BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 10/11.
THIS THE 29th DAY OF JULY 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER
*****
COMPLAINANT :- Sri. Abdul Nabi S/o. Imam Sab, Age; 40
years, Occ: Business, R/o. Donga Rampur, Tq: & Dist; Raichur.
//VERSUS//
OPPOSITE PARTY :- The Branch Manager, M/s. Sriram Transport
Finance Co. Ltd, Branch Raichur, station Road, Raichur.
CLAIM :- For to direct the opposite to return his vehicle
bearing No. KA-36/5698 alternatively direct it to pay its market value of Rs. 2,00,000/- with interest and to pay a sum of Rs. 1,00,000/- as a compensation with cost.
Date of institution :- 07-02-11.
Notice served :- 24-02-11.
Date of disposal :- 29-07-11.
Complainant represented by Sri. T.M. Swamy, Advocate.
Opposite represented by Sri. A.S. Habib, Advoate.
*****
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi, President:-
This is a complaint filed by the complainant Abdul Nabi against Opposite M/s. Shriram Transport Finance Company Ltd., U/sec. 12 of Consumer Protection Act, for to direct the opposite to return his vehicle bearing No. KA-36/5698, alternatively, to direct it to pay its market value of Rs. 2,00,000/- with interest and to pay a sum of Rs. 1,00,000/- as a compensation with cost.
2. The brief facts of the complainant case are that, he purchased TATA ACE vehicle bearing No. KA-36/5698 by availing loan from opposite finance by executing hypothecation agreement dt. 14-06-06. Totally he paid Rs. 1,77,500/- towards loan. Subsequently the said vehicle met with an accident, therefore, he was not able to pay other installments and thereby, he became defaulter, he requested the opposite that, the due amount will be paid after settlement of insurance claim. But opposite finance illegally seized his vehicle in the month of December-2009 without issuing prior notice of seizer and without getting an order from the competent court of law. He requested the opposite to return the vehicle but subsequently he received intimation on 15-02-10 regarding the sale of the vehicle for Rs. 1,80,000/- and legal action will be initiated against him for balance amount. He issued legal notice, but opposite finance not considered his request, therefore he filed this complaint for the reliefs as prayed in it.
3. After appearance of opposite finance, it filed written version by denying all the allegations made against it. According to it, the complainant became the defaulter in payment of installments, in spite of repeated requests made by the finance. Non-settlement of insurance of the vehicle is no way concerned to it. The complainant voluntarily surrendered the said vehicle by intimating his inability to pay further installments, accordingly vehicle was seized and thereafter also complainant not paid any due amount. Therefore the value of the said vehicle was assessed by the independent assessor and thereafter quotations called, number of persons participated and finally the quotations finalized and sold it to the highest bidder. Prior to it also intimation was given to complainant to make payment of the due amount, but he not responded to its request. Hence, the vehicle was sold, the sale proceeds adjusted to his loan account; there is no deficiency in its service. Accordingly it prayed for to dismiss the complaint among other grounds.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, opposite finance company ltd., seized his vehicle bearing No. KA-36/5698 in the month of December-2009 un-authorizedly without issuing prior notice of seizure and thereafter, issued sale notice dt. 15-02-10, in spite of his repeated requests. It shows its negligence in considering his requests and thereby opposite finance found guilty under deficiency in its service.?
2. Whether complainant is entitled for the reliefs as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In Negative.
(2) In Negative.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 & 2:-
6. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, he noted as PW-1. Documents Ex.P-1 to Ex.P-10 are marked. Written arguments filed. On the other hand affidavit-evidence of Opposite Finance Ltd., was filed, who is noted as RW-1. Documents Ex.R-1 to Ex.R-10 are marked.
7. From the pleadings of the parties, their respective evidences and documents, we have noticed some of the following undisputed facts in between the parties:
1. It is undisputed fact that, the complainant purchased the vehicle bearing No. KA-36/5698 by availing loan from opposite finance by executing loan-cum-hypothecation agreement Ex.P-2=Ex.R-1.
2. It is further undisputed fact that, the complainant became defaulter in payment of some of the installments pertaining to the said loan.
In the light of the above-undisputed facts between the parties, we have to first the first point required to be appreciated, as to whether opposite finance illegally without giving prior notice of seizure, it seized the vehicle of the complainant in the month of December-2009 secondly as to whether the complainant himself voluntarily surrendered the said vehicle to opposite finance and opposite finance took its possession on 23-10-09 under proper inventory and sold it by issuing prior notice of sale.
8. To prove the first part of the above point by the complainant he produced totally (10) documents, out of the said documents Ex.P-1 & Ex.P-2 are pertaining to the insurance of the vehicle. Ex.P-3 is the copy of FIR with regard to accident met by the said vehicle. Ex.P-4 is the quotation for repair of the said vehicle after accident. Ex.P-5 is the bill paid by the complainant for repair. These three documents are also not helpful for the complainant to see as to whether the said vehicle was illegal seized by the opposite finance as alleged against it.
9. Ex.P-6 copy of the legal notice, Ex.P-6(a) postal acknowledgement are also not much importance is admitting as is defaulter in payment of installments. Ex.P-7 is the letter of delivery of the vehicle by the opposite. This letter and Ex.P-9 another letter of opposite and Ex.P-10 is the sale notice are not in respect of first part of the above said point to hold that, the vehicle was seized by the opposite by illegal means without prior notice of seizure.
10. To consider the second part of the first point Ex.R-2 is the material document, it is letter of repossession of the vehicle which inventory dt. 23-10-09. This letter is having the signature of the complainant. It discloses the fact that, the complainant himself voluntarily surrendered the said vehicle to opposite finance and opposite finance prepared Ex.R-2 and repossessed it.
11. The learned advocate for complainant vehemently argued before us with reference to the rulings listed as below, with a contention that, the vehicle was seized by illegal means,
1) AIR 2003 Punjab & Haryana 98 Taruna Bhaskar V/s. State of Haryana.
(E) Contract Act Section 172 & 176……….. loan agreement to purchase the vehicle……… default in payment of installments……… forcible repossession… financier is criminally liable.
2) 2007 CAL CRIL-2-315-207 ICICI Bank V/s. Prakash Kaur. The Hon’ble Supreme Court in Para-18 held as under:
Before we part with this matter we wish to make it clear that, we do not appreciate the procedure adopted by bank in removing the vehicle from the possession of writ petition, the practice of hiring recovery who are musclemen, is depreciated and needs to be discouraged. The bank should resort to the procedure recognized by law to take possession of the vehicle in case where the borrower make committed default in payment of the installments instead of taking recovery to strong harm tactics.
Further their lordships in Para-28 of the said judgment observed as,
In conclusion, we say that, we governed by rule of law in the country the recovery of loan or seizure of the vehicle could be done only or legal means. The bank cannot employee Gundas to take position by force.
3) 2008-TLPRA-0-989 ICICI Bank V/s. Devi Sharma in para-14 of the said judgment their lordships concluded as we deemed it, appropriate to remand the banks and other financial institutions that we leave in a civilized country and or governed by rule of law.
4) I (2006) CPJ 46 (NC) Sriram Transport Finance Company Ltd., V/s. Surekha Khanoji Khemnar and
5) III (2010) CPJ 384 (NC) Magma Finance Corporation Ltd., V/s. Ashok Kumar Gupta.
6) II (2011) CPJ 280 (NC) TATA Engineering and Locomotive Company Ltd., V/s. Nathu. Their lordships of the Hon’ble National Commission held in this case as,
(i) Consumer Protection Act, 1986__ Sections 2(1)(g), 14(1)(d), 21(a)(ii)__ Banking and Financial Institutions Services__Loan__Hire purchase__Reposssession__Vehicle sold__Commission allowed complaint__Hence appeal__Contention, ownership rights of vehicle remained with appellant and he was entitled to repossess vehicle in terms of agreement__Not accepted__Respondent given finance for purchase only chassis__Incurred huge expenditure for work of body building painting, etc.__Taking back vehicle could have financially disabled him to repay amounts of installments__appellant did not deduct cost of body building paid at various installments__Repossession high-handed act of appellant__Appellant liable to refund amount of installments.
These two rulings of the Hon’ble National Commission held as, the court intervention is necessary for seizure of the vehicle.
12. On the other hand, the learned advocate for opposite referred totally (13) rulings of National Commission and the judgments of the Hon’ble Karnataka State Commission which are cited as under:-
1) Order copy in C.R.P. No. 3199/1996 Page 829.
2) Order copy in Appeal No. 2242/2009.
3) II (2010) CPJ 45 (NC).
4) Order copy in Appeal No. 120/2010.
5) 2011 (1) CPR 53.
6) III 1992 (1) CPR 456.
7) 1995 (3) CPR 293.
8) 2004 (2) CPR 584.
9) Order copy in Appeal No. 1847/2005.
10) Order copy in Appeal No. 2013/2006.
11) 2006 (2) CPR 440.
12) 2006 CTJ (SC) 209.
13) Order copy in Appeal No. 2322/2007.
13. We have perused the facts of this case, keeping in view more particularly the pleadings of the complainant, we are very much clear that, the complainant not raised any single objections with regard to execution of Ex.R-2, he not made any allegations either forgery or fraud played on him, while taking his signature on Ex.R-2. In view of the fact, whatever the submissions made by the learned advocate for complainant regarding Ex.R-2 as it is a forged document, signature of the complainant obtained without informing its contents are not taken into consideration accordingly we accepted Ex.R-2 as it was voluntarily signed by the complainant by surrendering the vehicle to the possession of opposite finance. In such circumstances, we are of the view that with great respect to their lordships of the Hon’ble Supreme Court, the facts stated by their lordships in the rulings referred above pertaining to use of force or musclemen or hiring gundas or high handedness of finance company for repossession of the vehicle was depreciated. In the present case, it is not a case of complainant that, opposite bank used musclemen or high handedness, or gundas or hiring persons for repossession the vehicle. Hence complainant utterly failed to prove this fact, there is no need for opposite finance to give prior notice in the said circumstances the rulings referred by the opposite supports this fact. The second part of the case of complainant is that, the vehicle was sold by illegal means, even though Ex.P-10 was served on the complainant. This fact is negativated by document Ex.R-3 valuation report of the approved valuer and independent surveyor and loss assessor, Ex.P-4 to Ex.P-7 are the quotations of the different persons for purchase of the said vehicle and Ex.P-8 is the document executed the purchaser. Ex.R-2 shows, the inventory report of the vehicle, Ex.P-10 is the sale notice, in such circumstances, we are of the view that the sale of the vehicle by the opposite finance is also not illegal, the rulings submitted by the learned advocate supports this fact, accordingly, we do not find any deficiency in service on the part of the opposite finance, accordingly we answered Point No-1 in negative.
14. In view of our finding on Point No-1, the complainant is not entitled for any one of the reliefs as prayed in his complaint, accordingly we answered Point No-2.
POINT NO.3:-
15. In view of our findings on Point Nos- 1 & 2, we proceed to pass the following order:
ORDER
This complaint filed by the complainant is dismissed.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 29-07-11)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
