By Smt. E. Ayishakutty, Member,

1. Complaint in brief is as follows:

Complainant is the registered owner of the vehicle No.KL10 V 870 Eischer LGV and was financed by opposite party for Rs.3,81,000/- including Rs.1,91,757/- as finance charges on 20-3-2007. As per the finance agreement he has to pay an amount of Rs.3,81,000/- including the finance charges within 40 months. This vehicle was the only source of income to his livelihood. Complainant paid an amount of Rs.2,28,000/- to opposite party and when an amount of Rs,58,000/- (Rupees Fifty eight thousand only) was due, opposite party seized the vehicle without the permission of complainant on first week of July, 2008. Then complainant approached opposite party with an amount of Rs.70,000/- (Rupees Seventy thousand only) including overdue interest and finance charges for release of the vehicle. But opposite party demanded huge amount without any support of law. Then on 04-7-2008 opposite party issued a letter to the complainant requesting him to pay an amount of Rs.4,60,938/- within 7 days. Then complainant approached opposite party on several times to get the details of the account but opposite party refused to give the details of the account. On 25-8-2008 complainant sent a lawyer notice to opposite party. In the reply notice opposite party states that complainant took an additional loan of Rs.92,000/- from opposite party and nothing has paid towards this loan. Complainant never took any personal loan from opposite party and opposite party misused the blank format obtained from the complainant while first loan was granted and might have created such an account. Complainant filed an I.A. before the Forum to get an interim order to release the vehicle. The Forum directed the complainant to remit Rs.58,000/- to opposite party on or before 05-11-2008 and ordered opposite party to release the vehicle if the complainant pay Rs.58,000/-. Though the complainant ready to pay the amount, opposite party has not ready to accept the amount and release the vehicle. Opposite party stated that the vehicle already sold to a third party. Opposite party has no authority to seize and sell the vehicle as per law. Opposite party seized it and sold it illegally without any notice to the complainant. Hence complainant filed this petition before the Forum alleging deficiency on the part of opposite party No.1.

2. Complainant prays for compensation of Rs.2,28,000/- with 36% interest and for an amount of Rs.1 lakh towards the deficiency of service committed by opposite party. He also prays for Rs.5,000/- as cost of the proceedings.

3. Opposite party No.1 filed version. He is contesting the jurisdiction of the Forum to consider this complaint. Opposite party No.1 states that in the agreement entered by opposite party and complainant on 20-3-2007 is containing an Arbitration clause. The arbitrator is functioning at Calicut. So Calicut alone shall have jurisdiction to decide this dispute.

4. Opposite party admits he has financed the complainant for purchasing the vehicle bearing Registration No.KL10 V 870 Eischer LGV as per the agreement dated, 20-3-2007. Opposite party financed Rs.3,81,000/- with finance charges Rs.1,91,757.30 and repayable within a periods of 42 months. But complainant failed and defaulted to pay the amount as per agreement. He paid altogether an amount of Rs.1,83,960/- and an amount of Rs.3,54,309.97 was remain due and payable as on 31-8-2008. Complainant also availed a personal loan of Rs.92,000/- from opposite party and this amount also agreed to pay instalment basis along with finance charges. Rs.1,07,774.97(Rupees One lakh seven thousand, seven hundred and seventy four and paise ninety seven only) remain due towards this personal loan. Altogether complainant has to pay an amount of Rs.4,62,054/- as on 02-9-2008. Complainant is liable to pay over due compensation in case of defaulting the instalment at the rate of 36% per annum. The allegation that complainant contacted opposite party with Rs.70,000/- (Rupees Seventy thousand only) is not true or correct. Opposite party has right to get the vehicle surrendered from complainant in case the instalments are not paid promptly. Opposite party has given opportunity to the complainant in many times to clear the dues but he has not paid the dues. So opposite party has sold the vehicle through a public auction on 25-9-2008 for an amount of Rs.3 lakhs (Rupees three lakhs only). The amount was adjusted to the due of complainant. An amount of Rs.2,76,337/- along with future overdue remain due and payable by the complainant to opposite party after adjusting the sale amount of the vehicle. Opposite party states that complainant who could not run the vehicle has surrendered it with his full consent. He has filed this complaint only to escape from the consequences of the non compliance of the terms and conditions of the agreement in future. Therefore the complaint is liable to be dismissed with compensatory cost of opposite party No1.

5. Complainant filed affidavit and documents as evidence. Ext.A1 to A6 marked on the side of him. Ext.A1 is the acknowledgement card received from opposite party to the lawyer notice sent by complainant. Ext.A2 is the reply of lawyer notice sent by opposite party No.1 to the complainant on 09-9-2008. Ext.A3 is the photo copy of the Registration certificate of the vehicle KL10 V 870. Ext.A4 is the hirer ledger details as on 09-4-2008. Ext.A5 is a letter sent by Regional Transport Authority, Malappuram to the complainant. Ext.A6 is the copy of the letter sent to Regional Transport Authority, Malappuram by the complainant.

6. Opposite party No.1 filed affidavit. Ext.B1 to B4 marked on the side of opposite party No.1. Ext.B1 is the hypothecation agreement with schedule. Ext.B2 is the details of the personal loan. Ext.B3 is the details of the vehicle loan. Ext.B4 is the acknowledgement receipt of the reply of opposite party lawyer notice.

7. Complainant examined as PW1. Opposite party No.1 examined as DW1 and a witness for opposite party also examined.

8. The main points for consideration:-

(i) Whether the Forum has jurisdiction to entertain this complaint.

(ii) Whether opposite party committed any deficiency in their service.

(iii) If so what is the relief and costs.

9. The main contention of opposite party No.1 is the Forum has no jurisdiction to consider the complaint because the agreement entered between the complainant and opposite party is containing an arbitration clause. The arbitrator is functioning at Calicut and Calicut alone shall have jurisdiction to decide this case. In this complaint complainant alleges deficiency of service on the part of opposite party No.1. Such a question to be adjudicated by consumer Fora which are constituted with the object of inexpensive and speedy remedy for the consumers against the exploitation of the traders and service providers. The apex court has made a notable observation in 1996(3) CPJ (1) SC and 2000 (CTJ 32) (SC) (CP) that even if there exists an arbitration clause in an agreement and a complaint is made by a consumer in relation to deficiency of service then the existence of an arbitration clause in an agreement will not be a bar to the entertainment of complaint by the redressal agencies constructed under the Consumer Protection Act. So the Forum has jurisdiction to interfere this case.

10. As per agreement complainant availed a loan of Rs.3,81,000/- (Rupees Three lakh, eighty one thousand only) and the amount repayable with interest of Rs.1,91,757.30 is Rs.5,72,757/- (Rupees Five lakh, seventy two thousand, seven hundred and fifty seven only) within 42 months. The payment date of the last instalment is on 20-3-2010. As per Ext.A4, the hirer ledger details complainant had paid Rs.2,02,650/-(Rupees two lakh, two thousand, six hundred and fifty only) in total as on 31-3-2008. Complainant states that opposite party has repossessed the vehicle on 1^st week of July, 2008 sixteen months after the commencement of agreement. The interest was calculated in total basis. After deducting the paid amount from the payable amount Rs.5,72,757/- (Rupees Five lakh, seventy two thousand, seven hundred and fifty seven only) is Rs.3,70,157/-(Rupees three lakh, seventy thousand, one hundred and fifty seven only). The last date of the payment as per agreement as on 20-8-2010. But opposite party seized the vehicle on 1^st week of July, 2008 and sold the vehicle on 25-9-2008. On 04-7-2008 opposite party issued a letter to the complainant demanding Rs.4,60,938/- (Rupees Four lakh, sixty thousand, nine hundred and thirty eight only) including a personal loan of Rs.92,000/- within 7 days. According to complainant opposite party has seized the vehicle when the due of Rs.58,000/- (Rupees Fifty eight thousand only). Opposite party has not stated how much amount opposite party has paid and how much he has to pay during this period. He demanded the amount in a total basis. It is clear that the interest is calculated by opposite party, in a total basis that is in 42 months and the vehicle was repossessed by opposite party, before 26 months of the agreed period and sold it to a third party. Opposite party stated the sale amount is credited to the due of complainant. So the amount received to opposite party before the stipulated period and hence the interest is very less than the calculated interest for 42 months.

11. Then another contention of the complainant is the value of vehicle at the time of lending is not entered in the agreement schedule. The column left as unfilled. Complainant contends that the vehicle has worth more than Rs.6,72,000/-. Opposite party sold the vehicle to a third party for Rs.3 lakh only. But he has not produced the sale details or documents before the Forum. Opposite party has not entered the value of the vehicle on the agreement schedule at the time lending money. So it is clear that the vehicle should more worth than the repayable amount. Opposite party deposed in the box that the valuation has done after repossessed the vehicle but not credited in the account. He also states that he has not issued notice to the complainant intimating the date of auction of the vehicle and not informed the amount which he received to the vehicle in auction.

