BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 10th May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.305/2013
(Admitted on 2.12.2013)
Sri. Vishwanath Rai,
S/o. Narayana Rai,
Aged about 35 years,
Residing at 3.5, Manala,
Ennegudde House,
Bettampady Post and Village,
Puttur Taluk, D.K.
….. COMPLAINANT
(Advocate for the Complainant: Smt. MNA)
VERSUS
- Sriram Transport Finance co.ltd,
Regional Office at 123,
Angappa Naicken Street,
Chennai 600001
Represented by its Authorised signatory.
- Shriram Transport Finance Co.ltd,
Branch office at A.B. Shetty Circle,
Paradigum Plaza, Mangalore.
Represented by its Authorised signatory.
…......OPPOSITE PARTIES
(Advocate for the Opposite Party: Sri. KPR)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to pay the excesses amount received by them after sale proceedings Rs. 2,64,000/, to pay damages for mental agony, stress and inconvenience Rs.1,00,000/, to pay interest at 18% p.a. from December 2011 till realization, to pay cost of the legal notice Rs.2,000/ and such other reliefs.
2. In support of the above complaint the complainant Sri. Vishwanath Rai, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C4 as detailed in the annexure here below. On behalf of the opposite parties Mr. Vasudeva, (RW1) Officer of M/S. Shriram Transport Finance co.ltd, also filed affidavit evidence answered the interrogatories served on him and produced documents got marked at Ex.R1 to R11 as detailed in the annexure here below.
The brief facts of the case are as under:
We perused the complaint and the version of the parties. The dispute is with regard to selling of the vehicle on hypothecation by the opposite parties in default of payment by the complainant. The material fact in dispute is the complainant had borrowed vehicle loan for buying the TATA INDICA V2 of 2006 model (hereinafter called the vehicle) from the opposite parties and defaulted in payment of installments. The complainant alleges that the opposite party without giving notice seized his vehicle parked in the Jyothi circle Mangalore and sold it for a lower price and credited the amount of loan complainant’s Account. After adjusting the dues the opposite party not paid the balance amount of sale consideration and also not issued loan clearance certificate. The complainant also alleges that the opposite party had taken blank signed cheques as loan formality but even after the clearing of the loan misused the cheque and filed a criminal case under Negotiable Instrument Act sec 138. Hence harassed the complainant and hence deficiency in service on the part of the opposite parties. The opposite party denying the illegal seizure of the vehicle contends that the complainant after borrowing the loan not prompt in payment and defaulted. As per terms of loan agreement the vehicle was repossessed and sold as per procedure and amount adjusted to the loan account of the complainant. The opposite party also contended that the complainant is not a consumer under the consumer protection Act 1986. There is no deficiency in service on their part. These are being the facts of dispute we are of the view to decide the following
POINTS FOR ADJUDICATION.
The evidence led by the parties and the documents produced are considered. The admitted facts are the borrowing of the vehicle loan by the complainant from the opposite parties, the default in payment and the selling of the vehicle and sale proceeds adjusted towards the loan account balance. The denials are the complainant denies the notice of seizer and the sale of the vehicle. The fair procedure for sale is also disputed by the complainant. The opposite party denied all the allegation in the complaint including the seizer of the vehicle. The opposite party denies the non payment of balance of sale consideration and misusing of the blank cheque given by the complainant. The opposite parties denies the valuation of the vehicle as more than Rs.3,00,000/ and not giving of the loan clearance certificate and thereby deficiency in service in selling the complainant vehicle. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.
- Whether the complainant is the consumer under the consumer protection Act 1986?
- Whether opposite party proves that there is no deficiency in service on their part?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have carefully examined the evidence and marked the document contents thoughtfully. Taken note of the arguments filed by the parties and heard the party submissions and answered the above points as under:
- In the affirmative.
- In the affirmative.
- In the negative.
- As per adjudicated order.
REASON
POINT NO 1: It is evident from the opposite party documents that the complainant had borrowed from the opposite party a vehicle loan. It established the relation of consumer and the service provider between the complainant and the opposite parties. The opposite party contended that the transaction is of commercial in nature and it is evident from the loan application EX R 1 that he is in business since 4 years and he owns another vehicle also. This document cannot be relied independently to hold the complainant is a businessman for earning huge profit, and the other vehicle he is using is for the business purpose only. No documents produced to show that the particular car is used for hiring purpose. Hence we answered the point no 1 in the affirmative.
POINT NO 2: Pivot point of dispute is inter alia the opposite parties have without notice seized the complainants vehicle on hypothecation and sold it. The balance sale proceeds after clearing the loan has not been paid to the complainant and the loan clearance certificate is not issued to the complainant hence deficiency in service. So it is the burden of the opposite parties to prove the procedure adopted in selling the hypothecated vehicle is legal and the sale proceeds utilized properly in discharging the complainant’s liability and there is no deficiency in service on their part hence this point for adjudication.
2. We have traversed through the documents produced by the opposite parties. Among which we are curious upon the EX R 6 and EX R 8. The EX R 6 is the letter dated 21.09.2011 written by the surety/guarantor for the complainant’s vehicle loan. The contents says the complainant is not in a position to repay the loan and the hypothecated vehicle is given to him by the complainant for handing over to the opposite parties for selling it and adjust the sale proceeds to the loan account of the complainant. The surety in this letter requested the opposite parties to take possession of the vehicle and sell the same and give receipt for handing over of the vehicle. The EX R 8 dated 19.09.2011 is the letter given by the complainant /borrower requesting the opposite party to taken possession of the vehicle as he could not repay the loan. The letter also states that he had received the notice of default and due to the complainant’s sisters marriage expenses he is not in a position to repay the loan and the vehicle can be sold and the proceeds can be adjusted towards the balance due and if there is any short fall will be paid and the balance of loan will be cleared. The complainant stated in the letter that the vehicle was given to his surety Mr. Harish Shetty for handing over to opposite parties . This letter (EX R 8) and the letter (EX R 6) is not disputed by the complainant as not given by either complainant or the surety. It is true there is suggestion in the interrogatories given by the complainant that these two letters are concocted but the opposite party denied it. The complainant not taken any steps to challenge the authority of the letters EX R 6 or EX R 8. It is also pertinent to note that the complainant has not given any complainant before the police station for the illegal seizure of the vehicle and produced any copy of the police records. So we conclude the complainant’s vehicle is not seized but surrendered by the complainant through the surety for selling and adjust the sale proceeds towards the dues.
3. The EX-R 9 is the statement of complainant loan account. The loan amount almost tallies with the balance shown as on 20.06.2010. As on 20.01.2012 the balance was shown as 222586/ including interest and penalty for non payment. An amount of Rs.1,70,004/ shown as credit presumably the sale consideration on 01.02.2012 and 06.02.2012 together. As per the statement there was still due of Rs. 55,309/. As per statement there is no need to pay any balance of sale consideration to the complainant. The complainant not came with any calculation or submission to establish the statement is wrong. The complainant had produced a receipt as payment made Rs. 10,000/ on 25.12.2010 but the same is reflected as payment received in the EX R 9. There is no evidence shown that, the opposite party has excess charged or illegally charged the complainant.
4. The other allegation of deficiency in service are, the opposite party misused the blank cheque, the RC not transferred in the name of the purchaser in auction sale, the criminal proceedings were instituted, are not effecting the main issue in the complaint. There was a balance in the loan account after sale consideration was taken into account and the opposite party used the blank cheque given by the complainant for recovering the amount due. However the said proceedings acquitted on the ground of no liability at the time of issue of the cheque. The opposite party produced the B extract in which it is shown from the date of 01.02.2014 it was changed in the name of Shrinivas G Gupta. The complainant not suffered any damages during the period between sale of the vehicle and 01.02.2014 as per records.
5. The opposite parties have produced the documents pertaining EX R 9 page 2 to EX R 11 of auction sale. We do not see any lapse in the procedure adopted in auction sale and the complainant not drawn our attention to any procedure lapse. It is contended by the complainant that before auction sale notice not issued to him for which opposite party assailed the contention by stating that when the vehicle voluntarily handed over for selling the question of serving notice will not arise and produced the procedure of auction sale document (EX R 9 page 2). So we do not see any lapse shown against the opposite party and we hold the opposite party is not liable for any deficiency in service and answered the point no 2 in the affirmative and as such the point no 3 in the negative.
POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following
ORDER
The complaint is dismissed. No order as to cost.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly typed by Member, revised and pronounced in the open court on this the 10th May 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore. Additional Bench, Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 : Sri. Vishwanath Rai
Documents marked on behalf of the Complainant:
Ex.C1: B Register Extract of vehicle No.KA.20.N.2081.
Ex.C2: Copy of the complaint in P.C.No.538/2012.
Ex.C3: Legal notice dated 21.9.2013.
Ex.C4: Postal receipt.
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr. Vasudeva, Officer of M/S. Shriram Transport Finance co.ltd
Documents marked on behalf of the Opposite Parties:
Ex.R1: Loan application dated 20.4.2010.
Ex.R2: Loan agreement dated 7.5.2010.
Ex.R3: Authorisation letter dated 7.5.2010.
Ex.R4: D.P. Note delivery cum waiver letter dated 7.5.2010.
Ex.R5: Demand promissory note dated 7.5.2010.
Ex.R6: Letter from Harish Shetty (guarantor) dated 21.9.2011
Ex.R7: The latest B Extract of the vehicle bearing reg.No.KA.20.N.2081
Ex.R8: Letter from complainant dated 19.9.2011.
Ex.R9: Statement of account.
Ex.R10: Valuation certificate dated 23.11.2011.
Ex.R11: three bids from Nadeem kureshi, T.H. Noushad, Osmundi.
Dated: 10.5.2017 MEMBER
