COMPLAINT FILED ON: 28.07.2009
DISPOSED ON: 14.12.2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED THIS THE 14TH DECEMBER 2010
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.1777/2009
Complainant | Sri. Ravi K. Jain, S/o Kuppaswamy, Aged 52 years, No.57, 2nd Main, Subbanna Garden, Vijayanagar, Bangalore – 560 040. Advocate: Sri. Viswanath Sabarad V/s. |
OPPOSITE PARTY | The Managing Director, Family Credit Limited, Zakaria Centre, No.50, 4th Floor, 100 Feet Road, Defence Colony, Indiranagar, Bangalore – 38. Advocate: Sri. Suresh |
O R D E R
SRI. B.S. REDDY, PRESIDENT
The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P.) to pay sum of Rs.1,29,464/- with interest at 24% p.a. on the allegations of deficiency in service on the part of the OP.
2. The case of the complainant is to be stated in brief is that:
The complainant availed vehicle loan for Rs.2,28,000/- from OP for the purchase of Maruti Omni LPG, repayable in equal 54 monthly installments of Rs.5,300/- per month. The complainant paid 32 monthly installments and he was due in 22 monthly installments. Due to financial difficulties, the complainant could not make payment. On 08.03.2009 the representatives of the OP came to the residence of the complainant and on the pretext of inspecting the vehicle, took the complainant to OP’s office in the van and there inspite of requests for extension of time for payment of installments due, the employees of OP forcibly taken away the vehicle and seized the same. The complainant was intimated if he made payment of the balance installments, his vehicle would be released. With great difficulty, the complainant arranged for the balance of 6 installments and approached to release the vehicle, however the employees of the OP refused to receive the amount and release the vehicle. After much persuasion, the complainant was informed that the vehicle was sold to be some body and the amount received by sale has been appropriated towards the loan. OP has not disclosed the sale price. OP issued notice dated 08.11.2008 demanding excess amount. The Maruti Omni LPG was 2006 model, the value was around Rs.1,90,000/- to Rs.2,00,000/- the same was sold in the month of May – 2009. The complainant was due in payment of 22 installments in amounting to 22 X 5300 = Rs.1,16,600/- only. Hence the complainant is now entitled for refund Rs.84,400/- out of the amount of Rs.2,00,000/- realized by sale of the vehicle. The complainant got issued legal notice dated 22.06.2009 demanding OP to make payment of Rs.84,400/- and the notice was duly served, OP has not complied with the demand. The complainant is entitled for the damages, due to the mental agony and sufferings he has undergone on account of illegal and unnecessary acts of the OP and also for not making payment of the excess amount realized by sale of the vehicle. The complainant in all is entitled for the amount as shown here under:
a. Excess amount realized for selling the vehicle – Rs. 84,400/-.
b. Damages - Rs. 40,000/-.
c. Interest from 01.05.2009 to 25.07.2009 on
the amount of Rs.84,400/- at 24% p.a. - Rs. 5,064/-.
Total - Rs.1,29,464/-
Thus the complainant filed the complaint claiming the above stated reliefs alleging deficiency in service on the part of the OP.
3. On appearance, OP filed version contending that the complainant is not a consumer as per the provisions of the C.P. Act; the transaction between the complainant and OP is borrower and financier relations. It is stated that the complainant availed loan from OP of sum of Rs.2,28,000/- and executed agreement dated 27.02.2006, out of which the complainant purchased vehicle namely Maruti Omini LPG bearing registration No.KA-04 MC-5158. The loan amount was repayable in 54 equated monthly installments of Rs.5,300/- commencing from 20.03.2006 to 20.08.2010. As per statement of account dated 09.03.2009 a total sum of Rs.42,605/- was over due amount was payable by the complainant in his loan account apart from future installments and other charges. The complainant failed to pay the over due amount inspite of repeated requests, reminders and demands made by the OP. Therefore the OP repossessed vehicle in question on 08.03.2009 from the possession of the complainant through “B.R. Associates”. The copy of the loan agreement, statement of account and inventory are stated to have produced and marked as Annexure A, B and C. After having possession of the vehicle, caused an intimation letter dated 10.03.2009 demanding the complainant to make payment of Rs.1,46,403/-, which is the foreclosure amount as per the statement of account dated 09.03.2009 within 10 days from receipt of the notice. Despite the notice of service, the complainant did not come forward to pay the amount within the stipulated time. The vehicle in question had valued at Rs.1,15,000/- as market value on 10.03.2009. Thereafter, the completion of 10 days from the date of intimation letter dated 10.03.2009, the vehicle had subjected to online auction purchase from the respective purchasers. The vehicle was sold to the highest bidder one Mr. Prema Kiran on 11.05.2009. The copy of the intimation letter dated 10.03.2009 is stated to have been produced and marked as Annexure-D. As per the statement of account dated 09.03.2009 the complainant was liable to pay an amount of Rs.1,46,403/- to the OP. The vehicle in question was sold on 12.05.2009 for Rs.1,58,000/-. As per the statement of account dated 12.05.2009, the complainant was liable to pay an amount of Rs.1,59,283/- to the OP. After adjusting the sale proceeds of Rs.1,58,000/- to the loan account of the complainant, still the complainant is liable to pay an amount of Rs.1,283/- to the OP. The complainant has not approached the Forum with clean hands. Hence it is prayed to dismiss the complaint with exemplary costs.
4. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. The P.A. holder of the OP filed affidavit evidence.
5. OP filed written arguments, arguments on both sides heard. Points for consideration are:
Point No.1:- Whether the complainant proved
deficiency in service on the part of
the OP?
Point No.2:- Whether the complainant is entitled for
the relief’s now claimed?
Point No.3:- To what Order?
6. We record our findings on the above points:
Point No.1:- Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
7. At the out set it is not at dispute that the complainant availed loan of Rs.2,28,000/- from OP for the purchase of Maruthi Omni LPG and executed agreement dated 27.02.2006. The loan was repayable in 54 equated monthly installments of Rs.5,300/- commencing from 20.03.2006 to 20.08.2010. The complainant paid 32 monthly installments and he was due in 22 monthly installments. The complainant claims that on 08.03.2009 the representatives of the OP came to his residence and took him to the OPs office on the pretext of inspecting the vehicle and forcibly taken away the vehicle and seized the same. Further the complainant claims that he arranged for the balance of 6 installments and approached OP to release the vehicle, but OP refused to release the same. After much persuasion the complainant was informed that the vehicle was sold and the amount received by sale has been appropriated towards the balance amount due. As per the case of the complainant he was due in payment of 22 installments amounting to 22 X 5300 = Rs.1,16,600/- and the vehicle is stated to have been sold for an amount of Rs.2,00,000/-. After deducting the balance amount payable Rs.1,16,600/-, the balance amount of sale consideration amounting to Rs.84,400/- is due by OP. Further the complainant is claiming that OP has not complied with his demand and he is entitled for damages, due to mental agony and sufferings on account of illegal and unnecessary acts of the OP.
8. OP in the version filed pleaded that as per the statement of account as on 09.03.2009 a total sum of Rs.42,605/- was over due amount payable by the complainant in his loan account, apart from future installments and other charges. The complainant failed to pay the over due amount inspite of repeated requests, reminders and demands. As such OP repossessed the vehicle in question on 08.03.2009 from the possession of the complainant through “B.R. Associates”. It may be noted that though in the version it is stated that the loan agreement, statement of account and inventory are produced and marked as Annexure – A, B and C, but OP has not produced those documents. OP has not produced any material to show that before repossession of the vehicle, the complainant was duly served with any notice intimating him and affording opportunity to pay the amount. Thus it becomes clear that OP without following the due process of law took the assistance of a private agency “B.R. Associates” and forcibly seized the vehicle from the complainant. Further OP has not placed any material to show that before auctioning the vehicle, the complainant was duly intimated. Though in the version it is stated that the copy of the intimation letter dated 10.03.2009 is produced and marked as Annexure – D, but OP has not produced the said document or any other material. Thus it becomes clear that OP without intimating the complainant put the seized vehicle for auction on online and sold the same for Rs.1,58,000/-. OP has not produced the account statement to show the details of the amounts paid by the complainant and the total amount due. It is stated that the vehicle was sold to the highest bidder on online auction on 11.05.2009 and the amount of Rs.1,58,000/- was the sale proceeds. As on 12.05.2009 it is stated that the complainant was liable to pay an amount of Rs.1,59,283/-, after adjusting sale proceeds of Rs.1,58,000/- to the loan account, still the complainant is liable to pay an amount of Rs.1,283/-. The complainant has produced the copy of the account statement, as per that as on 28.03.2009 the total amount due is Rs.1,32,912/-. In the version OP has stated that in the intimation letter dated 10.03.2009 the complainant was demanded to make payment of Rs.1,46,403/- which was the foreclosure amount. As per the statement of account produced by complainant clearly goes to show that only an amount of Rs.1,32,912/- was due as on 28.03.2009. Therefore it cannot be said that the amount due was Rs.1,46,403/-. The complainant filed memo of calculation on 30.07.2010 by adding interest at 12% p.a. on the said amount due and the total amount worked out at Rs.1,35,613/-. The vehicle has been sold for Rs.1,58,000/-. After deducting Rs.1,35,613/- in the total sale proceeds, the balance amount payable to the complainant is Rs.22,387/-. Therefore the complainant is entitled for the said amount.
