DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 23rd day of October 2009.

 Present : Smt. H. Seena, President

: Smt. Preetha.G. Nair (Member)

: Smt. Bhanumathi.A.K. (Member)

C.C.No.82/2008

Moidin Muthu

2/559 Kalathilveedu

Sreekrishnapuram (P.O)

Ottappalam Taluk

Palakkad.

(Adv. K.R. Kochunarayanan) - Complainant

V/s

The Managing Director

Manappuram General Finance and

Leasing Limited

Valappad

Thrissur - Opposite party

( Adv. K.N. Babu)

O R D E R

By Smt. H. Seena, President

1. The case of the complainant in brief is that he purchased a goods autorickshaw bearing No.KL 51 2364 by availing loan from the opposite party. Thereafter he could not make payments towards some instalments as he was laid up due to jaundice. While so, the agents of the opposite party seized the vehicle using force and without complying any legal formalities. Complainant filed a complaint before the Sreekrishnapuram Police. It is the case of the complainant that he received a pre-sale notice dated 28/01/2008 sent by the opposite party on 25/02/2008. The postal seal affixed on the cover shows that it was sent on 23/02/2008. On receiving the letter complainant approached the opposite party for clearing dues. But he was surprised to know that the vehicle was already sold. According to the complainant, the said act of the opposite parties amounts to clear deficiency in service.

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2. Opposite party filed counter resisting the case. Opposite party while admitting the

purchase of the vehicle by the complainant, however denied the say of the complainant that the vehicle was repossessed by them illegaly by force. As per the agreement complainant has to pay 48 instalments out of which 36 instalments has to be paid at the rate of Rs.4905/- and 12 instalments at the rate of Rs.4,600/-. According to opposite party, inspite of repeated requests, complainant did not clear the defaulted instalments. Later on 23/01/08, complainant himself surrendered the vehicle before the opposite party. Vehicle was sold in auction on 20/02/08 for Rs. 70,000/-. Amount was adjusted towards the loan account. After adjustment a further amount of Rs.97,823/- is now due to the opposite party. Complaint has been filed to evade payment.

3. Complainant in proof of his case filed affidavit and got Exhibit A1 to A4 marked. Refuting his evidence opposite party filed affidavit and Exhibit B1 to B4 marked with objection.

Now the issues for consideration are:

1. Whether there is any deficiency in service on the part of opposite party?

2. If so, what is the relief and cost?

Point 1

Complainant himself admits that there is default in the payment of monthly instalments. The specific case of the complainant is that opposite party illegally seized the vehicle using force and without complying the legal formalities sold the vehicle which amounts to deficiency in service on their part. But as per the contention of opposite party, vehicle was surrendered by the complainant himself. It was sold in auction after complying the legal formalities.

Heard both parties and gone through all the relevant documents on record.

It is an undisputed fact that complainant has purchased the vehicle from the opposite party. It is also not in dispute that the complainant caused default in payment of monthly instalments. The only grievance of the complainant is that opposite party did not follow the

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legal procedure for repossession as well as for conducting sale. According to him no presale

notice was issued and hence it is illegal.

The question to be considered is whether complainant himself has surrendered the vehicle or opposite party has repossessed it using force. On going through Exhibit A2 series pre-sale notice dated 28/01/2008 along with postal cover, there is a specific sentence as to whether the vehicle was surrendered or repossessed, striking off which ever is not applicable. In the said notice, opposite party has not mentioned anything about it. For substantiating the said contention opposite party has produced Exhibit B3, which is the surrender letter alleged to be issued by the complainant. Complainant has strongly objected the said letter. We are also of the view that the particular letter cannot be relied on because it is the usual practice of the finance companies to make the customer sign many documents before entering into an agreement.

In view of the aforesaid discussions, it can only be inferred that the vehicle was repossessed by the opposite party by force. In Citi Corp Maruti Finance Ltd Vs S. Vijaya Laxmi III(2007) CPJ 161 (NC), Honourable NC and in ICICI Bank Vs Harikrishnan Honourable State Commission has held that finance companies cannot take possession of hypothicated goods by resorting to instant justice by use of force.

Another aspect to be considered is whether opposite party has complied the legal formalities while conducting sale. It is admitted by the opposite party that the vehicle was auctioned on 20/02/2008. Where as Ext A2 series even though dated 28/01/2008 is seen to be posted on 23/02/2008 and received by the complainant on 25/02/2008. Supporting document marked as Exhibit A2 series So it is clear that complainant was not given a reasonable opportunity to clear dues before sale. The said act amounts to deficiency in service on the part of opposite party and hence complainant is entitled for compensation.

Point 2

According to complainant vehicle has been sold for Rs.1,50,000/- (Rupees One Lakh and fifty thousand only) Complainant has not adduced any supporting evidence to prove the same. In our view an amount of Rs.20,000/- will meet the ends of justice.

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In the result complaint allowed. Opposite party is directed to pay an amount of Rs.20,000/- as compensation for the deficiency in service and Rs.1000/- as cost of proceedings. Order shall be complied within one month from the date of receipt of order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realization.

Pronounced in the open court on the 23^rd day of October 2009

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

APPENDIX

Witness examined on the side of Complainant

Moidin Muthu - PW1

Witness examined on the side of Opposite party

Nil

Exhibits marked on the side of the complainant

1. Ext. A1 – Copy of complaint submitted to Sreekrishnapuram Sub Inspector of Police dated

   28/02/2008

2. Ext. A2 series - Pre-sale notice dated 28/01/08 of Manappuram General Finance and Leasing Limited of HP No 1400132 .

3. Ext A3 - Copy of Lawyer notice dated 07/03/2008

4. Ext. A4 – Copy of reply notice sated 22//03/2008

Exhibits marked on the side of the Opposite Party

1. Ext. B1 - Hypo Debtor Account dated 10/09/2008 of Manappuram General Finance and Leasing Ltd

2. Ext. B2 - Copy of agreement dated 23^rd February 2008

3. Ext. B3 - Copy of letter from Moidin Muthu dated 23/01/2008

Forums Exhibits

Nil

Cost (allowed)

Rs.1,000/- (Rupees One thousand only) allowed as cost of proceedings