Kerala

Idukki

CC/375/2016

AnilKumar - Complainant(s)

Versus

Manager SreeRam Transport - Opp.Party(s)

Adv.Shiji Joseph

27 Sep 2019

ORDER

DATE OF FILING : 30.12.2016

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 27^th day of September, 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P MEMBER

CC NO.375/2016

Between

Complainant : Anilkumar, S/o. Krishnankutty,

Kambiyil House,

Ayyappankovil, Marykulam, Idukki.

(By Adv: Shiji Joseph)

And

Opposite Parties : 1. The Manager,

Shriram Transport Finance C.o.Ltd.,

Kanakkallil Buildings,

Edassery Junction,

Kattappana, Idukki – 685 515.

2. The Managing Director,

Shriram Transport Finance Co. Ltd.,

101-105 Shiv Chambers,

1^st Floor, Sector 11, Belpur,

Navy Mumbai 400 614.

(Both by Adv: Gem Korason)

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that,

 

Complainant availed a vehicle loan from 1^st opposite party and purchased a vehicle bearing Reg. No.KL-07-BG2180. After remitting some instalments, he found that it would be difficult to remit further instalments, the complainant with the consent of 1^st opposite party, sold the vehicle to one Reji. At that time, the 1^st opposite party offered to transfer the loan in the name of the purchaser of the vehicle, Reji and obtained certain documents from the complainant and the said Reji, for that purpose.

 

After transferring the vehicle to Mr. Reji, the opposite parties did not change the loan into the name of Reji and the said Reji failed to pay the future loan instalments. While so, the opposite parties demanded the balance loan

(cont....2)

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amount from the complainant. The complainant seized the vehicle from the custody of the said Reji, with the help of C.I. of Police, Munnar and surrendered the same to the 1^st opposite party in the month of October, 2013. At the time of receiving the vehicle, the 1^st opposite party assured that they would sell the vehicle at its maximum price and absolve the complainant from future loan liabilities. But the opposite party did not sell the vehicle and at the same time, they demanded Rs.85,960/- as loan dues from the complainant in the month of October 2015, through a demand notice.

 

Complainant further averred that, evenafter the payment and additional security documents for transferring the vehicle, the opposite party has not took any further steps for realising the loan amount from Reji and allowed him to use the vehicle till it was seized from his custody. Moreover, the opposite party till the date of filing this complaint has not took any steps to sell the vehicle. Opposite party kept the vehicle in the custody for three years. Due to this, the value of the vehicle diminished considerably, this caused much pain and suffering to the complainant.

 

Complainant further stated that, opposite party did not issue any notice informing the complainant about the auction of the vehicle and the price received the vehicle during the auction. Hence the opposite parties are not entitled to claim any further amount in this transaction.

 

The opposite party have allowed the complainant to transfer the vehicle, at the same time they failed to transfer the vehicle loan after receiving the payment and additional security. This act of the opposite party amounts to gross deficiency in service as well as unfair trade practice. Against this the complainant filed this petition seeking relief such as to direct the opposite party declare that the complainant is not liable to pay any amount by way of vehicle loan and also direct them to pay compensation and cost.

 

Upon notice, opposite parties entered appearance and filed detailed reply version by admitting the loan transaction. In their version, opposite party further contended that the loan was advanced to the complainant on 9.3.2010 and loan amount was Rs.4,03,624/-. As per the terms of agreement, complainant agreed to repay the loan amount of Rs.5,87,023/- including interest by 36 instalments. The complainant thereafter remitted few instalments and did not turned up to remit further. In addition to the vehicle loan, complainant availed working capital loan also. He availed working capital loan of Rs.11,211/- on 1.12.2010, Rs.58,303/- on 24.8.2011, Rs.13,703/- on 1.12.2011,

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Rs.17,805/- on 1.12.2012 and Rs.20,736/- on 28.6.2014. The complainant promised to pay all these loans along with interest.

 

Opposite party further contended that the opposite party has no knowledge about the sale of the vehicle to one Reji and the offer of the opposite party for transferring the vehicle.

 

They further contended that, after transferring the vehicle, the opposite parties did not change the loan in the name of Reji is denied by the opposite party. Further contention of the seizure of vehicle by the police assistance is also denied. The complainant himself came to the office of the opposite party and had surrendered the vehicle. The opposite party denied the averement of the complainant that the opposite party did not take any steps to sell the vehicle for about three years also denied by the opposite party. Opposite party further contended that the vehicle surrendered by the complainant is a scrap condition and it was sold for its maximum price at the earliest from the date of surrender of the vehicle.

