Date of Filing:17.06.2022

Date of Disposal:25.05.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,PRESIDENT

1. The complainants files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 with a direction to OP to return the car by collecting the amount due, to direct to provide documents for having sold the care worth of Rs.5,40,000/- and to direct to pay Rs.6,00,000/- for harassment and mental agonyand such other reliefs.

2.  The following are the complaint's key facts:

This is the case of the complainant that the complainant by borrowing  a sum of Rs.5,45,000/-from OP1 & 2 purchased a care Hyundai i20 Asta  bearing no.KA-01 ML 6029 on 07.01.2019  and agreed to pay a monthly instalment of Rs.17,285/- for a loan tenure of 42 months. The complainant paying monthly EMI’s regularly either cash or ECS and he missed 02 EMI’s for the month of 07.10.2021 and 07.11.2021. The complainant submits that on 07.12.2021 some unknown person of OP bank have forcibly took the car of complainant in the middle of the road at Bengaluru. When later it came to the knowledge of the complainant that for default of the payment of EMI’s the OP have seized the car of complainant. Upon which the complainant lodged police complaint to the concerned police. Subsequently, when that effort did not yield any proof. The complainant approached the OP and requested to hand over the car and also agreed to pay the balance loan amount. Despite of all efforts when the OP dodged the matter by assigning one or the other reason, finally the complaint came to know that when the said car was hold to some other third party. Upon which the complainant raised objection that the OP has not followed the procedure in order to seize the vehicle and also to sell the vehicle, no prior intimation or notice is serviced to the complainant before selling the said car to the third party. On these unlawful acts of the OP amounts to deficiency in service on their part and it is also noted that act of the OP attracts unfair trade practice, wherein they have not followed the procedure laid down for the recovery of due loan amount. By alleging the same the complainant has preferred the complaint and sought for the relief as prays in the complaint.

3. Notice to OP-duly served, remained absent and have been placed ex-parte. Subsequently, OP-2 represented by counsel has filed an IA to set-aside ex-parte order and also filed IA seeking permission to file the version statement after lapse of statutory period of 45 days. The Commission in its order has set-aside the ex-parte order of OP-2 by allowing IA and another IA which is filed by OP-2 came to be rejected as the statutory period of 45 days to file the version statement has expired as per the direction of Hon’ble Supreme Court of India. The commission observed the version of OP-2 is taken as not filed. Hence, no defence.

4. The complainant filed chief-examination affidavit along with relevant in support of his contention.

5. Heard arguments. The matter is reserved for order.

6. The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency in service on the part of the OP as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

7. The findings on the above points are as under:

Point No.1                :       Partly in Affirmative

Point No.2                :       As per final order

REASONS

8. POINT NO.1:-On perusal of complaint averments and by taking note of the complainant transaction and the event which took place between complainant and the OP pertaining to transaction of the car for a sum of Rs.5,40,000/- in order to purchase Hyundai i20 Asta  car bearing no.KA-01 ML 6029 on 07.01.2019 agreed to pay a monthly instalment of Rs.17,285/- for a loan tenure of 42 months.

9. Further, as per complaint averments at para-2 of the complaint, the complainant admitted that he has defaulter of 02 EMI’s for the month of 07.10.2021 and 07.11.2021 and thereafter the complainant contended that on 07.12.2021 some unknown person of OP bank have forcibly took the car of the complainant in the middle of the road at Bengaluru. When later it came to the knowledge of the complainant that for default of the payment of EMI’s the OP have seized the car of complainant. Upon which the complainant lodged police complaint to the concerned police. Subsequently, when that effort did not yield any fruit. The complainant approached the OP and requested to hand over the car and also agreed to pay the balance loan amount. Despite of all efforts when the OP dodged the matter by assigning one or the other reason, finally the complaint came to know that when the said car was sold to some other third party. Upon which the complainant raises objection that the OP has not followed the procedure in order to seize the vehicle and also to sell the vehicle, no prior intimation or notice is serviced to the complainant before selling the said car to the third party. As these unlawful acts of the OP amount to deficiency in service on their part and it is also noted that the act of the OP attracts unfair trade practice, wherein they have not followed the procedure laid down for the recovery of due loan amount. By alleging the same the complainant has preferred the complaint and sought for the relief as pray in the complaint.

10. The complainant filed chief examination affidavit along with relevant documents in support of their case. The affidavit contents are reproduce ofof complaint averments.

11. On perusal of the complaint averments and the facts of the complaint, it is observed that admittedly the complainant is defaulter of 02 EMI’s as per his own complaint averments. Wherein the event took between the both parties clearly depicts that the seizer of the car by OP company from the complainant possession is not in accordance with the procedural aspect, which is laid down by law and it is also observed that prior to selling the said car which was  seized by the OP, the OP company should have intimate the complainant regarding sale of the said car to the 3^rd party. Neither they have issued the demand letter of balance loan amount nor have they issued sale intimation which is prior to the sale of said car to the complainant. On this technical and legal latches clearly attracts the deficient service on the part of the OP bank. The OP bank have miserably fail to follow the procedure in order to recover the balance loan amount in respect of the said car loan. Whatever the measures and actions which is initiated by the OP bank is against the principles of law and several judgments of Hon’ble Supreme Court of India have laid down while recovering due loan amount against hypothecated vehicle loan, what are  all measures that have to be followed by the bank is laid down as ratio in several judgments of Hon’ble Supreme Court of India. The complainant in support of the case have relied on judgment of Hon’ble Supreme court of India reported in (2022)4 RCR (Civil) 770 SC between Mahindra and Mahindra Financial Services Ltd. V/o Nizamuddin, Illegal sold of hypothecated vehicle-compensation hypothecated vehicle was detained/seized and thereafter, sold which was found to be illegal, the complainant shall be entitled to the compensation/loss suffered because of not plying of the vehicle seized and sold illegallyand also judgment of Madyapradesh State Consumer Disputes Redressal commission reported in (2007)4CPJ 184 between Sankatha Prasad V/s Mahindra and Mahindra Finance Co., (Rewa)(MP) & others, Consumer Protection Act, 1986-Section(1)(g)-Deficiency in service-Hire purchase agreement-Vehicle financed-Installments defaulted-Seizure of vehicle by financier without information borrower would amount to deficiency in service. The rulings which is laid down by the complainant is aptly applicable to the case on hand. The facts and circumstances of the present case relied judgments is one and the same. Hence, the ratio laid down by the Appellate Authority and the Hon’ble Supreme Court of India is made applicable to the complainant on hand.

12. In view of the above discussions, on perusal of the complaint averments and also contentions of the complainant and by following the ratio laid down by the Appellate Authority, the commission is of the opinion that the act and omission of the OP bank attracts deficiency in service and their conduct is not justifiable under law. Hence, the OP is held liable for both deficiency and also for unfair trade practice. The OP-2 even  though represented by the counsel, they have not chosen to file version in support of their defence which shows that they are not interested to  for sue the proceedings before the commission and it shows they are negligent and carless towards allegations of the complainant.  In view of the above discussion, the Point No.1 we answer Partly in Affirmative.

13. POINT NO.2:- In the result, we passed the following:

                             ORDER

1. Complaint is allowed in part.
2. The OP  shall refund the value of the vehicle as on the date of seizer of the car only  after receiving balance loan amount from the complainant (Loan amount due to be paid as on the date of seizer of the car). 
3. The OP shall  pay compensation for alleged deficiency  a  sum of  Rs.25,000/-  and for pain and sufferings and mental agony a sum of Rs.5,000/- and Rs.5,000/- towards cost of litigation will have to be paid within 45 days from the date of order, failing which it shall  carry interest at 6% p.a. for non-compliance of the order.
4. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 25^thMay 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)       

 MEMBER                                  MEMBER

Witness examined on behalf of the complainant by way of affidavit:Sri Boompalle Brahmananda Reddy-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit:Nil

Documents produced by the OP: Nil

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*