BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENA KUMARI .A : MEMBER
SMT. S.K. SREELA : MEMBER
C.C.No. 47/2008 Filed on 14/03/2008
Dated: 16..02..2011
Complainant:
Sophia, A.S.Manzil, 8 Mission Colony, Perumkulam, Manaboor – P.O., Attingal, Thiruvananthapuram.
(By Adv. R. Gopinathan)
Opposite party:
Branch Manager, State Bank of India, Attingal Branch, Attingal, Thiruvananthapuram.
(By Adv. P. Retnakaran)
This O.P having been heard on 23..06..2010, the Forum on 16..02..2011 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that, complainant availed loan from the opposite party for the purchase of two Autorickshaws vide loan A/c No. 300811520038, that the said Autorickshaws (Vikram Autos) were not passenger friendly due to horrible sound, that from the said Autorickshaws adequate income is not generated to meet the repairing expenses and running cost, that complainant is put to face utter financial crisis, that bank is having a lien over the vehicle and if the loan amount is not repaid, the bank has the legal right to take back the vehicle and set off the loan amount to the extent of value of the vehicle, that the vehicle could not be sold due to hypothecation of the vehicle with the opposite party, that if opposite party release the hypothecation the complainant can sell the vehicle and remit the sale proceeds against the loan account thereby the liability of the complainant can be curtailed to a great extent, that since the Vikram Autorickshaw is not suitable for generating income so as to remit loan amount, complainant could not remit the loan amount. Hence this complaint to direct opposite party to take back the vehicle and set off the outstanding debts of complainant or to release the hypothecation so as to enable the complainant to sell the vehicle and remit the sale proceeds against the loan amount and to absolve the complainant from the liability along with payment of compensation.
2. Opposite party filed objection contending inter alia that the complaint is not maintainable either in law or on facts, that complainant has sought a loan under 'Transport Operator Scheme' to purchase two Autos, that the intention was profit motive and not for livelihood, that the road worthness passenger friendliness and confortability of the vehicles are to be evaluated by the complainant and not by the bank, that if the efficiency of the vehicle is diminished due to manufacturing defect, the complainant could have very well proceeded against the manufacturer of the vehicles and could have recovered damages under the Consumer Protection Act, that instead the complainant come forward and accusing the opposite party, that no proper installments have been paid to the bank towards the loan amount, that the complainant is callous and erring and committed breach of agreement with bank in paying the loan amount which now due to periodical non-payment mounted in arrears, that complainant utilised the whole income derived by plying the vehicles for her own use and welfare, that the bank has no obligation to take back the vehicle, that the bank has right to claim the dues from the complainant, that no coercive steps have been taken to realise the amount by the bank, that the complainant is reluctant to pay off her debt, that complainant is not entitled to get any relief. Hence opposite party prayed for dismissal of the complaint.
3. The points that arise for consideration are:
Whether there is deficiency in service on the part of opposite party?
Whether the complainant is entitled to compensation?
In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P3. In rebuttal, opposite party has not filed proof affidavit. Opposite party has produced 5 documents on petition filed by the complainant.
4. Points (1) & (ii): Admittedly, complainant availed vehicle loan from the opposite party for the purchase of two Autorickshaws namely Vikram Auto vide loan A/c No. 300811520038. It has been the case of the complainant that she had purchased the said Autorickshaws as a source of her livelihood with the help of the bank loan. It has also been the case of the complainant that the said vehicles were not passenger friendly due to horrible sound that it had to be repaired every now and then, that it had become useless and hence she could not repay the loan and resulted in mounting arrears of the loan amount. It is to be noted that this complaint has been filed by the complainant without figuring the manufacturer of the vehicle in the party array, though the allegation remains that the vehicles purchased by her was not passenger friendly due to 'horrible sound' and other inconveniences which caused it to be repaired every now and then. That means the case of the complainant is such that she could not repay the loan amount due to the vehicles being defective. In this context it should be mentioned that if the vehicles in dispute were defective, it should have proceeded against the manufacturer / dealer of the vehicle in dispute, and it should be the bounden duty of the complainant establish with cogent evidence that the vehicles bought by her were defective. Further complainant ought to have disclosed the nature of assurance of the vehicle if any, given by the dealer / manufacturer and its warranty and other terms and service conditions offered by them. Complainant has never mentioned those aforesaid aspects in the complaint nor has she proceeded against the manufacturer / dealer of the vehicles nor has she brought the present position of the vehicle by expert opinion. Without pleading and establishing the aforesaid aspects in the complaint against the manufacturer / dealer, she has attempted to proceed this complaint against the Bank which had advanced loan to purchase the said vehicles only. Bank has nothing to do with the defects or any other aforesaid aspects of the vehicle sold by dealer / manufacturer. Bank has produced documents regarding the copy of the agreements of loan, and hypothecation, the copy of the letter of arrangement, the terms and conditions, and the statement of account. Undisputedly complainant had availed the loan of Rs. 2.28 lakh from the opposite party bank and purchased two Autorickshaws. The vehicles in dispute are still with the complainant. If the said vehicle were having manufacturing defects the complainant would have definitely proceeded against the manufacturer / dealer of the vehicle and would have got the defects rectified. In this case complainant never proceeded against the manufacturer / dealer. Though complainant had purchased the vehicles in the year 2006, she filed this complaint in 2008. The very stand of the opposite party is that generally this kind of vehicles could be used without repair and replacement of parts efficiently for a continuous period of 2 years, the bumper income derived through its use could be saved in toto barring the driver's salary and payment of minimum tax and insurance. It is submitted by the opposite party that even in the vehicles' hey-day period no installments have been paid to the bank towards loan amount. It is further argued by opposite party that the complainant is callous and erring and committed breach of agreement with the bank in paying the loan amount, which now due to periodical non-payment, mounted in arrears. Opposite party says further that lack of periodical up-keep and maintenance of the vehicle, its value has diminished considerably and even if it is auctioned at this stage, the amount thereby collected will not surface portion of the arrears. It is further submitted by the opposite party that Bank has no role to up-keep the vehicle in good condition. Bank has only a lien on the vehicle, Bank has never demanded collateral security. If the bank releases hypothecation nothing left to realise the huge dues. It is further submitted by the opposite party that if the complainant is ready to offer collateral security sufficient to meet debt amount, the bank has no hesitation to release hypothecation. It is argued by the opposite party that complainant had availed a loan of Rs. 2,28,000/- without any collateral security under transport operator scheme from the opposite party Bank, but she had paid Rs.20,000/- only towards principal and interest. Complainant has never furnished any material to prove otherwise. In view of the foregoing discussion and evidence available on records we are of the opinion that Bank has nothing to do with the issue regarding manufacturing defect of the vehicle in dispute. Without figuring manufacturer / dealer of the vehicle in party array we find complainant has no locus standi to file this complaint against the opposite party. Complainant failed to establish deficiency in service on the part of opposite party. Complainant has no substance which deserves to be dismissed.
In the result, complaint is dismissed. Both parties are left to bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 16th day of February, 2011.
sd/- G. SIVAPRASAD : PRESIDENT
sd/- BEENA KUMARI .A : MEMBER
ad. sd/- S.K. SREELA : MEMBER
C.C.No:47/2008
APPENDIX
I. Complainant's witness:
PW1 : Sophia
II.Complainant's documents:
P1 : Copy of RC Book
P2 : " "
P3 : " Advocate notice dated 28/7/2007
Opposite party's witness : NIL
Opposite party's documents : NIL
sd/- PRESIDENT
