KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.35/2012
JUDGMENT DATED : 28.09.2012
PRESENT:
SMT. A. RADHA : MEMBER
Shriram Transport Finance Co. Ltd.,
1st Floor, Thalangara Gate,
Opp.IBP. Petrol Pump,
Nullipady, Kasargod,
Represented by its Branch Manager. : APPELLANT
(By Advs. Pramod Chandran & Raj Mohan C.S.)
Vs
Joseph D’Soza, S/o Danial D Souza,
R/at “Everest Mansion”
Kayyar P.O., Kayyar. Uppala via,
Kasargod. Dist. : RESPONDENT
(By Adv. S. Ajith)
JUDGMENT
SMT. A. RADHA : MEMBER
The order of the CDRF, Kasargod in CC No. 180/2010 is challenged by the opposite party in this appeal. The Forum below directed the opposite party to pay Rs.8,17,000/- failing which the opposite party is liable to pay interest @ 12% till realization.
2. The brief facts of the case are that the complainant purchased a JCB tractor for an amount of Rs.13,75,000/- out of which Rs.10,30,000/- was availed as financial assistance from the opposite party. It is the case of the complainant that even after repayment of Rs. 7,17,212/- towards the loan account promptly, the opposite party re-possessed the vehicle on 31.05.2010 without notice or information. At present the complainant is left without the vehicle or his money. It is the case of the complainant that the opposite party obtained 13 signed blank cheque leaves. At the time of re-possession of the vehicle the vehicle had a market value of Rs.9,00,000/-. Even after re-possession of the vehicle the opposite party issued a notice to pay further amount of Rs.7,34,782/- to the outstanding loan account. According to the complainant the opposite party had to return the vehicle to the complainant or on failure for direction to return of Rs.6,00,000/- collected from him. The complainant is also to get returned the original title deed. He also requested for return of entrusted cheque leaves and Rs.1,00,000/- as compensation for mental agony.
3. The opposite party filed version contending that the complainant paid Rs.7,17,212/- towards the loan account. It is contended that the complainant voluntarily surrendered the vehicle to the opposite party, as the complainant was not in a position to pay the instalments and he was amenable for sale of the vehicle. The other contention is that the complaint is filed merely to harass the opposite party to get unlawful gain. It is also stated that the complainant is bound by the terms and conditions of loan under hypothecation agreement executed between the parties. The complainant was a defaulter and the opposite party had every right to proceed against him and this will not amount to any deficiency in service on the part of the opposite party. It is also contended that as per clause 10 sub clause 14 of the agreement the disputes arising out of this agreement is to be settled in accordance with the provisions of Arbitration and Conciliation Act. So the complainant is in no way has the right to file the complaint before the Forum below. He suppressed this fact and preferred the complaint. It is also stated that the opposite party had not hired or availed service for consideration and on that basis also the complainant is not a consumer under Consumer Protection Act.
4. The complainant was examined as PW1 and documents marked as Exts.A1 to A9 on the part of the opposite party. DW1 was examined and Exts.B1 to B7 marked.
5. The Forum below came to the conclusion that the act of the opposite party was unjust and vitiate enrichment which is not legally permissible and the complainant is to be adequately compensated.
6. The argument put forth by the counsel for the appellant is that the complainant was a defaulter in payment of loan account. The respondent remitted Rs.7,17,212/- out of the loan account of Rs.10,30,000/-. The appellant re-possessed the vehicle on the request of the respondent and sold the vehicle for an amount of Rs.3,45,000/-. As per the survey report filed on 15.07.10 the value of the vehicle fixed by opposite party was Rs.3,45,000/- and it was adjusted to the loan account. It is also submitted that the respondent had not filed any case before the police against the opposite party regarding the re-possession of the vehicle. As per the statement given by the appellant the balance amount due to the appellant will come to an amount of Rs.7,05,636/-. The counsel also urged that the complainant is not a consumer under the Consumer Protection Act as there is no service provided by the appellant for consideration. Further the complainant has to appear before the Arbitration as per the terms and conditions of the purchase agreement. The appellant is a financing company and as per the loan agreement the respondent is liable to pay interest for the loan amount. It is also submitted that the complainant remitted only Rs.7,17,000/-. It is an admitted fact that the complainant defaulted the payment of loan amount and the appellant is also entitled for re-possession of the vehicle. The complaint is to be dismissed and the balance amount due to the appellant is to be paid by the respondent.
