CC Filed on 28.06.2010
Disposed on 14.06.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.
Dated: 14th day of June 2011
PRESENT:
Sri. G.V.HEGDE, President.
Sri. T.NAGARAJA, Member.
Smt. K.G.SHANTALA, Member.
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Consumer Complaint No. 83/2010
Between:
Sri. Chandrashekara Reddy, S/o. Krishna Reddy, R/o N. Venkatapur Village, Nangali Post, Mulbagal Taluk. (By Advocate Sri. M.P. Narayanaswamy) V/S 1. The Manager, TATA Motors Finance Ltd., F.S.B.A, T.M.F.L., Bangalore Branch, No.111/3, 3rd Floor, Hafeeza Chambers, K.H. Road, Bangalore 27. 2. The Manager, The TATA Motors Finance Ltd., Akruti JMC 3rd Floor, Khopar Junction, Near Khopat Bus Stop, L.B.S. Marg, Thane West – 400 601. (By Advocate Sri. B. Kumar & others) | ….Complainant ….Opposite Parties |
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ORDERS
This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite parties to pay compensation of Rs.45,000/- in all for the illegal seizure of his vehicle and for mental agony with costs and interest, etc.,
2. The case of complainant may be stated as follows:
That the complainant has purchased goods lorry bearing Registration No. KA-07-7102 by obtaining loan from OP.1 of Rs.7,20,570/- undertaking to repay the loan with interest in 46 monthly instalments of Rs.23,670/- each commencing from 04.06.2007. The complainant filed the above complaint claiming Rs.35,000/- as loss incurred for not operating the said vehicle for 7 days, salary and batta charges Rs.3,000/- for his driver and cleaner for 7 days, litigation charges of Rs.2,000/- and cost of Rs.5,000/- in all Rs.45,000/- on the ground that the OP No.1 who advanced loan to the complainant for purchase of lorry illegally seized the said vehicle at Bangalore when the vehicle was carrying consignment to be delivered to his customer on 10.02.2010.
The complainant paid Rs.25,000/- on 11.02.2010 towards loan dues and requested OP.1 to release the vehicle. But OP No.1 demanded overdue charges and refused to release till the payment was made. The complainant under protest paid Rs.20,950/- and the vehicle was released by OP No.1 on 16.02.2010. The said vehicle remained inoperative for 07 days during its illegal custody with OP.1 i.e. from 10.02.2010 to 16.10.2010.
3. The complainant was admitted and registered and notices were sent to OPs. OPs filed common version admitting the loan transaction in respect of goods lorry as per terms and conditions stated in the loan agreement. The OPs contended that complainant was not regular in paying EMIs. The complainant had to repay Rs.10,69,020/- in 46 instalments to OPs commencing from 02.08.2007 upto 02.05.2011. It is further stated that complainant was due for Rs.84,902.84 as on 08.02.2010 and inspite of several demands complainant has not paid the amount. The OPs are in no way responsible for the loss caused to the complainant as the OPs had every right to seize the vehicle for non-payment of dues outstanding. The OPs having admitted the seizure released the vehicle subsequently when the overdue amount was repaid.
The OPs relied upon Clause 18 A of the terms and conditions of the loan agreement and contended that the seizure of vehicle was effected on 10.02.2010 in accordance with the terms and conditions of agreement and such seizure does not amount to illegal seizure. The OPs admitted that after seizure of vehicle on 10.02.2010 the complainant paid Rs.55,000/- on 11.02.2010 and Rs.20,950/- on 15.02.2010 and thereafter the vehicle was released in favour of complainant on 16.02.2010. Therefore they contended that there is no deficiency in service on their part and they have not committed any illegal acts. Therefore they prayed for dismissal of the complaint.
4. The complainant in support of his case filed affidavit reiterating complaint averments. The OPs also filed affidavit. The parties filed relevant documents. We heard arguments addressed by parties.
5. The following points arise for our consideration:
Point No.1: Whether the seizure of vehicle by OPs on
10.02.2010 is illegal?
Point No.2: If point No.1, is held in affirmative to which
reliefs the complainant is entitled to?
Point No.3: To what order?
6. After considering the records and the submissions of parties our findings on the above points are as follows:
Point No.1: It is evident from the documents produced that OP through Attorney issued pre-seizure notice to complainant on 09.02.2010 demanding payment of outstanding dues within 7 days which would fall on 16.02.2010. But the vehicle was seized on 10.02.2010 itself. The date of service of above said notice is 22.02.2010. This clearly goes to show that the seizure of vehicle by OPs on 10.02.2010 was without issuing any notice, thereby resulting in deficiency in service.
The OPs relied upon clause 18A of the terms and conditions of the loan agreement which reads as follows:
“if one or more of the events specified in Clause 17 above occurs (“Event Of Default”, the lender by notice in writing to the obligors, declare the loan to be immediately due and payable (whereupon the same shall become due and payable together) and forthwith recall the loan together with all interests and other monies payable by the obligors pursuant to this loan agreement, and in default of such payment enforce the charge created in terms of this loan agreement. Further, the lender shall be entitled to, at all times to, take possession, seize, recover, appoint a receiver/manager, remove the asset by public auction or by private contract at the best available price according to the prevailing market condition including as regards repossessed vehicle/assets, realize its claims in respect of the loan, without being bound liable for any loss/losses that the obligors may suffer due to such action and without prejudice to the lender’s other rights and remedies as stated herein or otherwise law entitled to.”
The notice dated 09.02.2010 issued on behalf of OPs calling upon the complainant to pay the arrears within 07 days, does not specifically mention that the entire loan had immediately became due and payable as there was event of default i.e. non-payment of installments regularly. We think unless the OPs exercise that right of declaring that the loan to be immediately due and payable, they have no right to seize the vehicle. As already noted the notice dated 09.02.2010 states that in case of failure to pay the amount within 7 days from the date of said notice the OPs would take appropriate action. But the seizure was effected on 10.02.2010 itself. Therefore we hold point No.1 in affirmative.
Point No.2: The complainant has alleged that even after receiving Rs.55,000/- on 11.02.2010 from him, the OPs refused to release the vehicle loaded with consignment demanding over due charges of Rs.20,000/-. Hence the complainant has alleged that the OPs harassed him. The OPs contended that as on 08.02.2010 the complainant was due Rs.84,902.84. But that fact is not made clear from the loan account produced by them.
As contended by the Learned Counsel it appears the OPs got prepared the notice dated 09.02.2010 only after seizure of the vehicle. This is evident from the fact that the notice dated 09.02.2010 is dispatched on 18.02.2010 and the said notice reached the complainant on 22.02.2010. Therefore it is clear that at or before the time of seizure the OPs had not at all issued any notice under Clause 18 (a) of the loan agreement. This shows that the OPs showed their highhandedness to enforce the recovery of dues if any by adopting the method of illegal seizure. This must have caused enormous mental pain and agony to complainant.
The complainant invested more than Rs.7,00,000/- for purchase of the lorry in question. It was a goods transport vehicle. The new profit of complainant per day can be estimated atleast at Rs.1,000/- from this vehicle. Apart from it he had to pay the salaries and battas to driver and cleaner even if he did not run the vehicle. Therefore the net loss per day due to illegal seizure may be estimated at Rs.2,000/-. The illegal seizure was 7 days. Hence the total loss may be estimated at Rs.14,000/-.
Considering the way in which and the circumstances under which the seizure was effected without prior notice to complainant, we think compensation of Rs.5,000/- may be awarded towards mental agony and harassment suffered by complainant. Hence point No.2 is held accordingly.
Point No.3: Hence we pass the following:
O R D E R
The complaint is allowed with costs of Rs.1,000/-. The OPs shall pay Rs.14,000/- to complainant towards the loss sustained by him with interest at 6% p.a. from the date of seizure i.e. 10.02.2010 till the date of payment besides paying Rs.5,000/- as compensation him for mental agony. This order is to be complied within 45 days from the date of this order.
Dictated to the Stenographer, corrected and pronounced in open Forum this the 14th day of June 2011.
MEMBER MEMBER PRESIDENT
