O R D E R
Smt. Sheela Jacob (Member – II):
The complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. The brief facts of this complaint is as follows:- The complainant is the registered owner of a Maruthi Omni bearing No.KL26D/486. For purchasing the vehicle he took a loan of Rs.2,15,000/- from the opposite party. As security for repayment of the amount, cheque leaves and other documents were entrusted to the opposite party. As per the terms of the hire purchase agreement, the complainant has to pay 48 monthly installments of Rs.6, 220/- each for closing the loan. Accordingly, the complainant had given signed cheques to the opposite party drawn from the complainant’s account with the Federal Bank, Adoor. Out of the 48 installments, 10 installments were paid either through the bank or on direct payment. The complainant could not remit the balance amount and there occurred some defaults in payment of installments. On 24.10.2013, the field staff of the opposite party came to the house of the complainant and forcefully took the possession of the vehicle alleging that the loan is in default. Thereafter the complainant approached opposite parties for the repayment of the balance loan amount but he did not allowed. Due to the above said act of the opposite party complainant sustained huge loss. While so on 17.01.2014, the opposite party send a legal notice stating that they had appointed an arbitrator. On 24.01.2014, the complainant received a notice from the arbitrator stating that there is a personal hearing on 11.02.2014. Since there was dispute as the issue has already been solved between the parties, by executing an acknowledgment from the side of the opposite party, by which the opposite party has agreed to return the vehicle on payment of the due amount. On 25.02.2014, the complainant sent a legal notice to the opposite party to return the vehicle on receipt of the due amount. But they have not turned up. While so, on 14.03.2013, the traffic police Pathanamthitta sent a charge memo to the complainant alleging the traffic offence of over speed. He paid the fine amount. As per the terms and conditions of the hire purchase agreements, the complainant had paid 10 installments only and he is ready to pay the balance amount. But opposite party has not responded on the notice. The above said act of the opposite party is a clear deficiency in service, which caused financial loss and mental agony to the complainant and the opposite party is liable to the complainant for the same. Hence this complaint for an order directing the opposite party to return the vehicle on the payment of the balance amount and its interest complainant also prays for allowing Rs.20,000/- as compensation and Rs.15,000/- as cost.
3. Opposite party entered appearance and filed version with the following main contentions. Opposite party challenged the maintainability of the complaint on various grounds. But the ground urged by the opposite party is irrelevant in the nature and circumstances of this case and hence we are not considering the said objections regarding the maintainability of the complaint. Further a petition filed by the opposite party as 45/2014 challenging the maintainability is considered and dismissed. The other main contentions are as follows: The opposite party admitted the hire purchase transaction between the complainant and opposite party. It is contended that since there is an arbitration clause in the loan agreement, the complaint is liable to be dismissed until all the installments of the loan are repaid, the owner of the vehicle in question is the opposite party. The complainant had defaulted payment, in many time. He paid 10 installments only. The complainant failed to remit the installments in time. He had defaulted 38 installments. The opposite party never tried to take the possession of the vehicle forcefully whereas the complainant himself surrendered the vehicle on 24.10.2013. So the opposite party issued a notice claiming the outstanding amount of Rs.65,921/- only as installment amount together with additional finance charge. The vehicle and documents were not returned to the complainant only because money was due to the opposite party, and there was nothing unlawful in it. The opposite party never demanded Rs.20,000/- from the complainant. The complainant has not sustained any loss or damage. So the complainant is not entitled to recover any amount from the opposite party. No deficiency in service has been committed by the opposite party and they are not liable for any compensation. Hence opposite party prays for the dismissal of the complaint with cost.
4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
5. The evidence of this complaint consists of the oral evidence of PW1, the complainant and Exts.A1 to A6. After closure of evidence, complainant was heard as opposite party has not appeared.
6. The Point:- The complainant’s allegation is that he had availed a vehicle loan from the opposite party by executing an hire purchase agreement. He took a loan of Rs.2,15,000/-. As per the said agreement, the complainant has to pay 48 monthly installments of Rs.6,220/- for each installment and he had given cheques also to the opposite party for paying the monthly installments. The complainant could not remit the amount properly and there was some default in payment of installments. So the field staff of the opposite party came and forcefully and took away the vehicle from the complainant’s premise. The complainant is ready to pay the dues amount but the opposite party did not return the vehicle to the complainant. The above said act of the opposite party caused huge financial loss and mental agony to the complainant. Hence the opposite party is liable to the complainant for the same.
