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2009(4) CPR 49
ANDHRA PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HYDERABAD
D. Appa Rao, President and G. Bhoopathy Reddy, Member
K. Habbibunnisa –Appellant
versus
Shriram Transport Finance
Company Ltd. –Respondent
Appeal No.1008 of 2007
Decided on 14-7-2008
Counsel for the Parties:
For the Appellant: P.I.P.
For the Respondent:Mr. K. Maheswara Rao, Advocate.
IMPORTANT POINT
Where the vehicle is forcefully seized and sold by the money lender/financier/banker it would be just and proper to award reasonable compensation to the complainant.
Headnote:Consumer Protection Act, 1986—Sections 12 and 17—Deficiency in service—Vehicle under Hire Purchase Agreement, financed by respondent Company seized by company on default of payment of instalments—Vehicle finally sold by company—Complaint claiming compensation—District Forum dismissed complaint holding that since complainant had defaulted, respondent was entitled to seize the vehicle—Appeal—Complainant had borrowed Rs. 2,70,000/- under Hire Purchase Agreement and amount was repayable with interest at 17.5% per annum in 36 monthly instalments—Complainant paid 11 instalments and with next two defaults vehicle was seized—No notice was issued before taking possession of vehicle—Hire Purchase Agreement not produced to show if company was entitled to re-possession vehicle in default in payment of instalments—Where vehicle was forcefully seized and sold by financier, it would be just and proper to award reasonable compensation—Complainant-appellant held entitled to compensation of Rs. 2,57,870 with interest at 9% per annum. (Paras 12, 13 and 19 to 22)
D. Appa Rao, President—The unsuccessful complainant is the appellant.
2. The case of the complainant in brief is that she borrowed Rs. 2,60,000 to purchase a vehicle No. A.P. 09 V 5570 under Hire Purchase Agreement dated 31.10.2001 with the respondent. The respondent had seized the vehicle without orders of any Court on 6.7.2003. She committed default in repayment of amount. She requested the respondent to release the vehicle. The respondent was not the owner nor entitled to seize the vehicle. She also filed W.P. No.17495/2004 before the High Court of A.P. questioning legality of the seizure. Despite her requests the respondent did not release the vehicle which amounts to deficiency in service. She had sustained a loss of Rs. 30,000 per month. Therefore, she prayed for an amount of Rs. 5,40,000 with interest @ 24% p.a., and further compensation of Rs. 1,00,000 towards mental agony and costs.
3. Respondent resisted the case. It alleged that it is a non-Banking Financial Company. The complainant is a hirer and executed the agreement. The hirer is not a consumer as defined in the Consumer Protection Act. The defaulted hirer has no right to claim any vehicle, in any Forum, unless and until the agreement is in force. The ownership under this agreement is vested in it (opposite party) but not with the complainant. If any dispute arises between the parties with regard to the terms of the agreement, it shall be settled, according to Arbitration Act. The complainant paid only 11 instalments in full, and part of 12th instalment as on 26.5.2003, and committed default of further hire instalments. The opposite party made several demands to pay arrears by issuing notices dated 6.6.2002, 6.3.2003, 6.6.2003 and 27.6.2003. After receipt of notices, she gave an undertaking on 15.4.2003 admitting the liability. After lapse of time, it took possession of the vehicle on 8.7.2003 at Hyderabad, and the same was intimated on 10.7.2003. The complainant filed Writ Petition No.17495 of 2005 before the High Court of A.P. questioning the legality in seizing the vehicle, and the same was dismissed on several grounds. The complainant came forward with same defence attracting the doctrine of res judicata. The complainant also issued a legal notice dated 22.11.2003 to RTO, Nellore not to transfer the vehicle, and copy of the same was forwarded to the Superintendent of Police, Nellore. The RTO, Nellore issued fresh R.C. after issuing notices to both of them on 13.9.2004. The complainant approached several authorities, and submitted her grievance. Therefore it prayed for dismissal of the complaint.
4. The complainant in proof of her case filed affidavit evidence, and filed Exs. A1 to A16, while the respondent did not file either affidavit or any documents. The District Forum dismissed the complaint holding that since the complainant had committed default, the respondent was entitled to seize the vehicle. Holding it would not amount to deficiency in service, dismissed the complaint.
5. Aggrieved by the said decision, the complainant preferred this appeal contending that the District Forum did not appreciate either the facts or law in correct perspective. The District Forum had failed to note that the respondent while taking possession of the vehicle did not follow the procedure established under the law. She was entitled to the amount besides compensation.
6. It is not in dispute that the complainant borrowed Rs. 2,70,000 from the respondent under Hire Purchase Agreement dated 31.10.2001 for purchase of vehicle No. A.P.09 V 5570. The amount is repayable with interest 17.5% per annum, in 36 monthly instalments, commencing from 5.12.2001 to 5.11.2004. It is also not in dispute that the complainant had paid 11 monthly instalments and part of 12th instalment as on 26.5.2003, and committed default in payment of remaining instalments. The respondent thereupon seized the vehicle on 8.7.2003, and sold it away on 16.4.2005 for Rs. 2,25,000. Evidently, the compl
