By Sri. MOHAMED ISMAYIL C.V., MEMBER
The grievance of the complainant is as follows:-
1. The complaint is filed by power of attorney holder of the complainant.On 15/10/2018, the complainant had availed a loan of Rs. 3,25,000/- from the opposite party after making hypothecation of his vehicle bearing No. KL 10 G 5994. At the time of availing loan, original Registration Certificate of the vehicle, 3 blank cheque leaves and some signed blank papers were deposited with the opposite party as security. It was instructed by the opposite party that repayment can be made in monthly instalments. Moreover the opposite party assured that there would be no charging of excess amount in case of default of instalments. It is averred by the complainant that he had been making repayment without any default. But when the complainant had committed a single default men of the opposite party approached the complainant and threatened to repossess the vehicle and demanded excess amount. It is averred that the complainant had already repaid Rs. 2,50,000/-. But due to Covid-19 pandemic situation, the complainant could not remit monthly instalments properly and thereby committed default. The opposite party approached the complainant and demanded to close the loan. So the complainant proposed to sell the vehicle and thereby make repayment of loan amount. According to the complainant, market value of the vehicle was Rs. 5,00,000/- or above. But the opposite party demanded to hand over the vehicle to them and assured that they would make sale of the vehicle for more than for Rs. 5,00,000/- and balance amount would be refunded to the complainant after deducting the defaulted loan account. On 14/09/2021, the complainant and agent of the opposite party handed over the vehicle to the opposite party after getting assurance from the opposite party that vehicle could be sold for Rs. 5,00,000/- or above. Entrustment was made solely on the basis of assurance given by the opposite party.
2. But the opposite party sold out the vehicle without giving any notice to the complainant which was against the assurance made by the opposite party. The opposite party was reluctant to communicate price of the vehicle for which it was sold out. On 06/12/2021, the opposite party had issued a notice to the complainant demanding to pay balance of loan amount even after entire sale proceeds of the vehicle were taken by the opposite party. When the complainant contacted the opposite party, it was informed that they did not sell the vehicle. But it is averred by the complainant that the opposite party had sold out the vehicle without giving any notice. According to the complainant the opposite party is liable to refund balance amount of the sale proceeds of the vehicle after closure of loan. It is alleged by the complainant that the opposite party had threatened him by make use of blank cheque leaves for securing balance of defaulted amount. The complainant has pleaded that he had suffered mental agony, hardship and financial loss due to the acts of the opposite party. The opposite party has committed deficiency in service towards the complainant. The complainant has prayed for a direction to the opposite party to return 3 blank cheque leaves and all other documents given to the opposite party at the time of availing the loan. The complainant also prayed for a direction to the opposite party to refund balance amount after deducting the due amount of loan from the sale proceeds of the vehicle. The complainant has demanded Rs. 3,00,000/- as compensation for the sufferings of mental agony, financial loss and hardship caused due to the acts of the opposite party. The complainant also demanded Rs.10,000/- from the opposite party as the cost of the proceedings.
3. The complaint is admitted and issued notice to the opposite party. The opposite party entered appearance, but did not file version within the period as envisaged in the Consumer Protection Act, 2019. So the Commission treated the opposite party as exparte.
4. The complainant filed affidavit in lieu of evidence. The complainant also produced documents and marked as Ext.A1 and A2 documents. Ext. A1 document is the Power of attorney executed by the complainant in favour of his son named Muhammed Shameem T.T. Ext. A2 document is the copy of notice dated 06/12/2021 issued by the opposite party to the complainant. There is no evidence available from the side of the opposite party.
5. Heard the complainant in detail. Perused documents and affidavit. The Commission considered following points to adjudicate the complaint.
- Whether the act of the opposite party is amounted to deficiency in service?
- Relief and cost?
6. Point No.(i) & (ii):-
The Commission is considering all the points together as those are correlated each other. The Complainant has produced power of attorney appointing his son Mr. Mohammed Shameem T.T as the power of attorney holder to conduct the case and same is marked as Ext. A1 document. The argument of the complainant is that on 15/10/2018 he had availed a loan of Rs. 3,25,000/- after hypothecating his vehicle to the opposite party. It is further argued that he had committed default in repayment of instalments due to Covid -19 pandemic situation, as a result, parties were arrived at settlement and the complainant had handed over his vehicle worth rupees more than 5,00,000/- to the opposite party . As per terms of settlement the opposite party would sell the vehicle for more than Rs. 5,00,000/- and there after close the loan and refund balance of sale proceeds to the complainant. It is alleged by the complainant that, the opposite party had sold the vehicle without giving any notice and the opposite party did not refund balance of sale proceeds after closure of the loan. Instead, the opposite party had issued Ext.A2 notice demanding more money under the pretext of due loan amount even after sale of vehicle. The complainant alleged that the opposite party had no right to issue Ext. A2 document and sale was conducted without notice to the complainant and the opposite party was liable to refund balance amount of sale proceeds of the vehicle after deducting defaulted amount of loan. So there is deficiency in service on the part of the opposite party.
7. In the evaluation of evidence, it can be seen that the complainant has failed to establish his pleadings with cogent evidence even though there was no contra evidence in this case. The pleadings of the complainant is that, he had availed a loan of Rs. 3,25000/- and repaid Rs. 2,50,000/-. But there is no evidence available before the Commission to show that complainant had remitted Rs.2,50,000/- to the opposite party. Moreover the complainant failed to disclose actual due amount of loan and number of instalments defaulted by him. The Commission also find that there is no document before the Commission to scrutinise the terms and conditions of loan availed by the complainant. It can be also seen from evidence that, the complainant has failed to establish market value of the vehicle owned by him, even though he had claimed more than Rs. 5,00,000/- as market value of the vehicle. But details of the vehicle was not produced before the Commission to find out the market value of the vehicle. The Commission find that the complainant is a defaulter in repayment of loan. The Commission consider the fact that liberty of the opposite party cannot be challenged as they got every right to take actions against defaulters until and otherwise contrary is proved by the affected party. The complainant also failed to bring out details of 3 cheque leaves and other documents executed and handed over to the opposite party at the time of availing loan. In the light of discussion made above, the Commission find that the complainant has not succeeded in proving his pleadings with sufficient evidence. There is no merit in the complaint, hence it is dismissed.
Dated this 29th day of February, 2024.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 & A2
Ext. A1 : Document is the Power of attorney executed by the complainant in favour
of his son named Muhammed Shameem T.T.
Ext. A2 : Document is the copy of notice dated 06/12/2021 issued by the opposite
party to the complainant.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
