KERALA STATE CONSUMER DISPTUES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO.115/13
JUDGMENT DTD : 27.09.2013
(Appeal filed against the order in CC.No.95/2012 on the file of CDRF, Palakkad dated: 26.11.2012)
PRESENT:
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SRI.V.V.JOSE : MEMBER
The Branch Manager,
Shriram transport Finance Ltd,
Ottappalam Branch, APPELLANT
Ottappalam, Palakkad.
(By Adv.Narayan.R)
Vs.
K.P.Alavi,
S/o.Mohammed,
Karikkumpurath House,
Paral, Thootha.P.O
Aliparamba,
Perinthalmanna Taluk
Represented by his Power of Attorney,
Abdul Nazar.K.P, RESPONDENT
S/o.Mohammed,
Karikkumpurath House, Paral,
Thootha.P.O, Aliparamba,
Perinthalmanna Taluk,
Malappuram – 679 357
(By Adv.Narayanankutty.N)
JUDGMENT
SRI.V.V.JOSE : MEMBER
This appeal is filed against the order in CC.No.95/2012 dated: 26.11.2012 in the file of CDRF, Palakkad.
The opposite party in the above CC is the appellant here.
The case in the above CC is as follows. Complaint is filed by the power of attorney holder. Complainant, a driver by profession, purchased a used Tata 407 Mini lorry by availing finance from the opposite party. He used the vehicle for his livelihood, plying it as self-employment. He claimed that the opposite party obtained signature of the complainant in various papers including blank sheet. He secured an amount of Rs.2,80,000/-, as financial assistance for an interest of 10% per annum and agreed to repay the whole amount with interest in 42 monthly installments. The amount of EMI is fixed as Rs.9002/-. During the repayment the complainant was asked to pay more as EMI. This demand is unjustifiable, unfair trade practice and deficiency in service on the side of opposite party. On 05.07.2011 the vehicle was forcefully seized by the opposite party, while at work, when the complainant was regularly paying the installment. No notice or intimation regarding the seizer. The complainant approached the opposite party to have a detailed statement of account, to know the balance amount to be paid and to close the account in one time payment. Opposite party did not cared to the request, while at the same time the opposite party is trying to dispose to vehicle without giving a proper notice to the complainant. It is a clear deficiency of service. So the complainant made this complaint in the Lower Forum for an order directing the opposite party to deliver back the vehicle upon receipt of dues along with a compensation of Rs.2000/- with cost of proceedings.
The opposite party filed its version with the following contentions while admitting the transaction OP contended that the complainant entered into a loan cum hypothication agreement for purchasing TATA SFC 407 bearing Registration No.KL/4/S/8656/ The amount of loan was Rs. 2,80,000/- and has to be paid within 42 monthly installments along with interest and financial charges. The complainant agreed to pay the first 24 months Rs.12603/- and Rs.4201/- as final settlement ie a total of Rs.3,78,098/-. Complainant agreed to pay delayed payment charge of 3% per month for defaulted amount. The complainant was not insisted to give any blank cheques, papers, RC book of the vehicle or any other document. The complainant was not a regular prompt prayer of monthly installments. He never paid the monthly installments in time. Thus on 24.05.2011 the dues of the complainant was Rs.3,20,962/- in the loan account. The opposite party sent a registered legal notice to the complainant as well as to the guarantor directing to pay the balance payment, and the matter will be referred to arbitrator if they fail to do so. There was no reply or payment. The complainant surrendered the vehicle and agreed to pay the balance amount even after the sale of the vehicle. Even after the surrender the complainant did not paid any thing to the loan account. Hence on 20.07.2011 the opposite party sent a lawyer notice stating that the vehicle will be sold, if the outstanding amount is not paid immediately. On 18.08.2011 the details of the vehicle was published in a daily named “ Thuranna Kathu ’’ and the vehicle was sold on 22.08.2011. As on 17.07.2012 the complainant is liable to pay an amount of Rs.207743/- to the opposite party towards the loan account. There is no deficiency of service or unfair trade practice on the part of opposite party. Hence they prayed for a dismissal of the complaint with cost.
Both parties filed their proof affidavits. Complainant marked Ext.A1 to A4. Ext.B2 to B8 were marked by the opposite party. Complainant has not mounted the box. Opposite party was examined as DW1 and he was cross examined also.
