The Branch Manager, Shri Ram Transport Finance Co. Ltd., Raichur V/S Mr. Mohammed Shalam S/o. Mohammed Ismail - Consumer Court Case

Karnataka

Raichur

CC/10/1

Mr. Mohammed Shalam S/o. Mohammed Ismail - Complainant(s)

Versus

The Branch Manager, Shri Ram Transport Finance Co. Ltd., Raichur - Opp.Party(s)

Sri. T.M. Swamy

24 May 2010

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/1

Mr. Mohammed Shalam S/o. Mohammed Ismail						...........Appellant(s)
Vs.
The Branch Manager, Shri Ram Transport Finance Co. Ltd., Raichur						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Gururaj, Member:- This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Mr. Mohammed Shalam against the Branch Manager, Sri Ram Transport Finance Company Ltd., Raichur. The brief facts of the complaint are as under:- 2. The complainant is the registered owner of goods vehicle/lorry bearing No. KA-04/9099 TATA lorry which has been purchased by complainant for his livelihood with the financial assistance of the Respondent under loan agreement/contract No. STFC/SN/TSLRA 176634 dt. 01-08-06 for an amount of Rs. 1,70,000/- on monthly installment of Rs. 7,750/-. The Respondents Head office situated at Chennai has sanctioned Rs. 1,70,000/- to the complainant. The complainant has repaid in all Rs. 92.750/- from 25-08-06 to 22-09-07 to the Respondent. Further it is the case of the complainant that, due to his financial crisis and not having good business the complainant defaulted payment of about two installments in time to Respondent, because of that the Respondent has illegally seized the vehicle of the complainant on 24-11-07 without issuing any prior 7 days mandatory notice and without intervention/order of the court. Even inspite of several requests and protest for such illegal seizure by Respondent agents, by use of muscle power seized the vehicle at Auto Nagar Raichur. Thereafter the complainant has made several requests to release his vehicle so as to enable him for payment of his installments but such requests were dragged on number of months on the ground that, he would consult his head office situated at Chennai and would inform the same to complainant. However the said false promise assurance by Respondent went in vain without any positive results. Further it is the case of the complainant that, the Respondent all of sudden got issued the show cause notice dt. 12-11-09 for intimation of arbitration proceedings through his arbitrator Mr. K. Balasubramanian through post by intimating the complainant and his guarantor for payment of an amount of Rs. 2,62,341/-. Since the complainant is struggling for his square meals from the date of the seizer of his vehicle is not in a position to attend the arbitration proceedings at Chennai are to repay the installment due to heavy loss suffered due to flood taken in the Raichur District. The complainant was use to earn Rs. 15,000/- to Rs. 20,000/- per month from the said vehicle after deduction of all expenses, wear and tear he used to save Rs. 8,000/- to Rs. 9,000/- per month but due to illegal seizer he has lost everything from 24-11-07 to till the date of complaint, for which the Respondent is responsible. Further it is the case of the complainant that, after receipt of the notice from arbitrator once again complainant has approached the Respondent and requested to return his vehicle at that time the complainant came to know that, his vehicle has been sold out for an amount of Rs. 1,90,000/- which is too lesser than its market value. The act of the Respondent in respect of the seizer of the vehicle is illegal and selling of the same for lesser value is also unlawful therefore the Respondent has committed deficiency in service, unfair trade practice. Hence he has sought for Rs. 1,80,200/- towards loss of earnings, refund of difference amount of market value and sale price of the vehicle and Rs. 10,000- towards cost of the proceedings. 3. Respondent Company appeared in this case through the Advocate, filed written version by contending that, the complainant has filed false, frivolous and vexatious complaint and unnecessarily driven this Respondent before this Forum by filing false and dubious complaint with sole intention to harass this Respondent. Further it has contended that, the relation between he complainant and the Respondent is a borrower and creditor and hence the complainant is not a consumer and also the transaction is for commercial purpose the Forum has no jurisdiction to entertain the complaint. The dispute raised by the complaint cannot be adjudicated by this Honble Forum and sought for dismissal of the complaint. Further it is the case of the Respondent that, the complainant has not clearly stated in his complaint about what were the total installments were due. The present Respondent has seized the vehicle after giving notice and following the procedures for seizure. The complainant has not cleared entire amount therefore invoking the agreement condition at 6.1 the vehicle has been seized to execute the right over the vehicle as per agreement dt. 01-08-06. The complainant was chronic defaulter before seizure notice was issued on 01-10-07 intimating the clear the dues otherwise the vehicle will be seized in due process through the said letter, the same was served upon the complainant even then he did not turned up for clearing the dues. Further it is contended that, before the public auction the vehicle was valued by one Joshi Druvakumar surveyor and loss assessor and submitted his report dt. 24-06-08 after that, the public noticed was issued in Sudhi Moola Kannada Daily Newspaper on 06-08-08 calling the public for participating in the sale proceedings of the complainant vehicle along with other vehicles. Many persons were participated in the auction out of which two persons gave their quotation dt. 08-08-08 amounting to Rs. 1,75,000/- and Rs. 1,40,000/- accordingly the highest bidder by name Saleem Pasha has purchased the vehicle and released the complainant vehicle to him on 26-08-08 through sale confirmation letter dt. 09-08-08. The said Rs. 1,75,000/- amount has been credited to the loan account of the complainant the short fall amount was not paid. The complainant knowing all these developments kept quite for almost 25 months and after getting the arbitration notice he has approached this Honble Forum. There was no deficiency or unfair trade practice from this Respondent. Hence sought for dismissal of the complaint with exemplary cost. 4. During the course of enquiry the complainant has filed sworn-affidavit by way of examination-in-chief as PW-1. In rebuttal the Respondents has filed sworn affidavit of its Manager by name Sri. Subbarao, as RW-1. The complainant has got marked (2) documents at Ex.P-1 and P-2. In-rebuttal the Respondent has got marked (11) documents at Ex.R-1 & Ex.R-11. 5. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination: 1. Whether the complainant proves deficiency in service by the Respondents as alleged.? 2. Whether the complainant is entitled for the reliefs sought for? 6. Our findings on the above points are as under:- 1. In the Affirmative. 2. As per final order for the following. REASONS POINT NO.1:- 7. There is no dispute that the complainant has purchased the TATA Lorry bearing No. KA-04/9099 with the financial assistance of the Respondent on 01-08-06 under loan agreement SFTC/SL/TSL RAI 76634 dt. 01-08-06 for Rs. 1,75,000/- on (36) monthly installments of Rs. 7,550/- per month. Further it is also not in dispute that, the complainant is due some of the installments to the Respondent and the Respondent has seized the vehicle after giving notice and same has been sold for an amount of Rs. 1,75,000 in auction to the higher bidder. 8. The complainant has produced (2) documents namely: (1) Original Installment Receipt in 8 numbers marked at Ex.P-1 to Ex.P-1(7). (2) Arbitration Notice dt. 12-11-09 marked at Ex.P-2. 9. The Respondent has filed in all (11) documents namely: (1) Loan Cum Hypothecation Agreement marked at Ex.R-1. (2) Statement of Account Ex.R-2. (3) Certificate cum policy schedule marked at Ex.R-3. (4) Sudhi Moola Kannada Daily Newspaper dt. 06-08-08 at Ex. R-4. (5) Office copy of final notice dt. 01-10-07 with postal acknowledgement and receipt marked at Ex.R-5, Ex.R-5(1) & Ex.R-5(2). (6) Sale notice dt. 02-05-10 with postal receipts and acknowledgements are marked at Ex.R-6, Ex.R-6(1), Ex.R-6(2), Ex.R-6(3) & Ex.R-6(4). (7) Survey report dt. 24-06-08 marked at Ex.R-7. (8) Quotations are marked at Ex.R-8 & Ex.R-8(1). (9) Letter dt. 26-08-08 issued to Yard Manager is marked at Ex.R-9. (10) Sale confirmation letter dt. 09-08-08 marked at Ex.R-10. (11) Acceptance letter dt. 26-08-08 at Ex.R-11. 10. It is the case of the complainant that, the Respondent has illegally seized the vehicle without following due process of law and without obtaining any order from the civil court and sold it for lesser value than the market value of the vehicle and thereby caused loss to him and also sustained loss of earnings. But it is the case of the Respondent that, the complainant was chronic defaulter in payment of installments and he was due to the tune of Rs. 2,62,341/- therefore they have seized the vehicle with due notice and same was sold in auction to higher bidder to the tune of Rs. 1,75,000/- and same was adjusted to his account and for the remaining balance yet to be paid by the complainant with interest. 11. Admittedly complainant has paid installments amount in all Rs. 1,52,098/- through receipts marked at Ex.P-1 to Ex.P-1(7) and same was admitted by the Respondent in their statement of account produced at Ex.R-2. From this it is very clear that, the complainant is still due to the Respondent. Of course the complainant in his complaint clearly mentioned that, he has due to the tune of Rs. 15,100/- under two installments to the Respondents. No doubt as per the Ex.R-1 i.e, Loan cum Hypothecation agreement clause 6.1 the Respondent has got every rights to seize the vehicle in order to take repossession of the same for his dues. Now it is point for our consideration is, whether the Respondent has not seized the vehicle according to law as contended by the complainant. From the perusal of the Ex.R-5 i.e, final notice dt. 01-10-07 it is very clear that, the Respondent has got issued notice to the complainant for repayment of then due amount of Rs. 40,000/- and failing which the vehicle will be repossessed or seized or take legal action. Further it is very clear that, after this they have referred matter to the valuator by name one Sri. Joshi Druvakumar for to get value of the vehicle accordingly he has submitted his report as per Ex.R-7 and the Respondent has put the vehicle under auction sale accordingly they have sold the vehicle to the higher bidder to the tune of Rs. 1,75,000/- the sale confirmation letter was also issued to the complainant under Ex.R-6. 12. But here for our consideration is, though the Respondent has got issued notice under Ex.R-5 for the seizer of the vehicle and final notice for sale under Ex.R-6, is it a proper procedure for seizer of the vehicle as per law?. In our view, it is not according to the procedure to be adopted for the seizer of the vehicle. Apart from Ex.R-5 & Ex.R-6 there are no other evidences or documents placed before the Forum to know that, what was the procedure Respondent has adopted for the seizer of the vehicle and there is also no evidence to show that, where the vehicle has been seized and before whom it has been seized. In the absence of such evidences it cannot be said that, the vehicle has been seized by following the due process of law. Mere issuance of seizer notice and sale letters will not give sufficient reasons to believe that, the vehicle has been seized properly. Under such circumstances, we are of the opinion that, the vehicle has been recovered forcibly by the complainant in order to recover of loan amount as contended by this complainant which is illegal one. The Respondent document i.e, statement of account produced at Ex.R-2 clearly speaks that, the complainant has paid in all Rs. 1,52,098/- towards installments and Rs. 20,000/- towards insurance charges and further he admits in his complaint he has due two installments to the Respondent. Under such circumstances, we do not think that, he may be a chronic defaulter as contended by the Respondent and he was not in a mood to dupe the Respondent. Because he has availed loan to the tune of Rs. 1,70,000/- and repaid to the tune of Rs. 1,50,000/-. 13. No doubt the complainant is a borrower and the Respondent is the financier in order to purchase the vehicle in question under loan cum hypothecation agreement. But by keeping in that relation the Respondent cannot recover or reposes the vehicle forcibly from the complainant. The agreement empowers the Respondent to recover the loan by following due process of law and it is normal one to look in to the terns and conditions under the agreement. By keeping the same, the financier/respondent cannot take law in his hand to recover the loan/vehicle under hypothecation forcibly. In order to recover, there is a legal or judicial process by which he can take action against the complainant. He has not adopted such process that is nothing but using of force, here in this case the Respondent has also not followed such process. Therefore it is clear cut case of recovery of the vehicle from the complainant forcibly which is unlawful and illegal one as contended by the complainant. In this regard we have referred the ruling submitted by the complainant cited in 2010 CTJ 532 (CP) (NCDRC) of Honble National Commission. Wherein the Honble National Commission by referring City Corp Maruti Finance Corporation Ltd., V/s. Vijayalaksmi Case, ICICI Bank V/s. Prakash Kaur & Others Case, and ruling cited in AIR 1966 Supreme Court 1178 it has held that, purchase of the vehicle under hypothecation agreement will give ownership to the purchaser, in order to recover the loan legal or judicial process are to be followed though they have slow process but it is no excuse for employing muscle to passes the vehicle, hire purchase agreement is a normal one and same will give licence to ensure compliance with the terms of the agreement. 14. Further we have also referred the ruling cited in III (2009) CPJ 163 of Honble State Commission of Himachal Pradesh, II (2008) CPJ 271 (NC) 2009 CJ 1018 (NC) of Honble National Commission wherein the Honble Commissions have categorically sated that in order to seize the vehicle the financier has to follow due process of law and proper procedures. But here in this case no such act has been done by the Respondent. Hence we have considered the said rulings as they have aptly applicable to the case of the complainant. 15. The counsel for the Respondent in this case, has submitted (4) rulings cited in 1992 CPR 456, 1995 CPR 93, 2004 (2) CPR 584 and 1995 (3) CPR 293. In the first ruling the Honble State Commission of Hyderabad has held that, seizer of the vehicle by bank in accordance with the terms and conditions is not leads to any deficiency in service, but wherein in this case we do not find any reasons to believe that, the Respondent has seized the vehicle in accordance with the due process of law as referred by the Honble National Commission in its judgment of Mohammed Anwar & Others V/s. Sriram Transport Finance Company Ltd., in Revision Petition No. 3644 of 2008 (which was referred above). Hence in view of the findings on the said rulings and facts of the case on hand with great respect, we have not applied the above said ruling to this case. 16. The Respondent counsel is also relied upon the rulings reported in 2004 (2) CPR 584 and 1995 (3) CPR 293 in order to prove that, the seizer of the vehicle and sale of it by taking it repossession as per the agreement is proper one but in view of the recent judgment of Honble National Commission cited in 2010 CTJ 532 referred above, we have not considered the request of opposite. Viewing from all the angles and rulings of National Commission we hold that there is a deficiency in service on the part of the Respondent as the Respondent has seized the vehicle without following the due process of law. So Point No-1 is answered in the affirmative. 17. The Respondent counsel vehemently argued on the point that, the complainant is not a consumer as he is the borrower to Respondent Company and he has purchased the vehicle for commercial purpose, in this regard he has also relied upon the ruling of our State Commission, Bangalore cited in 1995 CPR 93 but on the same point the counsel for the complainant has submitted ruling cited in 2009 CJ 979 of Honble Supreme Court wherein the Honble Supreme Court was clearly held that, the purchaser of the vehicle for his self employment/livelihood is also a consumer and he will comes under the ambit of section 2(1)(d) of C.P. Act. Similarly in view of the recent ruling of National Commission we have rejected the defence of the Respondent in this regard. POINT NO.2:- 18. The complainant has sought for direction to pay Rs. 1,80,200/- as the loss of earning Rs. 7,500/- per month since from 24-11-07 to till the day and also difference amount of market value and sale price of the vehicle as on the date of selling the vehicle with cost of the proceedings of Rs. 10,000/-. Regarding the loss of earning is concerned, the complainant has not produced any documents to show that, he was earning Rs. 7500/- per month and in the absence of that, this Forum cannot assess the loss, hence the prayer of the complaint in this regard is not considered. 19. Next, prayer regarding return the difference amount of market value and sale price is concerned, neither the complainant nor the Respondent has specifically mentioned about the cost of the vehicle. However we have perused Ex.R-2 wherein the agreement value of the vehicle is Rs. 2,71,600/- and the vehicle has been sold in auction as per the Ex.R-11 is Rs. 1,75,000/-. Hence we have considered the market value of the vehicle as per the Ex.R-11 is as Rs. 1,75,000/- only, if we deduct the said amount from Rs. 2,71,600/- the difference amount will be ( Rs. 2,71,600- 1,75,000) 96,600/- and same is to be ordered to refund to the complainant against the Respondent. But the complainant in his complaint has clearly admitted that, he is due to the tune of Rs. 15,100/- in respect of two installments to the tune of Rs. 7,550/- each. Hence the Respondent is liable to repay the said amount of Rs. 96,600/- after deducting Rs. 15,100/- which amounts to Rs. 81,500/- with interest at the rate of 9% p.a. from the date of sale of the vehicle. In regard to the cost of proceeding of Rs. 10,000/- is concerned, we feel that the claim of the complainant is very high and excessive one, hence we felt, that it is just and proper to award Rs. 3,000/- to the complainant and for deficiency in service is concerned, we feel it is just and proper to award Rs. 3,000/-. In this view of the matter we pass the following order: POINT NO.3:- 20. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is totally entitled to recover an amount of Rs. 87,500/- from the opposite. The complainant is entitled to recover future interest at the rate of 9% p.a. on the above total sum of Rs. 87,500/- from the date sale of the vehicle to till realization of the full amount. Opposite is hereby granted one month time to comply the above order from the date of this judgment for to make the payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 24-05-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Gururaj, Member:- This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Mr. Mohammed Shalam against the Branch Manager, Sri Ram Transport Finance Company Ltd., Raichur. The brief facts of the complaint are as under:- 2. The complainant is the registered owner of goods vehicle/lorry bearing No. KA-04/9099 TATA lorry which has been purchased by complainant for his livelihood with the financial assistance of the Respondent under loan agreement/contract No. STFC/SN/TSLRA 176634 dt. 01-08-06 for an amount of Rs. 1,70,000/- on monthly installment of Rs. 7,750/-. The Respondents Head office situated at Chennai has sanctioned Rs. 1,70,000/- to the complainant. The complainant has repaid in all Rs. 92.750/- from 25-08-06 to 22-09-07 to the Respondent. Further it is the case of the complainant that, due to his financial crisis and not having good business the complainant defaulted payment of about two installments in time to Respondent, because of that the Respondent has illegally seized the vehicle of the complainant on 24-11-07 without issuing any prior 7 days mandatory notice and without intervention/order of the court. Even inspite of several requests and protest for such illegal seizure by Respondent agents, by use of muscle power seized the vehicle at Auto Nagar Raichur. Thereafter the complainant has made several requests to release his vehicle so as to enable him for payment of his installments but such requests were dragged on number of months on the ground that, he would consult his head office situated at Chennai and would inform the same to complainant. However the said false promise assurance by Respondent went in vain without any positive results. Further it is the case of the complainant that, the Respondent all of sudden got issued the show cause notice dt. 12-11-09 for intimation of arbitration proceedings through his arbitrator Mr. K. Balasubramanian through post by intimating the complainant and his guarantor for payment of an amount of Rs. 2,62,341/-. Since the complainant is struggling for his square meals from the date of the seizer of his vehicle is not in a position to attend the arbitration proceedings at Chennai are to repay the installment due to heavy loss suffered due to flood taken in the Raichur District. The complainant was use to earn Rs. 15,000/- to Rs. 20,000/- per month from the said vehicle after deduction of all expenses, wear and tear he used to save Rs. 8,000/- to Rs. 9,000/- per month but due to illegal seizer he has lost everything from 24-11-07 to till the date of complaint, for which the Respondent is responsible. Further it is the case of the complainant that, after receipt of the notice from arbitrator once again complainant has approached the Respondent and requested to return his vehicle at that time the complainant came to know that, his vehicle has been sold out for an amount of Rs. 1,90,000/- which is too lesser than its market value. The act of the Respondent in respect of the seizer of the vehicle is illegal and selling of the same for lesser value is also unlawful therefore the Respondent has committed deficiency in service, unfair trade practice. Hence he has sought for Rs. 1,80,200/- towards loss of earnings, refund of difference amount of market value and sale price of the vehicle and Rs. 10,000- towards cost of the proceedings. 3. Respondent Company appeared in this case through the Advocate, filed written version by contending that, the complainant has filed false, frivolous and vexatious complaint and unnecessarily driven this Respondent before this Forum by filing false and dubious complaint with sole intention to harass this Respondent. Further it has contended that, the relation between he complainant and the Respondent is a borrower and creditor and hence the complainant is not a consumer and also the transaction is for commercial purpose the Forum has no jurisdiction to entertain the complaint. The dispute raised by the complaint cannot be adjudicated by this Honble Forum and sought for dismissal of the complaint. Further it is the case of the Respondent that, the complainant has not clearly stated in his complaint about what were the total installments were due. The present Respondent has seized the vehicle after giving notice and following the procedures for seizure. The complainant has not cleared entire amount therefore invoking the agreement condition at 6.1 the vehicle has been seized to execute the right over the vehicle as per agreement dt. 01-08-06. The complainant was chronic defaulter before