::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.58/2017.
Date of filing: 05.09.2017.
Date of disposal: 31.10.2018.
P R E S E N T:-
(1) Shri. Jagannath Prasad Udgata, B.A., LL.B.,
President
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: 1. Syed Maqdoom S/o Syed Akbar,
Age:38 years, Occ: Business,
R/o H.No.25/185 Vaddar Galli,
Basavakalyan, Dist: Bidar.
( By Sri.P.M.Deshpande.,Adv.)
VERSUS
OPPONENT/S: 1) The Manager, Hinduja Leyland Finance Limited
Besides Syndicate Bank,
Haralayya Chowk, Basavakalyan-585327,
Dist:Bidar.
(By. Sri. S.Wilson., Adv.)
:: J UD G M E N T ::
By Shri. Jagannath Prasad Udgata, President.
The complainant has filed the present complaint u/s 12 of the Consumer Protection Act, 1986 against the opponent. The subject matter of the complaint is herein below.
2. That, he had availed finance from the O.P. to purchase Lorry No.MH25 B 9792 during the month of March 2015 and he has paid loan installments regularly till 25.01.2017.He claims to have been earning Rs.1,000/- per day plying the vehicle. When the complainant was out of station, the opponent seized the vehicle illegally, without informing or without sending any demand notice and has kept it in his custody since 17.04.2017. On the same day, the opponent had called upon the complainant to pay further amount of Rs.2,45,000/- within a period of three days, least the vehicle would be sold in auction. The complainant in his part had got issued a legal notice on 07.08.2017, expressing his readiness to settle the loan account on OTS basis. In turn, vide a reply date.14.08.2017 the opponent informed the counsel concerned that, the vehicle has since been sold and the proceeds having been adjusted towards the outstanding borrowings of the complainant, still he has to pay a sum of Rs.72,969/-. According to the complainant, his schedule of payment would have ended on 10.07.2017 and the opponent had no legal right to take possession of the vehicle and by the illegal seizure he has lost income of Rs.1,20,000/- and therefore he is entitled for compensation of Rs.2,00,000/-. Trying thus to justify his entitlements, he has prayed return of the vehicle, compensation of Rs.1,20,000/- towards loss of business and another Rs.2,00,000/- towards mental agony undergone by accepting the due amount of Rs.72,969/- by the O.P..
3. The opponent putting appearance through counsel has filed detail versions, in which the fact of extending financial assistance though admitted, the claim of complainant to have paid installments till 25.01.2017 has been denied.
4. The assertions of illegal seizure and retention of the vehicle from 17.04.2017, and that of demand of remittance a sum of Rs.2,45,000/- is also denied by the O.P.. It is claimed by the O.P. that under the terms of loan agreement, it is not obligatory to issue any written notice of seizure, rather a duty is casted upon the complainant to pay the E.M.I.s regularly. The complainants communication regarding O.T.S. (one time settlement) is not included in the concept of Opponent. The opponent further claims that contrary to the assumption of the complainant, the contract would not end on 10.07.2017 but on 21.12.2017 and the right to repossess the vehicle accrues on the day the borrower defaults in payment of E.M.I.. All other canvassments of the complainant has been denied by the O.P.
5. Going a further step ahead, the O.P. canvasses that, the loan agreement containing a clause of arbitration, this forum locks the jurisdiction. It is further claimed that, the complainant executing Loan Cum Hypothecation agreement is only a borrower and is not a consumer in terms of Section 2(1) (d) of the Consumer Protection Act, 1986. Further the loan having been availed to procure a Commercial Vehicle and the complainant being a commercial user cannot be termed as a consumer. Basing on the ground s urged as stated supra, the O.P. pleads dismissal of the case with compensatory costs.
6. Both sides have submitted documents as detailed at the end of this order, evidence affidavits and were heard in length.
7. Considering the pleadings of the parties, the following points arise for our considerations.
- Is this Forum competent to entertain this complaint?
- Was the opponent justified in seizing the vehicle without any written notice?
- Does the complainant prove deficiency of service and unfair trade practice?
- What orders?
8. Our answers to the points raised are as following:-
- In the affirmative.
- In the negative.
- In the affirmative.
- As per final orders owing to the following:-
:: REASONS ::
9. Point.No.1: The opponent has raised a big hoopla regarding the jurisdiction of this Forum taking plea of arbitration clause in the agreement and status of the complainant as a consumer. As far as the arbitration aspect is concerned, Section 3 of the Consumer Protection Act, confers an over whelming jurisdiction on this Forum, which spells out that, “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”. Hence the plea of the opponent on the fact of arbitration clause hold no water. That apart, the Hon’ble Supreme Court in Civil Appeal No.7543/2004- National Seeds Corporation Ltd. V/s M. Madhusudan Reddy and Anr. (D.D.16.01.2012) in para-22 of the judgement has been pleased to hold as follows:-
“The preamble of the Act declares that is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and matters connected therewith. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of the1986 Act shall be in addition to and not in derogation of the provisions of any other law for the time being from the statement of Objects and Reasons and the scheme of the1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the district, State and national level with wide range of powers vested in them. These quasi-judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non-compliance with their orders”.
10. As far as the status of the complainant as consumer is concerned, there is no serious dispute but subtle admission that, the complainant was plying the vehicle for livelihood, thus falling in the arena of explanation clause of Section 2(1) (d) of the Consumer Protection Act. Additionally, the term finance being included in the proviso of Section 2(1) (0) of the Act, unhesitantly we conclude that, the complainant is a consumer vis-a-vis the opponent. Hence, we hold the point No.1 in the affirmative.