The Lower Forum considered two issues regarding deficiency on the part of opposite party and relief and cost.
According to the Forum, on perusal of documents produced, the complainant is the registered owner of the vehicle TATA LDV SFC 407.C bearing No.KL-04-S-8656, which was admitted that the complainant has availed a financial assistance for Rs.280000/-. Ext.B7 dated: 18.08.2011 reveals that the vehicle no model, and make were published in a daily “ Thuranna Kathu ’’, without the date or place of sale. According to the opposite party the vehicle was sold on 22.08.2011 for Rs.129000/- for which no documents was produced. Opposite party deposed that the vehicle was sold for Rs.12,9000/-. The complainant argued that the vehicle was insured for Rs. 2,70,000/-on 05.05.2011 which was evident from Ext.A2. The opposite party claims that they sold the vehicle for Rs.129000/- for which they have not produced any documents. The date of agreement was 24.07.2008, where as in the complaint the date was 15.07.2008. In Ext.B2 the opposite party stated that upto 24th installment Rs.12603/-, and then upto 41st installment Rs.4201 and 42nd installment Rs.4209/- in total Rs.378098/- has to be paid from 15.08.2008 to 15.01.2012 by the complainant.
Ext.A4 (the bills) reveals that complainant has paid Rs.235730/- from 20.07.09 to 04.05.2011 and this was admitted by the opposite party also. Also the vehicle was sold by the opposite party on 22.08.2011, for which the opposite party has not produced any evidence to show the sale price. Complainant claims he was a regular payer of installments except two or three occasions. This was not contradicted by the opposite party also. As per Ext.B8 the ODC due amount was Rs.143926/-. The opposite party debited in a higher rate. The opposite party deposed that equated monthly installments means equal monthly installments. In Ext.B2 mentioned monthly installments, which is not equal. In Ext.B8 on 22.08.2011 the opposite party has deducted on amount of Rs.51300/-, Rs.62367/- and Rs.2000/- from the loan amount. The opposite party has not deducted Rs.129000/- from the loan amount on 22.08.2011. According to the opposite party the complainant is still liable to pay an amount of Rs.207743/-, which was not substantiated by any document. So it is a fit case for awarding compensation for deficiency of service.
As the vehicle was sold, the Forum found that the first prayer of the complainant is stale. The Forum allowed the complaint partly, directed the opposite party to pay the complainant an amount of Rs.15000/- as compensation and Rs.1000/- as cost of proceedings with in one month, failing which the complainant is entitled to get 9% interest for the whole amount from the date of order.
Aggrieved by the above order the opposite party filed this appeal in this commission on various grounds.
Heard both sides. According to the Learned Counsel of the appellant, as per the agreement (B2) there is an arbitration Clause and without exhausting the said remedy complainant has no right to approach the consumer forum and it tantamounts to violation of agreement condition, and hence complaint ought to have dismissed in limine. We cannot accept this contention. It is settled by National Commission in various decisions, despite the arbitration clause, aggrieved parties can choose or approach consumer forum on the strength of Section 3 of Consumer Protection Act. Hence this cannot be sustainable. Though it would appear the grievance of the complainant is not for settlement of accounts as contended by the appellant. In spite of making a payment of about Rs.235730/- during the period from 07/2009 to 05/2011, the vehicle was forcefully seized and sold in haste without affording an opportunity for a fare and reasonable procedure of seizure and sale. The publication (B7) in a local newspaper is appears to be a colourable devise. The upset price of the vehicle of the complainant is not published. The modality of auction or sale is also not convincing. Mere the testimony that the vehicle was sold for Rs.129000/- when the dues outstanding was Rs.207743/- and the insured value at the time of sale is Rs.270000/- is requiring more explanations.
The reasons for a distress sale is also not forthcoming. According to us it is an unfair trade practice on the part of the opposite party. The complaint was filed in May 2012, the sale was conducted on 22.08.2011. During this period the opposite party has not done anything against the complainant, possibly due to unfair trade practice followed by them in seizure and sale of the vehicle. Therefore we do not find any grounds to interfere with the order of the Lower Forum. Therefore we uphold order of the Lower Forum and appeal is dismissed without cost.
In the result, the appeal is dismissed confirming the order of Lower Forum. No cost.
V.V.JOSE : MEMBER
K.CHANDRADAS NADAR : JUDICIAL MEMBER
Be/