seizure notice was issued on 01-10-07 intimating the clear the dues otherwise the vehicle will be seized in due process through the said letter, the same was served upon the complainant even then he did not turned up for clearing the dues. Further it is contended that, before the public auction the vehicle was valued by one Joshi Druvakumar surveyor and loss assessor and submitted his report dt. 24-06-08 after that, the public noticed was issued in Sudhi Moola Kannada Daily Newspaper on 06-08-08 calling the public for participating in the sale proceedings of the complainant vehicle along with other vehicles. Many persons were participated in the auction out of which two persons gave their quotation dt. 08-08-08 amounting to Rs. 1,75,000/- and Rs. 1,40,000/- accordingly the highest bidder by name Saleem Pasha has purchased the vehicle and released the complainant vehicle to him on 26-08-08 through sale confirmation letter dt. 09-08-08. The said Rs. 1,75,000/- amount has been credited to the loan account of the complainant the short fall amount was not paid. The complainant knowing all these developments kept quite for almost 25 months and after getting the arbitration notice he has approached this Honble Forum. There was no deficiency or unfair trade practice from this Respondent. Hence sought for dismissal of the complaint with exemplary cost. 4. During the course of enquiry the complainant has filed sworn-affidavit by way of examination-in-chief as PW-1. In rebuttal the Respondents has filed sworn affidavit of its Manager by name Sri. Subbarao, as RW-1. The complainant has got marked (2) documents at Ex.P-1 and P-2. In-rebuttal the Respondent has got marked (11) documents at Ex.R-1 & Ex.R-11. 5. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination: 1. Whether the complainant proves deficiency in service by the Respondents as alleged.? 2. Whether the complainant is entitled for the reliefs sought for? 6. Our findings on the above points are as under:- 1. In the Affirmative. 2. As per final order for the following. REASONS POINT NO.1:- 7. There is no dispute that the complainant has purchased the TATA Lorry bearing No. KA-04/9099 with the financial assistance of the Respondent on 01-08-06 under loan agreement SFTC/SL/TSL RAI 76634 dt. 01-08-06 for Rs. 1,75,000/- on (36) monthly installments of Rs. 7,550/- per month. Further it is also not in dispute that, the complainant is due some of the installments to the Respondent and the Respondent has seized the vehicle after giving notice and same has been sold for an amount of Rs. 1,75,000 in auction to the higher bidder. 8. The complainant has produced (2) documents namely: (1) Original Installment Receipt in 8 numbers marked at Ex.P-1 to Ex.P-1(7). (2) Arbitration Notice dt. 12-11-09 marked at Ex.P-2. 9. The Respondent has filed in all (11) documents namely: (1) Loan Cum Hypothecation Agreement marked at Ex.R-1. (2) Statement of Account Ex.R-2. (3) Certificate cum policy schedule marked at Ex.R-3. (4) Sudhi Moola Kannada Daily Newspaper dt. 06-08-08 at Ex. R-4. (5) Office copy of final notice dt. 01-10-07 with postal acknowledgement and receipt marked at Ex.R-5, Ex.R-5(1) & Ex.R-5(2). (6) Sale notice dt. 02-05-10 with postal receipts and acknowledgements are marked at Ex.R-6, Ex.R-6(1), Ex.R-6(2), Ex.R-6(3) & Ex.R-6(4). (7) Survey report dt. 24-06-08 marked at Ex.R-7. (8) Quotations are marked at Ex.R-8 & Ex.R-8(1). (9) Letter dt. 26-08-08 issued to Yard Manager is marked at Ex.R-9. (10) Sale confirmation letter dt. 09-08-08 marked at Ex.R-10. (11) Acceptance letter dt. 26-08-08 at Ex.R-11. 10. It is the case of the complainant that, the Respondent has illegally seized the vehicle without following due process of law and without obtaining any order from the civil court and sold it for lesser value than the market value of the vehicle and thereby caused loss to him and also sustained loss of earnings. But it is the case of the Respondent that, the complainant was chronic defaulter in payment of installments and he was due to the tune of Rs. 2,62,341/- therefore they have seized the vehicle with due notice and same was sold in auction to higher bidder to the tune of Rs. 1,75,000/- and same was adjusted to his account and for the remaining balance yet to be paid by the complainant with interest. 11. Admittedly complainant has paid installments amount in all Rs. 1,52,098/- through receipts marked at Ex.P-1 to Ex.P-1(7) and same was admitted by the Respondent in their statement of account produced at Ex.R-2. From this it is very clear that, the complainant is still due to the Respondent. Of course the complainant in his complaint clearly mentioned that, he has due to the tune of Rs. 15,100/- under two installments to the Respondents. No doubt as per the Ex.R-1 i.e, Loan cum Hypothecation agreement clause 6.1 the Respondent has got every rights to seize the vehicle in order to take repossession of the same for his dues. Now it is point for our consideration is, whether the Respondent has not seized the vehicle according to law as contended by the complainant. From the perusal of the Ex.R-5 i.e, final notice dt. 01-10-07 it is very clear that, the Respondent has got issued notice to the complainant for repayment of then due amount of Rs. 40,000/- and failing which the vehicle will be repossessed or seized or take legal action. Further it is very clear that, after this they have referred matter to the valuator by name one Sri. Joshi Druvakumar for to get value of the vehicle accordingly he has submitted his report as per Ex.R-7 and the Respondent has put the vehicle under auction sale accordingly they have sold the vehicle to the higher bidder to the tune of Rs. 1,75,000/- the sale confirmation letter was also issued to the complainant under Ex.R-6. 12. But here for our consideration is, though the Respondent has got issued notice under Ex.R-5 for the seizer of the vehicle and final notice for sale under Ex.R-6, is it a proper procedure for seizer of the vehicle as per law?. In our view, it is not according to the procedure to be adopted for the seizer of the vehicle. Apart from Ex.R-5 & Ex.R-6 there are no other evidences or documents placed before the Forum to know that, what was the procedure Respondent has adopted for the seizer of the vehicle and there is also no evidence to show that, where the vehicle has been seized and before whom it has been seized. In the absence of such evidences it cannot be said that, the vehicle has been seized by following the due process of law. Mere issuance of seizer notice and sale letters will not give sufficient reasons to believe that, the vehicle has been seized properly. Under such circumstances, we are of the opinion that, the vehicle has been recovered forcibly by the complainant in order to recover of loan amount as contended by this complainant which is illegal one. The Respondent document i.e, statement of account produced at Ex.R-2 clearly speaks that, the complainant has paid in all Rs. 1,52,098/- towards installments and Rs. 20,000/- towards insurance charges and further he admits in his complaint he has due two installments to the Respondent. Under such circumstances, we do not think that, he may be a chronic defaulter as contended by the Respondent and he was not in a mood to dupe the Respondent. Because he has availed loan to the tune of Rs. 1,70,000/- and repaid to the tune of Rs. 1,50,000/-. 13. No doubt the complainant is a borrower and the Respondent is the financier in order to purchase the vehicle in question under loan cum hypothecation agreement. But by keeping in that relation the Respondent cannot recover or reposes the vehicle forcibly from the complainant. The agreement empowers the Respondent to recover the loan by following due process of law and it is normal one to look in to the terns and conditions under the agreement. By keeping the same, the financier/respondent cannot take law in his hand to recover the loan/vehicle under hypothecation forcibly. In order to recover, there is a legal or judicial process by which he can take action against the complainant. He has not adopted such process that is nothing but using of force, here in this case the Respondent has also not followed such process. Therefore it is clear cut case of recovery of the vehicle from the complainant forcibly which is unlawful and illegal one as contended by the complainant. In this regard we have referred the ruling submitted by the complainant cited in 2010 CTJ 532 (CP) (NCDRC) of Honble National Commission. Wherein the Honble National Commission by referring City Corp Maruti Finance Corporation Ltd., V/s. Vijayalaksmi Case, ICICI Bank V/s. Prakash Kaur & Others Case, and ruling cited in AIR 1966 Supreme Court 1178 it has held that, purchase of the vehicle under hypothecation agreement will give ownership to the purchaser, in order to recover the loan legal or judicial process are to be followed though they have slow process but it is no excuse for employing muscle to passes the vehicle, hire purchase agreement is a normal one and same will give licence to ensure compliance with the terms of the agreement. 14. Further we have also referred the ruling cited in III (2009) CPJ 163 of Honble State Commission of Himachal Pradesh, II (2008) CPJ 271 (NC) 2009 CJ 1018 (NC) of Honble National Commission wherein the Honble Commissions have categorically sated that in order to seize the vehicle the financier has to follow due process of law and proper procedures. But here in this case no such act has been done by the Respondent. Hence we have considered the said rulings as they have aptly applicable to the case of the complainant. 15. The counsel for the Respondent in this case, has submitted (4) rulings cited in 1992 CPR 456, 1995 CPR 93, 2004 (2) CPR 584 and 1995 (3) CPR 293. In the first ruling the Honble State Commission of Hyderabad has held that, seizer of the vehicle by bank in accordance with the terms and conditions is not leads to any deficiency in service, but wherein in this case we do not find any reasons to believe that, the Respondent has seized the vehicle in accordance with the due process of law as referred by the Honble National Commission in its judgment of Mohammed Anwar & Others V/s. Sriram Transport Finance Company Ltd., in Revision Petition No. 3644 of 2008 (which was referred above). Hence in view of the findings on the said rulings and facts of the case on hand with great respect, we have not applied the above said ruling to this case. 16. The Respondent counsel is also relied upon the rulings reported in 2004 (2) CPR 584 and 1995 (3) CPR 293 in order to prove that, the seizer of the vehicle and sale of it by taking it repossession as per the agreement is proper one but in view of the recent judgment of Honble National Commission cited in 2010 CTJ 532 referred above, we have not considered the request of opposite. Viewing from all the angles and rulings of National Commission we hold that there is a deficiency in service on the part of the Respondent as the Respondent has seized the vehicle without following the due process of law. So Point No-1 is answered in the affirmative. 17. The Respondent counsel vehemently argued on the point that, the complainant is not a consumer as he is the borrower to Respondent Company and he has purchased the vehicle for commercial purpose, in this regard he has also relied upon the ruling of our State Commission, Bangalore cited in 1995 CPR 93 but on the same point the counsel for the complainant has submitted ruling cited in 2009 CJ 979 of Honble Supreme Court wherein the Honble Supreme Court was clearly held that, the purchaser of the vehicle for his self employment/livelihood is also a consumer and he will comes under the ambit of section 2(1)(d) of C.P. Act. Similarly in view of the recent ruling of National Commission we have rejected the defence of the Respondent in this regard. POINT NO.2:- 18. The complainant has sought for direction to pay Rs. 1,80,200/- as the loss of earning Rs. 7,500/- per month since from 24-11-07 to till the day and also difference amount of market value and sale price of the vehicle as on the date of selling the vehicle with cost of the proceedings of Rs. 10,000/-. Regarding the loss of earning is concerned, the complainant has not produced any documents to show that, he was earning Rs. 7500/- per month and in the absence of that, this Forum cannot assess the loss, hence the prayer of the complaint in this regard is not considered. 19. Next, prayer regarding return the difference amount of market value and sale price is concerned, neither the complainant nor the Respondent has specifically mentioned about the cost of the vehicle. However we have perused Ex.R-2 wherein the agreement value of the vehicle is Rs. 2,71,600/- and the vehicle has been sold in auction as per the Ex.R-11 is Rs. 1,75,000/-. Hence we have considered the market value of the vehicle as per the Ex.R-11 is as Rs. 1,75,000/- only, if we deduct the said amount from Rs. 2,71,600/- the difference amount will be ( Rs. 2,71,600- 1,75,000) 96,600/- and same is to be ordered to refund to the complainant against the Respondent. But the complainant in his complaint has clearly admitted that, he is due to the tune of Rs. 15,100/- in respect of two installments to the tune of Rs. 7,550/- each. Hence the Respondent is liable to repay the said amount of Rs. 96,600/- after deducting Rs. 15,100/- which amounts to Rs. 81,500/- with interest at the rate of 9% p.a. from the date of sale of the vehicle. In regard to the cost of proceeding of Rs. 10,000/- is concerned, we feel that the claim of the complainant is very high and excessive one, hence we felt, that it is just and proper to award Rs. 3,000/- to the complainant and for deficiency in service is concerned, we feel it is just and proper to award Rs. 3,000/-. In this view of the matter we pass the following order: POINT NO.3:- 20. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is totally entitled to recover an amount of Rs. 87,500/- from the opposite. The complainant is entitled to recover future interest at the rate of 9% p.a. on the above total sum of Rs. 87,500/- from the date sale of the vehicle to till realization of the full amount. Opposite is hereby granted one month time to comply the above order from the date of this judgment for to make the payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 24-05-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.