SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> This is a complaint filed by the complainant seeking to realize compensation and costs.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant on 31.5.2002 purchased a vehicle Maruthi Zen, Dx-1 car availing loan from the opp.party bank, after executing a loan cum hypothecation agreement bearing No.VERN 00000207. The registration No. allotted to the car is KL.2 N 2133 . The loan amount was to be repaid in 36 monthly instalments. The opp.party obtained 36 cheque leaves from the complainant. The complainant has remitted 15 instalments and 21 instalments were outstanding payment. But due to sudden financial difficulties he could not make payments of instalments thereafter. Thereupon the opp.party issue notice and the complainant approached the opp.party on 30.9.2004 and after discussion, the complainant was given 28 days to clear of the arrears. The complainant surrendered the car to the opp.party who agreed to release the car on clearing arrears . At the time of surrender there was a MP3 JVC stereo set in the car. The car at that time would have fetched Rs.3,10,000/-. When the complainant approached the opp.party for clearing the arrears he was told that the car has already been sold, and a sum of Rs.6,106/- remains as arrears which is to be paid by the complainant. The opp.parties have sold the car without completing the formalities. The action of the opp.party amounts to deficiency in service and unfair trade practice. The complainant suffered monetary loss and mental agony for which he is entitled to get Rs.10,000/- as compensation. He is also entitled to get Rs.3,43,000/- towards the value of the car. Hence the complaint.<br /> <br /> The opp.parties filed a joint version contending, interalia, that the complaint is not maintainable either in law on or facts. The complainant is not a consumer within the meaning of section 2 [1] [d] of the Consumer Protection Act. As per the hypothecation Agreement executed by the complainant for the purpose of availing the loan facility from the opp.parties they are the owner of the vehicle. As per the terms of Hypothecation Agreement the complainant was only a bailee and he was not have any proprietory right over the vehicle. The complainant has not hired any services of the opp.party. Therefore the complaint is not maintainable before this Forum.. The complainant has approached this Forum with unclean hands suppressing the material facts. The definition of complaint, complainant, consumer dispute service as defined in section 2 [1] of the Consumer Protection Act do not cover the claim made out in the complaint. On 315.2002 the complainant executed hypothecation agreement No. VERN 00000207 for the purchase of a Maruthi Zen DXI vehicle. The loan was to be repaid in 36 instalments at the rate of Rs.9,708/- per month. The complainant can claim the ownership of the vehicle only after termination of the hypothecation agreement on repayment of the entire loan amount. The complainant has defaulted monthly instalments and thereupon the opp.party on 1.3.2004 issued a registered letter asking him to repay the defaulted instalments. But the complainant failed to comply with the demand. Again the opp.party sent another registered letter on 16.9.2004 calling upon the complainant to pay 15 defaulted instalments. On receipt of the said notice the complainant surrendered the vehicle on 30.9.2004 and executed a letter of surrender in favour of the opp.party. The opp.party prepared a surrender inventory at the time of surrender mentioning the condition of the vehicle and the details of accessories attached with the car. Opp.party and have also issued a letter to the complainant expressing their willingness to release the vehicle to the complainant in the event of clearing the outstanding dues within 28 days from 30.9.2004. The complainant neither cleared the outstanding dues nor repaid the loan amount within the stipulated period. There upon the opp.party issued a registered notice to the complainant on 1.10.2004 terminating the hypothecation agreement and demanding to pay a sum of Rs.2,69,706/- with interest at the rate of 14.01% per annum. Since no response came from the complainant the opp.parties sold the vehicle on 9.12.2004 after due publication in the new paper, seeking quotations for the sale of the vehicle. The vehicle was sold to the highest bidder for a sum of Rs.2,65,000/- . The opp.party has every right to take possession of the vehicle and to terminate the hypothecation agreement in case of default. There is no deficiency in service or unfair trade practice on the side of the opp.parties. The opp.parties sent demand notice to the complainant on 11.12.2004 for payment of outstanding amount of Rs.6,106/- for which the complainant sent a reply notice to the opp.party on 29.12.2004 raising baseless allegations. The opp.party had given sufficient opportunity for the complainant to settle the outstanding dues and also for taking delivery of the vehicle after clearing the vehicle, for which the complainant did not response. Hence the opp.parties prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration are: <br /> 1. Whether the complainant is a consumer.<br /> 2. Whether there is any deficiency in service on the side of the opp.parties<br /> 3. Whether there is any unfair trade practice on the side of the opp.parties.<br /> 4. Reliefs and costs.<br /> <br /> For the complainant PW.1 is examined. Ext. P1 to P5 are marked.<br /> For the opp.party DW.1 is examined. Ext. D1 to D12 are marked.