CC Filed on 21.08.2008<br /> Disposed on 26.08.2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.<br /> <br /> Dated: 26th day of August 2009<br /> <br /> PRESENT:<br /> Sri. G.V.HEGDE, President.<br /> <br /> Sri. T.NAGARAJA, Member.<br /> Smt. K.G.SHANTALA, Member.<br /> ---<br /> <br /> Consumer Complaint No. 65/2008<br /> <br /> Between:<br /> <br /> <br /> Changappa,<br /> S/o. Late Muniyappa,<br /> Nellore Village,<br /> Duggasandra Hobli,<br /> Mulbagal Taluk,<br /> Kolar District.<br /> <br /> <br /> (By Advocate Sri. K.V. Shankarappa and others) <br /> <br /> <br /> <br /> V/S<br /> <br /> <br /> 1. The General Manager,<br /> M/s. I.C.I.C.I Bank Ltd.,<br /> ICICI Bank Tower,<br /> 6th Floor, Commissionarate Road,<br /> Bangalore – 01.<br /> <br /> <br /> <br /> 2. The Manager,<br /> ICICI Bank Ltd.,<br /> No. 37/1, Southend Road,<br /> Near D.C.P. Office,<br /> Basavanagudi,<br /> Bangalore - 04.<br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Complainant<br /> <br /> 3. M/s. Kamadhenu Tractors,<br /> M.B. Road,<br /> Near BESCOM Power Station,<br /> Kolar – 563 101.<br /> <br /> <br /> 4. Assistant Director of Agriculture,<br /> Mulbagal Taluk,<br /> Mulbagal,<br /> Kolar District.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Opposite Parties<br /> <br /> ORDERS<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite party No.1 to 3 to pay compensation of Rs.2,00,000/- towards the loss occurred due to illegal seizure of his tractor and trailer and to pay Rs.75,000/- paid by complainant towards down payment for purchase of tractor and trailer and to pay Rs.35,000/- towards legal expenses with costs and interest.<br /> <br /> 2. The material facts alleged in the complaint may be stated as follows:<br /> That the complainant is an agriculturist by vocation and he intended to purchase a tractor and trailer on loan. Therefore he approached OP.3 the dealer in tractor. OP.3 advised the complainant to approach OP.1 and 2 for loan facility. Accordingly the complainant approached the Area Supervising Agent Mr. Nagaraj working under OP.1 and 2. The Area Supervising Agent Mr. Nagaraj processed the loan papers. The complainant was sanctioned loan of Rs.2,05,000/- for purchase of tractor and loan of Rs.20,000/- for purchase of trailer on 12.02.2004. The complainant had to pay down payment of Rs.50,000/- and Rs.25,000/- for purchase of tractor and trailer respectively. The complainant paid the said amount of Rs.50,000/- and Rs.25,000/- to OP.3 on 29.11.2003 and 03.12.2003 respectively and obtained receipts. The loan was repayable in 12 quarterly equal installments commencing from 22.03.2004. The EMI towards tractor loan was Rs.22,465/- and towards trailer was Rs.2,190/-. The tractor and trailer loan was sanctioned under LAN No. LFKLR0000183765 and LFKLR00001837659 respectively.<br /> <br /> OP.3 delivered the tractor and trailer to complainant after receiving the consideration from OP.1 and 2. The said vehicle was registered before R.T.O Kolar on 17.01.2004 bearing Nos. KA-07-T-3869 & KA-07-T-3870 respectively. The said tractor and trailer were LMV, for which the complainant was entitled to subsidy from Agricultural Department of State Government.<br /> <br /> The complainant was using the tractor and trailer for cultivation of the land and with all difficulties he used to pay the installments to the Bank (OP.1 and 2). The complainant made the following payments:<br /> <br /> SL<br /> No. Amount Date Receipt Number<br /> 01 Rs.16,500/- 12.04.2004 1720911<br /> 02 Rs.8,157/- 09.05.2004 1720939<br /> 03 Rs.19,000/- 31.07.2004 2418796<br /> 04 Rs.5,534/- 13.10.2004 2731076<br /> 05 Rs.10,000/- 18.12.2004 3218856<br /> 06 Rs.10,000/- 17.01.2005 3218889<br /> 07 Rs.4,700/- 08.04.2005 0101689<br /> 08 Rs.15,000/- 22.05.2005 0499443<br /> 09 Rs.40,000/- 14.07.2005 0769252<br /> 10 Rs.5,000/- 04.08.2005 0769280<br /> 11 Rs.5,000/- 20.08.2005 0769295<br /> Total Rs.1,38,891/- <br /> <br /> It is alleged that inspite of above payments, OP.1 to 3 seized the tractor and trailer on 19.12.2005 without any prior notice or information to complainant. Further it is alleged that OP No.1 and 2 were reluctant to answer any of the queries and look into the matter and OP.3 colluded with the OP.1 and 2 and played all type of tricks. The complainant wondered many times to the office of OP.2 and OP.3, but nothing useful resulted.<br /> <br /> At the time of seizure of tractor and trailer the original R.C. book, insurance policy and tax payment receipts were in the tool box of the vehicle and the said documents were also taken away and inspite of it OP.1 and 2 were demanding the complainant to produce the said documents. The complainant obtained the duplicate of those documents by spending huge amount.