BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA<br /> <br /> PRESENT: 1. A.T.MUNNOLI, B.A., LLB., President,<br /> 2. M.N.MANOHARA, B.A., LLB., Member,<br /> 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member,<br /> <br /> ORDER<br /> <br /> Complaint No.MDF/C.C.No.3/2010<br /> Order dated this the 16th day of August 2010<br /> <br /> COMPLAINANT/S <br /> <br /> Mohammed Ali Gina S/o Mohammed Gouse, R/at N.828, 5th Cross, Shankarpura, Mandya.<br /> (Sri.Mohammed Roashan Sha., Advocate)<br /> -Vs-<br /> OPPOSITE PARTY/S 1. Sri.Guru Auto Agency Bajaj Auto Ltd., Spares & Service Dealer, Near Girija Theatre, M.C.Road, Mandya.<br /> 2. The Manager, Supreme Auto Dealers (P) Ltd., Hunasur Road, Hinakal Post, Mysore.<br /> 3. The Manager, M/s Bajaj Auto Finance Ltd., # 21 Shankar Industries, Industrial Area, Bannimantapa, Mysore. <br /> (O.P.1 & O.P.2 INPERSON & <br /> Sri.E.S.Bheemesh., Advocate for O.P.3)<br /> <br /> Date of complaint 07.01.2010<br /> Date of service of notice to OPs 29.01.2010<br /> Date of order 16.08.2010<br /> Total Period 6 Months 17 days<br /> Result The complaint is partly allowed.<br /> The 3rd Opposite party is hereby directed to pay a sum of Rs.50,000/- to the Complainant as compensation within a month from the date of order, failing which the amount will carry interest at the rate of 10% p.a. <br /> Further, the 3rd Opposite party shall pay a sum of Rs.2,000/- to the Complainant towards the cost of this proceedings.<br /> <br /> Sri.A.T.Munnoli,<br /> President<br /> <br /> 1. The Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the Opposite parties particularly against the 2nd Opposite party that the vehicle purchased is defective and against the 3rd Opposite party Financier that vehicle has been illegally seized.<br /> 2. In the complaint, it is alleged that the Complainant has purchased goods auto from 2nd Opposite party through 1st Opposite party bearing No.KA.11.A.7776. 3rd Opposite party has financed the Complainant for purchase of said vehicle. On the date of purchase of vehicle, the Complainant paid down payment of Rs.33,800/-. The balance amount was to be paid in 32 installments each of Rs.4,259/-. Towards payment of said installments 3rd Opposite party has collected cheques from the Complainant. The loan was to be repaid through installments from 10.06.2007 to 10.05.2010. Out of 32 installments up to 16.10.2009 the Complainant has paid in all 23 installments with interest. The 3rd Opposite party without notice and prior intimation deceptively seized the vehicle on 17.12.2009 and kept the same in their godown. The Complainant approached the 3rd Opposite party and submitted that he is ready to pay the balance loan. But, the 3rd Opposite party issued notice demanding E.M.I. as well as recovery expenses, illegally. The Opposite party has alleged that the vehicle purchased from the 2nd Opposite party is defective and the Complainant spent Rs.20,000/- for repairs and a sum of Rs.10,000/- to build body. On these grounds, the Complainant has prayed to direct the Opposite parties to pay in all Rs.2,23,257/-.<br /> 3. The 1st Opposite party in the version has stated that they have assisted the Complainant to have finance from the 3rd Opposite party and Complainant got the vehicle serviced thrice free of cost. Except this Opposite party is nothing to do with the vehicle. <br /> 4. 2nd Opposite party in the version denied, the defect in the vehicle and the claim made by the Complainant in that connection.<br /> 5. The 3rd Opposite party in the version has stated that the Complainant was defaulter in payment of the installments and hence as per the terms and conditions of the agreement, possession of the vehicle has been taken. It is further stated that at the time of taking possession of the vehicle, a letter was given to the Complainant. Other allegations made in the complaint are denied. <br /> 6. The Complainant has been examined and so also another witness. On the other hand, Recovery Officer has been examined for the 3rd Opposite party. For 1st & 2nd Opposite party no oral evidence is adduced.<br /> 7. For the Complainant written arguments are filed. So also, we have heard the arguments of the learned advocate for the Complainant as well as 3rd Opposite party and perused the records.<br /> 8. Now the point that arise for our considerations is as under:-<br /> 1. Whether the Complainant has proved any deficiency in service on the part of all or any of the Opposite parties and that he is entitled to the relief sought?<br /> 9. Our finding on the point is partly on the affirmative for the following reasons.<br /> REASONS<br /> 10. The fact that the Complainant purchased the vehicle in question through 1st Opposite party from the 2nd Opposite party Dealer for which 3rd Opposite party Financed is admitted. So also, it is admitted fact that the loan was to be repaid in installments by the Complainant to the 3rd Opposite party. The 3rd Opposite party has contended that since the Complainant did not pay the installments regularly and the Complainant committed default in payment of the installments, the vehicle has been seized as per the terms and conditions of the agreement. On the other hand, the Complainant has contended that without notice and prior intimation, the 3rd Opposite party has seized the vehicle. Seizure of vehicle is admitted. But, the point is whether the said seizure or re-possessing of the vehicle is legal or otherwise? <br /> 11. As could be seen from the facts alleged in the complaint as well as stated by the Complainant in his affidavit and also from the written arguments for the Complainant, out of 32 installments, the Complainant has paid only 23 installments. The Recovery Officer who has been examined for 3rd Opposite party has admitted in the cross-examination that out of 32 installments, the Complainant has paid only 23 installments. Hence, from the evidence on record, it is clear that the Complainant has committed default in payment of installments.<br /> 12. The various documents are produced by the Complainant as well as 3rd Opposite party. The 3rd Opposite party with reference to Clause 20 of the agreement claim that in case of default in payment of the installments, it is entitled to take possession of the vehicle. So far concerned to the terms and conditions of the agreement, absolutely there is no dispute. The Complainant has not at all denied or disputed execution of the said agreement. Hence, as claimed by the 3rd Opposite party in case of default of the borrower, it is entitled to take possession of the vehicle. As noted here before, admittedly the Complainant has not paid the installments regularly and he has become defaulter. Under the circumstances as noted above, the material point to be considered is whether the seizure of vehicle by the 3rd Opposite party is legal?<br /> 13. At the cost of the repetation, seizure of the vehicle by the 3rd Opposite party is admitted. In the version as well as in the evidence witness for the 3rd Opposite party has specifically stated and admitted that the vehicle in question has been seized by the concerned agent / officer. However, during the course of cross-examination of P.W.1, a suggestion is made that the Complainant / his son voluntarily left the vehicle near the godown of the 3rd Opposite party stating that they are unable to pay the balance loan.<br /> 14. Hence, at one stage, the 3rd Opposite party contended that it has seized the vehicle in question as the Complainant has committed default in payment of the loan and quiet contrary to it, further it contended that the Complainant himself left the vehicle near the godown of the 3rd Opposite party stating that he is unable to pay the balance loan. Firstly, this is quite contrary and inconsistent stand taken by the 3rd Opposite party. Secondly, to substantiate the fact that the Complainant voluntarily left the vehicle near the godown of the 3rd Opposite party, there is no cogent and acceptable evidence. More over in that regard there is no pleading in the version. On the other hand, there is evidence for the Complainant that agent of the 3rd Opposite party by misrepresentation took away the vehicle and illegally detained the vehicle in the godown.<br /> 15. Considering the entire facts and contention of the parties further question would be, whether seizure of vehicle is illegal or otherwise. In spite of the fact that there is an agreement between the parties that in case of default in payment of the loan, the officer has got right or power to seize the vehicle, it is definite and specific case of the Complainant that prior to seizure of the vehicle, no notice or intimation was given by 3rd Opposite party. The recovery agent who has been examined for the 3rd Opposite party in the cross-examination has admitted in clearly terms that in case of default in payment of installments, prior to seizure of the vehicle, 15 days prior notice shall have to be issued. Hence, considering the said admission, even according by the 3rd Opposite party irrespective of default committed by the borrower in repayment of the loan, if the financier intend to seize the vehicle, 15 days prior notice shall have to be served on the borrower. In the case on hand, all along the Complainant has alleged that prior to seizure, no notice was issued or served. To prove that such a notice was issued and served, for the 3rd Opposite party, there is no evidence. Witness for the 3rd Opposite party in the cross-examination has stated that they have no difficulty in producing documents to prove issuance and service of such notice. But, admittedly no such documents are produced. No reasons are assigned. Consequently, adverse inference shall have to be drawn that no such notice was issued and served on the Complainant. Thus, it can be concluded that without service of notice, the vehicle has been seized by the 3rd Opposite party.