9. OP seized the vehicle without following due process of law. The complainant was not informed before seizure and after seizure before the sale of the vehicle. In 2007 CTJ 1145 Citicorp Maruti Finance Ltd., Vs. S.Vijaylaxmi the Hon’ble National Commission held that:
“The entire action of the appellant was illegal, arbitrary and criminal in nature and requires to be visited with punitive damages besides refunding the market value of the vehicle with interest. We dismiss the appeal and impose a punitive damages of Rs.50,000/- which shall be paid to the respondent for the mental agony, harassment and humiliation she suffered before her neighbours, friends and relatives at the hands of such an unscrupulous and uncouth provider of service. In the result appeal is dismissed with aforesaid order. Payment shall be made within one month.”
Further it was observed that:
“In a democratic country having she established independent judiciary and having various laws it is impressible for the money lender / financier / banker to take possession of the vehicle for which loan is advanced, by use of force.”
In 2009 CTJ 992 (CP) (NCDRC) HDFC Bank Ltd., Versus Balwinder Singh wherein A motor car purchased by the complainant after arranging finance from the OP, bank – committed default in making payment of installments – Car forcibly possessed by musclemen / agents of the bank. It was not proved that the respondent voluntarily surrendered the vehicle. No notice was given before possessing the vehicle nor any notice before making its sale – Entire process carried out in a perfunctory manner, rather in a highhanded manner – it was held that:
“such type of ‘instant justice’ not permitted in a civilized society having an effective rule of law – entire action was arbitrary, illegal and criminal – the revision was dismissed with exemplary cost of Rs.25,000/- with a direction to the petitioner not to resort to illegal practice of engaging musclemen directly or through their recovery agents in future.”
The principles laid down in the above rulings are aptly applicable to the facts of the case. The complainant was made to suffer mental agony and harassment on account of repossessing the vehicle forcibly and disposing of the same without notice. The complainant has claimed damages of Rs.40,000/- towards mental agony and harassment. There is no merit in the contention of OP that after affording sufficient opportunity, the vehicle was repossessed and with due intimation to the complainant, the same was sold. Nothing prevented the OP to produce any documents to prove the fact that the complainant was duly served with any notice before repossessing the vehicle and any notice duly served before sale of the vehicle. Under these circumstances we are of the view that the complainant proved deficiency in service on the part of the OP, in forcibly repossessing the vehicle and disposing of the same without due intimation. Taking into consideration all the facts and circumstances we are of the considered view that the ends of justice would be met by awarding compensation of Rs.30,000/- towards mental agony and harassment suffered by the complainant due to the illegal acts of the OP. The complainant is also entitled for the balance sale proceeds of Rs.22,387/-, making the same to round figure of Rs.22,500/-. Thus the total amount due by OP is Rs.52,500/- with litigation cost of Rs.5,000/-. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is allowed in part. OP is directed to refund an amount of Rs.22,500/- and pay compensation of Rs.30,000/- with litigation cost of Rs.5,000/- to the complainant.
This order is to be complied within four weeks from the date of this order.
Send the copy of this order to both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 14th day of December 2010.)
PRESIDENT
MEMBER MEMBER
Snm:
