CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



First Appeal no.217/2008 Date of Filing: 12/02/2008

@M.A.No.341/2008-Stay

Consumer Complaint No.90/2007

District Consumer Forum:Raigad Date of Order: 02/06/2009



ICICI Bank Limited, Appellant

Through Branch Manager, (Org.Opp.Party)

128/ Sundaram Building,

1st floor, above Titan Watch showroom

shivaji Chowk,

Old Panvel, District- Raigad.

V/S

Shri Kashinath D.Phulware, Respondent

R/at- Beed, Tal- Karjat, (Org.Complainant)

District- Raigad- 410 201.





Corum : Mr.P.N.Kashalkar, Ho’ble Presiding Judicial Member.

Mr.S.R.Khanzode, Hon’ble Judicial Member.



Present: Adv.Shri A.S.Vidyarthi for appellant.

Adv. Shri R.A.Ghatte for respondent.



:- ORDER :-

Per Mr.S.R.Khanzode, Hon’ble Judicial Member:

This appeal arises out of order/award dated 31/12/2007 passed in consumer complaint no.90/2007 Shri Kashinath Dehu Phulware v/s. ICICI Bank Ltd. Raigad by District Forum, Raigad (Forum below in short). Respondent/complainant has purchased a motor cycle-Bajaj CT 100 Deluxe from dealer Hari Om Motors situated at Karjat (the dealer in short) for consideration of Rs.41,765/-. He made down payment of Rs.9,225/- and for remaining amount of Rs.32,540/- had taken a loan from appellant/org.opp.party/ICICI Bank Ltd. The said loan was to be repaid in 36 monthly instalments and EMI fixed was of Rs.1177/-. Respondent/org.complainant accordingly even handed over 36 undated cheques to the dealer. According to complainant, till 07/7/2006 he had paid Rs.27,071/- towards loan of repayment amount. On 29/06/2006 the appellant/org.opp.party without giving any notice seized the vehicle and taken the same with them and thereafter, informed respondent/org.complainant that if he wanted to take back the vehicle he had to pay remaining balance amount of loan of Rs. 29,583/- along with interest @24%. Possession was not given back therefore consumer complaint was filed by respondent/org.complainant, which was answered in his favour and appellant/org.opp.party was directed either to hand over possession of vehicle to the complainant or to pay compensation for the same i.e. refunding amount of Rs.27,071/- paid by the complainant towards loan repayment along with interest @ 8% p.a. It was also directed that the complainant shall pay Rs.13,806/- to appellant/opp.party(towards unpaid loan amount) and only thereafter vehicle shall be returned back to the complainant. Rs.2,000/-towards compensation and Rs.1,000/- as costs were also awarded as per impugned award.

We heard Adv.Shri A.S.Vidyarthi for appellant and Adv. Shri R.A.Ghatte

for respondent. Perused the record.

According to opposite party, since complainant was a defaulter and did not pay the loan amount as agreed, appellant/opposite party had seized the vehicle as per the agreement itself and therefore, there is no deficiency in service on their part. Forum below held that since the appellant/opposite party failed to produce the copy of agreement on which they rely to take the vehicle in their possession, deficiency of service is proved against the appellant. Forum below did not investigate the claim of appellant/opp.party that it is the complainant, who himself surrendered the vehicle and also did not address itself to the effect of a notice dated 18/07/2006, whereby the appellant/opposite party asked the complainant to take back the vehicle on payment of balance amount of loan of Rs.29,583/- with interest. These are the vital questions, which are to be considered and answered properly. Forum below committed illegality by not applying properly law of presumptions and adverse inference drawn in the instance case on the alleged failure of appellant/opposite party to not to produce the agreement. It is not made clear, who is in custody of the original agreement and whether notice to produce was given or not. This is relevant to draw any presumption for adverse inference. Thus, we find that Forum below did committed illegality, which resulted in miscarriage of justice while settling this consumer dispute. It is a fit case to remand. We hold accordingly and pass the following order:-



:-ORDER-:

1. Appeal is allowed.

2. Impugned order dated 31/12/2007 is set aside.

3. Matter is remitted back to Forum below for de novo trial. Forum below shall give both the parties an opportunity to lead fresh evidence as per provision of 13 of Consumer Protection Act, 1986, to hear them afresh, and then settle the dispute according to law.

4. In the given circumstances there is no order as to costs.

5. Misc.Application No.341/2008 stands disposed of as infructuous.

6. Copies of the order herein be furnished to the parties.





(S.R.Khanzode) (P.N.Kashalkar)

Judicial Member Presiding Judicial Member.