BEFORE THE DISTRICT FORUM:KURNOOL

Present: Sri.P.V. Nageswara Rao , M.A. LL.M., President(FAC)

And

Smt. C.Preethi,  M.A.LL.B., Lady Member

And

Sri. M.Krishna Reddy, M.Sc.,M.Phil., Male Member

Thursday  the 13^th day of August, 2009

C.C. 127/08

Between:

S.Sali Miah, S/o. Shalu,

R/o.D.No.2/38, Komarolu Village, Orvakal Mandal , Kurnool District-518010.                       …  Complainant   

                                Versus

1.The Authorized Signatory, M/s. HDFC Bank Limited,

H.No.3/47,F, 4^th Floor, Lala Landmark ,  M.G Road, Opp.Ranigunj Bus stop, Secunderabad-500 003.

2. The Branch Manager, M/s. HDFC Bank Limited ,

D.NO.40/220, RMK Plaza, R.S.Road , Kurnool.

3. The Authorized Signatory, Shrachi Infrastructure Finance Limited,

H.No.6-3-655/6/B,1^st Floor, Civil Supplies Bhavan Lane ,  Somajiguda,  Hyderabad-500 082.                            ….Opposite party  

 This complaint is coming on this day for orders in the presence of Sri.S.Siva Ramakrishna Prasad,  Advocate, for the complainant , and Sri.A.Siva Ramaiah, Advocate for opposite party No. 1  and Sri.T.Lokeswara Reddy , Advocate for opposite party No. 3 and opposite party No. 2 is called absent  set-exparte  and upon perusing the material papers on record, the Forum made the following.

ORDER

(As per Smt. C.Preethi, Lady Member)

C.C.No.127/08

1.     This consumer complaint of the complainant is filed U/S 12 of C.P.Act , 1986 , seeking a direction on opposite parties  to repossess  PIAGG10 APE CARG0 D600 PICK UP VAN  bearing No. AP 21 X 1772, to settle the  account of the complainant to enable him to pay balance amount, Rs.25,000/- for loss of business, Rs.50,000/- towards mental agony, cost of the complaint and any other relief or relief’s which the complainant is entitled in the circumstances of the case.

2.     The brief facts of the complainants case is that the complainant  entered into an agreement  bearing No. 1867330 with opposite parties  for the purpose of  loan to purchase a PIAGG10 APE CARG0 600 PICK UP VAN  and the said  vehicle is registered  with No. AP 21 X 1772 . The complainant has to repay the loan amount in 28 equal installments . The 21^st installment  on 06-11-2007  was dishonoured    and the  agent of opposite party No. 1  i.e, opposite party No. 3  seized the vehicle without giving notice or intimation to the complainant . The complainant approached  opposite parties  with  a proposal to pay the balance installment amount if the vehicle  is repossessed  to him , but the opposite parties  did not accept the  said proposal. Vexed  with the  attitude  of the opposite parties the complainant got issued legal notice dated 06-02-2008 to opposite

parties  1 to 3 , even though the legal notices are served the opposite parties  did not  reply and hence the complainant  resorted  to the forum for reliefs.

3.     In support of his case the complainant relied on the following documents viz., (1) Xerox copy of  Hire installment – due list , (2) Xerox copy of RC of vehicle bearing No. AP 21 X 1772 and (3) office copy of legal notice dated 06-02-2008 along with two postal  acknowledgements, besides to the  sworn affidavit of the complainant in reiteration  of his complaint averments and the above documents are marked as Ex.A1 to A3 for its appreciation in this case.

4.     In pursuance to the notice of this forum as to this case of the complainant  the opposite parties 1 and  3 appeared through their counsel  and contested the case by filling separate written versions . The opposite party No. 2 remained absent throughout the case proceedings .

5.        The written version of opposite party No. 1 submits that the complainant  made an application  with opposite party No. 1   for the purpose  of loan to purchase  vehicle and the  opposite party No. 1 sanctioned an amount  of Rs.97,000/- on 05-10-2005 and the complainant  agreed to pay the loan amount in 28 equal  monthly installments   of Rs.4,057/- . It further  submits that  opposite party No. 1  has entered into  a deed of assignments  of assets with opposite party No. 3 under the said agreement  the opposite party No. 3  obliged  the collection of post disbursement  documents  and monthly installments and recovery of out standing amounts from the  barrowers of opposite party No. 1 and hence opposite party No. 3  alone is liable to settle such disputes and hence the opposite party No. 1 is not liable , as there is deficiency of service and  seeks for the dismissal of complaint against opposite party No. 1.

6.             The written version of opposite party No. 3 submits that   the complainant  availed vehicle loan of Rs.97,000/-  on 05-10-2005 by completing  formalities  and agreed to repay  the loan amount in 28 equal monthly installments  at Rs.4,057/- . The complainant was  irregular  in payment of loan  amount and there were  six installments  due at the time of repossessing of the said vehicle. After repossessing  the vehicle  the opposite party gave a notice terminating the agreement and requested the complainant  to pay the entire loan amount and  take back the vehicle , but the complainant  did not respond  and after 20 days of repossession the opposite party sold the  vehicle. It also submits that the vehicle  was repossessed  in November, 2008 and the complaint was  filed on 31-07-2008 , after repossession  the complainant has to  approach opposite party  but instead  approached the Hon’ble Forum for wrongful  gain and lastly submits  that the opposite party No. 1 and 2 are no way connected  with the transaction  between the complainant and opposite party No. 3 and seeks for the dismissal of complaint.

7.     In support of their case  the opposite parties 1 and 3 relied on the following documents viz., (1)  Xerox copy of power of attorney  dated 16-07-2008  and (2) deed of assignment  of assess with  underlying security  dated 10-05-2008 , besides to the  sworn affidavit  of the opposite parties 1 and 2 in reiteration of his written version averments  and the above documents are marked as Ex.B1 and B2 for its appreciation in this case.

8.     Hence, the  point for consideration is  to what relief  the complainant is entitled  alleging deficiency of service on part of opposite parties :-

9.     It is the case of the complainant  that he availed loan of Rs.97,000/- from opposite parties  to purchase  a PIAGG10 vehicle on 05-10-2005 by completing formalities and entering into an agreement and the complainant agreed to  repay the  loan amount  in 28 equal monthly installments  of Rs.4,057/-  . The complainant paid the installments  up to 20 and defaulted   there on and the written version of opposite party No. 3  at para No. 9 submitted that the  vehicle  of the complainant was seized in month of November, 2008 , and it was also  submitted  by the opposite party No. 3 at para No. 6  that six installments  were due at the time of repossession  and a notice was sent to the complainant  terminating  the agreement  and requesting the complainant to repay the outstanding  loan amount  and also alleged that as there  was no response  from the complainant  for 20 days the opposite party No. 3 sold the vehicle . But to  substantiate  the above contention  the opposite party No. 3 did not choose  to file the said notice said to have been addressed to the complainant  and got it marked. Hence in the  absence  of any supporting  material it cannot be said that notice of termination of agreement  and requesting  the complainant  to repay the loan amount  was  served on   complainant . Hence  it is to be assumed that after  seizure of vehicle of the complainant and before to sale of the complainant’s vehicle no notice was served on the complainant. On this point the complainant  relied on the decision of Our state Commission between S.K. Habibunisa Vs Shriram  of Transport Finance Company Limited reported in 2009 CPJ Pg.490, in this case there was default in repayment  of loan amount and the vehicle was forcefully seized  and sold away without  issuing notice to the complainant . It was held that  the finance  company did not file. Hire purchase  agreement  to show that  it had right to  take possession of vehicle in event of default in payment and  hence directed the opposite party to pay an amount of Rs.2,57,870/- with interest @ 9% p.a as reasonable compensation  towards illegal  seizure.

10.    In the present case also the vehicle was seized , and the complainant  contends that the very seizure was illegal as it was made without giving any notice and the complainant also contended that no notice was issued  before selling away the vehicle,  as all these proceedings  were illegal as per the  above decision the complainant  is entitled to certain amount as compensation towards illegal seizure besides to mental agony.

