Before the District Consumer Disputes Redressal Forum, Mandi, H.P.



Complaint Case No.69/2008

Date of Institution 10-3-2008

Date of Decision 7-3-2009



Santosh Kumar son of Sh. Bhagirath resident of village and Post Office Bhangrotu, Tehsil Sadar, District Mandi, H.P.





…Complainant





V/S



1. Managing Director, Megma Leasing Ltd Megma House 24 Park Street Kolkata 70016.

2. Regional Manager, Regional Office Megma Leasing Ltd SCO 10 Ist floor Section 26 Madhya Marg Chandigarh.

3. Branch Manager Megma Leasing Ltd Village and Post office Gutkar, Tehsil Sadar, District Mandi, H.P.



…..Opposite parties





For the complainant Sh.Bhupinder Sharma , Advocate

For the opposite parties Sh. Manohar Lal Sharma , Advocate







Complaint under Section 12 of the

Consumer Protection Act, 1986.



ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties. The case of the complainant is that he is owner of Bus No.HP-33-2107 and the same was purchased by him after taking loan from Himachal Gramin Bank Branch Nagchala, District Mandi. The complainant was in need of money for the repair of the bus and the opposite party No.3 offered to refinance the vehicle in the sum of Rs.1,45,000/- in October 2005 and the complainant in compelling circumstances was allured by the opposite party No.3 to grant loan with interest at the rate of 10% p.a. to be returned within three years by 14-9-2008. It had been alleged that the opposite party No.3 obtained signatures of the complainant on blank papers and paid the amount of Rs.1,38,000/- after deducting the first instalment of the term end loan towards his loan account in the month of October 2005. The complainant being simpleton person under the confidence of the opposite party No.3 kept on regularly paying the instalments of the loan. It has further been alleged that the opposite party No.3 at the instance of the then Branch Manager Sh. J.P. Bhardwaj by employing Gundas forcibly intercepted the above bus enroute i.e. Mandi to Sundernagar at Baggi around 11.30 AM on 13-3-2007 and forcibly entered the bus and scolded and thrashed the driver and conductor and forcibly vacated the bus at Dhanotu and took away the same . The driver rang the complainant and told about the incident of forcible possession of the bus by the gunda elements of the Megma Leasing Ltd and upon this the complainant went to the office of the opposite party No.3 where the Manager asked him to come on 29-3-2007 as the matter was being considered. On 29-3-2007 the Manager stated that the case of the complainant would be settled in one time settlement and further asked him to pay a sum of Rs.1,00,000/- by 3-4-2007 and to take the bus , whereupon the complainant paid Rs.20,000/- and requested for immediate settlement as he was forced to sustain heavy loss by this act of the opposite party No.3 acting on behalf of opposite parties No.1 and 2 . On 3-4-2007 when the complainant came for one time settlement , the Manager of the Megma Leasing told the complainant that the bus has been sold and the matter is finished and he cannot do anything as this is their business. The complainant further requested the opposite parties but the Manager scolded and shunted him out by threatening to kill and dire consequences. Upon this the complainant went to the police but of no use as they refused to register the complaint whereupon he approached the Superintendent of Police for registration of a case and taking action against the culprits , but the police did not register the case despite the order of the Superintendent of Police . When the complainant approached the Superintendent of Police again, he himself enquired about the matter and First Information Report was registered on 13-4-2007. It has further been alleged that the bus was road worthy when the same was seized by the opposite parties but the same was recovered by the police in deteriorated condition as its tyres etc were missing and is no more roadworthy. It has further been alleged that the complainant had already paid Rs.1,14,000/- towards the loan besides Rs.20,0000/- paid on 29-3-2007. It has further been alleged that the above act of the opposite parties amounts to unfair trade practice . With these allegations the complainant had sought a direction to the opposite parties to restore the bus No.HP-33-2107 alongwith its documents in a roadworthy condition and also to pay Rs.2,00,000/- as loss of income and a sum of Rs.1,00,000/- on account of harassment besides costs of litigation at Rs.5000/-.

2. The opposite parties resisted the complaint by raising preliminary objections that the complainant is not maintainable and that the complaint is false, frivolous and vexatious . On merits, the opposite parties have admitted that the complainant is owner of the bus in question but denied that the same had been purchased by raising loan. It has further been submitted that the complainant in the month of October 2005 voluntarily came to the office of the opposite parties at Gutkar and requested for advancement of the loan to his bus No. HP-33-2107 and after completing all the codal formalities the loan was sanctioned and advanced to the complainant as per the Hire Purchase Agreement Annexure R-1. It has been denied that signatures of the complainant were obtained on blank papers . It has further been denied that the complainant has paid the regular instalments to the opposite parties against his loan amount.. It is denied that the Branch Manger Mr. J.P. Bhardwaj by employing Gundas forcibly intercepted the bus of the complainant on 13-3-2007. It has further been averred that when the complainant made default then legal notices were served upon the complainant through counsel on 3-1-2007 and 3-2-2007 which are Annexure R-III and R-IV . It has also been denied that the then Manager of the opposite party asked the complainant for one time settlement nor the complainant has paid any amount of Rs.20,000/- to the opposite parties on 29-3-2007 . Para No.11 and 12 of the complaint have been denied by the opposite parties. The opposite parties had prayed for dismissal of the complaint qua it.



3. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.

4. We have heard the ld. counsel for the parties and have carefully gone through the record. From the perusal of the complaint, reply and accompanying documents , the question which requires determination in this complaint is as to whether the opposite parties are entitled to repossession of the vehicle and whether they are invested with right to repossess the vehicle by use of force in case of default of payment or not. The complainant had alleged that he kept on paying instalments regularly to the opposite parties but on 13-3-2007 , the opposite party No.3 at the instance of the then Branch Manager Sh.J.P. Bhardwaj forcibly intercepted the bus in question enroute i.e. Mandi to Sunder Nagar at Baggi at about 11.30 AM by employing gundas and forcibly entered into the bus and scolded and thrashed the driver and conductor and took away the bus . On the other hand, the case of the opposite parties is that they never employed gundas nor they forcibly intercepted the bus of the complainant on 13-3-2007 as alleged. Rather it has been averred that the complainant had defaulted in payment of the loan instalments and despite issuance of several reminders and legal notices he had failed to pay the out standing amount of loan ,therefore , as per the terms and conditions of the Hire Purchase Agreement , the vehicle was repossessed on 13-3-2007.

5 Now it has to be seen as to whether the opposite parties had forcibly taken the possession of the vehicle as alleged by the complainant . As per Para No.5 of the complaint, the complainant had alleged that on 13-3-2007 at 11.30 AM at Baggi, the vehicle was intercepted by the Gundas employed by the then Branch Manager of the opposite party No.3 namely Sh. J.P Bhardwaj and they forcibly entered into the bus , scolded and thrashed the driver and conductor forcibly and ultimately took away the bus. We find a good deal of substance in the submission of the ld. counsel for the complainant because if we accept the version of the opposite parties then there would have been a letter of surrender given by the complainant which could have established the date of the possession , place of surrender and name of the person in whose presence the same was taken into possession ,but no surrender letter has been placed on record by the opposite parties which belies their version . The intimation letter dated nil regarding repossession of the vehicle which was alleged to have been given to Police Station Balh,District Mandi which has been placed on record by the opposite parties as Annexure R-VII does not find mention the date and place of repossession of the vehicle . Vide letter of authority Annexure R-X placed on record by the opposite parties one Sh.Raju Gupta had been authorized by the opposite parties, to take the possession of the bus in question but the aforesaid letter also cannot be relied upon because it does bear any date and reference number. Both the aforesaid documents appear to be prepared by the opposite parties as an after thought . Moreover these are photocopies and no credence can be attached to them .Had the vehicle been taken into possession by Sh. Raju Gupta the opposite parties could have filed his affidavit .But there is no such affidavit placed on record by the opposite parties to substantiate their case. On the other hand , the complainant has filed his own affidavit as well as affidavit of the driver and conductor of the bus . The driver of the bus namely Sh. Nirmal Kumar alias Nindu in his affidavit dated Ist August 2008 categorically deposed that on 13-3-2007 , he was driving the bus No. HP-33-2107 and Sh. Jaswant Singh was conductor and the same was intercepted by the gundas of the opposite parties at Baggi at 1130 AM at the instance of Sh. J.P. Bhardwaj , Branch Manager of the opposite party No.3. He further deposed that that gunda elements thrashed him and conductor and scolded them and vacated the bus at Dhanotu and took away the same by shunting them out and by threatening them of dire consequences .The conductor of the bus Sh. Jaswant Singh corroborated the version of the driver by filing his affidavit dated 1st August 2008. As discussed above, no evidence has been filed by the opposite parties to the effect that the vehicle was taken into possession with the consent of the complainant .Therefore, in view of the evidence placed on record, it can safely be held that that the possession of the bus in question was forcibly taken by the opposite parties by taking the assistance of the gundas .