7. The counsel for the respondent, in his submission stated that no legal formalities complied by the appellant while
re-possessing the vehicle. No voluntary surrender of vehicle happened in this case. The purchase value of the vehicle was Rs.13,75,000/- and the complainant availed a loan for Rs.10,30,000/- only. The remittance made towards the loan account was Rs.7,17,000/-. After the re-possession, the appellant sold the vehicle for an amount of Rs.3,45,000/-. The assessment of the vehicle was carried out by their own surveyor. According to the statement of the appellant itself out of the sale proceeds Rs.3,45,000/- totaling Rs.10,62,000/- credited to the loan account of the complainant/respondent. The vehicle was examined by the insurance surveyor (DW1) and the market value assessed was Rs.9,00,000/-. The vehicle purchased in the year 2007 and the assessment was on 17.07.2010 which means three years old vehicle. The insurance assessment for three year depreciation of a vehicle comes to 30% only which means 30% of the total value of Rs.13,75,000/- . At the time of inspection the insurance policy issued by the appellant valued the IDV around Rs.4,00,000/-. At the same time as per the IRDA rules after deducting 30% the value of the vehicle will come to Rs.9,00,000/-. He also in his cross examination deposed that the market value is based on the market trend and the depreciation of the vehicle. It is also submitted that the further claim is estopped on surrender of the vehicle. The appellant already
re-possessed the vehicle in 2010 and calculated the balance amount due on the basis of the loan account till the year of closing the loan account due on 01.10.2011. So, on that basis also the appellant grabbed a good sum from the respondent. It is also submitted that the complainant being a consumer under section 3 of the Consumer Protection Act, no Arbitration clause is applicable in the case of the complainant.
8. Heard both sides in detail. On perusal of the records, this Commission finds that the loan amount is only Rs.10,30,000/- and the respondent/complainant remitted Rs.7,17,000/-. Out of the sale proceeds an amount of Rs.3,45,000/- was remitted to the loan account of the respondent. The amount already credited to the loan account comes to Rs.10,62,000/-. As per the valuation of the insurance surveyor the IDV of the vehicle was Rs.9,00,000/-(which is unchallenged). So an amount of Rs.5,55,000/- is to be adjusted towards complainant’s loan account. Insurance Policy was issued by the agency of the financiers and showed the IDV very low for a 3 year old vehicle purchased for Rs.13,75,000/-. It is very clear the IDV of the vehicle calculated as Rs.4 lakhs by appellant as against the assessment of Rs.9,00,000/- was reduced deliberately by the appellant. Further according to the appellant the complainant had to pay Rs.14,42,000/- towards the loan account (Rs.10,30,000/- plus interest). The loan account was for 48 instalments whereas the vehicle was re-possessed in 2010. The interest for 12 months also to be deducted out of the loan account. However complainant is liable to get an amount of Rs.1,75,000+ interest out of the 12 instalments from the appellant. In this case, the Lower Forum allowed an amount of Rs.7,17,000/- which was remitted by the complainant along with Rs.1,00,000/- as compensation . The complainant’s prayer is to return the vehicle failing which for direction to return an amount of Rs.6,00,000/- and compensation of Rs.1,00,000/- and also to return signed cheque leaves. The Forum below allowed the amount above the prayer made by the complainant. It is an admitted fact that vehicle already sold and the value assessed for the vehicle comes to Rs.9,00,000/-. It is an undisputed fact and settled law that the parties are bound by the terms of agreement. The respondent remitted an amount of Rs.7,17,000/- and Rs.9,00,000/- as the value of the vehicle is to be adjusted to the loan account of the respondent and the excess amount of Rs.1,75,000/- is to be returned to the respondent. Moreover, the loan account was closed before the 48th instalment. This Commission finds that there is unfair trade practice and deficiency in service on the part of opposite party.
In the result, appeal is allowed in part modifying the order of the Forum below and the appellant/opposite party is directed to pay an amount of Rs.1,75,000/- with compensation of Rs.1,00,000/- along with the signed cheque leaves and title deed to the respondent/complainant failing which the respondent is entitled for 9% interest till realization from the date of this order.
Office is directed to send a copy of the order along with LCR to the Forum below.
A. RADHA : MEMBER
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