State Consumer Disputes Redressal Commission
Shri Ram Transport Finance Company Ltd vs Chaman Lal on 3 November, 2011
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. ---- FIRST APPEAL NO.416/2009. ORDERS RESERVED ON 12.9.2011 AT KULLU. DATE OF DECISION: 3.11.2011 . In the matter of: Shri Ram Transport Finance Company Ltd., Branch Office, Ist Floor, Banga Complex, NH-21, Gandhinagar, Kullu, Tehsil and District Kullu, H.P. through its Branch Manager. Appellant. Versus Sh. Chaman Lal son of Sh. Beli Ram, resident of Suma Ropa, Post Office, Jari, Tehsil and District, Kullu, H.P. Respondent. ---------------------------------------------------------------------------------------------------------------------- Honble Mr. Chander Shekhar Sharma, Member.
Honble Mrs. Prem Chauhan, Member.
For the Appellant: Mr. Kapil Thakur, Advocate.
For the respondent: Respondent in person.
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O R D E R:
Chander Shekhar Sharma, Presiding Member.
1. This appeal is directed against the order of the District Forum, Kullu, dated 26.8.2009 passed in Complaint Case No.86/2008, whereby the complaint was allowed and the opposite party was directed to adjust the sale proceeds of the vehicle towards the satisfaction of the dues by calculating its market value by deducting 20% of the amount from Rs.4,05,000/- i.e. the purchase price of the vehicle by the complainant instead of Rs.1,75,000/- and also to adjust the margin money of Rs.1,25,000/-, Rs.20,000/-, amount deposited on account of instalment and Rs.50,000/- as amount spent for preparation of trolley, after adjusting unpaid instalments till the date of seizure of the vehicle. It was further directed that after adjustment of the amounts as aforesaid, if it is found that the excess amount has been paid by the complainant, the same shall be refunded to him and the opposite party was also directed to pay an amount of Rs.25,000/- on account of harassment, mental agony and pain and litigation cost was quantified at Rs.5,000/-. Parties are hereinafter being referred to as per their status in the complaint.
2. Facts of the case as they emerge from the complaint file are that the complainant had purchased a tractor bearing chassis No.345JOFO12172 and engine No.3102TJOFO12016 from M/s. Kisan Motors, NH-21, Nerchowk, District Mandi, H.P. The sale consideration of the vehicle was Rs.4,05,000/-, out of which the complainant had paid a sum of Rs.1,50,000/- as margin money and rest of the amount was financed by the opposite party. The complainant alleged that he could not register the vehicle for about six months after the delivery of the vehicle as the opposite party had not supplied the requisite documents pertaining to the vehicle well in time and as such he was unable to ply the same as a commercial vehicle. The complainant further alleged that he has paid Rs.20,000/- to the opposite party towards the instalment of the tractor. He also alleges that on 31.3.2008 at about 11.00 A.M., 5-6 persons came to the place of the complainant and misbehaved and manhandled him and represented that they are the officials of the opposite party and explained that the complainant has failed to pay the monthly instalments of the financed tractor and forcibly took away aforesaid tractor alongwith its trolley and that too without intimating or giving notice of the complainant. It was also alleged that the complainant had got the trolley manufactured at his own cost by spending Rs.50,000/-. Further averments in the complaint are to the effect that the complainant was ready to pay the instalments but without his knowledge and consent, the opposite party forcibly and illegally took away the tractor alongwith its trolley and even he approached the opposite party and submitted that he wanted to pay the monthly EMI but of no avail. Hence, deficiency of service has been alleged on the part of the opposite party in this case.
3. In this background, present complaint under Section 12 of the Consumer Protection Act, 1986 was filed, wherein direction has been sought to the effect that the opposite party is to hand over the tractor with keys and to pay a compensation to the tune of Rs.1,00,000/- for harassment and cost.
4. This complaint was resisted and contested by the opposite party who had contended that the Forum below has got no jurisdiction to try the present complaint since it involves complicated question of law and facts requiring detailed evidence and relates to rendition of accounts and for adjustment of entries in the statement of account which can be decided by a civil Court and the complainant had not come with clean hands. On merits, it was admitted that the sale price of the vehicle was Rs.4,05,000/- and the complainant had approached the opposite party for finance of the said tractor in December, 2006 which was accepted by Branch Manager, Bilaspur and advanced a sum of Rs.2,80,000/- with financial charges i.e. Rs.90,300/- and agreement value was Rs.3,70,300/- which was to be repaid in 35 instalments of Rs.10,580/- as per agreement No.BSH/STFC/1720/SL on 26.12.2006.
5. It has further been averred that the complainant had paid margin money of Rs.1,25,000/- as per Annexure-1 and not Rs.1,50,000/- as alleged by him.
Further averments are to the effect that the delivery of the vehicle was taken by the complainant from Kisan Motors, Ner Chowk, Mandi alongwith all sale documents and the question of non supplying of documents did not arise. Opposite party had admitted that the complainant had paid Rs.20,000/- on 21.8.2007 but pleaded that the complainant had paid the aforesaid instalment after seven months of the execution of the agreement and thereafter did not pay any instalments towards purchase liability. However, the opposite party denied the forcible possession of the vehicle in question and pleaded that the vehicle was handed over by the agent of the complainant to the Company Officer as the complainant was unable to pay the arrears pending against him.
6. It was further pleaded that possession of the tractor without trolley on 31.1.2008 and not on 31.3.2008 and before taking possession of the vehicle, several notices for making payment of arrears were sent to the complainant and even legal notice, dated 21.8.2007, Annexure.9 had also been issued to the complainant who had never replied the notices nor paid the instalments despite several notices for making payment of the arrears of instalments as per conditions of the purchase agreement. It was also pleaded that Gopi Chand, the agent of the complainant had signed the surrender letter and after taking possession of the vehicle the same was got valued by Rajesh Sood, Surveyor on 16.7.2008 and thereafter notice of sale/auction had been issued to the complainant on 17.7.2008 and opportunity was given to the complainant for depositing the outstanding amount of Rs.1,89,958/- and complainant had not responded to the notice and as such the vehicle was sold for Rs.1,75,000/- and all other allegations made in the complaint were totally denied. Hence, it was pleaded that there was no deficiency of service on the part of the opposite party in the present case and prayer had been made for dismissing the complaint with exemplary costs.
7. Rejoinder to the complaint was also filed wherein averments made in the complaint were reiterated.
8. Brief summary of evidence in nutshell is that the complainant in support of his case has filed his own affidavit and had placed reliance upon a number of documents, viz. copy of secured loan receipt, dated 21.8.2007 towards loan agreement executed between the parties, copy of the bill amounting to Rs.4,05,000/- issued by M/S Kisan Motors, Nerchowk pertaining to Standard Tractor D1 345 alongwith all taxes relating to Engine No.3102TIOF01216, Chassis No.345JOF012172, dated 27.12.2006 , sale certificate dated 27.12.2006 pertaining to the said vehicle which was financed by the opposite party, copy of vat invoice dated 29.1.2006 amounting to Rs.50,000/- pertaining to tractor trolley.
9. Opposite party in the present case has filed affidavit of Shri Rakesh Thakur, Manager of the opposite party and had placed reliance upon a number of documents, Annexures 1 to 15, which are, cash receipt amounting to Rs.1,25,000/- dated 26.12.2006, relating the amount received from the complainant by M/S. Kisan Motors, Nerchowk, Mandi, receipt dated 27.12.2006 amounting to Rs.2,80,000/- issued by the said Company for draft of the UCO Bank for the said amount payable at Mandi in favour of M/S. Kisan Motors, copy of the Hypothecation Agreement, dated 26.12.2006 executed between the parties, copy of Secured Loans Loan receipt, dated 21.8.2007 amounting to Rs.20,000/-, copies of registered letters/notices dated 23.7.2007, 17.10.2007 and 29.12.2007 addressed to the complainant by the authorized signatory of the Company for making payment of the defaulted loan, copy of legal notice served to the complainant by the opposite party through their Counsel Shri N.P. Sharma, Annexure.9, copies of various postal receipts, intimation letter dated 3.1.2008 sent to the Incharge, Police Chowki, Jari, Kullu issued by the authorized signatory of the Company, copy of intimation sent to the hirer, guarantor and SHO, Police, Bhunter and Kullu pertaining to taking into custody of the vehicle, copy of general information of the vehicle alongwith inventory of the vehicle alongwith letter of surrender signed by Gopi Chand addressed to the opposite party, valuation certificate issued by Shri Rajesh Sood, Loss Assessor in respect of the vehicle in question, dated 16.7.2008 and copy of notice/intimation letter addressed to complainant as well as guarantor issued by the opposite party dated 17.7.2008.
10. We have heard learned Counsel for the parties at length and also have gone through the record of the case minutely. Learned Counsel for the appellant in the present case argued that the order of the Forum below is not legally sustainable since there was no forcible possession of the vehicle in the present case, however, the vehicle was surrendered by Gopi Chand which fact is evident from the surrender letter addressed to the Manager of the opposite party which is duly signed by Gopi Chand as per letter of surrender which is attached with Annexure 13 and notices from time to time were issued to the complainant for making payment of the outstanding loan since he was a defaulter in making the payments and information relating to re-possession of the vehicle was also given to the hirer, guarantor, SHOs, Police Stations, Kullu and Bhunter and the vehicle was sold after completion of all the legal formalities after assessing its value from the authorized valuer. As such, the Forum below was not legally justified in allowing the present complaint and awarding of compensation and litigation cost in the present complaint.