7. In order to prove the case of the complainant, complainant filed proof affidavit in lieu of his chief examination along with 6 documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A6. Ext.A1 is the copy of the terms of the hire purchase agreement No.2200751. Ext.A2 is the copy of the R.C.Book. Ext.A3 is the surrendering report dated 24.10.2013. Ext.A4 is the copy of the registered advocate notice dated 25.02.2014 issued for the complainant in the name of opposite party. Ext.A5 is the legal notice dated 17.01.2014 issued by the opposite party for appointing Sri. Srinivasan as an arbitrator. Ext.A6 is the charge memo dated 14.03.2014 from the traffic police, Pathanamthitta, alleging the traffic offence of over speed.
8. On the other hand, the contention of the opposite party is that the suit is not maintainable before the Forum. Complainant availed a loan from the opposite party and thereafter he defaulted the installment payment. So the opposite party initiated arbitration proceedings against him. He paid 10 installments only. Opposite party was never tried to take the possession of the vehicle forcefully but the complainant himself surrendered the vehicle on 24.10.2013. The vehicle and documents were not returned to the complainant only because money was due to the opposite party and there was nothing unlawful in it. There is no deficiency in service from the part of the opposite party as alleged by the complainant.
9. Though opposite party raised such a contention in his version he has not adduced any oral or documentary evidence in his favour for substantiating his contentions. He has not even cross-examined PW1.
10. On the basis of the available materials on record, it is seen that the complainant had availed loan from opposite party. According to the complainant out of 48 installments, complainant paid cash for 10 installments either through his bank account or by direct payment. The complainant could not remit the amount properly and there was some default in payment of installments. Complainant’s contention is that the opposite party forcefully took the vehicle from complainant’s premises. But the opposite party stated that the complainant surrendered the vehicle on 24.10.2013. In Ext.A3, the surrendering report, the opposite party admitted that they are ready to return the vehicle after the payment of the due amount. Ext.A4 the legal notice stated that the complainant is ready to pay the due amount.
11. In view of the above, this forum observed that the complainant is a defaulter and the vehicle is surrendered by the complainant and it is not seized by the opposite party as alleged by the complainant. Further the liability of the petty case is with the opposite party. At the same time, the complainant is ready and willing to settle the loan account. In the circumstance, this complaint can be allowed partly.
12. In the result, this complaint is partly allowed, thereby the opposite party is directed to issue a correct and reasonable statement of account of the loan dues to the complainant within 15 days from the date of receipt of this order and the complainant is directed to clear the dues within 10 days from the date of receipt of the statement of account. Opposite party is further directed to return the vehicle to the complainant forthwith on getting the dues less, the fine amount of the petty case in the same condition as on the date of surrender of the vehicle by the complainant. In the nature and circumstance of this case, no order for cost and compensation.
Declared in the Open Forum on this the 20th day of December, 2014.
(Sd/-)
Sheela Jacob,
(Member – II)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member – II) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Jobby K. George
Exhibits marked on the side of the complainant:
A1 : Copy of the terms of the hire purchase agreement No.2200751.
A2 : Copy of the R.C.Book.
A3 : Surrendering report dated 24.10.2013.
A4 : Copy of the registered advocate notice dated 25.02.2014 issued
by the complainant to the opposite party.
A5 : Legal notice dated 17.01.2014 issued by the opposite party.
A6 : Charge memo dated 14.03.2014 from the traffic police,
Pathanamthitta.
Witness examined on the side of the opposite party: Nil.
Exhibits marked on the side of the opposite party: Nil.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Joby .K.George, Vaidyan Parampil House,
Maroor.P.O., Enadimangalam Village,
Adoor Taluk, Pathanamthitta District.
(2) Manager, Mahindra & Mahindra Finance Service-
Ltd, 1st Floor, Kunnathu building,
Near St. Peters Junction, Pathanamthitta,
Pin – 689 645.
(3) The Stock File.
