State Consumer Disputes Redressal Commission
The Proprietor , Tirupur- 4 vs Sakthivel , Tirupur Taluk, Coimbatore ... on 14 December, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II F.A.NO.581/2007 (Against order in O.P.NO.42/2006 on the file of the DCDRF, Coimbatore) DATED THIS THE 14th DAY OF DECEMBER 2010 The Proprietor M/s. B.K. Finance 1/1, K.R.R. Layout Mangalam Road Karuvambapalayam Tirupur- 4 Appellant / Opposite party Vs. Sakthivel S/o. N. Velliyangiri Door No.878, Flower Bazaar Easwaran Koil Street Tirupur Taluk, Coimbatore District Respondent / Complainant The Respondent as complainant filed a complaint before the District Forum against the Respondent / opposite party praying for a direction to the opposite party to pay a sum of Rs.25000/- as compensation. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.18.9.2007 in C.O.P.No.42/2006. This appeal coming before us for hearing finally on 24.11.2010. Upon hearing the arguments of the counsels on either side, perusing the written arguments, lower court records and the order passed by the District Forum, this commission made the following order: Counsel for the Appellant/ Opposite party : M/s.V. Sanjeevi, Advocate Counsel for the Respondent/ opposite party: Mr. K. Balaji, Advocate M. THANIKACHALAM J, PRESIDENT 1.
The opposite party is the appellant.
2. The respondent/complainant, availing Hire Purchase facilities, from the opposite party, had purchased Bajaj Pulsar two wheeler, in the month of October 2004, bearing TN 39 Y 0979. In view of the unexpected loss, in the business, the complainant was unable to pay the instalment, as agreed, thereby causing default. On 30.9.2005, when he parked his vehicle, just in front of his shop, and attending business, the vehicle was taken away, for which a police complaint was given on 3.10.2005, and later came to know that the opposite party had seized the vehicle. Despite the complainant was ready and willing to pay the arrear, with interest, no opportunity was given, and offending the natural justice, the vehicle was seized, thereby causing mental agony, for which the complainant is entitled to a sum of Rs.25000/-, as compensation.
3. The opposite party, admitting the hire purchase agreement, as well as pleading the default in payment of monthly instalments, opposed the complaint, that in view of the default committed by the borrower, vehicle was seized, which cannot be termed as deficiency in service, since as per the agreement, no notice is contemplated, that after the seizure, even after giving notice, the complainant has not paid the amount, resulting sale of the vehicle, as per the terms and conditions of the hire purchase agreement, which cannot be faulted, thereby praying for the dismissal of the complaint.
4. The District Forum, concluding that the complainant had committed default in payment of monthly installments, as well as the opposite party has right to seize the vehicle, when the complainant had committed default in payment of EMI, has come to a strange conclusion, that after the seizure, immediately no notice was given, that should be construed as deficiency in service. In this view, a direction came to be issued against the opposite parties, to pay a sum of Rs.8000/- with cost of Rs.1000/- as per order dt.18.9.2007, which is under challenge.
5. Ex.B2, is the document, under which finance was provided, to the complainant, for the purchase of the vehicle, in which, the complainant also had agreed to pay the financial aid, in EMI, further specifically informing the vehicle will be seized if the hirer failed to pay any of the instalment on due date. Maximum seizing charges of Rs.1000/- will be charged for every time vehicle is seized. It also empowers, the sale of the vehicle also. By going through this document, we find no prior notice, required to seize the vehicle or immediate confirmation of the seizure of the vehicle. When, the agreement between the parties, does not contemplate, that a particular thing should be done, in a way, if that is done, that cannot be faulted. It is held by the courts, judicially, in a case of like this nature, if prior notice is a must, before seizing the vehicle, then there is every possibility, for the purchaser of the vehicle, who availed the hire purchase scheme, could take away the vehicle, from the reach of the hands of the financier, thereby making it impossible to enforce the agreement also. Therefore, prior notice, when it is not mandated, under the terms and conditions, cannot be introduced, under the guise of natural justice. The District Forum, has rightly came to the conclusion, that the complainant had committed default, upon which the opposite parties also entitled to seize the vehicle, and accordingly the vehicle is seized, in which act, we cannot find fault, which is the dictum of the Honble High Court of Madras, as seen from Sri Rama Machinery Corporation Limited, Vs. Standard Chartered Bank reported in 1999 (2) MLJ 210, as well as the Apex court in Charanjit Singh Chadha and others \vs. Sudhir Mehra, reported in AIR 2001 Supreme Court 3721, and this commission also, as seen from P.T.Chinnasamy Vs. Nagarjuna Finance Ltd., & Anr. reported in I (2002) CPJ 405.
6. In Ram DeshLahara Vs. Magma Leasing Ltd., reported in III (2006) CPJ 247 (NC) , even the National Commission, New Delhi, had taken the extreme view, that under Hire Purchase transaction, the financier does not render any service, within the meaning of Consumer Protection Act, and the petitioner is thus not a consumer. If this principle is made applicable, the complaint itself is not maintainable. Be it as it may, now, let us see on merit also.
7. The prayer in the complaint, is only for compensation of Rs.25000/-, based upon the alleged erosion of reputation, caused to him, including torture and mental agony, and nothing more. Therefore, the complainant should make out a case that, because of the seizure of the vehicle, how he was looked down, by others, admittedly, he being a defaulter.
Even in paragraph 4 of the complaint, they have admitted, that he was unable to pay the monthly installments, whatever may be the reasons. It is the specific case of the opposite parties also, that three monthly instalments were not paid. Therefore, as per the clause quoted above, the opposite party is entitled to seize the vehicle, and he has seized the vehicle also, though they failed to mention the date. We find no specific plea, as well as proof, that while seizing the vehicle, force or violence were used, by employing higher links, which is condemned by the Apex Court also, as far as the recognized financial institutions are concerned.
8. In order to say, as if without his knowledge, the opposite party had taken the vehicle, a plea was introduced, as if the vehicle was taken by somebody, for which a police complaint was given, for which we do not have material, such as registration of the case, leading to investigation etc. When a hirer, had seized the vehicle, for the amount payable to them, exercising the power, conferred under the Hire Purchase Agreement, that cannot be treated, as theft, as well as that cannot be termed as deficiency in service, which was not properly considered by the District Forum.
After the seizure of the vehicle, as seen from Ex.B4, on 7.10.2005, the opposite party had issued notice, to the complainant, informing to settle the account, within 7 days, though the amount is not mentioned, otherwise the vehicle will be sold, thereby giving a chance.
No case has been pleaded, pursuant to Ex.B4, the complainant approached the opposite party, asking for the details of the amount, offering to pay the amount, but the opposite party refused to accept the same. If that was the case, then we can certainly find fault, with the opposite party. But suppressing Ex.B4, as if he was put to mental agony, an imaginary one, case came to be filed, which was improperly accepted by the District Forum, for which we cannot endorse our view. For the above said reasons, the appeal is meritorious, to be accepted.
9. In the result, the appeal is allowed, setting aside the order of the District Forum in O.P.No.42/2006 dt.18.9.2007, and the complaint is dismissed. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Finance