MRS. NEENA SANDHU, PRESIDING MEMBER

1.       This is an appeal filed by the OP bank against order dated 28.7.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 1441 of 2009.

2.       Briefly stated the facts of the case are that the complainant with the view to earn livelihood for his family planned to purchase the truck. The complainant being a poor old person approached the OP for the financial assistance for the purchase of truck (for a value of Rs.7,90,000/-) by way of loan. The OP acceded to the request of the complainant and disbursed the loan of Rs. 6,29,885/- on 12.8.2008 vide loan account no. 3232114. The OP got the sign of the complainant on various blank documents and the complainant being an illiterate person signed the various blank documents. The OP also took the ten blank cheques of State Bank of Patiala payable at Kalka vide account no. 55117883236 bearing cheque no. 972501 to 972510 from the complainant at the time of disbursing the loan. The complainant with the financial assistance of OP purchased the TATA LPT truck bearing registration no. HR 68 8880 for  an  amount  of Rs. 7,90,000/-. The loan granted by the OP was to be repaid in total 47 installments i.e. from 1.9.2008 to 1.7.2012 consisting of EMI of Rs. 17830/-. The abovesaid truck was the only source of income of the complainant to earn his livelihood. The complainant paid the installments regularly to the OP. The complainant failed to deposit the installment in the month of November, 2008 and April, 2009 due to his ill health and miserable family problems. Thereafter, the complainant was regularly deposited the installments of the OP. It was submitted that non payment of the intermediate installments was neither intentional nor willful. The complainant kept on depositing an amount of Rs. 18000/- against the installment of Rs. 17830/-. It was further submitted that on 26.7.2009 when the complainant was on his way from Puna to Hamirpur with a consignment, he was intercepted by some of the muscle men of the OP at Ajmer and they threatened him to pay the due installment otherwise they would repossess the vehicle.  The complainant requested them that he had deposited an amount of Rs. 12650/- on 24.7.2009 and repay the remaining amount on reaching back to Chandigarh within two days and the complainant again requested them to grant him some time to repay the installments. It was submitted that one of the muscle man asked the complainant to pay Rs. 10000/- as illegal gratification to them but the complainant refused to pay the same and then they got refuted on this and took the vehicle in their possession.  The complainant contacted the officials of OP at Chandigarh on mobile but to no effect. The complainant stayed at Ajmer for two days and requested the OP to allow him to unload the goods from the truck but after two days the OP allowed the complainant to unload the truck. There after the complainant contacted the transporter of the goods at Pune and the transporter cancelled the contract with him and threatened to charge the penalty from the complainant for the non delivery of the goods at the destination. The complainant due to the unfair trade practice of the OP suffered a loss of Rs.28,000/- in the form transportation charges which he would had earned if the goods been delivered at its destination. The complainant suffered a lot of mental trauma and agony because of the behaviour of the OP. The above said act of OP amounts to deficiency in service as well as unfair trade practice. Hence, the complaint was filed.

3.       Reply was filed by the OP and pleaded that as per the terms and conditions of the loan agreement, OP had authority to take possession of the truck in case the installments not paid regularly. The complainant was irregular in payment of the loan installments and the two installments i.e. for the month of June, 2009 and July, 2009 were outstanding on the date of re-possession of the vehicle. It was further pleaded that the complainant was a defaulter in repayment of the loan. Therefore, the said truck was taken into possession by the bank as per the terms and conditions of the loan agreement. It was further been pleaded that a sum of Rs.6,18,000/- was outstanding against the complainant on the date of repossession of the truck. The above said truck was sold on 23.9.2009 for Rs.6,18,000/-. All other allegations leveled by the complainant in the complaint were denied and pleaded that there was there was no deficiency in service as well as unfair trade practice on its part and prayed for dismissal of the complaint.

4.       The parties led their evidence in support of their contentions.

5.       The learned District Forum allowed the complaint and directed the OP to pay to the complainant:-

i)          Rs.93,000/- for the loss caused to the complainant by selling the truck in the manner which is not transparent and which is below the depreciated price of the vehicle on the date of its sale.

ii)          Rs.41,258/- being the surplus amount kept by the OP after sale of the truck.

iii)          Rs.28,000/- being the transportation charges spent by the complainant for transporting the consignment to its destination.

iv)          Rs.50,000/- as compensation for mental agony and harassment.

v)          Rs.5,000/- as cost of litigation.

          The above said order be complied with by OP within 45 days from the date of receipt of its certified copy, failing which OP shall be liable to pay Rs.2,12,258/-to the complainant along with penal interest @ 18 % p.a. from the date of seizure of the vehicle i.e. 26.07.2009 till its realization besides costs of litigation.

6.          Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OP. Sh.Sanjiv Sagar, Advocate has appeared on behalf of appellant and Sh.Pavinder Singh Bedi, Advocate has appeared on behalf of respondent.

7.       In appeal, it is submitted that the learned District Forum failed to appreciate the fact that the complainant had pleaded false facts and all the facts prove that the repossession of the vehicle was peaceful and with cooperation of the respondent. The learned District Forum instead of deciding the said issue blindly passed an order without appreciating the merits of the case. The said order was not permissible as it was not the court of competent of jurisdiction to give its ruling on the contract, hence the order passed by the learned District Forum is without jurisdiction and bad in law. The learned District Forum has not appreciated the fact that even though the respondent never paid or even offered to pay all the defaulted even during the pendency of the case, at the best even assuming the appellant had acted illegally in repossessing the vehicle as discussed, however he had no right to stall the installments and seek release of vehicle without payment of charges as levied by the bank. It is submitted that in the present case wherein the person who alleged that force has been used did not depose before the court and further the documents spoke contrary to the submissions in the said regards. The most of the cheuqes of the respondent got dishonoured and he had not even paid any penal charges or cheque bouncing charges for any of the months, further at the time of filing of the complaint, the respondent was running in arrears of installments. All these facts were clear from the statement of account and the receipt of deposit of installments but the learned District Forum failed to notice the same and had passed an order which ought not to have been passed. It is further submitted the if the entire period of the loan is seen than it will be revealed that the complainant was irregular in payment of EMI’s and always the bank representative had to approach the complainant for payment. Further the learned District Forum also failed to question the integrity of the complainant regarding the same. The learned District Forum also failed to see as to why should bank run after him for payment of installments is it not his duty to be regular in payments. All these questions remained unanswered and the learned District Forum has traveled beyond its jurisdiction. The order passed by the learned District Forum is bad in law and passed without application of mind. The learned District Forum while passing the order has failed to see that the repossession of the vehicle was in terms with the contract and not otherwise. The learned District Forum on the other hand failed to notice that the complaint was an after thought step of the respondent to seek evasion of loan amount and the said order is extremely prejudicial to the appellant as no orders with respect to the breach and misconduct of the respondent has been passed. The order passed by the learned District Forum was without looking into the annexures filed by the complainant as well as the documents as filed by the appellant.  The learned District Forum also failed to consider that the complainant being a loanee had not availed any services from the appellants and, therefore, the whole cause of action was outside the purview of Consumer Protection Act, 1986 and hence the complainant could not have been termed as a ‘consumer’. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

8.       It is argued by the learned counsel for the respondent/complainant that the complainant took a loan of Rs.6,29,885/- from OP on 12.8.2008 for purchase of truck and the said loan was to be repaid in 47 monthly equated installments of Rs.17,830/- each commencing from 1.9.2008. The complainant could not pay two installments i.e. installment for the month of November, 2008 and April, 2009 due to personal difficulties. On 26.7.2009, the complainant was going from Pune to Hamirpur with a consignment and on the way, he was intercepted by the musclemen of OP who asked him to hand over the truck as the complainant has failed to pay the installments. He requested the said musclemen of OP not to take the possession of the truck and that he would pay the outstanding installments on reaching Chandigarh but the truck was forcibly taken into possession by the musclemen of OP. The complainant contacted the officials of OP at Chandigarh on mobile but to no effect. It is submitted that because of the forcible possession of the truck, the complainant had to unload the consignment at Ajmer and another truck was engaged for sending the consignment to its destination. The possession of the truck was taken forcibly by the musclemen of the OP amounts to deficiency in service on its part. The truck was sold by OP for a sum of Rs.6,18,000/- on 23.9.2009 without intimating the complainant about the date of sale or otherwise making proper advertisement. Hence, it is prayed that the appeal filed by the OP may kindly be dismissed.

9.         We have heard the learned counsel for the parties and perused the record.

10.       After the perusal of file and hearing the learned counsel for parties, it is clear that the complainant is a consumer qua the bank as the law has already been settled on this point. The main point for consideration before us is whether the OPs have repossessed the vehicle of the complainant after following the proper procedure as per law.

11.       As per the contention made by the learned counsel for the bank that the bank has repossessed the said vehicle of the complainant by following the proper procedure as per law. It is clear that as the complainant had failed to deposit the due installment regarding which the bank has sent a notice to the complainant for the repayment of the due installments of the said loan. Thereafter when the complainant was unable to pay the due installments, the bank has sold the said vehicle in auction for a sum of Rs.6,18,000/-. Hence, there is no deficiency on the part of the bank.

12.       The learned counsel for the respondent/complainant contended that there is no doubt that the bank has placed on record a notice vide which complainant was asked to repay the due amount for the two installments but the bank had failed to produce any receipt or document regarding the service of the above said notice. So, in the absence of any receipt/document regarding the service of the said notice, it cannot be concluded that whether the notice was properly served to the complainant or not. Thus, the contention made by the learned counsel for the Bank regarding the sending of the notice to the complainant is not tenable and cannot be accepted. Even we are of the view that in the absence of any receipt or document this contention of the learned counsel for the bank has no force that a notice was duly served to the complainant regarding the repayment of the due amount. It was further submitted that for the arguments sake, if we agree that the bank has sent a notice for repayment of the due amount to the complainant before the repossession of the said vehicle, even then it is not fair on the part of the bank the method they have used for the repossession of the said vehicle. Admittedly, the bank has repossessed the said vehicle on the way at Ajmer when the complainant was taking the consignment from Pune to Harmirpur. Particularly when a request was made by the complainant for not to repossess the vehicle now at Ajmer and gave an assurance that after delivering this consignment at its destination, he will definitely repay the said amount to the bank within two days. but the request made by the complainant was unturned and the truck of the complainant was forcibly repossessed by the said persons. From the facts of the case in our opinion, it has been established that the bank has repossessed the said vehicle forcibly and the contention of the bank that they have repossessed the above said vehicle when the consent of the complainant has no force in it. It was further contended that due to this act of the bank, the transporter of the goods at Pune has cancelled the contract with the complainant and the complainant had to suffer a loss of Rs.28,000/- in the form of transportation charges which he would have earned if the goods been delivered at its destination.  We feel that contention made by the learned counsel for the complainant has weightage in it. Had the complainant been able to deliver the consignment at its destination, definitely he would have earned Rs.28,000/- as a transportation charges from the contractor. Thus in our opinion, the bank is liable to pay Rs.28,000/- to the complainant as they have repossess the vehicle of the complainant forcibly that too in the midway at Ajmer.  Not only this, after repossessing the said vehicle, the bank without duly informing the complainant sold the vehicle may be in open auction is also not tenable because as per the rule, the bank should have conveyed to the complainant regarding the selling of the said vehicle before hand as the bank very well knows that the complainant being a illiterate and poor person cannot check the website of the bank. Mere putting it on a website that they are selling the above said truck in auction does not serve the purpose that the bank has duly informed the complainant regarding the auction.  So, we don’t find any force in this contention of the learned counsel for the bank that the complainant was well aware of the auction of the said vehicle.

13.            Admittedly the complainant purchased this truck on 25.7.2008 for Rs.7,90,000/- and the appellant bank sold it on 23.9.2009 for Rs.6,18,000/- whereas during this period, the value of the truck was Rs.7,11,000/-, which has been rightly calculated by the learned District Forum. Thus it is clear that the bank has sold the said vehicle at a lesser value and causing a loss of Rs.93,000/- to the complainant and the complainant is entitled for a sum of Rs.93,000/- on account of loss suffered by the complainant because of sale of truck at a lesser value than the value prevailing during that period.  Furthermore as per Annexure R-1 on 31.3.2010 a sum of Rs.5,76,742/- was outstanding against the complainant and the truck was sold for Rs.6,18,000/-, so the sale price of the said vehicle is in excess against the complainant by Rs.41,258/-, thus the complainant was entitled for this amount and not Rs.14,219/- as alleged by the appellant.    

14.       From the above discussion, we have come to the conclusion that there is deficiency in service and unfair trade practice on the part of appellant/OP bank and as per the order passed by the learned District Forum definitely the complainant is entitled for a sum of Rs.1,34,258/- i.e. (Rs.93,000/- for the loss caused to the complainant by selling the truck on a lower price than the actual price of the above said vehicle prevalent on that date + Rs.41,258/- being the surplus amount kept by the OP after the sale of the truck), Rs.28,000/- in the form of transportation charges which the complainant would have earned if the goods been delivered at its destination, Rs.50,000/- as compensation for mental agony and harassment and Rs.5,000/- as litigation expenses.  Thus, the order passed by the learned District Forum is just, fair and proper and no interference is called for. The appeal filed by the HDFC Bank (OP) is liable to be dismissed.  Therefore, we dismiss the appeal filed by HDFC Bank with costs of Rs.5,000/- and the order passed by the learned District Forum is upheld.

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

Pronounced.                                                                        

4^th March, 2011.