BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 83/2007 Filed on 20.03.2007

Dated : 30.06.2009

Complainant :

Jayakumar, N.R.C Bhavan, Anakkodu, Vavara Ambalam, Pothencode P.O, Thiruvananthapuram.

(By adv. Mohammed Muhazin)

Opposite parties:

1. The Branch Manager, ICICI Bank, Sky Line Pointe, Opposite All India Radio, Vazhuthacaud, Thiruvananthapuram-14.

    

2. Arunkumar, Collection agent of ICICI Bank, Sky Line Pointe, Opposite All India Radio, Vazhuthacaud, Thiruvananthapuram-14.

This O.P having been heard on 12.05.2009, the Forum on 30.06.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

As per the hire purchase agreement between the complainant and with the 1^st opposite party ICICI Bank with respect of Bajaj Pulsar Motor Bike vide Reg. No. KL-01 AK 6778 owned by the complainant by way of issuing 36 guarantee cheques to the 1^st opposite party and as per the agreement the complainant regularly paid the cheque amount. First week of January 2007, it was informed from 1^st opposite party's office through 1^st opposite party's mobile that two payments during the month of November and December 2006 is due and complainant is liable to pay the dues. Again through a mobile call from No. 9349437879, the 2^nd opposite party introduced himself as Arunkumar, collection agent of ICICI Bank informed the complainant that the amount due should be paid in the Vazhuthacaud Branch office of ICICI Bank. On the basis of the telephone call the complainant came to 1^st opposite party's office premises at about 11 a.m on 15.01.2007. While the complainant reached the office premises the 2^nd opposite party came to the complainant and forcibly took vehicle and R.C. Book from the complainant. The request made before the 1^st opposite party to return the vehicle failed and 1^st opposite party compelled the complainant to pay full amount for return of the motor bike. The vehicle seized by 1^st opposite party forcibly and without permission from the complainant is illegal and arbitrary. The 1^st opposite party company again sent complainant's cheque for collection after the seizure of the bike. The illegal and forcible repossession from the part of the ICICI Bank caused very much loss and mental agony to the complainant. Quite immediately on the illegal repossession of the said vehicle by the opposite parties, the complainant informed his readiness to remit the defaulted amount. But quite contrary the 1^st opposite party did not heed the request of the complainant and on the other hand they illegally demanded full payment of the entire loan outstanding expenses and cost etc. to release this vehicle. The said act of the opposite parties amount to unfair trade practice which caused losses, damage, inconvenience and mental agony to the complainant. Hence this complaint.

In this case the 1^st opposite party is Branch Manager, ICICI Bank and 2^nd opposite party is the collection agent of 1^st opposite party. The 1^st opposite party accepted notice from this Forum, but did not turn up to contest the case. The notice against the 2^nd opposite party returned with the endorsement 'unclaimed'. Hence the opposite parties remain ex-parte. The complainant has filed proof affidavit and statement of account and has produced 10 documents which were marked as Exts. P1 to P10.

Points that would arise for consideration are:-

1. Whether there has been deficiency in service on the part of opposite parties?

2. Reliefs and costs.

Points (i) & (ii):- It has been the case of the complainant that the complainant had availed a loan from the 1^st opposite party to purchase Bajaj Pulsar Motor Bike vide Reg. No. KL-01 AK 6778. As per the loan agreement the complainant has to pay the entire loan amount in 36 instalments, each instalment amount would come to Rs. 1,537/-. For that remittance the complainant has given 36 cheques to the 1^st opposite party and the complainant regularly paid the amount till the 8^th instalment and thereafter there was delay in payment of 2 instalments. For that reason the opposite party forcibly taken the vehicle from the custody of the complainant by the 2^nd opposite party on 15.01.2007. The request made by the complainant before the 1^st opposite party to return the vehicle failed and the 1^st opposite party compelled the complainant to pay full amount for return of the motor bike. Again the 1^st opposite party sent complainant's cheque for collection after the seizure of the bike. The illegal and forcible repossession from the part of the opposite parties have caused much difficulties, loss and mental agony to the complainant.

To prove his contentions the complainant has filed proof affidavit and produced 10 documents. The affidavit filed by the complainant stands unchallenged. The opposite parties never turned up to contest the case of the complainant. The document marked as Ext. P1 is the copy of complaint filed before the Museum police station by the complainant dated 24.01.2007 about the illegal repossession of the vehicle. Ext. P2 is the receipt issued by the police station regarding the complaint. Ext. P3 is the copy of certificate of Registration. As per Ext. P1 name of registration owner is Jayakumar. R(complainant). Ext. P4 is the copy of bank pass book. This document is the evidence that the complainant has paid 8 instalments to the 1^st opposite party. Accordingly, the complainant had paid Rs. 12,296/- to the opposite party till 15.01.2007. Ext. P5 is the copy of advocate notice issued by the complainant to the 1^st opposite party on 30.01.2007 demanding to hand over the vehicle to the complainant and also pay Rs. 20,000/- as compensation for the illegal and forcible seizure of the vehicle. Ext. P6 is the postal receipt of the legal notice. Ext. P7 is the returned signed acknowledgement card of the notice by the 1^st opposite party. But the opposite party never responded to the notice and has not taken any steps to settle the matter. Thereafter on 20.03.2007 the complainant filed this complaint before this Forum and from this Forum notice was issued to the opposite parties. The opposite parties accepted the notice from this Forum, but never turned up to contest the case. Ext. P8 is the notice issued by the 1^st opposite party to the complainant dated 13.08.2007 i.e; while the case is pending before this Forum. In the letter the opposite party stated that as per the terms and conditions of the agreement, the opposite party has the right to repossess the vehicle if the complainant has committed default in payment and the opposite party agreed the repossession of the vehicle on 25.01.2007. In this case the complainant has produced a decision of the Hon'ble High Court of Kerala in Shibi Francis Vs. State of Kerala & another in WP(C) No.21411 of 2006(Y) decided on 11^th October 2006. In that case the Hon'ble High Court finds that the financier can repossess the vehicle only by lawful means and not by force. In this case the opposite party repossessed the vehicle unlawfully by force. Hence the act of the opposite party definitely amounts to unfair trade practice. The opposite party also stated in the letter that they had disposed the said vehicle for an amount of Rs. 24,000/- and the sales proceeds have been credited to the complainant's account. And also they stated in the notice that the complainant has to pay Rs. 2,058/- to the opposite party as balance of the loan amount. As per the opposite party the loan amount is Rs. 44,258/-. Through the letter the opposite party himself justified his illegal act. From the above discussion we have seen that the opposite party has disposed the vehicle while this case was pending before this Forum, definitely if there was any bonafide on the side of the opposite party, they should have come before the Forum and try to settle the matter or they can disposed the vehicle as per the permission of this Forum if it is justifiable. Ext. P9 is the copy of reply notice sent by the complainant to the opposite party. In the reply notice the complainant stated the entire facts. Ext. P10 is the postal receipt of reply notice. Even after that notice the opposite party did not come before this Forum. The act of the opposite party in disposing the vehicle while the case is pending before this Forum is against law and justice. They had sufficient time to settle the matter. The complainant was always ready to pay the balance dues, but the opposite parties did not consider his requests. The act of the opposite party definitely amounts to unfair trade practice and deficiency in their service. In this case as per the statement filed by the complainant he had paid Rs. 16,500/- as the initial payment of the bike and he had also paid Rs. 12,296/- to the opposite party as 8 instalments. The complainant had totally paid an amount of Rs. 28,796/- for the vehicle. The total amount to be paid for the vehicle is Rs. 66,833/-(1537x36+6000), out of which complainant paid Rs. 28,796/-. The complainant has used the vehicle only for 10 months even though he had paid Rs. 28,796/- for the vehicle. Due to the deficient service and unfair trade practice of the opposite party complainant has lost his right to get the ownership of the bike and has been deprived the use of the vehicle. As the matter stands as such we find that the complainant has already paid about half of the amount of the vehicle. Normally a bike can be used for about 10 years. Hence the complainant should have the right to use the vehicle for 5 years. Now the complainant has used the vehicle only for 10 months. Hence we are of the view that in the interest of justice it is reasonable to refund Rs. 20,000/- to the complainant by the opposite party. The complainant is also entitled to get compensation for the mental agony and sufferings which was caused due to the deficient service and unfair trade practice of the opposite party. Hence the complaint is allowed.

In the result the opposite party is directed to pay Rs. 20,000/- to the complainant and also shall pay Rs. 3,000/- as compensation and Rs. 1,500/- as costs. This Forum directed the opposite party to return the cheques to the complainant which were obtained from the complainant. Time for compliance one month from the date of receipt of this order. Thereafter the above said amounts shall carry 12% annual interest.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

C.C. No. 83/2007

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of complaint filed by the complainant before

Museum police station dated 24.01.2007.

P2 - Receipt issued by Museum police station dated 24.01.2007

P3 - Copy of Certificate of Registration.

P4 - Copy of bank pass book.

P5 - Copy of advocate notice issued by complainant to 1^st

opposite party dated 30.01.2007.

P6 - Postal receipt dated 30.01.2007

P7 - Acknowledgement card signed by the 1^st opposite party.

P8 - Notice issued by the 1^st opposite party to the complainant

dated 13.08.2007.

P9 - Reply notice dated 30.10.2007.

P10 - Postal receipt dated 01.11.2007.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT