Tamil Nadu

StateCommission

A/57/2021

1.the Authorised Signatory, TATA Motors Finance Limited, Nariman point, Mumbai 400 021. And 2 Others - Complainant(s)

Versus

M. Ilaiyaraja, S/o. P. Mariyappan, Karappalli Village, Chennathur Post, Hosur Taluk. - Opp.Party(s)

M/s. M. Arunachalam

17 Apr 2023

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :       Hon’ble Thiru Justice R. SUBBIAH               PRESIDENT

Thiru R  VENKATESAPERUMAL                   MEMBER

                        

F.A.NO.57/2021

(Against order in CC.NO.5/2018 on the file of the DCDRC, Krishnagiri)

 

      DATED THIS THE 17^th DAY OF APRIL 2023

 

1.       The Authorised Signatory

          TATA Motors Finance Limited

          Regd. Office: 10^th Floor, 106 AB

          Maker Chambers III, Nariman Point

          Mumbai – 400 021

 

2.       Authorised Signatory

          TATA Motors Finance Limited

          Raj Bhavan, 3^rd Floor,

          No.6, Brindavan Road, Fairlands

          Salem- 636 006

 

3.       Authorised Signatory

          TATA Motors Finance Limited

          Hosur Branch, Plot No.27                              M/s. M. Arunachalam

          Maruthinagar, Dharga,                                        Counsel for

          3^rd Cross Street, Hosur                             Appellants / Opposite parties

 

                                                         Vs.

M. Ilaiyaraja

S/o. P. Mariyappan                                                     M/s. V. Balaji

173/1, O Karappalli Village                                          Counsel for

Chennathur Post, Hosur Taluk                              Respondent / Complainant

 

          The Respondent as complainant filed a complaint before the District Commission against the opposite parties, praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the opposite parties praying to set aside the order of the District Commission dt.15.10.2019 in CC.No.5/2018.

 

          This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing on bothsides and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order in the open court:

 

 

ORDER

 

JUSTICE R. SUBBIAH,  PRESIDENT  (Open court)

 

1.       This appeal has been filed by the appellants/ opposite parties as against the order dt.15.10.2019 in CC.No.5/2018 passed by the District Consumer Disputes Redressal Commission, Dharmapuri @ Krishnagiri,  in allowing the complaint.  

 

2.       For the sake of convenience, the parties shall be referred as per the rankings before the District Commission.

 

3.       The brief facts which are necessary to decide the appeal is as follows:

            The complainant had purchased the Multi Axle Goods Vehicle (Tipper) from the 3^rd opposite party on 13.3.2013.  The complainant hypothecated the vehicle with the 2^nd opposite party.  The 1^st opposite party is the registered office of the 2^nd and 3^rd opposite parties. 

          The complainant had the hypothecation cum guarantee agreement bearing No.5001186114 dt.28.2.2013 with the opposite parties.  The vehicle No. is TN 70 J6311.  The vehicle loan amount is Rs.27,39,865/-, which was to be repaid in 47 monthly instalments @ Rs.58295/-.  The first instalment date is 2.4.2013 and the maturity date is 2.2.2017.  The complainant repaid the loan regularly to the 2^nd opposite party.  But subsequently, the complainant could not remit the instalments for couple of months in the year 2016.  The complainant explained the difficulties to the 3^rd opposite party and requested some time for paying the instalment.  But the 2^nd opposite party repossessed the vehicle illegally without any prior intimation.  Hence the complainant requested to give the entire statement of account with regard to the loan account.  The opposite parties without giving the statement of accounts, sent a notice to the complainant on 29.10.2016, demanding the outstanding amount of Rs.3,30,518/-, alongwith additional interest and other charges within 48 hours, which is not sufficient to make payment.  While so on 22.11.2016, the complainant received a phone call from an unknown person, who demanded the RC book from the complainant, stating that he had purchased the vehicle in auction from the 2^nd opposite party.  The alleged sale of the vehicle had taken place on 19.11.2016, without the knowledge of the complainant.  Therefore, the complainant sent a legal notice to the opposite parties and the RTO Hosur on 29.11.2016 asking the opposite parties to handover the vehicle, and insisted the RTO not to transfer the registration of the vehicle.  But no reply was received from the opposite parties. Moreover, the opposite parties demanded Rs.9365.91/- additionally from the complainant inspite of sale of the vehicle to one Mr.V.Ravichandran for Rs.11,00,000/- through auction.  As per the statement of the opposite parties, the opposite party had to return the amount of Rs.5,36,302/- to the complainant alongwith interest from 19.11.2016, but they demanded Rs.9,365/- additionally.  Thus alleging deficiency of service on the part of the opposite party, the complainant had filed the complaint praying for a direction to the opposite parties to return the repossessed vehicle after receiving the amount of Rs.563698/- or to give Rs.536302/- alongwith interest @24% from 19.11.2016, and to pay Rs.5 lakhs towards compensation and cost of Rs.10000/-. 

4.       The case of the complainant was resisted by the opposite parties by filing their version as follows:

          The allegation of the complainant was totally denied by the opposite parties.  The specific defence of the opposite parties is that the complainant obtained vehicle finance from the opposite parties, by entering into a Hypothecation Agreement No.5001186114 dt.28.2.2013 for a sum of Rs.20,60,000/- repayable within 47 months at equal monthly instalments of Rs.58,295/-each.   But the complainant, inspite of demands, failed to pay the dues as per the terms and conditions and started committing default.  Hence the opposite parties had initiated Arbitration Proceedings for recovery of a sum of Rs.13,08,868.66/.  Since the complainant failed to appear before the Arbitrator, the award was passed on 28.10.2015.  As per the hypothecation agreement, the claimants are entitled to enforce and realise the amount due and payable by the opposite parties, by taking possession of the vehicle and sell the same in public auction or private treaty and appropriate the net sale proceeds thereof towards the outstanding amounts.  The net outstanding payable by the complainant as on 25.10.2016 is Rs.938811.83/-.  Therefore, the opposite parties sold the vehicle in auction on 22.11.2016 for a sum of Rs.11,00,000/-.  After appropriating the outstanding dues payable, the net amount payable to the complainant by the opposite parties is Rs.1,53,791.78/-.  The opposite parties are always willing to provide the statement of accounts.  It is incorrect to say that the opposite parties demanded Rs.9,365.92/- additionally from the complainant.  It is also denied that the opposite parties have to return Rs.536302/- alongwith interest from 19.11.2016 to the complainant.  Therefore, there is no deficiency in service on their part, thus praying for dismissal of the complaint. 

 

5.       In order to prove the complaint, proof affidavits were filed by both parties, alongwith documents, which were marked as Ex.A1 to A7 on the side of the complainant and Ex.B1 & B2 on the side of the opposite parties. 

 

6.       The District Commission, after analysing the entire evidence, has come to the conclusion that in the written version the opposite parties had stated that they are ready to pay a sum of Rs.153791.78/-, therefore it is clear that there is deficiency in service on the part of the opposite parties.  Thus directed the opposite parties to refund Rs.536302/- alongwith interest, and Rs.50000/- towards compensation alongwith cost of Rs.10000/-. 

 

7.        When the matter is taken up for consideration, the learned counsel for the appellant had stated that the actual amount which the opposite parties are liable to pay to

he complainant is only Rs.1,53,791.78/-.  But the District Commission by accepting the averments of the complainant had wrongly directed the opposite parties to pay a sum of Rs.5,36,302/- which is liable to be set aside.

 

8.       The learned counsel for the Respondent/ complainant had argued in support of the order of the District Commission.

 

9.       Having considered the submissions made, a perusal of the documents filed in support of the complaint would show that though the complainant had submitted that the opposite parties are liable to refund a sum of Rs.5,36,302/-, the complainant had not submitted any materials to show as to how much amount the complainant paid towards loan, and the particulars about the default payment etc.  Therefore, we are not in a position to believe the words of the complainant that he is entitled to a sum of Rs.5,36,302/-. 

          It is equally true that the opposite parties also have not filed any breakup figures or  receipts or statements, to show the correct breakup figures about the outstanding amount of complainant’s loan account. 

          But as per document under Ex.B2, the award passed by the Arbitrator, it is clear that the complainants are liable to pay a sum of Rs.13,08,868.66/- to the opposite parties towards the loan amount outstanding.  Likewise, the opposite parties have admitted that the vehicle had been sold in auction for a sum of Rs.11,00,000/-, and therefore, they are liable to refund a sum of Rs.1,53,791.78/- 

          As submitted by the complainant, the opposite parties had stated in the legal notice that the complainant has to repay Rs.9365.91/- towards the loss of sale. Since there was no specific claim in this regard, much reliance need not to be given towards the said statement.

          In view of the above, this commission is of the view that since the complainant had not proved his claim with ample evidence, and it is apparent that he is a chronic defaulter in repayment of the loan, we hereby accept the version of the opposite parties, that they are liable to pay only a sum of Rs.1,53,791.78/-.

          Since there is a considerable delay in repaying the above amount, the complainant is entitled for interest for the above amount from the date of auction sale i.e., on 19.11.2016.

 

10.     So far as the award with regard to the compensation is concerned, since the negligence or deficiency in service on the part of the opposite parties are not proved unambiguously, we are inclined to set aside the award of Rs.50,000/- towards compensation, while reducing the cost to Rs.5000/- instead of Rs.10000/-.    The appeal is ordered accordingly.

 

11.     In the result, the appeal is allowed in part, by modifying the order of the District Commission, Krishnagiri in CC.No.5/2018 dt.15.10.2019   as follows:

          The Appellants/ opposite parties are directed to pay a sum of Rs.1,53,791.78/- alongwith interest @9% p.a., from 19.11.2016 till date of realisation, alongwith cost of Rs.5000/-.  Time for compliance, two months, from the date of receipt of the copy of the order.

          There is no order as to cost in the appeal.

 

         

 

 

  R VENKATESAPERUMAL                                               R. SUBBIAH

               MEMBER                                                                      PRESIDENT