JOGINDER PAL MALHOTRA vs DEEPAK MITTAL, MANAGING DIRECTOR & ORS

The present Revision Petition has been filed against the Order dated 23.10.2012 passed by the Punjab State Consumer Disputes Redressal Commission at Chandigarh (for short, ''the State Commission'') in First Appeal No.1556 of 2010.

The brief facts of the case as per the Petitioner/Complainant are that Sh.Joginder Pal, Malhotra, Respondent/Complainant purchased a Rhino-R-3 DLX, Diesel Car From M/s. Shivalik Automobiles, G.T. Road, Moga?Respondent No/Opposite Party No. 2 in Complaint No. 580 of 2009. There was an exchange offer and as such the Petitioner handed over the old car, price of which was assessed as Rs. 85,000/-. The new car was purchased on 11.10.2007 by getting the remaining amount financed from the Respondent No.1/Opposite Party No.1. The Petitioner used the said car as a Taxi for earning his livelihood by way of self-employment. It was stated that the Petitioner regularly paid the loan instalment. Further, in the month of December, 2008, the Petitioner demanded for the account statement from the Respondent No.1, so that he may clear the loan amount outstanding against him. Respondent No.1 failed to supply the said account statement despite his repeated requests and visits.

In the month of August, 2009, the employee of the Respondent no.1 snatched the vehicle in the area of village Sham Singh Wala under Police Station Mamdot, from the driver Anil Kumar S/o Khiali Ram without any prior notice. It was alleged that the driver also connived with the Respondent No.1 for causing wrongful loss to the Petitioner. The Petitioner informed the Respondent No.1 that he was ready to clear outstanding loan amount but the Respondent No.1 did not return the vehicle to the Petitioner. It was also alleged that the Respondent No.1 misappropriated the valuable articles of the Petitioner, which were lying in the vehicle. Since, the Petitioner was using the said vehicle as taxi for earning his livelihood, as such he suffered not only an huge financial loss but also a lot of mental agony, pain and harassment. Hence, he filed a consumer Complaint pleading deficiency in service and unfair trade practice on the part of the Respondent No.1 and prayed that the Respondent No.1 be directed to pay a sum of Rs.4,00,000/- as compensation and further be directed to settle the amount with the Petitioner and to return back the vehicle in question along with his valuable articles and litigation expenses of Rs.6,000/- may also be awarded in favour of the Petitioner.

Respondent No.1 filed its written statement in which preliminary objection was taken as to the maintainability of the Complaint because the vehicle was used by the Petitioner for commercial purpose. It was stated that a loan of Rs.5,93,655/- was sanctioned in favour of the Petitioner by the Respondent No.1 but the Petitioner failed to repay the monthly loan instalments. After May, 2008, the payment of the Petitioner was in bits and pieces. It was submitted that an amount of Rs.1,69,700/ was still due against the Petitioner. Further, when the Petitioner demanded the account statement in respect of the loan account, the same was provided to him but he never visited the Respondent No.1 for settlement of his loan account and he also failed to repay monthly instalments of his loan amount regularly. Letters dated 10.09.2008 and 29.11.2008 were sent to the Petitioner and one Santosh and one Prem Chand, Guarantor of the loan agreement regarding the default in payment.

Respondent No.1 further stated that cheque given by the Petitioner for repayment of instalments was also dishonoured on 27.06.2009 and again letter dated 14.09.2009 was issued to him in this respect. Ultimately, the Respondent No.1 filed a Complaint under Section 138 of the Negotiable Instrument Act at Hoshiarpur. It was denied that in the second week of July, the employees of the Respondent No.1 have wrongly and illegally withheld the vehicle of the Petitioner. It was also denied that the Respondent No.1 had connived with Anil Kumar to cause wrongful loss to the Petitioner. It was further denied that the Petitioner was ready to make the

payment of outstanding dues on receipt of the statement of account and further denied that the valuable articles of the Petitioner were in the vehicle and were in the custody of the Respondent No.1. It was submitted that the Petitioner himself, handed over the vehicle to the Respondent No.1 as he had failed to repay the monthly instalments of his loan account and also as his cheques were dishonoured. The Petitioner himself assured the Respondent No.1 at the time of handing over the vehicle that he would clear his balance amount in a short time and would get his vehicle back but he did not clear his outstanding balance. The loss of Rs.1,000/- per day to the Petitioner for not using the vehicle as taxi was also denied.

