Before the District Consumer Disputes Redressal Forum, Kangra at Dharamshala, District Kangra (HP)



Consumer complaint: 254/06

Date of presentation: 25.8.06

Date of decision: 20.3.2009



Sohan Singh son of Sh. Dhulo Ram, resident of VPO Bhanala Tehsil Shahpur, District kangra (HP)

Complainant

Versus



1. Tata Motor Finance through its Branch Manager, SK & Com. Head Office National Highway Nagrota Bagwan, District Kangra (HP)

2. Tata Motor Limited, through its Manager, Commercial Vehicle Division, and BHPS SCO 170, 171,172 (1st Floor) Sector 17 C, Chandigarh.



Opposite parties



Complaint under section 12 of the Consumer

Protection Act, 1986



PRESIDENT: A.S.JASWAL

MEMBERS: S.D.SHARMA AND PABNA SHARMA



For the complainant: Sh. Rohit Panchkaran, Advocate

For opposite parties: Sh. Gaurav Pathania, Advocate



ORDER

A.S.JASWAL, PRESIDENT (ORAL)



In nut shell, the case of the complainant is that the opposite parties deal in financing various kinds of vehicles and that he got his vehicle, bearing No.PB08-AB 7511, financed from opposite party No.1 through opposite party No.2, for a sum of Rs.1,12,000/-. The financed amount was to be paid in 22 instalments of Rs.5950/-each. The case of the complainant is that he remained unable to pay two instalments of financed amount within time and for this reason, the opposite parties without, any prior notice, had taken the registration certificate of the vehicle. When he demanded the registration certificate of the vehicle, the officials of the opposite parties at Nagrota Bagwan had asked him to pay Rs.8000/-. When he asked the opposite parties how the interest of Rs.5950 became Rs.8000/- in a month, they threatened him to re-possess his vehicle. Thereafter, vide letter dated 20.6.2006, opposite party No.1 asked him to deposit Rs.20892/- with opposite party No.2 that then, just after 18 days, they had again asked him to pay Rs.38608/- When he asked the opposite parties, to supply the copy of statement of accounts, the opposite parties, without his consent, had forcibly taken his vehicle on 24.6.06 due to which he remained unable to earn his livelihood by means of self employment In this manner, the opposite parties have committed deficiency in service.

2. By filing reply, opposite parties took preliminary objections qua jurisdiction and that the complaint is false and frivolous. Sanction of loan in favour of the complainant is admitted. It is submitted that the complainant has committed and admitted default in paying dues. It is asserted that since the complainant committed default by dishonouring the cheques towards the installments payable on 25.8.04, 25.10.04, 25.12.2004, 25.3.2005, 25.4.2005, 25.5.2005, 25.7.05, 25.8.05, 25.6.05, 25.10.05, 25.11.05, 25.1.06 and 25.2.006, the opposite parties had rightly taken into possession his vehicle and thus,. The other averments have been denied.

3. The complainant filed rejoinder and re-asserted and reiterated the averments as made in the complaint and denied the allegations as made in the reply. This Forum on 18.12.2007 framed the following points for determination:-

1. Whether O.Ps committed deficiency in service, as alleged? OPC

2. Whether the complaint is not maintainable as alleged? OPOPs

3. Relief

4. For the reasons to be recorded hereinafter while discussing points for determination, our findings on the aforesaid points are as under:-

Point No.1: Yes

Point no.2: No

Relief: The complaint is partly allowed as per operative part of the order.



REAONS FOR FINDINGS

POINTS No.1 and 2



5. These points are inter connected and interlinked, hence are taken up together for determination, in order to avoid repetition in discussion. The learned counsel for complainant has argued that complainant had deposited the entire amount, but the opposite parties illegally and arbitrarily, without giving any notice, of being heard to the complainant, had taken the possession of the vehicle. Thus, the opposite parties have committed deficiency in service.

6. On the other hand, learned counsel for opposite parties has argued that there is no deficiency in service on the part of opposite parties. He has further argued that as per law, the Financer is competent to take possession of the vehicle when the loan amount was not paid by the loanee. The learned counsel further argued that the complainant had admitted the default in making the payment and thus, there is no deficiency in service on the part of opposite parties.

7. To appreciate the arguments of the learned counsel for the parties, the entire record available on the file was gone into in detail.

8. The complainant has filed his affidavit, Ex.CW1, in which he has re-counted the averments, as made in the complaint. The material on record goes to show that the complainant has to pay the financed amount of Rs.1,12,000/- in 22 instalments of Rs.5950/- each.

9. The contention of the complainant is that the opposite parties without giving any prior notice of being heard, had taken the possession of the vehicle forcibly The material on record, goes to show that opposite parties, for a petty amount of Rs.8,000/-, had forcibly taken the possession of the vehicle of the complainant without giving any prior notice or opportunity of being heard on 24.6.06. There is nothing on record on behalf of the opposite parties to show that before taking possession of the vehicle, the opposite parties ever issued any notice to the complainant of their intention to do so or they had demanded the amount from the complainant. Our attention has been drawn to law laid down in case 2007 (1)RAJ(SC)-810. The Hon’ble Apex Court of the Country in para No.34 of its judgment has held as under:-

“In conclusion, we say that we are governed by a rule of law in the country. The recovery of loans or seizure of vehicles could be done only through legal means. The Banks cannot employ goondas to take possession by Force”.



Similar law has been laid down in A.I.R. 2007 SC 1349 titled as Manager, ICICI Bank Ltd. Versus Prakash Kaur and others and III(2007)CPJ 160(NC) titled as Jagdish Singh Versus United India Insurance Company Ltd.

10. In view of the above said detailed discussion and the law cited, we hold that the opposite parties have committed deficiency in service in so far as re-possession of the vehicle of the complainant without following the legal procedure is concerned.

11. So far as the contention of the of the complainant, that the opposite parties had wrongly calculated the interest and that they be directed to return the vehicle, is concerned, the same cannot be decided by this Forum in a summary manner, as it requires a detailed and thorough inquiry because the opposite parties in their reply as well affidavit, Ex.OPW1, have pleaded that the complainant has committed breach of terms and conditions of the loan Agreement. Since, the dispute between the parties, is also qua settlement of accounts, it cannot be decided by this Forum in a summary manner, as it requires elaborate and detailed inquiry by a civil Court. The proper and appropriate remedy for the complainant is to approach the Civil Court, for the redressal of his such grievances.

12. Now, how this deficiency can be cured? Since, it stands proved on record that the opposite parties had taken possession of the vehicle, of the complainant, forcibly, we find that ends of justice will be met in case the opposite parties are directed to pay Rs.20000/- as compensation for causing loss of earning, mental pain, agony and inconvenience. So far as the other relief of the complainant is concerned, the complainant can approach the Civil Court, if advised so. . Hence, we hold that the complaint is maintainable and the complainant has cause of action and locus standi to file the present complaint. Hence, point no.1 is answered partly in affirmative and point no.2 is decided in negative.

13. No other point argued or urged before us by any of the party. Hence, needs no consideration of this Forum.

RELIEF

14. In view of our findings on points no.1 and 2 above, the complaint is partly allowed and we order the opposite parties, jointly and severally to pay an amount of Rs.20, 000/-as compensation within 30 days after the receipt of copy of this order, failing which it will carry interest @ 9% per annum from the date of complaint, till its realization. The complainant is left at liberty to approach Civil Court, for the redressal of his other reliefs, if advised so. In the peculiar facts and circumstances, the complaint is allowed alongwith litigation costs of Rs.2000/-. The copy of this order be sent to the parties free of costs and the file after due completion be consigned to the record-room.