Karnataka

Chitradurga

CC/54/2017

E. Rajappa - Complainant(s)

Versus

Kaolmat Motors, - Opp.Party(s)

Y. H. Yogendranatha

04 Jan 2018

ORDER

COMPLAINT FILED ON:05.06.2017

DISPOSED      ON:04.01.2018

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 54/2017

 

DATED:  4^th JANUARY 2018

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        :MEMBER

                                 B.A., LL.B.,   

……COMPLAINANT	E. Rajappa, S/o Erappa, Age: 40 Years, R/o 64, Maruthinagara, Hosadurga town and Taluk, Chitradurga District.      (Rep by Sri.Y.H. Yogendranatha, Advocate)
V/S
…..OPPOSITE PARTIES	1. Kalmat Motors, Authorized Dealer of TVS Motor Company Limited, Near Govt. Hospital, Behind Taluk Office, Ajjampura Road, Hosaadurga, Chitradurga District.   2. TVS Credit Services Ltd., Jayalakshmi Estates, 29, Haddows Road, Chennai.   (Rep by Smt.T.K.Champa, Advocate)

ORDER

SRI. T.N.SREENIVASAIAH : PRESIDENT     

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to hand over the TVS Motor Cycle and to give Rs,80,000/- with interest @ 24% mental agony, stress and loss of earnings and etc.

2.     The brief facts of the case of the above complainant are that, OP No.1 is the authorized dealer of the TVS two wheeler motor vehicles and OP No.2 is the authorized financer to the customer who purchase the TVS Motor vehicle on interest basis.  Complainant agreed to purchase one Motor cycle TVS Moped XL Super Heavy Duty (Green Colour) at Rs.36,000/-.  The complainant has paid down payment of Rs.17,000/- by cash on 16.01.2014 and obtained receipt from OP No.1.  The balance amount of Rs.19,000/- will be paid by OP No.2 to OP No.1 as loan amount.  The complainant agreed to repay the said loan to the OP No.2 in monthly installments of Rs.1,036/-.  The motor cycle bearing Reg.No.KA-16 EA 5948 was delivered to the complainant on 15.02.2014.  The complainant has paid nearly 24 installments to OP No.1 and in turn OP No.1 has paid the same to the OP No.2.  The first installment commenced from March 2014.  The complainant has paid the every month installments to the OP No.1 without fail.  The complainant in all has paid Rs.43,344/- till January 2016 as per the statement given by OP No.2.  The complainant has cleared the entire loan amount to the OP No.2 through OP No.1.  In the month of May 2016 all of a sudden OP No.1 came to the house of the complainant and forcible took the said TVS motor cycle and kept the same in its custody.  Later the complainant and his brother approached OP No.1 and enquired about seizing of the vehicle.  By that time, OP No.1 told that the vehicle already been sent to OP No.2.  Now the vehicle is with the custody of the OP No.2 and further OP No.1 told the complainant to come after 15 days and the vehicle will be get back from OP No.2.  As per the assurance given by the OP No.1, the complainant again visited the OP No.1 after 15 days.  By that time, the OP No.1 told that the vehicle was already been sold in a public auction for an amount of Rs.16,500/- and the same has been adjusted to the loan account.  It is further submitted that, the complainant had paid the extra amount for extending warranty and the warranty expired on 21.01.2017.  This shows the vehicle is within the warranty period.  The complainant has issued legal notice to the OPs, the same has been served and the OPs never replied to the same.  After service of notice, the OPs never settled the claim of the complainant or return the seized vehicle to the complainant.  The cause of action for this complaint arose in the month of May 2016 when the OP No.1 forcibly taken the vehicle from the complainant house which is within the jurisdiction of this Forum and prayed for allowing the complaint.       

3.     After service of notice to the OPs they appeared through Smt.T.K. Champa, Advocate and filed their version.  The OPs have denied the entire averments/facts made in the complaint.  It is stated that, the complainant obtained a loan from the OP No.2 through OP No.1.  Accordingly, the complainant has paid Rs.9,640/- towards down payment.  Apart from the down payment, one advance EMI of     Rs.1,328/-, processing fee of Rs.1,041/-, insurance of Rs.852/-, stamp fee of Rs.750/-, ADSC of Rs.125/- and selling charges of Rs.60/- and the complainant has paid a sum of Rs.17,000/- on the date of purchasing the vehicle.  The loan amount obtained by the complainant from OP No.2 is of Rs.24,900/-.  According to the complainant, he has paid Rs.43,344/- till January 2016 is false.  But, the complainant has paid Rs.25,232/- i.e., 19 installments.  At the time of repossession of the vehicle, the complainant was due in a sum of Rs.9,954/- and the vehicle got repossessed on 31.12.2015 and the complainant has paid his last installment before seizure on 15.09.2015 which means the complainant was in due of 3 installments.  Further, the complainant has stated in his complaint that, the OP No.1 forcibly seized the vehicle from the house of the complainant is entirely false and complainant is put to strict proof of the same.  After seizing the vehicle, the OP No.1 has written a letter to the complainant and told to come and take back the vehicle within 15 days after payment of instalment due.  But, the complainant never turn up.  Finally, the complainant has filed this complaint before this Forum.  The complaint filed by the complainant is not maintainable either in law or on facts and the same is liable to be dismissed in limine.  The averments made in the complaint are all false, frivolous and vexatious, the same is not tenable. According to the OPs, they have issued letter to the complainant calling upon him to pay the balance amount and take back the vehicle but, the complainant did not come before the OPs and taken back the vehicle.  Thereafter, the OPs have sold the vehicle for Rs.16,500/- and adjusted the same to the loan account and still the complainant is due of 3 installments. 

 4.    Complainant has examined as PW-1 by filing affidavit evidence and relied on the documents like Ex.A-1 to A-9 and closed his side. OP No.2 has examined one Santhosh Wali, the Legal Manager as DW-1 and relied on Ex.B-1 to B-3 documents and closed their side.   

5.     Arguments heard. 

6.     Now the points that arise for our consideration for decision of above complaint are that;

1. Whether the complainant proves that the OPs have committed deficiency in not issuing the pre-seizing notice or pre-sale notice before seizing and sold the vehicle?

 

(2) What order?

 

7.     Our findings on the above points are as follows:-

        Point No.1:- Partly in Affirmative.

        Point No.2:- As per final order.

REASONS

8.     It is not in dispute that, the complainant purchased one TVS two wheeler Motor cycle moped XL Super Heavy Duty (Green Colour) from OP No.1 with the assistance of loan obtained from OP No.2.  At the time of purchasing the vehicle, complainant has paid a sum of Rs.17,000/- towards down payment on 16.01.2014.  OP No.1 agreed to give the vehicle with the financial assistance of OP No.2.  The OP No.1 received an amount of Rs.17,000/- from the complainant and has given receipt for the same on that day itself.  The complainant has taken loan of Rs.19,000/- from OP No.2 for purchasing the said motor cycle.  The cost of the same was Rs.36,000/-.  The complainant agreed to repay the loan amount obtained from OP No.2 every month for Rs.1,328/- as an EMI for 19 months.  According to the complainant, he has paid the entire loan amount to the OP No.1 but the OP No.1 says that, the complainant is still due of 3 installments at the time of seizing the vehicle.  But as per the exhibits, it clearly shows that, the complainant has paid the entire loan amount to the OPs.  But the OPs have forcibly seized the vehicle without giving any seizing notice or pre-sale notice to the complainant.  OP No.2 has filed written statement on behalf of OP No.1 stating that, the complainant has obtained loan of Rs.19,000/- and agreed to repay the same by EMI of Rs.1,328/- in 19 installments.  The OPs states that, the complainant has paid down payment of Rs.17,000/- at the time of purchasing the vehicle, one advance EMI of Rs.1.328/- and other expenses i.e., processing fee, insurance amount, stamp fee, ADSC charge and selling charges also collected from the complainant.  But the OPs have issued receipt to the complainant on 16.01.2014 for Rs.17,000/- and they never explained anything in the said receipt.  It clearly shows that, the OP No.1 has received Rs.17,000/- cash from the complainant towards down payment.  Further it clearly shows that, the complainant has paid the entire loan installment to the OPs.  But according to the OPs, the complainant is still due of installment amount. L The OPs have stated in their version that, after seizing the vehicle, they have sold the same in a public auction for Rs.16,500/- and appropriate the sale proceeds to his loan amount.  After selling the vehicle, the OPs never send any notice to the complainant asking to pay the remaining amount.  Here the point for consideration is whether the OPs have issued any pre-seizer notice to the complainant or pre-sale notice to the complainant.  As per the documents, the OPs never issued any notice to the complainant before seizing the vehicle.  According to the OPs, the vehicle already sold to somebody therefore, the question of re-handed over the same to the complainant does not arise as the same was sold in a public auction. 

9.     We have gone through the entire pleadings, version, documents and affidavits filed by both the parties. The same clearly shows that, the complainant has purchased the vehicle from the OP No.1 with the financial assistance of OP No.2.  According to the complainant, he has obtained the loan from OP No.2 through OP No.1 for Rs.19,000/-.  As per Ex.A-1, the complainant has paid Rs.17,000/- towards down payment to the OPs for purchasing the vehicle and the complainant agreed to pay the remaining amount in 19 installments at     Rs.1,328/-.  As per the agreement, the complainant has paid the entire loan amount to the OPs.  But the OPs have seized the vehicle without issuing any seizing notice or sale notice to him and they have sold the vehicle in a public auction for Rs.16,500/-.  According to the complainant, he has paid nearly an amount of Rs.43,000/- to the OPs.  Therefore, the OPs have committed deficiency in service for nom issuing of the seizing and sale notice.  Hence, this Point No.1 is held as partly affirmative to the complainant.

 

          10.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

It is ordered that, the OPs are hereby directed to pay Rs.20,000/- as compensation along with interest @ 12% p.a to the complainant as they have already sold the vehicle to somebody from the date of complaint till realization.

It is further ordered that, the OPs are hereby directed to pay Rs.10,000/- towards mental agony and Rs.5,000/- towards cost of the proceedings to the complainant. 

It is further ordered that, the OPs are hereby directed to comply the above order within 30 days from the date of this order.

            (This order is made with the consent of Member after the correction of the draft on 04/01/2018 and it is pronounced in the open Court after our signatures)

           

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:- Sri. Santhosh Wali, the Legal Manager by way of affidavit evidence.

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Receipt towards down payment dated 16.01.2014
02	Ex.A-2 to 4:-	Receipt towards EMI
03	Ex.A-5:-	Extended warranty registration Form
04	Ex.A-6:-	Certification of registration
05	Ex.A-7:-	Legal notice dated 06.03.2016
06	Ex.A-8:-	Postal receipts
07	Ex.A-9:-	Postal acknowledgements

 

Documents marked on behalf of OPs:

01	Ex-B-1:-	Loan/Hypothecation agreement
02	Ex.B-2:-	Loan statement
03	Ex.B-3:-	RPAD receipt

 

MEMBER                                                            PRESIDENT

Rhr**