<br /> COMPLAINT FILED: 27.08.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 31st OCTOBER 2008<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.1891/2008<br /> <br /> <br /> COMPLAINANT Sri.Thippeswamy,S/o Chandrappa,Aged about 35 years,No.224, 4th Main,3rd Cross, Chamarajapet,Bangalore – 560 018Advocate – Sri.RameshchandraV/s.<br /> OPPOSITE PARTY Citi Financial Consumer Finance India Limited,No.1, Raheja Chancery,133, Brigade Road,Bangalore – 560 025.Represented by Manager.Advocate – Sri.M.H.Hidayathulla.<br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.7,00,000/- on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Complainant being the R.C owner of the vehicle KA-01-B-5884 availed the loan from OP to purchase the said vehicle to an extent of Rs.4,43,000/- repayable in a monthly installments of Rs.15,750/- EMI. OP collected 35 cheques from the complainant drawn on the Corporation Bank and encashed all the said cheques. Because of some financial difficulty complainant defaulted in paying two installments. Unfortunately OP with a highhandedness without causing the notice and demand seized the said vehicle on 30.08.2006 which is hypothecated under the hire purchase agreement and intended to sell the said vehicle for the recovery of the amount in due. As on that day complainant was in due of only Rs.2,50,000/- but the claim made by the OP is Rs.3,50,000/-. Schedule vehicle is worth of more than Rs.6,00,000/- and it was only the source of income for the complainant to maintain his family. Being fed up with the hostile attitude of the OP complainant even got issued notice to the OP on 30.11.2006. Again there was no response. Then complainant filed a suit at OS No.1733/2007 and obtained an injunction. With all that OP sold the said vehicle for a lesser price thereby caused both mental agony and financial loss to the complainant. Thus complainant felt deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the complainant failed to comply all the terms and conditions of the loan agreement executed by him under the hire purchase, he has become the defaulter. The allegations of the complainant that all the 35 cheques given by him were encashed by the OP is false, only 13 cheques were cleared rest of the cheques are bounced. The statement of the Bank speaks to the said fact. As on 30.08.2008 an amount of Rs.88,050/- was over due apart from the principal in all Rs.3,65,036/-. As per the hire purchase agreement OP has got a right to seize the vehicle in default of payment of the EMI. OP did intimate the complainant mentioning the amount in due and the action that is going to be initiated. Though complainant received the said letter but failed to make payment of the amount in due. Under such circumstances without finding any other way OP seized the said vehicle and then sold it for Rs.3,50,000/- and given the set off of the amount in due. So there is no deficiency in service of any kind on the part of the OP. Before complainant obtaining the injunction order OP has already sold the vehicle. So there is no contempt what so ever committed by the OP. The other allegations of the complainant are all false and frivolous. Complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant availed a loan of Rs.4,43,000/- to purchase his vehicle No.KA-01-B-5884 under hire purchase agreement repayable in an EMI of Rs.15,750/- in 35 installments. According to the complainant he did issued 35 cheques towards the said EMI and OP has encashed all those cheques. Unfortunately there is no proof to the said contention. On the other hand the defence set out by the OP and the documents, statements of the Bank produced by the OP goes to show that only 13 cheques are cleared and almost 15 cheques are dishonored for want of funds etc. Under such circumstances it can only be said that men may lie but not the documents. So the approach of the complainant in that regard rather does not appears to be fair and honest.<br /> <br /> 7. In another breath complainant admits that due to financial difficulty he defaulted in making payment of two installments. This contention is also against to the contents of the undisputed documents. As the complainant himself defaulted, OP invoked the terms and conditions of the hire purchase agreement wherein they have a right to seize the vehicle hypothecated to redress their grievance. In our considered view that act of the OP can’t be termed as deficiency in service. According to the complainant as on 30.08.2008 he was in due of only Rs.2,50,000/-. On the other hand according to OP complainant was in due of Rs.3,65,036/- and the defence of the OP finds corroboration with the contents of the said documents produced. So that contention of the complainant also appears to be baseless.<br /> <br /> 8. It is further contended by the complainant that when OP seized the vehicle with highhandedness, he got issued the notice on 30.11.2006. Copy of the notice is produced. On the other hand prior to that on 02.09.2006 only OP sent a letter to the complainant, which is produced at annexure-C. Wherein a claim of Rs.3,61,680/- is made and in default of payment within one week OP intimated the complainant that they will invoke the terms and conditions of the hire purchase agreement including that of seizer of the vehicle. What made the complainant to keep mum for more than three months, then cause notice on 30.11.2006 is not known.<br /> <br /> 9. It is further contended by the complainant that when OP seized the said vehicle with force and intended to sell it he filed a suit at OS No.1733/2007 and obtained the injunction restraining the OP from selling the said vehicle. According to OP before complainant could obtain the said injunction order he has already sold the said vehicle for Rs.3,50,000/-. This contention of the OP is not other wise denied by the complainant. Looking into the facts and circumstances of the case, though complainant is aware of many more material facts which are well within his knowledge, he failed to plead the same and suppressed certain facts. It is said he who seeks equity must do equity must come with clean hands. But here the approach of the complainant is other wise.<br /> <br /> 10. The fact that OP sold the said vehicle and then taken the sale proceeds to the account of the complainant towards due is borne out by the documents and the statement of accounts. When that is so, we find the present complaint is devoid of merits. Complainant failed to prove the deficiency in service. When complainant became the defaulter, OP invoked the terms and conditions of the hire purchase agreement.<br /> <br /> 11. On the perusal of the complaint allegations in our view it did not spell out a case of hiring of services and suffering from deficiency. Rather it discloses a case relating to settlement of account and the balance in due on the basis of the account. Under such circumstances we find the complainant did not fall within the ambit of sec.2 (1) (c) & (e) of the C.P Act. If the complainant is so advised he can file a comprehensive civil suit and redress his grievance if any. With these reasons we find it is not a fit case wherein complainant deserves the relief. Accordingly we answer point Nos.1 & 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 31st day of October 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> Vln* <br /> <br /> <br />