(Smt. D. Nirmala, President (FAC))
1. This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to release the vehicle ATUL Auto/GEM PAXX bearing No.AP 22 Y 1130 or pay an amount of Rs.1,02,520/- together with interest from March, 2012, to pay Rs.50,000/- towards loss of financial for seizing of the vehicle, Rs.30,000/- towards compensation for adopting unfair trade practice and deficiency of service, and Rs.20,000/- towards costs of the complaint.
2. That the husband of the complainant was purchased ATUL Auto/GEMPAXX bearing No.AP22Y 1130, model 2010 in the month of December 2010 for his livelihood. The costs of the vehicle is Rs.1,70,000/-. The husband of the complainant paid Rs.70,000/- towards down payment, for remaining balance amount of Rs.1,00,000/- including document charges obtained finance from OPs. In the month of December 2010 the OPs and complainant entered into agreement vide RAFFR0012100026. The OPs fixed 24 monthly installments @ Rs.5,420/- per month. The installments commence on 25-12-2010 end on 25-11-2012. The OPs also insured the vehicle through Reliance General Insurance Company. The complainant further submits that her husband has paid regularly from December 2010 to May, 2011 monthly installments as per the terms and condition of OPs. The OPs issued receipts and passbook to that effect. While matter stood thus the husband of the complainant was met in the road accident on 25-5-2011 the said vehicle was also damaged the next day he died. The complainant informed to the financier and insurer and the said vehicle shifted to Yadaiah Chary guarage, near Ashok talkies Mahabubnagar by paying Rs.20,000/- to advance for repairing of the vehicle. The OPs Surveyor and insurance company came to spot and assessed damage of vehicle.The complainant requested to the OPs and insurer to settle the matter and issue an amount of Rs.30,000/- for vehicle repair charges. The vehicle was kept in the guarrage of the said Mechanic. When the complainant approached the Mechanic in the month of April, 2012 for vehicle, he stated that in the month of March last week 2012 the OPs took away the vehicle from the guarrage. That the OPs seized the vehicle without informing and without giving notice to the complainant. Thereafter the complainant approached the OPs and requested to hand over the vehicle and she is ready to pay due installments after receiving of insurance amount. But the OPs instead of releasing the vehicle they are demanded entire future installments. The OPs insured the vehicle and they well known the matter. The insurance company also did not pay the insurance amount. The OPs did not release the vehicle till today. Such acts on part of the OPs amounts to unfair trade practice and deficiency of service. Hence the present complaint is field for the above said reliefs.
3. The OP.No.2 field his counter denying the allegation made in the complaint and stated that this OP.No.2 is engaged in the business of providing loan to customers for purchasing motor vehicles under Hypothecation agreement. The OP.No.1 is the revenue sharing party. This OP.No.2 provided financial assistance for a sum of Rs.1,00,000/- to the borrower (Mallesh Pujari) for purchasing ATUL/GEMPAXX bearing No.AP22 Y1130 under loan cum hypothecation agreement vide No.RAFFR0012100026 dated 7-12-2010. The agreement value Rs.1,30,080/- (Rs.1,00,000/- + Rs.30,080/- financial charges). The loan amount with financial charges to be paid in 24 equal monthly installments of Rs.5,420/-. The terms commenced from 26-12-2010 and end on 26-11-2012. The borrower had himself insured the vehicle with insurance company. This OP admits that the borrower paid six installments to the OP.No.1 under receipts on various dates but later defaulted in payment of subsequent installments. The death of the borrower (Mallesh) was not intimated to this OP. The vehicle damaged in an accident and in the month of may 2011 it was kept in Yadaiah Chary guarrage but without intimation to the this OP.No.2. The complainant had paid Rs.20,000/- as advance to the garage owner for repairing the vehicle and she incurred a sum of Rs.30,000/- for repairing the same is not correct. Under the terms of the loan cum hypothecation agreement the borrower is solely responsible for upkeep, repairs or loss of the vehicle and he is liable to pay and the installments irrespective of whether the vehicle is under repair, or stolen. This OP further submits that the oncoming to know about the lying the vehicle un-repaired in the garage of Yadaiah chary at Mahbubnagar this OP has taken the vehicle, Mustafa Denting and painting shop Mahabubnagar March, 2012 and got it repaired by spending a sum of Rs.26,000/- and shifted the vehicle this OP yard for safe keeping. The legal heirs of the deceased borrower had kept the vehicle in the garage for more than 10 months without taking proper care. This OP has taken the vehicle and got it repaired in order to mitigate the damage to the vehicle and the borrower as well as to safeguard their interest. This OP acted under the authority under the terms of the loan cum hypothecation agreement. There is no unfair trade practice and deficiency of service on part of this OP and the complaint is liable to be dismissed.
4. The OP-1 filed adopting the memo stating that he adopted the counter filed by OP-2.
5. During the enquiry, the complainant filed her affidavit evidence and got marked Exs.A-1 to A-11 and on the other hand the OPs filed their affidavit evidence and got marked Exs.B-1 to B-7 on their behalf.
6. The points for determination now are:
- Whether there is any deficiency on the part of the opposite parties in rendering service to the complainant as alleged?
(ii) Whether the complainant is entitled to the relief sought for by her?
(iii) To what effect?
7. The undisputed facts of the case are that the husband of the complainant was purchased the ATUL Auto/GEMPAXX bearing No.AP22 Y1130 model 2010 in the month of December. It is also admitted facts that the husband of the complainant availed loan from finance for Rs.1,00,000/- both OPs and complainant entered into the Hypothecation agreement vide No.RAFFR0012100026. It is further admitted fact that the borrower has paid 6 installments towards his loan amount.
8. It is the case of the complainant that her husband met in road accident on 25-5-2011 and died on the next day. The vehicle in question was also damaged, due to that the complainant has not paid the further installments. The Ex.A-4 to Ex.A-9 receipts passed by the OPs clearly reveals that the husband of the complainant paid 6 installments and Ex.A-11 is the FIR which reveals that the husband was died on 26-5-2011 in a road accident. When the vehicle in question was damaged immediately the complainant shifted the vehicle in question kept in the guarage by paying an advance amount of Rs.20,000/- towards repairing of auto. Thereupon the complainant requested the OPs and insurance company to settle the matter and issue an amount of Rs.30,000/- for vehicle repair charges. But the insurance company did not pay insurance amount. The complainant further pleaded that in the month of March the OPs took away from Yadava Chary guarage without giving information and any notice. On this aspect the learned standing counsel for the OPs contented that the vehicle in question has been kept in guarage for more than 10 months. So these OPs no other alternative in order to save the vehicle in question before becoming scrap. They shifted the from Yadava Chary guarage to Mustafa denting and painting work and repaired the said vehicle by spending Rs.25,000/-. To support his pleading the OPs filed the Exs.B-1 to B-7.
9. It is born out from the record from Ex.A-4 to A-9 that the borrower (P. Mallesh) paid only 6 installments i.e., 25-6-2011. Thereafter he met with an accident and died the next day. The vehicle was also damaged. Thereafter the complainant did not pay any installment and became defaulter. The Judgment reported in II (2013) CPJ 38 our Hon’ble State Commission held that “Under Hire Purchase Agreement it is the financier who is the owner of the vehicle and the person who takes the loan retains the vehicle only as a bailey/trustee, therefore taking possession of the vehicle on the ground of non payment of installment has always been upheld to be a legal right”. The case on hand also the borrower (P. Mallesh) paid only 6 installments later he met with an accident. There upon the complainant failed to pay any one installment to the OPs. In such circumstances the OP took away the vehicle is not an unfair trade practice or deficiency of service.
10. The above said reasons, the principles laid down the decisions and facts born out from the record that the complainant failed to establish the ground of deficiency against the OPs in rendering service. Therefore we hold that the complainant is not entitled any relief sought for by her. The point answered accordingly.
11. In the result, the complaint is dismissed. But no order as to costs.
