STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 28.02.2018
Date of final hearing: 03.05.2023
Date ofpronouncement :07.06.2023
First Appeal No. 256 of 2018
In the matter of :-
- Manager Cholamandlam Investment and Finance Co. Limited, Urban Estate, Jindal Chowk, Hissar.
- Managing Director, Cholamandlam Investment and Finance Co. Limited, Dare House, 1st Floor, 2 N.S.C. Bose Road, Chennai.
-
Versus
Sandeep aged 38 years, son of Sudh Ram R/o VPO Dhani, Biran, Bhiwani, Haryana. …..Respondent
CORAM: Naresh Katyal, Judicial Member
Argued By:- Ms. Ekta Chauhan, counsel for the appellants.
Sh. J.K. Sehrawat, counsel for the respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 55 days in filing of present appeal stand condoned for the reasons mentioned in the application for condonation of delay.
2. Appellants herein have invited challenge to the legality of order dated 23.11.2017 passed by District Consumer Disputes Redressal Forum, Hisar (In short “District Commission”) in complaint No.396 of 2016 vide which the complaint has been allowed.
3. Sandeep-complainant has alleged that he is registered owner of Maruti Swift Desire No.HR-61C/7536. He purchased it, after taking financial assistance of Rs.7,49,000/- in month of February-2016. Loan amount was to be paid in monthly installments. He has been paying installments regularly. On 22.12.2016, at about 3.00p.m.,when SatishS/o Sh.Subh Ram was driving this vehicle and coming from Delhi to Hisar and reached near Hisar bye-pass,then officials of appellants/insurer with their some unknown musclemen came in vehicle i.e.Wagon R; stopped his vehicle, forcibly dragged him out, started beating him with slaps. They snatched key of vehicle (HR-61C/7536) from him, forcibly and unlawfully and ran away from spot with vehicle. Vijay Kumar S/oSh.Rajender Kumar, R/o H.No.1864, Sector 9&11, Hisar has seen the occurrence. Complainant informed the police about the incident. Thereafter, he went to office of insurer at Hisar and asked that he has deposited Rs.15,000/- on 16.11.2016 and already deposited all installments in time with insurer. He requested to respondent No.1 that he is ready to deposit the installment pending, if any, and requested to release the vehicle but respondent No.1 did not pay any heed on his genuine request. Thus, it is alleged that act of respondent to be arbitrary andagainst law and by stanching the vehicle forcibly without his consent, there is gross deficiency in its service.Complaint has been filed with prayer that respondents be directed to return the vehicle after taking outstanding dues from him or return the amount deposited by complainant with them along with margin money with interest @9% p.a. from date of illegal snatching of the vehicle, till its realization. Respondents be also directed to pay Rs.4,00,000/- on account of financial loss, mental torture, agony, harassment and humiliation to him.
4. Upon notice, insurer/OPs have raised contest. In defence, it is pleaded that complaint is not maintainable. It is not a consumer dispute. Matter fall in realm of contract. Forum has no jurisdiction. It is agreed between parties that courts at Chennai shall have exclusive jurisdiction in any matter claims or disputes. There is arbitration clause also. It is pleaded that complainant himself approached OPs for providing financial assistance for purchase of Maruti Swift Dezire in month of March-2016. OPs disbursed financial assistance of Rs.6,28,465/- to complainant for purchase of above vehicle and monthly EMI was Rs.14,866/-. Complainant got executed loan agreement in favour of respondents and as per its terms and conditions; in case of non-adhering to financial discipline by the borrower, respondent company were having due authority to repossess the vehicle. It is pleaded that since the day of releasing loan amount; complainant had no adhered to premium payment schedule and on the date of repossession of financed vehicle by respondent’s company; huge amount was due and outstanding under loan account No. XVFPHSR00001629895. Prior to taking of possession of vehicle; several correspondence were made to complainant to make outstanding payment but he had not made payment. Possession of vehicle was taken in peaceful way. After receipt of possession of vehicle; company had corresponded to complainant vide letter dated 24.12.2016 and required him to make payment of all outstanding dues and further clarified that in eventuality of not making payment of due amount; company will sell the vehicle after assessing its value. Complainant had not step ahead and company with a view to minimize its loss to some extent, after adopting procedure, had sold vehicle for Rs.4,70,000/- to one Rajeev S/o Gaje Singh and purchaser had deposited entire amount with company. It is pleaded that respondent company undertakes to adjust that amount to the loan account of complainant and reserves right to recover balance amount from him. No such incident had happened on 22.12.2016.No amount was deposited by complainant on 16.12.2016. Rather, cheque issued by complainant to company in discharge of installment accrued in the month of November-2016, stands dishonored. It is pleaded that complainant is not entitled to return of said vehicle, as it has already been sold down.
5. Complainant led evidence, oral as well as documentary and closed the same on 29.05.2017. OPs did not lead any evidence. Its evidence was closed by District Consumer Commission’s order dated 06.09.2017.
6. After analyzing the evidence of complainant, learned District Consumer Commission vide order dated 23.11.2017 has allowed the complaint;directed appellants to return the vehicle after taking outstanding dues from complainant. Complainant has also been awarded compensation of Rs.5,000/- for harassment and mental agony and Rs.1,000/- as litigation expenses etc.
7. Feeling aggrieved this appeal has been filed by OPs/insurer.
8. I have heard both parties at length.Record of learned District Consumer Commission too has been perused.
9. Learned counsel for the appellants/insurer has urged that complainant, though was registered owner of vehicle No. HR61C-7536, yet admittedly it was financed by appellants. Registration Certificate Ex.P-1 of this vehicle demonstrates that vehicle was hypothecated with appellant/financer. It is urged that appellants had repossessed the vehicle,only because huge amount was outstanding due against complainant qua his loan account. Further, it is urged that there was specific stand of appellants that vehicle has already been resold at Rs.4,70,000/-, therefore in wake of this fact the learned District Consumer Commission has illegally issued directions in its order dated 23.11.2017 that vehicle be returned to complainant, after taking outstanding dues from him. It is urged that entire action of appellants was strictly as per terms and conditions of loan agreement. Since vehicle was hypothecated with appellants so it is entitled to reclaim its possession, on default by consumer (complainant) in paying installment of loan amount.
10. Per Contra learned counsel for respondent has supported the order dated 23.11.2017 by urging that it is outcome of proper appreciation of facts and evidence and it warrants no interference.
11. Undisputedly, appellants have financed the vehicle. There is no dispute that financial assistance was provided to complainant by appellant for financing vehicle No. HR-61C-7536. Registration Certificate (Ex.P-1) reflects that vehicle stood hypothecated with appellant. Since, evidence led by complainant remained un-impeached, un-rebutted,therefore, it would legally imply that OP/appellant took possession of financedvehicle No. HR-61C-7536, on 22.12.2016. Although, appellant took plea that it had reclaimed possession of vehicle, peacefully and before doing so it apprised complainant through several correspondence, yet, none such correspondence has been placed on record by appellant. This would establish that complainant was caught unaware,totally unmindful, on 22.12.2016 when appellant/financer took forcible possession of HR-61C-7536. Law recognizes a procedure, to be followed by financer for taking any step/measure to reclaim possession of financed vehicle. If loan agreement has contained arbitration clause, (as it is the specific stance of financer in this case), then nothing stopped appellant/financer to obtain interim direction from the court of law, prior to reclaiming its possession overfinanced vehicle. No such like procedure has been adopted by appellant. Seizure of vehicle (reclaiming its possession) only could be done only through legal means which are wanting in this case. Forcible re-possession is not justified,it is foreign to any law, despite that appellant is financer of vehicle and vehicle stood hypothecated with it. Even prior to re-selling of financed vehicle by appellant/financer to any other person; complainant was entitled to have a notice of it, at least. There is no evidence that any such notice was served upon complainant. This being so, this Commission does not notice any illegality in the impugned order dated 23.11.2017 passed by learned District Consumer Commission-Hisar. Order dated 23.11.2017 has been passed after appreciating the facts and evidence in proper legal perspective. It is maintaniend and affirmed. Appellants have been rightly non-suited. Present appeal, being devoid of merits, is hereby dismissed.
12. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it,after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
13. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
14. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
15. File be consigned to record room.
Date of pronouncement: 07thJune, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
