong in the impugned order passed by the learned District Forum which is quite reasonable and justified in the facts and circumstances of the case. Thus, both the appeals are hereby dismissed, leaving the parties to bear their own costs. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | |
