KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANNTHAPURAM APPEAL NO.54/08 JUDGMENT DATED30.9.09 PRESENT JUSTICE SHRI.K.R.UDAYABHANU -- PRESIDENT SMT.VALSALA SARANGADHARAN -- MEMBER Rafeeque, S/0 Ali, Kakkattil House, Mill Mukku, Arinchermala P.O, -- APPELLANT Wayanad. (By Adv.M.V.Paulose) Vs. 1. Felics, Manager, Friends Motors, Mananthavady, Wayanadu. 2. Manager, -- RESPONDENT Manappuram General Finance & Leasing Ltd., Kalpetta, Wayanad. 3. Manager, Manappuram General Finance & Leasing Ltd., Thrissur. JUDGMENT JUSTICE SHRI.K.R.UDAYABHANU,PRESIDENT The appellant is the complainant in CC.25/06 in the file of CDRF, Wayanad. The Forum has directed the opposite parties/Financier to absolve the complainant from the liability of Rs.27,200/-. Not satisfied with the above order the complainant has filed the appeal. 2. The case of the complainant is that he purchased a Yamaha Motor Cycle from the first opposite party/Dealer on 9.11.04 after exchanging the Motor Cycle owned by him. A sum of Rs.6,000/- was valued for the old Motor Cycle. In the exchange mela, it was offered that on payment of an additional amount of Rs.7,000/- the new Yamaha Motor Cycle of the value of Rs.31,413/- will be given to the complainant and the balance will be arranged through finance by the dealer. Accordingly, he exchanged the vehicle and paid Rs.7,000/- and 5 signed cheque leafs. Accordingly the new vehicle was given to the complainant. He paid a sum of Rs.4,000/- towards Road Tax, Registration and Insurance. The repayment chart and R. C book as promised was not handed over. In January, the vehicle was stolen from the possession of the complainant by the opposite parties. On 22.9.05 he received a notice from the financier mentioning that the Bike has been taken possession and the same has been sold for sum of Rs.20,000/- and the balance due would be Rs.27,200/-. It was also informed that if the amount is not deposited legal steps will be taken. On enquiries at the office of the third opposite party he was told that the loan amount was Rs.25,000/- and the balance deducting the sale price of the vehicle would be Rs.27,200/-. The first opposite party dealer had made the complainant to believe that the only balance amount after initial amounts paid ie. Rs.25,000/- will have to be arranged through Finance. He was made to sign in agreement papers wherein the amounts are not mentioned. He has sought for the return of the initial amount paid by him ie. Rs.6,654/- and Rs.50,000/- as compensation. The first opposite party/the dealer has denied any involvement in the Finance availed by the complainant from the second and third opposite parties. The correct price of the vehicle was Rs. 32,990/-. The opposite parties 2 and 3 the Financiers have filed a joint version mentioning that the complainant had availed a loan of Rs.25,000/- hypothecating the vehicle. The entire loan amounts had to be paid in equal monthly instalments of Rs.1,206/- in 24 instalments. The last 6 instalments are to be at the rate of Rs. 1,131/-. The complainant did not remit any instalments and the vehicle was seized by the opposite parties as stipulated in the agreement. The vehicle was sold in public auction. The sale price was adjusted towards the loan account. The balance would work out Rs.27422/-. The complainant had issued a cheque for the said amount, which was returned unpaid for the reason, funds insufficient. The opposite parties have filed a complaint under Section 138 N.I Act before the JFCM Court, Thrissur and the same is pending. It is only to escape from liability that the present proceedings have been initiated. The evidence adduced consisted of the testimony of PW1, OPW1, A1 to A7 and B1. OPW1 is the Manager of the first opposite party/dealer. It is seen from the evidence adduced that the vehicle was seized after the first instalment was not remitted. The exact date of seizure is not mentioned by the Financiers. It is seen from Ext.B1 hypothecation agreement that the value of the new vehicle is Rs. 32,990/- and that the complainant had made a down payment of Rs. 7990/-. The value of the old vehicle fixed was Rs,6000/-. It is not disputed that the complainant has also remitted a sum of Rs.4000/- towards Registration, Tax and Insurance. The instalments are to be paid from 30.11.04. Evidently, the first instalment was defaulted and the vehicle was seized without notice. The same was sold also. After adjusting the sale price, opposite party 2 and 3 the Financiers are claiming a sum of Rs.27,200/- and also initiated Section 138 N.I. Act proceedings. It is the grievance of the complainant that he barely used the vehicle for just more than one month and without notice the vehicle was seized and sold. The above action of opposite parties 2 and 3 is illegal as well as un-ethical. The Forum below rightly absolved the complainant from the liability of Rs.27,200/-. The complainant has remitted a sum of Rs.7990/- as down payment as is seen from Ext.B1 Hypothecation agreement. The fact that he remitted Rs.4000/- for Registration, Tax etc. is not disputed. His old vehicle was valued at Rs.6000/- and altogether the complainant has spent a sum of Rs.17990/-. The version of PW1 that he was made to sign in agreement papers wherein sums are not mentioned and that the above papers were not given to him appears to be true, as nothing was brought out in the cross-examination to discredit the above version. Of course, the Financier also would have occurred some losses as the amount advanced ie.Rs.25000/- was not paid back as no instalments were paid. All the same, we find that the action of the Financiers in seizing the vehicle and selling the same without notice is certainly illegal. In the circumstances, we direct the opposite parties 2 and 3 to pay a compensation of Rs.8000/- to the complainant and also cost of Rs.2000/-. The amounts are to be paid within 2 months from the date of receipt of the copy of this order failing which the complainant would be entitled for interest at 12% on the amount of Rs.8000/- from the date of this order. The order of the Forum absolving the complainant from the liability of Rs.27,200/- is also sustained. The appeal is allowed in part as above. The office will forward the copy of this order and the Lower Court Records to the Forum urgently. JUSTICE K.R.UDAYABHANU -- PRESIDENT VALSALA SARANGADHARAN -- MEMBER
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