Andhra Pradesh

Nellore

CC/52/2016

Velluru Suresh Kumar, S/o Late Venu Gopal - Complainant(s)

Versus

Induslnd Bank Ltd., Rep. by its manager - Opp.Party(s)

N.Seenaiah

26 Jul 2017

ORDER

Date of filing       :  12-05-2016

Date of Disposal :  26-07-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Wednesday, this the 26th  day of JULY , 2017.

 

  PRESENT:  Sri V.C. Gunnaiah, B.Com., M.L, President(FAC)

                              Sri K.Umamaheswara Rao, M.A., B.L.,  Member.                                

                             Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M, Member

 

                             

C.C.No.52/2016        

Velluru Suresh Kumar,

S/o.Late Venu Gopal,

Hindu, aged about 35 years,

R/0.4^th street, Dycus Road,

N.B.T. Colony,

SPSR Nellore Dt.                                                              …  Complainant

 

                      Vs.

                                                                            

IndusIand Bank Ltd.,

Rep. by its Manager,

D.No.16/1007, 3^rd Floor,

Subba Reddy Shopping Complex,

Pogathota, Trunk Road,

Nellore – 524 001.                                                           … Opposite parties

 

This matter coming on 18-07-2017  before us for final hearing in the presence of Sri N.Seenaiah, Advocate for the complainant and Sri P.Sreenivasa Rao, Advocate for the opposite party and  having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

 

       ORDER                                                                                                                                                                                                                                                                       (By Sri K.Umamaheswara Rao, M.A., B.L., Member)

 

 

1.     The complainant filed this complaint under section 12 of Consumer Protection Act, prays the Hon’ble Forum to direct the opposite party to return the complainant’s vehicle or to replace the  new vehicle and to pay Rs.40,000/- towards damages for mental agony along with costs.

 

2.  The averments of the complaint in brevity are as follows:

 

       The complainant obtained two wheeler loan from the opposite party for an amount of  Rs.57,512/-   and purchased Bajaj Discover 125 BSIII vehicle vide loan agreement No.ANL00975H dated 07-02-2013. The said vehicle registration number is AP26UCTR6635. The complainant paid an amount of Rs.20,000/- to the opposite party towards down payment of the said vehicle.  The complainant agreed to pay the loan amount in 24 installments. But, the complainant paid 7 installments only by way of deducting the amount from his account i.e., from Punjab National Bank.  Subsequently, the complainant met with road accident for which he did not pay the installments amounts regularly for a period of 3 months.  Further, the complainant regularly paid 16 installments to the opposite party and obtained the receipts. The complainant submits that except one installment, he paid all the installments to the opposite party, but the opposite party without hearing the complainant’s words forcibly took his vehicle alleging that the complainant not paid the installment and sold it to the 3^rd parties by conducting the auction and thereby violating the rules.  Later, the complainant sent a legal notice on 21-04-2016 to the opposite party through his counsel but the opposite party received the same and did not give any reply.  So, the acts of the opposite party come under the purview of deficiency of service on the part of opposite party.  Hence, this complaint.

 

3. The brief facts of the counter/written version are as follows:

  The opposite party submits that all the allegations made in the complaint are all false, frivolous and incorrect. The opposite party admitted the complainant’s two wheeler loan transaction but they denied the payment of Rs.20,000/- to the opposite party towards the down payment of the vehicle.  The opposite party sanctioned the loan to the complainant an amount of Rs.52,512/- on 07-02-2013. As per the loan agreement, total installments of the said vehicle are 24 installments, which commences from 07-02-2013 to 07-02-2015.  The opposite party states that as per the terms of agreement, complainant has to pay the installment amount on or before 7^th of every succeeding month, but, the complainant never paid within time.  Further, the complainant paid 7 installments by way of deducting the amount from complainant’s account i.e., from Punjab National Bank.  The opposite party states that they have no knowledge about the accident of complainant. The opposite party submits that the complainant has to pay the installments amount for 4 months only. The opposite party denied that the complainant regularly paid 16 installments to the opposite party and obtained receipts from the opposite party.   Due to non-payment of installments, the opposite party on 19-11-2014 repossessed the motor cycle and sold it on 30-1-2015 to the 3^rd parties by conducting the auction and adjusted the sale proceeds   of Rs.17,250/- to the loan account of the complainant.  The opposite party denied that the complainant except one installment, complainant paid all installments to the opposite party, but the opposite party without hearing the complainant’s words forcibly took complainants vehicle and sold it to the 3^rd parties by conducting the auction and thereby violating the rules.  The opposite party submitted that the complainant is not a consumer and he is not come under the purview of Consumer Protection Act.  Hence, there is no deficiency of service for which the complainant is not entitled to claim any damage against the opposite party. So, the Hon’ble Forum may be pleased to dismiss the vexatious complaint with exemplary costs.

 

4.   After admission of the complaint, notice was issued to opposite party and thereafter filed their written version.

 

5.  The complainant filed his affidavit on 21-09-2016 as PW1 in support of his case and got marked documents as Exs.A1 to A7, whereas the opposite party filed their affidavit on 14-12-2016 as RW1. In support of their case, the opposite party got marked documents as Exs.B1 and B2 and also filed their written arguments.

 

6.  Heard arguments of the complainant and opposite party and perused the pleadings, the documentary evidence placed on record and considered written arguments of both parties filed.

 

 7.      The points that arise for determinations are:

       1) Whether there is deficiency in service on the part of the

           opposite party as pleaded?

        2) Whether the complainant is entitled for the reliefs sought for?

        3) To what relief?

 

POINTS 1 AND 2:    As per the pleadings and evidence on record, we can understand that the complainant to purchase two wheeler vehicle obtained Rs.57,512/- loan amount from the opposite party  on 7-2-2013. The loan period commenced from 7-2-2013 to 07-02-2015 and the complainant has to pay the loan amount within 24 installments.  As per the loan hypothecation agreement, the complainant has to pay monthly EMI Rs.2188/- to the opposite party on or before 7^th of every succeeding month.  In this case, the complainant stated that he paid Rs.20,000/- to the opposite party towards the down payment of vehicle but to prove the same the complainant did not file any documentary evidence.  Further, the complainant states that he paid 16 installments regularly to the opposite party for which he did not file any documentary proof.  But, the opposite party filed Ex.B1 statement of account copy which proves the complainant’s monthly installments amount.  In this case, the opposite party states that the complainant failed to pay the June, August, October and November, 2014 installments amount of Rs.8752/- including penal interest.  To prove the same, the opposite party filed Ex.B1 i.e., statement of account copy.  The complainant states that the opposite party seized the vehicle inspite  of  due single installment  but to prove the same the complainant did not file any documentary evidence.  In this case, the OP repossessed the motor cycle from the complainant on 19-11-2014 by issuing registered post along with intimation to the Station House Officer, 5th town Police Station, Nellore.  Later on 30-1-2015, the opposite party conducted the auction of the complainant’s vehicle to recover the due amount by following the due procedure and adjusted the sale proceeds of Rs.17,250/- to the loan account of the complainant. The complainant is still due of an amount of Rs.2,474-64Ps. to the opposite party as per Ex.B1. In this case, the complainant did not deny the Exs.B1 and B2 documents.   The complainant stated that due to road accident, he unable to pay the three months installments.  In fact, if any person obtained the loan from the bank or institution it is the bounden duty on him to pay monthly EMI/installment to the authorities.  So, the complainant cause for non-payment of installment to the bank is not tenable. The complainant is still due an amount of     Rs.2,474-64ps. to the opposite party as per Ex.B1.  In this case, if the complainant really got intention to pay the installments to the opposite party, there is a gap of 43 days i.e., from the date of vehicle seizer to till the date of auction.  But, the complainant failed to pay the four months installments amount of Rs.8,752/- to the opposite party during the said period, for which, the opposite party seized the vehicle as per hypothecation agreement and auctioned the same for recovery of balance amount, as per Law.  So, there is no deficiency in service on the part of the opposite party. Moreover, our Apex court discussed the relationship of financier and loanee in a case reported in SLP.No.5302/2012 in Suryapal Singh Vs. Siddha Vinayak Motors and another. In this case, their lordships held that the hire purchase agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee/trustee, therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financier.

            Hence, in view of the above discussion and our Hon’ble Apex Court decision, we are of the view that there is no deficiency of service on the part of opposite parties. So, we answered the point accordingly.

POINT NO.3: In the result, the complaint is dismissed without costs.

Typed to dictation to the Stenographer, transcribed by her and corrected and pronounced by us in the Open Forum this the 26th day of JULY, 2017.    

             Sd/-                                 Sd/-                                  Sd/-                  

        MEMBER                          MEMBER                       PRESIDENT (FAC)

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

21-09-2016

:

Velluru Suresh Kumar, S/o.late Venu Gopal, Hindu, aged about 35 years, Vehicle owner, residing at 4th street, Dycus Road, NBT Colony, SPSR Nellore Dt.

 

WITNESSES EXAMINED FOR OPPOSITE PARTY:

 

RW1

14-12-2016

Kameswara Rao, S/o.Demudu, Hindu, aged 36 years, Product Executive, IndusInd Bank Limited, D.No.16/1007, 3rd Floor, Subba Reddy Shopping Complex, Pogathota, Trunk Road, Nellore.

                                                                         

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	10-11-2012	:	Quotation issued by M.G. Brothers Automobile (P) Ltd., Nellore in the name of K.Naveen.
Ex.A2	04-02-2013	:	Photostat copy of the temporary certificate of registration stands in the name of the complainant.
Ex.A3	02-02-2013	:	Photostat copy of Motor vehicle Insurance cover note issued by Oriental Insurance Co. Ltd., stands in the name of the complainant.
Ex.A4	-	:	Photostat copy of the statement of account period the period from 18-08-2010 to 10-09-2015 issued by Punjab National Bank stands in the name of the complainant.
Ex.A5	21-09-2013 19-10-2013 26 -   -2014	:	Three original receipts for Rs.2,650/-, Rs.2,200/-  and Rs.2,620/- respectively issued by the opposite party in favour of the complainant.
Ex.A6	21-04-2016	:	Office copy of the legal notice got issued by the counsel for the complainant to the opposite party along with regd.post receipt.
Ex.A7	-	:	Postal acknowledgement.

 

EXHIBITS MARKED FOR OPPOSITE PARTY:                         

 

Ex.B1	-	:	Attested copy of statement of account issued by the opposite party.
Ex.B2	19-11-2014	:	Attested copies of Repo Kit along with authorization, letters (two in nos.), and repossession inventory list.

 

                                                            Id/-

                                                               PRESIDENT (FAC)

 

Copies to:

1) Sri N.Seenaiah, Advocate, Nellore.

2) Sri P.Sreenivasa Rao and Smt.P.Ushasree, Advocates, Muthyalapalem,

    Nellore.

 

Date when order copies were issued: