SMT.MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019 for an order directing the opposite parties to return the vehicle bearing No.KL-59-P-1823 Yamaha Ray-ZR Scooter to the complainant along with compensation and cost to the complainant for the deficiency of service and unfair trade practice on their part.
The case of the complainant in brief:
The complainant is an agriculturist and he had availed a vehicle loan cum hypothecation agreement with the OPs. Then the complainant purchased the vehicle Yamaha Ray-ZR with Reg. No.KL-59-P-1823 Scooter for a loan amount of Rs.66,700/-. The complainant executed a hypothecation over the vehicle was made till the full repayment of loan. The complainant purchased the scooter and to use the vehicle for his livelihood. He has paid the entire amount in 36 instalments to the OPs as per Rs.2682/-per monthly agreed instalments. But the OPs were not ready to give the receipt to the complainant. The complainant submits that he paid Rs.96,552/- to OP’s account through his bank account. But the OP’s furnished an account statement dtd.30/1/2020 for an amount of Rs.85,824/- was remitted by the complainant. On 17/10/2020 the OP with some hench men came to complainant’s house and attacked the complainant and forcefully taken the scooter from the custody of complainant without RC. Immediately the complainant filed a petition before Taliparamba DYSP and Taluk Legal Service authority also. But the authorities not take any action against the OP’s. They have took the custody of the vehicle without complying the legal formalities even before issuance of a notice. The act of OP’s the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OPs. Hence the complaint.
After filing the complaint notice issued to OP’s. 1st OP entered before the commission and filed his written version contending that the complainant has defaulted in paying the EMI and out of the 36 instalment to be paid only 32 instalment and he defaulted 4 instalment also. Moreover complainant agreed as per agreement, 2nd day of every month the EMI amount will be available in the complainant’s account for the account transfer of the EMI thereby executed an NACH agreement but this was not complied by the complainant. Then the complainant willingly surrendered the vehicle before the 1st OP on 22/10/2020 and for illegal gain he lodged a false complaint before SHO Alakode. Then the OP sold the vehicle on 10/11/2020. The complainant has not sustained any loss from the OPs. There was no deficiency of service and unfair trade practice on the part of OP’s. Hence the complaint may be dismissed.
On the basis of the rival contentions of both sides the following issues were framed for consideration.
- Whether there is any deficiency of service or unfair trade practice on the part of the opposite parties?
- Whether the complainant is entitled for any relief?
- Relief and cost.
The evidence consists of the oral testimony of complainant and he is examined as PW1 and Exts. A1 to A5 marked. From the side of OP’s no oral evidence adduced. No documents also marked on behalf of OP.
Issue No.1:
The Complainant has adduced evidence before the commission by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. In Exts.A1 to A5 marked on his part to substantiate his evidence also. In Ext.A1 is the original R.C and Ext.A3 is the Account statement issued by 1st OP from 19/12/2016 to 30/1/2020. In this statement clearly stated that the instalment period from 2/2/2017 to 2/1/2020. Instalment paid Rs.85,824/- principal paid Rs.56,559.70/-, interest paid Rs.29,264.30/- status: Active. In his evidence he deposed before the commission that “ Ext.A3 പ്രകാരം മുഴുവൻ തുകയും അടച്ചിട്ടില്ല എന്ന് പറഞ്ഞാൽ? 36 തവണയും അടച്ചിട്ടുണ്ട്. R.C വണ്ടിയിൽ ഇല്ലായിരുന്നു. വീട്ടിൽ വച്ചിട്ടുണ്ടായിരുന്നു. So the complainant fully paid the loan hypothecation instalments. But in version the OP states that the complainant has defaulted 4 instalments. The defaulted instalment is not proved by the OPs. Moreover the OP states that to sell the vehicle in auction on 3/11/2020 pre sale notice was given to the complainant and on 10/11/2020 the vehicle was sold. But no notice was given to the complainant and the original R.C is with the custody of complainant . As per the version and chief affidavit of OP he clearly states that the vehicle in auction on 3/11/2020 and pre sale notice given to complainant also. But the OP sold the vehicle on 10/11/2020 itself if it done by the OP is not in proper and legal, the sale itself is illegal, because the permitted time is not given to the complainant for answer the notice. Moreover no sale letteror third party witness produced before the commission to prove the sale transaction of the vehicle KL 59-P-1823 Yamaha Ray- ZR scooter.
In order to prove the case of the complainant, he produced Hon’ble Supreme court decision 1999 KHC 1091 and Hon’ble Supreme court citation in 2016 1 CO 1438. Justice Venkate Gopala Gowda, Justice Arun Mishra. In Muddasani Venkata Narasimha vs. Muddasani Sarojana and also produced Kerala State CDRC,Thiruvananthapuram Appeal No. 950/15 dtd.30/5/2018
As per Ext.A1, it clearly shows that the vehicle bearing No.KL-59-P-1823 Yamaha Ray- ZR scooter is belongs to the complainant. Without the permission of complainant and without original R.C the OP forced to take the possession of the vehicle in his custody. In OP’s side except the version and chief affidavit, no oral evidence was adduced before the commission to prove his case, the OP’s failed to do so. Under this circumstances we are of the considered view that the OP’s are directly bound to redressal the grievances caused to the complainant. So we hold that there is deficiency of service and unfair trade practice on the part of OP’s. Hence the issue No.1 found in favour of the complainant and answered accordingly.
Issue Nos.2&3:
The allegation in the complaint and material evidence before us , we come to a conclusion that there is deficiency of service and unfair trade practice on the part of OP’s. Hence the complainant is entitled to get the vehicle KL 59-P-1823 Yamaha Ray- ZR scooter in a road worthy condition to the satisfaction of complainant or to get the value of the vehicle(after depreciation) Rs.40,000/- along with Rs.7000/- as compensation for mental agony and difficulties occurred to the complainant and Rs.3000/- as litigation cost to the complainant. Hence issue Nos2&3 are also accordingly answered.
In the result the complaint is allowed in part directing the opposite parties jointly and severally liable to return the vehicle Reg.No.KL59-P-1823 Yamaha Ray- ZR scooter in a road worthy condition to the satisfaction of complainant or to refund the value of the vehicle(after deducting depreciation) of Rs.40,000/- to the complainant along with Rs.7000/- as compensation for mental agony and difficulties occurred to the complainant and Rs.3000/- as litigation cost within 30 days of receipt of this order. In default the amount of Rs.40,000/- carries 9% interest per annum from the date of order till realization. Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exts:
A1- Original R.C
A2-Receipt Acknowledgment(with objection)
A3-Account statement dtd.30/1/2020
A4- copy of petition to legal service authority
A5- copy of complaint to Taliparamba DYSP.
PW1-John Varghese- complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
