Andhra Pradesh

Nellore

CC/26/2014

Menati Sivaiah - Complainant(s)

Versus

The Manager L and T Finance Limited. - Opp.Party(s)

P.Ramakrishna

31 Jul 2015

ORDER

           Date of Filing     :24-04-2014

                                                                                                Date of Disposal:31-07-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Friday, this the 31^st  day of July, 2015

 

PRESENT: Sri M. Subbarayudu Naidu, B.Com.,B.L.,LL.M.,President(FAC) & Member                             

                   Sri N.S. Kumara Swamy, B.Sc.,LL.B., Member.

 

C.C.No.26/2014

 

Menati Sivaiah, S/o.Chenchaiah, Hindu,  R/o.3/19,

Sivalayam Street, Kothuru Village,

Indukurpet (Mandal), S.P.S.R.Nellore District, A.P.                                     ..… Complainant       

 

                                                                           Vs.

 

1.	The Manager, L & T Finance Limited, Venkata Reddy Nagar, Near Ayyappa Gudi Center, Vedayapalem, Nellore-524 004.
2.	Manager, L & T Finance Limited, L & T House, Ballard Estate, Mumbai-400001.                       ..…Opposite parties

                                                              .  

            This complaint coming on 16-07-2015 before us for hearing in the presence of  Sri P. Ramakrishna, advocate for the complainant and  Sri T.V. Srinivasa Rao, advocate for the opposite party No.1 and notice served to opposite party No.2 and called absent  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

(ORDER BY  Sri M. SUBBARAYAUDU NAIDU,PRESIDENT(F.A.C.)

 

            This Consumer Case is filed by the complainant against the opposite parties 1 and 2 to direct them to pay the value of the lorry of Rs.3,63,090/- with interest @ 12% p.a. from the date of complaint (24-04-2014) till the date of realisation; to pay compensation of Rs.2,00,000/- to the complainant on account of the harassment towards him  by the 1^st opposite party  since one year and to pay costs of the complaint of Rs.10,000/- for prosecuting the case and pass such other relief or reliefs as the Hon’ble Forum may deemed it fit and circumstances of the case in the interest of justice.

Factual  matrix leading to filing of this Consumer Case  is as stated hereunder:

