::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
AT BIDAR::
C.C.No74/2015
Date of filing : 16/10/2015.
Date of disposal : 28/10/2016.
P R E S E N T:- (1) Shri. Jagannath Prasad Udgata,
B.A., LL.B.,
President.
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: Ruben S/o Basappa,
Age Major, Occ: Self employment
R/o H.No.156, Village Hokrana,
Tq: and Dist: Bidar.
(By Smt. P.M. Deshpande., Advocate )
VERSUS
OPPONENT/S :- Shri Ram Transport Finance Co. Ltd.
#8-10-135, Shree Veerbhadresvar Chambers,
Near Nehru Stadium,
Opp: Sai School, Bidar-585401.
(By Sri. S.Willson., Advocate)
:: J UD G M E N T : :
By Shri. Jagannath Prasad Udgata, President.
This is a complainant filed by the borrower of the opponents u/s 12 of the C.P. Act 1986, against the seizure and disposal of a motor vehicle for which the complainant had availed a loan from the opponent, a N.B.F.C. The narrations of the complaint are as follows:-
2. That, the complainant, a native of village Hokarna Tq: and Dist: Bidar for self employment purpose had availed a loan from the opponent to the tune of Rs.4,00,000/- to purchase a motor vehicle model Eicher 1080 FBT 2007 (LG) bearing registration No. KL 02/AA-1446, repayable vide E.M.I. of Rs.14600/-P.M. The complainant claims, he was paying the E.M.I. regularly, excepting one or two events due to extraneous reasons such as financial difficulties, maintenance of vehicle and lack of works etc. The complainant further avers that, while the vehicle was being plied by his licenced paid driver by name Allaudin, near Mannali during August 2013, the keys of the vehicle was taken away from the driver and after possession unlawfully, without drawing any panchanama, the same was taken away to an unknown place by the henchmen of the opponent. (The complainant is not specific about the date of unlawful possession).
3. As a corollary, the complainant further avers that, he received a notice date: 29.01.2015, from the opponents in which the contents were of suspicious in nature and unclear. The date of seizure of the vehicle was not mentioned, so also the date of notice, account statements, agreement copies etc. The complainant further avers that, the opponents notice reveals about the selling of the vehicle against a price of Rs.2,80,000/- in public auction. The complainant narrates about his hospitalisation due to ailment, which is not relevant to the case owing to the contract entered into by the parties concerned. The complainant further claims that, the seizure of vehicle and its sale in public auction is in appropriate, where by the opponent is liable to pay compensation, EMIS paid and payment of Rs.4,50,000/- with 12% interest together with cost and damages @ Rs.25,000/-.
4. On court notice, the opponent entering into defence, has disputed the regular payment of E.M.I.s and further that, the complainant was using the vehicle for commercial purpose by engaging the services of one Mr. Alludin a paid driver. The allegation of illegal seizure is refuted. The opponent stands by its notice date: 29.01.2015, which was demand for recovery of outstanding amount of loan repayment and further avers that, the complainant was at liberty to challenge the auction, which has not been done. The opponent disputes the hospitalisation claim, so also the claim of further expenditure of Rs.6,00,000/- towards body building. The opponent claims to have disposed off the seized vehicle in public auction which was in order and the same cannot be captioned as unfair trade practice. The opponent further avers that, the claim of Rs.4,50,000/- by the complainant is untenable, he is not a consumer under the definition of the C.P. Act, 1986, is a borrower perse, having no locus standi to maintain the present case, employing the vehicle under hypothecation for commercial use. The opponent seeks the dismissal of the complaint as not due.
5. Both sides have filed their respective evidence affidavits and written arguments, justifying their respective stands, and documents as listed at the end of this order.
6. Taking into consideration the rival contentions of the parties, it is into us to determine the points of considerations as follows:
a. Is the complainant a consumer vis-a-vis the opponent and
whether he is compltent to maintain this complaint?
b. Whether as to, the complainant was paying the E.M.I.S.
for the borrowed amount as per the contract entered
into?
c. whether as to, the seizure and removal of the vehicle was
in order according to the tenents of law?
d. Whether as to, the opponent was justified to charge
interest @ 3% P.M. as per schedule III appended to
Ex-R-2 to be computed with monthly rests on the
outstanding balance?
e. What order?
7. Our answers to the points narrated above are as follows:-
- In the affirmative,
- In the negative.
- In the negative.
- In the negative.
- As per the final orders, owing to the following:
:: REASONS ::
8. The Point No.(a) framed by as carries much importance and touches the very root of the case. The opponent has canvassed that, since as per the admission of the complainant, the vehicle was seized white being driven by driver, Allauddin, it proves that, the vehicle was being plied for commercial purpose and hence the relationship of the parties are that, of borrower and lender simplicitor. The statusquo of consumer vis-a-vis the opponent is thereby challenged. The opponent has quoted a judgement of the Hon’ble State Commission in complaint No.85/1993 Smt. Revathi Kalyankumar u/s K.S.F.C. reported in 1995(3) C.P.R. page-93. The issues of that case was on a different footing and does not apply to the instant canvassment. Truly, the complainant had narrated the fact of the seizure of the vehicle from driver Allauddin. It cannot be infered that, any particular person would be able to remain on the wheels 24/7 and when need arises, that too when the complainant was claimed to be hospitalised, it is not unusual to engage a stand by Driver to run the vehicle. Availment of such a casual service doesn’t take away the status of consumer from the complainant when he pleads to have purchased the vehicle for day to day in come and living. Hence we answer the point (a) in affirmative.
9. It is in the admission of the complainant that, he has defaulted in one or two occasions. In his own reply notice date:16.02.2015 (Ex.P2) it is further admitted that, default payment was amounting to Rs.90,220/- as on 20.01.2014. It may be true that, the complainant was hospitalised and could not pay the E.M.I.S regularly, nothing was preventing him to inform such incident to the opponent. So we hold point No.(b) in negative, observing that, he has been defaulter vis-a-vis the contract.
10. Coming to consider the fact of seizure of the vehicle, even the complainant is not very specific about the date of seizure. From Ex.P5. it appears that, the vehicle was seized on 18.11.2014. There appears to be truth in the averments of the complainant that, no proper procedure was followed, no panchanama was drawn, no law enforcing agency was ever called for to witness the seizure. We would hate to endorse such kind of high handed action in the part of the opponents by application of brute force. Hence, we answer point (c) in negative.
11. We see from schedule III of EX.R-2 that, the opponent is charging 15.24998% P.A. as regular interest and additional interest @ 3% P.M. payable by way of liquidated damages. We decry such levy of exorbitant rate of interest (liquidated damages).
12. However, the fact remains, there was a contract between the borrower (complainant) and lender (opponent) to avail loan and pay back the same in 48 E.M.I.s with interest. The complainant committing default of payment to the tune of Rs.90,220/-, the opponent had seized the vehicle, albeit high handedly and later sold the same in public auction and apportioned the amount to the borrowings. If at all the complainant chooses to challenge the seizure or auction procedure at this juncture, he has to approach a regular civil court or an Arbitrator if the clause exists in the agreement and not this forum.
Therefore, we pass the following:-
ORDER
The complaint is dismissed as not maintainable.
There would be no order as to costs or otherwise.
( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 28th day of October-2016 )
Sd/- Sd/-
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Ex.P.1- Legal notice to complainant date: 29.01.2015.
- Ex.P.2- Reply notice of complainant date: 16.02.2015.
- Ex.P.3- another legal notice to complainant date: 12.06.2015.
- Ex.P.4- final reminder notice of opponent to complainant
date: 06.01.2014.
- Ex.P.5- Before sale notice date: 27.12.2014.
Documents produced by the Opponent/s
- Ex.R1- Copy of instrument of power of attorney.
- Ex.R2- Loan cum hypothecation agreement.
Sd/- Sd/-
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Sb..
