KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 18/2009
JUDGMENT DATED: 23-02-2011
PRESENT:
JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
SHRI. S. CHANDRA MOHAN NAIR : MEMBER
1. The General Manager,
Mahindra & Mahindra Financial-
Service Ltd., Gate way building,
Mahindra Towers, Worli, Mumbai.
2. The Zonal Manager,
Mahindra & Mahindra Financial-
Service Ltd., No.34/1128,
Balakrishna Menon Road, : APPELLANTS
Edappally, Kochi-24.
3. The Manager,
Mahindra & Mahindra Financial-
Service Ltd., Thycadu.P.O,
(Now at Nandavanam Towers,
Ayurveda College, TVPM).
(By Adv.Sri. Poovappally M.Ramachandran Nair)
Vs.
Lathika,
K.P.3/422, Ambanathu, Panayara, : RESPONDENT
Mukkola.P.O, Kudappanakkunnu Village,
Thiruvananthapuram.
(By Adv.Sri.Radhakrishnan)
JUDGMENT
SHRI.S. CHANDRAMOHAN NAIR : MEMBER
The order dated:29/8/2008 of CDRF, Trivandrum in OP.379/04 is being challenged in this appeal by the opposite parties. As per the impugned order they are under directions to pay to the complainant a sum of Rs.1.lakh as compensation with 12% interest from the date of sale of the vehicle and Rs.1000/- as cost.
2. The case of the complainant before the Forum has that she had obtained a loan from the opposite parties and as per a loan agreement and she had paid Rs.1,33,345/- as initial payment and the amount of Rs.15,380/- as registration fee. It is also submitted by her that the loan amount with the interest had to be repaid in 46 monthly instalments at the rate of Rs.8,399/-. As security to the loan the opposite parties obtained a copy of the title deed of the property and 25 cheque leafes along with the income tax receipt. The complainant has further submitted that due to financial difficulties she could not pay the instalments in time and that she had requested the opposite parties to allow her time for paying the amounts. The case of the complainant is that on 3/6/2004 the vehicle was forcibly seized by the opposite parties and that without any intimation the vehicle was sold at a throw away price. Alleging deficiency of service and unfair trade practice the complaint was filed praying for directions to the opposite parties to pay compensation and costs.
3. The opposite parties resisted the complaint by filing version wherein it was contended that the complaint was not maintainable because the purchase of the vehicle was for commercial purpose and that the complainant herself had surrendered the vehicle as she could not repay the loan on time. It was also submitted that an amount of Rs.3,10,000/- was given to the complainant with the assurance that the principal amount with 14% interest would be repaid in 46 instalments at the rate of Rs.8,395/- and that the complainant had paid only 14 instalments and that too belatedly. It was also submitted that the vehicle was surrendered without coercion and force and it was on the sole volition of the complainant that the vehicle was obtained by the opposite parties and the same was sold in auction. Contending that there was no deficiency of service, the opposite parties prayed for the dismissal of the complaint with compensatory cost.
4. The evidence consisted of the affidavits filed by the complainant and Exts.P1 to P5. On the side of the opposite parties, the Manager of the 3rd opposite party had filed affidavit and documents D1 to D21 were marked.
5. Heard both sides.
6. The learned counsel for the appellant vehemently argued before us that the order of the Forum below is without appreciation of the real facts and circumstances of the case. It is his very case that it was on account of the non payment of the instalments that the opposite party was compelled to sell the vehicle and that too after production of the vehicle by the complainant. It is also his case that enough opportunity was given to the complainant to remit the amounts and Exts.D11 and D15 are documents which would prove the cunningness of the complainant to evade the instalment payments. It is also his case that within the short period the vehicle was extensively utilized by the complainant and the vehicle could be sold only at a throw away price. He has also advanced the contention that the Forum below had ordered a sum of Rs.1.lakh to be paid to the complainant with interest without any basis and that the order is liable to be set aside.
7. The findings and conclusions of the Forum below are supported by the learned counsel who appeared for the respondent. It is his very case that a sum of Rs.2,06,020/- was paid in total to the opposite parties towards the initial payment and payments towards 14 instalments. He has raised the contention that the complainant was never willing to part with her vehicle and it was far from truth to say that the complainant herself had surrendered the vehicle before the opposite parties especially when she was requesting time for payment of the amount due to reasons beyond her control. It is also his case that the vehicle was sold without any intimation to the complainant and the said action of the opposite parties amounts to unfair trade practice and deficiency of service. It is his further case that it was the duty of the opposite parties to give a chance to the complainant to get back the vehicle after paying the amount and in the instant case after arranging funds it was found that the vehicle was sold to a stranger and in such a circumstance, the order of the Forum below directing the opposite parties to pay a sum of Rs.1,00,000/- as compensation and Rs.1000/- as cost is only to be upheld.
8. We have gone through the documents obtained from the lower forum and also heard the learned counsel for the appellants and the respondent. We find that the Forum below had awarded Rs.1.lakh as compensation on the finding that the opposite parties had sold the vehicle without any intimation to the complainant. On a perusal of the documents we also find that the complainant had been requesting many a times to give her time for payment of the vehicle and as per Ext.D11 to D14 the complainant was continuously asking for time. But it is found that though she had asked for time there was no effort from her side to pay any amount towards the instalments though in Ext.D15 the complainant had requested time till 10/4/2004. We find no amount is paid even thereafter. It is found that even according to the complainant the vehicle was repossessed only on 3/6/2004. So, it can not be said that the complainant was not given any opportunity to clear the dues to the opposite parties. The Forum below had found that the opposite parties cannot be blamed for repossessing the vehicle. To a certain extent we believe that the complainant might have offered the vehicle to the opposite parties. But it is also to be seen that the opposite parties/appellants had not produced any evidence to show that the vehicle was sold in auction or taking appropriate steps for getting maximum amount for the vehicle. They would say that only a throw away price was received for the vehicle. We are not impressed by the said argument of the learned counsel for the appellants. All the same we find that the Forum below had awarded Rs.1.lakh as compensation which cannot be sustained. The complainant/respondent was also at fault and it was due to the lapse on her part that the opposite parties have sold the vehicle. However we find that the compensation ordered is on the higher side. Taking all the facts and circumstances into consideration we are of the opinion that a sum of Rs.25,000/- will be just and proper to be paid as compensation to the complainant with cost of Rs.1000/-. It is also found that the interest is ordered from the date of sale of the vehicle. We find that interest is liable to be paid only from the date of complaint.
In the result the appeal is allowed in part with the modifications indicated above, thereby the appellants/opposite parties are liable to pay a sum of Rs.25,000/- with 12% interest per annum from the date of complaint till payment with cost of Rs.1000/-. In the facts and circumstances of the present appeal the parties are directed to suffer their respective costs.
S. CHANDRA MOHAN NAIR : MEMBER
JUSTICE K.R. UDAYABHANU : PRESIDENT
VL.