I.	It is the case of the complainant that he took a loan of Rs.3,39,000/- from the 1st opposite party under hypothecation of agreement NoKGB 121047R1100448535,                              dated 21-12-2011, the chasis number of the lorry is MB1AA22E2BRC02452 and the engine No.CBH002544P and the unladen weight of the vehicle is 1250 Kgs.(Mini Lorry).
(b)	It is also further submitted by the complainant in paras 4 to 9 of his complaint that the complainant had paid Rs.87,195/- towards loan payment to the 1st opposite party at the time of delivery of the mini lorry to the complainant.  He had purchased it (lorry-Dost LS Blue Color) for his members livelihood.  The registering authority, Nellore, had made registration to the said vehicle on 02-02-2012 and it was allotted the registration number as AP 26 TA 9405.  He had  provided to the opposite parties several post-dated cheques  apart from the said down payment to the opposite parties.  He had paid Rs.1,86,940/- towards  instalments that includes the said down payments on 15-02-2012; 16-04-2012, 20-06-2012  and also on 16-07-2012. Again, he had  paid Rs.27,000/- on 18-12-2012 and Rs.12,000/- on 27-08-2012.  Thereafter, due to his ill-health, he is not able to pay further instalments and it had been informed to the 1st opposite party and 1st opposite party had permitted him for payments of the instalments lateron.
(c)	It is also further submitted by the complainant that in paras11 to 13 of his complaint that while so, when the driver of the lorry,  had kept it on by the side of  the road and he had went to attend the nature  call on11-01-2013 but the said lorry was missed from its  place and lateron he was immediately informed it to the same to the 1st opposite party.  But to his surprise, the 1st opposite party had informed that the 1st opposite party had seized the said lorry on account of the non-payment of the instalments by him.  At the time of the seizng of the lorry, it was loaded with coconuts which were worth more than Rs.20,000/-.  As he is depends entirely on the said lorry’s  income for his livelihood and subsequently he had made an enquiry about it on the next day i.e., on 12-01-2013 and visited the 1st  opposite party’s office for payment of the rest of the instalments.  But the 1st opposite party had not shown the said vehicle to the complainant.  By that time, 1st opposite party had collected Rs.1,66,940/- towards instalments from him.  As the 1st opposite party had not shown the said vehicle to him and thereby he could not able to pay the rest of the instalments to the 1st opposite party.
(d)	It is also further submitted by the complainant in paras 14 to 15 of his complaint  that it is the mandatory duty costs upon the 1st opposite party to give  notice to the complainant at least 15 days before the seizure of the said lorry.  But 1st opposite party had  not given any notice and seized the said vehicle, when it was on the duty to customers and the acts which were done by the 1st opposite party was against   the principles of Natural Justice.  On enquiry, the complainant had  came to know that the 1st opposite party had sold away the said vehicle to third party that too without giving notice to him.  The said vehicle was worth of Rs.3,63,090/- according to insured declared value was given by the complainant in the insurance coverage.  Because of the acts of the 1st opposite party for  seizing  the said vehicle and sold it, to third party, the complainant had underwent of a lot of mental tension and worry because he had already paid Rs.1,86,940/- to the 1st opposite party and also he had lost his livelihood for him and his family members.  In view of such acts, the 1st opposite party had to pay the value of the said vehicle and also entitling him a compensation of Rs.2,00,000/- on account of harassment towards him since one year by 1st opposite party.
(e)	It  is also further submitted by the complainant in para 17 to 19 of his complaint that he had sent  legal notice dated 18-10-2013 to the 1st opposite party with all the details.  For that, 1st opposite party had not sent any reply to him and kept quite for all these four months.  Because of the said acts by the 1st opposite party, he had  lost his customers, business and on the other hand  at the time of seizing of the said vehicle, it had goods in it and owner of them had got loss and the said owner had brought pressure on him for payment of the costs of the goods i.e., coconuts load.  In view of the  circumstances and facts of the case, there is no other go for the complainant except to file the complaint against  opposite parties 1 and 2 before the Hon’ble Forum to redress his grievances.  Hence, the complaint.

 

II DEFENCE:

 

