KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 211/2015
JUDGMENT DATED: 27.03.2019
(Against the Order in C.C. 195/2011 of CDRF, Thiruvananthapuram)
PRESENT :
SRI. T.S.P MOOSATH : JUDICIAL MEMBER
SRI. RANJIT. R : MEMBER
APPELLANTS:
- Shriram Transport Finance Company Limited, Registered Office, 123 Angappa-Nickon Street, represented by its Power of Attorney Arun. M.
- Branch Manager, Shriram Transport Finance Company Ltd., 4th Floor, Capitol Centre, Statue, Thiruvananthapuram represented by its Power of Attorney Arun. M.
(By Adv. Narayan. R)
Vs.
RESPONDENT:
R. Chandran, 6/528, Roadarikathu Puthen Veedu, Venniyoor, Venganoor P.O, Thiruvananthapuram-695 523.
JUDGMENT
SRI. RANJIT. R: MEMBER
The appeal is filed against the order dated 31.10.2014 in C.C. No. 195/2011 of Consumer Disputes Redressal Forum, Thiruvananthapuram directing them to refund Rs. 66,044/- with 8% interest from the date of complaint along with Rs. 5,000/- as compensation.
2. The case of the complainant is that he had availed a loan of Rs. 3,25,000/- from the 2nd opposite party to purchase a lorry bearing No. KL-01 F-3974 on 10.03.2007 and that the said amount with interest is to be repaid in 48 monthly installments. The price of the vehicle was Rs. 7,50,000/- and that the complainant purchased the vehicle for earning livelihood. The complainant has remitted Rs. 2,37,044/-. Meanwhile the complainant’s daughter passed away and the matter was informed to the opposite parties. On their insistence the complainant surrendered the vehicle on 19.07.2010 and that on 23.07.2010 the auction was conducted. The opposite parties informed the complainant that they sold the vehicle at Rs. 3,50,000/-. Thus the complainant has paid a total amount of Rs. 5,87,044/-. The opposite parties have collected an excess amount of Rs. 1,67,044/- from the complainant. Though the complainant approached the opposite parties and demanded repayment of excess amounts, no positive action has been taken. A lawyer’s notice was sent but there was no reply. The action of the opposite parties amounts to unfair trade practice and deficiency of service. Hence the complaint to direct opposite parties to furnish the details statement of accounts regarding the loan availed by the complainant, to produce the document of auction sale showing the amount received by selling the vehicle and direct the opposite parties to repay the excess amount of Rs. 1,67,044/- together with compensation and costs.
3. Opposite parties filed written version denying the case of the complainant. Opposite parties are a company registered under the Companies Act and is a non-banking finance company under the control of the RBI. The complainant had availed a loan of Rs. 3,25,000/- on 05.03.2007 for purchasing a lorry after executing loan agreement. The amount has to be paid within 48 monthly installments @ 13% interest per annum. For the first 16 months the EMI was Rs. 13,000/-, the next 16 installments were Rs. 11,560/-, the next four were Rs. 8,470/-, the next 11 were Rs. 7,720/- and the final to be paid was Rs. 7,460/- totaling to Rs. 5,21,000/-. This amount is to be paid without default as per the EMIs schedule, the failure of which would give rise to 3% per month penal interest. The complainant was a chronic defaulter of the loan installments from the initial stage itself. Though repeated reminders were sent, the complainant never cared to repay the amounts or rectify the defaulted installments. Thus the complainant was informed that the opposite parties are initiating legal proceedings. At that juncture, the complainant surrendered the hypothecated vehicle on 23.07.2010. The vehicle was not in a saleable condition due to wear and tear caused by the rash and negligent use of the same. Finally it was sold in the month of October 2010 for an amount of Rs. 3,50,000/-. At the time of surrender Rs. 4,59,320/- was due to the opposite parties as installment arrears excluding the penal charges. The complainant has no right whatsoever to claim any reimbursement from the opposite parties. As of 18.08.2011 an amount of Rs. 86,740/- is due from the complainant to the opposite parties and that no amount in excess has been collected. There is no deficiency in service or unfair trade practice and hence prayed for dismissal of the complaint.
4. Evidence in the case consisted of Ext. P1 to P9 marked on the side of complainant and Exts. D1 to D6 on the side of opposite parties. Complainant did not tender evidence while the opposite parties’ authorized officer had tendered evidence as DW1.
5. The lower forum on the basis of the materials produced found that though the complainant surrendered the vehicle and the auction sale was done by the opposite parties on 23.07.2010 it is the bounden duty of the opposite parties to furnish details of auction sale and also belated payments made by the complainant and only then the delayed payment charges and the authenticity of the auction sale can be assessed. Non-furnishing of the above documents would create a cloud to the extent of which the lower forum found deficiency of service on the part of the opposite parties and concluded that the opposite parties have received an amount of Rs. 66,044/- more from the complainant than the agreed receivable amount of Rs. 5,21,000/-. The forum on such conclusion had passed the impugned order directing the opposite parties to refund Rs. 66,044/- with 8% interest along with compensation of Rs. 5,000/-.
6. The learned counsel for the appellant reiterating the contention in the version urged that the complainant was a chronic defaulter of the loan from the initial stage itself and at the time of surrender an amount of Rs. 4,59,320/- was due to the opposite parties as installment arrears excluding the penal charge. The vehicle fetched only Rs. 3,50,000/- in auction and as on 18.08.2011 an amount of Rs. 86,740/- was due from the complainant and hence complainant has no right whatsoever to claim reimbursement from the opposite parties.
7. As per the loan agreement the loan amount Rs. 3,25,000/- was to be repaid in 48 monthly installments, that the first 16 installments were fixed at Rs. 13,000/- each totaling to Rs. 2,09,600/-, the next 16 installments were fixed at Rs. 11,560/- each totaling to Rs. 1,84,960/-, the next 4 installments were fixed at Rs. 8,470/- each totaling to Rs. 38,880/-, the next 11 installments were fixed at Rs. 7,720/- each totaling to Rs. 84,920/- and the final to be paid was Rs. 7,640/-, that as per the terms of contract between the parties the amount of Rs. 3,25,000/- will carry interest at the rate of 13% per annum till the repayment of the entire amount, that the insurance premium to be paid for the vehicle was also availed as loan by the complainant and the same was also repayable along with the loan amount, thus the total amount repayable by the complainant was Rs. 5,21,000/-, if the installments were paid without default.
8. Admittedly complainant availed a loan of Rs. 3,25,000/-. Opposite party has collected an amount of Rs. 5,87,044/- before the closure date. The total agreed repayment amount as on closure date comes to only Rs. 5,21,000/-.
9. True as on 10.07.2010 complainant should have paid an amount of Rs. 4,72,040/- to the opposite party (if there was no default) but the complainant paid only Rs. 2,37,044/- to the opposite party. The opposite parties should have got penalty for the defaulted amount as per the agreement. But at the same time, the complainant has surrendered the vehicle on 19.07.2010 and the opposite party has auctioned it on 23.07.2010 and they fetched Rs. 3,50,000/- in auction. They received Rs. 3,50,000/- in lump sum. Hence opposite party could compensate their loss by way of penalty and other charges. On the other hand the complainant who had purchased the vehicle on 10.03.2007 for a total price of Rs. 7,50,000/- had to pay Rs. 2,37,044/- to the opposite party and also had to surrender his vehicle to the opposite party because of his financial constraints and the opposite party in turn had received Rs. 5,87,044/- from the complainant. As found by the district forum, the opposite party has not given oral or documentary evidence to show the manner in which the delayed payments charges or other charges calculated nor has opposite party furnished the details of auction sale nor they furnished the loan outstanding as per the reducing balance method from the date of payment. The lower forum in this circumstance has rightly concluded that there is substance in the contention of the complainant and passed the impugned order. There is nothing to interfere against this reasonable order.
10. However the district forum while awarding refund of the amount with 8% interest, also ordered Rs. 5,000/- as compensation. We find that the order of compensation to the tune of Rs. 5,000/- is bit high especially since the forum awarded interest at 8% on the refund amount. We hold that an amount of Rs. 2,500/- will be a just and fair compensation to be ordered in this circumstance.
In the result, appeal is partly allowed. While upholding the order of the lower forum to refund Rs. 66,044/- with 8% interest, we modify the amount of compensation to Rs. 2,500/-.
Amount of Rs. 25,000/- deposited by the appellant as a condition precedent for filing the appeal is to be released to the complainant on his application to be adjusted/credited towards the amount ordered above and balance amount with interest, and compensation amount, is to be paid by the opposite party to the complainant within one month from the date of receipt of the order.
Parties are directed to suffer their respective costs.
T.S.P MOOSATH : JUDICIAL MEMBER
jb RANJIT. R : MEMBER