12. After taking possession of the security immediate valuation has to be done and the value must have to be credited tot he account of debtor. There is no evidence to prove that opposite party has obeyed all these legal procedures. Therefore in our opinion opposite party is deficient on his service in this aspect.

13. Another contention of opposite party No.1 is that complainant availed a personal loan of Rs.92,000/-.. No documents produced before the Forum for supporting this contention. Complainant states that it is a created case to demand more money from him as due. He states that opposite party No.1 misused the blank format obtained from him while the first loan was granted and might have credited such an account. The only document which opposite party No.1 produced in support of this contention is Ext.B2. It shows that the loan sanctioned on 18-3-2008 and the last payment date on 20-4-2012. Not mentioned the instalment amount or the number of instalment extra. No signature of the concerned officers is seen in it. So this document is not a dependable one in support of the contention of the opposite party that complainant availed a personal loan of Rs.92,000/-.

14. Another contention of opposite party is complainant surrendered the vehicle with his full consent. But there is no evidence to prove this contention of opposite party. If the complainant surrender the vehicle with his consent, then opposite party has to taken the valuation of the vehicle and make settlement details. Opposite party No.1 has not produced such details before the forum. He applied for a duplicate Registration Certificate for the vehicle and then opposite party No.2 sent a letter to the complainant directing him to surrender the Registration Certificate of the vehicle for issuing duplicate Registration Certificate in favour of opposite party No.1.

15. So from all the above discussions we come to the conclusion that opposite party No.1 is deficient in his service and so he is not escape from liability. He is not entitled to get any amount from the complainant.

16. Opposite party No.1 admits that he has sold the vehicle for Rs.3 lakh. Complainant has paid Rs.2,02,650/- as per Ext.A4. So opposite party No.1 has received Rs.5,02,650/- towards the vehicle loan dues. Complainant has to pay Rs.5,72,757/- till the last payment date as on 20-8-2010. Opposite party seized the vehicle on first week of July, 2008. He admits in the box that he has calculated the value of the vehicle at the time of repossession. So complainant is liable to pay interest till the repossessed date that is 16 months interest only. Interest for 42 months is Rs.1,91,757/-. Dividing this amount to 42 months, the interest for 16 months is Rs.73,056/- (Rupees Seventy three thousand and fifty six only). So reducing this amount from the total interest amount of Rs.1,91,757/- is Rs.1,18,701/- (Rupees One lakh, eighteen thousand, seven hundred and one only). Deducting Rs.1,18,701/- from the total payabale amount of Rs.5,72,757/- is Rs.4,54,056/-(Rupees four lakh, fifty four thouand and fifty six only). But opposite party has received Rs.5,02,650/-(Rupees Five lakh, two thousand, six hundred and fifty only) opposite party received an excess amount of Rs.48,594/-(Rupees forty eight thousand five hundred and ninety four only). So complainant is entitled to get this amount from opposite party No.1.

17. In the result we allow the complaint partly and direct opposite party No.1 to pay an amount of Rs.48,594/-(Rupees forty eight thousand five hundred and ninety four only) to the complainant within one month from the date of receipt of copy of this order. Failing which opposite party No.1 shall pay 10% interest for the amount from the date of order till realisation. No order as to cost.

Dated this 12th day of August, 2010.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : Abdul Kareem, Complainant.

Documents marked on the side of the complainant : Ext.A1 to A6

Ext.A1 : Acknowledgement card received from opposite party to complainant.

Ext.A2 : Reply of lawyer notice dated, 09-9-2008 by first opposite party to complainant.

Ext.A3 : Photo copy of the registration certificate of Vehicle No.KL10 V 870.

Ext.A4 : Hirer ledger details as on 09-4-2008.

Ext.A5 : Letter sent by Regional Transport Authority, Malappuram to complainant.

Ext.A6 : Copy of the letter sent by complainant to R.T.A., Malappuram.

Witness examined on the side of the opposite parties : DW1 and DW2

DW1 : Anil Niravil, witness on behalf of opposite party.

DW2 : G. Ranjith, Field Executive, Shriram Transport Finance Co.Ltd., Manjeri.

Documents marked on the side of the opposite parties : Ext.B1 to B4

Ext.B1 : 0Hypothecation Agreement with schedule.

Ext.B2 : Computer print of the details personal loan.

Ext.B3 : Computer print of the details of the vehicle loan.

Ext.B4 : Acknowledgement receipt of the reply notice.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER