Case: M/S MAGMA FINCORP LTD.(FORMERLY MAGMA LEASING LIMITED) Vs. RAJESH KUMAR TIWARI

2. On or about 2 nd August 2002, the Complainant entered into a hire-purchase agreement with the Financier, then known as Magma Leasing Ltd. for hire-purchase of a Mahindra Marshal Economic Jeep bearing the Registration No. UP-42-T/1163, which is hereinafter referred to as the vehicle, the cost whereof was Rs.4,21,121/- of which the complainant made an initial payment of Rs.1,06,121/-. According to the Financier, an amount of Rs.1,04,000/- from out of the initial payment of Rs.1,06,121/- was paid by the complainant to the dealer directly. The balance amount of Rs.3,15,000/- was paid by the Financier.3. The Complainant agreed to repay a sum of Rs.4,38,585/- which was inclusive of finance charges of Rs.83,650/- to the Financier in 35 monthly instalments of Rs.12,531/-, commencing from 1 st August, 2002. The monthly instalments were to be paid till 1 st June, 2005. The Complainant apparently deposited post dated cheques of Rs.12,531/-.4. A part of the recital and some of the relevant terms and conditions of the said hire purchase agreement between the Financier and the Complainant, are set out hereinbelow for convenience:WHEREAS the Hirer has agreed to deposit post dated cheques with the company at its registered office at 24, Park Street, Calcutta-700016 towards security for payment of monthly/quarterly hire charge and undertakes to ensure encashment of the same on the respective due dates.WHEREAS the Hirer has agreed to hold the Hired Article in Trust for the company subject to user right and not to deal with the same in the manner specified in Clause 3(1) hereof until the entire amounts due under this agreement are duly paid to the company on the terms and conditions more particularly set out hereunder.01. HIRED ARTICLE AND TENUREThe company shall provide funds for acquisition of the hired articles set out in the Schedule. I hereto and the hirer shall hold the same in trust for the company from the date of commencement of this agreement regardless of the date of physical delivery of the hired article for the period as stated in Schedule-II hereof subject only to Hirers user rights upon the terms and conditions, herein contained.The Hirer shall not be entitled to make any claim whatsoever on the company in respect of the Hired Article and/or relating to its specification and/or its condition and/or in any other manner whatsoever.The Annexure hereto shall form an integral part of this agreement.02. The Hirer shall duly perform and observe all the terms and condition contained in this agreement and the covenants on his part to be performed and observed and shall in the manner aforesaid, pay to the company, monthly/quarterly sums by way of hire instalments as mentioned in Schedule-II and Schedule-III of this agreement and shall also pay to the company all other sums of money which may become due and payable under this agreement, upon execution thereof regardless of the date of delivery of the Hired Article.03. HIRERS WARRANTIESThe Hirer shall:a) HIRE PAYMENTSPunctually and promptly pay to the company without any demand in respect thereof by the company, at its registered office the stipulated down payments/initial payment/instalments as mentioned in Schedule-III/other charges on the due dates, whether or not it has received delivery of the Hired Article.Maintain and keep the Hired Article in good and serviceable condition at his own cost. The company and/or its Bankers shall have all the rights to inspect and to call for the Hired Article to be produced at any time for any time for any reason whatsoever. The Hirer shall be responsible and liable for damage, if any, caused to the Hired Article and/or to any other third party.Keep the Hired Article at the Hirers said premises and shall permit the company and/or its agent at all times to enter upon any premises at which the Hired Article is kept/parked for the purpose of verification and also repossession the Hired Article under the provisions of clause 15 of this agreement and shall not under any circumstances change the location of the Hired Article, without express approval of the company.Insure and keep comprehensively insured the Hired Article in the name of the company and/or its Banker against loss or damage by fire, accident, flood, earthquake, theft or any other cause and including against third party claims with an insurance company for the full cost of the Hired Article, such insurance policy shall be lodged with the company and/or its bankers duly assigned in their favour promptly and regularly. And loss and/or liability arising to the company for the Hirers omission or neglect to keep the Hired Article so comprehensively insured shall be entirely to the account of the Hire and the Hirer and shall immediately make payment to the company in respect of all such losses suffered and/or liabilities incurred by the company.In the event, the company effects or renews the insurance of the Hired Article, the Hirer will on demand, reimburse to the company such sum or sums as shall have been so spent by the company together with interest at 3% per month calculated from the date of insurance till date of actual payment.The Hirer confirms that he/it will get the benefit of the insurance only if no amount is overdue by him to the company. If the contract of hiring is terminated either by the company or by the Hirer as provided in this agreement, the Hirers interest in the insurance policy and his/its right of claiming anything there under shall IPSO FACTO come to an end. The Hirer further agrees that whenever he/it is not entitled to the benefit of insurance under the clause, the same would go to the company and the company shall be considered to be the insured in his/its place. However, the said insurance shall not absolve the Hirer from his/its liabilities towards the company under this agreement and in no case shall the Hirer be entitled to claim any benefit from the company beyond any amount of claim received from the insurance company.Notwithstanding the fact that the company continues to remain the owner of the Hired Article until payment of the entire dues by the Hirer, the company agrees to permit the Hirer to have the Registration under the Motor Vehicles Act of the Hired Article in his/its own name with endorsement of the companys name as financier, provided that the Hirer shall be deemed to have transferred the registration in the name of the company when the Hirer commits a breach of any of the conditions of this agreement and the company is entitled to retake the possession of the Hired Article. The Hirer has, in order to facilitate taking possession of the vehicles, in the event of the Hirer committing breach of the agreement, executed necessary documents and has authorised the company to use the same as and when the occasion so arises.f) ALIENATION OF HIRED ARTICLEEnsure not to sell, assign, mortgage, pledge, hypothecate or otherwise deal with the Hired Article or any part thereof, to part with possession of the Hired Article without the express written permission of the company previously obtained and not to use the Hired Article for any purpose other than that declared in the application.05. LOSS AND DAMAGEIn the event of the Hired Article, being from any cause whatsoever, wholly lost to the company during the said hiring, the measure of damages as admitted to be payable by the Hirer to the company shall be the aggregate of all arrears amounts. If any, and the total amount of the installment which would have been payable during the residue of the said hire purchase form. For the purpose of this clause, the Hired Article, if damaged and not forthwith repaired and restored to its original condition, shall be deemed to be wholly lost to the company. However, every opportunity and reasonable time shall be given to the hirer to restore the Hired Article to working condition subject to the hirer continuing to pay the hire installments as per the agreement.06. RELEASE OF PROPERTY .If the event sic of the hiring continues for the full period referred to in Schedule-III hereof and the following sums of money been punctually paid:-a. all installments due under this agreement.b. other sums of money due hereunder then in such event the company shall release and relinquish all its rights and interest in the Hired Article. Until such payments, the company shall continue to have all rights and interest created by these presents over the hired Article together with any accession, improvements and additions made thereto by the hirer as clearly provided in clause 3(i) of this agreement and rights of the Hirer shall be subject to the beneficial rights of the company and the Hirer shall be deemed to be holding the Hired Article in trust for the company. The company shall be at liberty to hypothecate the Hired Article in favour of the Bankers until the Hirer shall pay the entire amount due hereunder.08. USE OF THE HIRED ARTICLE FOR UNLAWFUL PURPOSEThe Hirer undertakes not to use Hired Article either by itself/himself or through its/his servants or agents, for any unlawful purpose prohibited as per the terms and conditions of the insurance policy or do or permit to be done any act or thing which might render the insurance invalid, and in particular, not to use the Hired Articles in any acts liable to contravention of any of the provisions of the Acts of the Central and State Legislatures.09. COLLATERAL SECURITYThe monthly/quarterly payment of hire charges for the Hired Article shall be secured by the delivery to the company of a promissory note to be executed by the Hirer for the value of Rs.438585/- (Rupees Four Lac Thirty Eight Thousand Five Hundred Eighty Five only)12. REVIVAL OF THE AGREEMENTIn the event of the company repossessing the Hired Article under any of the circumstances stated in this agreement, the Hirer may request the company in writing to revive the agreement and apply for restoration of the same to it on payment of all sums which might have been arrived at as due thereon had the agreement not been determined or the Hired Article not repossessed by the company together with damages to be mutually agreed upon between the company and the Hirer, and the expenses which the company has incurred in repossessing the same and/or as a consequence of the agreement being determined and such request may be entertained by the company at its absolute discretion and upon such further or other terms as it thinks fit and proper in the circumstances. The company shall be under no compulsion to accept the request for revival of this agreement as stated supra.In case the Hirer shall during the continuance of this agreement do or suffer one or more of the following:-a) Fail to pay any of the hire installments or the interest or other amounts (for example; insurance premium, expenses incurred for collection of installments, additional taxes, additional, finance charges for late payment of installments etc.) having fallen due hereunder within 7 (seven) days of the amount falling due for payment whether demanded or not;d) pledge or mortgage or hypothecate or sell or attempt to pledge or sell or part with possession of or otherwise alienate or transfer the said Hired Article;f) fail to keep the said Hired Article comprehensively insured as agreed hereinbefore during the period of the agreement.g) fail to pay to the government or any public authority and taxes or charges due in respect of the Hired Article.h) remove the Hired Article to any other State i.e. all such States other than the State in which the Hired Article is registered under Motor Vehicles, Act without prior written permission of the company;i) break or fail to perform or observe any conditions on his/its part herein contained;then on the occurrence of any of the above such events, the rights of the Hirer under this Agreement shall forthwith stand determined IPSO FACTO without any notice to the Hirer and all installments due and remaining unpaid, all future instalments in terms of this agreement and any other charges. Expenses realizable from the Hirer shall become due and payable forthwith by the Hire and the company and/or its bankers and/or its agent shall thereupon be entitled to enter into the premises of the Hirer at such place the vehicle may be lying and remove and take possession of the Hired Article situated in any land or place or house wherever the same may then be without being liable to any proceedings/complaint by the Hirer or any other person claiming through/under him or otherwise, and the company shall have the right to sue the Hirer for all such sums receivable from the Hirer as stated above and also for damages for breach of this agreement without prejudice to the companys right to otherwise obtaining and recovering possession of the Hired Article. This shall also be without prejudice to the right of the company to sell the hired articles after repossession without the intervention of the court as also to proceed against the Hirer for recovering any deficiency after adjustment of the sale proceeds of the hired articles as stated above in respect of the outstanding dues to the company.15.1 In the event of the agreement of hiring being determined as aforesaid before its full term expires, the Hirer shall forthwith deliver to the company the Hired Article along with all certificate and policies of insurance and all other documents relating to the said Hired Article. However, refusal of the Hirer/its men or obstruction or delay in handing over to the company the physical possession of the Hired Article together with all specified relevant documents/certificates under these circumstances shall be deemed to be an unlawful detention and wrongful possession of the property by the Hirer and an offence within the purview of the provisions of the Indian Penal Code.5. It is not in dispute that the Complainant defaulted in payment of instalments. Even though the Complainant was required to pay the first instalment within 1 st August, 2002 and the subsequent instalments within the 1 st of each succeeding month, the Complainant did not adhere to the schedule of repayments, which according to the Financier, was of essence to the hire-purchase agreement. Post dated cheques deposited by the Complainant were, according to the Financier, dishonoured.6. In the circumstances, the Financier took re-possession of the vehicle on 14 th July, 2003, allegedly upon notice to the Complainant, and in accordance with the conditions of the hire-purchase agreement. The factum of notice is, however, disputed by the Complainant.7. After taking re-possession of the vehicle, the Financier called upon the Complainant to clear his outstanding dues amounting to Rs.2,80,132.59 as on the date of the notice, failing which the vehicle would be disposed of.8. A pre sale legal notice dated 26.07.2003 was allegedly sent by the Financier to the Complainant, calling upon him to clear his total outstanding dues of Rs.2,80,132.59 within 7 days from the date of receipt of the notice, which was, according to the Financier, duly served on the Complainant. The Complainant did not make the repayment demanded, or even part thereof. The vehicle was sold by the Financier sometime in November, 2003.9. On or about 15 th July, 2005, that is, exactly two years after the Financier took possession of the vehicle, the Complainant filed the complaint under Section 12 of the Consumer Protection Act, 1986, being Complaint No.105 of 2005 in the District Forum, admitting that he had paid only 7 complete instalments. For the sake of convenience, the relevant paragraphs of the complaint are extracted hereinbelow:Provision-3 That Applicant/Complainant has Submitted 1,04,000 as a margin money And 3,15,000 was Finance from Opposite party. That to be Submitted in 35 Equal monthly instalments.Provision-4 That After Agreement with Opposite party No.2 Applicant has Received Vehicle from Amit Auto Sales On 29.7.2002.Provision-5 That Applicant Started Driving Vehicle After Completing All the Formalities Related to Vehicle Documents and Started Paying InstalmentProvision-6 That Applicant has Paid Complete 7 instalments And in 8 th Month Applicant Has not Completed his two instalments Due to ill health. After Recovering in Next Month When He started Driving Vehicle There was A suit Filed for Accident on Applicant Vehicle Thats why Applicant vehicle was sealed. This Information was Given to Opposite party no.2 Immediately And it was Also said that After Releasing of vehicle he will be able to pay Instalment Smoothly.Provision-7 That After Arranging Somehow applicant was able to release Vehicle And Driver. And After Paying June Instalment When Applicant was about to Started Driving Vehicle Opposite party No.2 has Lifted Vehicle Without giving any prior Notice or Information on Dated 14.07.2003. Whereas Applicant has Paid T otal of 1,19,335 (One Lakh Nineteen Thousand Three Hundred and Thirty Five Rupees) in the form of Installment.Provision-8 When Applicant Has Contacted to the office of Opposite party No.2 in relation to this They Said That your Instalments were Due to which vehicle was Lifted. When Applicant Said that He will Complete all the Due Instalment Soon And in Future he will pay all the Installment Timely. But Opposite party No.2 does not heard it And refused to give vehicle.Provision-9 That the Applicant/Complainant was Surprised with this behaviour of Opposite party No.2 and did correspondence with Administration And Government in relation to this. That Inspection was also conducted But There was no result of all this.Provision-10 That Applicant has done correspondence with Opposite party no.1 and tell the complete situation but Applicant vehicle was not given to Applicant again but it was sold to some other person. Applicant has done very much helter-skelter in relation to this But no result of all these.Provision-11 That the Applicant is been Continuously being upset and shocked by Opposite party no 1 and 2. Beside Assuring that he will pay all the past due Installment soon and will pay all other Installment timely, although vehicle was not Released in the favour of Applicant by Opposite party. That come under the Category of Business Misconception. In Unfair Trade Practice Act. And Due to Deficiency in Service. It is also Come Under Consumer Protection Act And Sustainable before The Honourable Court.Provision-13 That due to Opposite party acts Applicant Has Suffered Irreparable loss and Complete Reimbursement Responsibility is on Opposite party.Provision-15. That Applicant is requesting for following….(a) That Opposite party Shall make Available Applicant vehicle to him immediately/ And it is requested to order that Amount that is paid in the form of instalment should be refunded.(b) That From the Date of Lifting of vehicle till the date of judgment or till the date of Handing over of vehicle. It is Requested to order that 18,000 p.m. to be given as a loss from Opposite party.(c) That due to Acts of Opposite party to fulfil the Social, financial, physical and mental loss It is requested to order Rs.10,00,000 from Opposite party(d) That It is Requested to order Rs.5000/- as suit expenses and Such other Relief Which The Honble court Deems Fit.After the Complainant got the vehicle released from the police and started plying the vehicle, the Financier took repossession of the vehicle. According to the Complainant he paid Rs.1,19,335/- towards instalments. It is not the case of the Complainant in his complaint, that the Financier took forcible possession of the vehicle through so called recovery agents, by threat or by use of muscle power.13. The vehicle was sold in November 2003. Till then, the Complainant did not even clear the instalments outstanding upto July 2003, that is, the outstanding instalments for the period during which the vehicle was in the possession of the Complainant, not to speak of any further instalments.14. By an order dated 22 nd August 2008, the District Forum allowed the Complaint and directed the Financier to pay Rs.2,23,335/- to the Complainant, along with simple interest at 10% per annum from the date of filing of the complaint till payment as also Rs.10,000 towards damages for physical and mental agony and Rs.1000/- as litigation expenses, within 45 days from the date of the order.15. Being aggrieved by the order of the District Forum allowing the complaint, and directing the Financier to pay the Complainant the entire amount paid by the Complainant to the Financier towards instalments and other charges as well as the sum of Rs.1,04,000/- paid by the Complainant directly to the dealer, along with interest at 10% per annum, damages of Rs.10,000/- and litigation costs of Rs.1,000/-, the Financier filed an appeal before the State Commission. The Financier contended that the vehicle had to be sold since the complainant had not paid an outstanding amount of Rs.2,80,132/-.16. By a judgment and order dated 31 st August, 2017, the State Commission dismissed the appeal. The Financier filed a Revisional Application before the National Commission, under Section 21(b) of the Consumer Protection Act, which has been dismissed by the judgment and order under appeal.

Court's reasoning:
27. As observed above, deficiency has been defined in Section 2(1)(g) set out herein above, as any fault, imperfection or shortcoming or inadequacy in the quality, nature or manner of performance which is required to be maintained by or under any law, for the time being in force, or undertaken to be performed by a person, in pursuance of a contract or otherwise, in relation to any service.28. Under the terms and conditions of the hire purchase agreement, the ownership of the vehicle was to stand transferred to the Complainant from the Financier, upon payment of all the 35 instalments and other dues, if any. Until then, the ownership was to be with the Financier. As all the 35 instalments had not been paid by the complainant to the Financier, the ownership of the vehicle remained with the Financier.29. The hire purchase agreement, a copy of which is annexed to the Paper Book, clearly enabled the Financier to take possession of the vehicle, on default in payment of any of the instalments. There is no term in the Hire Purchase Agreement, that requires the Financier to give notice to the Complainant before terminating the Hire Purchase Agreement, upon breach of any term thereof, or before taking possession of the vehicle.30. On the other hand, clause 15 of the Hire Purchase Agreement expressly provides for determination of the Hire Purchase Agreement without notice to the Complainant, upon default in hire instalments. Clause 15 enables the Financier and/or its agent to enter the premises of the Complainant, where the vehicle under hire may be lying, and to take possession of the same.31. The repossession of a vehicle under hire, in accordance with the terms and conditions of a hire purchase agreement, upon default in payment of hire instalments and refusal to release the same on mere assurance of the Complainant to clear outstanding arrears of hire instalments, and pay future instalments in time, does not constitute deficiency in service.32. The Financier has claimed to have issued notice to the Complainant before taking possession of the vehicle and also a pre sale notice. Unfortunately there was an error in the address of the Complainant in the notice purported to be issued to the Complainant before taking possession. It may thus, reasonably be assumed that an obligation to give notice to the Complainant was implicit in the Hire Purchase Agreement. The Financier also construed the Hire Purchase Agreement to contain an implicit requirement to give notice to a hirer before taking possession of the vehicle covered by the Hire Purchase Agreement.34. The object of a notice before taking possession of a vehicle on hire under a Hire Purchase Agreement, is to enable the hirer, to make a written request to the Financier to revive the hire purchase agreement in terms of Clause 12 of the said agreement, upon payment of all outstanding dues together with damages, as might be mutually agreed upon.35. A notice also draws the attention of the hirer to the alleged breaches of agreement on the part of the hirer, on the basis of which, the Financier claims to be entitled to take possession. Such notice gives the hirer an opportunity to show that the hirer had not, in fact, committed any breach of agreement.A notice ensures that the hirer is not taken by surprise and has time to stop operating the vehicle, so that third persons using the vehicle on payment of charges are not put to sudden inconvenience by reason of re-possession of the vehicle.38. A District Forum constituted under the Consumer Protection Act, 1963, derives its power to grant relief from Section 14 of the said Act. If the District Forum is satisfied that the allegations contained in the complaint about the services are proved, it may direct the service provider to(i) return the charges paid by the Complainant [Section 14(1) (c)];(ii) to pay such amount, as may be awarded by the District Forum as compensation to the consumer for any loss or injury suffered by the Complainant/Consumer, due to the negligence of the service provider [Section 14(1)(d)];(iii) to pay punitive damages in such circumstances as the District Forum deems fit [Proviso to Section 14(1)(d)];(iv) to remove the deficiencies in the service in question. [Section 14(1)(a)];(v) to discontinue the unfair trade practice [Section 14(1) (f)]39. Before a District Forum can grant relief to the consumer of a service, it has to be satisfied that the allegations in the complaint, and/or in other words, the allegations which constitute a valid complaint, that is allegations of unfair or restrictive trade practice adopted by the service provider, or the allegations of deficiency in the service hired, or availed of or agreed to be availed of by the Complainant from the service provider, or the allegations of the service provider charging a price in excess of the price fixed for the service, under any law, for the time being in force or agreed between the parties or allegations of offering spurious services or services hazardous to life or safety, are proved.40. Section 13(2)(b) of the Consumer Protection Act, 1986 casts an obligation on the District Forum to decide a complaint on the basis of the evidence brought to its notice by the Complainant and the service provider. Irrespective of whether the service provider adduces evidence or not, the decision of the District Forum has to be based on evidence relied upon by the Complainant. The onus of proof is on the Complainant making the allegation. Section 27 of the Consumer Protection Act casts an obligation on the District Forum, the State Commission or the National Commission to dismiss frivolous complaints with costs not exceeding Rs.10,000/-.41. The evidence to which the Complainant drew the attention of the District Forum is apparent from its judgment and order. The Complainant produced a delivery receipt in respect of the vehicle, some payment receipts, Insurance papers in respect of the vehicle, an FIR unconnected with the Financier and/or copies thereof and some documents relating to the filing of the Complaint and payment of Court Fees etc., none of which establish any deficiency of service or unfair trade practice on the part of the Financier.42. The District Forum drew adverse inference against the Financier for not producing the Hire Purchase Agreement and assumed that there was no provision in the Hire Purchase Agreement for taking the vehicle back or selling it to a third party. Significantly it was not even the case of the Complainant in his complaint, that the Hire Purchase Agreement, which the complainant had signed, did not authorize the Financier to take possession of the vehicle upon default, or to sell the same to a third party.43. No adverse inference could have been drawn against the Financier for not producing the Hire Purchase Agreement before the District Forum, when there was no allegation in the complaint of breach by the Financier of the Hire Purchase Agreement, in taking possession of the vehicle. The District Forum did not exercise its power under Section 13(4)(ii) to call upon the Financier to produce the Hire Purchase Agreement. Even otherwise, the District Forum did not direct the Financier to produce the Hire Purchase Agreement.44. In the Complaint, a copy of which is annexed to the Paper Book, there is not a whisper of application of any force in taking possession of the vehicle. The finding of the District Forum, of the vehicle having been lifted forcefully or snatched is, with the greatest of respect, contrary to the Complainants own case made out in the Complaint, and therefore perverse. It is well settled that a new case cannot be made out by way of evidence, when there are no pleadings to support the same.46. The State Commission assumed that the error in the address of the complainant in the notice despatched by the Financier was deliberate, in order to sell the vehicle without the knowledge of the Complainant. Such assumption was not based on any materials on record but patently conjectural. The State Commission observed that the Complainant had been deprived of the opportunity to deposit the amount, due from him to the Financier, which again is contrary to the Complainants own pleadings in his complaint.48. The aforesaid observation, of the sale being dubious, has been made, overlooking the terms and conditions of the hire purchase agreement, and without considering the law governing hire purchase agreements. The Financier remains the owner of the vehicle taken by the complainant on hire, on condition of option to purchase, upon payment of all hire instalments. The hire instalments are charges for use of the vehicle as also for the exercise of option to purchase the vehicle in future. The Financier being the owner of the vehicle, there was no obligation on the part of the Financier, to divulge details of the sale of that vehicle, and that too on its own, without being called upon to do so.49. The finding of the State Commission that the Financier sold the vehicle without the knowledge of the Complainant is contrary to the Complainants own case in his complaint before the District Forum.50. The Complainant has established that there was a discrepancy and/or error in the address of the Complainant in the notice for repossession, from which all the three fora under the Consumer Protection Act, 1986, that is the District Forum, the State Commission and the National Commission have concluded that possession of the vehicle was taken without notice. It was not the case of the Complainant that the vehicle was sold without notice to or knowledge of the complainant.51. The error and/or discrepancy in the address is minor and there are no materials on the basis of which the State Commission concluded that the error was deliberate. The finding of the State Commission, of the error in the address being deliberate, is unsubstantiated.52. Be that as it may, we proceed on the basis of the concurrent factual findings of the District Forum, the State Commission and the National Commission, that the Financier took possession of the vehicle without notice. Since the Financier deemed it necessary to issue notice to the complainant, and accordingly dispatched a notice, the notice should have been sent to the correct address of the Complainant, as recorded in the Hire Purchase Agreement.53. By directing the Financier to pay to the Complainant, the entire amount paid by the Complainant to the Financier from the inception, as also the amount paid by the Complainant to the dealer directly, along with interest at the rate of 10% per annum, damages of Rs.10,000/- and litigation costs, the fora constituted under the Consumer Protection Act, 1986, have given a defaulting hirer the benefit of free use of the vehicle of the value of Rs.4,21,121/- for almost twelve months, plus damages, oblivious to the depreciation in the value of the vehicle by reason of wear and tear, due to use by the hirer, as also an admitted accident for which the vehicle lay seized with the Police for some time.54. The Consumer Protection Act, 1986 creates fora for quick adjudication of consumer disputes. The Act protects consumers