 

The vehicle was sold on 10.9.2014 for Rs.1 lakh and the matter as to the sale of vehicle was informed to the complainant. The opposite party had claimed only what they legally entitled. The complainant is a gross defaulter and the complainant did not make any payment as stipulated and as per the terms of loan agreement. Hence the contention as to the unfair trade is only for the sake of the complainant. Hence the complaint is liable to be dismissed along with compensatory cost.

 

Evidence adduced by the complainant by way of documents. The notice dated 2.12.2013 issued by the 1^st opposite party to the complainant is marked as Ext.P1.

 

From the defence side, 1^st opposite party produced 3 documents such as copy of vehicle insurance policies and statements of account which are marked as Exts.R1(series), R2 and R3 respectively.

 

While the complaint taken for hearing, the complainant filed a petition for re-opening evidence on the reason that, he got reliable information that the vehicle was sold by the opposite party for Rs.2.5 lakhs and as per the Exts.R2 and R3 statements of account, they credited only Rs.1 lakh in the loan account and permitting to adducing further evidence by way of oral as well as documents. Hence the petition allowed and evidence re-opened.

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One James V.M. was examined as PW1 and Ext.X1, a vehicle sale agreement marked. From the opposite side, one Joshy Mathew was examined as DW1.

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

Heard both sides.

 

The POINT :- We have heard the counsel for both parties and had gone through the evidence on records.

 

It is an admitted fact that complainant availed a loan from 1^st opposite party company and purchased a Mahindra tipper having Reg. No.KL-07-BG-2180. The learned counsel for the complainant submitted that due to the incapacity of remitting the loan instalments after remitting some instalments, the complainant turned to sell the vehicle to one Reji, Mangathotti, Rajakkad with consent of the 1^st opposite party financier. At the time of sale, 1^st opposite party assured to change the loan in the name of the said Biju. For that purpose 1^st opposite party obtained necessary documents from the complainant as well as the said Biju. The learned counsel for the complainant further argued that 1^st opposite party demanded the loan dues through Ext.P1 demand notice, complainant came to note that, the loan is not transferred from his name as promised by the 1^st opposite party and moreover the present RC owner is defaulted the loan instalments. Hence the complainant repossessed the vehicle from the RC owner with the help of local Circle Inspector and surrendered before the 1^st opposite party in the month of October 2013. Eventhough the complainant surrendered the vehicle to 1^st opposite party, they kept it there for 3 years without auctioning it. It diminished the value of the vehicle at the same time, the interest in the loan account was accumulated. Thereafter the complainant came to know that the vehicle was sold by the 1^st opposite party to one James for an amount of Rs.2.5 lakhs and at the same time the 1^st opposite party credited only one lakh rupees in his loan account. The act of the opposite party is gross deficiency in service and unfair trade practice and hence complainant is no where liable to pay any amount to the opposite party in this loan transaction, at the same time, opposite party is liable to pay cost and compensation to the complainant for their above said act.

 

(cont....5)

 

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On the other hand, the learned counsel for the opposite party vehemently argued that the complainant was agreed to pay the loan amount of Rs.4,03,624/- along with an amount of Rs.1,83,399/- as interest in 36 instalments from 9.3.2010. In addition to the loan account, he availed 5 working capital loans. From the working capital loans, the 1^st opposite party company took vehicle insurance policy from 2010-2011 to 2014-2015. He was a chronic defaulter. The counsel further stated that other averments in the complaint such as the sale of the vehicle to one Biju and its seizure are not aware of them. But they admitted that the complainant himself surrendered the vehicle to them. The vehicle was in a scrap condition and the 1^st opposite party sold the vehicle after complying the legal formalities and due intimation to the complainant to its maximum price on 10.9.2014 and this amount of Rs.1 lakh is credited in the loan account on the same day itself. The counsel further argued that the complainant is liable to pay the balance loan dues, as per the loan agreement executed by him at the time of availing the loan. This opposite party had claimed only what they legally entitled and the aim of the complainant is only to evade from paying the loan dues by suppressing the real facts.

 

On perusing the evidence on record and the pleadings of both sides, the Forum found that the complainant failed to prove their contention regarding the sale of vehicle to one Biju and its seizure from the Biju with the help of the Circle Inspector. At the same time, it is an admitted fact that the vehicle was surrendered before the opposite party. But no surrender letter was produced by the complainant to convince that whether it was surrendered in the month of October 2013 as stated in the complaint. Hence the averment that the vehicle was kept by the opposite party for three years and due to that the price of the vehicle was decreased considerably cannot be admissible and believable. On perusing Ext.X1 vehicle sale agreement as well as the deposition of PW1, the person who purchased the vehicle in question, it is seen that he purchased the vehicle from one Joshy Mathew, Manager, Sriram, Kattappana and the purchase price of the vehicle was Rs.2 lakhs. He is using the same still. Ext.X1 is a copy of vehicle sale agreement of vehicle having Reg. No.KL-07-BG-2180. This document is not challenged by the opposite party. For substantiating their part, opposite party examined the Joshy Mathew, the seller of the vehicle as per Ext.X1. On perusing the deposition of the witness and Ext.X1, it is seen that the vehicle was sold on 9.9.2014, for an amount of Rs.2 lakhs. At the same time, as per the reply version, the vehicle was sold on 10.9.2014 for an amount of Rs.1 lakh. On perusing Ext.R3 loan statement of account, it is seen that an amount of Rs.1 lakh is credited in the account on 10.9.2014.

 

(cont....6)

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On comparing the contention in the reply version and Ext.X2 document along with the deposition of witness, Forum found that the version of the opposite party cannot be believable, because as per Ext.X1, the vehicle was sold on 9.9.2014 and as per the reply version, the vehicle was sold on 10.9.2014. It is the bounden duty of the opposite party to convince the Forum that how they sold the vehicle which is in their safe custody, which already sold one day before. It is also quite believable that the person who sold the vehicle is the Manager of the 1^st opposite party. He sold the vehicle for Rs.2 lakhs and an amount of Rs.1 lakh was credited in the loan account. Eventhough DW1, the seller of the vehicle denied the fact.

 

If the vehicle was sold by the 1^st opposite party for an amount of Rs.1 lakh to some one as they stated in, it is the duty of the 1^st opposite party to convince the Forum with the clear and cogent evidence for substantiating the sale of the vehicle. Absence of such an evidence, the Forum is not in a position to accept or admit the contention of the opposite party regarding the sale and its sale price. This act of the opposite party is doubtful and hence the Forum forced to believe the averments of the complainant that the 1^st opposite party intentionally suppressed the actual sale price of the vehicle and they accounted only a meagre amount in the loan account and the balance sale amount is misappropriated by them.

 

On the basis of above discussion, Forum is of a considered view that the act of the opposite party in this matter is a gross deficiency in service and unfair trade practice and they cannot claim any amount from the complainant without proving the sale of the vehicle in question. If the vehicle was sold or auctioned in its proper way, the opposite party must have all the related documents with them.

 

In the present case, it is very clear that sale of the alleged vehicle and its sale price is doubtful and hence the Forum considered the pleading of the complainant regarding the sale of the vehicle and its sale price.

 

The Forum found that as per the averment in the complaint, opposite party demanding Rs.85,960/- from the complainant through a legal notice issued in the month of October 2015. At the same time, from the evidence it is seen that opposite party sold vehicle for Rs.2 lakhs on 9.9.2014 and adjusted only Rs.1 lakh in the loan account. If the opposite party is accounted the whole sale price to the loan account, it was more than sufficient to close the loan. But it is very clear that opposite party suppressed the actual sale price and

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accounted only half of the sale amount in the loan account. It is a gross unfair trade practice and the opposite party bound to compensate the complainant adequately.

 

Under the above circumstances, the complaint allowed. Opposite parties are directed to close the loan account of the complainant. Further directed to pay Rs.25,000/- as compensation for the mental agony caused to him and also directed to pay Rs.5000/- as litigation cost to the complainant, within 30 days of receipt of a copy of this order, failing which the amount of compensation shall bear 12% interest per annum from the date of default, till its realisation.

 

Pronounced in the Open Forum on this the 27^th day of September, 2019

 

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL. P, MEMBER

 

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - James V.M.

On the side of the Opposite Party :

DW1 - Joshy Mathew.

Exhibits :

On the side of the Complainant :

Ext.P1 - notice dated 2.12.2013 issued by the 1^st OP to the complainant.

Ext.X1 - vehicle sale agreement.

On the side of the Opposite Party :

Ext.R1 - copy of vehicle insurance policies.

Exts.R2 &R3 - statements of account.

 

 

Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT