Kulanand Swaroop Brahamchari Vs. M/S Tata Motors Ltd. and Others - Court Judgment

B.C. Kandpal, President:

1. This is complainants appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 15.02.2010 passed by the District Forum, Dehradun in consumer complaint No. 156 of 2007. By the order impugned, the District Forum has partly allowed the consumer complaint and directed the opposite parties to pay a sum of Rs. 2,83,777/- to the complainant. Not satisfied with the relief awarded by the District Forum, the complainant has filed this appeal for enhancement.

2. In brief the facts of the case are that in February – March 2006, the complainant purchased a truck from the opposite party No. 3 at a cost of Rs. 8,08,468/- which was allotted registration No. UA10-4810. The said truck was insured with The Oriental Insurance Company Limited for the period from 15.02.2007 to 14.02.2008 at an IDV of Rs. 6,70,000/-. The truck was registered as Goods Carriage and Goods Carriage Permit was granted in favour of the complainant by the Transport Department, Uttarakhand. The truck was financed by the opposite party No. 1 – M/s Tata Motors Ltd. Complainant deposited sum of Rs. 81,000/- with the opposite party No. 3 towards margin money and also deposited sum of Rs. 7,000/- in cash and sum of Rs. 7,20,000/- was financed by the opposite parties. The complainant was regularly paying the loan installments. On 22.06.2007, the opposite party No. 2, on the directions of the opposite party No. 3, illegally and forcibly got the repossession letter of the vehicle signed. The complainant got the notice issued to the opposite parties. The complainant has alleged that the opposite parties have illegally repossessed the vehicle which is causing loss @Rs. 2,000/- per day to the complainant. The complainant has deposited total sum of Rs. 4,33,716/- upto 24.03.2007. The complainant thereafter filed a consumer complaint before the District Forum, Dehradun and prayed that the vehicle be handed over to him and the margin money deposited by him be adjusted and also sought certain other reliefs.

3. The opposite party No. 1 filed written statement before the District Forum and pleaded that the complainant did not pay the loan installments in time and has committed breach of the contract entered into between the parties. Inspite of granting loan to the complainant, the complainant did not pay sum of Rs. 73,519/-. The complainant through his driver Sh. Daya Ram, handed over the vehicle to the authorised agent, intimation whereof was given to the police and inventory was prepared at the spot. The vehicle was auctioned and the same was purchased by Sh. Kuldeep for sum of Rs. 5,50,000/-.  After adjusting the amount, sum of Rs. 8,915/- is due against the complainant. The opposite party No. 1 in para 16 of its written statement has given the details of the amount paid by the complainant and has worked out the difference amount as Rs. 1,99,939/-. The said detail has also been quoted by the District Forum in the impugned order.

4. The opposite party Nos. 2 and 3 also filed their written statement before the District Forum and pleaded that sum of Rs. 7,20,000/- was financed by the opposite party No. 1.

5. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 15.02.2010 in the above terms. Not satisfied with the order passed by the District Forum and the relief awarded per impugned order, the complainant has preferred this appeal.

6. We have heard learned counsel for the parties and have also perused the record.

7. The opposite party No. 1 has stated that the complainant has paid sum of Rs. 2,33,777/- towards the repayment of loan, whereas the complainant has said that he has paid sum of Rs. 4,33,716/-. The opposite party No. 1 has worked out the difference amount as Rs. 1,99,939/- (Rs. 4,33,716/- minus Rs. 2,33,777/-). The complainant has filed the receipts of the payment made by him and according to the said receipts, the total amount paid by the complainant comes to Rs. 4,41,804/-. In the detail given by the opposite party No. 1 in para 16 of its written statement, the opposite party No. 1 has denied the receipt of amount on 27.07.2006 and 02.09.2006 amounting to Rs. 19,500/- and Rs. 15,000/- respectively and has stated that the said cheques were returned by the bank on account of “insufficient funds”. The complainant has not filed any evidence to show that the said cheques were duly encashed and the amount was credited in the account of the opposite party No. 1. Thus, the said amount is to be deducted from the amount paid by the complainant. Further, the Loan cum Hypothecation cum Guarantee Agreement dated 15.02.2006 is on record (Paper Nos. 23kha/3 to 23kha/9 of the original record. Annexure – 1 to the Loan Agreement says that the loan amount was Rs. 7,20,000/- and security deposit / margin money was Rs. 88,468/-. Thus, the payment made by the complainant before the said date, i.e., 15.02.2006, cannot be termed as repayment of loan amount. The vehicle was insured with The Oriental Insurance Company Limited at an IDV of Rs. 6,70,000/- for the period from 15.02.2007 to 14.02.2008 and the total amount of premium was Rs. 20,262/-.

8. The complainant has filed the receipts w.e.f. 09.02.2006. It is to be noted here that the loan agreement was executed on 15.02.2006 and the vehicle was sold in auction on 30.11.2007. According to the receipts filed by the complainant, he has paid a sum of Rs. 1,31,356/- upto 15.02.2006 (Rs. 50,000/- on 09.02.2006; Rs. 75,000/- on 10.02.2006; Rs. 5,000/- on 10.02.2006 and Rs. 1,356/- on 15.02.2006). The opposite party No. 1 has denied the receipt of the said amount, but since the original receipts are on record and there is nothing on record from the side of the opposite party No. 1 except the bald averment that they have not received the said amount, it cannot be said that the complainant has not paid the said amount. Since the vehicle was sold on 30.11.2007 and hence the last payment of Rs. 2,060/- is also not be considered. Thus, the total payment made by the complainant before the sale of the vehicle in auction comes to Rs. 4,39,747/- (Rs. 4,41,804/- minus Rs. 2,060/-). The amount which is to be deducted from this amount comes to Rs. 1,86,118/- (Rs. 1,31,356/- plus Rs. 34,500/- plus Rs. 20,262/-). This way, the total amount paid by the complainant towards the repayment of loan comes to Rs. 2,53,629/- (Rs. 4,39,747/- minus Rs. 1,86,118/-) and the complainant is entitled to the said amount.

9. There is also nothing on record to show that the complainant was given any notice by the opposite parties before repossessing the vehicle. Even otherwise, after repossessing the vehicle, the complainant was not given a chance to purchase the vehicle in the auction sale. The opposite parties have also not filed any evidence to show that the vehicle was voluntarily handed over by the driver of the complainant to the authorised agent and it was not forcibly ceased by the opposite parties. Thus, it is clear that the opposite parties have made deficiency in service on their part.

10. The District Forum has directed the opposite parties to pay a sum of Rs. 2,33,777/- to the complainant and has also awarded sum of Rs. 50,000/- towards mental agony. The amount of Rs. 2,33,777/- worked out by the District Forum is on the lower side and in view of the discussions made above, the complainant is entitled to sum of Rs. 2,53,629/-, which he has paid towards repayment of loan amount till the date of sale of the vehicle in auction after deducting the margin money; amount of dishonoured cheques and insurance amount. Thus, the complainant is to be held entitled to sum of Rs. 2,53,629/- on this count.

11. There is yet another aspect of the matter and it appears to us that the said aspect has been overlooked by the District Forum. The consumer complaint was filed on 19.10.2007 and on the said date, the District Forum admitted the consumer complaint and fixed 27.11.2007 for objections and also passed an order that in the meanwhile, the opposite parties shall not sell the disputed truck. Thus, there was a stay order in favour of the complainant and the opposite parties were restrained from selling the truck in question. It is not disputed that the truck was sold in an auction on 30.11.2007, i.e., after the date of stay order granted by the District Forum in favour of the complainant. Thus, the opposite parties are also guilty of violating the stay order passed by the District Forum.

12. The District Forum has awarded total sum of Rs. 2,83,777/- to the complainant which includes compensation of Rs. 50,000/- towards mental agony. As stated above, the amount of Rs. 2,33,777/- awarded by the District Forum is to be enhanced to Rs. 2,53,629/-. The complainant has used the truck for a period of about 1 year and 3 months and he is getting refund of the amount paid by him towards the loan installments. The opposite parties are guilty of deficiency in service and also of violating the stay order passed by the District Forum. Thus, keeping in view the totality of the circumstances of the case, we feel that the compensation of Rs. 50,000/- awarded by the District Forum for mental agony suffered by the complainant is just and proper.

13. It would not be out of context to mention here that the District Forum has held the respondents guilty of committing deficiency in service and the respondents have not challenged the decision of the District Forum. The District Forum, hence, has been of the view that either the truck in question be returned to the complainant or the amount paid by the complainant be refunded to him. Since the truck has been sold on 30.11.2007, it cannot be returned to the complainant, hence the District Forum directed the respondents to refund the amount paid by the complainant – appellant towards cost of the truck purchased by him under the Hire Purchase Scheme. Since the respondents had admitted that a sum of Rs. 2,33,777/- was paid by the appellant, the District Forum directed the respondents to pay to him this amount along with Rs. 50,000/- as compensation for mental agony suffered by him. This too, has not been challenged by the respondents. However, the complainant, challenging the impugned order, has prayed in this appeal that the impugned order be modified and relief be granted as prayed in the consumer complaint. The prayer made by the appellant in his consumer complaint is that the respondents be directed to release the truck; to pay the amount @Rs. 2,000/- per day spent by him for transportation of goods for his Ashram in absence of the truck; Rs. 1,00,000/- as compensation for mental and physical agony and Rs. 5,000/- towards litigation expenses. In his appeal, the appellant has also submitted that the District Forum has made a mistake in respect of the sum deposited by him against EMIs. As regards the sum deposited by the appellant, we have checked it as discussed above and found that the appellant had deposited a sum of Rs. 4,39,74/- before the sale of the vehicle and out of this amount, he has paid a sum of Rs. 2,53,629/- towards the repayment of loan. Hence the impugned order is modifiable in this respect. But his prayer for awarding a higher relief, money spent in transportation and cost of litigation is not just. In our view, the District Forum, while awarding the relief, has taken a liberal view towards the appellant and there appears no reason to enhance it. The reason being that he had already used the truck for about one and a half year and even then, the respondents have been directed to pay all the amount the appellant had deposited against EMIs. If we go underneath the financial and accounting principle of the Hire Purchase System, we find that the interest amount of the loan constitute the major part of the initial EMIs. Thus, the appellant is not only getting back the capital amount, but also the interest amount paid by him towards the loan advanced to him and this way, the relief granted by the District Forum is more than adequate. Therefore, we are of the view that except modifying the impugned order in respect of the amount deposited by the appellant, the impugned order does not require any interference in respect of the relief granted by the District Forum. Accordingly, the appeal is fit to be partly allowed and the order impugned is modifiable as stated above.

14. For the reasons aforesaid, appeal is partly allowed. Order impugned dated 15.02.2010 passed by the District Forum is modified and the opposite parties – respondents are directed to pay total sum of Rs. 3,03,629/- to the complainant – appellant. No order as to costs.