State Consumer Disputes Redressal Commission
Mahendra Pratap Sharma vs Govind Ram Hada on 17 February, 2017
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 17.02.2017 Complaint Case No. 38/2000 In the matter of: MahendraPratap Sharma S/o Sh. NarendraLal Sharma R/o B-147, DurgaVihar Devli Extension New Delhi-110062 .........Complainant Versus Sh. Govind Ram Hada Volex Finance & Industries Ltd. Volex Finance & Industries Ltd. Both at "Sanchi" New Delhi-110019 Also at: 610-611, 6TH Floor Prakash Deep Building 7-Tolstoy Marg Connaught Place New Delhi Sh. HarbanMalhotra R/o WZ-1/3, Shardapuri New Delhi-110015 ..........Opposite Parties CORAM N P KAUSHIK - Member (Judicial) 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes N P KAUSHIK - MEMBER (JUDICIAL) JUDGEMENT
Present complaint was filed in this Commission on 17.02.2000. Vide orders dated 23.09.2008, this Commission passed the following orders against the OPs:
i. OPs 1 and 2 shall jointly and severally pay Rs. 50,000/- as compensation for the forcible seizure of the vehicle by adopting illegal methods without being equipped with the order of the court and for the mental agony, harassment as well as loss suffered by the complainant due to deprivation of the vehicle.
ii. OPs 1 and 2 shall jointly and severally return the PDCs after the date of seizure of the vehicle and shall also refund the entire margin money of Rs. 90,868/- contributed by the complainant towards the purchase of the vehicle.
iii. OPs shall also pay Rs. 5000/- as cost of litigation."
Both the parties preferred appeals against the abovesaid orders. The Hon'ble National Commission after hearing the parties passed the orders dated 07.05.2013. The relevant portion of the same is reproduced below:
"State Commission should record a clear finding as to whether the complainant had paid the entire amount or still some amount remained unpaid as on the date of seizure of the vehicle. State Commission should also record a clear finding as to whether the vehicle was seized by the opposite party after issuing notice to the complainant.
For the reasons stated above, impugned order of the State Commission cannot be sustained and the same is set aside. Case is remitted back to the State Commission to decide it afresh in accordance with law."
Facts in brief of the complaint which are not in dispute are that the complainant purchased the vehicle no. H-38-A 5692 a truck/tanker in the month of December 1985. It was purchased in the name of wife of the complainant named Smt. Madhubala Sharma who died in September 1996. Complainant Sh. MahenderPratapSharma thereafter stepped into the shoes of his wife for the purposes of the present litigation. Volex Finance and Industries Ltd. 77 Nehru Place New Delhi-110019 (OP-2), (through its Chairman Sh. Govind Ram Hada, OP-1) gave loan to Smt. MadhuBala Sharma the tune of Rs. 3,80,000/-. The financed amount of Rs. 3,80,000/- was to be paid alongwith interest in monthly installments of Rs. 16,782/- each. Complainant started paying various installments and the first installment was paid in April, 1996. Contention of the complainant is that he not only made full and final payment by January 1999 but also paid extra amount as demanded by the OPs. NOC was asked for, for getting the vehicle transferred in the name of the complainant Sh. MahenderPratap Sharma. Instead of issuing an NOC, OPs through their musclemen took forcible possession of the vehicle in the month of March 1999. OPs however assured the complainant that they would return the vehicle after settlement of the accounts. OPs allegedly manipulated false documents in respect of the sale of the vehicle only to grab the same. OPs-1 & 2 sold the same for an alleged amount of Rs. 1.5 lakhs only. Complainant contends that he was earning an income of Rs. 2000/- per day from the vehicle as it was a commercial vehicle.
Defenceraised by the OPs is that they financed an amount of Rs. 3,80,000/-. Monthly installment was Rs. 16,782/-. Complainant was in arrears to the tune of Rs. 1,91,880/-. OPs further contended that the complainant never supplied his statement of accounts. They, therefore, sold the vehicle in the market for a price of Rs. 1.50 Lacs. OPs further contended that even after selling the vehicle they had to recover the balance amount from the complainant.
With the aforesaid spectrum of facts, we are confronted with the question as to whether the complainant had paid the entire amount at the time the vehicle was repossessed.
Ld. Counsel for the Complainant Sh. H S Gautam Advocate has relied upon the statements of accounts which were filed by the OPs which are exhibited as exhibit RW1/4 and exhibit RW1/14. Perusal of these statements shows that as per contention of the OPs, an amount of Rs. 1,28,218/- was outstanding against the complainant on the date of seizure of the vehicle. On the contrary, Ld. Counsel for the Complainant has referred to the statement of accounts pertaining to the account of the complainant in Canara Bank. It is a computer generated and an attestedstatement issued by Canara Bank. It shows the crediting of an amount of Rs. 1,00,000/- (Rs. One Lac Only) in the account of OP-2 on 15.12.1995. The amount was paid by way of a cheque bearing no. 655039. Ld. Counsel for the OPs Sh. MuneeshMalhotra Advocate has failed to explain as to why this amount of Rs. 1,00,000/- was not accounted for in the statement of accounts filed by the OPs. Similarly Ld. Counsel for the Complainant has drawn the attention of this Commission to a cheque for an amount of Rs. 17,000/- dated 06.09.1996 which is exhibited as Ex.CW1/C, while dictating these orders. The receipt of the said cheque has been duly acknowledged by one Sh. RDSharma an officer of the OPs. Ld. Counsel for the complainant has submitted that an amount of Rs. 17,000/- was refunded by Ashoka Leyland Ltd. i.e. the manufacturer of the vehicle to OP-2 by way of a cheque dated 16.04.1996.
Ld. Counsel for the OPs Sh. MuneeshMalhotra Advocate has not furnished any explanation for not accounting for the amounts of cheques for the aforesaid amounts of Rs. 1,00,000/- and Rs. 17,000/-. Perusal of the record shows that the complainant filed his affidavit towards evidence on 24.10.2002. He has specifically referred to the amount of Rs. 1,00,000/- received by the OPs byway of a cheque from Canara Bank which is exhibited as exhibit CW1/T, showing the transfer of an amount of Rs. 1,00,000/- from the account of the complainant to the account of the OPs on 15.12.1995. In the same affidavit complainant has stated that the amount of Rs. 17,000/- was also received by the OPs from the manufacturer of the vehicle vide cheque dated 06.09.1996. On the contrary, OPs filed their evidence by way of affidavit sworn by Sh. G R Hada Chairman Volex Finance and Industries Ltd. C-47 Shivalik New Delhi. The said affidavit was filed on 12.11.2003. OPs have remained silent on the allegations of the payments of Rs. 1,00,000/- and Rs. 17,000/- allegedly made by the complainants. These are the only payments due to which a discrepancy arose in the statements of accounts of the parties. All the remaining payments have been admitted by the OPs asis clear from the statement allegedly signed by Sh. R AggarwalChairman of OP-1. Same is exhibited as exhibit C2 while dictating these orders. It thus leads to a safe inference that the complainant had made full and final payment of the entire amount to the OPs before the date of seizure of the vehicle.
In the case of Ramrameshwari Devi&Ors.v. Nirmala Devi&Ors. V (2011) SLT 196, the Hon'ble Supreme Court referred to common man's general impression about litigation as under:
"Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for him and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road."
This court in Swaran Singh (Supra) observed as under:
"... ... ...Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340 (3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure."
51. In a recent judgment in the case of MahilaVinodKumari v. State of Madhya Pradesh (2008) 8 SCC 34 this court has shown great concern about alarming proportion of perjury cases in our country.
OPs in the present case knowing well that they received the amounts of Rs. 1,00,000/- and Rs. 17,000/-, repossessed the vehicle of the complainant forcibly. The OPs had financed loan to the tune of Rs. 3,80,000/-. Case of the complainant is that out of the said money only chassis of the truck was purchased. He had got fixed a tanker on the same. There are no documents on record to show the price of the tanker affixed. Be that as it may, complainant in his complaint has assessed the cost of the vehicle at the time of its repossession in march 1999 as Rs. 5,00,000/-. He has also prayed for damages @ 2000 per day from March 1999 to January 2000 i.e. the day of filing of the complaint. Making it clear, the contention of the complainant was that he was earning Rs. 2000/- per day by virtue of this vehicle. He has claimed compensation towards mental agony to the tune of Rs. 2,00,000/- besides litigation expenses of Rs. 1,00,000/-. A prayer for refund of the cost of the vehicle of Rs. 5,00,000/- has been made.
Now coming to the plea of the issuance of notice to the complainant before seizing the vehicle, OPs have not taken any such plea, in their pleadings. In the affidavit towards evidence filed by OP-1 i.e. Sh. GRHada Chairman of the OP-2, it is stated that the OP sent various letters of demand but the complainant did not pay any heed to them. One such letter dated 09.02.1999 refers to a warning for re-possessing the vehicle. On the contrary, the contention of the complainant is that no such letter/notice was ever served upon him. OPs have not placed on record any document in respect of having served the said notice upon the complainant. Even in its pleadings in appeal before the National Commission, the OPs did not state that they ever served a notice on the complainant before seizing the vehicle.
Now a question arises as to whether the OPs were within their right to re-possess the vehicle. Law on the subject has been laid down in the case of CitycorpMaruti Finance Ltd. v. S.VijayaLaxmi,(RP No. 737/2005 decided by Hon'ble National Commission) and the case of ICICI v. PrakashKaur, AIR 2007 Supreme Court 1349 decided by the Hon'ble Supreme Court. The Hon'bleNational Commission in the case of Citicorp Maruti Finance Ltd. (Supra) observed as under:
"When a vehicle is purchased by a person (consumer) by borrowing money from the money lender/financier/banker, the consumer is the owner of the vehicle and not the money lender/financier/banker, unless the ownership is transferred. In a democratic country having well established independent Judiciary and having various laws it is impermissible for the money lender/financier/banker to take possession of the vehicle for which loan is advanced, by use of force. Legal or judicial process may be slow but it is no excuse for employing musclemen to repossess the vehicle for which loan is given. Such type of instant justice cannot be permitted in a civilized society where there is effective rule of law. Otherwise, it would result in anarchy, that too, when the borrower retorts and uses the force.
A hire-purchase agreement is a normal one under which owner hires goods to another party called the hirer and further agrees that the hirer shall have an option to purchase the chattel when he has paid a certain sum, or when the hire-rental payments have reached the hire-purchase price stipulated in the agreement.
As against this, when a person desires to purchase vehicle/goods and not having sufficient money on hand, borrows the amount needed from a money lender/financier/banker and pays it over to the vender of the vehicle, the transaction between the consumer and the money lender will unquestionably be a loan transaction. In such a case the vehicle purchased by the consumer is registered in the name of the consumer and remains at all material times so registered in his name. The consumer remains qua the world at large the owner and remains in possession of the vehicle. By an agreement the vehicle can be given as security for the loan advanced. In such a case, the right to seize the vehicle is merely a licence to ensure compliance with the terms of the so called hire purchase agreement. It is to be stated that many financiers/banks are in race for giving loan for purchase of vehicles or various articles. After giving loan and taking interest in advance, the polite behaviour changes because of the documents which are signed on the dotted lines by the borrower. On occasions, borrower suffers harassment, torture, or abuses at the hands of the musclemen of the money lender. Such a behaviour is required to be prohibited and the process of repossession is required to be streamlined so as to fit in cultural civilized society. Let the rule of law prevail and not that of jungle where might is right.
In such cases, even the Police does not register the FIR or help the aggrieved consumer. In the present case, nothing has been done by the Police for years despite the complaint. In any case, taking of pound of flesh is required to be discouraged.
In a case when the vehicle was repossessed 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/financier, it would be unjust enrichment to the money lender and against equity. That 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.
where the vehicle is forcefully seized and sold by the money lender/financer/banker it would be just and proper to award 'reasonable compensation' to the Complainant. 'Reasonable compensation' would depend upon facts of each case."
Applying the abovesaid law to the case in hand, clearly the OPs were not entitled to re-possess the vehicle and especially so when the entire payment towards repayment of loan stood made.
Hon'ble Supreme Court in the case of Ghaziabad Development Authority v. Balbir Singh,(2004) 5 Supreme Court Cases 65, laid down the principal for awarding of the compensation. It was held that compensation for loss or injury has to be based on a finding of loss or injury. It has to co-relate to the amount of loss or injury. It was further held that the award of compensation must be under different separate heads and must vary from case to case depending on facts of each case. Compensation for harassment/injury both mental and physical may be given alongwith compensating the loss. Hon'ble Supreme Court further held that the Commission or the forum is entitled to award not only the value of goods but also to compensate the consumer for injustice suffered by him.
Coming to the case in hand the malafide act of the OPs in repossessing the vehicle despite having received the amount payable, the complainant has been deprived of his livelihood. He has been put to a loss of Rs. 2000/- per day. The loss started w.e.f. March 1999 and continues till date. Since the complainant has prayed for the said loss uptil January 2000 and computing thus itcomes to Rs. 7,00,000/-, I do not find it appropriate to go beyond the relief sought for in the complaint. There cannot be a dispute with the proposition that the cost of the vehicle on the date of repossession was Rs. 5,00,000/-. Vehicle was purchased in December 1995. On the date of repossession, it was about three years old. Taking into account the value of the tanker added to the chassis (the value of chassis was Rs. 3.80 lacs), assessment of cost of Rs. 5 lacs (after taking into account the depreciation @ 10% every year) is not on the higher side. In the circumstances, OPs-1 & 2 are directed to pay to the complainant as under:
to pay an amount of Rs. 5 lacs towards costs of the vehicle alongwith interest @ 12% p.a. w.e.f. 16.02.2000 till the date of its actual payment.
to pay damages to the tune of Rs. 2000/- per day from March 1999 to January 2000, totaling to Rs. 7 lacsalongwith interest @ 12% p.a. w.e.f. 16.02.2000 till the date of actual payment.
OPs shall pay to the complainant an amount of Rs. 2 lacs for causing harassment, inconvenience, mental agony, anguish and sadness.
OPs shall also pay litigation charges to the tune of Rs. 1 lac.
The abovesaid amount shall be paid by the OPs to the complainant within a period of sixty days from today failing which this amount shall carry interest @ 18% p.a. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.
(N P KAUSHIK) MEMBER (JUDICIAL)