BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 12^th day of July 2018

                                                                                                Filed on : 25.09.2015

PRESENT:

Shri. Cherian K. Kuriakose,                                              President.

Shri. Sheen Jose,                                                            Member.

Smt. Beena Kumari V.K.                                                  Member.

                                   C.C.No. 636/2015

                                             Between        

O R D E R

Sheen Jose, Member

1.  The case of the complainant is as follows:

The complainant had availed a vehicle loan for Rs.3,15,000/- from the opposite party- Mahindra & Mahindra Financial Services Ltd as per the loan agreement No.1422803 dated 30.12.2010 for purchasing the vehicle No.KL-17G-7929.  The EMI was fixed as Rs.8,860/- for 48 months.  The complainant had paid 36 EMIs regularly and after that payment, due to some financial crises further 12 instalments were defaulted by the complainant.  In the meantime the opposite party had put forward a settlement formula.  According to the offer, the opposite party would sell the vehicle after giving due notice to the complainant and adjust the amount due to them Rs.1,30,000/- from the price realized from the sale.  They further offered the complainant that they will refund the excess amount from such sale of the vehicle.  Believing the assurance given by the opposite party the complainant had given his affirmation to the formula and the vehicle was handed over to the opposite party. But as against the agreement reached between the parties, the opposite party sold the vehicle at a throwaway price without giving any pre-sale notice to the complainant. Though the market price of the vehicle sold at the time of handing over it was Rs.2,50,000/- as evident from the insurance policy.  At this juncture, it was pertinent to note that the amount due to the opposite party as on the date of handing over the vehicle was Rs.1,06,320/- But instead of refunding Rs.1,43,680/-, the opposite party had sent a demand notice dated 04.05.2015 asking the complainant to pay Rs.44,840/- so as to avoid legal action against him. The act of the opposite party to sell the vehicle for a throwaway price without giving presale notice amounts to unfair trade practice and deficiency in service. It is submitted that the complainant is not liable to pay any amount as demanded by the opposite party.  On the other hand the opposite party is liable to pay Rs.1,43,680/- to the complainant. Thus the complainant is before us seeking direction against the opposite party to pay an amount of Rs.1,43,680/- along with interest from the date of sale of the vehicle till realization also he is seeking compensation and costs of the proceedings from the opposite party. Hence the complaint.

2)       Version filed by the opposite party is as follows

The opposite party contended in their version that the complainant had availed a vehicle loan from the opposite party for purchasing a Tempo Traveler and he defaulted in repaying the loan promptly. The complainant surrendered the vehicle before the opposite party as he was not able to find out a purchaser for the vehicle as the condition of the vehicle was very dilapidated and deteriorated.  The vehicle has no market value at all since tempo trax had no market. It was only because of that reason the complainant surrendered the vehicle to the opposite party.  There was no settlement formula as alleged in the complaint.  If there is any such formula the complainant could have produced the same before this Hon’ble Forum.  It was only because of the inability of the complainant to find out a purchaser, the vehicle was surrendered to the opposite party.  No offer as alleged in the complaint was given to the complainant for refund of the amount.  If the vehicle is sold at a high rate, the dues in the account of the borrower, the respondent company could have repaid the excess amount after adjusting the liability.  That is the normal practice of the opposite party company.  The allegation that the company sold the vehicle at a throw away price without giving any presale notice to the complaint is absolutely false and hence denied.  The complainant was issued with a presale notice.  The contra allegation is false.  The further statement that the vehicle would have fetch rs.2,50,000/- at the time of handing over the vehicle is absolutely false.  The value declared in an insurance policy does not reflect the actual market price of the vehicle. If the complainant could sell the vehicle, he could have sold the vehicle in open market and close the account.  It was only because of the dilapidated condition of the vehicle and poor marketability the vehicle was surrendered to the opposite party.  At no time, the opposite party offered that the vehicle would be sold for Rs.2,50,000/- as the opposite party is selling vehicle in auction and its price cannot be fixed earlier.  The calculation of the complainant in para No.4 of the complaint is absolutely false and without any basis.  The statement that at the time of handing over the vehicle the actual due was only Rs.1,06,320/- is totally false and hence the complainant is entitled for refund of Rs.1,43,680/- from the opposite party is absolutely false and baseless.  The vehicle was sold only for Rs.66,000/- and the sale of the vehicle was communicated to the complainant and the complainant was very well aware of the sale  of the vehicle.  There was no prohibition for the complainant to participate in the auction.  But, the complainant chose to be absent from the auction sale and cannot raise these contentions before this Hon’ble Forum. The complainant is not entitled for getting any reliefs as claimed in para No. 5 and 6.  The allegation of non-issuance of presale notice is absolutely false and hence there is no unfair trade practice or deficiency in service on the part of the opposite party.  The contra allegations are false. There is no deficiency in service or unfair trade practice on the part of the opposite party.  The complainant is not entitled to get any of the reliefs sought for this complaint. It is submitted that the Forum may be pleased to accept this version and dismiss the complaint with exemplary cost with the opposite party.

3)                 Evidence in this case consists of documentary evidences adduced by the complainant which were marked as Exbt. A1 to A3. Exbt.B1 to B5 were marked on the side of the opposite party. No oral evidence adduced by both the complainant and the opposite party. Heard the learned Counsel for the complainant and the opposite party.

Issues came up for considerations are as follows:

1. Whether the complainant has proved any deficiency in service or unfair trade practice on the part of the opposite party?
2. Whether the complainant is entitled to get an amount of Rs.1,43,680/- along with @ 12% from the opposite party?
3. Whether the opposite party is liable to pay compensation and costs of the proceedings to the complainant?

Issue No. (i)

          The complainant had availed a vehicle loan for an amount of Rs.3,15,000/- from the opposite party vide loan agreement No. 1422803 for purchasing a Tempo Trax on 31.12.2010.  The repayment of the loan amounts was defaulted due to the heavy financial crisis of the complainant. Thereafter the complainant had surrendered his vehicle before the opposite party. At the time of surrendering the vehicle the opposite party agreed to the complainant that, they would sell the vehicle after giving due notice to the complainant and adjust  the amount due to them Rs.1,30,000/- from the price realized from the sale. They also offered to refund the excess amount if any would have been fetched for the vehicle. The complainant alleged that the opposite party sold the vehicle without giving any presale notice to the complainant. Further they sent a demand notice to the complainant on 04.05.2015 to pay Rs.44840 /- so as to avoid legal action against him. The complainant stated in his complaint that the opposite party sold the vehicle at below market price. He pointed out that the market price of the vehicle at the time of handing over though it was Rs.2,50,000/- as evident from the insurance policy.  The complainant argued that the above said act of the opposite party is amounted to clear deficiency in service and unfair trade practice also. Exbt.A1 repayment details of the complainant dated on 14.01.2014 would shows that the complainant had availed an amount of Rs.3,15,000/- towards vehicle loan from the opposite party. The complainant agreed that he would repay in 48 equal monthly installment of Rs.8816/- to the opposite party. Exbt.A2 demand notice issued by the opposite party on 04.05.2015 shows that the opposite party demanded pay an amount of Rs.44,840/- from the complainant towards settling the vehicle loan account and to avoid legal action against him. Exbt.A3 insurance of the disputed vehicle issued by reliance General Insurance from 22.01.2011 to 21.01.2015 shows that insured declared value (IDV) of the disputed vehicle is Rs.25,000/-.

          We have carefully gone through the Exbt.A1 to A3 evidence adduced by the complainant and could not find any promise or assurance given by the opposite party to the complainant that they were to adjust the loan amount due an amount of Rs.1,30,000/- and the excess amount will be refunded for the sold vehicle. The opposite party argued that the complainant is an intentional defaulter and he surrendered the vehicle before the opposite party as he was not able to find out a purchaser for the vehicle as the condition of the vehicle was dilapidated and destroyed.  The vehicle has no market value at all and tempo travel has no market value it was of that reason the complainant surrendered the vehicle before the opposite party. The allegation that the company sold the vehicle at a throw away price without give any presale notice to the complainant is absolutely false.  Exb.B3 presale notice issued to the complainant on 17.11.2014.  Further they argued that the IDB value fixed by the company Rs.2,50,000/- and the tempo traveler was sold at throw away price which is below the IDB value. The opposite party on other side contended that the value declared in insurance policy does not reflect the actual market value of the vehicle that the complainant is at liberty to sell the temp traveler in the open market to fetch a higher value. The above contentions made by the opposite party is found reasonable and we are inclined to accept the contention of the opposite party.  In the above facts and circumstances we are of the opinion that the complainant has failed to prove that the temp traveler could fetch the IDB value of Rs.2,50,000/- or more.  In the absence of the substantial and reliable evidence we find that  the complainant could not establish any deficiency in service or unfair trade practice on the part of the opposite party hence we decide the 1^st issue against the complainant.

Issue No. (ii)

          Having found issue No. (i) against the complainant, we are not inclined to consider and decide issue Nos. (ii) and (iii).

          In the result we find that the complaint is liable to be dismissed.  Accordingly the complaint stands dismissed.

Pronounced in the open Forum for the day 12^th day of July 2018

                                                                   Sd/-Sheen Jose, Member

                                                                   Sd/-Cherian K. Kuriakose, President

                                                                    Sd/-Beena Kumari V.K., Member

         Forwarded by Order

       Senior Superintendent

APPENDIX

Opposite party’s Exhibits     ::   

Date of Despatch   :
 

          By Hand      ::

          By Post       ::

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