from defective goods, deficient services, unfair or restrictive trade practices, or spurious goods or services. The Act also protects consumers of goods and services from being charged a price, in excess of the price fixed by or under any law in force, the price agreed between the parties, or the price declared by the service provider or the supplier of the goods inter alia by display, and/or representation.55. The Consumer Protection Act, 1986, which creates fora for expeditious adjudication and settlement of consumer disputes, is not in derogation of any law in existence, but in addition thereto, as provided in Section 3 thereof. The said Act protects consumers of services from being charged a price in excess of the price fixed for the service under any law or the price agreed between the parties and also redressal of deficiency in the services availed by the Consumer and/or against restrictive or unfair trade practices, and/or spurious services.56. The Consumer Protection Act, 1986 does not override the Contract Act, 1872, and other enactments in force, applicable to the service availed by the consumer from the service provider.57. The protection, to which the consumer of a service is entitled under the Consumer Protection Act, is against loss of money, by reason of being denied service, of a quality agreed upon expressly or by necessary implication, inter alia, in view of the applicable law, for which the consumer has paid, or has agreed to pay a consideration. The said Act also protects consumers from being overcharged for any service obtained and/or agreed to be obtained.58. The consumer of a service may also be entitled to damages for any loss suffered by the consumer, by reason of denial or deficiency in service for which the consumer has paid or agreed to pay (if the parties have agreed to deferred payment), charges and/or in other words, price for the service. In cases of breach of contract, liquidated damages may be imposed on the party in breach, if the agreement provides for liquidated damages, that is a fixed amount by way of damages. Where the parties to an agreement have not agreed to liquidated damages, the party in breach of agreement may be directed to pay unliquidated damages which are compensatory. Such compensatory damages are not to punish the party in breach, but to compensate the party not in breach, for losses suffered as a result of the breach.59. Where, however, the damages caused by the breach are severe and extensive, the party in breach may be required to pay to the party not in breach, such damages as would restore the position of the party not in breach, to the position before the breach occurred.60. Apart from compensatory damages, an Adjudicating Authority may impose on the party in breach, punitive damages or nominal damages. Punitive damages are awarded where the party in breach of agreement has behaved in a manner, which is reprehensible and calls for punishment. Nominal damages are awarded where there is no real harm done, by reason of the breach of the contract.62. The proviso to Section 14(1)(d) of Consumer Protection Act, 1986 empowers the District Forum to grant punitive damages in such circumstances as it deems fit. Punitive damages are not generally awarded in cases of breach of contract unless the act is so reprehensible that it calls for punishment of the party in breach, by imposition of punitive and/or exemplary damages. Compensation which is compensatory, has to be assessed taking into account relevant factors, such as the loss incurred by the claimant, though some amount of guess work and/or estimation may be permissible. In the instant case, the District Forum did not even undertake the exercise of assessment of the loss/damages, if any, suffered by the complainant by reason of non-service of notice before taking possession of the vehicle.63. The District Forum, as also the State Commission and the National Commission, did not consider the law relating to hire purchases as enunciated by this Court in a plethora of judgments.64. In Charanjit Singh Chadha & Ors. v. Sudhir Mehra (2001) 7 SCC 417 , relied upon by the Financier, this Court held:5. Hire-purchase agreements are executory contracts under which the goods are let on hire and the hirer has an option to purchase in accordance with the terms of the agreement. These types of agreements were originally entered into between the dealer and the customer and the dealer used to extend credit to the customer. But as hire- purchase scheme gained in popularity and in size, the dealers who were not endowed with liberal amount of working capital found it difficult to extend the scheme to many customers. Then the financiers came into the picture. The finance company would buy the goods from the dealer and let them to the customer under hire-purchase agreement. The dealer would deliver the goods to the customer who would then drop out of the transaction leaving the finance company to collect instalments directly from the customer. Under hire-purchase agreement, the hirer is simply paying for the use of the goods and for the option to purchase them. The finance charge, representing the difference between the cash price and the hire-purchase price, is not interest but represents a sum which the hirer has to pay for the privilege of being allowed to discharge the purchase price of goods by instalments.7. In Damodar Valley Corpn. v. State of Bihar AIR 1961 SC 440 this Court took the view that a mere contract of hiring, without more, is a species of the contract of bailment, which does not create a title in the bailee, but the law of hire purchase has undergone considerable development during the last half a century or more and has introduced a number of variations, thus leading to categories and it becomes a question of some nicety as to which category a particular contract between the parties comes under. Ordinarily, a contract of hire purchase confers no title on the hirer, but a mere option to purchase on fulfilment of certain conditions. But a contract of hire purchase may also provide for the agreement to purchase the thing hired by deferred payments subject to the condition that title to the thing shall not pass until all the instalments have been paid. There may be other variations of a contract of hire purchase depending upon the terms agreed between the parties. When rights in third parties have been created by acts of parties or by operation of law, the question may arise as to what exactly were the rights and obligations of the parties to the original contract.65. In Charanjit Singh Chadha (supra), this Court held that a Hire Purchase Agreement is an executory contract of sale, conferring no right in rem on the hirer, until the conditions for transfer of the property to him have been fulfilled. The Financier continues to be the owner of the goods under a hire purchase agreement. The hirer simply pays for use of the goods and for the option to purchase them. The finance charge, representing the difference between the price and the hire purchase price represents the sum which the hirer has to pay for the privilege of being allowed to pay the purchase price in instalments. Where the hirer had defaulted in payment of instalments and the agreement specifically provided that the Financier was entitled to repossess the vehicle in case of default, no case was made out against the Financier.71. In Jagdish Chandra Nijhawan (supra), this Court held that where a Chairman, provided with rent fee furnished flat by the company of which the company was not the lessee, remained in wrongful possession of the flat after his Chairmanship stood terminated, the dispute was of a civil nature. The High Court had thus, erred in law in quashing the order of discharge made by the Court of Judicial Magistrate in a Criminal Revision application. The judgment has no relevance to the issues involved in this case.72. In Lalmuni Devi (supra), the issue before this Court was, whether facts which could give rise to a civil claim, could also amount to offence. This Court held that merely because a civil claim was maintainable did not mean that the criminal complaint would not be maintained. The Judgment was rendered in the context of the allegation that the respondent Nos. 2 and 10 had fraudulently got the father of the complainant to execute a gift deed. The judgment is of no relevance to this case.77. The law which emerges from the judgments of the Court referred to above, is that goods are let out on hire under a Hire Purchase Agreement, with an option to purchase, in accordance with the terms and conditions of the Hire Purchase Agreement. The hirer simply pays for the use of the goods and for the option to purchase them.78. Until the option to purchase is exercised by the hirer, upon payment of all amounts agreed upon between the hirer and the Financier, the financier continues to be owner of the goods being the subject of hire purchase. Till such time the hirer remains a trustee and/or bailee of the goods covered by the Hire Purchase Agreement.79. The Financier continues to remain the owner of a vehicle, covered by a hire purchase agreement till all the hire instalments are paid and the hirer exercises the option to purchase. Thus, when the Financier takes re-possession of a vehicle under hire, upon default by the hirer in payment of hire instalments, the Financier takes re- possession of the Financiers own vehicle.80. When the agreement between the Financier and the hirer permits the Financier to take possession of a vehicle financed by the Financier, there is no legal impediment to the Financier taking possession of the vehicle. When possession of the vehicle is taken, the Financier cannot be said to have committed theft.81. Whether the transaction between a Financier and a purchaser/hirer is a hire purchase transaction, or a loan transaction, might be determined from the terms of the agreement, considered in the light of surrounding circumstances. However, even a loan transaction, secured by right of seizure of a financed vehicle, confers licence to the Financier to seize the vehicle.82. In this case, the agreement executed by and between the Financier and the Complainant is a Hire Purchase Agreement as will appear from the terms and conditions thereof. In any event, the fora under the Consumer Protection Act, have not arrived at any specific finding to the contrary. There is no discussion of the nature of the agreement between the Financier and the Complainant. Be that as it may, the agreement clearly permits the Financier to take possession of the vehicle, upon default in payment of instalments.85. In Citicorp Maruti Finance Ltd. v. S. Vijaylaxmi (2012) 1 SCC 1 cited by the complainant, this Court held that the fora under the Consumer Protection Act, 1986 were right in holding that the vehicles had been illegally and wrongfully recovered by use of force from the loanees. The judgment was rendered in the facts and circumstance of the case and this Court deprecated the use of force. In this case, there was no allegation in the complaint of use of force. Significantly, in Citicorp Maruti Finance Ltd. (supra), Kabir, J. held:-27. Till such time as the ownership is not transferred to the purchaser, the hirer normally continues to be the owner of the goods, but that does not entitle him on the strength of the agreement to take back the possession of the vehicle by use of force. The guidelines which had been laid down by Reserve Bank of India as well as the appellant Bank itself, it fact, support and make a virtue of such conduct. If any action is taken for recovery in violation of such guidelines or the principles as laid down by this Court, such an action cannot be struck down.. This Court held that the Financier continues to be the owner of the goods. There is an obvious typographical error in paragraph (27) of the judgment where hirer has been erroneously been typed in place of lender/financier.87. The question raised by the Financier in this appeal, that is, whether the Financier is the real owner of the vehicle, which is the subject of a Hire Purchase Agreement,has to be answered in the affirmative in view of the law enunciated by this Court in Haranjit Singh Chadha (supra), K.L. Johar & Co. (supra) and Anup Sarmah (supra). The Financier being the owner of the vehicle which is the subject of a Hire Purchase Agreement, there can be no impediment to the Financier taking possession of the vehicle when the hirer does not make payment of instalments/hire charges in terms of the Hire Purchase Agreement. However, such repossession cannot be taken by recourse to physical violence, assault and/or criminal intimidation. Nor can such possession be taken by engaging gangsters, goons and musclemen as so called Recovery Agents.88. Whether the service of proper notice on the hirer would be necessary for repossession of a vehicle, which is the subject matter of a Hire Purchase Agreement, would depend on the terms and conditions of the Hire Purchase Agreement, some of which may stand modified by the course of conduct of the parties. If the hire purchase agreement provides for notice on the hirer before repossession, such notice would be mandatory. Notice may also be necessary, if a requirement to give notice is implicit in the agreement from the course of conduct of the parties.89. If the hirer commits breaches of the conditions of a hire purchase agreement which expressly provides for immediate repossession of a vehicle without further notice to the hirer, in case of default in payment of hire charges and/or hire instalments repossession would not be vitiated for want of notice. In this case, however a duty to give notice to the Complainant before repossession, was implicit in the Hire Purchase Agreement. The Hire Purchase Agreement was a stereotype agreement in a standard form, prepared by the Financier. The same kind of agreements, containing, identical terms, except for minor modifications are executed by all hirers of vehicles, equipment, machinery and other goods, who enter into hire purchase agreements with the Financier. The Financier who set down the terms and conditions of the hire purchase, construed the hire purchase agreement to contain an implied term for service of notice and accordingly despatched a notice, but did not address it to the correct address of the Complainant as given in the hire purchase agreement.90. In a case where the requirement to serve notice before repossession is implicit in the hire purchase agreement, non service of proper notice would tantamount to deficiency of service for breach of the hire purchase agreement giving rise to a claim in damages. The Complainant consumer would be entitled to compensatory damages, based on an assessment of the loss caused to the complainant by reason of the omission to give notice. Where there is no evidence of any loss to the hirer by reason of omission to give notice, nominal damages may be awarded.91. A forum constituted under the Consumer Protection Act has, as observed above, the power to award punitive damages. Punitive damages should, however, be granted only in exceptional circumstances, where the action of the Financier is so reprehensible that punishment is warranted. T o cite an example, where a Financier erroneously and/or wrongfully invokes the power to repossess without notice to the hirer, causing thereby extensive pecuniary loss to the hirer or loss of goodwill and repute, a forum constituted under the Consumer Protection Act may award punitive damages.92. In the instant case, there is no evidence of any loss suffered by the complainant by reason of non-receipt of notice. Admittedly, several instalments, remained unpaid. After repossession the complainant contacted the Financier and was informed of the reasons for the repossession. He only made an offer to pay outstanding instalments and gave an assurance to pay future instalments in time. If the Financier was not agreeable to accept the offer, the Financier was within its rights under the hire purchase agreement. This is not a case where payment had been tendered by the hirer but not accepted by the Financier/lender. The Complainant had not tendered payment.93. The Financier admittedly paid Rs.3,15,000/- for acquisition of the vehicle, out of which the Financier had been able to realize Rs.1,19,000/- inclusive of all charges. There was depreciation in the value of the vehicle by reason of usage by the Complainant, for about a year. The District Forum did not even notionally assess the depreciation in the value of the vehicle.94. The District Forum was not justified in directing the Financier to pay the Complainant Rs.2,23,335/- being the entire amount paid by the Complainant to the Financier from the inception as well as the payment of Rs.1,04,000/- made by the Complainant to the dealer along with damage of Rs.10,000/- and litigation costs of Rs.1,000/- after the Complainant had held and used the vehicle for almost a year. The Complainant, admittedly a defaulter, has in effect, been allowed free use of the vehicle for about a year, plus damages, for an error in the notice of repossession, without considering the prejudice, if any, caused to the complainant by the error and consequential non receipt of the notice, and without making any assessment of the loss, if at all, to the Complainant by reason of the error/omission.66. In K.L. Johar & Co. v. Deputy Commercial Tax Officer, Coimbatore AIR 1965 SC 1082 this Court took the view that a hire-purchase agreement has two elements: (1) element of bailment; and (2) element of sale, in the sense that it contemplates an eventual sale. The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied, and the option is exercised, a sale takes place of the goods, which till then, had been hired.67. In Anup Sarmah v. Bhola Nath Sharma and Others (2013) 1 SCC 400 cited on behalf of the Financier, this Court held that, in an agreement of hire-purchase, the purchaser remains merely a trustee/bailee on behalf of the financier/financial institution and ownership remains with the latter. Thus, in case the vehicle is seized by the Financier, no criminal action can be taken against the Financier, as the Financier is only repossessing the goods owned by the Financier.22. The fora constituted under the Consumer Protection Act, 1986 are quasi judicial bodies, required to observe the principles of Natural Justice and to award relief of a specific nature and to award wherever appropriate, compensation to consumers.24. Section 11 of the Consumer Protection Act confers jurisdiction on the District Forum, having territorial jurisdiction, to entertain a complaint, subject to the pecuniary limit of the value of the goods or services and/or the compensation claimed. In this case the territorial or the pecuniary jurisdiction of the District Forum, to entertain the complaint, is not in dispute. There can also be no dispute that the Complainant was a consumer of services provided by the Financier.25. Section (2)(1)(r) defines unfair trade practice to mean a trade practice, for the purpose of promoting provision of any service, by adoption of unfair method or unfair or deceptive practice, including any of the practices enumerated in Sections 2(1)(r)(i) to (x), 2(r)(2), 2(r)(3) and 2(r)(3A). The complaint does not make out any case of unfair trade practice within the meaning of Section 2(1)(r) of the Consumer Protection Act 1986.