Telangana

Mahbubnagar

CC/09/42

Syed Shafiuddin S/o Syed Saiffuddin O/c Business - Complainant(s)

Versus

The Branch Manager, HDFC Bank Ltd., Mahabubnagar and another - Opp.Party(s)

Sri P. Amba Shankar

03 Feb 2010

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

                                                                                     Friday, the 29^th day of January, 2010

                                                         Present:-   Sri P. Sridhara Rao, B.Sc., LL.B., President

                                 Sri P.Venkateshwar Rao, B.Com. LL.B., Member

                                                             Smt. B.Vijaya Kumari, M.Sc. B.Ed., C.C.P., Member                      

C.C.NO. 42  Of   2009

Between:-

Syed Shafiuddin S/o Syed Saiffuddin, age: 30 years, Occ: Business, R/o H.No.1-1-76/E, Mothinagar, Mahabubnagar.                                                                                                                                                                                                       … Complainant

And

1. The Branch Manager, HDFC Bank Ltd., Mettugadda, Mahabubnagar.

2. The Branch Manager, HDFC Bank Ltd., 4^th Flore, Lala-1, Landmark, 5-4-941, M.G. Road, Ranigunj, Secunderabad.

                                                                                                                                                                        … Opposite Parties

 This C.C. coming on before us for final hearing on 22-01-2010 in the presence of Sri P. Amba Shankar, Advocate, Mahabubnagar for the complainant and the opposite party Nos.1 and 2 having been set exparte and having stoodover for consideration till this day, this Forum delivered the following:    

O R D E R 

(Sri P. Venkateshwar Rao, Member)

1.  This is a complaint filed U/s 12 of C.P. Act, 1986 by the complainant   praying this Forum to direct the OPs to return the Toyota Innova Car to the complainant and receive the loan installments or in the alternative if return of vehicle is not possible pay the sum of Rs.7,40,620/- with interest from the date of invested by the complainant to purchase vehicle along with documents and also to pay Rs.1,00,000/- to the complainant towards mental agony and also pay costs of the complaint.

2.   The complaint averments are as follows:-  The complainant has availed loan for purchase of Toyota Innova 2.5 G-1 Car from Toyota dealer at Hyderabad with Regd.No.AP-22 H-7788 under hire purchase agreement with the opposite parties on 31-3-2006.   The complainant has availed loan for Rs.6,62,000/- payable in 60 monthly (fixed) equal installments  @ Rs.14,000/- per month.   The complainant has paid the total sum of Rs.3,26,000/- through installments to the OPs.  The complainant also paid a sum of Rs.78,620/- towards down payment on 31-3-2006.  The complainant has used the vehicle only 13 months and after that the said vehicle was damaged partly due to accident and that the complainant has not paid installments in time and requested time for payment of due installments.   The OPs accepted the same but illegally without any prior notice the said vehicle was seized by the OP-1.   The complainant approached OP-1 for release of vehicle on payment of due installments but the OP-1 did not release the vehicle and demanded for full payment.  After that the complainant arranged the amount through a private loan and approached the OP several times for releasing of vehicle on payment of total amount but the OPs on every date postponed the same by showing one or other reasons.   The OPs illegally seized the vehicle of the complainant without any prior intimation and without any notice.  Such seizure is illegal, arbitrary and against to the principles of natural justice.  The complainant already paid Rs.5,14,945/- out of total amount including life time tax and extra fittings and used the vehicle for 13 months only for which the complainant was compelled to be put huge loss.   Without prior notice to the complainant seizing or selling of the vehicle is illegal and against to law.   Due to seizing of the vehicle by OP-1 the complainant has suffered much mental pain and agony.   The complainant got issued legal notice to the OPs on 18-12-2008 to return the vehicle by stopping further activities without consent of the complainant.  But the OPs have given reply with false allegations.   The acts of OPs amount to deficiency in service as they adopted unfair trade practice by seizing and selling the car without any prior notice to the complainant. The complainant is entitled to claim compensation for causing mental agony.  Hence the present complaint is filed for the aforesaid reliefs.    

3.  The opposite parties having entered into their appearance through their counsel, and having availed sufficient opportunity not only failed to file any document before the Forum but also ultimately remained exparte.  

4.  The complainant filed his affidavit and got marked Exs.A-1 to A-20 on his behalf.

5.  Now the point for consideration is whether the complainant is entitled to the reliefs as prayed for?        

6.   The allegations in the complaint remain uncontradicted.  In addition to the affidavit, the complainant filed certain receipts and other connected correspondence etc., which are marked as Exs.A-1 to A-20.   According to the complainant, he has purchased Toyota Innova 2.5 G-1 Car from Toyota dealer at Hyderabad with Regd.No.AP-22 H-7788 under hire purchase agreement with the opposite parties on 31-3-2006.  The Ex.A-19 i.e., statement of loan account issued by OPs proves that the complainant has paid Rs.3,26,000/- in total to OPs under several installments between 13.7.2006 to 14.8.2008.  The said document also proves that the complainant availed finance of Rs.6,62,000/- which is payable in 60 monthly installments @ 14,000/- per month from 2.5.2006.   The Ex.A-13 is the legal notice issued by the complainant and Ex.A-14 is reply to   Ex.A-13.  The Ex.A-14 clearly reveals that the transaction took place between the complainant and OPs.  It clearly speaks that the OPs provided loan on execution of hire purchase agreement by the complainant to purchase the car.  It further reveals that OPs seized the vehicle and sold under auction on 24.10.2008 for Rs.4,55,000/-.  The main allegation of the complainant is that OPs seized and sold away the vehicle without issuing any prior notice which amounts to unfair trade practice.   However in Ex.A-14 OPs stated that they have issued pre sale notice to the complainant and the same is served on 6.10.2008.  The OPs did not choose to file his counter and evidence to disprove the case of the complainant.  In the absence of evidence inference can be safely drawn that OPs have not issued any prior notice to the complainant for seizing and selling the car.   The OPs cannot appropriate the amounts by selling away the car illegally.   The OPs ought to have followed the procedure contemplated under law.  Therefore we hold that not issuing any notice to the complainant prior to seizure of car or before its sale is arbitrary, unjust and illegal and amounts to unfair trade practice.  Since the complainant proved his case hence he is entitled for the reliefs. 

          Now it has to be decided whether the complainant is entitled for all the reliefs as prayed for.   The first prayer of the complainant is to direct the OPs to return the car by receiving balance amount or to direct the OPs to refund the car cost of Rs.7,40,620/-.   Admittedly, the car was sold away by OPs on 24.10.2008, hence it is not possible for OPs to return the car even if it is ordered.   Therefore in our opinion to meet the ends of justice and to prevent further litigation it is just and proper to direct the OPs to refund the amount whichever the complainant invested subject to deducting the depreciation amount.   Admittedly, the complainant used the car for 13 months.  For deciding percentage of depreciation the learned counsel for the complainant relied upon the decision of Hon’ble West Bengal State Consumer Disputes Redressal Commission, reported in 2008 (1) CPR 301 in the case Operator Manager, Auto Loan Consumer Service Department ABN Amro Bank Vs. Sri Praveen Khaitan and another, wherein it is held that “depreciation at 10 per cent per annum is to be deducted from purchase value”.  According to the above decision  10% p.a. depreciation is permissible in the case on hand.  As agreed by the complainant the vehicle cost as on the date of its purchase was Rs.7,40,620/-.  The depreciation @ 10% p.a. for 13 months period comes to Rs.80,234/-.  Therefore in our considered opinion OPs are liable to pay the following amount to the complainant.

          Amount paid by the complainant                         Rs.3,26,000-00

          Add: Initial amount paid by the complainant       Rs.   78,620-00         

                                                                                         _________________

                                                                                      Rs.4,04,620-00    

          Less: Depreciation @ 10% p.a. for 13 months

                   On Rs.7,40,000/-                                       Rs.   80,234-00

                                                                                   _________________

                                      Amount payable by OPs          Rs.3,24,386-00

                                                                                      ________________

          The complainant is claiming interest on his amount from the date of payment.  With regard to awarding the interest we feel that no doubt the complainant is entitled for interest on his amount, because his amount was utilized by OPs.  However, he is entitled for interest only from the date of sale of car, i.e., 24.10.2008 but not from the date as claimed by him because he paid the amount on several dates.  Further we feel it is just and proper to award interest at 9% p.a. on the above amount till its payment by OPs. The second prayer of the complainant is to direct the OPs to pay Rs.1,00,000/- towards compensation as he suffered from illegal acts of OPs.  Since the complainant is already compensated by way of interest, granting of lumpsum amount towards compensation for mental agony is not proper.  However, we feel it is just and proper to award costs of Rs.1,000/- as the complainant filed complaint before the Forum by spending court fee and engaging advocate. 

7.   In the result, the complaint is allowed.  The opposite parties are directed  

jointly and severally to refund Rs.3,24,386/- together with interest @ 9% p.a. from 24.10.2008 till the payment and also to pay Rs.1,000/- towards costs of the proceedings to the complainant within one month from the date of receipt of this order.   

        Typed to dictation, corrected and pronounced by us in the open Forum  on this the 29^th day of January, 2010.           

 

  I agree                                                                                    I agree

 

 MEMBER                                MEMBER                             PRESIDENT  

     Appendix of evidence

       Witness examined

For complainant: Nil                                                 For opposite party:  Nil

Exhibits marked for Complainant:-     

Ex.A-1:   Repayment receipt, Dt.12.9.2009.

Ex.A-2:   Repayment receipt, Dt.30.11.2006.

Ex.A-3:   Repayment receipt, Dt.18.12.2006.

Ex.A-4:   Repayment receipt, Dt.20.1.2007.

Ex.A-5:   Repayment receipt, Dt.27.4.2007.

Ex.A-6:   Repayment receipt, Dt.19.5.2007.

Ex.A-7:   Repayment receipt, Dt.29.7.2007.

Ex.A-8:   Repayment receipt, Dt.30.8.2007.

Ex.A-9:   Repayment receipt, Dt.29.9.2007.

Ex.A-10: Repayment receipt, Dt.29.6.2008.

Ex.A-11: Sale Certificate, Dt.31.3.2006.

Ex.A-12: Surrender letter, Dt.4.10.2008.

Ex.A-13: Copy of legal notice, Dt.23.12.2008.

Ex.A-14: Letter, Dt.6.1.2009.

Ex.A-15: Letter, Dt.6.1.2009.

Ex.A-16: Postal acknowledgement.

Ex.A-17: Postal acknowledgement.

Ex.A-18: E-Seva Receipt, Dt.31.3.2006.

Ex.A-19: Statement of account issued by OP1.

Ex.A-20: Sales Invoice, Dt.31.3.2006.

Exhibits marked for OPs.:-    

   - Nil-

By the Forum:

     - Nil-

                                                                                                                                                                                                                                                                                                                                         PRESIDENT  

Copy to:-

1. Sri P. Amba Shankar, Advocate, Mahabubnagar for the complainant.
2. The Branch Manager, HDFC Bank Ltd., Mettugadda, Mahabubnagar.
3. The Branch Manager, HDFC Bank Ltd., 4^th Flore, Lala-1, Landmark, 5-4-941, M.G. Road, Ranigunj, Secunderabad.