State Consumer Disputes Redressal Commission
M/S Mahindra & Mahindra Financial ... vs K.Alfred on 23 March, 2023
F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023
M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Hearing: 03.03.2023
Date of Decision: 23.03.2023
FIRST APPEAL NO.-91/2020
&
FIRST APPEAL NO.-92/2020
IN THE MATTER OF
M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD.,
REP. BY ITS MANAGING DIRECTOR,
TRIUPATI HOUSE, 13, KANNAIAH STREET,
NEAR NORTH USMAN RAOD, T. NAGAR,
CHENNAI-600017.
(Through: Mr. Prashant Kumar, Advocate)
...Appellant
VERSUS
MR. K. ALFRED,
S/O S.K. DHARMARAJ,
NEW NO: 34/2, EAST VANNIAR STREET,
K. K. NAGAR-WEST,
CHENNAI - 600078.
...Respondent in person
DISMISSED PAGE 1 OF 35
F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023
M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Amit Singh, counsel for Appellant.
Respondent in Person.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The present Appeals have been transferred from State Consumer Disputes Redressal Commission, Chennai to State Commission Disputes Redressal Commission, Delhi vide order dated 20.11.2019 passed by the Hon'ble National Commission in Transfer Application no. 15 of 2019.
2. The facts of the case as culled out from the impugned common order dated 14.02.2014, passed by the District Commission (South Chennai), Chennai, in CC/96/2010 and CC/114/2012, are as under:
"1. The Complainant K. Alferd had obtained hire purchase loan for a sum of Rs.90,000/- from the Opposite Party Mahindra & Mahindra Finance Services Ltd during the year 2006 against his vehicle Maruthi LPG (LMV Motor Gab) car bearing No. TN-09- AR-4650 with EMI as Rs.9600/- payable in 10 monthly installments. The Complainant had paid the monthly installment to the Opposite Party without any fail till January 2007. Due to unexpected family situation, he was arrested by T.K. Mangadu police on 11.01 2007 and remanded to judicial custody and released on bail on 10.02.2007. In the meanwhile the cheque dated 30th January 2007 for Rs.9,600/- issued by the Complainant to the Opposite Party for the monthly installment was returned. After the complainant came out on bail, he had written to the Opposite Party on 17.02.2007 to represent the DISMISSED PAGE 2 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED cheque for encashment. The Opposite Party also had presented the cheque that was already returned for encashment and was encashed on 20.02.2007. After that the cheque given by the Complainant for the February month has been deposited by the Opposite Party in the bank and encashed on 01.03.2007. Likewise the cheque given for March month installment has been deposited and encashed on 04.04.2007. Further the cheque given for April month installment has been deposited and encashed on 02.05.2007. Thus the Opposite Party had collected 7 monthly installments out of the 10 monthly installments. While the Opposite Party who had collected the monthly installments in the above said manner had seized the car of the Complainant without his knowledge on 14.03.2007 from his house. While the Complainant has paid the monthly installments properly to the Opposite Party, based on the instigation of his wife, the Opposite Party had seized his car illegally, the Complainant had lodged a complaint against the Opposite Party before R.7.K.K Police Station and the police did not register any FIR for the same and hence the Complainant had filed a petition before the Madras High Court in Crl.O.P.No.8764/2007 and the Madras High Court had passed orders on 28.03.2007 to register a theft case. After that on 05.05.2007 a theft criminal case has been registered and enquiry was conducted. In the meanwhile the Complainant Alfred had written a letter to the finance company on 17.04.2007 and sought for No Due Certificate to file claim before the insurance company. The Opposite Party did not issue the No Due Certificate Again the Complainant Alfred had written a letter on 20.05.2007 to the Opposite Party stating that since they had illegally seized the vehicle and not only that they had encashed the sum of Rs.9,600/- in March and April 2007 towards the monthly installments and since the Opposite Party had seized the vehicle, he had written to the bank not to pay the EMI for the remaining 3 months. As the vehicle was handed over to the Complainant by the 23rd Metropolitan Magistrate Court, Chennai, he could not use the vehicle and earn income for 10 DISMISSED PAGE 3 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED months from March 2007 to December 2007 and he was put to severe mental agony. For the vehicle that has been illegally seized and handed over through the Metropolitan Magistrate Court, the vehicle had been taken from K.K.Nagar Police Station to ABT Maruti service Station by paying Rs.225/- and further he had paid Rs.12,643/- for replacement of batter, fuse filter, lock set steering, relay assembly. While the case is not yet concluded, on 17.07 2009, the opposite party had assaulted the Complainant and caused grievous injuries using their henchmen and seized the vehicle. Regarding this incident, a complaint was lodged before the Madhavaram Police Station. The Complainant was admitted as in patient at Stanley Hospital for 3 days. The Opposite Party are liable to pay a maximum compensation of Rs.10,00,000/- for their act. Further the Opposite Party are liable to pay the compensation for non usage of the vehicle for 10 months. In order to suppress their illegal act, the Opposite Party had issued notice demanding the Complainant to pay a sum of Rs.28,800/- as loan outstanding together with interest sum of Rs 54,292/-. The Opposite Party had handed over the vehicle to the Complainant at Anand Parking Yard that belonged to the Opposite Party through the Deputy Superintendent of Police, Madhavaram on 23.09.2009. At that time only the leather bag containing the Permit, Original R.C Book, Nokia Mobile Charger worth Rs.500/- 3CD File, 8 Syndicate bank cheques that was kept in the car was missing. Regarding this, a complaint has been lodged before Madhavaram on 21.07.2009.
The Complainant was made to run from pillar to post from March 2007 to December 2007 to get his vehicle from the Opposite Party that was seized by them illegally. And as the Complainant was made to lose his income of Rs.40,000/- per month for 10 months, the Complainant incurred a loss of Rs.4,00,000/- The Complainant had spent a sum of Rs.10,000/- towards litigation expenses. He had spent Rs.15,000/- towards towing the vehicle and repairing the vehicle. Though the mental DISMISSED PAGE 4 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED agony caused to the Complainant for the assault made on him on 17.07.2009 and the seizure of the vehicle is Rs.20,00,000/-, the Complainant limited his claim to Rs. 10,00,000/-. Totally the Complainant limits his claim to a sum of Rs.14,25,000/-. Though the Complainant had utilized the services of the Opposite Party, the Opposite Party did not provide good service to the Complainant. Due to the deficiency of service of the Opposite Party, the Complainant was put to severe mental agony and hence filed this complaint against the Opposite Party to direct them to pay a sum of Rs. 10,00,000/- towards causing physical injury, for mental agony and for their illegal act and a sum of Rs.4,00,000/- towards loss of income due to the seizure of the vehicle by the Opposite Party illegally, and a sum of Rs.25,000/- towards litigation expenses, towing of vehicle and repairing expenses and for other reliefs.
xxxx xxxx xxxx xxxx
3. Brief of the complaint filed by the Complainant in C.C.No.114/2012 is as follows:
After the complainant K.Alfred filed the C.C.No.96/ 2010 on 23.02.2010 and after trial, it is ordered by this Commission on 20.04.2011. The Complainant had filed this complaint seeking for compensation after filing an appeal on 23.02.2010 in F.A.No.676/2011 before the State Consumer Redressal Commission against the order of this Commission dated 16.06.2011. After the complainant lodged the complaint on 05.05.2007 after the theft of his car and the First Information Report is registered, he had filed Crl.O.P.No.24697/2010 before Madras High Court praying to direct the R.7.K.K.Nagar Police Station to file a final report in crime No.904/2007 dated 05.05.2007 and in the order dated 26.10.2010, it has been ordered to file a final report before 3 months. But R7 Inspector of Police did not file any final report within the stipulated time a Contempt Petition is filed in 1342/2013 before the Madras High DISMISSED PAGE 5 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED Court against the R7 Inspector of Police and it was closed. The Inspector of Police R.7 K.K.Nagar Police Station had filed the final report on 07.09.2011 before 23rd Metropolitan Magistrate Court. On 17.07.2009 the Complainant had lodged a complaint before Inspector of Police, M1 Madhavaram Police Station. As the Inspector did not register any case against it, the complainant had filed Crl.O.P.No.19525/2009 and in the order dated 14.09.2009 it is mentioned to take action against the accused. On 22.02.2011 in the petition filed under section 200 Cr.P.C before the Judicial Magistrate Court, Thiruvottiyur, it has been ordered directing the Deputy Superintendent of Police, Madhavaram to conduct enquiry on the personal appeal u/s 156(3) of Cr.P.C on 31.03.2011 u/s 34, 320, 341, 390, 392 IPC and to file a report. An FIR has been registered in Crime No.243/2011 dated 28.04.2011 before M1 Madhavaram Police Station against Thiru.Keshub Mahindra, Chairman, Thiru Anand Mahindra, Chairman & Managing Director u/s 34, 323, 341, 390, 392, 506(ii) IPC. As the final report was not filed within 90 days from the date of registration of First Information Report on 28.04.2011, Crl.O.P.No.18620/2011 was filed before Madras High Court and in the order passed by the High Court on 24.11.2011 it has been ordered to file the final report immediately. During the theft done by the Opposite Party on 17.07.2009 the R.C.Books, Original Permit, Original driving License, Original Insurance, 3 CD Files, Syndicate Bank Cheque leaves, Nokia car mobile charger had been stolen from his car and on 07.01.2010 the Complainant had paid Rs.55/- and obtained duplicate insurance policy from National Insurance company for the purpose of showing to the Regional Transport Officer at the time of inspection. As he could not obtain Fitness Certificate by showing the Original RC Book to the Regional Transport Officer from 12.05.2010, hence he could not earn any income using the vehicle. He could not renew his heavy vehicle license on 06.03.2010. Though the Complainant was the owner and driver of the Tourist Tax Registration No. TN-09 AR-4650, DISMISSED PAGE 6 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED since the Permit, License, Insurance, R.C.Book was not with him, he could not earn any income. The Complainant was made to run from pillar to post and subjected to an income loss of Rs.40,000/-
for 23 months. Thus the Complainant had incurred a loss of Rs.9,20,000/- He had spent Rs.50,000/- towards litigation and other expenses. Though more than Rs.10,00,000/- had occurred as compensation for mental agony, he had restricted his relief to Rs.19,70,000/-. Though the Complainant had used the services of the Opposite Party, the Opposite Party did not give good service to the Complainant. Due to the deficiency of service the Complainant was put to mental agony and unnecessary suffering. Hence he had filed the petition praying to pay a sum of Rs.9,20,000/-n as Complainant of loss of income of Rs 40,000/- for 23 months from 15.2.2010 to April 2012 and Rs.10,00,000/- for mental agony and suffering and Rs.50,000/- for litigation expenses."
2. The District Commission (South Chennai), Chennai after taking into consideration the material available on record passed the Common order dated 14.02.2014, whereby it held as under:
C.C.No.96/2010: It is admitted by both the parties that Complainant Alfred had obtained financial assistance of Rs.90,000/- for his owned car Maruthi LPG (LMV Tourist Motor Car) registration No.TN-09-AR-4650 from the Opposite Party in exhibit 2 loan agreement 25.09.2006 and agreed to pay the monthly installment of Rs.9,600/per month in 10 months. It has been mentioned that the Complainant had paid the installment till January 2007. In the letter written to the Opposite Party dated 17.02.2007, the Complainants stated that due to unexpected dispute arose in his family he was arrested by T-4 Mangadu Police Station on 11.01.2007 and was released on bail on 12.02.2007 and the cheque given to the Opposite Party for the monthly installment dated 3th January 2007 for Rs.9,600/- was returned and from what be mentioned in his letter that DISMISSED PAGE 7 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED "Due to unavoidable circumstances, I could not keep money in my account. Kindly reproduce the cheque for clearance and try to waive the charge which is payable by me as per the contract for humanitarian grounds;
Thanking you"
it is clearly seen that once the Complainant had come out from prison, he had given the letter dated 17.02.2007 in person stating that he could not keep sufficient money in his account and requested the Opposite Party to deposit the cheque for collection and it was received by the officer of the Opposite Party N.Krishna Kumar on that day itself. From Exhibit 5 of the Complainant side, it is clearly seen that the Opposite Party had encashed the cheque No.594893 on 20.02.2007. Further it is clearly seen from the Exhibit 5 of the Complainant side that the Opposite Party had encashed the cheque No.594894 for Rs.9,600/- on 01.03.2007 given for the month of February month installment. Likewise it is clearly seen from the Exhibit 5 of the Complainant side that the Opposite Party had cashed the cheque No.594805 for Rs.9,600/- 04.04.2007 given for the month of March month went from the Exhibit 5 of the Complainant side it is seen that the Opposite Party had encashed the cheque No.594896 for Rs.9,600/- on 02.05.2007 given for the month of April month installment. As per the exhibit 5 of the Complainant and as per the statement filed by the Complainant and from the Exhibit 5 on the Complainant side, it is clearly seen that the Opposite Party had encashed the 4 month installment for January month installment, February month installment, March month installment, April month installment. As the Complainant was in prison he could not keep money in his account for January month installment and once he came out immediately he had written letter and given it to the Opposite Party and the Opposite Party who had encashed it on 20.02.2007 and while they had also encashed the cheques given by the Complainant for the month of February, March, and April monthly installments, the DISMISSED PAGE 8 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED Complainant had given a complaint ExC3 before the R-7 K.K.Nagar Police Station that on 14.03.2007 he was not in his house and to find the car that was stolen and as no action was taken by the police, he had filed Cri.O.P.No.8764/2007 and by the order dated 28.03.2008 it was directed to register a case. Based on it in column 7 of the Exhibit 6 filed by the Complainant side registered on 05.05.2007 K.K.Nagar Police Station Crime No.904/2007 u/s 379 IPC, it was mentioned by the police that the details of suspect is not known. Through Exhibit 7 of the Complainant side I have purchased a omni car bearing registration No. TN.09.AR.4650 through hire purchase agreement No.510175 on 25.09.2006. I came to know at now you have taken the car from my house fraudulently, with all my valuable documents and properties. You are keeping the car in your custody and encashed the cheques for the month of March and April, 2007. Without any reason you have seized my car with malafide intention. You have no right to seize the same. Already I made a complaint before the R7 police station, K.K.Nagar for the missing of my car bearing registration No.TN.09.AR.4650. Your activities on your part is nothing but the theft and house trespass and also you are liable to pay me for the loss of income per month a sum of Rs.40,000/- (Forty thousand only) and mental agony.
Therefore, once again I request you to not to put the remaining cheques for collections. So I kindly request you to hand over the car to me immediately with the damages and the properties. Otherwise the cost and consequences will be yours.
from what was mentioned above, he had mentioned that as they had trespassed in to his house and taken away the car, it is equivalent to theft and hence he sustained monthly loss of Rs.40,000/- and caused mental agony and hence requested to hand over the car immediately and not to deposit the cheques in the bank that were given for the other monthly installments and DISMISSED PAGE 9 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED encash it. In the Exhibit 8 of the Complainant side, as the Complainant in his letter dated 28.05.2007 to the Manager Syndicate Bank he had mentioned that as he had given a complaint regarding the Omni Car in his name has got stolen and requested for stop payment of the cheque bearing No.594897 dated 30.05.2007 fee Rs 9,600/- given towards that vehicle. In Exhibit 9 of the Complainant side dated 28.05.2007 the letter written to Chennai West Regional Transport Officer he had mentioned that his Omni Car in his house got stolen on 14.03.2007 and he had given a complaint before Police Station regarding it. As per Exhibit 10 of the Complainant, in the letter dated 28.06.2007 written to the Manager, Syndicate Bank he had mentioned that the cheque No.594898 dated 30.06.2007 is the cheque be had issued for the said vehicle loan and requested for stop payment of the cheque No.594898 dated 30.07.2007 for Rs.9,600/- given to Mahindra & Mahindra Financial Service Ltd. As per Exhibit 11 of the Complainant it is clearly seen that in the letter dated 28.09.2007 Bajaj Allianz General Insurance Company Limited had stated that as it seems that the vehicle of the Complainant is with the Opposite Party finance company and hence rejected the claim of the Complainant. In Exhibit 12 of the Complainant in the letter written to the Commissioner of Police Chennai it had been mentioned that it is clearly seen that his car TN-09-AR-4650 Omni Car has been stolen by the staffs of Mahindra & Mahindra Financial Service Ltd. and he had paid the installments till May 2007 and it is clearly seen that he had requested that a case has to be registered against
1. Mr.Keshub Mahindra, Chairman
2. Thiru.Anand Mahindra, Vice Chairman Cum Managing Director
3. Thiru.Neelakanda Pillai, Manager
4. Thiru.Sridharan, Manager
5. Thiru.Murali, Manager
6. Thiru.Karthic, Manager DISMISSED PAGE 10 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED for the offence of trespassing into his house and stolen the car and requested to recover his Omni Car and also the Camera, Air Pump, Documents, Visiting Cards. As per Exhibit 13 of Complainant an order has been passed by 23 rd Metropolitan Magistrate Court, Saidapet directing to handover the car TN-09- AR-4650 white colour van connected with R-7 Police Station Crime No.904/2007 B.No.1056/2007 to the Complainant. In the counter and proof affidavit filed by the Opposite Party specifically in the counter filed in CC No.96/2010 in para 3 it has been stated that the wife of the Complainant Anitha Alfred stands as a guarantor and in the same counter in para 5 it is mentioned that the Complainant's wife Anitha Alfred expressed her inability to repay the loan and handed over the vehicle to the Opposite Party on 07.03.2007. As per Exhibit 11 of the Opposite Party, in the letter written by the Complainant's wife Anitha Alfred on 13.03.2007 it is mentioned that she cannot repay the future installments and hence she herself handed over the vehicle to the Opposite Party and there are no other high value materials in that vehicle and it is contended that the Complainant's wife had voluntarily handed over the vehicle. In C.C.No.114/2013 in Exhibit 13 filed by the Complainant in the notice issued by the 23rd Metropolitan Magistrate Court Saidapet to the Complainant it is stated that "it is hereby notified that with regards to the facts in the final report of the case registered as R-7P Police Station Cr. No 904/07 u/s 380 IPC based on the complaint dated 05.05 2007, the final report has been filed as mistake of facts and hence if you have any objection you shall appear before this court on 30.11.2011 at 2.30 p.m. and inform it"
Once the Complainant came out from prison he had applied to the Opposite Party to represent the cheque that was returned for the installment of January 2007 and the Opposite Party had deposited it with the bank and encashed it and after that while the cheques give for 3 months installments February DISMISSED PAGE 11 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED 2007, March 2007, April 2007 were deposited by the Opposite Party in the appropriate time and encashed it, it is clearly seen that the Complainant had paid the installment upto May 2007 regularly to the Opposite Party. As the Opposite Party had seized the vehicle from the Complainant's house and as no action was taken against the complaint given regarding this before the R.7 KK Nagar Police Station, the Complainant had filed petition Exhibit 4 and as per Exhibit 6 of Complainant the First Information Report was registered on 05.05.2007 and as per Exhibit 9 of the Complainant he had written a letter to Regional Transport Officer regarding the theft of the vehicle. As per Exhibit 10 of the Complainant as the Complainant could not use the vehicle, the Complainant had written a letter to the Syndicate Bank in Exhibit 10 requesting for stop payment instructions for the cheque given for June month installment. As per Exhibit 12 dated 16.03.2007 of the Opposite Party in the telegram they sent to the Complainant it though it is mentioned that "THE VEHICLE REGISTRATION No.TN09AR4650 MARUTI OMINI IS OUR CUSTODY DUE TO NON-
PAYMENT OF INSTALMENT MAHINDRA MAHINDRA FINANCIAL SERVICE Ltd. T.NAGER"
as per Exhibit 5 of the Complainant the cheque No.594893 for Rs 9,600/- was encashed on 20.02 2007 and the cheque No.1944 for Rs 9,000/- was encased on 01.03.2007 and hence it is seen that the Complainant had paid his installments for January, February. It is clearly seen that he is not a defaulter of installments and though the telegram has been given that the vehicle is seized because of the default of installment by the Complainant it is seen that the Opposite Party had seized the car of the Complainant illegally. In para 2 of the judgment made in AIR 2007 Supreme Court Page 1349 it is held that DISMISSED PAGE 12 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED HIRE PURCHASE:
FACTORS:
Very many banks and more importantly banks like ICICI have extended liberal credit facilities for purchase of vehicles whether two wheelers or four wheelers, more the number the targets are achieved. This results in a certain amount of default cases. The default can be two-fold (1) genuine and (2) fraudulent. Both, in the case of genuine and fraudulent the method usually adopted by these institutions is to engage thug/hooligan/gangster for recovery or the two wheelers or four wheelers. Many times even notice is not given to them. They seize the vehicles even in public places deliberately @page-SC1351 to cause embarrassment. There is no codification till date. This requires immediate attention. In all the cases of hire purchase, advance cheques for a period of 36 months or 48 months or 60 months are obtained and since there is no proper collection process, they not only seize the vehicles but also continue to present the cheques merely to harass the customers. A recent incident has taken place when the Recovery Agent had gone and threatened a school going child for the money due by the father. Unless we have an effective supervisory system the abuse will continue.
In this case also as pointed out by the Supreme Court it is clearly seen that while the Complainant had paid his installments regularly the Opposite Party has seized his vehicle and put him to untold hardship Further in para 2 of the same judgment it is held that In conclusion, we say that we are governed by a rule of law in the country. The recovery of loans or seizure of vehicles could be done only through legal means. The Banks cannot employ goondas to take possession by force.
DISMISSED PAGE 13 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023
M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED and it is mentioned that the banks should seized the vehicle only through legal means and it should not employ goondas to take possession of the vehicle.
In spite of being gone to prison, the Complainant with an intention to immediately pay the monthly installments of the loan availed against the vehicle, once he came out from the prison, from the way the Complainant had met the Opposite Party and given the letter Exhibit 2 and after that the cheques given buy the Complainant towards the monthly installments of February, March, April was encashed by the Opposite Party on appropriate time, it is clearly seen that using the family dispute between the Complainant and his wife, the Opposite Party had taken advantage and seized the vehicle of the Complainant illegally. The Complainant with a firm determination struggled with the Opposite Party and made to register the First Information Report Exhibit 6 through the High Court and got back his vehicle through 23rd Metropolitan Magistrate Court. In the order dated 16.11.2011 by the 23rd Metropolitan Magistrate Court, notice has been served on the Complainant stating that as in the final report of the crime No.904/2007 u/s 380 IPC filed by the police it is mentioned as "mistake of fact", the Complainant shall record his objection before 30.11.2011. In the Exhibit 16 the complaint lodged by the Complainant before M1 Madhavaram Police Station on 17.07.2009, he had stated that again on 17.07.2009 at about 9.00 in the morning when the Complainant was driving in his vehicle at Ponnambalam Salai, K.K.Nagar a person called from the cellphone number 9445009275 and booked for travel to Redhills and boarded his car (Call Taxi Reg.
No.TN 09-AR-4650 and asked him to go to T.Nagar and near ESSAR PETROL BUNK in front of Moolakkadai rider, they told that they needed to pass urine and after they get down. they asked him to get down and when the Complainant refused to get down, they had pulled him by his neck and injured him with nails and pushed him down and they had boarded his car and driven to DISMISSED PAGE 14 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED Anand Parking Yard and he run and boarded in the back seat and called 100 and the Inspector of Police came but did not take any action and taken him to outside of the Yard and left him over there and it is clearly seen that all the above activities are done by Mahindra & Mahindra Financial Services Ltd. with the help of the police and hence requested to conduct proper investigation and to take action against the persons and Mahindra & Mahindra Financial Service Ltd. staffs and to recover his vehicle and further he feel endanger to his life and if anything happens to him the staffs of Mahindra & Mahindra Financial Service Ltd are responsible for it and from this it is clearly seen that the Opposite Party had taken action illegally In Exhibit 17 Discharge Summary of AR O.2359253, Stanley Hospital, it is clearly seen that the Complainant had been admitted as in patient in Stanley Hospital on 17.07.2009 and discharged on 19.07.2009 and there are abrasive wounds in his right hand and swollen injuries and abrasive wounds in his back. Hence it is clearly seen that the Opposite Party had seized the vehicle illegally on 17.07.2007 by employing goondas that was already handed over to the Complainant by 23rd Metropolitan Magistrate Court on 26.12.2007. As the Complainant could not use his vehicle he had informed the Syndicate bank for stop payment instructions of the cheques he issued for the installments. While the vehicle has been handed over to the Complainant by 23 rd Metropolitan Magistrate Court, the contention put forth by the Opposite Party that the vehicle has been seized in accordance with the clauses of the agreement is not acceptable. On 20.07.2009 in the letter issued by the Opposite Party to the Complainant and his wife it is mentioned that 3 months installments were not paid for the past 27 months and hence a sum of Rs.28,800/- with 36% late charges had to be paid and Rs.54,293/- towards other expenses are outstanding and it the outstanding amount of Rs 83,092/- in not paid the action would be taken in accordance with the agreement By seizing the vehicle illegally on 17.07.2009 by employing goondas, in order to escape DISMISSED PAGE 15 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED from that responsibility, the Opposite Party had issued notice to the Complainant and his wife on 20.07.2009 to pay the outstanding amount as per the clauses of the agreement. When the vehicle was seized on 17.07.2009 they did not give notice for seizing vehicle in accordance with the judgments of Supreme Court and National Consumer Redressal Commission In the complaint of the Complainant Exhibit 20 lodged before the Madhavaram Police Station, it in stated that "Yesterday on 20.07.2009 based on the order of the higher officials, the Sub Inspector of Police (K GOPALA KRISHNAN) had taken me to ANAND PARKING YARD and told me to take the important documents Even before I open the car using the extra key. I had pointed out to the Sub Inspector that the dicky is not locked. After that I had taken my leather bag and some of the documents and had given it in writing that 1 had received the documents. Hence I humbly inform that the registration certificate (original), permit (original), insurance (original) Nokia Car Charger worth Rs 500/- and 3 CD files had been stolen from my bag. Further the Syndicate Bank Cheques 8 leaves from No.389633 to 389640 are also stolen. Hence I humbly request you to recover my car No. TN 09 AR 4650 and the other documents, charger, cheques"
From the above it is seen that the Complainant had mentioned in the complaint that the registration certificate (original), permit (original), insurance (original) Nokia Car Charger worth Rs.500/- and 3 CD files had been stolen from his bag are stolen and 8 cheque are also stolen and he had requested to recover it. The Complainant through his Exhibit 21 had admitted that Assistant Commissioner Thirumathi Ani Vijaya had recovered his vehicle on 23.07 2009 from Anand Park Yard. But in the complaint he had requested to recover the RC Certificate, permit certificate 3 CDs, 8 cheques, Nokia car battery charger and extra key of the car and also requested to take legal action against the goondas. In the Exhibit 5 of the Opposite Party in DISMISSED PAGE 16 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED Crl.O.P.No.23406/2011 by the Madras High Court though it has been mentioned that the First Information Report in crime No.243/2011 in M1 Madhavaram Police Station against Keshub Mahindra, Anand Mahindra has been quashed, in the same order it is mentioned that the First Information Report is quashed only against the said 2 persons and it is clearly that "But quashing of this F.IR in respect of these two petitioners wall not in any manner deter in the investigating officer to continue with the investigation in respect of the rest of the accused and in respect of any other accused, who has not been named in the FIR."
It is seen that even after the quash of Exhibit 4 of the Opposite Party the First Information Report registered in Crime No 243/2011 with regard to 1, 2 accused in column No.7 details, the Exhibit 10 on the Complainant side the appeal filed against the other persons under section 200 Cr.P.C. before Judicial Magistrate Thiruvottiyur is pending Further as per Exhibit 15 of the Complainant the Madras High Court had ordered to file a final report at the earliest in Cr. No.243/2-011.
It has been contented on the Opposite Party side that the Opposite Party had taken action as per the agreement and a case has been filed before Arbitrator as per the clauses of the agreement and the vehicle had been seized as per the Exhibit 10 of the Opposite Party the letter dated 07.03.2007 given by the Complainant's wife and as per Exhibit 11 of the Opposite Party and there is no deficiency of service in the seizure of the vehicle. After the Complainant came out from the prison, with an intention to pay the unencashed cheque amount he had met the Opposite Party in person on 17.02.2007 and given letter to represent the cheque for collection and accordingly after encashing the cheque on 20.07.2007, and then enchased the February monthly installment cheque on 01 03.2007 based on the instigation from the Complainant's wile, taking advantage of DISMISSED PAGE 17 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED the family dispute between them, the Opposite Party on 13.03.2007 had and the vehicles per Exhibit 10 and 11. while the Complainant who had received the man was repaying regularly, it is clearly seen that the Opposite Party had acted against the principles of natural justice based in the condition in the contract that without citing any reason the vehicle can be seed. After the complainant had given the complaint before KK Nagar Police Station the First Information Report has been register and the vehicle has been handed over to the Complainant through 23 Metropolitan Magistrate Court. It is clearly seen that the Opposite Party had acted against the principles of natural justice by collecting the installments in the appropriate time for the months of March 2007, April 2007 and May 2007 based on the cheques given by the Complainant Though on the Opposite Party side, the judgment made in CDJ 2013 Punjab SCDRC 108 Court: Punjab State Consumer Disputes Redressal Commission Chandigarh Case No.: First Appeal No 1368 of 2008 is cited and contented that there is no deficiency of service on the Opposite Party service, however the judgment of the case cited above has a vast difference from this case. In the said judgment as it is mentioned as "The appellant has purchased the vehicle in question for commercial purpose as the family of the appellant is running the transport business under the name and style of "Kansal Group"
and as per Ex R-7 the appellant is one of the partners of "Kansal Group" and the plea of earning livelihood is false and the complaint is not maintainable and the order passed by the District Forum is legal and valid and the appeal may be dismissed."
DISMISSED PAGE 18 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023
M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED And in this case the Complainant had received loan for his vehicle through Hire Purchase Agreement for his self employment it is decided that the said judgment deciding that the Complainant is not a consumer as per law does not fit for this case.
In the judgment made in
CDJ 2010 SC 1177
Court: Supreme Court of India
Case No. Civil Appeal No 10650 of 2010 (Arising out
of SLP (C) No.9526 of 2010)
It is held that the Complainant had purchased it for commercial purposes and hence the Complainant is not a consumer. But from the facts of this case, the Complainant Alfred had purchased the vehicle and obtained loan from the Opposite Party through Hire Purchase Agreement and as it seems that he himself is driving the vehicle to earn his livelihood it is decided that the Complainant is a consumer as per Consumer Protection Act and as the facts of the judgment cited by the Opposite Party is contradictory in all ways, we decide that the above judgment cited by the Opposite Party does not fit for this case in anyway.
It has been contended by the Opposite Party that the Complainant's wife Anitha Alfred voluntarily came forward and handed over the vehicle and hence there is no deficiency of service in the seizure of the vehicle and in support of the same the judgment made in CDJ 2013(Cons.) Case No.174 Court: National Consumer Disputes Redressal Commission (NCDRC) Case No. First Appeal No.588 of 2007 has been cited. In that case in which the National Consumer Disputes Redressal Commission held that the finance company acted in accordance with rules and hence there is no deficiency of service in the act of the Opposite Party, the Complainant had DISMISSED PAGE 19 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED himself come forward and handed over the vehicle to the finance company stating that he could not pay the monthly installments But in this case the Complainant knowing that he did not pay the monthly installment when he was in prim and hence after coming out from the in prison and given letter to Opposite Parts and asked to represent the cheque to encash it the bank and accordingly the Opposite Party deposited the cheque and encashed it on 20.03.2007 and after that the Opposite Party had deposited the post dated cheques given for the three monthly installments of February 200, March 2007 and April 2007 in the appropriate date and encashed it, we decide that the act of the Opposite Party seizing the vehicle from the house of the Complement without his knowledge is illegal and the act of the Opposite Party an advantage of the family dispute of the Complainant seizing the vehicle without issuing any notice to the Complainant in violation of the orders passed by National Consumer Disputes Redressal Commission and the Supreme Court is illegal.
Though the Opposite Party cited the judgment held in CDJ 2013 APSCDRC 118 Court: Andhra Pradesh State Disputes Redressal Commission Hyderabad Case No. F.A.No.478 of 2012 Against Ccno. 8 of 2012 District Forum 11, Vijayawada Krishna District as the facts of the above said case is totally different from the facts of this case in all ways, we decide that the judgment of the above said case does not fit into this case.
On the Complainant side the judgment held in CDJ2013 (Cons | Case No.309 Court: National Consumer Disputes Redressal Commission (NCDRC) DISMISSED PAGE 20 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED Case No. Revision Petition No.902 of 2013 has been cited. In the said judgment, it is held that "Thus this is a case where we are compelled to issue directions under section 14 of the Consumer Protection Act to re-deliver the vehicle in question to the complainant and reschedule the repayment schedule. Respondents shall not be entitled to any interest for the time the vehicle remained in their possession. If the vehicle has been re-sold and the same cannot be delivered to the complainant in that case the respondents No. 1 to 3 are directed to pay the entire amount received from the complainant coupled with the margin money less depreciation @ 10% along with interent.9% w.e.f. date of repossession. Complainant is also entitled 10:
compensation to the tune of Rs. 10,000/-. If the respondents are not in a position to re-deliver the vehicle. Thus complaint stands allowed aforesaid. File be consigned to the record room after the compliance."
Further in the same judgment it has been mentioned that "In view of the above, it is held that the revision petition is without any merit. It has obviously been filed only to delay the payment of the rightful claim of the respondent/complainant and waste the time of this commission in frivolous proceedings. The reunion petition is consequently dismissed for want of merit with punitive cost of Rs. 10,000/ The same shall be deposited in the Consumer Welfare Fund of the Central Government in terms of the provision in Rule 10A of the Consumer Protection Rules 1987 This amount shall be paid within a period of two months failing which it will carry interest at 11% p.a for the period of delay"
In the judgment made by Supreme Court in AIR 2007 Supreme Court page 1349 it has clearly held that for the recovery of loans against the vehicles, the finance companies should not take law in their hands and employing goondas is against law and DISMISSED PAGE 21 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED mentioned the RBI guidelines and the vehicles shall be seized only through legal means after serving proper notice. But in this case the Complainant who after realizing that the cheque he had given got returned during the time when he was in prison and hence after he come out he had met the Opposite Party in person and repaid the amount and from the important documents it is clearly seen that the Opposite Party had seized the vehicle of the Complainant thereby acting against the Complainant as well as against the conditions and judgment of the Supreme Court cited above.
IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act1986) Date of Decision: 02.11.2007 Complainant Case No CC 2007/49 Shri Tapan Bose, S/o Palan Bose, R/o A 10, Ganesh Nagar Complex, Delhi-100092 Complainant Versus ICICI Bank Ltd.
9th Floor, South Towers, ICICI Towers, Bandra Kula Complex Bandra (E) Mumbai... and others Opposite Party 1 The facts in the judgment of the above case by the Delhi State Consumer Dispute Redressal Commission and the facts of this case are identical in all ways. In para 29 of the above judgment it is held that DISMISSED PAGE 22 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED "In the case when the vehicle was reposed by use of force, and thereafter, sold without informing the complainant, in our view, it would be unjust to direct the consumer to pay the balance amount as alleged by the financer to be outstanding. If such a relief is given to the money lender/financer it would be unjust enrichment to the money lender and against equity. The question may arise for consideration only if the complainant willingly surrenders the vehicle for sale and for recovery of the outstanding amount. Then, in such cases, consumer dispute would not arise."
In the same judgment in para 31 it is held that "Whenever the financer chooses to take possession of the vehicle and sell it, it has to refund the contribution and payment made by the person concerned after adjusting the unpaid installment in the sale proceed that too till date of seizure of the vehicle and not beyond that as no person can be deprived of the amount contributed towards the purchase price of the vehicle and financer or Bunk cannot be allowed encashment of pant dated cheques as the vehicle or for that purpose any goods against which Sean was advanced has been seized and the consumer spite of being me of the vehicle is no more in possession of the goods fur which he had raised the loan nor is he is a position to enjoy the frats. With and sale of vehicle or goods the contract stands terminated and the ban amount stands recovered (V) in such a situation financer recovers the dues accruing from the unpaid installments and the principal by seizing and selling the vehicle Hence all the post dated cheques have to be returned. In case it intends to return the vehicle, can do so on payment of unpaid instalments due by that date (VI) Further the sale price of such a vehicle cannot be fixed by the financer at its whims or caprice. Experience shows that DISMISSED PAGE 23 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED one or two year old vehicles are sold off at throwaway or at half or lime more value to the known people or friends or by way of an auction. That is why we have taken the view that cost i.e. sale price of the vehicle shall be assessed and adjusted by way of depreciated value 5% per year in case of passenger vehicle and @10% in case of commercial vehicle.
(VII) Further whenever financer or Bank chooses to repossess the vehicle by employing musclemen or goons as recovery agents and without being equipped with the order from the Civil Court such financer has to compensate the consumer on account of mental agony, harassment, humiliation, emotional suffering and injury suffered by the consumer and insult he and his family members suffer."
In C.C.No.96/2010 the Complainant had stated that his vehicle has been seized illegally from his house by the Opposite Party on 14.03.2007 and had proven the same. It is clearly seen from the Exhibit 3 of the Opposite Party that the Complainant had retaken the possession by executing a bond for Rs.3,00,000/- on 03 12.2007 through the order made by 23 Metropolitan Magistrate Court Hence it is clearly seen that due to the illegal act of the Opposite Party, the Complainant was unable to use his vehicle from 14.03.2007 to 03.12.2007 and put to income loss. Further as per Exhibit 15 of the Complainant as it is clearly seen that he had got his vehicle in a running condition only on 26.12.2007 after repairing his vehicle, he had stated that he was put to income loss for about 9 months from 14.03.2007 to 26.12.2007 since he cannot use his vehicle and hence he incurred loss to the tune of Rs 4,00,000/- at Rs 40,000/- per month for 9 months. Further as per Exhibit 14 of the Complainant he had paid Rs 225 for towing the vehicle to the workshop of ABT Maruthi. It is seen that he had spent an amount of Rs 12,643.88/- towards repair of the vehicle to make it running on the road.
DISMISSED PAGE 24 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023
M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED It is clearly seen from exhibit 16 of the Complainant that while he had retaken possession of the vehicle from 23 Metropolitan Magistrate Court and got it repaired, again on 17.07.2009 the Opposite Party with the aid of the goondas had attacked the Complainant and seized his vehicle illegally. Hence the Complainant had mentioned that the vehicle of the Complainant that was seized illegally on 17.07.2009 by the Opposite Party was given repossession to him from the Anand Park Yard as per Exhibit 21 of his side. In the same Exhibit 21 of the Complainant, he had requested the police to recover his R.C., permit, Insurance certificate 3 CDs, 8 cheques; Nokia Car charger and the extra car key that were stolen. In the Exhibit 19 of the Complainant dated 21.07.2009 he had stated that based on the instructions of the higher officials, the Sub Inspector had taken him to Anand Park Yard and asked him to take the important documents, however even before he open the car with his extra key, he pointed out that the dicky was not locked and he had taken few documents from his leather bag and had given it in writing that he had received the documents, how the R.C.Original, Permit Original, Insurance Original, Nokia Car Charger worth Rs.500/- the 3 CDs in which he had stored files are all stolen from the bag and further 8 cheque leaves are stolen. and from this as the Opposite Party did not handover the R.C.Original, Permit Original, Insurance Original, Nokia Car Charger worth Rs.500/- that belonged to the Complainant to the Complainant, we decide that the Opposite Party are duty bound to pay compensation for the above said materials. It clearly seen from the 2 complaints (C.C.No.96/2010, CC.No.114/2012 filed by the Complainant that the Opposite Party did not handover the said documents to the Complainant. Hence as it is seen that since the Opposite Party had seized the Complainant's vehicle for the second time illegally on 17.07.2009 by employing goondas, the Complainant was unable to use his vehicle without R.C. Original, Permit Original Insurance Original, Nokia Car Charger worth Rs 500/- due to the act of the Opposite Party, it DISMISSED PAGE 25 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED is seen that the Complainant is barred from using his Maruti car for driving to earn his livelihood from 17.07.2009. It has been contended by the Opposite Party that the case in C.C.No.114/2012 filed by the Complainant is affected with prejudice.
The Complainant had sought for compensation of Rs.9,20,000/- at Rs.40,000/- per month as loss of income for 23 months from 12.05.2010 the date of filing of C.C.No.114/2012 to till April 2012. Further he had sought for Rs10,50,000/- as compensation for towards mental agony.
The Complainant had sought for compensation of Rs.40,000/- per month as loss of monthly income for unable to use his vehicle due to the act of the Opposite Party. This seems to be exorbitant. However, as it is seen that the Complainant is driving his own vehicle, it is fixed that the Opposite Party shall pay a sum of Rs. 15,000/- as compensation as loss of monthly income. The vehicle could not be used by the Complainant due to the act of the Opposite Party However, as per Exhibit 6 of the Opposite Party it is stated that the case has been referred for Arbitrator as per the agreement and though it is stated in the Exhibit 7 of the Opposite Party to appear before the Mumbai Office on 11.12.2000 at 11 30 hours morning, and though as per Exhibit 13 of the Complainant notice has been sent on 16.03.2007 to pay the outstanding amount of Rs 58,488/-, as cited in para 29 of the judgment made in Delhi State Consumer Dispute Redressal Commission, it is held that "In the case when the vehicle was reposed by use of force, and thereafter sold without informing the complainant, in our view, it would be Must to direct the consumer to pay the balance amount alleged by the financer to be outstanding. If such a relief is given to the money lender/financer it would be unjust enrichment to the money lender and against equity. The question may arise for consideration only if the complainant willingly DISMISSED PAGE 26 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED surrenders the vehicle for sale and for recovery of the outstanding amount. Then, in such cases, consumer dispute would not arise.""
and so, the Complainant only after making payments for monthly installments for February 2007, March 2007, April 2007, he had informed to the bank through the Exhibit 10 letter dated 28.06.2007 requesting for stop payment instructions for the two cheques 584998 dated 30.06.2007 and 584999 dated 30.07 2007 Hence since the Opposite Party had seized the vehicle of the Complainant illegally as decided by the Delhi State Consumer Dispute Redressal Commission that there balance amount shall not be paid, we decide that the Complainant shall not pay any amount towards the monthly outstanding installment to the Opposite Party. Hence it is ordered that the Opposite Party shall issue No Objection Certificate with regard to the vehicle connected to this case to the Complainant within 3 months from the date of this judgment.
It is decided that the Complainant shall be paid a sum of Rs. 15,000/- per month for 10 months from 14.03.2007 to December 2007 for non usage of the vehicle by the Complainant due to the act of the Opposite Party as mentioned in the complaint No.96/2010. It is decided that the Opposite Party shall pay Rs 225/- towards towing of vehicle from ABT Maruthi Workshop and Rs.12,643.88 paise towards repair charges of the vehicle. And as per the Exhibit 17 of the Complainant and from the facts and documents of the case, it is clearly seen that the Complainant was not able to use the vehicle from 17.07.2009 to till date. Hence it is ordered that the Opposite Party shall pay a sum of Rs 8,25,000/- at the rate of Rs.15,000/- per month for 55 months till the date of this judgment (14.02.2014) as compensation to the Complainant for inability to use his vehicle.
It is seen from Exhibit 17 of the Complainant that the Complainant has been attacked by the goondas of the Opposite DISMISSED PAGE 27 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED Party and had been admitted as in patient in Stanley Hospital for 3 days And in Exhibit 17 of the Complainant, it is seen that the Complainant sustained abrasive wounds and swollen injuries in his body. The Complainant had filed an appeal under section 200 Cr.PC. before the Judicial Magistrate Court. Thiruvottiyur. And due to the atrocities of the Opposite Party, he had filed Cri.O.P.No.8794/2007 before Madras High Court. He had also appeared in the Crl.O.P No.234/2011 filed by the Opposite Party before Madras High Court. Hence due to the illegal act of the Opposite Party, the Complainant was attached and was made to run between court and Police Station, though the Complainant had sought for compensation of Rs.10,99,000/- in both the cases towards mental agony and suffering, it seems to be exorbitant. However considering the nature of the case, as it has been ordered for the compensation for the loss of monthly income, it is ordered that the Opposite Party shall pay a sum of Rs.2,00,000/- to the Complainant towards compensation for mental agony and suffering In para 33 of C.C.No.2007/49 dated 02.11.2007 by Delhi State Consumer Dispute Redressal Commission, it is held as follows: Complaint is allowed in terms of following orders:-
(i) OP shall pay lump sum compensation of Rs.5 lacs including the margin money and money paid by the complainant towards loan amount, for the sufferings and gracious injuries caused by their agents in brutal and boorish manner and throwing him on the road in profuse bleeding condition that made him to be admitted in the hospital for more than two weeks and stitching serious wounds on the skull/its back, towards medical expenses as well as public humiliation, mental agony, trauma, emotional sufferings, physical discomfort and great injustice done to him.
DISMISSED PAGE 28 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023
M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED
(ii) OP shall further return all the post dated cheques from the date of seizure and if any of them has been encashed shall refund the amount thereof.
(iii) We impose punitive damages of Rs 50 lacs as a deterrent for OP's audacity and impunity with which they have been violation orders of this Commission, National commission and even Hon'ble Supreme Court by including in such an abominable and uncivilized conduct by taking the law in their hands and enforcing their right, if any, through musclemen and goons and in the process causing multiple and serious injuries in the broad- day light and humiliating and insulting the mam before the public. This amount shall be deposited in favour of State Consumer Welfare Fund (Legal Aid)."
As common orders are passed in both the cases filed by the Complainant, there is no separate order passed for ceno.114/2012. The orders are passed that the compensation amount shall be deposited within 3 months from the date of orders failing which it should be deposited with 15% interest from the date of order till the date of deposit.
It is ordered that the Opposite Party shall pay a sum of Rs.1,50,000/- towards loss of income from 14.03.2007 to 26.12.2007, Rs. 225/- for towing the car from K.K. Nagar to ABT Maruthi Service Station, Rs 12, 643/- towards the amount spent for repair of the vehicle, Rs.8,25,000/- towards loss of income for 55 months at Rs. 15,000/- per month for inability of usage of vehicle from 17.07.2009 to till date (14.04.2014), Rs.2,00,000/- as compensation towards mental agony and sufferings caused, so a total sum of Rs. 11,87,868/- is to be paid by the Opposite Party to the Complainant. Further it is ordered that the Opposite Party shall issue No Objection Certificate for the vehicle connected with this case within3 months from the date of this order. It is ordered that the Opposite Party shall pay a sum of Rs.10,000/- to the Complainant towards litigation expenses.
DISMISSED PAGE 29 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023
M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED
7. In conclusion, it is ordered that the Opposite Party shall deposit a sum of Rs 11,87,868/- (Rupees Eleven Lakhs Eighty Seven Thousand Eight Hundred and Sixty Eight only) to the Complainant within 3 months from the date of this order, failing which it should be deposited with 15% interest from the date of this order till the date of deposit. And it is ordered that the Opposite Party shall issue No Objection Certificate for the vehicle connected with this case to the Complainant within 3 months from the date of this order. And it is ordered that the Opposite Party shall pay a sum of Rs.10,000/- (Rupees Ten Thousand only) to the Complainant towards litigation expenses."
3. Aggrieved by the aforesaid impugned order of the District Commission, Chennai, the Appellant/Opposite Party has preferred two Appeals contending that the District Commission failed to consider the fact that the relationship between the Appellant and the Respondent is of lender & borrower which is purely of contractual nature and should be governed by the civil law. The Appellant further contended that the District Commission has erred in establishing deficiency on the part of Appellant and held it liable for illegal recovery of the vehicle and erroneously directed the Appellant to pay compensation to the Respondent. The counsel for the Appellant also submitted that the District Commission failed to appreciate the fact that the Appellant has defaulted in paying the EMI's according to the loan agreement executed between the parties. Pressing the aforesaid contentions and submissions, the counsel for the Appellant prayed for setting aside the common impugned order.
4. Perusal of record shows that the Respondent had failed to file the reply to both the Appeals, however, a cross appeal has been filed by the Respondent, wherein, he submitted that the District Commission, Chennai has failed to DISMISSED PAGE 30 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED consider his claim and the multitude of evidences that was presented before it, while deciding the quantum of compensation as the deficiency on the part of Appellant has already been established before the District Commission. Pressing the aforesaid submission, the Respondent filed the cross Appeal for setting aside the common impugned order and prayed for the enhancement of compensation.
5. We have perused the material available on record and heard the counsel appeared on behalf of the Appellant as well as the Respondent.
6. The first question for consideration before us is whether the hire purchase agreement, executed between the parties bars the jurisdiction of Consumer Commission.
7. The Appellant had contended that the relationship between the Appellant and the Respondent was that of a lender & borrower; which was purely of contractual nature. Moreover, the alleged transaction was merely a financial transaction where no customer-consumer relationship arises between the parties.
8. To resolve this issue, we deem it appropriate to refer to the definition of consumer as defined under section 2(1)(d) of Consumer Protection Act, 1986, which defines it as follows:
"(2)(1)
(d) "consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or DISMISSED PAGE 31 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.-- For the purposes of this clause, "commercial purpose"
does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;"
9. Further, it is imperative to refer to the Revision Petition no. 3355 of 2007 titled as "Mahindra and Mahindra Financial Services Ltd. and Ors. vs. Ramesh Sawant" decided on 07.03.2017, wherein the Hon'ble National Commission has held as follows:
"9. The first point for consideration in the present case is whether in the case of a hire-purchase agreement, the borrower comes under the definition of 'consumer' or not and hence, whether the consumer complaint made was maintainable before the consumer fora. The matter has been discussed in detail in an order passed by a three- member Bench of this Commission in Revision Petition No. 134 of 2007, Yogendra Saxena vs. Manager Chhindwara Tractors (Motors) & Anr. and other connected matters. It was held, vide order dated 25.08.2015, 'that the borrower does come within the definition of 'consumer' and hence, it is held that the complaint is maintainable before the consumer fora."
10. From the aforesaid statutory position and the settled law discussed above, it is clear that a consumer means any person who hires or avails of any services for a consideration and it does not include a person who avails of such services for any commercial purpose. Further, in the present case, we find that DISMISSED PAGE 32 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED Respondent had hired or availed the services of the Appellant in order to arrange finance for the purchase of the vehicle in question. Therefore, applying the above settled law, it is clear that the provisions of Consumer Protection Act, 1986 are applicable in the instant matter, even though there exists a contractual relationship between the parties. Hence, the contention raised by the Appellant is answered in negative.
11. The next question for consideration before us is whether the District Commission, Chennai erred in establishing deficiency on the part of Appellant.
12. The Appellant had submitted that the Respondent had defaulted in paying the EMIs in accordance with the loan agreement. On perusal of record, we find that the loan agreement dated 25.09.2006 was executed between the Appellant and Respondent, whereby, Respondent agreed to pay the monthly installment of Rs. 9,600/- for 10 months. It has been mentioned that the Respondent had paid the installment till January 2007. However, due to unexpected family situation, he was arrested by T.K. Mangadu police on 11.01.2007 and remanded to judicial custody and released on bail on 10.02.2007. In the meanwhile, cheque dated 30th January 2007 for Rs. 9,600/- issued by the Respondent/Complainant to the Appellant/Opposite Party for the monthly installment was returned but when the Respondent came out on bail, he wrote a letter dated 17.02.2007 to the officials of the Appellant and requested them to present the cheque again for the encashment. The Appellant had presented the cheque that was already returned by the bank and got it encashed on 20.02.2007.
13. Thereafter, the record clearly divulges that the cheque for the month of February, March and April were deposited and encashed by the Appellant on 01.03.2007, 04.04.2007 and 02.05.2007 respectively. Thus, the Appellant had DISMISSED PAGE 33 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023 M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED collected 7 monthly installments out of the 10 monthly installments from the Respondent. More so, it is clear from the record that the Respondent was quite consistent in paying the monthly installments, however, the Appellant, who had collected the monthly installments in the above said manner had seized the car of the Respondent without his knowledge on two different occasions; firstly on 14.03.2007 from his house and secondly on 17.07.2009 by engaging goons and using force upon the Respondent. Moreover, it was only after the first incident when the vehicle was seized by the Appellant, the Respondent instructed Syndicate Bank to stop the payment of remaining installments as the car was illegally seized by the Appellant.
14. Therefore, from the aforesaid discussion and from the fact that Respondent met with the personnel of the Appellant, in person to handover the returned cheque for encashment, right after being released from the judicial custody establishes in toto that the Respondent diligently made every endeavour to pay the installment amount within prescribed time to honour the financial commitment made with the Appellant.
15. Further, it is implausible as to why did the Appellant seize the vehicle when installments were being paid regularly without fail by the Respondent. It is to be noted that the Appellant seized the vehicle on the pretext of additional charges being outstanding for the time when the Respondent was in judicial custody. Here it is pertinent to note that the Respondent was going through a rough phase on account of family dispute, therefore, cannot apprehend his arrest and could not maintain sufficient balance in his account during said period. Therefore, it is clear that the Appellant was not justified in seizing the vehicle of the Respondent despite receiving the EMIs for the said vehicle in prescribed time.
DISMISSED PAGE 34 OF 35 F.A./91/2020 & F.A./92/2020 D.O.D.: 23.03.2023
M/S MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD. VS. MR. K. ALFRED
16. Additionally, perusal of record shows that the other contentions raised by the Appellant in the present appeal were already taken into consideration by the District Commission before passing the impugned common order. The District Commission had thoroughly answered all the contentions raised by the Appellant in negative while deciding the complaint on merits.
17. In view of the forgoing, we agree with the reasons given by the District Commission and fail to find any cause or reason to reverse the findings of the District Commission. Consequently, we uphold the common order dated 14.02.2014 passed by the District Consumer Disputes Redressal Commission, (Chennai South), Chennai.
18. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
19. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Regulations, 2005. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
20. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
23.03.2023 DISMISSED PAGE 35 OF 35