State Consumer Disputes Redressal Commission
1. Indusind Bank Ltd., vs Sh. Iqbal Singh on 13 October, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDGIARH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDGIARH RBT No.46 of 2009/Appeal No.439 of 2008 1. IndusInd Bank Ltd., Branch Office, Opposite Shakti Motors, Dabwali Road, Sirsa, Distt. Sirsa, through its Branch Manager/Incharge. 2. IndusInd Bank Limited (Vehicle Finance Division), Branch Office, 216, 1st floor, green square Market (Opp. Telephone exchange), Hisar, Haryana through its Branch Manager. 3. IndusInd Bank Limited, Registered Office, 2401, Gen. Thimmayya Road (cantonment), Pune 411 001, through its Managing Director. 4. IndusInd Bank Limited (Vehicle Finance Division), Bhageria House, 42, Community Centre, New friends colony, New Delhi through its authorized signatory. ..Appellants. VERSUS Sh. Iqbal Singh son of Sh. Darshan Singh, resident of Pili Kothi, Begu Road, Sirsa, Tehsil and District Sirsa, Haryana. ..Respondent. BEFORE: HONBLE MR. JUSTICE PRITAM PAL, PRESIDENT. HONBLE MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.
PRESENT: Sh. Raghujeet Singh Madan, Advocate for the appellants.
Sh. Ashwani Talwar, Advocate for the respondent.
RBT No.48 of 2009/Appeal No.426 of 2008 Sh. Iqbal Singh son of Sh.
Darshan Singh, resident of Pili Kothi, Begu Road, Sirsa, Tehsil and District Sirsa, Haryana.
..Appellant.
VERSUS
1. IndusInd Bank Ltd., Branch Office, Opposite Shakti Motors, Dabwali Road, Sirsa, Distt. Sirsa, through its Branch Manager/Incharge.
2. IndusInd Bank Limited (Vehicle Finance Division), Branch Office, 216, 1st floor, green square Market (Opp. Telephone exchange), Hisar, Haryana through its Branch Manager.
3. IndusInd Bank Limited, Registered Office, 2401, Gen. Thimmayya Road (cantonment), Pune 411 001, through its Managing Director.
4. IndusInd Bank Limited (Vehicle Finance Division), Bhageria House, 42, Community Centre, New friends colony, New delhi through its authorized signatory.
..Respondents.
PRESENT: Sh. Ashwani Talwar, Advocate for the appellant.
Sh.
Raghujeet Singh Madan, Advocate for the respondents.
MAJ.
GEN. S. P. KAPOOR (RETD.), MEMBER.
1. Vide this common order, we propose to dispose of two cross appeals bearing No.439 of 2008 (RBT No.46 of 2009) filed by OPs- IndusInd Bank Limited and others and No.426 of 2008 (RBT No.48 of 2009) filed by the complainant - Sh. Iqbal Singh, received by transfer from Haryana State Consumer Disputes Redressal Commission, against order of District Consumer Disputes Redressal Forum, Sirsa (for short hereinafter to be referred as District Forum) dated 4.1.2008 passed in complaint case No.107 of 2007 : Sh. Iqbal Singh Vs. IndusInd Bank Limited and others.
2. Briefly stated the case of the complainant is that he got his vehicle Tata 2515 bearing registration No.HR-57/0051 financed from OP No.1 and the total amount of loan was Rs.10,50,000/- and the interest to be charged was calculated as Rs.1,71000/-. As per the complainant the said loan was to be paid in 47 EMIs of Rs.27,000/- each. It was averred by the complainant that he had already paid 24 EMIs i.e. a total sum of Rs.6,48,000/- to the OPs. The allegation of the complainant was that vide cheque no.000948151, he had paid of Rs.54,000/- to the OPs but the installments details supplied to him by the OPs were incorrect. As per the complainant the cheque of Rs.54,000/- was encashed from the banker of the complainant i.e. Oriental Bank of Commerce Sirsa Branch but this amount had not been accounted by the OP Bank. The complainant, it was averred, paid an installment of Rs.27,000/- to the OP Bank on 29-1-2007, however OP Bank repossessed the vehicle of the complainant illegally and forcibly when the said vehicle was being plied by the driver from Ambala to Yammunanagar for loading river sand. It was further alleged that at the time of repossession near Pooja Petrol Pump, Dagri Bridge, Distt, Ambala, the vehicle was loaded with wood and the same was going from Ellenabad to Ambala. It was alleged that OPs also repossessed took away the vehicle, the Registration Certificate, Permit Certificate, Excise Tax Book, original builty paper and cash worth Rs.7000/- which were lying in the vehicle. The allegation of the complainant was that OPs had illegally, unlawfully and arbitrarily repossessed his vehicle with the help of musclemen/gundas and without serving upon him any prior notice which amounted to clear deficiency in service and unfair trade practice on their part. He further averred that though the amount of Rs.54,000/- paid by him to the OPs had not been accounted for he was still ready and willing to deposit the amount of installments due @Rs.27,000/- per month. Alleging the above acts and conduct of OPs as deficiency in service and unfair trade practice, the present complaint had been filed seeking directions to the OPs to deliver the possession of the vehicle in question to the complainant. The complainant had also sought a sum of Rs.4 lacs as compensation besides Rs.5,000/- as cost of litigation.
3. OPs in their joint written statement first took preliminary objections regarding the District forum having no territorial jurisdiction to entertain and try the complaint; the matter involving complicated questions of law and facts; the complainant being not the consumer under the Consumer Protection Act, 1986 and the complainant not coming to the Fora with clean hands. On merits, OPs pleaded that after accepting loan papers, a sum of Rs.10,50,000/- was financed to the complainant and the complainant was liable to repay an amount of Rs.12,51,780/- to the OPs in 47 EMIs. It was pleaded that the complainant failed to pay any instalment on time which were to be paid on the first day of every month as per the second schedule of the agreement. As per OPs, at the time of repossession , an amount to Rs.1,00,000/- was outstanding and number of cheques issued by the complainant got dishonoured on being presented due to insufficient funds. As regards the allegation of the complainant of forcibly repossession of the vehicle in question, OPs asserted that for possessing the vehicle of the complainant he was duly served with the notices, information of which was also given to the concerned police authorities. It was further asserted by the OPs that after repossession they also sent notices to the complainant and his guarantor calling upon them to settle the account but the complainant refused to received the said notice. As regards the allegation of the complainant that a sum of Rs.54,000/- paid by him had not been accounted by the OPs, OPs pleaded that the said amount was duly credited in the loan account of the complainant. OPs have also denied the allegations of the complainant with regard to the forcible possession of the vehicle through their musclemen. It was pleaded that no documents such as RC, Permit Certificate etc. were taken by the OPs at the time of possessing the vehicle of the complainant. Pleading no deficiency in service and unfair trade practice on their part OPs prayed for dismissal of the complaint with costs.
4. The learned District Forum firstly while dealing with the preliminary objections of maintainability of the complaint case, referred to the judgement of Honble Supreme Court in the case of CCI Chembers Corporation Housing Association Versus Development credit bank ltd. 2004(10 cpc page 1 (SC) and recorded that even complicated matter could be decided by a Consumer Fora in summary trial under the Consumer protection Act, 1986. While dealing with the preliminary objections of territorial jurisdiction, the learned District Forum referred to letter dated 7-3-2007 written by one Kamal Sharma Incharge of Sirsa Branch and recorded that this letter was sufficient to prove that the OPs were having their branch office at Sirsa. Thus in the view of learned District Forum it had the territorial jurisdiction to entertain and try the present complaint. As regards the allegation of forcible and illegal repossession of the vehicle of the complainant by the OPs the learned District Forum recorded that the vehicle in question was snatched by the financer through their musclemen only due to the alleged non-payment of instalment at Maiyer near Hissar and not at Sirsa. It further recorded that whereas the complainant was bound to refund the amount of loan, the financer was also bound to follow the legal procedure for the recovery of the said amount as well as repossession of the vehicle. As per the learned District Forum, it is proved on record that no notices were issued by the OPs for recovery of the defaulted amount and under law it was obligatory on the part of OPs to issue 15 days notices for the recovery of the remaining amount before repossession of the vehicle followed by a reminder of 07 days. Referring to the judgement of Delhi High Court in the case of M/s ICICI Bank Ltd. Vs. Mr. I.P. Chauhan 2007(2) CPC 183(Delhi), the learned District forum recorded that it was mandatory on the part of OPs to issue prior notice before repossession of the vehicle but this procedure has not been followed by the OPs and this action of OPs was against the public policy. Referring to the case of Magma Leasing Ltd. Vs. Bharat Singh 2007(I)CPJ 200(Delhi), the learned District Forum recorded that OPs had no legal right to repossess the vehicle forcibly and if they do so they would be liable to pay the loss as well as compensation on account of mental agony and harassment etc. Next referring to the judgement of honble National Commission in the case of Citicorp Maruti Finance Ltd. Vs. Shri Vijaya laxmi 2007CTJ(CP) 1145 (NC) the learned District Forum that it is not permissible for the OPs to take possession of the vehicle by the use of force and the employed musclemen to repossess the vehicle could not be permitted in the society where there exists an effective rule of law. In view of its forgoing observations, the learned District Forum holding the OPs guilty of gross negligence, deficiency in service and unfair trade practice, allowed the complaint and directed the OPs not to recover the installments of the period of six months from 10-2-2007 till 20-8-2007 and further not to recover the installments amount of Rs.27,000/- x 6 = 1,62,000/- as the complainant had suffered loss of this amount due to deficient act of OPs. The learned district Forum quashed the demand of installments for the period from 30-1-2007 till 2-8-2007 and directed the OPs to pay a sum of Rs.2 lacs towards the loss of income of the complainant along with another sum of Rs.50,000/- as compensation for mental agony and physical harassment etc. Besides Rs.3,300/- as cost of litigation. The learned District Forum also directed the OPs to pay the complainant an amount of Rs.1,10,000/- as loss on account of tyres. The order was directed to be complied with in a period of six weeks failing which the complainant was held entitled to invoke execution proceedings under the provisions of Consumer protection Act 1986.
5. Aggrieved by the said order of learned District Forum, both the complainant as well as OPs have separate appeals as mentioned above before the Haryana State Consumer Disputes Redressal Commission and the same have now been transferred to this Commission under the orders of Honble National Consumer Disputes Redressal Commission, New Delhi. Sh. Ashwani Talwar, Advocate appeared on behalf of the complainant whereas Sh. Raghujeet Singh Madan, Advocate represented the OPs.
6. Before we proceed further, it is relevant to mention that when the arguments of these appeals were heard on 9.10.2009, Mrs. Neena Sandhu, learned Member of the Bench abstained herself from participating in the proceedings as she was signatory to the impugned order passed by the learned District Forum, Sirsa.
7. Sh. Raghujeet Singh Madan, Advocate learned counsel for OPs submitted that he had five points to be raised before the Bench. The first point raised by him was that the complainant was not a consumer qua OPs as he was not using the financed vehicle for self-employment and had employed drivers for driving the same. He, therefore, emphatically submitted that as per the definition of consumer given in the Consumer Protection Act, 1986 (for short hereinafter to be referred as C. P. Act), only a person who is self employed can be treated as a consumer qua a service provider. He, therefore, submitted that the complaint was not maintainable under the C. P. Act. His next submission was that the learned District Forum, Sirsa had no territorial jurisdiction to try the case. In this context, he referred to Page 90 of the appeal paper book and submitted that the learned District Forum had been misled by this document. He clarified to the Bench that the Letterhead of this document clearly indicated the address of New Delhi. He also submitted that this document has been denied by the OPs and he emphatically stated that there was no Branch of OPs at Sirsa. In this context, he also submitted that the agreement to finance the vehicle had taken place at Hisar and the repossession of the vehicle had been done in Ambala and therefore, the District Forum, Sirsa had no territorial jurisdiction to try the case. The third submission of the learned counsel was that as per Annexure A-6, the police had been duly informed by the OPs prior to the repossession of the vehicle and therefore, he emphatically further submitted that the vehicle in question had been repossessed by following the proper laid down procedure. The fourth submission of the learned counsel for the OPs was that as per appeal paper book (Exhibit A-4), a legal notice had been served upon the complainant but the learned District Forum had not accepted this document as evidence only on the ground that it had been dispatched through means of U.P.C. The learned counsel emphatically reiterated that by sending this legal notice, OPs had followed the due process of law while repossessing the vehicle of the complainant. The fifth submission of the learned counsel for OPs was that during the pendency of the consumer complaint before the learned District Forum, Sirsa, an application had been moved by OPs dated 10.7.07 for the compliance of order dated 5.3.07 whereby the complainant had been directed to deposit the amount of the remaining due installments i.e. the defaulting installments with the OPs in cash or through Bank draft with interest @4.9% per annum on balance amount of installments. He emphatically submitted that this application of OPs had not been decided by the learned District Forum and the impugned order had been passed. In the end, the learned counsel for OPs alleged that the learned District Forum had taken a biased view in the whole issue and to substantiate this contention, he referred to the order of District Forum dated 2.1.07 and he pointed to the Bench that whereas in this order, Sh. Rishi Raj Sharma, Advocate has been shown as present before the District Forum, in fact, the Advocate never appeared before the Bench on that date. He also further submitted that the cause list of the learned District Forum for 2.1.2007 had not listed this case for consideration. In this context, he also referred to the affidavit filed by Sh. Rishi Raj Sharma, Advocate as Annexure A-12.
8. Sh. Ashwani Talwar, Advocate, learned counsel for the complainant submitted that the complainant was a Driver himself and since, he was running his truck on long routes, he had employed a co-driver to help him on the long routes. He emphatically submitted that the vehicle had been purchased by the complainant for self-employment and he was also one of the driver of the vehicle. He, therefore, submitted that the complainant was self employed and was, therefore, a consumer of OPs as per the definition of consumer given in the C. P. Act. The learned counsel in this context also referred to the judgment of Honble Supreme Court of India in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute, JT 1995 (3) S.C. 433: II (1995) CPJ 1 (S.C.)). The next submission of the learned counsel was that the vehicle had been forcibly repossessed along with its cargo without following the due process of law and he submitted that the learned District Forum had correctly observed the same in the impugned order. The next submission of learned counsel was that during the pendency of the case before the learned District Forum, Sirsa, the learned District Forum had ordered release of the vehicle and material. Against this order, OPs had filed a revision petition before Haryana State Commission, which was dismissed and the vehicle was released. It was further submitted by the learned counsel for the complainant that the vehicle had again been repossessed and for that a Court in Delhi had ordered the release of the vehicle and the matter was to be put before an Arbitrator. The learned counsel submitted to the Bench that OPs in order to harass the complainant deputed an Arbitrator at Chennai and asked the complainant to come to Chennai with the truck. He further clarified to the Bench that against this demand of OPs to take the vehicle to Chennai for arbitration, CWP No.1723 of 2009 is pending before the Honble High Court. The learned counsel emphatically reiterated that OPs were trying to unnecessarily harass the poor complainant. The learned counsel for the complainant categorically submitted that Annexure A-8 had been signed by Sh. Kamal Verma, an employee of OPs and it had been categorically stated on the document that it had been signed from the Sirsa Branch. On this issue, he also submitted that OPs had been wrongly submitting that there was no Branch Office at Sirsa because under C.W.P. No.1723 of 2009, it has been recorded in the proceedings that OP No.1 had been served at Sirsa. He, therefore, submitted that the learned District Forum, Sirsa had ample jurisdiction to try the complaint case.
9. Discussing the issue of repossession, the learned counsel for the complainant submitted that the vehicle had been repossessed on 30.1.07 whereas the complainant had paid an installment only a day before i.e. on 29.1.07. The learned counsel categorically submitted that the complainant was not a defaulter in the payment and he explained to the Bench that OPs were indulging in an unfair trade practice by wrongly stating that the complainant had defaulted in payment because they wanted to charge the complainant penal interest @40% for default in payment whereas the normal rate of interest is only 4%.
10. Concluding his arguments, the learned counsel for the complainant submitted that even though the order of State Commission on the revision petition was dated 12.6.07 and the same had not been challenged before the Honble National Commission, it had attained finality and consequently, the impugned order had been passed by the learned District Forum on 4.1.2008. The learned counsel concluded by submitting that the legal notice for repossession had been given after the repossession had already been executed, which was a forcible repossession and since, the notice had not been served through Registered Post, the same cannot be adduced as cogent evidence.
11. We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties. The issues that need to be discussed are as under: -
(a) Whether the complainant is a consumer?
(b) Whether District Forum, Sirsa had the territorial jurisdiction to try the present complaint?
(c) Whether the vehicle of the complainant had been forcibly repossessed or repossessed following due course of law?
12. Coming to the first issue, law has been settled by the Honble National Commission in the case of Laxmi Engineering Works (Supra) that where a person is running a small scale venture for earning his livelihood and even if, he has employed 2-3 individuals for helping him, he falls within the definition of a consumer. In this case, OPs have not proved by any cogent evidence that the complainant himself was not one of the drivers of the vehicle or that he owns a large fleet of vehicles and is running a transport business on large scale. Thus, in view of the settled possession of law, we have no hesitation to conclude that the complainant is a consumer as defined under the C. P. Act.
13. Discussing the second issue with regard to the territorial jurisdiction, evidence on record in the shape of letter dated 7.3.2007 signed by Sh. Kamal Sharma, clearly indicates that OPs have a functional office at Sirsa. There is no affidavit on record filed by OPs to indicate that this document has not been filed by one of their employees. Further, in this matter, OPs have failed to rebut the averment of counsel for the complainant that OP No.1 had been served at Sirsa in connection with C.P.W. No.1723 of 2009 by the Honble High Court. In this view of the matter, the only conclusion that can be drawn is that District Forum, Sirsa had the territorial jurisdiction to try the complaint.
14. Now coming to the main issue with regard to the repossession of the vehicle, the case of OPs is that the vehicle had been repossessed after giving due notices as the complainant had failed to pay due installments and it had been done as per the legal right vested in OPs for non payment of its dues. The case of the complainant, on the other hand, however, is that the vehicle had been repossessed by employment of musclemen/gundas. To support their contention, the only evidence that OPs had produced is a letter to Police Authorities, Hisar dated 30.1.07, which indicates that intention of OPs to repossess the vehicle due to defaults in payment committed by the complainant and the second document placed on record is the legal notice dated 18.1.06 sent to the complainant vide U.P.C (Annexure A-4). A critical perusal of this document indicates that this is a document allegedly sent to the complainant over one year earlier than the date of repossession and hence, in our considered view, it has no relevance to the repossession done on 30.1.07. From the perusal of the entire evidence on record, we find no document sent by OPs to the complainant indicating that he had defaulted in making the due payments and that the OPs had the intentions to repossessing the vehicle. Further the claim of OPs that the vehicle had been repossessed as per the procedure of law falls flat because OPs had failed to produce any document indicating a voluntary surrender of the vehicle. There is also no document or inventory on record indicating that the vehicle had been surrendered by the complainant to OPs for default in payment of EMIs. In the aforesaid circumstances, we have no hesitation in concluding that OPs have miserably failed to establish their case that the vehicle had been repossessed after following due process of law and in this view of the matter, we find no infirmity in the learned District Forum holding OPs guilty of deficiency in service and unfair trade practice and thus, we find no merit in the appeal filed by OPs for setting aside the impugned order.
15. Now coming to the appeal filed by the complainant for enhancement of compensation, we find that vide the impugned order, the complainant has been adequately compensated and the complainant has failed to produce any further evidence to make out a case for enhancement of compensation already granted. Consequently, we also find no merit in the appeal filed by the complainant.
16. In view of the foregoing discussion, both the appeals i.e. appeal No.439 of 2008 (RBT No.46 of 2009) filed by OPs- IndusInd Bank Limited and others and No.426 of 2008 (RBT No.48 of 2009) filed by the complainant - Sh. Iqbal Singh respectively are dismissed as they lack merit and the impugned orderkis upheld being just, fair and legal.
17. Copies of this order be sent to the parties free of charge.
Pronounced.
13th October, 2009.
[JUSTICE PRITAM PAL] PRESIDENT [MAJ. GEN. S. P. KAPOOR(RETD.)] MEMBER Ad/-
STATE COMMISSION RBT No.46 of 2009/Appeal No.439 of 2008 PRESENT: Sh.
Raghujeet Singh Madan, Advocate for the appellants.
Sh.
Ashwani Talwar, Advocate for the respondent.
Dated the 13th day of October, 2009.
ORDER Vide our detailed order of even date recorded separately, this appeal filed by OPs along with cross appeal bearing No.426 of 2008 (RBT No.48 of 2009) filed by the complainant - Sh. Iqbal Singh has been dismissed.
(MAJ GEN S. P. KAPOOR (RETD.)) MEMBER [JUSTICE PRITAM PAL] PRESIDENT Ad/-
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDGIARH RBT No.48 of 2009/Appeal No.426 of 2008 Sh. Iqbal Singh son of Sh.
Darshan Singh, resident of Pili Kothi, Begu Road, Sirsa, Tehsil and District Sirsa, Haryana.
..Appellant.
VERSUS
1. IndusInd Bank Ltd., Branch Office, Opposite Shakti Motors, Dabwali Road, Sirsa, Distt. Sirsa, through its Branch Manager/Incharge.
2. IndusInd Bank Limited (Vehicle Finance Division), Branch Office, 216, 1st floor, green square Market (Opp. Telephone exchange), Hisar, Haryana through its Branch Manager.
3. IndusInd Bank Limited, Registered Office, 2401, Gen. Thimmayya Road (cantonment), Pune 411 001, through its Managing Director.
4. IndusInd Bank Limited (Vehicle Finance Division), Bhageria House, 42, Community Centre, New friends colony, New delhi through its authorized signatory.
..Respondents.
BEFORE: HONBLE MR. JUSTICE PRITAM PAL, PRESIDENT.
MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.
PRESENT: Sh. Ashwani Talwar, Advocate for the appellant.
Sh.
Raghujeet Singh Madan, Advocate for the respondents.
MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.
1. For orders, see the orders passed in cross appeal bearing No.439 of 2008 (RBT No.46 of 2009) titled IndusInd Bank and others Vs. Sh. Iqbal Singh vide which this appeal has been dismissed.
2. Copies of this order be sent to the parties free of charge.
Pronounced.
13th October, 2009.
[JUSTICE PRITAM PAL] PRESIDENT [MAJ. GEN. S. P. KAPOOR(RETD.)] MEMBER Ad/-