State Consumer Disputes Redressal Commission
Shriram Transport Finance Co. Ltd., vs Bhanupratap Singh on 2 May, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No. FA/12/03
Instituted on 03.01.12
Shriram Transport Finance Co. Ltd.,
Shop No.16 A, Second Floor,
Kikabhai Complex, G.E. Road,
Dist. RAJNANDGAON (C.G.) ... Appellant.
Vs.
Bhanupratap Singh, S/o Shri Ramswarup Singh,
R/o: Ward No.3, Nr. Water Tank, Khairagarh,
Dist. RAJNANDGAON (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Rajesh Pandey, for appellant.
Shri Ravi Bodhani, for respondent.
ORAL ORDER Dated: 02/05/2012 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is directed against order dated 02.12.2011, passed by District Consumer Disputes Redressal Forum, Rajnandgaon (hereinafter called "District Forum" for short) in complaint case No.25/2011, whereby the complaint of the respondent against appellant herein has been allowed and the appellant has been directed to return the vehicle in question to the complainant / respondent and also to pay Rs.10,000/- as compensation for mental agony.
2. In nutshell the complaint which was filed by the respondent before District Forum was to the effect that a vehicle was purchased by // 2 // the respondent with the help of finance provided by the appellant under a Loan-cum-Hypothecation agreement from Jaika Automobiles. That vehicle was repossessed by the appellant on 09.07.2010 without giving any intimation and when the complainant went to the Office of the appellant and made inquiry about the due amount then no information was given. Ultimately, after sending notice through advocate, the complaint, on the allegation of deficiency in service on the part of the Financer, has been filed before the District Forum.
3. The appellant herein in the written version averred that the vehicle in question was repossessed by it as per terms of the Loan- cum-Hypothecation agreement executed between the parties. It has also been averred that from time to time information were sent to the complainant regarding the amount which was due and the amount of installments. Such information was sent on 01.04.2010, 03.05.2010 and 19.05.2010 and the complainant was requested to pay the due amount, but when no amount was paid, then after giving due intimation, on 08.07.2010, to the Police the vehicle was repossessed by the appellant. Thus, no illegality or deficiency in service has been committed by the OP / appellant.
4. Learned District Forum after having considered the material placed before it by both parties, came to the conclusion that the // 3 // appellant is guilty of committing deficiency in service and therefore has ordered to return the vehicle in question to the respondent /complainant and also to pay amount as compensation for mental agony.
5. After having heard the arguments advanced by both parties and having gone through the record of the case, we are of the view that the order recorded by the District Forum is not liable to be sustained.
6. In the order recorded by the District Forum, it has been mentioned that the appellant Finance Company has not given any notice to the respondent regarding the amount which was due and without giving any such notice and without informing him regarding the amount which was due, the vehicle was repossessed. Thus, the repossession was found illegal on these observations.
7. From the record it appears that notices which were given by the appellant to the respondent were filed before District Forum, but have not been taken into consideration by it. It appears that a notice was sent on 03.05.2010 by the appellant to the respondent / complainant wherein it was stated that an amount of Rs.12,445 + 47,293 + Other Charges are due against the respondent / complainant and he was requested to pay that amount within three days otherwise the vehicle // 4 // will be repossessed. On 19.05.2010 again a notice was sent through registered post to the complainant / respondent, wherein it was requested that an amount of Rs.55,638 + ODC was due against him and it was again requested to him that payment of such amount be made within 3 days otherwise the vehicle will be repossessed. This notice was sent through registered post and photocopy of receipt of sending the same by registered post has also been filed along with the copy of notice, which has been filed as document Annexure OP-3. Copy of earlier notice, which has been filed, has been numbered as document Annexure OP-2. On 01.04.2010 also a notice was sent, wherein it was stated that an amount of Rs.12,445 + 38,698 + ODC is due against the complainant and again he was requested to make payment of the due amount. From these notices, it is clear that the appellant Company had given notices to the respondent / complainant from time to time and was making request to make payment. He was also informed that in case of default the vehicle will be repossessed, but even then no heed was paid by the complainant / respondent and ultimately the vehicle was repossessed by the appellant on 08.07.2010 by giving intimation to the Police, through document Annexure OP-6, which bears seal impression and signature of Police Officer. By the said letter Police was informed that the appellant Company was going to repossess the vehicle, which was given on Loan-cum-Hypothecation as per agreement and thereafter the vehicle was repossessed in // 5 // presence of some Guddu, who is said to be the driver of the questioned vehicle. Document Annexure OP-5, shows that this document was signed by the said person Guddu on behalf of the owner and by one person on behalf of the appellant Company. The status of the vehicle has also been mentioned in this document.
8. The aforesaid documents have not at all been considered by the District Forum and without considering this document and without going through the material placed on record by the OP / appellant, it has been held that the vehicle was repossessed without giving any notice. This finding recorded by the District Forum suffers from perversity.
9. Loan-cum-Hypothecation agreement, copy of which has been brought on record as Annexure OP-7, authorizes the appellant Financer to repossess the asset from wheresoever it may be and remove the hypothecated asset including all accessories, bodywork and fittings and for the said purpose, it shall be lawful for Shriram or Shriram authorized representatives, servants etc. forthwith or at any time and without notice to the Borrower (s) to enter upon the premises, or garage or godown where the hypothecated assets shall be lying or kept. Thus, it was agreed between the parties that no notice was required to be sent by the appellant to the respondent. But in the facts // 6 // of the present case, in spite of this condition, notices were sent which were not at all honoured by the respondent / complainant.
10. The statement of account filed by the OP appellant before District Forum as Annexure OP-1 shows that as per the agreement, the repayment was to be made in installments of Rs.12,445/- and first installment was to be paid of Rs.13,713./-. Repayment was to be started from 05.11.09 and the installments were monthly. The statement shows that first payment was made in the month of January on 16.01.2010 and amount of Rs.12,350/- was paid. Apart from it two amounts of Rs.650/- each were also paid along with that amount. Thereafter on 12.03.10 two payments of Rs.1,150/- and one payment of Rs.3,850/- was made, but the whole amount of installment was not paid. Then in the next month Rs.900/-, Rs.900/- and Rs.4,100/- was paid on 19.04.2010. In the month of May 2010, Rs.1,000/-, Rs.4,000/- and Rs.1,000/- was paid respectively and lastly on 28.05.2010, Rs.8,000/- was paid. Then, in the month of August, on 10.08.2010 Rs.4,000/- was also paid. Thus, as per the payment schedule from November 2009 to July 2010 around seven installments were to be paid of Rs.12,445/- and the total amount of installments was around Rs.87,115/- but against the same only Rs.36,000/- was paid. Thus, it is clear that the respondent / complainant defaulted continuously and was a chronic defaulter in payment of installments and so if the // 7 // Hypothecated vehicle was possessed, then there appears no deficiency in service on the part of the appellant Finance Company.
11. It has also been submitted by counsel for the appellant that in the whole of the complaint, it has not been stated that the vehicle was purchased by the respondent for self-employment for earning livelihood, as it was a commercial vehicle. This objection was specifically taken by the appellant before the District Forum that the vehicle was purchased for commercial purpose and so the complainant does not come in the category of 'consumer'. When this objection was taken, then it was the duty of the complainant to show that the vehicle was purchased for the purpose of earning livelihood by self- employment, but neither any pleading was made to that effect nor any proof was brought on record. So, on that ground also the complaint was required to be dismissed.
12. In view of the aforesaid discussion, we find that the order recorded by the District Forum is erroneous and is liable to be set aside. Therefore, the appeal succeeds and is allowed. The impugned order is set aside and the complaint filed by the respondent /complainant before District Forum is dismissed. No order as to cost.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/05/2012 /05/2012