State Consumer Disputes Redressal Commission
Branch Manager & Anr. vs Rajendra Singh on 9 April, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/13/100
Instituted on : 30.01.2013
Branch Manager,
Shriram Transport Finance Company Limited,
In Front of I.C.I.C.I. Bank, Ambedkar Chowk,
Ambikapur, District Surguja (C.G)
2. Shriram Transport Finance Company,
123, Agappa Naicken Street,
Chennai - 600001 ... Appellants
Vs.
Rajendra Singh, S/o Late Balkar Singh,
R/o : Godhanpur, In Front of Kattha Factory,
Ambikapur, District Surguja (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Dau Chandrawanshi, for appellants.
Shri Pankaj Khedkar, for respondent.
ORDER
Dated : 09/04/2014 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against order dated 21.12.2012, passed by District Consumer Disputes Redressal Forum, Surguja, Ambikapur (C.G.) (henceforth District Forum") in Complaint Case No.68/2012. By the impugned order, the learned District Forum, has partly allowed the complaint of the respondent/complainant and directed the // 2 // appellants/OPs to pay within a month from the date of the order a sum of Rs.3,69,300/- (Rs.Three Lakhs Sixty Nine Thousand and Three Hundred Only) to the respondent/complainant, along with interest @ 6% p.a. from the date of filing of the complaint i.e. 05.06.2012 till date of payment. The District Forum has further directed the appellants/OPs to pay a sum of Rs.4,000/- as compensation for mental, physical agony and financial inconvenience and Rs.1,000/- as cost of litigation.
2. Briefly stated, the facts of the complaint of the respondent /complainant before the District Forum are : that the respondent/complainant purchased the Highwa Truck bearing registration No.C.G.04-J.A.1329 from its previous owner Arunodaya Coal Agency, Raipur (C.G.) at the price of Rs.8,30,000/-. Out of Rs.8,30,000/- a sum of Rs.55,000/- was paid by the respondent/complainant on 23.08.2010 to the owner of the vehicle. For the remaining amount i.e. Rs.7,75,000/- financial assistance was obtained by the respondent/complainant from the appellants/OPs and the amount was paid through the appellants/OPs. Thus, the appellants/OPs had financed a sum of Rs.7,75,000/- to the respondent/complainant for purchasing the said vehicle, which was payable by the respondent/complainant in 30 installments from November 2010 to April 2013 and the total amount payable was // 3 // Rs.10,48,612/-. The respondent/complainant was paying the installments regularly. The respondent/complainant paid sum of Rs.20,000/- on 04.12.2010, Rs.42,000/- on 27.01.2011, Rs.42,000/- on 01.03.2011, Rs.42,000/- on 23.03.2011 to the appellants/OPs. Thus the respondent/complainant had paid total amount of Rs.1,46,000/- to the appellants/OPs. In the month of April, 2011 the said vehicle of the respondent/complainant suffered problem and for the repairing of the vehicle, again the respondent/complainant sent it to the garage. In repairing of the vehicle two months time was taken i.e. from April 2011 to June 2011 and a sum of Rs.38,300/- was incurred for the repairing of the vehicle. Due to financial problem, the respondent/complainant could not pay the insallments to the appellants/OPs. The vehicle was taken by some unknown persons in the last week of June, 2011 from Sonbhadra Engine Garage, Nmnakala, Ambikapur. The respondent/complainant lodged First Information Report on 02.08.2011 regarding theft of the vehicle. Thereafter the respondent/complainant came to know that with the help of muscleman, the appellants/OPs had taken possession of the vehicle from the garage and without giving any intimation and giving opportunity of hearing, sold the vehicle to some unknown person contrary to law and thus, committed deficiency in service. The respondent/complainant contacted the appellants/OPs, the appellants/OPs expressed that due to default in making payment by // 4 // the respondent/complainant the vehicle was repossessed and thereafter the same was sold to some one. The respondent/complainant filed consumer complaint before the District Forum, seeking direction to the appellants/OPs to return back the seized vehicle bearing registration No.C.G.04-JA-1329 and if the appellants/OPs are unable to return the vehicle then a sum of Rs.3,69,3000/- along with interest @ 18% p.a. be provided to the respondent/complainant and also pay a sum of Rs.1,00,000/- towards loss suffered by him.
3. The contentions of the appellants/ OPs before District Forum was that vehicle in question, was not forcefully repossessed by them, but it was repossessed as per terms of the finance agreement. It has also been averred that there was default in payment of EMIs, so, the vehicle was repossessed. It has also been stated in the reply that as per condition no.15 of the Loan Cum Hypothecation Agreement, if any dispute is raised between the parties, then the same can be settled through the Arbitration and no other courts should have jurisdiction therefore, the complaint of the respondent/complainant, is not maintainable before the District Forum. The respondent/complainant has not made any request to the appellants/OPs for appointment of any Arbitrator. The appellants/OPs sent letter dated 05.07.2011 to the respondent/complainant directing to pay a sum of Rs.8,56,000/-
// 5 // within 10 days, but the respondent/complainant had not paid the said amount and had not taken any interest in the matter therefore, the proceedings were initiated to sale the vehicle in question.
4. Learned District Forum, after appreciation of the materials available before it, partly allowed the complaint of the respondent/complainant, in part, and awarded compensation, as mentioned in para 1 of this judgment.
5. Shri Dau Chandrawanshi, learned counsel appearing for the appellants/OPs argued that as per condition no.15 of the Loan Cum Hypothecated Agreement, if any dispute is raised between the parties, then the same can be adjudicated through the Arbitration Proceedings and no other courts should have jurisdiction, therefore, the complaint of the respondent/complainant, is not maintainable before the District Forum and the District Forum, has no jurisdiction to try the case. He further argued that appellants/OPs are owner of the said vehicle and the respondent/complainant defaulted in making payment of installments, therefore, the appellants/OPs have right to repossess the vehicle and the appellants/OPs never took possession of the vehicle by use of force. The appellants/OPs sent notice to the respondent/complainant, but the respondent/complainant failed to comply the provisions of Loan Cum Hypothecation Agreement executed between the parties. He further argued appellants/OPs is a // 6 // financier and according to Loan Cum Hypothecation Agreement, the financer/OPs have become owner of the vehicle and purchaser, is simply a bailee (mifugfr) of the vehicle. The OPs sent notice to the respondent/complainant before selling the vehicle.
6. Shri Pankaj Khedkar, learned counsel appearing for the respondent/complainant argued that the respondent / complainant had already deposited near about Rs.1,46,000/- with the appellants/OPs and the respondents/complainant, was ready to pay the remaining amount, but the appellants/OPs forcibly took the possession of the vehicle with the help of muscleman and illegally sold the vehicle. Before auction or sale of the vehicle, the appellants/OPs did not send notice to the respondent/complainant and thus the appellants/OPs violated the provisions of the Loan Cum Hypothecation Agreement and recovery process was effected by the appellants/OPs with use of force, which is not in accordance with law. Even no notice was served upon the complainant before selling the vehicle.
7. We have heard learned counsel for both the parties at length and have also perused the record of the District Forum.
8. The respondent/complainant filed documents. Document Ex- A-1 is receipt issued by Arunodaya Coal Agency, Raipur regarding // 7 // receipt of Rs.55,000/- as advance from Shri Rajendra Singh, document Ex-2, is Certificate of Registration of vehicle bearing registration No.C.G.04-JA-1329, document Ex-A-3 is Certificate of Fitness, document Ex.A-5 is Temporary Driving Licence, document Ex-A-6 is Certificate Cum Policy Schedule GCCV Public Carriers Other than Three Wheelers Package Policy Zone B, document Ex.A-7 is repayment schedule, document Ex.A-8 to Ex.A-11 are receipts issued by Shriram Transport Finance Co. Ltd., document Ex.A-12 & Ex.A-13 are bills issued by Surguja Welding Works, Ambikiapur (C.G.), document Ex. A-14 is bill issued by Sharda Battery Works, Ambikapur (C.G.), document Ex.A-15 is bill issued by Suresh Vulcanization Works, Ambikapur (C.G), document Ex.A-17 is bill dated 15.04.2011 issued by New Maa Mahamaya Disposal, Ambikapur (C.G.), Ex.A-18 is bill issued by Star Diesel Garage, Ambikapur, document Ex.A-19 is bill dated 12.06.2011 issued by K.G.N. Turbo Repairing, Korba (C.G.), Ex.A-20 is receipt issued by Sonbhadra Diesel Engine Garage, Ex.A-21 is bill dated 29.06.2011 issued by Gurunanak Motor Stores, Ambikapur (C.G.), Ex.A-22 is bill issued by Bhamra Mechanical Works, Ambikaur (C.G.), Ex.A-23 is intimation regarding the incident sent by the respondent/complainant to the Police Station Kotwali, Ambikapur (C.G.), Ex.A-24 is letter sent by the respondent/complainant to the Chief Branch Manager, Central Bank, Ambikapur, District Surguja (C.G.).
// 8 //
9. The appellants/OPs also filed documents. Document D-1 is Loan Cum Hypothecation Agreement, document D-2 is Schedule I and II attached to and forming part of the Loan Cum Hypothecation Agreement describing particulars of the amount payable, Document D-3 is Schedule III attached to and forming part of the Loan cum Hypothecation Agreement describing particulars of the amount payable, Document D-4 is statement of account, Document D-5 is letter dated 12.05.2011 sent by the appellants/OPs to the respondent / complainant, Document D-7 is letter dated 01.07.2011, sent by the appellants/OPs to the Inspector of Police, Document D-8 is Inventory List, Document D-9 is letter dated 03.07.2011 sent by the appellants/OPs to the respondent/complainant.
10. In the case of M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy, 2013 (4) CPR 345 (SC), Hon'ble Supreme Court has observed thus :-
"29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be // 9 // denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2 - Judge Bench interpreted that section and held as under :-
"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer in automatic right nor create an automatic embargo on // 10 // the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
11. In the case of Suryapal Singh v. Siddha Vinayak Motors & Anr., III (2012) CPJ 4 (SC), Hon'ble Supreme Court, has observed thus :-
"2. This Court vide its judgment in Trilok Singh & Ors. v. Satya Deo Tripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financier is real owner of the vehicle, therefore, there cannot be any allegation against him for having the possession of the vehicle. This view was again reiterated in K.A. Mathai @ Babu & Anr. v. Kora Bibbikutty & Anr., 1996 (7) SCC 212; Jagdish Chandra Nijhawan v. S.K. Saraf, IX (1998) SLT 477 = IV (1998) CCR 118 (SC) = 1999 (1) SCC 119; Charanjit Singh Chadha & Ors.
// 11 // v. Sudhir Mehra, VI (2001) SLT 883 = III (2001) CCR 232 (SC) = 2001 (7) SCC 417, following the earlier judgment of this Court in Sundaram Finance Ltd. v. The State of Kerala & Anr., AIR 1966 SC 1178; Smt. Lalmuni Devi v. State of Bihar & Ors., I (2001) SLT 26 = I (2001) CCR 9 (SC) = 2001 (2) SCC 17 and Balwinder Singh v. Asstt. Commissioner, V (2005) SLT 195 = III (2005) CCR 8 (SC) = CCE 2005 (4) SCC 146."
12. In the case of Fair Air Engineers Pvt. Ltd. And Another v. N.K. Modi, (1996) Supreme Court Cases 385, Hon'ble Supreme Court has observed thus :-
"16. It, would therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for // 12 // adjudication of the disputes would be otherwise those given in the Act".
13. Section 3 of the Consumer Protection Act, 1986 makes the position clear. It reads thus :-
"3. Act not in derogation of any other law. - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
14. Looking to the provisions of Section 3 of the Consumer Protection Act, 1986 and judgment of Hon'ble Supreme Court in the case of M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy (Supra), the District Forum has jurisdiction to take cognizance in the matter.
15. Now, we shall consider whether the appellant/OPs have repossessed the vehicle forcibly or by using muscle power and committed deficiency in service.
16. In the case of Pramod Kumar Rai v. Shriram Transport Finance Co. Ltd., III (2012) CPJ 553 (NC), Hon'ble National Commission has observed thus :
"3. Learned Counsel for the petitioner argued that the petitioner is a poor person. When we asked whether he was ready to deposit the instalments in three months, he wanted another one month to deposit the above said three instalments. It is, thus, clear that the petitioner // 13 // has no intention to pay off the loan. The but and ben stand set up by the petitioner cannot produce the desired result.
4. Again, it is well settled that as per agreement, the respondent, finance company is well within its right to seize the said truck. This view is supported by National Commission in the case of Surendra Kumar Agrawal v. Telco Finance Limited & Anr., II (2010) CPJ 163 (NC)."
17. In the case of Shriram Transport Finance Co. Ltd. and Anr. v. Mr. Chaman Lal., 2012 (4) CPR 75 (NC), Hon'ble National Commission has observed thus :
"6. .........Hon'ble Supreme Court has recently in Suryapal Singh v. Siddha Vinayak Motors and Anr., II (2012) CPJ 8 (SC) held :
"Under the Hire Purchase Agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee / trustee, therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financier. This Court vide its judgment in Trilok Singh & Ors. v. Satya Deo Tripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financier is real owner of the vehicle, therefore, there cannot be any allegation against him for having the possession of the vehicle. This view was again reiterated in K.A. Mathai @ Babu & Anr. v. Kora Bibbikutty & Anr., 1996 (7) SCC 212; Jagdish Chandra Nijhawan v. S.K. Saraf, IX (1998) SLT 477 = IV (1998) CCR 118 (SC) = 1999 (1) SCC 119; Charanjit Singh Chadha & Ors. v. Sudhir Mehra, VI (2001) SLT 883 = III (2001) CCR 232 (SC) = 2001 (7) SCC 417, following the earlier judgment of this Court in Sundaram Finance Ltd. v. The State of Kerala & Anr., AIR 1966 SC 1178; Smt. Lalmuni Devi v. State of Bihar & Ors., I (2001) SLT 26 = I (2001) CCR 9 (SC) = 2001 (2) SCC 17 and // 14 // Balwinder Singh v. Asstt. Commissioner, V (2005) SLT 195 = III (2005) CCR 8 (SC) = CCE 2005 (4) SCC 146."
18. In the case of Magma Fincorp Limited v. Sh. Subhankar Singh, I (2013) CPJ 27 (NC), Hon'ble National Commission observed that :
"9. It is apparent that the learned Counsel for the respondent has raised copious objections merely for the sake of cavil. Notice dated 16.6.2009 has been placed on record. It is clear that he did not pay the instalments for the months of April, May and June. He also did not pay delay payment charges, total being Rs.59,246/-. Notice dated 11.7.2009, reveals that the said amount stood enhanced to Rs.80,050/-. Payment of one instalment in the month of July is no compliance of the terms and conditions of the agreement, placed before this Commission. There was no need to give the notice. The petitioner Company could have no moto taken the possession of the vehicle. The relevant extracts of the agreement reads, as under :-
"14. Events of default rights and remedies Thereon : (i) in case the Hirer/s shall during the continuance of this Agreement do or suffer one or more of the following :
Fail to pay in time any of the hire instalments or part thereof herein reserved or any other sum of money payable under this agreement. To (p) xxxxxxxxx (ii). (a) xxxxx (b) MAGMA SHRACHI shall be entitled to take possession of the said assets(s)/vehicle(s) and sell and/or cause to be sold or otherwise dispose of all or any part of the said asset(s)/vehicle(s) or any fittings thereof in such manner and/or made as prescribed more fully and particularly in appendix "A" hereto and apply the net sale proceeds of such sale in or towards liquidation of the amount outstanding due to MAGMA SHRACHI from the said hirer(s) as on the date of such sale. It, therefore means that there was // 15 // no need to give notice, however, the petitioner gave two notices in this respect".
11. The National Commission, in case reported in Surendra Kumar Agrawal v. Telco Finance Ltd. & Anr., II (2010) CPJ 163 (NC), Hon'ble Mr. Justice Ashok Bhan, President, was pleased to hold as under :-
6. Aggrieved by the order passed by the District Forum petitioner filed the Appeal before the State Commission. The State Commission relying upon the judgment of Hon'ble Supreme Court of India in Managing Director Orix Auto Finance (India) Ltd. Vs. Sh.
Jagmandar Singh & Anr. reported in 127 (2006) DLT 278 (SC) = II (2006) BC 108 (SC) = II (2006) SLT 166 = II (2007) CPJ 45 (SC) = (2006) 1 SCC 708, dismissed the Appeal. It was held that no settlement of account showing details of repayment of loan installments is filed by the petitioner/complainant. That the petitioner had defaulted several times. That the said judgment of the Apex Court has clearly endorsed the rights of the finance in respect of repossessing the vehicles in case of default by the hirer.
7. xxxxx
8. xxxxx
9. It is not disputed before us that the petitioner had raised a loan of Rs.6,15,000/- to purchase the truck. No statement of account showing repayment of loan instalments has been filed by the petitioner. It was admitted before the State Commission that the petitioner had defaulted several times in making the payment on the date when it was due. Further it is not disputed that as per Hire Purchase Agreement the financier was authorized to repossess the vehicle in case of default in repayment of loan instalments. Supreme Court of India in Managing Director Orix Auto Finance (India) Limited case (supra) has held that the financier can repossess the vehicle if the agreement permits the financier to take possession of financed vehicle. There is nothing to // 16 // show that the vehicle was repossessed forcibly. Mere fact that possession was taken by the respondents cannot be the ground to contend that the hirer is prejudiced. We agree with the view taken by the State Commission".
19. In the instant case, the respondent/complainant pleaded in para 6 of his complaint that the respondent/complainant came to know that with the help of muscleman, the appellants/OPs had taken possession of the vehicle from the garage and without giving any intimation and giving opportunity of hearing to the respondent/complainant, sold the vehicle to some unknown person contrary to law and thus, the appellants/OPs committed deficiency in service. In para 7 of the complaint, it has been pleaded by the respondent/complainant that he contacted with the appellants/OPs and requested for returning the vehicle, but the appellants/ OPs did not respond his request. In complaint, there is no specific averment by the respondent/complainant that on which date the appellants/OPs took the possession of the vehicle forcibly and when he contacted with the OPs.
20. The respondent/complainant took the vehicle at Sonbhadra Diesel Engine Garage, Namnakala, Ambikapur for repairing work and the vehicle was kept in the said Garage from where the vehicle was stolen by some unknown persons. Document Ex.23 is letter dated 02.08.2011. The said letter was written by the respondent/complainant // 17 // to the Police Station, Kotwali, Ambikapur in which the date of occurrence of the incident, was not mentioned specifically. In the said document it is mentioned thus :-
"izfr] Jheku Fkkuk izHkkjh egksn;
dskrokyh Fkkuk vfEcdkiqj ljxqtk N-x-
fo"k;%& vijk/k iathCk/n fd, tkus ckor~A egksn;
vkosnd us fnukWd 29-09-2010 dks Jhjke Qk;usl dEiuh ls gkbok Vªd Øekad CG04-JA-1329 ds fy, _.k fy;k Fkk A Vªd [kjkc gks tkus ds dkj.k vkosnd mls cukus gsrq lksuHknz Mhty bZtu xSjt s ueukdyk vfEcdkiqj ds lapkyd cthj vgen ds ;gka fnukWd 26-06-2011 dks fn;k x;k Fkk tgka ls mDr okgu pksjh gks xbZ gSA cgqr irk djus ij Hkh dksbZ irk ugh pyk gSAA vr% Jheku ls fuosnu gS fd mDr izdj.k esa vijk/k ntZ djus dh d`ik dh tkosA vfEcdkiqj vkosnd 02@08@2011 jktsUnz flag vk-
Lo- cydkj flag
fuoklh xks/kuiqj
vfEcdkiqj
ftyk ljxqtk
¼N-x-½ "
21. Looking to document Ex.A-23, it appears that the vehicle was kept in Sonbhadra Diesel Engine Garage, Namnakala, Ambikapur from 26.06.2011 and the matter was reported to the Police Station on 02.08.2011. Another document Ex.24 is letter written by the // 18 // respondent/complainant to the Central Bank Ambikapur, District Surguja (C.G). In the said letter, it is mentioned that :
"¼02½ rFkk vc og okgu fnukWd 1-7-2011 dks esjs fcuk vuqefr ,o tkudkjh ds ,oa xSjt s ls Qk;usal dEiuh }kjk tcnZLrh mBkdj vU; O;fDr dks csp fn;k x;k gSA "
22. In the instant case, Sonbhadra Diesel Engine Garage, Namnakala, Ambikapur, is material witness regarding the incident that the appellants/OPs had taken possession of the vehicle in question forcibly from its garage, but the respondent/complainant could not file affidavit of the employee of Sonbhadra Diesel Engine Garage, Namnakala, Ambikapur. The respondent/complainant did not file any material evidence which indicates that the vehicle in question, was forcibly repossessed by the appellants/OPs.
23. According to the respondent/complainant, the vehicle was repossessed on 01.07.2011 and on the basis of the document Ex. 23, it appears that the matter was reported on 02.08.2011 i.e. after one month from the occurrence of the incident. The appellants/OPs filed documents i.e. Loan Cum Hypothecation Agreement (document D-1), legal notice dated 12.05.2011 sent by the appellant/OPs to the respondent/complainant (document D-5), inventory list document D-9. Looking to the above document D-5, it appears that the prior to taking repossession of the vehicle, the appellants/OPs sent notice to // 19 // the respondent/complainant on 12.05.2011. The vehicle was repossessed on 01.07.2011 and inventory was also prepared on the same day and another notice was also sent to Sonbhadra Diesel Engine Garage, Namnakala, Ambikapur on 03.07.2011. The appellants/OPs have also filed postal receipt in support of their contentions.
24. It is undisputed fact that the respondent/complainant purchased the vehicle in question in the month of September, 2010 and the respondent/complainant and appellants/OPs entered into an agreement on 22.09.2010 and Loan Cum Hypothecation Agreement was executed between them and the appellants/OPs provided loan to the respondent/complainant. From the perusal of the notice (document D-5) sent by the appellants/OPs to the respondent/complainant and written statement filed by the appellants/OPs, it appears that the respondent/complainant had deposited a sum of Rs.1,46,000/- with the appellants/OPs and remaining amount of loan, was not paid by the respondent/complainant and the respondent/complainant had defaulted in making payment of installments. It also appears that the respondent/complainant used the vehicle for near about 9 months and he committed default in making payment of the installments. The // 20 // respondent/complainant has utterly failed to prove that the vehicle in question, was forcibly repossessed by the appellants/OPs.
25. The pleading advanced by the respondent/complainant, is not reliable and is not acceptable. Therefore, the impugned order passed by the District Forum, suffers from irregularity and illegality and is not sustainable in the eye of law and is liable to be set aside.
26. For the foregoing reasons, in our opinion the appeal of the appellants/OPs deserve to be allowed. Therefore, the appeal is allowed, impugned order dated 21.12.2012, is set aside and consumer complaint shall stand dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
/04/2014 /04/2014