M/s. Shivalike Auotmobiles?Respondent No.2/Opposite Party No.2 and Anil Kumar?Respondent No.3/Opposite Party No. 3 filed their separate written statements denying all the allegations levelled against them by the Petitioners.

The District Consumer Disputes Redressal Forum, Ferozepur (for short, ''District Forum'') vide its order dated 29.07.2010, while allowing the Complaint, held as under; " The complainant, who has personally come present before the Forum, has submitted that now the condition of the vehicle has deteriorated and the same is not in a road worthy condition and as such the same is of little use to the complainant. He submitted that even the valuable parts and articles have been misappropriated by the employees of opposite party No.1. He has further submitted that even opposite party No.1 used to ply the vehicle on the road. Opposite Party No.1 was also challenged by the Transport Authority for plying the vehicle without documents. He has also relied upon a copy of letter issued by the Transport Officer, Muktsar, which has been placed on the file as Ex.C-22. In our view, in such a situation, it will not be in the interest of justice to order for the return of the vehicle, the value of which has been reduced by opposite party No.1 after taking possession of the same. The vehicle was purchased by the complainant for a sum of Rs. 6,75,000/ on 11.07.2007 from opposite party No.2. The vehicle was snatched by the employees of the opposite party No.1 from the complainant on 1.4.08.2008 i.e. after about two years. The approximate value of the vehicle by that date would have been reduced to 60%, which comes out to be Rs.4,05,000/-. As per written reply of opposite party No.1, a sum of Rs.1,69,700/- is still balance against the complainant, which includes penalty, penal interest etc. However, if we treat this amount to be due against the complainant, the same can be deducted from the present value of the vehicle. After deducing a sum of Rs.1,69,700/- from the present value of the vehicle i.e. Rs.4,05,000/-, a sum of Rs.2,35,300/- comes out to be balance amount, which is required to be paid by opposite party No.1 to the complainant. Besides that Opposite Party No.1 is also liable to pay compensation for financial loss as well as for mental agony, pain and harassment suffered by the complainant. As per the authority of the Hon''ble Delhi State Commission styled as Magma Leasing Limited Versus Bharat Singh", 2007 (1) CLT (Supra), a sum of Rs.50,000/- is reasonable compensation, which is to be awarded in such cases. Hence we allow the present complaint and direct opposite party No.1 to pay to the complainant a sum of Rs.2,35,000/- as remaining amount, which has been assessed as above, along with interest at the rate of 7% per annum from the date of forcible repossession of the vehicle i.e. 14.08.2009 till realization. Further opposite party

No.1 is directed to pay a sum of Rs.50,000/- as consolidated compensation to the complainant. Orders be complied within a period of thirty days from the date of receipt of a copy of this order ."

Aggrieved by the order of the District Forum, Respondent No.1/ Opposite Party No.1?Deepak Mittal filed a First Appeal No. 1631 of 2010, while the Petitioner/Complainant?Joginder Pal Malhotra filed a First Appeal No.1556 of 2010 before the State Commission. The State Commission vide its order dated 23.10.2012 partly accepted the First Appeal No.1631 of 2010 filed by the Respondent No.1/Opposite Party No.1 and dismissed the First Appeal No.1556 of 2010 filed by the Petitioner/Complainant. In their order, the State Commission, observed as under; " 14. The admitted facts of the case are that the respondent bought a car from M/s Shivalik Automobiles, G.T. Road, Sham Singh Wala, Moga on 11.10.2007 after getting the same financed from the appellant. The respondent has contended that he was using the vehicle as taxi for earning his livelihood. Therefore, he was a consumer as per definition of consumer under Section 2 (1) (d) of the Consumer Protection Act , 1986. The present complaint is against the appellant for deficiency in service and unfair trade practice in the "financial services" availed by the respondent. These First Appeal No. 1631 of 2010 Page 7 of 11services, in itself, do not fall within the commercial use. We find merit in the contentions of the respondent. Even though the appellant has been contesting this issue but the respondent has categorically stated that he had used this taxi for earning his livelihood only. Thus, the respondent is covered under the definition of the consumer under the Consumer Protection Act , 1986. Moreover, the respondent availed the services of appellant for financial service which, in itself, is not for commercial purpose.

The appellant has further contended that the vehicle was voluntarily surrendered by the respondent whereas the respondent has categorically alleged that the same was forcibly snatched by the appellant from the driver of the respondent on 14.8.2009. It was also contended by the appellant that there was a specific clause to this effect that the appellant was entitled to even forcible repossession of the vehicle in case of default of payment by the loanee. The loan agreement has been placed on record as Ex. R-3, perusal of which shows that only the respondent had signed the agreement whereas no one has signed the same on behalf of the appellant. As per the DDR registered by respondent, the vehicle was forcibly snatched by the appellant from the driver Anil Kumar. The driver of the vehicle had nothing to with the loan outstanding against vehicle and he can not surrender the vehicle. The law has already been settled by the Hon''ble Supreme Court that forcible repossession of the vehicle cannot be allowed in any case and, therefore, any clause against the settled law is not sustainable in the eyes of law.

Now, the main issue for consideration before us is what amount was outstanding against the respondent at the time of repossession of the vehicle and what amount was to be paid for final settlement of loan account as pleaded by the respondent. Even though the respondent has alleged that he had been making the payment of the installments regularly but he has not spelled out what amount which was actually paid by him during the period before the vehicle was snatched away by the appellant. The respondent has also not mentioned the rate of interest agreed to be paid and the

number of installments to be paid against the sanctioned loan. The appellant has alleged that the respondent had failed to repay the monthly installments and after May, 2008, the payment of the respondent was in bits and pieces. The respondent has proved on record the receipts of payment of amount from 31.12.2008 to 4.5.2009 as Ex. C-10 to C-13. He has also himself placed on record the foreclosure statement supplied by the appellant to the respondent on 14.9.2009 as Ex. C-16. In this statement the payment made by the respondent (Ex. C-10 to C-13) has been duly accounted for in the foreclosure statement (Ex. R-6). The learned District Forum has committed the error in working out the outstanding amount against the respondent by relying on the admitted fact of the appellant in his written statement that amount of Rs.1,69,700/- was still due against the respondent. This amount is factually incorrect in the face of the account statement submitted by the respondent himself. Even though the respondent has been stating that he had been regularly making the payment of the installments yet he has not challenged or disputed the account statement. Admittedly the loan of Rs.5,93,655/- was obtained by the respondent which was disbursed to the Shivalik Automobiles. This was only a principal amount and the interest First Appeal No. 1631 of 2010 Page 9 of 11agreed and the penalties for the late payment of the installments are to be recovered in addition to the principal amount. Since the fact regarding the irregular payment of the installments and dishonouring of the four numbers of cheques submitted by the respondent has not been disputed by the respondent, it can easily be concluded that the respondent was defaulter in making the payment. The respondent has himself placed on record the legal notice dated 23.7.2009 (Ex. C-9) under Section 138 of the Negotiable Instrument Act issued by A.K.Gupta, counsel on behalf of the appellant, in which it has been pointed out that the four numbers of cheques bearing No. 488170 dated 10.2.2009, No. 488172 dated 10.4.2009, No. 488173 dated 10.5.2009 and No. 488174 dated 10.6.2009 each amounting to Rs. 14,285/- were dishonoured. This fact has also not been rebutted by the respondent. Moreover, the appellant has stated that he has filed the complaint under Section 138 of the Negotiable Instrument Act, which is pending in the court of JMIC, Hoshiarpur. The appellant has stated in his appeal that only Rs. 2,07,885/- was received from the respondent upto August, 2009 and amount of Rs. 1,69,700/- was remaining upto 17.8.2009 and all the installments, payable after 17.8.2009, were also not paid. On the request of the respondent the appellant has prepared the foreclosure statement incorporating all the payment received from the respondent against the loan amount and in this statement an amount or Rs. 5,76,065.81/- was outstanding, meaning thereby that if all the loan amount was to be cleared by the respondent, as regurgitated by respondent, then he had to make another payment of Rs. 5,76,065/-. A notice dated 14.9.2009 (Ex. C-16) issued to the respondent clearly mentions this amount. Since the respondent has himself placed on record the statement of account, it is proved that the same was duly supplied to the respondent and the respondent was aware of the outstanding amount to clear the dues. Thus First Appeal No. 1631 of 2010 Page 10 of 11the amount outstanding against the respondent for the final settlement was Rs. 5,76,065/- and not Rs. 1,69,700/- as held by the learned District Forum. The amount of Rs. 1,69,700/- was outstanding against EMIs payable upto 17.8.2009 and not full amount payable to clear the complete loan amount by making the payment in lump sum. Thus the learned District Forum has factually erred in relying upon the figure of Rs.1,69,700/- as total outstanding amount which has been taken as the outstanding amount for final settlement of the loan account.

In the prayer clause of the complaint, the respondent had prayed that the vehicle be restored to him and loan account be settled but during the pendency of the appeal he backed out of this prayer and had contended that since the vehicle was not in good condition and was not road worthy, therefore, he was not willing to accept the same. In any case, loan account has to be settled by the respondent but he has not come forward to fulfill his offer made in his complaint.

The learned District Forum assessed the depreciated value of the vehicle as Rs.4,05,000/- whereas the outstanding loan amount is much more than even the assessed depreciated value of the vehicle. In fact, the respondent needs to make additional payment of Rs.1,71,065/- to settle the loan account in addition to the depreciated value of the vehicle repossessed by the appellant. In case, the respondent wants to take back the vehicle, then he shall pay Rs.5,76,065/- in all to the appellant and the appellant shall hand over the vehicle in question in road worthy condition to the respondent on receipt of the said payment.

In case, the respondent does not want to take back the vehicle as stated by him at the time of arguments on the ground that the vehicle is not in good condition, then the respondent shall pay Rs. 1,71,065/- to the First Appeal No. 1631 of 2010 Page 11 of 11appellant minus the compensation awarded by the District Forum i.e. Rs.50,000/- within 45 days from today.

In view of the above discussion and findings, the appeal filed by the appellant is partly accepted and is disposed of in the terms stated above.

The appellant has deposited an amount of Rs. 25,000/- with this Commission at the time of filing of the appeal on 14.9.2010. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum ."

Aggrieved, by the order of the State Commission, the Petitioner/ Complainant has filed this Revision Petition.

We have heard the Petitioner in person as also gone through the written arguments very carefully.

The main contention of the Petitioner is that if the vehicle depreciated, it was only during the period, when it was lying in the possession of the Respondent No.1/Opposite Party No.1 because it might have been misused by the Respondent No.1. The Petitioner also contended that the vehicle is not in good position and he is no more interested in taking possession of the same. He further contended that the State Commission has failed to give any relief for the huge financial loss suffered by him.

It is apparent from the arguments of the Petitioner that he is no more interested in the return of his vehicle. The only contention of the Petitioner/Complainant is that the State Commission has failed to appreciate that the vehicle had depreciated because it might have been misused by the Respondent No.1, when it was lying in their possession and the Petitioner prayed that he may be compensated on account of his financial loss in earning his livelihood by plying the vehicle as a taxi.

I have carefully gone through the Orders of the District Forum as well as State Commission. The State Commission in their detailed order have correctly analysed the facts of the present case and given two alternate to the Petitioner/ Complainant, which reads as under; " 19 ......in case the Respondent wants to back the vehicle, then he shall pay Rs.5,76,065 in all to the appellant and the appellant shall hand over the vehicle in question in road worthy condition to the respondent on receipt of the said payment. 20. In case the respondent does not want to take back the vehicle as stated by him at the time of arguments on the ground that the vehicle is not in condition, then the respondent shall pay Rs.1,71,065 to the appellant minus the compensation awarded by the District Forum i.e. 50,000/- within 45 days from today ."

It is an admitted fact that the Petitioner took a loan and defaulted in his instalments. His vehicle was hence taken possession by Respondent No.1. He was earlier willing to pay the amount due and claim his vehicle back. Now he has changed his mind. The fact remains that he has to pay his dues to Respondent No.1 either way whether he wants to take his vehicle or not. The State Commission has given him both the alternative.

Thus, in view of the above discussion, I find that no jurisdictional or legal error has been shown in the impugned order to call for interference in the exercise of powers under Section 21(b) of the Consumer Protection Act, 1986. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity by which it dismissed the First Appeal No.1556 of 2010 filed by the Petitioner/Complainant and partly accepted First Appeal No.1631 of 2010 filed by the Respondent No.1-Deepak Mittal. The present Revision Petition being devoid of any merits is hereby dismissed.

No order as to cost.