BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.471 OF 2011 AGAINST C.C.NO.89 OF 2009 DISTRICT FORUM
ADILABAD
Between:
Meenam Agaiah S/o Balaiah
aged 47 years, Occ: Business
R/o H.No.5-634, Indiranagar
Mancherial, Adilabad Dist.
Appellant/complainant
A N D
The Finance Manager
Mahindra and Mahindra Financial Services
Branch: Mancherial, Bellampalli Road
Mancherial, Adilabad district
Respondent/opposite party
Counsel for the Appellants M/s C.Raghu
Counsel for the Respondent M/s V.Mohan Srinivas
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
THURSDAY THE SECOND DAY OF AUGUST
TWO THOUSAND TWELVE
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The unsuccessful complainant is the appellant. The District Forum dismissed the complaint on the premise that he was irregular in paying the loan installments and he fell arrears of `29,255/-.
2. The appellant purchased Indica car bearing registration number AP 9 TV 5401 and hypothecated the vehicle with the respondent company at the time of availing loan from it. On 7.06.2009 the appellant had sent the vehicle for its repairs and at the time the staff of the respondent company had taken away the vehicle. The appellant got issued notice to the respondent to release the vehicle. The vehicle was in running condition at the time of repossession of it by the respondent and the appellant gave it on hire to Khaja Rafiquddin on a monthly rent of `15,000/-. The repossession of the vehicle said to have caused mental tension and loss to the appellant.
3. The respondent resisted the claim on the premise that the appellant obtained loan on 5.10.2007 and he failed to pay installments regularly. He paid 15 installments and fell due 9 installments. Every installment was to be paid on or before 5th of every month. After the vehicle was seized, the appellant was given plenty of opportunity and as he did not pay the amount, the respondent sold the vehicle in auction to M.Dheeraj Kumar for `53,000/- and after adjusting the sale consideration of the vehicle the appellant was found due an amount of `11,884/- and loss for the same amount was caused to the respondent. The respondent acted as per the terms and conditions of the agreement and there was no deficiency in service on the part of the respondent.
4. The appellant, in support of his case, filed his affidavit and the documents, ExA1 to A13. On behalf of the respondent, neither affidavit nor documents were filed.
5. The complainant has filed appeal contending that the District Forum failed to consider that the appellant had not surrendered the vehicle to the respondent company and the respondent had seized the vehicle without issuing notice to him and that non-denial of the pleadings of the written version of the respondent does not amount to admission.
6. The point for consideration is whether the order of the District Forum is vitiated by misappreciation of facts or law?
7. The appellant purchasing the vehicle Tata brand car bearing number AP1 TV 5401 and its hypothecation to the respondent company on his availing loan from it are not disptued. The first installment commenced from 5.10.2007 and the last installment on 5.09.2009. The plea of the respondent company is that the appellant has been irregular in making payment of the installments. In paragraph 2 of the written version, the period during which the appellant fell due is stated as under:
The complainant has paid 1st installment on 8.10.2007 and 2nd installment on 19.11.2007 and for the 3rd installment he has submitted a cheque bearing NO.120354 which was dishonoured and later on 8.12.2007 he made payment of the cheque and later he has paid 4th installment on 5.1.2008 and 5th installment on 11.2.2008, 6th installment on 3.4.2008, 7th installment on 30.04.2008 and 8th installment on 5.6t.2008 and later he failed to pay installments and on 5.11.2008 he has paid an amount of Rs.11,700/- towards 9th and 10th installments and further committed default in payment on 17.01.2009 again he has paid Rs.11700/- towards 11th and 12th installment later on 26.2.2009, 31.3.2009 and 22.4.2009 he has paid 13, 14 and 15th installment prior that on 31.3.2009 he has submitted another cheque for Rs.5850/- bearing No.609058 which was also dishonored by his bank and last installment he has paid on 22.4.2009 and till the date of seizure of the vehicle he fell due of Rs.29,225/- and in spite of several reminders notices he failed to pay the remaining amount and ignored the intimation of the opposite party.
8. The appellant addressed letter dated 22.04.2009 bringing it to the notice of the respondent the fact of depositing 12 cheques and requested the respondent to accept the payment of the amount through its field officer as also requested the respondent company to inform him the amount due making it clear that he would pay the amount subject to the respondent furnishing the particulars of the amount due. As three was no response from the respondent-company to the letter, the appellant got issued notice on 22.07.2009 claiming an amount of Rs.50,000/- as damages for forcible seizure and utilizing the vehicle by the respondent company.
9. The learned counsel for the respondent company has contended that the respondent is authorized to repossess the vehicle on default committed by the appellant . He has relied upon the decision of the National Commission in “Mahindra and Mahindra finance Co.Ltd vs Sankatha Prasad and others” IV (2011) CPJ 359. The Hon’ble National Commission held the financier to repossess the vehicle on issuing notice to the borrower. It was held that:
It is not disputed before us that as per agreement entered into between the parties, in case of default in paying the loan amount as per agreement, Petitioner was authorized to re-possess the vehicle after notice to the borrower and sell the same. Petitioner had re-possessed the vehicle after issuing three prior notices to the Respondent and sold the same after issuing the pre-sale notice to the Respondent. The State Commission has committed factual error in coming to the conclusion that the Petitioner had re- possessed the vehicle without issuing prior notice to the Respondent. The finding recorded by the State Commission being contrary to the evidence, is set aside. Respondent was admittedly a defaulter and the Petitioner had re-possessed the vehicle in terms of the agreement entered into between the parties.
10. In the case on hand, the respondent-company has not issued notice to the appellant before repossessing the vehicle. Though it was contended that the appellant surrendered the vehicle, the fact remains that the respondent had repossessed the vehicle from the garage where it was taken for repairs. Thus, it cannot be said that the appellant surrendered the vehicle to the respondent-company. On the other hand the respondent had repossessed the vehicle without issuing notice to the appellant.
11. The respondent sold the vehicle for an amount of `53,000/-. The auction proceedings or any other record has not been placed on record. The respondent had not issued pre-sale notice giving opportunity to pay the arrears and on his failure to clear the due to witness the sale proceedings so that he would be satisfied with the transparency of the proceedings. At every stage beginning from the repossession of the vehicle till it was sold, the deficiency in service is seen on the part of the respondent-company. The respondent had disposed of the vehicle for meager amount.
12. In view of the respondent company taking hasty steps in repossession and sale of the vehicle, the appellant could have felt mental tension as also he had suffered loss. The respondent company is liable to pay an amount of `50,000/- towards compensation from which a sum of `11,884/- is to be deducted as the installments due from the appellant.
13. In the result the appeal is allowed setting aside the order of the District forum. The opposite parties directed to pay an amount of `38,116/- and `3,000/- towards costs. Time for compliance four weeks.
MEMBER
MEMBER
Dt.02.08.2012
KMK*
