Sri Kamal De, President
In short, case of the Complainant, is that she purchased one Truck (Heavy Goods Vehicle) being registration no. WB 23B 5785 from the OP No. 1, Sundaram Finance Ltd. for the livelihood of herself and her unemployed son. As per agreement being no. J025100517 dated 24-11-2014, the loan amount of Rs. 8,00,000/- and interest was Rs. 2,01,600/-, i.e., total repayment amount was Rs. 10,01,600/- and the same was repayable in 35 instalments, i.e., Rs. 28,500/- per instalment (including advance instalment of Rs. 32,600/-). It is stated that in the month of May, 2015, the vehicle became defunct for which it was given to New Sabitri Body Builders, Sodepur under Tamluk P.S. and the said garage gave a rough estimate of Rs. 1,99,350/-. Due to this reason, the Complainant could not pay EMI for the month of May, 2015. The matter was informed to the OP No. 1 over telephone. The said truck was scheduled to be handed over on 30-06-2015. However, on 29-06-2015, the OP took repossession of the repaired truck without giving any prior notice and/or any demand/claim for further instalments. The Complainant repeatedly made contact with the OP over telephone to regularize the matter, but in vain. On the other hand, although the said truck was repossessed by the OP on 29-06-2015, the Complainant received one Minor Traffic Violation Notice from the Traffic Department, Kolkata in the month of November, 2015 against case no. ddHG006177/15 dated 06-11-2015. From that notice of Traffic Department, Kolkata being case no. ddHG006177/15 dated 06-11-2015, it is clear that some representative of the OPs was driving the said truck, may be for some illegal intention which is totally illegal and gross conspiracy against the Complainant. Hence, this case.
Case of the OPs, on the other hand, is that the Complainant did not obey the terms and condition of the loan agreement and she did not deposit the instalment on a regular basis. Finding no other alternative, the OPs took repossession of the vehicle in presence of the Complainant on 29-06-2015 and one repossession inventory list was prepared in presence of the Complainant and she has signed the same. It appears from the repossession inventory list that the vehicle was not in running condition. The Claimant agreed to sell the truck and signed the notice of auction sale of the vehicle on 04-08-2015.
Points for decision
- Whether the OPs committed deficiency of service to the Complainant?
- Whether the Complainant is entitled to the relief, sought for by her?
Decision with reasons
We have perused the documents on record filed from the side of the Complainant, i.e., repossession inventory list dated 29-06-2015, statement of accounts and other documents.
OP No. 1 has alleged that the Complainant did not pay monthly installments in time and later on, stopped payment of the same. A glance through the statement on record reveals that the Complainant paid a total amount of Rs. 1,28,100/-. It cannot be said that the Complainant has not been diligent in making payment for liquidating the loan amount. It, however, appears that the OP on 29-06-2015, took repossession of the repaired truck without giving any prior notice or any demand or claim for further instalments. Moreover, it also appears that after taking repossession of the said truck on 29-06-2015, the Complainant received one traffic violation notice from the Traffic Department, Kolkata u/s 133 of the M.V. Act 1958 in the month of November, 2015 against case no. ddHG006177/15 dated 06-11-2015. The traffic department informed by such notice that some representative of the OPs was driving the said truck, and the driver of the vehicle committed the offence of violation of MVA rules. We come to a finding in absence of any prior notice of seizure that OPs resorted to illegal means to repossess the vehicle from the custody of the Complainant. So far Hypothecation agreement for the car loan is concerned, we cannot say with certainty that the same authorizes the OPs to repossess the vehicle for default of EMIs, without any prior notice. OPs cannot take law unto their hands. The OPs, as we find, did not serve any notice to the Complainant before repossessing the vehicle financed by them. The Hon’ble Supreme Court, through catena of judgments, has strongly disapproved of such practices on the part of banks, financial institutions and repeatedly asserted that they should resort to due proceedings recognized by law to take possession of vehicle in case any borrower may have committed default in payment of instalment instead of taking resorts to strong arm tactics [Citicorp. Maruti Finance Ltd vs S. Vijayalaxmi, (2012) 1 SCC 1 relied upon]. RBI also has disdained such practice and framed necessary guidelines in this regard.
In the case at hand, we find that the vehicle was taken forcibly from the petitioner without following due process of law. It is a clear manifestation of the fact that the disquiet expressed by the Hon’ble Apex Court has not shaken the conscience of the OPs. We must hold that the action on the part of the OP is not sustainable in the eye of law for the reasons stated hereinbefore. We are of opinion that there was definitely deficiency on the part of the OPs in rendering services to the Complainant. It cannot be said that the vehicle was repossessed following a fair and transparent process.
Ld. Lawyer, appearing for the OP, has argued that the Complainant Anjali Dhara has signed in the Repossession Inventory List and accordingly, it can be said that she was served with the notice before repossession. But, we are afraid, we do not find on record any prior notice that vehicle of the complainant would be repossessed. So, we can say that such notice was not served upon the Complainant. If a vehicle is repossessed without giving such a notice to the borrower, not only it has the potential to disturb the business or profession in which the borrower is engaged using the vehicle, it may also result in his image and reputation in the society being lowered on account of the abrupt, sudden and forceful seizure of the vehicle by the financier. We do not find any notice expressing intention to repossess the vehicle on the default of the borrower is given to the Complainant. In any case, the vehicle should not be possessed by use of force. So, we think that there was deficiency on the part of the OP company in rendering service to the Complainant and the said company ought to pay suitable compensation to the Complainant. There is nothing on record that the said vehicle was sold on auction. No document is also forthcoming in this regard. Ld. Lawyer of other side also could not throw any light as to whether the vehicle was sold out on auction or what was the consideration price etc. In the given circumstances, we think that the Complainant is entitled to get the relief as prayed for. It appears that the Complainant has paid an amount of Rs. 1,28,100/- to the OP till it was sent to the motor garage, namely, New Sabitri Body Builders, Sodepur under Tamluk P.S. for repairing. The loan amount, as we find, was Rs. 8,000/- along with interest totaling Rs. 10,01,600/- by 35 installments. The Complainant has prayed for an amount of Rs. 1,99,350/- as garage bill. We think that the claim for maintenance or repairing is a matter lying with the Insurance Company. No Insurance Company is made a party in this case. Our hands are arrested in passing any order as regards garage fee, a liquidation of installment for the period the truck would be in OPs’ custody.
After hearing of the full argument on both sides, Ld. Lawyer appearing for the OP on a subsequent date on 24.05.2016 has filed some documents by way of a firisti with copy to the other side. Among such documents, we find that there is a notice issued by the OP in the name of the Complainant stating that the Complainant has an outstanding amount of Rs. 33,892/- along with interest and she was called upon to settle the loan account within 10 days from the date of receipt of the letter failing which the Company shall be constrained to take steps in the matter. We find that it is a Xerox copy of the said notice and no date is also appearing on such notice. It is also not established whether the said notice was at all served upon the Complainant or not. We also find that one letter from the Complainant to the OP company. The letter, as we find, is of dated 29-06-2015, i.e., the date of repossession of the vehicle. It is also a Xerox copy. We find that it is signed in Bengali letters by the Complainant whereas the signature appearing on the repossession inventory list dated 29-06-2015 is signed by the Complainant in English. It is curious that vehicle surrender letter was also given on the very date of its repossession. It also appears from the letter of one Shiv Kumar Singh, addressed to the Manager, Sundaram Finance Ltd. dtd. 11-08-2015 that he purchased the vehicle for a sum of Rs. 2,70,000/- and took delivery of the vehicle from the premises of M/s Maa Durga Muri Mill, Medinipur. It is not appearing from the said letter on which date he took delivery of the said vehicle. We are afraid, there is no document to show that tender was called upon or who were the bidders. There is also no document to show that notice of such auction sale was also served upon the Complainant so that she could take part in it. The so called letter of Shiv Kumar Singh dated 11-08-2015 appears to be bilateral in between Shiv Kumar Singh and the OP company. It is all between them and we are afraid, the Complainant was not intimated about any such bid or auction sale etc. We are afraid, we cannot place any reliance upon the documents filed from the side of the OPs. Moreover, there is no document to show that the vehicle was transferred in the name of Shiv Kumar Singh. No RC book regarding effecting the ownership of the vehicle in favour of Shiv Kumar Singh is also forthcoming before us to think anything positive about the contention of the OPs. Neither any clearance from RTO nor any paper or bid or auction sale is also produced before us. Moreover, it appears that notice u/s 133 of the M.V. Act was issued upon the Complainant on 06-11-2015 for violation of MVA rules, whereas OP claims that one Shiv Kumar Singh is the owner of the vehicle in question. We are of opinion that the OPs acted in a capricious manner showing a big thumb finger to the Law.
It must be borne in mind that the Complainant suffered loss on account of abrupt and sudden seizure of the vehicle by the financier. The Complainant has suffered business loss for about 11 months. So, we think that the Complainant is entitled to compensation amount of Rs. 6,00,000/- for such loss, harassment, mental agony apart from litigation cost of Rs. 5,000/-. This, however, will not restrain the OPs to recover the balance amount of EMIs from the Complainant. We must make it clear that though the conduct of the OPs is highly deplorable, this order shall not be a hindrance for the OPs to take steps to recover the outstanding amount or EMIs alongwith interest from the Complainant in accordance to law.
Hence,
ORDERED
that OPs are directed to deliver the truck to the Complainant in question within 15 days from the date of passing of this order. The OPs are also directed to pay an amount of Rs. 6,00,000/- towards loss, harassment and mental agony apart from litigation cost of Rs. 5,000/- within the said period. In case the OPs fail to comply with the order, the Complainant is at liberty to execute the order in accordance with law in which case, the OPs shall be liable to pay interest @ 8% p.a. over the total awarded amount from the date of this order till full and final settlement.