<br /> <br /> OP.4 had sent two cheques for Rs.30,000/- each dated 02.03.2006 to OP.2 for adjustment of the said amount towards the loan account of complainant which was payable to him towards subsidy granted by Government. The complainant obtained the receipt dated 20.05.2006 for handing over the said two cheques to OP.2. It is alleged that OP.1 and 2 have not taken credit of these two cheques in the loan account and they did not reply whether these cheques were adjusted to the loan account or not evenafter issue of legal notice dated 12.06.2007 which was served on OP.1 and 2.<br /> <br /> It is alleged that the efforts of complainant to ascertain the balance due become in vain and he received a Pre Sale Letter dated 07.11.2007 addressed to him signed by Authorised Signatory, ICICI Bank Limited, 23B-5-93/1, First Floor, Savithru Complex, Beside Global Hospital, R.R. Peta, Eluru – 534 002 intimating that the loan cum hypothecation agreement entered into by complainant with ICICI Bank stood terminated with effect from 07.11.2007 and the record showed an amount of Rs.2,05,683/- was due towards full and final settlement of the outstanding amount with overdue charges at 24% p.a. and demanding the payment of the said amount and interest within 7 days from the date of receipt of the said letter to take delivery of the vehicle seized and in default the said vehicle would be sold. <br /> <br /> It is alleged that due to the illegal seizure of vehicle the complainant suffered loss more than Rs.2,00,000/- and he spent huge amount towards legal fees and for various visits to the office of OP.1 to 3 and OP.1 and 2 never acted as prudent financer and did not give the statement of accounts and simply went on illegally demanding the huge amount. Therefore the complainant has filed the present complaint on 21.08.2008.<br /> <br /> 3. OP.4 appeared in response to the notice. He submitted that issue of cheques for subsidy amount referred in complaint is true and correct and the said cheques were sent to OP.2 under covering letter dated 20.03.2006. Therefore OP.4 was asked not to appear in these proceedings as he was a formal party.<br /> <br /> OP.3 was served with notice, but he did not appear and did not file any version, therefore he was placed ex-parte. The notice issued through RPAD to OP.1 did not return. The notice sent to OP.2 through RPAD returned unserved for want of correct address and again the notice was sent through RPAD to OP.2 to the correct address furnished by complainant, but the acknowledgement of service was not returned. Hence the service of notice on OP.1 and 2 are taken as sufficient. They did not appear and did not file any version.<br /> <br /> After closure of these proceedings, the complainant was asked to find out the correct address of branches, which deal with tractor loan and the complainant furnished three names on 13.07.2009. These are (1) The Manager, Tractor Division, IInd Floor, EMCT, ICICI Bank, Bommanahalli Post Urban, Hosur Road, Bangalore – 68. (2) ICICI Bank Limited, Ground Floor, # 383/1, Old Soudha Ground, Kolar Road, Bangarpet – 563 114, Kolar District. (3) ICICI Bank Limited, 23B-5-93/1, Ist Floor, Savithru Complex, Beside Global Hospital, R.R. Peta, Eluru – 534 002, A.P. State. For all these three addresses notice were again sent through RPAD intimating the pendency of the present complaint and to appear and contest the case if required. The said notices were served and postal acknowledgements were received. In spite of it, none appeared to represent OP.1 and 2. Therefore the case is heard in absence of main contesting parties. <br /> <br /> 4. The complainant filed affidavit in support of allegations made in the complaint. He also filed the copies of documents available with him. We heard the Learned Counsel for complainant. <br /> <br /> 5. The following points arise for our consideration:<br /> <br /> 1. Whether the complainant has proved the deficiency in <br /> service by OP.1 and 2?<br /> <br /> 2. If Point No.1 is held in affirmative, to which reliefs the <br /> complainant is entitled to?<br /> <br /> 3. To what order?<br /> <br /> 6. After considering the records and the submissions of the complainant our findings are as follows:<br /> Point No.1: The main grievance of the complainant is that his tractor and trailer were seized by OP.1 and 2 with the assistance of OP.3 on 19.12.2005, without giving any notice or information and even subsequently OP.1 and 2 have never cared to reply his quires. These allegations are repeated in the affidavit of complainant. In the absence of any version by OP.1 and 2 we have no other go but to accept the said version of complainant. <br /> <br /> The documents produced by complainant discloses that ICICI Bank had granted loan for purchase of tractor and trailer as alleged in complaint and the loan was repayable in quarterly equal installments as alleged in complaint. The payment of Rs.1,38,891/- as claimed by complainant on different dates is supported by the various receipts produced by complainant. The payment of subsidy amount of Rs.60,000/- by way of two cheques issued by OP.4 is also properly proved by the documents produced by complainant. He has produced copy of the legal notice dated 12.06.2007 and the postal acknowledgement of service of said notice on OP.2 to the same address as given in the complaint.