Date of filing:- 14/07/2008

Date of Order :- 06/03/2009

OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FOURM (COURT)

B A R G A R H.


Consumer Dispute Case No. 60 of 2008


Pankaja Bhoi, S/o Dubaraj Bhoi, aged 35(thirty five) years, Resident of village- Khairpali, Po. Bhatigaon, Ps. Barpali, Dist. Bargarh, at present resident of Gangadhar Nagar, Po/Ps/Dist. Bargarh.


- V e r s u s -

1) The Branch Manager, ICICI Bank Ltd, At. Ainthapali, Budharaja, Po/Ps/Dist. Sambalpur.

2) Collection Agent, ICICI Bank Ltd., At. Ainthapali, Budharaja , Po/Ps/Dist. Sambalpur.

Counsel for the Parties:-

For the Complainant:- Sri D.Acharya, Advocate with other Advocates.

For the Opposite Parties :- Sri D. Mishra, Advocate with other Advocates.


-: P R E S E N T :-

Sri Gouri Shankar Pradhan ..... ..... ..... ..... ..... ..... ..... P r e s i d e n t.

Sri Binod Kumar Pati ..... ..... ..... ..... ..... ..... ..... M e m b e r.

Miss Bhagyalaxmi Dora ..... ..... ..... ..... ..... ..... ..... M e m b e r.


Dt. 06/03/2009 -: J U D G E M E N T :-

Presented by Sri G.S.Pradhan, President .

The present complaint pertains to deficiency in service as envisaged under the provision of Consumer Protection Act-1986 and its brief fact is as follows:-


The Complainant has purchased one Bolero XL AC vehicle bearing its Regd. No. OR-15-K-8522 being financed by the Opposite Parties. The Complainant has made a down payment of Rs. 1,11,000/-(Rupees one lac eleven thousand)only and the rest amount of Rs. 4,07,369/-(Rupees four lac seven thousand three hundred sixty nine)only was being financed by the Opposite Parties to be paid in 48(forty eighty) equal monthly installments at Rs.10,695/-(Rupees ten thousand six hundred ninety five)only per month. The Complainant has already paid Rs. 1,71,120/-(Rupees one lac seventy one thousand one hundred twenty)only to the Opposite Parties towards EMIs. Due to some financial difficulties and family problem, the Complainant could not pay some installment.


That on Dt. 08/07/2008, some agents deputed by the Opposite Parties forcibly took away the vehicle from the Complainant in front of R.T.O. Office, Bargarh alleging default in payment of some monthly installments. The Opposite Parties or its agents are not authorized to take away the vehicle forcibly with out any prior notice demanding payment of the outstanding installments.


The Complainant contends that, as per the agreement between the Parties, in case of any default in payment of the EMIs, the Opposite Parties has option to present the cheque issued by the Complainant and in case of the cheque being dishonored the Opposite Parties could initiate proceeding Under Section 138 N.I. Act. And where the Complainant has already spent a substantial amount to own the vehicle, taking over possession of the said vehicle by force with out any notice or legal proceeding or with out adopting the due process of law, amounts to deficiency in service by the Opposite Parties.


The Complainant claims for a direction to the Opposite Parties to release and had over the vehicle Bolero XL AC bearing Regd. No. OR-15-K-8522 to the Complainant, Rs. 50,000/-(Rupees fifty thousand)only compensation towards mental agony, Rs. 10,000/- (Rupees ten thousand)only towards loss of income and Rs. 5,000/-(Rupees five thousand)only for litigation expenses.


The Opposite Parties in its version denied to have cause any deficiency in service towards the Complainant and challenges the maintainability of this disputes under the Consumer Protection Act.


The Opposite Parties contends that as per the explicit terms and conditions of the loan agreement executed by the Parties, the Complainant has agreed to liquidate the entire loan in 48(forty eight) equal monthly installment. But despite repeated request and requesting the Complainant by the collection agents of the Opposite Parties for payment, Complainant deliberately failed and neglected to pay the monthly installments, the Opposite Parties were compelled to take such repossession of the vehicle as per term and condition of the agreement. The Complainant has voluntarily surrendered the vehicle infavour of the Bank and not repossessed the vehicle by force. The Opposite Parties have every short of right as per the agreement signed by the pertions to take repossession of the vehicle in case of default of payment.


