Karnataka

Chitradurga

CC/31/2017

Sri. Nagesh, S/o Raju - Complainant(s)

Versus

Manager, Hinduja Leyland Finance Ltd. - Opp.Party(s)

Khalid Ahamed

06 Jan 2018

ORDER

COMPLAINT FILED ON:17.03.2017

DISPOSED      ON:06.01.2018

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 31/2017

 

DATED:  6^th JANUARY 2018

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        :MEMBER

                                 B.A., LL.B.,   

……COMPLAINANT	Nagesh, S/o Raju, Driver, Door No.4143, IUDP Layout, 4th Cross, 4th Main. Chitradurga.     (Rep by Sri.Khalid Ahmmed, Advocate)
V/S
…..OPPOSITE PARTIES	1.The Manager, Hinduja Leyland Finance Ltd., Near Mahesh Motor, Mahindra Complex, RTO Office Road, Chitradurga Town.   2. The Manager, Hinduja Leyland Finance Ltd., Corporate Office, No.27-A, Developed Extension, Guindi, Chennai-600032.   (Rep by Smt.G.K.Mallikarjuna Swamy, Advocate)

ORDER

SRI. T.N.SREENIVASAIAH : PRESIDENT     

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to pay Rs,1,00,000/- with interest @ 18% and such other reliefs.

2.     The brief facts of the case of the above complainant are that, he purchased one Hero Honda Splendor Plus bearing Reg.No.KA-16 ED 6905 on 05.10.2015 under hire purchase agreement with the OPs by obtaining loan from the OPs for Rs.41,000/-.  The complainant has paid a sum of Rs.19,900/- on 07.09.2015, as per retail invoice dated 07.09.2015.  The complainant had remitted the installments of Rs.2,280/- per month and now the complainant is due only for four installments and he is ready and willing to remit the balance four installment amount to complete the loan.  It is further submitted that, on 09.11.2016, OP No.1 without issuing any    notice and without following any procedure entered into between the complainant and OPs.  The OP No.1 forcibly seized the vehicle under the custody of the complainant without following the procedure which amounts to unfair trade practice, defective and deficiency in service.  It is further submitted that, on 31.12.2016, the complainant issued a legal notice to the OPs and stated that, he is ready to pay the installments due to the OPs calling upon them to hand over the seized vehicle within seven days from the date of receipt of the notice.  The OP No.1 has received the notice but, did not replied to the said notice nor tendered the vehicle by receiving the installments due.  On 16.01.2017, Hinduja Leyland Finance, Davanagere relied on the said notice stating that, the complainant is still due for a sum of Rs.48,122/-, the same has to pay within 8 days and to take back the vehicle.  It is further submitted that, the complainant has remitted the entire amount to the OPs.  The complainant is still due only four installments i.e., for Rs.9,120/- if the OPs ready to deliver the vehicle which is seized illegally, contrary to the terms of agreement and unlawfully, which is a deficiency of service on the part of OPs and therefore, the complainant has suffered mental agony and inconvenience.  The cause of action for the complaint arose on 09.11.2016 when the OPs have seized the vehicle and the complaint is filed within two years and prayed for allow the complaint. 

3.     After service of notice to the OPs, Sri. G.K. Mallikarjuna Swamy, Advocate appeared on behalf of OPs and filed version.  According to the OPs, the complainant is not a consumer and this Forum has no jurisdiction to entertain this complaint.  The complaint filed by the complainant is not maintainable.  There is a contract entered into between the complainant and the OPs and the complainant is at liberty to file the Arbitration case before the Arbitration Court and this Forum has no exclusive right to decide the case.  According to the agreement, the complainant is at liberty to file the case before the Chennai Jurisdictional Court not before this Forum.  There is no cause of action to file a complaint before this Forum.  The complaint filed by the complainant is false, frivolous and vexatious and the same is not maintainable either in law or on facts and the same is liable to be dismissed in limine.  The contents or allegations made in para 1 and 2 are denied as false, the complainant is put to strict proof of the same.  According to the OPs, the complainant has obtained loan from them on 31.10.2015 for Rs.41,000/- for the purpose of purchasing the vehicle Hero Honda Splendor Plus bearing Regn. No.KA-16 ED 6905 as per the loan agreement No.KADVCHTW00026.  As per the said agreement, the complainant has agreed to repay the loan amount within 24 equated monthly installments with interest commencing from 05.12.2015 to 05.11.2017.  The complainant has not paid the entire loan amount to the OPs as statement filed by the OPs.  After seizing of the vehicle, the OPs have issued notice to the complainant and given time to settle the loan amount and take back the vehicle.  But, the complainant did not come forward to pay the outstanding due.  With no other option, the OPs have seized the vehicle.  Before seizing of the vehicle, the OPs have also issued the repossession notice to the complainant but, the complainant has stated in his complaint that, the OPs have not followed the procedure before seizing the vehicle, which is not correct.  Therefore there is no deficiency of service on the part of OPs and prayed for dismiss the complaint. 