<br /> 16. The learned advocate for the Complainant relying on the ruling reported in II (2009) CPJ 273 submitted, the Financier has no authority to seize or re-possess the hypothecated vehicle forcibly. In the case on hand, though the Complainant has not alleged that 3rd Opposite party seized the vehicle forcibly, the Complainant alleges that the men of the 3rd Opposite party representing that the vehicle is required on hire basis, took it and detained in the godown. Hence, though force is not used by the 3rd Opposite party, deceptive method or manner has been used. Learned advocate for the Complainant relying on the rulings reported in III(2007) CPJ 161 and III (2009) CPJ 40 submitted that Hon’ble National Commission in these decisions has held that notice before seizure of the vehicle is mandatory. <br /> 17. On the other hand, learned advocate for the Opposite party relied on the rulings reported in 2006 (1) CTC 670, 2001 (4) Criminal 26, 2010 CPJ 163 and Xerox copy of order in Appeal No.438/2009 and submitted that in case of non-payment of installments, as per the terms and conditions of the agreement Financier is entitled to re-possess the vehicle. So far concerned to the said principle, absolutely there is no dispute. But, the question would be, whether seizure or re-possession can be done, otherwise than in due course of law. In the case on hand, the witness for the 3rd Opposite party in the cross-examination has admitted that prior to seizure of the vehicle 15 days notice shall have to be issued, even in case of default in payment of installments. In the case on hand, the issuance of such notice is not proved by the 3rd Opposite party. Hence, we are of the opinion that seizure or re-possession of the vehicle by the 3rd Opposite party is illegal. <br /> 18. The 3rd Opposite party has financed in all Rs.1,20,000/- to the Complainant to purchase the vehicle in question. He has made down payment of Rs.33,800/-. Loan was to be repaid in 32 installments each of Rs.4,259/-. Admittedly, out of 32 installments the Complainant has paid 23 installments amounting to Rs.97,957/-.<br /> 19. The relief sought by the Complainant in the complaint is; refund of the 23 installments, the down payment amount, repair expenses, cost of cabin building, legal notice and compensation of Rs.60,000/-. It is pertinent to note that though the Complainant has alleged that 3rd Opposite party has illegally seized the vehicle, the Complainant has not sought possession of the said vehicle. Considering the fact that from the date of purchase till it was seized, the Complainant used the said vehicle and it is stated by the Complainant in the evidence daily he was earning even up to Rs.1,500/- daily. Taking into consideration of this aspect and other circumstances, the Complainant is not entitled for refund of the installments as well as down payment. As regards expenses of repair of the vehicle, the Complainant has not proved the alleged defect in the vehicle at the time of purchase. Under the circumstances, the question for consideration would be the compensation that the Complainant is entitled to. <br /> 20. Considering the entire facts, particularly the down payment made by the Complainant, the finance and the repayment of installments as well as default committed and so also, the daily earnings of the Complainant through the seized vehicle, we feel it just and proper to award compensation of Rs.50,000/-. Accordingly, we pass the following order:<br /> ORDER<br /> The complaint is partly allowed.<br /> The 3rd Opposite party is hereby directed to pay a sum of Rs.50,000/- to the Complainant as compensation within a month from the date of order, failing which the amount will carry interest at the rate of 10% p.a. <br /> Further, the 3rd Opposite party shall pay a sum of Rs.2,000/- to the Complainant towards the cost of this proceedings. <br /> <br /> (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 16th day of August 2010).<br /> <br /> (PRESIDENT) (MEMBER) (MEMBER)<br /> <br /> <br />