(a)	The complaint was resisted by opposite parties 1 and 2 by filing written version that all the averments which are made in the complaint are not true and correct and the complainant is put to strict proof of the  all the averments that are not specifically admitted.  The complaint itself is not maintainable either in law or on facts.
(b)	It is also further submitted by the opposite parties 1 and 2 in para 2 of their written version that it is not true to say that the complainant had paid Rs.87,195/- towards down payment to the 1st opposite party at the time of delivery of the mini lorry.  It is true that cost of the vehicle is Rs.3,99,900/- and this opposite party  had sanction loan of Rs.3,39,000/- balance of Rs.60,900/- paid to the Dealer of Shree Bhargavi Automobiles  towards margin money for purchase of Ashok Leyland  Dost LS vehicle.  The complainant had issued post dated cheques for payment of EMIs and  no blank signatures were obtained by this opposite party which was all  false and frivolous allegations
(c)	It is also further submitted by the opposite parties 1 and 2 in para 3  of their written version that the allegations  which are made by the complainant that due to his illhealth he is not able to pay  future instalments  and same has been informed to 1st opposite party and 1st opposite party has given time for the payment of instalments;  At the time of seize of the vehicle loaded with coconuts   which worth more than Rs.20,000/- and complainant is entirely depending upon the lorry for his lively hood; The 1st opposite party  sold away the vehicle to the 3rd party  that too without giving notice are all false and denied by this opposite party line by line.
(d)	It is also further  submitted by the opposite parties 1 and 2 in para 4 of their written version that the complainant had never approached this  opposite party nor issued any letter about in his inability to pay the instalments nor rescheduled his instalments.  This opposite party waited several  months for payment of instalments.  As per clause  2 of the Loan  Agreement  the complainant and his guarantor are liable to repay the said loan and interest thereon by way of instalments to the opposite parties  on the respective due dates as per repayment schedule and as per clause 6 (b) & (c) of the Loan Agreement they have hypothecated and charged the said financed vehicle in favour of opposite party towards the amount payable as per loan agreement.  As per clause 2.5  of the Loan Agreement provides that the complainant shall be liable to pay interest @ 36% p.a. on the defaulted amount to the company as on the 1st  day of every month in case the complainant fail to pay the instalments.  As per clause 12 of Loan Agreement if any dispute, difference and claims shall be deemed to have arisen  same shall   be referred to arbitration.  Hence, this Forum has no jurisdiction to  entertain the complaint requested to reject  the complaint in view of Arbitration clause.
(e)	It is also further submitted by the opposite parties 1 and 2 in para 5 of their written version that the complainant had paid seven instalments subsequent to that 8th instalment was schedule on 15th September, 2012  but it was paid on 18th December, 2012,  where three  months delay; 9th instalments is on 15h October, 2012 but the complaint paid on 18th December, 2012, where two months delay, after that he has not paid instalment to the opposite party.  Except the above eight instalments the complainant did not paid even single instalment till  repossession of the financed vehicle by the opposite party.
(f)	It is also further submitted by the opposite parties 1 and 2 in para 6 of their written version that the complainant had  failed and neglected to make the payment of  arrears despite repeated  demands and reminders.  The complainant debt is long overdue.  In view of the fault conducted  by the  complainant, the opposite party repossessed the said vehicle on 12th March, 2013.  The opposite party  further states that as of date of re-possession of the vehicle there were a total of six instalments i.e., Rs.65,804/- were due in the complainants  account.
(g)	It is also further submitted by the opposite parties 1 and 2 in para 7 of  their written version that after following  due course the opposite party had taken possession vehicle on 12-03-2013.  After  repossession no one came forward for release of the vehicle either by customer or guarantor.  There is no positive response from the side of the complainant to regularize or repay the outstanding loan amount and in order to minimize the loss, the opposite party sold the vehicle  after 138 days  at the best quoted price of Rs.2,05,000/- (Rupees two lakh five thousand  only) on 30th July, 2013.   The opposite prty further stated that despite the sale of the vehicle and appropriation of the net sale proceeds, a sum of Rs.1,02,599/- (Rupees one lakh two thousand five hundred and ninty nine only) is still due from the  complainant.
(h)	It is also further submitted by the opposite parties 1 and 2 in paras 8 to 10 of their  written version that the complainant is not a consumer as defined under Section  2 (1) (d) (i) of the  Consumer Protection Act, 1986.  Hence this complaint should not  be entertained by this  Hon’ble Forum and should be dismissed in limine as per Section 2 (1) (d) (i) of the Consumer Protection Act, 1986 “Consumer” means any  person who, buys any goods for a consideration which has been paid or promised or  partly paid and partly promised, or under any system of deferred payment and  includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system  of deferred payment when such use  is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose.
(i)	That the definition of “Consumer” under the Act  has clearly excluded such person who uses the goods purchased by them or services  availed by them for any commercial purpose.  This complainant has purchased two heavy load lorries which is run commercially and instead of these two vehicles the complainant and her guarantor is having another six to seven vehicles running  commercially.  While excluding certain person from the definition of ”Consumer”,  the legislature have not qualified the use of goods  or availing of services by such person  for specific commercial purpose  and in the absence of any restriction, the ambit of any commercial purpose will engulf the use  of goods   or availing  of services for all purposes; no  matter it is the main or incidental activity of such person that is associated with the commercial purpose.  In the instant case  the two lorries were purchased by the complainant for being used commercially.  Hence, any attempt by the complainant to take shelter under the Consumer Protection Act, 1986 is unacceptable and therefore the complaint is not maintainable.
(j)	The  complainant has been working as a driver  at Narayana Medical College Hospital, Nellore, the opposite party is here with filing certificate issued by said hospital showing that they are issuing salary of Rs.6,000/- p.m. The vehicle financed by the opposite party is being run by a driver appointed by the complainant and income is earned by plying  the vehicle commercially. The complainant’s main lively hood is  as an employee in the above said hospital.  Hence, the complaint is not maintainable in view of commercial nature.

 

(i)   It is also further submitted  by the opposite parties 1 and 2 in para  11 of their written

       version that he had prayed  in the complaint that to pay Rs.2,00,000/- towards compensation

       for the mental and physical agony suffered by the complainant which are false and denied by

       the opposite party that there is no mental agony nor physically suffered  by the complainant. 

       The opposite party suffered mentally, physically and monetarily by the opposite party due to

      loss caused to this opposite party. The insurance policy was lapsed and no consideration

      given to value of insurance lapsed.

 

(j)   There are no causes of action to file the complaint by the complainant before the  Hon’ble

       Forum.  This Hon’ble does not have jurisdiction as no cause of action arises under

       Consumer Protection Act, 1986 and the complainant has approached this Forum to avoid

       recovering their outstanding amounts as per the  terms  and conditions of the loan 

       agreement.  These opposite parties 1 and 2 are prayed that the Hon’ble  Forum may be

       pleased to dismiss he complaint with exemplary costs.

 

III.  The complainant had filed his chief-affidavit filed on 21-10-2014 and the documents which are marked as Exs.A1 to A11 on his behalf, whereas the chief-affidavit  had been filed by the opposite parties 1 and 2 through legal officer namely Mr.A.Siva Ganesh Babu, Vijayawada came to Nellore and marked on their behalf of as Exs.B1 to B10.  Both the counsel for the parties have filed their written arguments in support of the case.

 

IV.  Basing on the material available on record, the points that arise for determination are namely:-

(a)	Is there any deficiency in service on the part of the opposite parties towards the complainant?
(b)	Whether the complainant is entitled the reliefs as prayed for, if it is so,  to what extent?
(c)	To what relief?

            V)        POINTS 1 AND 2:   These two points 1 and 2 are inter-related and dependant with each other of them and in order to give finality to a decision, we have  takenup  together for discussion.

 

            (b) The learned counsel for the  complainant Sri.P. Ramakrishna has vehemently argued that without giving prior notice to the complainant, the opposite parties 1 and 2 are seized his vehicle and put him much hardship and mental agony.  He has also argued that the complaint, an affidavit of the complainant and the documents which are marked on his behalf of, may be read as part and parcel of his oral arguments. He has once again reiterated the facts of the case and stressed much that the decision of the Hon’ble National Commission in the case of Citicorp Maruti Finance Limited Vs. S.Vijayalaxmi  reported in III (2007) CPJ 161 (NC) held that in a case  when the vehicle was repossessed by use of force and, thereafter, sold without informing the complainant, in our view, it would be unjust to direct the consumer to pay the balance amount, as alleged by the financier to be outstanding.  If such a relief is given to the money lender / financier, it would be unjust enrichment to the money lender and against equity.   

 

            (c)        The said learned counsel for the complainant that he has once again urged that the written arguments of complainant may be read as part and parcel of his oral arguments.  He has also further contended that the opposite party has not observed the auction proceedings.  The opposite party has not clarified the names of the bidders and the amount deposited by them before bidding.  It is not mentioned   either in the affidavit or in the version / counter about the name of the paper in which they have given publication for  auction of the said vehicle.

 

            (d)       The opposite party has not mentioned the name of the auction winner and the proceedings given by the opposite party to the auction winner.  The opposite party has not filed the paper publication before auction of the said vehicle.  The procedure of ingredients of the auction have not followed by the opposite party, so the opposite party sold away the vehicle with meager value to harass the complainant and also the opposite party has not returned the amount of Rs.1,86,095/-  paid by the complainant with interest.  As the opposite party deliberately sell away the said vehicle and harassed the complainant.

 

            (e)        The person who purchased a vehicle for his livelihood he is a consumer.  The opposite party shall pay the value of the vehicle of Rs.2,00,000/- along with cost of Rs.10,000/-.

 

            (f)       It may be mentioned that the Supreme Court in Skypack Couriers Limited Vs. Tata Chemicals Limited  made notable observations in para 2 and 5  as under:

“1………….

  2………….In the  absence of any provision in the Act itself, authorizing the Commission to refer a pending proceeding before it, on receipt of a complaint form  a consumer, for being settled through a consensual adjudication, the conclusion is irresistible that the Commissions under the Consumer Protection Act  do not have the jurisdiction to refer the dispute for a consensual adjudication and then make the said decision of the so-called consensual arbitrator, an order of the Commission itself.  Even if there exists an arbitration clause in an agreement  and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency , constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time bearing in force……

 

5……..Section 22 of the Consumer Protection Act provides that the Commission shall have the powers of a Court.  These powers would include the power   to call for documents and take evidence either by itself or on Commission.  However, the final adjudication has to be by the Commission.  For purposes of this Order we will presume, without  laying down any law in this behalf that the Commission may even refer  disputes  to Arbitration / Consultation However, such reference to Arbitration could only under the provisions of the Arbitration Act, 1940 or the Arbitration  and Conciliation Act, 1996.  There is no provision in law and we consider it an ‘unhealthy practice for Courts/Commission/Tribunal. For an effective adjudication the Commission/Court must address itself to the evidence, documents, respective case of the parties, including submissions on their behalf and then give a finding on that basis…..”

 

(g)        Finally, he has  further contended that the complainant had purchased the said vehicle for his livelihood and to safeguard welfare  of family member.  He has also prayed the Hon’ble Forum may please to allow the complaint with costs.

 

            (h)        On the other  hand Sri T.V. Srinivasa Rao, the learned counsel for opposite party No.1 has also vehemently argued that the complainant availed the said vehicle loan of Rs.3,39,000/- for the purchase of it for which he had executed an agreement of repayment of Rs.4,30,560/- and thereafter he had paid 7 instalments  and thereafter committed default.  He has also further contended that the written version, an affidavit and written arguments of the opposite party may be read as part and parcel of his oral submissions.

 

            (i)         The said learned  counsel for the 1^st opposite party  has further  argued that after due intimation to the complainant, had seized the said vehicle on irregularities of the  repayment outstanding and having no other go to opposite party, sold the said vehicle nearly after 4 ½ months from the date of seizure for a sum of Rs.2,05,000/- and adjusted the same amount to the account of the complainant on 30-07-2013, even then still the complainant  is in outstanding to opposite party for a sum of Rs.1,02,599/- which is also duly intimated to the complainant.   His further contentions  are that the complaint had used the said vehicle for commercial purpose but not individual purpose and even if it is individual purpose, the complainant cannot fell any arrears to the opposite party.  So, the matter is referred to an arbitrator Sri Sankaranarayana  in Arbitration proceedings and  also awarded in favour of the opposite party.

 

            (j)         In this connection, the said learned counsel for opposite party No.1, to fortify his submissions, had relied on Hon’ble A.P.State Commission citation in F.A.No.1612/2008 by saying that it is clearly debars the jurisdiction of Consumer Protection Act, 1986 and that the Consumer District Forum has no jurisdiction to entertain this case where the vehicle used for commercial purpose and already arbitration proceedings  are initiated.  Further more, he has also referred the documents Exs.B1 to B10 may be read as part and parcel of his oral arguments and in the light of observation of Hon’ble A.P.State Commission and  prayed  that the Hon’ble Forum may pleased to dismiss the complaint with costs.

Forum’s Findings  and Observations

 

            (k)        Heard, the said learned  counsel for both the parties and perused the record very carefully.  Oral submissions of the  case are made by the said learned counsel for their parties.  Parties led their evidence by filing the affidavits   and the documents respectively.