11.    A perusal  of entire  record demonstrates  that no notice was issued before taking   possession of the vehicle of the complainant . It is also important to note that  the opposite parties  did not file the agreement  entered into by it with the  complainant ,  in order to show  that the agreement permits them to seize  the vehicle in case the complainant commits  default of payment of amount, equally the opposite party  could not show, that there was  no need for issuing any notice before seizure of the vehicle or for selling it by way of open auction  prima facie the procedure adopted was illegal.

12.    The fact remains that the  opposite party No. 3 sold away the vehicle of the complainant after it had taken possession  of the vehicle . The National Commission in  Citicorp Maruti Finance Limited Vs. S.Vijaya Laxmi reported in III 2007 CPJ Pg.161,  considered as to what should be done in  cases  where the vehicle was sold. It was held.

13.    The question framed is when the  repossession of the vehicle is held to be unfair what  relief  should be given to the  consumer ? 

In such cases , grant of relief  would depend upon the fact whether the  vehicle after repossession is sold.

1. If not sold, it has to be  returned  to the complainant  with a adequate   compensation  suffered by the complainant.
2. If sold , compensation is only relief which can be granted to the complainant .  

14.    In view of the afore said discussion  and relying on the decision of our commission  in our view , the vehicle of the complainant  was forcefully  seized  and sold  by the bank ( opposite party No.3) , it would  be just and proper to award reasonable  compensation to the  complainant   “ Reasonable  compensation “ would depend upon the facts of each case.

15.    Coming to the facts of the present case , the loan sanctioned to the complainant was Rs.97,000/-and the complainant  in compliant admitted to have paid   20 installments of Rs.4,057/- each ie., Rs.81,140/- . There is no  averments  in the written version of the opposite parties  as to what amount was recovered  from  the complainant towards  loan amount  and what are the  arrears to be collected and regarding the cost of the vehicle also there  is no averment  in the complaint  or in written version . The loan  amount sanctioned  is Rs.97,000/-  and the complainant  might have paid  20% of cost of the vehicle  as down payment and the cost of the  vehicle  might be  Rs.97,000/- +  20% cost   of the vehicle  i.e, Rs.24,000/-  = 1,37,596  . Hence  , deducting the 20 installment  amount  from the cost of vehicle   i.e., Rs.1,37,596/-  - Rs.81,140/- = Rs.56,456/- .As the seizure and subsequent  sale was held to be illegal , the complainant  is remaining  entitled  to said amount of Rs.56,456/- besides to compensation  and costs.

16.    In the result, the complaint is allowed directing the opposite party No. 3 to pay the complainant Rs.56,456/- without interest  and also pay Rs.10,000/- as compensation for mental agony and Rs.2,000/-  as costs within one month from the date of receipt of this order. The case against  opposite parties 1 and 2 is dismissed  without costs. Rest of the claim is also dismissed.

Dictated to the stenographer, transcribed by her , corrected and pronounced by us in the open bench on this the 13^th day of August , 2009.

     Sd/-                                     Sd/-                          Sd/-

LADY MEMBER                 PRESIDENT(FAC)           MALE MEMBER

APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant :  Nil           For the opposite parties :Nil

List of exhibits marked for the complainant:-

Ex.A1.          Hire Installment  due  list dated nil.

Ex.A2.          Xerox copy of RC  for vehicle No. AP 21 X 1772.

Ex.A3.          Office copy of  legal notice dated 06-02-2008 along with

two acknowledgements.

List  of exhibits marked for the opposite parties:   

Ex.B1.          Attested copy of power of attorney  dated 10-01-1995.

Ex.B2.          Xerox copy of  deed of assignment  of assets  dated 10-05-2008  between opposite party No. 1 and opposite party No. 3.

           Sd/-                              Sd/-                              Sd/-

LADY MEMBER               PRESIDENT (FAC)      MALE MEMBER           

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties       

Copy was made ready on                :

Copy was dispatched on          :