<br /> <br /> The seizure was effected on 19.12.2005. Before effecting the seizure seven quarterly installments had become due. The total EMI payable for those seven installments would come to (Rs.22,465/- + Rs.2,192/- = Rs.24,657/- x 7) Rs.1,72,599/-. In case there is delay in paying the installments some penal interest would be added to it. It appears on the date of seizure of the tractor and trailer at best the amount due was about Rs.40,000/-. Subsequently subsidy amount of Rs.60,000/- was received on 20.05.2006.<br /> <br /> The complainant submitted that he is not having a copy of loan agreement containing the terms and conditions of the loan. The duplicate R.C./I.C. relating to tractor and trailer shows that the said vehicle was either hypothecated or subjected to hire purchase agreement in favour of M/s. ICICI Bank Limited, ICICI Bank Tower, 6th Floor, Commissariat Road, Bangalore. We may assume that in case of default the said Bank has authority to seize the said vehicle as per the terms and conditions of the loan. Usually the agreement provides for issue of notice before such seizure. Even in the absence of any term in the agreement for issue of notice before seizure, natural justice requires that the defaulter should be given a notice before seizure. We have relied upon the decision cited in III (2007) CPJ 161 (NC) of National Consumer Disputes Redressal Commission, New Delhi between CITICORP MARUTI FINANCE LTD. V/s. S. VIJAYALAXMI. In this decision it is held that in case of hypothecation the intervention of Court is necessary and the creditor cannot seize the vehicle even if the agreement provides for seizure of the vehicle. Further it is held that even in case of hire purchase agreement providing authority for seizure for default in payment, the creditor cannot employ goondas to take possession of vehicle by force. It implies that the vehicle cannot be seized stealthily without the knowledge of debtor. A notice before seizure of the vehicle is necessary in any case. In the present case, the complainant has alleged that without any prior notice or information his tractor and trailer was seized and taken away. The seizure of the vehicle cannot be doubted in view of the pre-sale notice issued to complainant on behalf of ICICI Bank Limited. Therefore we hold that the seizure of tractor and trailer belonging to complainant without giving any notice is clearly illegal and accordingly we hold point No.1 in affirmative.<br /> <br /> Point No.2: The complainant has totally paid Rs.1,38,891/- towards payment of installments. He has also paid Rs.75,000/- towards down payment to OP.3 as part of the price of the tractor and trailer. Therefore total amount paid by complainant comes to Rs.2,13,891/-. Subsequent to the date of seizure the complainant could not make use of his tractor and trailer without any valid ground. In the above decision, it is held that the amount paid by complainant should be ordered to be repaid to him with interest apart from reliving him from the liability for any balance outstanding in the loan account. It is not known whether the cheques received towards subsidy amount were realized or not. Therefore we have not taken into consideration the payment of subsidy amount of Rs.60,000/-. Therefore we hold that an amount of Rs.2,13,891/- with interest should be ordered to be paid from the date of seizure till the date of realization to complainant. The complainant should also to be relived from payment of any balance outstanding in his loan account evenafter the adjustment of sale proceeds of tractor and trailer. Hence Point No.2 is held accordingly. <br /> <br /> Point No.3: For the above reasons we pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint is allowed with costs of Rs.1,000/-. OP No.1 and 2 shall pay Rs.2,13,891/- (Rupees Two Lakh Thirteen Thousand Eight Hundred and Ninety One only) to complainant with interest at the rate of 10% p.a. from 19.12.2005 till the date of payment. The complainant is relieved from his liability to pay the balance if any outstanding in the loan account of tractor and trailer maintained by OP.1 and 2. <br /> <br /> <br /> Dictated to the Stenographer, corrected and pronounced in open Forum this the 26th day of August 2009.<br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br />