The Opposite Parties further contends that, the transaction between the borrower/Complainant and the Opposite Parties/financier is based on a contract and hence it was not service as provided under the Consumer Protection Act. Breach of contract by the Complainant due to default in payment, deprives him of the benefit of service. Since the repossession of the vehicle was due to default in payment as per the agreement executed between the parties, the Complainant has no case and hence is not entitled for any compensation as claimed.


The Opposite Parties prays for dismissal of the case with cost.


Perused the Complaint petition, Opposite Parties's version as well as the copies of documents filed by the Parties in respective of their case and find as follows:-


It is not disputed by the Parties that, the Complainant has purchased the Bolero XL (AC) vehicle bearing its Regd. No. OR-15-K-8522 being financed by the Opposite Parties Bank to be payable the loan amount in 48(forty eight) equal monthly installment and his failure to pay some monthly installments due to financial difficulties and the Opposite Parties took repossession of the said vehicle. The only grievance that propelled the Complainant to knock the door of the Forum seeking remedy there of is that, instead of resorting to means as presented by law, without any notice or legal proceeding, the Opposite Parties forcibly took repossession of the vehicle of the Complainant.


When a person desires to purchase a vehicle and not having sufficient money on hand borrows the amount needed from a Financer or a Banker and pays it over to the vender of the vehicle, the transaction between the person and money lender will unquestionably be a loan transaction. In such a case the vehicle purchased by the person is registered in his name and remains in possession at all material times so registered in his name. The persons remains in possession and is the owner of the vehicle. By an agreement executed by the parties, the vehicle can be given as security for the loan advanced. In such a case the right to seize the vehicle is merely a license to ensure compliance with the terms and condition of the so called hire purchase agreement.


The Opposite Parties Bank was required to issue notice to the Borower/Complainant demanding for payment of the outstanding monthly installment prior to repossession of the vehicle and there was nothing to show that such notice was given before repossessing the vehicle. Copy of loan agreement is not filed by the Parties to ascertain the terms and conditions which was agreed by the Parties.


The Opposite Party Bank can not take repossession of the vehicle by force for which loan is advanced, if at all there is a clause in Hire Purchase agreement executed between the Parties, is against principle of law. The Opposite Parties Bank can take repossession of the vehicle in case where the borrower may have committed default in payment of installment through proper procedure recognized by law instead of taking resort to strong arm tactis. But the Opposite Parties have not adopted the proper procedure as recognized by law before taking possession of the vehicle from the Complainant. Further the Opposite Parties would not established the contentions raised in the version by placing the relevant materials.


Hon'ble National Commission in the matter of Citicrop Maruti Finance ltd Vs S.Vijaya Laxmi reported in C.P.R. 2007 (3) page 191 held that, a financier is not invested with the right to repossess the vehicle, for which loan has been given by it, by use of force under any law, precedent or code of conduct.

Further reliance may be placed on the decision reported in 2008(3) CPR page 45 in the case of Tata finance ltd Vs. Francis Sociro where in Hon'ble National Commission held, “to take possession of vehicle by use of force is not justified.”


In view of above discussion, the Opposite Parties by forcibly taking a way the vehicle in question from the Complainant has committed deficiency of service towards the Complainant.


The Opposite Parties have released and handover the said vehicle Bolero XL-AC Regd. No. OR-15-K-8522 to the Complainant vide an interim Order of this Forum, hence it does not require further direction as claimed in the petition.


Accordingly complaint allowed and ordered.


The Opposite Parties are directed jointly and severally to pay Rs. 5,000/-(Rupees five thousand)only compensation towards mental agony and cost of litigation to the Complainant with in 30(thirty) days from the date of this Order failing which the total amount will carry 18% (eighteen percent) interest per annum till the date of payment.

Complainant disposed of.

Typed to my dictation

and corrected by me.


Sd/-

I agree, I agree, (Sri Gouri Shankar Pradhan)

P r e s i d e n t.

Sd/- Sd/-

(Sri Binod Kumar Pati) (Miss Bhagyalaxmi Dora)

Member. Member.