            (l)         To understand the controversy in this Consumer Case, we will briefly discuss the factual matrix, which for the sake of brevity is limited to the facts extracted from the pleadings and it is stated as hereunder:-

Initially, after making an application dated 27-12-2011 with the opposite parties  by the complainant to purchase the said vehicle Ashok Ley Land Dost LS, he  had executed loan cum Hypothecation agreement as a borrower and his father signed as a guarantor with the opposite parties  bearing agreement No.KGB 121047R1100448535, sanctioned a loan of Rs.3,39,000/- on 30-12-2011

 

Facts of the case are described as per the documents filed by the parties:

(m)       The document (Exs.B1) and as per the agreement, the complainant has to pay an amount of Rs.4,30,560/- including  interest at  9% p.a. within 36 equated monthly instalments @ Rs.11,960/- each.  The complainant had  also paid  Rs.60,900/- as margin money according to (Exs.B1) document.  The  delivery order dated 30-12-2011 for the said vehicle by the opposite parties to the complainant as per (Exs.B2) the document with regard to (Exs.B3) the document, all the details of  opposite parties finance to the complainant, relating to the said vehicle, are clearly mentioned in it.  According to the repayment schedule of the opposite parties is mentioned in the document (Exs.B4) i.e., due instalment amount is payable of Rs.11,960/-from 05-12-2012 till 05-01-2015 by the complainant to the opposite parties regularly.  The complainant was worked as a driver of Narayana Medical College Hospital since 30-06-2010 to till date 24-12-2011 as per (Exs.B5).  So, the complainant was worked as  a driver prior to the sanction of the loan, it is crystal clear  according to the document (Exs.B5).

 

            (n)        While so, the opposite parties  have served a notice dated 13-01-2014  to the complainant  and his father asking  them to pay Rs.1,02,599/- as per the document (Exs.B6).  Thereafter,  a letter  dated 23-01-2014 of an Arbitrator (Exs.B7) and subsequently an award was passed by an Arbitrator dated 2^nd April, 2014 (Exs.B8).  The statement of account particulars are mentioned   in  (Exs.B10) the document dated 03-01-2015.  According to the opposite parties, it is mentioned in para 7 of their written version that after following due course, they and taken possession of the said vehicle on 12-03-2013.  There is no any such document stating that prior notice before possession and sale of the said vehicle on the file to the complainant whatsoever, for the reasons best known to the opposite parties.   It is  against law.  As per the marked  documents on behalf of the complainant  are,  that the complainant had paid a premium of Rs.18,255/- for the said vehicle to the National Insurance Company Limited for the period from 29-12-2011 to  28-12-2012 (Exs.A6).  The details of the instalments, payments are mentioned in (Exs.A7), the document apart from payments are made by the complainant and they are  in the receipts issued by the opposite parties to the complainant that from time to time i.e., they are as follows:

 

S.No.	Date	Receipt No.	Amount
1.	18-12-2012	22970 1148480	Rs.26,000.00 (Exs.A2)
2.	18-12-2012	1148481	Rs.1,000.00(Exs.A3)
3.	27-08-2011	0612934714	Rs.12100.00(Exs.A4)
4.	10-11-2011	-20-	Rs.10,000.00(Exs.A8)
5.	29-12-2011	-132-	Rs.77,195.00(Exs.A9)
Total:			Rs.1,26,295.00

 

According to the complainant’s

Andhra Bank’s Statement of Account-Particulars (Exs.A7)

 

S.No.	Date		Amount
6.	15-02-2012	- 1st instalment	Rs.11,960.00
7.	16-04-2012	Subsequent instalments	Rs.11,960.00
8.	27-05-2012		Rs.11,960.00
9.	14-06-2012		Rs.11,960.00
10.	08-07-2012		Rs.11,960.00
Total:			Rs.60.700.00

 

Both entries in receipts and as well as  entries pass book      Rs.1,26,295.00

                                                                                            +          60,700.00

                                          Grand total:                                   Rs.1,86,995.00

 

Initial payment towards margin amount accepted by opposite party in the

Hypothecation agreement                                                                               :  60,900

 

Towards Insurance Premium amount of Rs.18,255                                      : 18,255

                                                                                                Total:              Rs.79155

 

So, it can be said  that the complainant  has paid Rs.2,47,895/- to the opposite parties towards the above said vehicle from different dates till today.  But, he had used the said vehicle less than a year.  There is a gap of 4 months as per 1^st opposite party’s admission of a fact that the  date of seizure of the vehicle and auction date, but  1^st  opposite party  had not sent a letter to the complainant for the reasons best known to the 1^st opposite party.

 

(o)  Lapses on the part of  opposite parties  towards the complainant:

 

1.	There is no prior notice before auction of the said vehicle, issued to the complainant for the    reasons best known to the opposite parties.  There is no procedure of law adopted by opposite parties and also repossession of the vehicle from the complainant within a year of purchase of the said vehicle by him from them.
2.	What is the date of seizure of the said vehicle and gap of auction of it are not mentioned by the opposite parties for the reasons best known to them, in their written version, what is the due procedure adopted by them, not explained by the opposite parties for the reasons  best known to them.  The opposite parties  are adopted their own  approach and method to realize  the amount due as alleged by them, from the complainant.  It is against  law.
3.	The opposite parties  did not file  any documents  whatsoever pertaining to auction of the  said vehicle, names of the bidders, who are participated and  whose name, it is knocked  down in favour, auction  bid amount  when it is deposited before the opposite parties, are not before us  all the details to determine the case.  It is clearly lapse on the part  service provider and opposite parties must be vigilant before taking repossession of the vehicle without prior notice to the complainant.  But all the required  procedure which is to be followed by the opposite parties before taking  an action against the  complainant and it is   apparently, the they were   neglected and not followed as per law for the reasons best known to them.  It is against law.

CASE-LAW:     Repossession of the said vehicle and methods adopted by Financier / Opposite Parties from complainant to recover the amount  due as alleged by them, is correct or not?

 as per Law.  The Hon’ble National Commission  in a number  of its decisions rendered on the subject-matter and in a case of this nature which is on hand now relating to,  are some of them mentioned here as detailed below that:

 

1.	II 2011 CPJ 101 (NC)	The Sum and substance of the decisions, is that the repossession of the vehicle without prior notice to the borrower of a loan by the financier is illegal and not valid.
2.	II 2011 CPJ 280 (NC)
3.	III 2011 CPJ 88 NC
4.	IV 2014 CPJ A.P.65

 

 

 

The action of opposite parties against the complainant is illegal, arbitrary  and also against the principles of Natural Justice.

 

HIRE PURCHASE AGREEMENT - CASE-LAW:

 

            In IV (2014) CPJ 65 (AP), the complainant  has questioned the opposite party for repossession  and  sale of vehicle on the premise that no notice  was issued to him either at that time of repossession of the vehicle or  prior to sale of vehicle. The Hon’ble A.P.State Commission has decided  the case on 22-07-2014 in the case of HDFC Bank Limited Vs. G.Bhaskar Rao (IV (2014) CPJ 65 (A.P.).  On similar set of circumstances of the case with regard to the  hire purchase agreement between the  financier and the borrower,  the appeal is partly allowed.  The complainant’s case is almost identical one  and the  ratio of the  above said decision of the Hon’ble A.P.State Commission, Hyderabad to be applied.  In the above said decision, the following mentioned cases are referred to award compensation are State  of  Gujarat Vs. Shantilal Mangaldas,  AIR 1969 SC 634,  and another  one in Charan Singh Vs.  Healing Touch Hospital and Others III (2000) CPJ 1  (SC) = 87 and we are following the same  and

 

            By observing all the details of the case, it can be said that there is a deficiency in service and negligence on the part of the opposite parties towards the complainant.  There are merits in the complaint.  Mental worry cannot be measured in terms of money. We are convinced with the asrguments of the complainant.  Every case  has to be judged on its own facts.  It is justified  in allowing the complaint.  These two points are held in favour of the complainant accordingly.

The proceedings before the Consumer For a are inquisitorial but not adversary.

VI  POINT No.3:- In the result, the complaint is allowed in part ordering the opposite parties                1 and 2 to pay Rs.3,63,090/- (Rupees three lakhs sixty three thousand and ninty only) towards the value of the lorry with interest at 9% from the date of the complaint i.e., on 24-04-2014 till the date  of realization to the complainant, to pay compensation of Rs.50,000/- (Rupees fifty thousand only) for harassment and mental agony suffered by the complainant since one year and to pay costs of Rs.3,000/- (Rupees three thousand only) within one month from the date of the receipt of the order.

            Typed to the dictation to the Stenographer, corrected  and pronounced by us in the open  Forum, this the  31^st day of  July, 2015.

 

 

                  Sd/-                                                                                                Sd/-

           MEMBER                                                                                PRESIDENT(F.A.C.)

 

                                                APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -

21-10-2014

Sri Menati Sivaiah, S/o.Chenchaiah, S.P.S.R.Nellore District (Chief Affidavit filed).

 

Witnesses Examined for the opposite parties

 

R.W.1  -

05-01-2015

Sri A. Siva Ganesh Babu, S/o.Jala Rao, Legal Officer, Nellore (Chief Affidavit filed).

 

                             EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	-	Legal notice and registered post receipt  from complainant’s advocate to the opposite party No.1.
Ex.A2  -	18-12-2012	Receipt No.C1112 (1148480) in favour of complainant issued by the opposite party for Rs.26,000/-.
Ex.A3  -	18-12-2012	Receipt No.C1112 (1148481)  in favour of complainant issued by the opposite party for Rs.1,000/-.
Ex.A4  -	27-08-2012	Receipt No.C (0612934714)  in favour of complainant issued by the opposite party for Rs.12,100/-.
Ex.A5  -	-	Photocopies of  Form-38 Certificate of Fitness  issued on            02-02-2012 in F.C.No.FC/2076/2012/AP026, certificate of registration No.AP26TA9405  in favour of complainant and Certificate of Inspection of Motor Vehicle.
Ex.A6  -	29-12-2011	Photocopy of Motor Vehicle Insurance Cover Note in favour of complainant issued by National Insurance Company Limited.
Ex.A7  -	-	Photocopy of  Abhaya Gold  pass book (three pages) in favour of complainant.
Ex.A8  -	10-11-2011	Photocopy of receipt No.20 in favour of complainant issued by Shree Bhargavi Automobiles.
Ex.A9  -	29-12-2011	Photocopy of receipt in favour of complainant issued by Shree Bhargavi Automobiles.
Ex.A10-	28-01-2014	Photocopies of letter from complainant to the Superintendent of Post Offices, Nellore and letter from complainant to the Superintendent of Post Offices, Nellore
Ex.A11-	27-02-2014	Complaint-Settled Reply from Superintendent of Post Offices, Department of Posts, Nellore to the complainant.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1  -	-	Attested copy of Loan Cum Hypothecation Agreement
Ex.B2  -	30-12-2011	Attested copy of Delivery order from opposite party.
Ex.B3  -	-	Attested copy of Application Form.
Ex.B4  -	18-09-2013	Attested copy of opposite party Repayment Schedule (two pages)
Ex.B5  -	24-12-2011	Attested copy of Certificate issued by Narayana Medical College Hospital, Nellore in favour of  Sri M. Siva.
Ex.B6  -	13-01-2014	Attested copy of Indian Law   to the  complainant and his father.
Ex.B7  -	23-01-2014	Attested copy of India Law  addressed to the M.Sankaranarayanan, Arbitrator.
Ex.B8  -	-	Attested copy of Arbitration Proceedings No.LOS/RPD/ARB/6073 of 2014.
Ex.B9  -	-	Attested copy of   postal receipts  in three  papers.
Ex.B10  -	03-01-2015	Attested copy of Statement of Account, customer details.

 

                                                                                                  

                                                                                                                    Id/-

                                                                                                         PRESIDENT(F.A.C.)

Copies to:

 

1.	Sri P. Ramakrishna, Advocate, 27-2-42, 19th Cross Road, Balajinagar, Nellore.
2.	Sri T.V. Srinivasa Rao, Advocate, Nellore.
3.	The Manager, L & T Finance Limited,L & T House, Ballard Estate, Mumbai-400001.