 4.    Complainant has examined as PW-1 by filing affidavit evidence and relied on the documents like Ex.A-1 to A-5 and closed his side. OPs have examined one Sri N. Girish as DW-1 and relied on Ex.B-1 to B-7 documents and closed their side.   

5.     Arguments heard. 

6.     Now the points that arise for our consideration for decision of above complaint are that;

1. Whether the complainant proves that the OPs have seized the vehicle without following the procedure as contemplated under law and committed deficiency in service and entitled for the relief as prayed for in the complaint?

 

(2) What order?

 

7.     Our findings on the above points are as follows:-

        Point No.1:- Partly in Affirmative.

        Point No.2:- As per final order.

REASONS

8.     It is not in dispute that, the complainant has purchased one Hero Honda Splendor Plus bearing Reg.No.KA-16 ED 6905 by obtaining the loan from the OP No.1 and had paid Rs.19,900/- on 07.09.2015 under hire purchase agreement.  The OPs have sanctioned the loan of Rs.41,000/- to the complainant for the purpose of purchasing the said vehicle.  The complainant agreed to repay the above said loan amount within 24 EMI at Rs.2,280/-.  According to the complainant, he has paid the entire loan amount except four installments.  As per the documents produced by the complainant which clearly shows that the complainant has paid loan amount to the OPs and only four installments are due.  The OPs have filed their version stating that, the complainant has obtained the loan of Rs.41,000/- for the purpose of purchasing the vehicle and the complainant is still due for Rs.48,122/-.  But, here the point for consideration is whether the OPs have followed the procedure before seizing the vehicle from the custody of the complainant.  As per the exhibits and version and the contents of the complaint, it clearly shows that, the OPs have not followed the procedure before seizing the vehicle.  The OPs have forcibly seized the vehicle from the custody of the complainant without following the procedure.  But, according to the OPs, they have issued repossession notice to the complainant before seizing of the vehicle but, they have not produced any documents to show that, to prove the same. Therefore, the OPs have committed deficiency of service in seizing the vehicle without following the procedure as contemplated under law.  The OPs have stated that, the complainant is still due for an amount of   Rs.48,122/-.  If the complainant is in due, the OPs have to issue the notice to the complainant calling upon him to pay the due amount but, in this case the OPs have not issued any pre-seizure notice to the complainant.

9.     We have gone through the entire pleadings, version, documents, affidavits and written arguments filed by both the parties, which clearly shows that, there is no dispute between the parties that the complainant has purchased the Hero Honda Splendor Plus bearing Reg.No.KA-16 ED-6905 by obtaining loan from the OP No.2 on 05.10.2015.  The complainant has paid Rs.19,900/- to the OPs on 07.09.2015, the OP No.2 has sanctioned the remaining amount of Rs.41,000/-.  Complainant agreed to repay the loan amount to the OPs in 24 installments at Rs.2,280/-.  According to the complainant, he has paid the entire amount, the balance is only for Rs.9,200/- but, according to the OPs, the complainant is still due of Rs.48,000/-.  But here the point for consideration is whether the OPs have followed the procedure before seizing the vehicle from the custody of the complainant.  As per the documents produced by both the parties, which clearly shows that, the OPs have not followed the procedure before seizing the vehicle from the custody of the complainant, which is a deficiency of service on the part of OPs.  Hence, this Point No.1 is held as partly affirmative to the complainant.

 

          10.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

          The complaint filed by the complainant U/s 12 of C.P Act 1986 is partly allowed.

          It is ordered that, the OPs are hereby directed to pay Rs.50,000/- towards compensation along with interest @ 9% p.a from the date of complaint till realization to the complainant as the OPs have not followed the procedure before seizing the vehicle.

          It is further ordered that, the OPs are hereby directed to pay Rs.10,000/- towards mental agony and Rs.5,000/- towards cost of the proceedings to the complainant. 

          It is further ordered that, the OPs are hereby directed to comply the above order within 30 days from the date of this order.

            (This order is made with the consent of Member after the correction of the draft on 06/01/2018 and it is pronounced in the open Court after our signatures)

           

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:- Sri. N. Girish by way of affidavit evidence.

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Retail Invoice dated 07.09.2015
02	Ex.A-2:-	Receipt dated 07.09.2015 for having paid Rs.19,900/-.
03	Ex.A-3:-	Legal notice dated 31.12.2016
04	Ex.A-4:-	Postal receipts and postal acknowledgements
05	Ex.A-5:-	Letter dated 16.01.2017 by OPs

 

Documents marked on behalf of OPs:

01	Ex-B-1:-	Loan Agreement
02	Ex.B-2:-	Application Form-TW
03	Ex.B-3:-	Retail Invoice dated 07.09.2015
04	Ex.B-4:-	Election ID Card
05	Ex.B-5:-	DL
06	Ex.B-6:-	Pass Book with statement
07	Ex.B-7:-	Special Power of Attorney

 

 

MEMBER                                                            PRESIDENT

Rhr**