BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
F.A.No.241/2013 against C.C.No.149/2011, Dist. Forum, Mahabubnagar.
Between:
Md.Jahangir Pasha, S/o.Md. Hussain,
Aged about 47 years,
Occ: Owner of Ashok Leyland Lorry No.AP 22 W 9909,
R/o.H.No.25-98, Fazal Banda , Jadcherla,
Mahaboob Nagar District …. Appellant/
Complainant
And
1. The Branch Manager,
Srirama Transport Finance Company Ltd.,
D.No.1-5-107/4A,Opp: Mallikarjuna Enterprises,
New Town, Mahabub Nagar.
2. The Manager,
Srirama Transport Finance Company Ltd.,
Administrative Office:101-105, Shiva Chambers,
Sector 11, C.B.D. Belapur, Navi Mumbai. … Respondents/
Opp.parties
Counsel for the Appellant : M/s. K.V.Mallikarjuna Pani
Counsel for the Respondents : Mr.Vakkanti Narasimha Rao
QUORUM: SRI T.ASHOK KUMAR, HON’BLE MEMBER
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER
FRIDAY, THE EIGHTEENTH DAY OF JULY,
TWO THOUSAND FOURTEEN.
Oral Order: (Per Sri S.Bhujanga Rao, Hon’ble Member)
****
The unsuccessful complainant filed the appeal against the order dt.27.09.2012 of the Dist. Consumer Forum, Mahabubnagar made in C.C.No.149/2011,whereunder the Consumer Complaint filed by the appellant/complainant is dismissed.
The brief case of the appellant as per the complaint is that he is the owner of Ashok Leyland Lorry no.AP 22 W 9909 of 2000 model. The cost of the vehicle is Rs.4,50,000/-. The appellant paid Rs. 1,90,000/- in cash and the remaining amount of Rs.2,40,000/- was paid by obtaining finance from the respondents/opp.parties herein. On 22.01.2009, the appellant herein entered into Loan cum Hypothecation Agreement with the respondents herein. As per the agreement, the appellant has to repay the loan amount of Rs.2,40,000/- in 30 monthly instalments at Rs.10,500/- per month, commencing from the Month of March ,2009 and ending in the month of September,2011.
The appellant further stated that as per the terms and conditions, he paid monthly instalments regularly from March 2009 till November,2010 amounting to Rs.2,21,100/-. In the month of December,2010, the respondents herein without giving any notice to the appellant , forcibly seized the vehicle in the absence of the appellant, by damaging the steering, while it was parked in the village. The appellant further stated that the respondents seized the vehicle forcibly, though the appellant committed no default in payment of instalments. The appellant approached the respondents and requested to release the vehicle undertaking to pay the instalment due for the month of December,2010. But the respondents refused to release the vehicle and demanded that he should pay the entire future instalments amount. Thereafter, the respondents sent a notice to the appellant demanding to pay the outstanding amount due. After issuing the said notice, the appellant once again approached the respondents and requested them to release the vehicle, on receiving the due instalments. But the respondents refused to release the vehicle demanding to pay the future instalments also. Hence the appellant filed the complaint seeking direction to theopp.parties to release the vehicle after receiving due instalments or to pay the cost of the vehicle i.e. Rs.4,50,000/-, to pay Rs.50,000/- towards compensation and Rs.20,000/- towards costs of the complaint.
Resisting the complaint, the respondents/opp.parties herein filed counter/written version denying the material allegations made in the complaint and contended that they have provided financial assistance in a sum of Rs.2,60,000/- to the appellant for purchasing the subject vehicle under Loan cum Hypothecation Agreement dt.22.01.2009. The agreement value is Rs.3,92,600/- including financial charges of Rs.1,32,600/-. The said amount has to be paid in 36 instalments of which 35 instalments are at Rs.11,217/- per month and 36th instlament of Rs.5/- payable from 25.2.2009 till 25.1.2012.
The respondents further contended that the appellant surrendered the vehicle to the respondents on 06.12.2010 under a letter, on the ground that he is unable to pay the instalments regularly due to financial problems. The appellant never approached them and never offered to pay the due instalments.
The respondents further contended that the appellant has availed different loans, such as, two Tyre loans, two Bullet loans, and two insurance loans on different dates, in continuation of the main Hypothecation Agreement. After seizure of the vehicle, the respondents sent a notice to the appellant for full settlement on 04.03.2011, as the appellant did not turn up and did not pay the instalments due. The appellant received the said notice, but did not choose to give any reply, nor did he pay the amount due. Therefore, the respondents sold the vehicle for Rs.2,10, 000/- in open auction. The sale proceeds have been adjusted to the different loan accounts availed by the appellant and the appellant is still due an amount of Rs. Rs.1,32,340/-. When the respondents demanded the appellant to pay the said amount, the appellant filed the present complaint, suppressing the material facts. Under these circumstances, there is no deficiency in service or unfair trade practice on the part of these respondents. Therefore, the complaint is liable to be dismissed with costs.
In order to prove his case, the appellant filed his evidence affidavit and got marked Exs.A1 to A20. As against that evidence, the opp.parties filed evidence affidavit and got marked Exs.B1 to B23.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum came to the conclusion that the appellant failed to establish his case, on the ground of deficiency in service or unfair trade practice against the respondents herein and consequently, the District Forum dismissed the complaint.
Aggrieved by the said order, the complainant preferred this appeal urging that the order of the District Forum is contrary to law, weight of evidence and probabilities of the case. That the District Forum erred in holding that there is no deficiency in service on the part of the respondents/opp.parties herein , even though there is a clear violation of procedure in seizure of the vehicle. That the appellant did not surrender the vehicle to the respondents herein. When the said vehicle was parked at his residence in the village, due to Telangana Bandh, the respondents herein forcibly seized the vehicle by damaging the steering of the vehicle in the absence of the complainant and that the question of surrender of the vehicle does not arise, since the appellant is not a defaulter on the date of seizure of the vehicle and only due to pay the instalment for the month of December,2010. The appellant further submitted that the respondents herein did not give any notices including Exs.B4 and B5 before and after seizure of the vehicle and that the respondents did not file any document to show that Ex.B4 and B5 were served on the appellant. The respondents 0 did not issue notice even before the sale of the vehicle. The District Forum ought to have allowed the complaint directing the respondents herein to pay Rs.4,50,000/- towards the cost of the lorry and to pay compensation and costs of the complaint. The appellant finally prayed to allow the appeal setting aside the impugned order and to allow the complaint.
We heard the counsel for both the parties and perused the entire material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
It is not in dispute that the appellant is the owner of Ashok Leyland Lorry no.AP 22 W 9909 of 2000 model and that he obtained loan of Rs.2,60,000/- from the respondents/opp.parties herein at the time of purchasing of the said lorry by entering into Loan cum Hypothecation Agreement dt.22.01.2009 with the respondents herein and the appellant has to repay the amount along with financial charges in 36 instalments commencing from 25.2.2009 to 25.01.2012. The said facts are also proved by Ex.B18 the copy of the Loan cum Hypothecation Agreement with schedules and Ex.B19 the copy of Demand Promissory Note, executed by the complainant in favour of the opp.party no.1.
It is the case of the appellant that in the month of December,2010, the respondents herein seized the vehicle in his absence, without giving notice to him. When he approached, the respondents herein refused to release the vehicle and demanded him to pay the entire future instalments amount. On the other hand, the contention of the respondents herein is that the complainant himself surrendered the vehicle through letter dt.06.12.2010, expressing his inability to pay the instalments, due to financial problems, as such, the question of issuing prior seizure notice does not arise.
In order to prove that the appellant himself surrendered the vehicle, the respondents filed the letter dt.06.12.2010 signed and given by the appellant. The said letter is marked as Ex.B2. The appellant has neither denied nor disputed the fact that he has given Ex.B2 to the respondents, in his evidence affidavit or written arguments. In the absence of any evidence, it cannot be held that the respondents created Ex.B2 Surrender Letter, especially when the appellant has not denied his signature on Ex.B2. It is an admitted fact that the appellant committed default in payment of the instalments. Under these circumstances, the contention of the respondents that the appellant himself surrendered the vehicle as per Ex.B2, cannot be disbelieved, solely on the ground that the respondents have not referred to Ex.B2 in Exs.B4 and B5 notices, said to have been issued by the respondents to the appellant.
The contention of the appellant is that though he was ready to pay the instalments amount due, the respondents herein refused to deliver the vehicle. Except, the interested statement of the appellant in the complaint and in his evidence affidavit, there is no corroborating evidence either oral or documentary, in proof of his said contention. Further, we do not find any reason as to why the respondents refused to deliver the vehicle especially when the appellant expressed his readiness to pay the instalments due. A perusal of Exs.A1 to A20 original receipts clearly show that the complainant was not regular in payment of monthly instalments.
The next contention of the appellant is that the respondents herein sold away the vehicle without giving any notice to him. On the other hand, the contention of the respondents herein is that after repossessing of the vehicle, they issued the original of Ex.B4 a Full Settlement Notice dt.04.03.2011 and thereafter issued publication for auction of the vehicle, as under Ex.B7, the photo copy of the paper publication. The respondents have specifically stated the above said facts in their written version and also in the evidence affidavit . The appellant has not denied or disputed Exs.B4 and B7 in his evidence affidavit. Under these circumstances, we do not find any material irregularity in selling the vehicle in public auction by the respondents to realise the loan amount.
For all the afore said facts and circumstances, we do not find any irregularity or illegality in the impugned order of the District Forum to interfere with it. Hence the appeal fails.
In the result, the appeal is dismissed, confirming the impugned order of the District Forum. No order as to costs.
MEMBER
MEMBER
Pm* Dt. 18.07.2014