<br /> <br /> Points: 1<br /> <br /> The contention of the opp.party is that the complainant is not a consumer within the meaning of section 2 [1][d] of the Consumer Protection Act. It is argued by the learned counsel of the opp.parties that as per the Ext.D1 Hypothecation Agreement the complainant is only hirer of the vehicle and de-jure ownership of the vehicle is vested with the bank, so long as the hypothecation agreement is in force. So it is argued that the complainant is not a consumer and as such this complaint is not maintainable. In support of his contention he has relied on decision of the National Commission reported in 2005 CPJ Vol.3 page NO. 21 wherein the National Commission has held that as ownership of the vehicle is vested with the respondent the petitioner did not have locus standi to file the complaint as rightly held by the District Forum. Clause 14 A [iii] of Ext. D1 deals with enforcement provision in the event of default. It is clearly stipulated that the bank has right to take possession of the vehicle and to sell the same by auction and the proceed against the borrower for the balance amount due. The learned counsel for the opp.party would argue that the repossession of the vehicle in the light of the above clause is perfectly within their right and in support of that contention he has relied on the decision of the National Commission reported in 2007 CPJ Vo. II page 325 wherein it was held in an identical case that the bank is authorized to repossess the vehicle on the basis of the hypothecation agreement in case of default in payment of instalments by the borrower. In the decision reported in 2006 CPJ Vol. 3 page 247 the National Commission had held that under hypothecation agreement the financier is not rendering any service within the meaning of Consumer Protection Act and therefore the hirer is not a consumer within the meaning of Section 2 [1] [d]. The learned counsel for the opp.party would argue in the light of the decisions referred to above that the complainant herein is not a consumer and that this complaint is not maintainable before this Forum. On perusing the above decision and hearing arguments of both sides we are of the view that the complainant herein is not a consumer within the meaning of section 2 [1] [d] of the Consumer Protection Act. 1986 and as such this complaint is not maintainable before this Forum. Point found accordingly.<br /> <br /> <br /> <br /> Points 2 to 4<br /> <br /> The contention of the learned counsel for the complainant is that the opp.parties without observing the procedure and formalities sold the vehicle surrendered by him on understanding that the same will have to be returned to the complainant on payment of defaulted instalments and therefore the conduct of the opp.party amounts to deficiency in service and unfair trade practice. Admittedly the complainant is a defaulter. In fact PW.1 in cross-examination has admitted that due to financial difficulties he could not remit certain instalments due as per the hypothecation agreement. He has not denied the suggestion of the learned counsel for the opp.party that when the letter demanding payment of the defaulted instalments was issued on 1.3.2004, 12 instalments were defaulted. He gave an evasive answer that he do not know. PW.1 further admitted that he has surrendered the vehicle of his own on receipt of the notice and there was no forcible seizure of the vehicle by the opp.party. In fact the opp.party has given 28 days time to the complainant for payment of arrears after the surrender of the vehicle on 30.9.2004 which is admitted by the complainant in cross examination. According to the opp.party the complainant did not pay the amount in spite of giving time and therefore they have taken steps for the sale of the vehicle after making necessary publications evidenced by Ext. D7 and D8 and that there is no unfair trade practice or deficiency in service on their part. It is further argued that the bank is authorized to repossess the vehicle as per the terms of Ext. D1 hypothecation agreement on failure to pay instalments by the borrower. The Honourable Supreme Court in the decision reported in 2007 CPJ Vol. II P 45 has held that “if agreement permit the financier to take the possession of the financed vehicle, there is no legal impediment on such possession being taken. Of course the hirer can avail such statutory remedy as may be avail able. But mere fact that possession has been taken cannot be a ground to contend that the hirer is prejudiced”. Had the opp.parties seized the vehicle forcibly it could have been said that there is unfair trade practice on the side of the opp.parties. Ext. D4 letter shows that after voluntary surrender of the vehicle the opp.party had been given sufficient time to the complainant to clear the arrears and take back possession of the vehicle. But the complainant did not avail of that opportunity. The complainant cannot take his on time to make payments and the opp.party cannot be expected to wait till the complainant pays the defaulted amount. In our view reasonable opportunity has been given by the opp.party herein to the complaint to clear the arrears and only thereafter they have exercised their power authorized by the provisions of Ext. D1 hire purchase agreement. In these circumstances we find that there is no deficiency in service or unfair trade practice on the side of the opp.party. Point found accordingly<br /> <br /> In the result the complaint fails and the same is here by dismissed. No costs.<br /> <br /> Dated this the 14th day of October, 2008.<br /> <br /> .<br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1. – A. Sarafudheen<br /> List of documents for the complainant<br /> P1. – Reply notice<br /> P2. – Postal receipt<br /> P3. – Postal receipt<br /> P4. – Acknowledgement card<br /> P5. – AD Card<br /> List of witnesses for the opp.party<br /> DW.1. – Padmakumar<br /> List of documents for the opp.party<br /> D1. – Loan agreement<br /> D2. – Demand promissory note<br /> D3. – letter of surrender of the Asset by the borrower<br /> D4. – Letter sent by Relationship officer ING Vyshya Bank to the complainant<br /> D5. – Inventory of items [AnnexureII]<br /> D6. – Notice issued by the opp.party<br /> D7. – Manorama daily classified<br /> D8. – BID from customer<br /> D9. – Letter sent by Abdullakutty to the Manager, ING Vysya Ban k<br /> D10. – Letter sent by ING Vysya Bank to the complainant dt. 11.12.2004<br /> D11. – Reply notice dated 11.01.2005<br /> D12. – Statement of accounts<br />