CC/392/2020
Date of Filing: 12.06.2020
Date of Disposal: 14.06.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU – 560 027.
DATED THIS THE 14th DAY OF JUNE 2023
CONSUMER COMPLAINT NO: 392/2020
PRESENT:
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SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR,:MEMBER
1.Sri. Joseph Manoraj
S/o Late Sindhuraj
Aged about 61 years,
R/at No.100, 6th C Main,
Geetha Clinic Cross,
Devasandra K.R.Puram Post
2.Sri. Mariyappa (Guarantor)
S/o. V. Krishna,Aged about 55 Years
R/at No.252, Bommanahalli,
Bengaluru Urban
(Rep. Smt. Mamatha.N, Advocate) … COMPLAINANT.
M/s. Mahindra and Mahindra Financial Services Pvt Ltd.
Reptd. By Authorised Signatory, Having office at
No.2M-II Floor, East of NGE Layout,
Banaswadi, Bengaluru Urban
(Rep.Naveen.B.K, Advocate) ….. OPPOSITE PARTY.
//JUDGEMENT//
BY SRI. K.S. RAJU, MEMBER,
- The present complaint is filed Under Section 12 of the Consumer Protection Act 1986 seeking a direction to the opposite party has to provide a new Maruthi Swift Dezire ZDI top end Car, otherwise pay Rs.11,00,000/- the said value of the car with compensation of Rs.8,09,000/- and with expenses total award Rs.19,96,000/-.
- Case of the complainant is that he had purchased a new Maruthi Swift Dezire ZDK Top end Model bearing Registration No. KA 53 B 2327, under hire purchase loan scheme of Rs. 8,42,640/- for his personal use and family requirements. Later the said vehicle was used to get the short fall income of complainant’s family. The complainant, on 28.08.2013 had availed a loan of Rs.6,10,000/- plus financial charges of Rs.2,32,640/- from opposite party. Further the complainant agreed to pay the said loan with a monthly instalment of Rs.17,555/- total 48 months. The complainant availed necessary insurance to subject vehicle and he has paid Tax and got necessary permit.
- The complainant has paid Rs.8,60,195/- total 49 months instalments to the opposite party. The entire loan amount was completed on 05.08.2017. Further, the opposite party had seized the vehicle on 20.12.2017 forcibly, illegally from the complainant with the help of Goon’s. Further the opposite party has claimed Rs.1,22,000/- extra amount from the complainant even there was no dues to the opposite party. On 05.08.2017 the complainant has demanded Accounts statement from the opposite party and enquired the loan amount because he has already paid the entire amount under the loan agreement. On 03.03.2018 the complainant approached opposite party with above said Rs.1,22,000/- in order to get back his car. But the opposite party refused to receive the amount and said he had sold the car “ Tata Indica ECS ” . The opposite party played fraud with the complainant and illegally refused to return the car by receiving the above said amount even the complainant ready to pay. The opposite party also took the Mobile worth of Rs.26,000/- a Taxi devisor worth of Rs.30,000/- and a Samsung Tab worth of Rs.13,000/- total Rs.69,000/- valuables put in the subject vehicle.
- The opposite party not ready to return the seized subject vehicle even after the complainant has paid the entire loan amount with extra Rs.17,555/- . Further the opposite party on 01.08.2018 demanded Rs.48,912/- from the complainant by issuing a legal notice dated 01.08.2018. The opposite party had collected Rs.1,38,215/- as penal interest under different intervals, from the complainant for failure to make the repayment within prescribed time as specified under the loan agreement. Thereby the opposite party liable to the complainant under deficiency of service and complainant sought for allow the complaint as prayed.
- The opposite party filed his version by denying the complainant
allegations. Further the opposite party specifically stated that this Commission has no jurisdiction as per clause 15 of the loan agreement dated 28.08.2013 the above said complaint is to be referred to the Arbitratorunder Arbitration and Cancelation Act.Further, as per clause 16 of the loan agreement the above said dispute having Mumbai jurisdiction only.
- The opposite party contended that the complainant is the chronic defaulter and did not pay the periodical instalments in time as prescribed in the loan agreement and till today he is having outstanding balance of Rs.48,912/- with interest. The complainant approached this Commission by suppressing material fact. Further, the opposite party admitted the loan availed by the complainant for his Maruthi Swift Dezire car for a total sum of Rs.8,42,640/- with accrued interest. Further, the opposite party admitted the repayment schedule having total 48 monthly instalments with each of Rs.17,555/- . As per statement of accounts, due to delay in payment of EMIs by the complainant the opposite party charged penalty charges which come up of total Rs.2,75,082/-. For that the complainant has failed to repay the same the opposite party has seized the vehicle in question and sold for Rs.2,39,620/- Further the complainant has still outstanding balance of Rs.48,912/- payable to the opposite party. Since the complainant was the regular defaulter and in the year 2016 the vehicle in question was took by the opposite party and later released then by undertaking dated 29.07.2016. The complainant has approached this Commission for unjust enrichment by taking the an typographical error in the sale notice dated 12.07.2018 i.e. “Tata India ECS”. The words are wrongly typed in the name of vehicle in the sale notice. The complainant was failed to repay the entire loan amount and resale online notice dated 15.01.2018 was duly served to the complainant. Further, a notice for conciliation dated 01.08.2018 was also issued to the complainant in this regard. The opposite party denied the valuables kept in the vehicle. There was no deficiency of service by the opposite party and pray for dismissal of complaint.
- The complainant was himself examined as PW.1 by filing affidavit evidence by re-iterating his case and got marked EX.P1 to EX.P14 documents. The opposite party authorized representative one Sri. Naveen D.K. has examined by filing affidavit in the form of his evidence in chief and got marked EX.R1 to EX.R6 documents. Both complainant and opposite party files their respective written arguments.
08. The points that would arise for consideration are as under:-
i) Whether the opposite party has liable to the complainant under deficiency of service?
ii) Whether the complainant is entitle to the relief as sought for?
iii) What order?
09. Our findings on the aforesaid points are as follows:-
Point No.1: In affirmative.
Point No.2 : Partly affirmative
Point No.3 : As per the final order for the following;
REASONS
10. POINT NO.1 : In this complaint there is no dispute with regard to the availment of loan of Rs.6,10,000/- by complainant under loan agreement dated: 28.08.2013 for his Maruthi Swift Dezire ZDI Top end high class car bearing Registration No. KA 53 B 2327 from the opposite party. Further, the complainant agreed to repay the above said loan with interest for total amount of Rs.8,42,640/- equated with 48 monthly instalments each for Rs.17,555/- . As per loan agreement the complainant has paid entire loan amount. The complainant has paid total Rs.8,60,195/- with extra amount of Rs.17,555/- . The complainant specifically alleged that inspite of payment of entire loan amount the opposite party took the forcible possession of the subject car on 28.12.2017. The opposite party also took the Mobile worth of Rs.26,000/- a Taxi devisor worth of Rs.30,000/- and a Samsung Tab worth of Rs.13,000/- total Rs.69,000/- valuables put in the subject vehicle. Further, the complainant alleged that the vehicle was sold by the opposite party illegally without notice to the complainant. The opposite party have no manner of right to sell the vehicle. All the efforts of the complainant are went to vain in order to recover the possession of the subject vehicle. Even the opposite party has issued a notice dated 01.08.2017 by claiming Rs.48.912/- towards dues of the loan amount even he had sold the subject vehicle illegally for few rupees, lesser than its value.
11. Per contra the opposite party has contended that the complainant was regular defaulter in the loan repayment. Due to failure in repayment in the year 2016 the opposite party took the possession of the vehicle and later released on 29.07.2016 by undertaking a release letter from the complainant. There is no deficiency of service from the opposite party. Due to failure in repayment of the loan amount the opposite party has seized the vehicle and sold on 03.03.2018 in public auction, for recovery of the legal debt. Before the sale proceedings the opposite party has intimated sale notice dated 15.01.2018 and a notice for concilation dated 01.08.2018 was issued to the complainant and same was duly served to the complainant. Inspite of receiving the sale notice the complainant failed to repay the payments due and unnecessarily approached this Commission by suppressing the material fact.
12. In this complainant this Commission having jurisdiction to
entertain this complaint and whatever the objections raised by the opposite party in this regard is rejected as not maintainable.
13. The EX.R3 reflects that the complainant has a regular defaulter of the payment. But he has repaid the loan amount to the extent of Rs.8,60,195/- is undisputed. The sum of Rs.8,60,195/- is including principal amount, interest and penal charges for delay in payment. The EX.R6 is the final notice dated: 15.01.2018 issued to the complainant with demand of Rs.2,64,500/- for full and final settlement and legal notice dated: 01.08.2018 with demand of Rs.48,912/- after sale proceedings of the vehicle.
14. In the entire EX.R6 the opposite party failed to establish how much total due accrued with interest. The opposite party failed to explain when and where the vehicle was sold out and what procedure adopted by him towards sale proceedings of the subject vehicle. The opposite party explained that the vehicle has auctioned on online auction. The opposite party not expressed as on date of the auction the vehicle has valued to what extent. Admittedly the vehicle was 2013 Model Car. The complainant has repaid the entire loan amount of Rs.8,60,195/- with one extra EMI amount of Rs.17,555/- . But the complainant not paid the EMI amount within stipulated period as agreed in the loan agreement. For that the opposite party was allowed to charge penal interest as prescribed by the RBI guidelines. In our view the opposite party has exorbitantly charged penal interest in this complaint and took the subject vehicle, and even sold out the subject vehicle for lesser value. Thereby the opposite party is liable under deficiency of service to the complainant. Admittedly as per EX.R4 and EX.R5 the said vehicle in question was sold out to one Guruprasad C.N. View from the above angle the subject vehicle did not recoverable, and not order the possession to the complainant. Hence, we came to the conclusion that the complainant entitle to value of the vehicle as on date of possessed by the opposite party. In view of the above discussion we answered Point No.1 in affirmative.
15. POINT No.2 : The Complainant not filed any valuation slip to shown what is the actual value of the vehicle as on date of the sale proceedings. The complainant has filed a judgment of Patna Highcourt in Civil W.P. No. 3456/ 2021. In the above said judgment their Lordships in para 68 held that :
- 68. In the cases where the vehicle has been sold to a third party and the bank / financial institution is not in a position to restore the vehicle, they would be liable to pay the Petitioner(s) to the extent of the value of the vehicle (s) as per their insurance value on the date of their seizure. The said amount shall be adjusted against the outstanding vehicle loan and thereafter, if any surplus comes out the same will be made available to the Petitioner. It will be open for the Petitioners if so advised to challenge the accounts furnished by the Banks/Financial institutions and claim any compensation etc. for the loss arising out of seizure their respective vehicles before appropriate court / Forum”.
In this complaintneither the complainant nor the opposite party filed exact statement of accounts. The opposite party entitlefor the interest as per RBI Guidelines. In view of the Hon’ble Apex Court Order the complainant and opposite party directed to file statement ofaccount as per RBI guideline. The opposite party hereby directed to return the surplus amount after considering the IDV value of the vehicle as on date of seizure by deducting their legal enforceable debt amount.Hence, we answered Point No.2 partly affirmative.
16. POINT NO.3:- In view of the discussion made above for the
foregoing reasons, we proceed to pass the following :
ORDER
The complaint is allowed in part.
The opposite party is directed to return the surplus amount with interest at the rate of 9% per annum after considering the value of the vehicle as per IDV at the time of seizure of the vehicle.
The opposite party entitle to any legal recoverable
debt as per RBI Guidelines.
Further, the opposite party is directed to pay to the complainant Rs. 20,000/- as Compensation for inconvenience and mental agony. The opposite party is also directed to pay Rs.20,000/- as litigation cost to the complainant.
Further the opposite party directed to comply the Order within 30 days from the date of order. Otherwise the above said Rs.40,000/- carried interest at the rate of 9% per annum till realization.
Supply free copy of this order to both the parties and
return extra copies of the pleading and evidence to the
parties. Applications pending, if any, stand disposed of
in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 14th day of June, 2023)
(REKHA SAYANNAVAR) (RAJU.K.S) (SHIVARAMA, K)
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//ANNEXURE//
Witness examined for the complainant side:
Sri. S. Joseph Manoraj, files his affidavit in chief.
Documents marked for the complainant side:
1.Notarized copy of RC book. EX.P1.
2.Notarized copy of DL. EX.P2
3.Xerox copy of Price list of car (4 pages). EX.P3
4.Invoice given by Leo Motors. EX.P4
5.Receipts issued by Leo Motors(5 sheets). EX.P5
6. Tax Invoice / Bills (3 sheets) EX.P6
7. Delivery check list dt. 22.8.2013 EX.P7
8.4 Insurance policy copies. EX.P8
9. Certified copy of Form No.47 with receipts EX.P9
10.Copy of the Bank statement. EX.P10
11.Xerox copy of payment receipt EX.P11
12.Xerox copy of endorsement dt.11.7.18 given by RTO EX.P12
13.Xerox copy of post-sale notice dt.12.7.18 EX.P13
14.Endorsement issued by RTO, K.R.Puram dt. 11.7.2018 EX.P14
Witness examined for the opposite party side:
Documents marked for the Opposite Party:
1. Copy of GPA dt. 18.7.20 EX.R1.
2. Original loan agreement dt. 28.8.2013 (5 sheets). EXR.2
3. copy of Bank statement of Mahindra Finance(Pg.20-25 in Version)EX.R3
4. undertaking of complainant dt,29.7.2016 EX.R.4
5. Affidavit of Subsequent purchaser EX.R.5
6. Final notice dt. 16.1.2018 EX.R.6
(REKHA SAYANNAVAR) (RAJU.K.S) (SHIVARAMA, K)
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arn
CC/392/2020
Date: 14.6.2023
Complainant/s By:
Op/s:
ORDER
The complaint is allowed in part.
The opposite party is directed to return the surplus amount with interest at the rate of 9% per annum after considering the value of the vehicle as per IDV at the time of seizure of the vehicle.
The opposite party entitle to any legal recoverable debt as per RBI Guidelines.
Further, the opposite party is directed to pay to the complainant Rs. 20,000/- as Compensation for inconvenience and mental agony. The opposite party is also directed to pay Rs.20,000/- as litigation cost to the complainant.
Further the opposite party directed to comply the Order within 30 days from the date of order. Otherwise the above said Rs.40,000/- carried interest at the rate of 9% per annum till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
(Pronounced in the open Commission on 14th day of June, 2023)
(REKHA SAYANNAVAR) (RAJU.K.S) (SHIVARAMA, K)
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