State Consumer Disputes Redressal Commission
Hdfc Bank vs Sri Binod Kumar Gupta on 9 November, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/65/2011 (Arising out of Case No. 106/2010 of District Consumer Disputes Redressal Forum, North 24 Parganas , Barasat) DATE OF FILING : 10.02.11 DATE OF ORDER: 09.11.2012 APPELLANTS : 1. HDFC Bank, 1st Floor, Gillenders House, Netaji Subhas Road, Kolkata- 700 001. 2. The Authorized Officer, HDFC Bank, 1st Floor, Gillenders House, Netaji Subhas Road, Kolkata- 700 001. RESPONDENT : Sri Binod Kumar Gupta, S/O Sri Jagadish Prasad Gupta, 33, B.L. No. 10, P.O. Kankinara, P.S. Jagatdal, North 24- Parganas. BEFORE HONBLE MEMBER :
Sri Shankar Coari HONBLE MEMBER : Sri Debasis Bhattacharya FOR THE APPELLANTS : Mr. Prasanta Banerjee., Advocate.
FOR THE RESPONDENT : Mr. Rajesh Biswas., Advocate.
Debasis Bhattacharya, Member.
This appeal has been filed challenging the ex parte order dated 22.09.10 passed by the Ld. District Forum, North 24 parganas in C.C. 106/10.
In short, the case of the Respondent/Complainant in his petition of complaint is that he purchased a Santro Xing GL car in March, 2008 having registration no. WB-24K-1522 for a sum of Rs.3,82,000/- being financed by HDFC Bank Limited vide Auto Loan No. 12965970 for 60 EMIs @ Rs. 7,478/-on 27.03.08 and the car was insured with Bajaj Allianz Insurance Company Limited, and made payments of the EMIs until August, 2009, but due to sudden downfall in the business, the payment of EMIs from September, 2009, to November, 2009 could not be made. On 13.11.09 at about 12.30 p.m, when the Complainant was on his way to Kolkata in the car and halted for refilling petrol at Rathtala, Belghoria Petrol Pump, suddenly around five unknown miscreants boarded the car and took out firearms and pointed the same to him and his driver Sarwan Mahato and asked them to get down from the car who did so and those miscreants took away the car towards Kolkata. The Complainant went to Belghoria P.S. and made a complaint regarding theft of the car, but it was not registered. He also filed a petiton u/s 156(3), Cr.P.C. before Ld. Additional Chief Judicial Magisgtrate , Barrackpur for the offence u/s 384,IPC and the same was treated as FIR. On 18.11.09, the Complainant received two letters from the O.P. No.1 that his two accounts being nos. 12965970 and 145 26574 for payment of Rs.2,87,522.94 and Rs.74,895.77, respectively, within seven days from the date of the letter and also learnt that the goons and criminals who forcibly robbed the car were recovery men employed by the said Bank. Thereafter, on 01.12.09, the Complainant received another letter from the O.P. stating that the sale of the car has been affected and after adjusting the sale proceeds less expenses, an amount of Rs.1,23,918.71/- is due and payable as on the date of the said letter and called upon him to pay the same within seven days. As the O.P. without giving any proper notice and without affording appropriate time to the Complainant to make payment sold the car to third party which is malafide, arbitrary and bad in law which amounts to deficiency in service and the mode of recovery of the car under threat and pressure and through goons being completely illegal and criminal in nature, the Complainant claimed Rs.2,50,000/- towards loss of the car, Rs.1,00,000/- towards costs of harassment and mental agony, Rs.50,000/- as compensation and Rs.20,000/- as litigation costs.
By the impugned order, Ld. District Forum by allowing the case ex parte directed the O.P. to pay Rs.50,000/- as compensation and Rs.1,000/- as litigation cost and also a cost of Rs.1,000/-, which has been assailed in this appeal by the O.P.s thereof.
It is to be considered in this appeal whether such ex parte order is bad in law requiring interference.
Decision with reasons It has been noted by the Ld. District Forum in its judgment that the O.P. Bank repossessed the vehicle for default in payment of EMI by the Complainant and sold the same to a third party. It considered the fact as gathered from evidence of the Complainant that he made default in payment of three EMI consecutively. It also opined that the Complainant himself invited all these troubles by his own failure to pay the monthly instalment within the stipulated time. But, taking sympathetic view on the grounds of non-intimation to the Complainant and forcible possession of the said vehicle which amounted to deficiency in service, compensation of Rs.50,000/- was allowed in favour of the Complainant.
It has been the case of the Complainant that the O.P. without giving any proper notice and without affording appropriate time to the Complainant to make payment has sold the car to third party, which amounts to deficiency in service. But, Ld. Advocate for the Appellants has made out that by two letters dated 03.10.09 and 04.11.09, the O.P. sent notices to the Complainant in respect of Used Car Refinance Loan No. 14526574 and Auto Loan No. 12965970 urging him to pay the outstanding amounts of Rs.52,790.00 and Rs.2,81,679.16 within seven days from the date respectively, which the Complainant ignored and thereafter by two other notices dated 13.11.09, the Complainant was informed of recovery of possession due to defaults in payments of the monthly instalments in respect of those loans and also calling upon him to pay Rs.2,87,522.94 and Rs.74,895.77 being outstanding dues and overdue interest including collection, repossession and godown charges within seven days from the date of the letters in order to obtain release of the vehicle by him. So, there was intimation on the part of the O.P to the Complainant by such letters before repossession of the vehicle and the Complainant was afforded reasonable time to make payment before selling out of the vehicle, but the Complainant simply ignored them. There is no earthly reason that the Complainant received the letters dated 13.11.09, but did not receive the letters dated 03.10.09 and 04.11.09. Accordingly, after selling of the vehicle concerned, the Complainant was informed and was told to pay the outstanding amount of Rs.1,23,918.71. It is also urged by the Ld. Advocate for the Appellants that there was no relationship of consumer and service provider in between the Complainant and the O.P. He has relied upon a decision of the Honble National Commission in Revision Petition No. 3319/12, in which a reference was made of a decision of the Honble Supreme Court reported in (2006) 1 SCC 708 where it was stated that the financier can repossess the vehicle as agreement permits the financer to take possession of the finance vehicle. In that case, it was found that no force was used for repossessing the vehicle. As such, the Honble National Commission held that as per the agreement, there was no need to give prior notice and that the petitioner waddled out of his commitments and indisputedly he was the defaulter and the moment he did not pay the instalment, it gives the legal right to the financier to repossess the vehicle. In this case also there is no proper proof that the vehicle was really reposessed by the Appellants by using force, say by evidence of independent witnesses, especially from the persons manning the refilling petrol pump at Rathtala, Belghoria. In the said judgment, the Honble National Commission has quoted from the Honble Supreme Courts judgment reported in III (2012) CPJ 4 (SC) as under, Under the Hire Purchase agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee/trustee, therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financier.
The Court vide its judgment in Trilok Singh and Ors. Vs Satya Deo Tripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financer is the real owner of the vehicle, therefore, there cannot be any allegation against him for having the possession of the vehicle. This view was again reiterated in KA Mathai @ Baby @ Anr. Vs Kora Bibbikutty @ Anr., 1996 (7) SCC 212; Jagdish Chandra Nijhawan vs S.K. Saraf, IX (1998) SLT 477 IV (1998) CCR 118 (SC) -1999 (1) SCC 119: Charanjit Singh Chandha & Ors. Vs Sudhir Mehra, VI (2001) SLT 883- III (2001) CCR 232(SC) -2001 (7) SCC 417, following the earlier judgment of this court in Sundaram Finance Ltd., vs The State of Kerala and Anr., AIR 1966 SC 1178: Smt Lalmuni Devi vs State of Bihar and Ors., 1 (2001) SLT 26-1 (2001) CCR 9 (SC) 2001 (2) SCC 17 and Balinder Singh vs Assistant Commisioner, V (20050 SLt 195-III (2005) CCR 8 (SC) CCE 2005(4) SCC 146.
Also, it has quoted from its judgment in another case reported in II (2010) CPJ 163 (NC) as under, It is not disputed before us that the petitioner had raised a loan of Rs.6,15,000/- to purchase the truck. No statement of account showing repaying of loan instalments has been filed by the petitioner. It was admitted before the State Commission that the Petitioner had defaulted several times in making the payment of the dates when it was due. Further it is not disputed that as per Hire Purchase Agreement the financier was authorized to reposess the vehicle in case of default in repayment of loan instalments. Supreme Court of India in Managing Director Orix Auto Finance ( India) Limited Case (supra) has held that the financier can repossess the vehicle if the agreement permits the financier to take possession of the financed vehicle. There is nothing to show that the vehicle was repossessed forcibly. Mere fact that possession was taken by the respondents cannot be the ground to contend that the hirer is prejudiced. We agree with the view taken by the State Commission.
Accordingly, considering the facts and figures of the case, it is rather found that the Complainant was in fault and there is no question of granting compensation as ordered by the Ld. District Forum.
In the result, the appeal succeeds.
Hence, Ordered That the appeal be and the same is allowed on contest without cost. The impugned order is hereby set aside.
Debasis Bhattacharya Shankar Coari (Member) (Member)