DOF.28.10.2006 DOO.12.4.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy : Member Dated this, the 12th day of April 2011 CC.250/2006 Faisal.C.K., Choottukodan House, Moonu Nirathu.P.O., Azhikode (Rep. by PAH.Ahammed Kutty) Complainant (Rep. by Adv.Joy Joseph) 1.Manapuram Finance & Leasing Ltd., Manappuram Hosue, P.O.Valapad, Thrissur. 2. Manappuram Finace & Leasing Ltd., Thavarayi Complex, Rainsree Building Thalassery. (Rep. by Adv.Pramod.K) Opposite parties O R D E R Smt.KP.Preethakumari, Member This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite party to return the Bajaj Autorickshaw with a compensation of `45,000 and a further compensation of ` 200 per day from 14.3.06 with cost. The case of the complainant is that he is the R.C owner of Bajaj RE autorickshaw bearing No.KL.13M 3825 and it was plying by the complainant and his brother Fasser and the income derived from the autorickshaw is the only income for livelihood of his family. The purchase price of the vehicle is `1,10,000 and an electronic meter was installed in the autorickshaw for a cost of `5000, and 15000 was spent on the auotircickhsaw for its wood works, body work, electric works and painting. The complainant availed a loan of `85000 from the 1st opposite party through 2nd opposite party on 7.1.05 as per the agreement No.1306202. But no copy of agreement was given to the complainant. A full book of agreement consisting of number of pages printed in English in which a number of clauses kept blank was asked to be signed by the complainant and his mother. Opposite party collected 5 blank signed cheques also from the complainant by force. The EM I was for `3,356 for 24 months and `3219 for 12 months. As on 20.2.06, the complainant paid 11 EMI of `3356 including service charges and as on 14.3.06 the vehicle has run only 3420 kms. On 14.3.06, the 2nd opposite party forcefully seized the vehicle using gundas and took the vehicle to Thrissur and a petition was filed before Valpatanam police station but it remains under investigation. Meanwhile the complainant left to Dubai for a job and was returned on 18.7.06 as he was notable to find proper job. On 16.8.06, the complainant approached the opposite party and demanded his vehicle, it was told that it has been sold out on 13.7.06 illegally without complying any formalities as to public auction. The 1st opposite party informed the complainant and his mother through registered letter regarding sale of the vehicle for` 32000 on 28.8.06. No information was given before sale. The complainant sustained a loss of `45000 in addition to a daily loss of `200 per day from 14.3.06 so the complainant issued registered lawyer notice to opposite parties and RTO, Kannur. The opposite parties issued a reply stating false contentions, hence this complaint. In pursuance to the notice issued by the Forum both opposite parties appeared and filed their version. The opposite parties contended that the complaint is not maintainable in the eye of law and is liable to be dismissed since it is a dispute regarding H.P agreement. The opposite party admits that the complainant had availed a loan of `85800 by executing a Hire Purchase agreement on 11.2.2005 and as per this Hire Purchase agreement the loan amount is to be repaid in 36 monthly installment. The complainant was highly irregular in repayment and hence the liability mounts up. In fact the vehicle was surrendered by the complainant before opposite party. The complainant defaulted the EMIs and after request from opposite party the complainant approached the opposite party and issued a cheque for the settlement of balance amount. But it was bounced and a case under section 138 of Negotiable instrument act was filed against him which is pending. Later on the complainant approached opposite party and informed that he has got an employment at gulf and surrendered the vehicle. The vehicle was auctioned on 19.7.06 and a notice was fully issued to the complainant and it was done by complying all the formalities including giving notice and advertisement in news papers. The opposite party had suffered huge monetary loss due to the irresponsible and callous attitude of the complainant. The vehicle is purchased and used for commercial purpose and hence the complaint is liable to be dismissed. Upon the above contention the following issues have been raised for consideration. 1. Whether the complaint is maintainable before the Forum? 2. Whether there is any deficiency of service on the part of opposite party? 3. Whether the complainant is entitled for the relief as prayed in the complaint? 4. Relief and cost. The evidence consists of oral evidence of PW1 and DW, Exts. A1 to A11 and B1 to B5. Issue No.1 The opposite parties contended that the complaint is not maintainable before the Forum since it is a dispute regarding Hire purchase agreement and the vehicle is used for commercial purpose. The complainant has filed this complaint for compensation for loss sustained due to the act of opposite party by auctioning the vehicle without prior notice to the complainant and the complaint is filed not for specific performance of any of the terms and conditions of Hire Purchase agreement. Moreover the complainant contended that the vehicle is used by the complainant and his brother for earning their livelihood. The opposite party has not produced any convincing evidence to prove that they have sufficient means. So we are of the view that the complainant is a consumer and the Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant. Issue Nos.2 to 4 The complainant’s further case is that the opposite party had repossessed and sold the vehicle for a meager amount without informing the complainant and hence he had suffered both mental as well as financial difficulties. To prove the case the power of Attorney holder of the complainant was examined as PW1 and produced documents such as lease installment pay book copy of lawyer notice dt.22.8.06, postal acknowledgement cards, reply notice of opposite party, intimation of sale dt.28.8.06, copy of registered notice to RTO, copy of RC, copy of passport etc. The opposite party was examined as DW1 and produced documents such as Hire purchase agreement, copy of letter of intimation of sale, postal acknowledgment etc. to substantiate their contention. The admission of the complainant along with the documents proves that the complainant had availed `85800 as loan. As per Ext.B1 Hire purchase agreement, the complainant has to repay the loan through 36 equated monthly installments. The complainant has repaid only 11 EMI’s i.e. only `37060 as on 7.12.05. So the opposite parties repossessed the vehicle on 14.3.06. Ext.A6 and A7 proves that the opposite party has repossessed the vehicle. From Ext.A1 itself it is clear that the complainant has paid the EMI only up to and inclusive of 7.12.05. Clause 14 of Ext.B1 says that the lender shall be entitled to take repossession of the vehicle, irrespective of whether the loan has been recalled, whenever in the opinion of lender there is apprehension of any money not being paid or lender’s security being Leo paradised”. So from Ext.A1 it is seen that the complainant has not paid EMI for 3 consecutive months and he used to pay the EMI after the due dates. The opposite party admits that the vehicle was auctioned on 19.7.06. But according to the complainant, the opposite party has not issued intimation to the complainant regarding auction or prior to the sale. But opposite party contended that they have comply all formalities before auction. But no documents before us to prove that opposite party have issued notice prior to the sale. The opposite party has issued the complainant Exts.A7 and A8 notice dt. 28.8.06 intimating that the sale is conducted for an amount of `32000 and the complainant has to pay `56000 more towards the balance amount. But in the Ext.B1 agreement, in page No.8, the value of the vehicle is shown as `101045 and the date of agreement is on 7.2.05. Admittedly the vehicle was auctioned on 19.7.06 for an amount of `32000. So it is seen that within one and half year the value of the vehicle is reduced by `69045. This contention of the opposite party is not proved by producing any supporting documents. The opposite party has not produced the details of sale letter or any such document to prove that they have received only ` 32000 as value of the vehicle. The complainant stated in the complaint that he had incurred `1,30,000 for the vehicle and has run only 3420 kms as on 14.3.06. So the above contention of the opposite party that the vehicle is sold only for `32000 cannot be believed at all. Considering the above stated facts and Ext.B1 documents we assess the value of the vehicle as `90,000 as on the date of sale. The complainant has to pay a total amount of `1, 19,172 to opposite party as the Hire purchase amount and out of which the complainant has paid only `37060 by way of eleven installment as on 7.12.05. So the complainant has to pay balance amount of `82112 with 30% interest up to 19.7.06 the date of sale to opposite party i.e. `96,481.6. By deducing the sale value of `90,000, the complainant has to pay `6481.6 to the opposite party. From the above discussion it is seen that the opposite party has not intimated the complainant prior to the auction and after auction opposite party has not intimated the actual sale value of the vehicle and hence the complainant is not in a position to settle the account. So we are of the opinion that there is deficiency of service on the part of opposite party for which they are liable to compensate the complainant by adjusting the above said amount of `6481.6 (Rounded to ` 6482)to the complainant’s account by way of compensation and cost and to close the same and order passed accordingly. In the result, the complaint is allowed directing the opposite parties to adjust `6482 (Rupees Six thousand four hundred and eighty two only) in the loan account of the complainant by way of compensation and cost and to close the loan account of the complainant within 30 days from the date of receipt of this order, otherwise the complainant can execute the order as per the provisions of consumer protection Act. Sd/- President Sd/-Member Smt.M.D.Jessy, Member For the sake of convenience I am not repeating the facts of the case here again. The finds arrived by my learned colleagues upon issue No.1 is on a wrong notion of law. Hence I disagree with the same. Here it is undisputed fact that the complainant had availed a loan for the purchase of an autorickshaw from the opposite parties under a hire purchase agreement. Ext.A10 the true copy of the RC book shows an endorsement with effect that the vehicle is subject to a hire purchase agreement with the opposite parties. Then definitely the financier will become the first owner of the vehicle. If any dispute is aroused between the parties to a hire purchase agreement is to be settled by appointing an arbitrator. Here the dispute is related to the terms of hire purchase agreement in respect of which the complainant is not obviously a consumer because there was no consideration paid by he complainant for the loan provided by the opposite parties. This position is clearly supported by the decision reported in 1993(2) CPR 353. As such the complainant will not come under the purview of consumer as defined under section 2(1)(d) of the consumer protection Act and the complaint is only liable to be dismissed. Sd/- Member Order pronounced allowing the complaint in acceptance of majority opinion. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1. Pass book issued by OP A2.Copy of the lawyer notice sent to OP A3 & 4.Postal AD cards A5.Reply notice sent by OP A6 & 7.Notices dt.28.8.06 issued by OP A8.Copy of the registered notice sent to RTO., Kannur dt.23.8.06. A9.Postal AD card A10.Copy of the RC of the vehicle A11.Copy of the passport of the complainant Exhibits for the opposite party: B1. Vehicle loan-cum hypothecation agreement dt.7.2.05. B2.Copy of the letter dt.28.8.06 sent to complainant B3 & 4.AD cards B5.Authorisatin letter dt.5.1.11 Witness examined for the complainant PW1.Complainant (Power of Attorney Holder) Witness examined for the opposite party: DW1.C.K.Unnikrishnan /forwarded by order/ Senior Superintendent Consumer Dispute Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