11. Point No.2: None of the parties has filed the copy of the loan agreement concerning the loan. The complainant has submitted and account statement (copy) issued by the opponent, placed as Annexure-C herein, the veracity of which was never challenged by the opponent. From the said document is evident that, the complainant has paid margin money of Rs.2,10,000/- and as on 25.01.2017 has paid further sums of Rs.4,28,400/-, which means his total remittance was Rs.6,38,400/- as on 25.01.2017. There after also, on 01.07.2017 he has paid a sum of Rs.1,90,000/- on the same day another sum of Rs.49,500/- and then 03.07.2017 another sum of Rs.500/- thus evidencing total payment of Rs.8,78,400/-. As on the date of seizure he was supposed to remit 25 E.M.I.S calculated from March 2015 to April 2017. The sum involved was Rs.5,66,900/- (Rs.22,676x25). Whereas by 25.01.2017 total remittance made was Rs.6,38,400/- much more than the instalment dues. How at all then, the financier can claim default of payment?
12. Apart from that, the fact remains, no notice of default or seizure was ever issued by the O.P. but all of a sudden the seizure and a hurried auction sale has taken lace, transferring the object as a whole to an unnamed third party, on unknown date, against undisclosed price violating all tenants of law and conventions.
13. The complainants counsel has submitted case law reported in 2015(2) CPR 584(NC)- M/s Magna Fincorp Ltd. v/s Tikeswar Barik, in which the Hon’ble National Commission inPara 6 to 8 has been pleased to hold as follows:-
It is an admitted case that the vehicle in question was neither surrendered by the complainant to the petitioner company nor was it repossessed with his consent. No order from a competent court of law was obtained before repossessing the vehicle. As noted earlier, the vehicle was in use and goods were loaded on it when it came to be seize d by the agency appointed by the petitioner company for such purposes. Therefore, the seizure of the vehicle in the aforesaid manner was absolutely illegal and unjustified. If the vehicle is seized in such an manner, it is bound to cause tremendous harassment and mental agony to the owner of the vehicle besides damaging his reputation. Therefore, grant of appropriate compensation on account of such gross deficiency in service would be eminently justified.
Coming to the sale of the vehicle, no material has been placed on record by the petitioner company to show that the sale was duly advertised in the newspapers before the vehicle was sold though the petitioner claimed t have sent a notice to the complainant before selling the vehicle there is no proof of service of the said notice. A vehicle which was only about 21/2 years old at the time it was repossessed was allegedly sold by the petitioner company at less than one-third of the price for which it was acquired. This is yet another deficiency on the part of the petitioner company in rendering services to the complainant.
Considering the aforesaid gross deficiency I the services on the part of the petitioner company, award of compensation to the extent of Rs.3,20,000/- cannot be said to be unjustified or unreasonable in the facts and circumstances of this case. Consequently, no ground for interference with the order of District Forum on merits is made out.
14. Following the dicta of the National Commission, we hold that, the seizure and subsequent sale of the Motor vehicle was illegal, arbitrary, the opponent has taken law into his hands deplorably and hence answer this point accordingly.
15. Point No.3: Basing on the discussions supra, we hold this point in the affirmative.
16. Point No.4: As is revealed from the versions of the opponent, the vehicle has been sold to same unknown third party, albeit date and price fetched is no where disclosed. Therefore, to order the return of the motor vehicle to complainant, when the transferee is not before us, would be an exercise in futility. But, illegality having been perpetrated on the complainant, causing him to suffer mentally, financially and reputation wise. He has lost his money and also source of livelihood and deserves to be compensated for the liquidated damages, reasonably. Annexure-C projects that, over and above the margin money, he had remitted a total sum of Rs.6,68,400. Even the opponent without winking an eye, after seizure of the vehicle has receiver a sum of Rs.2,40,000/- on 01.07.2017 ad 03.07.2017. Therefore, we are of considered opinion that, the margin money be adjusted towards his enjoyment of usufructs of the motor vehicle, but the subsequent amounts paid by him be returned by the opponent with other conventional charge and hence we proceed to pass the following:-
ORDER.
- The complaint is allowed in part.
- The opponent is hereby directed to refund an amount of Rs.6,68,400/- to the complainant along with 12% interest p.a. calculated from the date of seizure i.e., 17.04.2017 till realisation;
- The opponent is further directed to pay a sum of Rs.50,000/- towards mental, financial loss and further loss of refutation;
- Litigation expenses of Rs.10,000/- be paid by the opponent additionally.
- Four weeks time granted to comply theorder.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 31st day of October 2018).
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Annexure.A- Copy of the R.C. Book (card) of Motor Vehicle No.MH
25 B 9792. - Annexure.B– Copy of ‘B’ register extract of the same vehicle.
- Annexure.C- Copy of statement of account in respect of the above
said vehicle. - Annexure.D–Copy of sale notice date.17.04.2017 issued by the
opponent. - Annexure.E- Office copy of the legal notice date.07.08.2017 issued
on behalf of the complaint. - Annexure.F- Reply to the legal notice date.14.08.2017.
- Annexure-G- Office copy of further legal notice of complainant
date.23.08.2017. - Annexures.H – Notice of A.R.T.O. Basavakalyan.
- Annexure.J- Copy of objections of complainant to A.R.T.O.
Basavakalyan date:23.08.2017. - Annexure-K- Copy of another objection of thecomplainat.
Document produced by the Opponents.
- Annexure.R.1- Copy of instrument of special Power of Attorney.
Witness examined.
Complainant.
- P.W.1- Syed Maqdoom S/o Syed Akbar (Complainant).
Opponent.
- R.W.1- Sri. Mallikarjuna Hadgalli S/o Goudappa Assistant Credit
Manager of Opponent.
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
