Kerala

StateCommission

A/15/848

BAJAJ FINANCE LTD - Complainant(s)

Versus

SOORAJ S - Opp.Party(s)

P BALAKRISHNAN

23 Oct 2018

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

 

APPEAL No.848/15

 

JUDGMENT  DATED:23.10.2018

 

PRESENT :

 

HON’BLE JUSTICE S.S. SATHEESACHANDRAN  : PRESIDENT

 

SHRI. RANJIT. R                                                         : MEMBER

 

 

1. Bajaj Finance Limited,

(Formerly known as Bajaj Auto Finance Ltd.)

Old Mumbai-Pune Highway, Akurdi,                             : APPELLANTS

Pune-411 035.

 

2. Bajaj Finance Limited,

(AF vertical), 4^th Floor Manjooran Estate,

Cheranalloor Road, Edappilly,

Kochi-682 024.

 

(By Adv: Sri. P. Balakrishnan)

 

            Vs.

 

Sooraj.S,

Thirunellil House,

Kunnukara P.O, Manjali,                                                   : RESPONDENT

North Paravur, Ernakulam-683 524.

 

(By Adv: Sri. Paul Varghese)

 

JUDGMENT 

 

HON’BLE JUSTICE S.S. SATHEESACHANDRAN  : PRESIDENT

 

     Opposite parties in CC,87/13 on the of Consumer Disputes Redressal Forum, Ernakulam  for short district forum,  have filed this appeal challenging the Order of the Forum dated 30.05.2015 directing them  to return a two wheeler bearing Reg. No. KL 42-C-818 to the complainant in road worthy condition. 

          2.      Short facts necessary for disposal of the appeal can be summed up thus:  Complainant purchased a two wheeler for a price of Rs. 62,279/- availing financial assistance of Rs. 55,200/- from the opposite parties agreeing to repay the loan with interest in 36 monthly instalments at the rate of Rs. 2,177/- each.  According to the complainant he was regularly paying the loan amount, and, as on 09-05-2012 he had paid  a total amount of               Rs. 62,279/-.  The balance amount due on that day was duly Rs.11,093/-However, opposite parties issued a notice dated 09-05-2012 demanding  a total sum of Rs. 40,745/- as the balance outstanding loan amount.  Complainant expressed his willingness to pay the balance amount due that is Rs. 11,093/-.  Rejecting his request  opposite parties took forcible possession  of the two wheeler from the car porch of  complainant on 13-08-2013.  Complainant after filing a complaint before the local police filed the consumer complaint  alleging deficiency in service by the opposite  parties seeking compensation  of Rs. 63,369/-, price of the vehicle, with 12% interest thereof.

           3.     Opposite parties resisting the claim filed a joint version contending that under the payment schedule fixed the loan was agreed to be repaid in monthly instalments and a sum of  Rs. 78,372/-  was due till the date fixed for closure.   According to the opposite parties outstanding amount due on the defaulted  installments was Rs. 15,447/- and over and above  the same complainant was liable to pay a sum of Rs. 28,997.30 towards the ECS bounce charges.  After recalling the loan authorized officer of the opposite parties approached the complainant and thereupon he expressed his willingness to surrender the vehicle since he was not in a position to pay the amount due, according to opposite parties.  Complainant voluntarily surrendered the vehicle to the opposite parties is their case refuting the  deficiency in service imputed  and disowning liability to   pay compensation.

          4.      The evidence in thecase consisted of the testimony of complainant as PW1 and Exbt. A1 on his side, and for the opposite parties Exbts. B1 to B7 were exhibited. The Forum below appreciating  the materials produced held that in the consumer complaint  dispute between the parties  over the quantum of amount outstanding for closing the loan does not arise for consideration as  the parties have to resolve such dispute  before a competent Court.  Examining the question whether there was forcible possession of the vehicle  as alleged by complainant or the vehicle was surrendered as contended by the opposite party the Forum below appreciating  that materials held the case of complainant was acceptable repelling the contention of opposite party.  In that view of the matter it was held that there was deficiency in service on the part of  opposite parties and on such finding they were directed  to return the two wheeler to the complainant in road worthy condition.  Aggrieved by that Order opposite parties have filed this appeal.

          5.      We heard the counsel on both sides, and perused the records.

          6.      The learned counsel for the appellants/opposite parties contended that the direction issued for return of the vehicle to the complainant  in road worthy condition where it is admitted where it is admitted that loan has not been closed  and substantial amount was outstanding to be realized from the complainant is unjust and not sustainable  under law. There was no deficiency in service on the part of opposite parties and the vehicle was surrendered by the complainant when he could not clear the outstanding amount dues on the loan, according to the counsel.  On the other hand learned counsel for the respondent/complainant contended that no interference with the Order of the lower forum is called for  in the case where it has been established that there was no surrender of the vehicle but forcible  seizure violating the law by the opposite parties.  If at all any amount was outstanding under loan then the opposite parties should have resorted to measures provided by law for recovery of such amount and they cannot forcibly seize the vehicle from the possession of complainant and that amounted to an offence under penal laws according to the counsel.  The direction of the lower Forum to return the vehicle, according to the counsel for the complainant, deserved only to be affirmed.

          7.      Perusing the records to the case with reference to the submissions of counsel on both sides we find that the observations made by the lower Forum that disputes between the parties over the loan transaction on the quantum of amount  to be realized for discharge have to be resolved in appropriate Forum or court  cannot be  found fault with.   As rightly observed by the lower Forum the only question that required consideration on the facts presented in the case was whether there was forcible possession of the vehicle as alleged by the complainant violating the law and if so whether it amounted to deficiency in service.  At this stage we may point out that there is no dispute that there was default on the part of the complainant, to pay the monthly instalments as agreed to.  However, going through Exbt B4, it is noticed that the first  two instalments were paid by him in time  and thereafter he had paid  the instalments directly  and not by cheques.  It is stated that he paid the instalments through the agent of the opposite parties.  Opposite parties have not disputed that there was payment and collection through their  agent from the 3^rd instalment onwards till the payments were  were defaulted by the complainant.  The learned counsel for the complainant would state that since he had to shift from the address given earlier, payment was made to the agent of the opposite parties.  What ever that be, we find from Exbt. B4, the opposite parties have credited the amount due on instalments up to 30^th April 2012.   Examining Exbt. B4 it is seen there was some delay in payment of the instalments  but till 30-04-2013, it is seen, complainant had paid total sum of Rs. 62,925/-.  When the agent of the opposite parties collected  instalments due  for the period mentioned, it is seen under  Exbt. B4, opposite parties have included cheque  cheque bouncing charges in the account if an arrangement was entered with its agent for collection of the instalment amount directly from the complainant.  There was no need to present the cheque for encashment.   Other than the statement in Exbt. B4 that there was bouncing of  cheques  opposite parties have not produced the dishonoued cheques issued by complainant, which probably might have collected from him in advance at the time when the loan was disbursed.  The amount stated as due from the complainant, that is Rs.28,997.30, has no factual or legal basis.  In fact, it appears to be only malafide attempt by the financier  to squeeze the  complainant as a Shylock. No doubt opposite parties are entitled to realize the defaulted instalments from the complainant with interest agreed upon, which  according to them is only Rs.15,447/- and the rest of the amount due under loan had already been cleared by the complainant.

          8.      Now coming  to the question  whether there was  forcible seizure of the vehicle, after scanning through  the materials,  we find no reason to differ with the conclusion drawn by the Forum that opposite parties taking the law into their hands had forcibly seized the vehicle from the possession of complainant.   Their case is that the vehicle was voluntarily surrendered by the complainant cannot believed  for a moment.   Probably surrender letter from the complainant as stated by him might have been obtained in blank form with signature at the time when loan was disbursed.  Where forcible possession of the vehicle is established it goes without saying that there is deficiency in service by the opposite parties.   We uphold finding thereof made by the lower Forum.   However, we cannot agree with the direction issued by the Forum on the above finding that the vehicle should be returned to him in road worthy condition.  It is established that at least a sum of Rs.15,447/-.   was due from the complainant  as on 30-06-2012.   The date fixed  for discharge of the loan was by payment of the last instalment  on           10-06-12.   Having regard to the lapse of time it is reasonable to hold that with interest due  complainant is liable to pay a sum of Rs. 25,000/- on the loan availed to the opposite parties.   Till the time the vehicle was seized   on account of default  in the payment of instalments.   Complainant had been in  enjoyment of the vehicle ie for a  period of 4 years.   Taking note of that also we find that the vehicle at that point of time, when it was seized, could be valued at Rs. 50,000/-.  Right of the opposite party when there was default in payment of instalments due was only recovery of the defaulted sum from the complainant.  No doubt that can be realized from his assets  including the vehicle for  which loan was provided .  However, they cannot take the law in to their hand and forcibly seize the vehicle for the reason that the loan was defaulted.  As a creditor to whom the debtor has to repay the amount received, for recovery of the sum due he should have approached the Forum or Court taking appropriate steps and he cannot take the law into hands and forcibly seize  the vehicle of the complainant.  We have tentatively fixed the value of the vehicle at the time of seizure  at  Rs. 50,000/- and also that as of now liability of complainant towards the opposite parties on the loan taken can be reasonably fixed at Rs. 25,000/-.  In the proved facts of the case despite parties have to pay compensation of Rs. 50,000/- to the complainant for their deficiency of service arising from forcible seizure of his vehicle.   In the compensation so fixed and awarded, naturally,  they can adjust the amount  due under loan ie Rs. 25,000/- from the debtor/complainant .  So much so, the amount due to the complainant as compensation is only Rs. 25,000/-.

          9.      Appellants/opposite parties have deposited a sum of Rs. 25,000/- for entertaining their appeal and that sum shall be released to the complainant as compensation fixed as stated above.  Loan of the complainant with the opposite party shall be treated as closed and opposite parties shall issue a no objection certificate to the complainant within a period of one month from the date of receipt of a copy of this judgment.  Order of the lower Forum is modified as indicated above, and appeal is disposed of directing both sides to suffer their costs.

 

 

JUSTICE S.S. SATHEESACHANDRAN  : PRESIDENT

 

 

 

 

RANJIT. R : MEMBER

 

 

 

VL.