6. Now the question which arises for consideration before this Forum is as to whether the opposite party had a right to re-possess the vehicle in case of default of payment by use of force. The Hon’ble Supreme Court in the case titled Manager ICICI Bank Ltd vs Prakash Kaur and others AIR 2007 Supreme Court 1349 had held that recovery of the Bank Loans or seizure of the vehicles could be done only through legal means . The Bank cannot employ goondas to take the possession by force .In the order passed by Hon’ble National Commission in Citicorp Maruti Finance and ltd vs S.Vijayalaxmi , III(2007)CPJ-161(NC) it has been held by the Hon’ble National Commission that the recovery of the loan or seizure of vehicle could be done only through legal means .and the Banks cannot employ muscle men to take the possession by force. In para No.23 and 24 of the aforesaid order it has been held as under:-

“23. From the aforesaid law laid down by the Apex Court as well as the High Court of Delhi, it is clear that even though the hire purchase agreement may give right to take possession of the vehicle , money lenders/ financial institution/ banks have no power to take possession by use of force and have to follow the statutory remedy which may be available under the law.

24.May be that the procedure of law is slow but that is no excuse for use of force for repossessing the vehicle. If the contention of the petitioner that it can take possession of the vehicle by means of force is accepted ,the rule of jungle would prevail and might would be right.”

7 In the present case also, as discussed earlier it cannot be said that the opposite party has taken the possession of the vehicle by following the statutory remedy available to them under the law and since the vehicle had been taken into possession by use of force , it was a clear cut case of unfair trade practice on the part of the opposite parties in view of the decisions of Hon’ble Apex court and the Hon’ble National Commission, cited supra.

8 The next question which requires consideration is that when the repossession of the vehicle is held to be unfair what relief should be given to the complainant . The perusal of the record shows that the vehicle was sold by the opposite parties to some IIIrd person . The record further shows that the complainant had lodged the first information report No.134/2007 dated 13-4-2007 at Police Station Balh, District Mandi, H.P. regarding snatching of the vehicle . The perusal of the record further shows that the complainant had filed an application before the Ld. Judicial Magistrate Ist Class Court No.2, Mandi in reference to the release of bus in question and vide order dated 11-7-2008 the bus was released in favour of the complainant. The relevant para of Cr. M.A No. 188-IV/2008 reads as under:-



Consequently, the application of RC holder for release of vehicle is allowed to release the bus alongwith documents of bus after proper receipt and identification. The application of company as filed is dismissed . The applicant / RC holder Santosh Kumar shall furnish a surety bond alongwith a guarantee of Rs.3,00,000/- undertaking to produce the vehicle in case the same came to be required at any stage of the proceedings arising out of First Information No.134/2007of Police Station Balh, District Mandi, H.P. . Let the bonds be furnished .”



9 During the course of arguments it has been admitted the ld. counsel for the opposite parties that bus in question was now in the custody of the complainant. Now the next question which requires consideration is as to what relief should be given by the complainant in the facts and circumstances of the case . In his complaint, the complainant had prayed for direction to the opposite parties for restoration of the bus in question. However ,since the bus has now been released in favour of the complainant , therefore, no orders are required to be passed in this respect . The complainant had claimed a sum of Rs.2,00,000/- on account of regular loss of income till date . However, the complainant has not filed any evidence with respect to the loss of income as alleged to be suffered by him. There is no material on record to suggest that the complainant had suffered loss of income in the sum of Rs.2,00,000/- from the date of seizure of the bus/ till the filing of the complaint. The complainant ought to have filed Income tax returns of previous years or some other satisfactory evidence on record regarding the income generated from plying of the bus in question. But no document has been filed by the complainant in this respect. However, the fact remains that the bus was illegally taken into possession by the opposite parties and the complainant had suffered loss of income and he was deprived of the earnings from the bus in question w.e.f. 13-3-2007 till 11-7-2008 The complainant has also claimed Rs.1,00,000/- on account of harassment due to illegal act of the opposite parties besides costs of litigation. Therefore, in such circumstances an amount of Rs.50,000/- in lump sum will be sufficient to meet the ends of justice on account of loss of income as well as on account of harassment and mental agony . Apart from this the complainant is also held entitled to costs of litigation quantified at Rs.5000/-.



10. In view of what has been stated hereinabove, the complaint of the complainant is allowed partly and the opposite parties are directed to pay Rs.50,000/- on account of , loss of income , harassment and mental agony within one month from the date of receipt of the copy of this order failing which to pay interest at the rate of 9% p. a from the date of filing of the complaint till realization. Apart from this , the opposite parties are also directed to pay Rs.5,000/- as cost of litigation.

11 Copy of this order be supplied to the parties free of cost as per Rules.



12. File, after due completion be consigned to the Record Room.

Announced

7-3-2009

(Sushil Kukreja ) President