KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL 314/2011

JUDGMENT DATED: 29.9.2011

PRESENT

SRI.M.V.VISWANATHAN     : JUDICIAL MEMBER

The Manager,                                  : APPELLANT

T.V.S.Finance & Service Ltd.,

Noor Complex, IInd Floor,

Mavoor Road, Kozhikode.

(By Adv.S.S.Hussain & Adv.B.A.Rajeevan)

                         Vs.

1. Basheer.P.M.,                              : RESPONDENTS

     Mujeed Manzil Rahmath Nagar,

     P.O.Shrihagilu, Kasargod,

(By Adv.K.Radhakrishnan, Amicus curiae for R1)

2. The Manager, T.V.S.Finance & Service Ltd,

     Shop No.48, Singapore Shopping Complex,

     Opp. IBP Petrol Pump, Nullippady,

     Kasargod.

JUDGMENT

SRI.M.V.VISWANATHAN     : JUDICIAL MEMBER

            Appellant is the 1^st opposite party and respondents 1 and 2 are the complainant and 2^nd opposite party in CC.278/09 on the file of CDRF, Kasargod. The complaint was filed alleging deficiency in service on the part of the opposite parties in taking the hypothecated vehicle by  force and thereby causing financial loss and mental agony to the complainant.  Thus, the complainant claimed compensation of Rs.50000/- and also the  cost of the vehicle amounting 38000/-.

          2. Before the Forum below, Exts.A1 to A9 documents were marked on the side of the complainant and B1 to B4 on the side of the opposite parties.  On an appreciation of the facts, circumstances and evidence on record, the Forum below passed the impugned order dated 3^rd February 2011 allowing the complaint and directing the opposite parties to return the motor cycle (TVS victor GLX) bearing  reg.No.KL14 G-2504 of the complainant in the same condition when it was repossessed and on receipt of the vehicle, complainant shall pay the remaining installments.  Opposite parties are further  directed to reschedule the remaining installments after  deducting Rs.22634/-; without adding any additional finance charges; or overdue interest.  The fresh schedule of chart shall come into force with effect from the date of return of the motor cycle to the complainant.  In case of inability to return the motor cycle, then the opposite parties shall refund Rs.22634/- to the complainant that he remitted to the opposite parties.  There is no order as to costs.  Aggrieved by the said order, the present appeal is filed by the 1^st opposite party therein.

          3. When this appeal was taken up for final hearing,  there was no representation for the respondents 1 and 2.  This Commission was pleased to appoint Mr.K.Radhakrishnan as Amicus curiae for submitting the case of the 1^st respondent/complainant.  This Commission was pleased to hear the learned counsel for the appellant/1^st opposite party and the learned amicus curiae Adv.K.Radhakrishnan.  The counsel for the appellant/1^st opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He vehemently argued for the position that the complainant submitted consumer complaint by suppressing material facts.  It is also submitted that the complainant was a chronic defaulter in making repayment of the loan amount by way of installments.  It is also submitted that there is no deficiency in service on the part of the appellant/1^st opposite party as the subject vehicle was surrendered by the complainant/ loanee.  Thus, the appellant prayed  for setting aside the impugned order passed by the Forum below and also for dismissal of the complaint in CC.278/09.  The learned amicus curiae submitted that the 1^st respondent/ complainant remitted a total of Rs.22634/- by way of monthly installments and that the opposite parties forcibly took possession of the vehicle from the possession of the complainant/loanee and that the 1^st opposite party told the complainant that the vehicle has been sold to somebody else.  Thus, the complainant suffered mental agony and financial loss and thereby the learned amicus curiae requested for dismissal of the present appeal.

          4. Admittedly the 1^st respondent/complainant availed a loan of Rs.40000/- from the opposite party TVS Finance and service Ltd.  The aforesaid loan was availed for purchasing a motor cycle viz.TVS Victor GLX.  Ext.B3 vehicle sales invoice would show that the total invoice price of the said vehicle was Rs.43440/-.  Ext.B4 is the loan cum hypothecation agreement entered into between the complainant/loanee and the opposite party/financier. As per Ext.B4 agreement the financier sanctioned a loan of Rs.40000/- with finance charges of Rs.13209/-.  As per the agreement the complainant /loanee was bound to repay loan amount with finance charges by 36 monthly installments commencing from 10.3.07 and ending on 10.2.2010.  The  monthly installment(EMI) was fixed at Rs.1513/-.  It is admitted by the opposite party/financier that the complainant/loanee paid only 15 installments amounting to a total Rs.22634/-.  There can be no doubt about the fact that the complainant committed default in making payment of the monthly installments which were agreed by executing Ext.B4 loan agreement.  It can be seen that the complainant was a defaulter.  It can also be seen that the complainant/loanee failed to disclose the true facts regarding the loan amount  and the price of the vehicle in his complaint in CC.278/09.

          5. The definite case of the 1^st respondent/complainant is that the opposite party/TVS finance and services Ltd. took possession of the vehicle by force.  The opposite party has contended that the complainant surrendered the vehicle to the financier.  There is nothing on record to substantiate the contention regarding  surrender of possession of the vehicle by the complainant.  The facts and circumstances of the case would make it clear that the financier took forcible possession of the vehicle because of the  default committed complainant/loanee in making payment of the monthly installments.  Thus, by taking forcible possession of the vehicle, the opposite parties have committed serious offence of taking law into their hands.  It is now well settled that the financier is not expected to take forcible possession of the vehicle which was purchased with the financial assistance rendered by  the  financier.  The forum below can be justified in holding that there was deficiency in service on the part of the opposite parties.

           6. Admittedly the complainant/ loanee has been in use of the subject vehicle namly motor cycle TVS victor GLX Reg.No.KL14 G 2504.  The aforesaid vehicle was taken forcible possession by the opposite parties.  There can be no doubt that the complainant might have suffered mental agony and inconvenience on account of the forcible possession of the vehicle.  It is true that the complainant himself invited the aforesaid situation by defaulting payment of the monthly installments.  It is also admitted by the opposite parties that the complainant/loanee remitted 15 installments amounting to Rs.22634/-.  It is true that the complainant could ply the motor cycle for a period of 32 months .  At present, he is not in possession of the vehicle and at the same time he has also repaid a sum of Rs.22634/-   towards the loan.

          7. The learned counsel for the appellant/1^st opposite party admitted  the fact that the subject vehicle is not in the possession of the financier and they sold the vehicle to a prospective buyer. Thus, it is admitted by the appellant that the financier is not in a position to handover the subject vehicle to the complainant/loanee.   In such an  event the opposite party (financier) is to be burdened with the liability to refund the sum of Rs.22634/- which was remitted by the complainant towards the loan. 

          8. It is to be noted that the Forum below has taken a very lenient view in favour of the financier by not awarding any compensation for the deficiency in service.  The Forum below has also not awarded any cost against the opposite parties.  It is pertinent to note that the financier was enjoying the aforesaid sum of Rs.22634/- which was remitted by the complainant by way of installments.  The financier was enjoying the said amount during this period.  The complainant/loanee invited the mental agony and inconvenience by defaulting payment of the agreed installments
( EMI).  So, the impugned order passed by the Forum below is to be modified.  The opposite parties are directed to pay the said sum of Rs.22634/- within one month from the date of this judgment.  In all other respects, the impugned order passed by the Forum below is uphold.

          In the result the appeal is allowed  partly.  The impugned order passed by the Forum below is modified and thereby the opposite parties in CC.278/09 on the file of CDRF, Kasargode are directed to refund Rs.22634/- to the complainant  within one month from the date of this judgment, failing which the aforesaid amount will carry interest at the rate of 12% interest per annum from the date of the impugned order(3.2.11) in CC.278/09.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

          The amicus curiae Adv.Mr.K.Radhakrishnan will be given a fee of Rs.2000/- for the services rendered by him in disposing the present appeal.  The said fee will be disbursed from the Legal Aid Fund maintained by this Commission.

          M.V.VISWANATHAN   : JUDICIAL MEMBER

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