State Consumer Disputes Redressal Commission
Deep Hire Purchase Ltd vs Khem Singh & Ors. on 14 November, 2011
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. ---- FIRST APPEAL NO.372/2009. ORDERS RESERVED ON 11.10.2011 . DATE OF DECISION: 14.11.2011. In the matter of: Deep Hire Purchase Ltd. having its registered office at Garha Road, Near Radio Station, Jalandhar ( Punjab) through its Field Inspector Shri Jagtar Singh son of Shri Joginder Singh. Appellant. Versus 1. Shri Khem Singh son of Shri Jai Singh, resident of Vill. & P.O. Jhaugi, Illaqua Balindi Sanor, Sub Tehsil Aut, District Mandi, H.P. 2. Mega Leasing and Marketing, Head Office, Gaggal, Tehsil and District Kangra, H.P. through its Managing Director Sh. Ashwani Kumar. 3. Mega Leasing and Marketing, Branch Office, Purani Mandi, Opposite Electricity Office, Purani Mandi, Mandi Town, District Mandi, H.P. through Shri Gagan Kashyap, Manager, R/O House No.68/5, Palace Co,lony, Mandi, District Mandi, H.P. Respondents. ---------------------------------------------------------------------------------------------------------------------- Honble Mr. Chander Shekhar Sharma, Presiding Member.
Honble Mrs. Prem Chauhan, Member.
For the Appellant: Mr. Vivek Negi, Advocate.
For the respondents: None for respondent No.1.
Mr. Mehar Chand, Advocate, For respondents No.2 & 3.
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O R D E R:
Chander Shekhar Sharma, Presiding Member.
1.
This appeal is directed against the order of the District Forum, Mandi, passed in Complaint Case No.196/2007, dated 31.8.2009, whereby the complaint was allowed and the opposite parties were jointly and severally directed to adjust the sale proceeds of the vehicle towards the satisfaction of the dues by calculating its market value by deducting 40% of the amount from Rs.3,96,000/- i.e. the purchase price of the vehicle by the complainant instead of Rs.37,000/- and also to adjust Rs.1,06,478/- the margin money and Rs.2,13,152/- amount of instalments deposited by the complainant after adjusting unpaid instalments till the date of seizure of the vehicle and not beyond that as the vehicle against which the loan was advanced had been seized and the complainant was no more in possession of the same. It was further directed that the adjustment of the amount as aforesaid if it is found that excess amount has been paid by the complainant, the same shall be refunded to him. Opposite parties were further directed to pay compensation amounting to Rs.25,000/- on account of harassment, mental agony and pain and litigation cost was quantified at Rs.5,000/-.
2. Facts of the case within the narrow compass are that the complainant had purchased Tempo Trax vehicle No.HP-01-M-3717in the sum of Rs.3,96,000/- with financial assistance of the opposite parties. The complainant had paid Rs.1,06,000/- to the opposite party No.2 in August, 2003 and the said vehicle has been purchased by the opposite parties from Ram Hari Agencies at Gutkar for him. At the time of purchase of the said vehicle, it was agreed between the parties that the complainant will pay the said amount of the price of the said vehicle to the opposite parties in 36 equal instalments. The opposite party No.2 had also taken 36 blank signed cheques from the complainant. The complainant averred that he had started paying the instalments to the opposite parties since October 2003 to August 2006 and has paid 29 instalments and in this way a sum of Rs.4,38,208/- had been paid.
3. Further averments in the complaint are to the effect that the complainant approached the Proprietor of Ram Hari Agency, Gutkar and narrated whole story of lifting of the said vehicle forcibly by muscle men who telephoned Sh. Ashwani Kumar, Manager of opposite party No.1 and he told that instalments deposited by the complainant with the opposite party No.2 has not been sent by him to the opposite parties No.1 and 3 and has misappropriated the said amount.
Thereafter the complainant approached the opposite party No.2 and he was told by him that the amount has been sent to the opposite parties No.1 and 3. Upon this, the complainant telephoned Sh. Ashwani Kumar and apprised the facts and also stated that he was ready to pay the remaining five instalments but he did not respond. Thereafter, the complainant telephoned the opposite party No.3 and apprised the fact who told that a sum of Rs.1,93,761/- is outstanding. The complainant alleged that he told Amit Kumar that only five instalments were due and was ready to pay the same but he refused to accept the same. The complainant alleged that a sum of Rs.4,38,208/- had been paid and the snatching of the vehicle through muscle men without service of notice is deficiency in service. Hence, deficiency of service had been alleged on the part of the opposite parties.
In this background, present complaint under Section 12 of the Consumer Protection Act, 1986 was filed, wherein direction has been sought against the opposite parties to hand over the said vehicle in a roadworthy condition to him or to refund the instalments amount received by them alongwith interest and to pay Rs.1,50,000/- as loss of earning. Apart from this, an amount of Rs.1,00,000/- has been claimed on account of mental tension and litigation cost of Rs.5,000/- has also been claimed.
4. This complaint was resisted and contested by the opposite parties No.1 & 2 who had raised preliminary objection that there exists commercial transaction and as such complainant is not a consumer of opposite parties, that the Forum has no jurisdiction to entertain and try and decide the present complaint and that Gagan Kashyap has wrongly been impleaded as opposite party No.2. On merits, the opposite parties No.1 and 2 had denied that the complainant has paid the margin money. The opposite parties No.1 and 2 have admitted to the extent of number of instalments but denied that blank cheques were taken from the complainant. They had denied that a sum of Rs.4,38,208/- has been deposited by the complainant with them. The opposite parties have admitted to the extent of deposit of amount by the complainant through receipt in the office of the opposite party No.2 but denied that Gagan Kashyap is Manager. The opposite parties No.1 & 2 hae averred that the pass book remained in the possession of the complainant and he fraudulently and by manipulation has shown extra entries in the pass book which is wrong and not admitted to be correct.
5. It was further pleaded that the complainant has made huge default in payment of the regular instalments of loan amount and has violated the terms and conditions of the agreement and it was also denied that they have employed agents for collection of instalments and since the complainant has failed to pay the regular instalments of loan amount, as such he has surrendered the vehicle for want of loan amount and now in order to harass the opposite parties No.1 & 2, present complaint has been filed and it was further pleaded that repossession of the vehicle on their part was legal and they have denied any deficiency of service on their part and prayed for dismissal of the complaint.
6. Opposite party No.3 had also resisted the complaint and raised preliminary objections that the Forum has no jurisdiction to try, entertain and decide the complaint and that the complainant had suppressed the material facts from the Forum below. It had been admitted that an agreement dated 9.10.2003 was entered and the vehicle was financed. The complainant has further agreed to pay Rs.3,82,568/- in 36 instalments of Rs.10,600/- each. The complainant had committed serious default in the repayment of the loan amount. It was further pleaded that complaint under Section 138 of the Negotiable instruments Act filed by Deep Hire Purchase Vs. Khem Singh is pending before Illaqua Matgistrate, Jallandhar and the present complaint has been filed as counter blast. The opposite party No.3 has admitted that the complainant had paid Rs.1,06,468/- as initial payment which has been specifically mentioned in para No.2 of the agreement. Further case pleaded by opposite party No.3 in its version was to the effect that he has no concern with the opposite parties No.1 and 2. It has been averred that the complainant had paid 18 instalments amounting to Rs.2,13,152/- and amount of Rs.3,84,570/- is still outstanding from the complainant. It is submitted that the whatever amount was deposited by the complainant proper receipts were given and was entered in the statement of accounts. Hence, prayer has been made for dismissal of the complaint.
7. Rejoinder to the complaint was also filed wherein the stand taken in the complaint was reiterated.
8. Brief resume of evidence led by the parties in nutshell is that the complainant in support of his case has filed his own affidavit and had placed reliance upon a number of documents, Annexures C.1 to C.10, viz. copy of the loan repayment pass book issued by Megha Leasing & Marketing, Gaggal, Kangra, copy of the various entries made in the pass book, copies of receipt, dated 16.10.2003 (for Rs.10,670/-), copies of provisional receipts, dated 17.11.2003, 16.12.2003, 17.1.2004, and 19.2.2004 amounting to Rs.10,600/- each i.e. Annexures C.5 to C.8 issued by Megha Leasing & Marketing, Gaggal, receipt dated 22.9.2005 for Rs.10,600/- of Deep Hire Purchase Limited issued to the complainant, copy of receipt dated 29.10.2005 amounting to Rs.10,635/- of Punjab National Bank issued to Deep Hire Purchase Ltd., copies of receipts, dated 27.3.2006 and 19.5.2006 amounting to Rs.10,600/- each issued by Deep Hire Purchase Ltd. to the complainant and copy of receipt dated 26.8.2006 amounting to Rs.40,000/- issued by Deep Hire Purchase Ltd. to the complainant.
9. However, the opposite parties No.1 & 2 have not filed any evidence in support their plea.
10. Opposite party No.3 in support of its case has filed affidavit of their Field Inspector Shri Baldev Singh and had placed reliance upon number of documents viz., copy of Hire Purchase Agreement alongwith schedule relating to payments, statement o account, copy of complaint under Section 138 of the Negotiable Instruments Act by opposite party No.3, copy of letter No.959/07 addressed to the Station House Officer, Bhunter, District Kullu by the opposite party No.3 regarding seizure of the vehicle of the complainant No.HP-01-M-3717, copy of letter dated 9.1.2008 (in Punjabi), copy of certificate of Incorporation of the opposite party No.3-Company, copy of resolution dated 30.11.2005 passed in the meeting of Board of Directors by the opposite party No.3, copy of the order of the District Forum, Kangra at Dharamshala, Camp at Kangra passed in Consumer Complaint No.274/2004, titled Ravinder Kumar Versus Praveen Kumar Agent and another, dated 16.11.2006, copy of complaint filed under Section 138 of the Negotiable Instruments Act against the complainant by opposite party No.3 alongwith affidavit of Sh. Resham Singh, copy of statement of account, copy of receipt of Rs.2,90,000/-, dated 9.10.2003 issued to opposite party No.3 by the complainant, copy of acknowledgement of agreement issued by the complainant and the guarantor to the opposite party No.3, copy of hire purchase agreement dated 9.10.2003 and had also placed reliance upon quotation dated 5.1.2008 given by P.S. Car Bazar, Garha Road, Jalandhar, copy of quotation dated 3.1.2008 given by Shri Budh Singh for the purchase of vehicle in question, copy of quotation dated 29.12.2007 given by Shri Amerjeet Singh, copy of letter dated 9.1.2009 written in Punjabi by Shri Vijay Goel to the Managing Director of opposite party No.3 and copy of statement of account.
11. We have heard learned Counsel for the parties at length and have also gone through the record of the case minutely. Mr. Vivek Negi, learned Counsel for the appellant argued that the order of the Forum below is not legally sustainable and deserves to be set aside and action of the appellant in repossessing the vehicle was legal which was in conformity with the hire purchase agreement since the complainant was defaulter in making payment of loan instalments and the Forum below had wrongly concluded that the force was used in repossession the vehicle. Even the intimation was given as per Annexure R.1 to the S.H.O., P.S. Bhunter regarding seizure of the vehicle and as per him all due legal procedure was adopted as per clause 9 of the agreement for selling of the vehicle and the Forum below had wrongly concluded that the proper sale procedure had not been followed by the appellant. He had also placed reliance upon the judgment of the National Commission in the case of Sheela Kumari Versus Tata Engineering & Locomotive Company & Ors., 2007 (I) CPC 615, wherein it was held that recovery of a vehicle under hire purchase agreement for default in payment does not constitute a deficiency in service and there is no dispute about the legal proposition laid down in the decision of the National Commission.
However, no one appeared on behalf of respondent No.1. As such, we had no the opportunity of hearing the learned Counsel for respondent No.1, though Ms Neena Guleria, Advocate had appeared for respondent No.1 on various dates of hearing.
12. Mr. Mehar Chand, learned Counsel for respondents No.2 & 3 argued that the loan instalments amounting to Rs.10,670/- have been received by his client vide receipts Annexures C.4 to C.8 and its payment had been shown in the statement of accounts and there is no deficiency of service on the part of the opposite party No.3.
13. After hearing learned Counsel for the parties and going through the record of the case, we are of the considered view that there is no infirmity in the order of the Forum below. Reason being that in the present case the Forum below had rightly concluded that there was forcible possession of the vehicle as driver Shri Jagdish was manhandled and was also given beating and thereafter the vehicle was snatched while it was on its way at a place Sada Bai, District Kullu on 7.2.2007 at 8.00 P.M. which fact is clearly evident from the affidavit filed by the complainant.
Even this fact had come on record that the complainant went to the Police Station, Bhunter for lodging the F.I.R. but the officials at Police Station had refused to lodge the F.I.R.
Even if the instalment of vehicle is due from the complainant, then the possession of the vehicle could taken in a legal manner but not by applying extra legal means since the practice of employing musclemen had been deprecated by the Honble Supreme Court in the case of Manager, ICICI Bank Ltd. Versus Prakash Kaur and others, AIR 2007 Supreme Court 1349, wherein it was held that for recovery of bank loans seizure of vehicle could be done only through legal means and bank cannot employ goondas to take forcible possession by force and the similar view was taken by the Honble National Commission in the case of Citicorp Maruti Finance Ltd. Versus S. Vijaya Laxmi, III (2007) CPJ 161 (NC), wherein it was held that recovery of loan or seizure could only be done through legal means and the Forum below has reproduced paras 23 and 24 of the judgment of the Honble National Commission in para 11 of the order.
Plea of the opposite parties to the effect that the vehicle was surrendered by the complainant to the opposite parties but there is no force in this plea as there is no cogent and convincing evidence on record to prove the fact of surrender. In case the vehicle had been surrendered, then there should have been letter of surrender mentioning the place of surrender and the persons under whose presence the vehicle was taken into possession but this evidence is lacking in the present case.
14. In the present case the Forum below had also rightly concluded that the vehicle was sold by the opposite parties at throwaway price of Rs.37,000/-, whereas the value of the vehicle was Rs.3,96,000/- and before selling the vehicle opportunity should have been given to the complainant to either purchase the vehicle at the said price or bring the better buyers and transparency should have been followed in the matter of selling the vehicle but the said legal procedure had not been followed by the opposite parties in the present case.
As the record reveals that no notice was issued to the complainant prior to the sale of the vehicle in question, whereas it was incumbent upon the opposite parties to serve a notice before putting the vehicle on sale. Moreover, the market value of the vehicle should have been got assessed before putting the vehicle for auction which evidence is also lacking in the present case.
As such, the procedure adopted by the opposite parties in making sale of the vehicle is not legally warranted which practice has been deprecated by the Honble National Commission in the case of Citicorp Maruti Finance Versus S.Vijayalaxmi, (supra) wherein the Honble National Commission has held that the recovery of loan or seizure of vehicle could be done only through legal means and the Banks cannot employ muscle men to take possession by force.
15. In the present case this fact had also come on record that as per admitted case of the opposite parties that the value of the vehicle at the time of its purchase was Rs.3,96,000/- on the date of executing hire purchase agreement between the parties which was executed on 9.10.2003 and the vehicle was repossessed by the opposite parties on 7.2.2007 and it was sold for Rs.37,000/- on 9.1.2008 and as such at the time of sale the age of vehicle in question existed 4 years but it did not exceed 5 years from the date of its purchase by the complainant and this vehicle was a commercial vehicle. As such, Forum below has rightly placed reliance upon the judgment of the Delhi State Commission given in the case of Magma Leasing Ltd. Versus Bharat Singh, 1 (2007) CPJ 200, wherein it was held that in such cases cost of the vehicle shall be adjusted by depreciating the value at the rate of 5% per year in case of passengers vehicle and @ 10% per year in a case of commercial vehicle.
16. Hence, by applying the aforesaid judgment, the Forum below had rightly concluded that cost of the vehicle at the time of sale has to be adjusted by calculating its market value by depreciating the amount at the rate of 40% (i.e. 10% per year) from Rs.3,96,000/- i.e. the actual purchase price of the vehicle by the complainant and as such the opposite parties have been rightly directed to adjust the sale of the vehicle towards satisfaction of dues by calculating its market value by deducting 40% of the amount from Rs.3,96,000/- i.e. the purchase price of the vehicle by the complainant instead of Rs.37,000/-. In the present case, no cogent and convincing evidence had been led by the complainant to prove his plea regarding the payment of loan instalments to the opposite parties, as such the Forum below had rightly concluded that the complainant had failed to establish that he had paid an amount of Rs.4,38,208/- including the margin money to the opposite parties as per the case of the complainant pleaded in the complaint.
17. Hence, opposite parties have been rightly directed that after adjustment of the amount paid by the complainant if it is found that the excess amount had been paid, then the same shall be refunded to him and the directions given by the Forum below as per paragraph 18 of the order is legally warranted. In the present case, Forum below has only awarded compensation to the tune of Rs.25,000/- which appears to be inadequate in view of the facts and circumstances of the case and illegal seizure of the vehicle, but since no appeal has been filed by complainant in this case, as such compensation awarded by the Forum below will meet the ends of justice. Cost of litigation as prayed for by the complainant in his complaint has rightly been quantified at Rs.5,000/- by the Forum below. Order of the Forum below is a well reasoned and is based upon the judgment of the Honble Supreme Court as well as of the Honble National Commission , (supra) which fact is clearly evident from the detailed reasons given by the Forum below in paras 10 to 16 of the order.
18. No other point was urged.
In view of the aforesaid discussion and facts and circumstances of the case, there is no merit in the present appeal and consequently it is dismissed.
No order as to costs.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Copy of this order be sent to the parties free of cost as per rules.
Shimla, Announced on November 14, 2011.
( Chander Shekhar Sharma ) Presiding Member ( Prem Chauhan ) Member