He has also placed reliance upon the judgment of the Honble National Commission given in Revision Petition No.2980 of 2010, titled Shriniwas Versus M/s Mahindra Finance Mahindra & Finance Service Ltd., decided on 9.5.2011.
There is no dispute about the legal proposition laid down in this judgment of the Honble National Commission, however this judgment is not applicable in view of the facts and circumstances of the case which are being discussed hereinafter in detail.
11. We could not hear the learned Counsel for the respondent in the present case since he was not present on the date of hearing, only the respondent was present in person who had argued the matter himself and he had supported the order of the Forum below.
12. After hearing learned Counsel for the appellant and the respondent, who is present in person and had raised points in support of his case, we are of the considered view that there is no infirmity in the order of the Forum below. Reason being that in the present case the surrender letter which is at page 71 of the complaint file depicts that it is signed by one Gopi Chand and the complainant in his rejoinder has specifically refuted the version given by the opposite party that he had not any acquaintance with Gopi Chand Moreover, forcible taking of possession of the vehicle is also evident from the averments made in the complaint which is duly supported by the affidavit, wherein it is clearly stated by the complainant that on 31.3.2008 at about 11.00 AM, 5-6 persons came to the place of the complainant and represented that they were officials of the opposite party and manhandled him and forcibly took away the tractor alongwith trolley, as such the repossession of the vehicle in the present case was not legally warranted. Even in the present case affidavit of Gopi Chand whose signatures are on the surrender letter of the vehicle had also not been filed by the opposite party and as such no benefit can be derived by the opposite party from the surrender letter since the complainant had clearly deposed that vehicle has not been surrendered by him and as such the forcible possession of the vehicle has been proved on record which practice has been deprecated by the Honble Supreme Court in the case of Manager ICICI Bank Ltd. Versus Prakash Kaur and others, AIR 2007 Supreme Court 1349 and Citicorp Maruti Finance and Ltd. Versus S.Vijayalaxmi, III (2007) CPJ 161 (NC), wherein it was held that recovery of bank loan and seizure of vehicle could be done only through legal means and financer cannot employ goondas to take possession/seizure of the vehicle forcibly and the seizure could only be done through legal means. These judgments have been discussed in detail by the Forum below in its order and reliance had rightly been placed upon these judgments which is a settled legal position in the matter. There is nothing on record to suggest whether any legal procedure was followed by the opposite party for selling the vehicle in public auction.
There is no material on record to show that notice was issued to the complainant and the prescribed legal procedure had been adopted during the sale of the vehicle in question since no opportunity had been granted to the complainant to purchase the vehicle at the sale price which was got assessed by the Valuer on a very lower side at Rs.1,75,000/-, whereas the value of the vehicle as per invoice issued by M/s. Kisan Motors, dated 27.12.2006 was Rs.4,05,000/- excluding trolley.
13. In our opinion, value of the vehicle as assessed by the Valuer of the opposite party as per Valuation Certificate, Annexuure-14, dated 16.7.2008 could not come down to Rs.1,75,000/- from Rs.4,05,000/- within a period of 2 years from the date of its purchase and it was sold at throwaway price viz. Rs.1,75,000/- and the Forum below had rightly placed reliance upon the decision of the Delhi State Commission in the case of Magma Leasing Ltd. Versus Bharat Singh, 1 (2007) CPJ 200, wherein it was held that the depreciating value of the vehicle in case of passenger vehicle is to be taken at the rate of 5% per year and 10% in case of commercial vehicle and since in the present case the vehicle in question was a commercial vehicle and the same was purchased by the complainant on 27.12.2006 for a sum of Rs.4,05,000/- excluding trolley, as such Forum below has rightly ordered for adjusting the market value by depreciating the amount at the rate of 20% i.e. 20% per year from Rs.4,05,000/- which is the actual price of the vehicle paid by the complainant. Moreover, the opposite party had also not placed any documentary evidence to establish the fact that on which date the vehicle was auctioned by them and the Forum below has rightly placed reliance upon the judgment of the Delhi State Commission in the case of Magma Leasing Ltd. Versus Bharat Singh, (supra).
14. No other point was urged.
In view of the aforesaid discussion and facts and circumstances of the case, we are of the considered view that there is no infirmity in the order of the Forum below, which is a reasoned one and supported by the judgment of the Honble Supreme Court and as such we are not interfering with the order of the Forum below and consequently the present appeal is dismissed and the order of the Forum below passed in Complaint Case No.86/2008, dated 26.8.2009 is maintained. No order as to costs.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Copy of this order be sent to the learned Counsel for the parties who were representing them at Shimla in this appeal.
Shimla, Announced on November 3, 2011.
( Chander Shekhar Sharma) Presiding Member ( Prem Chauhan ) Member