By Sri. Mohamed Ismayil.C.V, Member
The complainant narrated his grievance as follows:-
1. On 14/08/2017, the complainant had advanced Rs. 5000/- to the first oppositeparty through online transaction for purchasing a Bajaj scooter model NS 200. In addition to Rs.5,000/-, the complainant also sold his old scooter to the first opposite party for Rs. 15,000/- and thus total amount as advance reached to the tune of Rs. 20,000/-(Rupees Twenty thousand only). At the time of booking of the vehicle, the complainant had informed the first opposite party that the vehicle would be taken after 4 months of time. The first opposite party had insisted the complainant to avail a vehicle loan from the second opposite party. So the complainant was compelled to avail a vehicle loan from the second opposite party and he had remitted instalments of EMI even without receiving the vehicle from the first opposite party. When the complainant, demanded for the vehicle, he could understand that he was cheated by the opposite parties. So the complainant defaulted the payment of EMI. Subsequently the second opposite party issued a legal notice demanding to repay Rs. 1,00,000/-(Rupees One lakh only) otherwise legal action would be taken by them. The complainant stated that he had paid altogether Rs. 33,000/- for the vehicle even without taking the custody of the vehicle. The complainant had informed the opposite parties that he did not need the vehicle but no satisfactory reply was received from the opposite parties. So the complainant approached the Commission to make direction to the opposite parties to refund Rs. 33,000/- as the amount paid for the vehicle. The complainant also claimed Rs. 1,00,000/- (Rupees One lakh only) from the opposite parties as compensation for the sufferings of mental agony and hardship due to the deficiency as service committed by the opposite parties.
2) The complaint is admitted on file and issued notice to the opposite parties. The opposite parties appeared through counsel and filed version separately.
3) The first opposite party denied all allegations put forwarded by the complainant. According to the opposite party the incidents of alleged transfer of money as advance and exchange of vehicle are took place on different occasions not as stated in the complaint. It is stated in the version that first payment was received on 30/08/2017 not on 14/08/2017 and financed amount was received on 23/11/2017. There was an outstanding amount of Rs. 5028/- and same was paid on 14/01/2019 and subsequently the delivery of the vehicle was effected. The opposite party denied the averment of the complainant that there was an agreement to take delivery of the vehicle only after four months of time. It is further stated by the opposite party that the complainant not paid any amount as advance on 14/08/2017. According to the opposite party, the complainant arrived to the show room to purchase the vehicle and also enquired about the scope of availability of loan. The opposite party assisted the complainant for getting availed a loan and details of financial institution were also given. It is averred that the complainant secured the loan from the second opposite party. The vehicle was billed on 31/08/2017 and an exchange vehicle was also handed over by the father of the complainant for Rs. 15,000/-(Rupees Fifteen thousand only) including exchange bonus of Rs. 5000/-. The complainant remitted altogether Rs. 20,000/- and he could not arrange the balance amount even though the vehicle was billed on 31/08/2017. The opposite party tried to contact the complainant but all the efforts were went in vain. When the complainant became untraceable, and then approached the father of the complainant to make arrangement for delivery of the vehicle. But no steps were taken by the complainant or his father to take delivery of the vehicle after making payment of balance amount. The absence of the complainant also created trouble for registration proceedings. Later the complainant approached the opposite party and paid the balance of Rs. 5028/- and complied formalities for temporary registration and delivery was effected in favour of the complainant. The opposite party stated that the permanent registration of the vehicle was also done later by the complainant. It is averred that due to non-payment of the instalments the complainant had surrendered the vehicle to the financier. According to the opposite party, the vehicle was ready for delivery on 31/08/2017, but the complainant paid the outstanding amount of Rs. 5024/- only on 14/01/2019 and took delivery after registration. The opposite party did not commit deficiency in service towards the complainant and delivery delayed solely due to the act of the complainant. It is contended by the opposite party that no financier would provide loan without making application by the complainant. According to the opposite party, the complaint is made with false and incorrect allegations and so liable to be dismissed with compensatory cost.
4) The second opposite party denied the allegations and stated that the opposite party is a registered Non-Banking financial Company and operates its business under the strict supervision of Reserve Bank of India. According to the opposite party, the complainant and one Savitha. E approached and applied for financial assistance for purchasing a Bajaj Motor Cycle. After complying formalities, an loan agreement was executed on 22/11/2017 for Rs. 1,34,424/- (Rupees One lakh thirty four thousand four hundred and twenty four only). The loan tenure was fixed for 36 months with an EMI of Rs. 3734/- (Rupees Three thousand seven hundred and thirty-four only) starting from 06/12/2017 and ending on 06/10/2020. It is stated that the complainant has opted Auto Debit Mandate as mode of repayment. As per loan agreement the repayment of instalments shall be made on or before 6th of every month without any default. The subject vehicle is hypothecated to the opposite party till closure of the loan and opposite party was not responsible for delivery, registration, insurance etc as alleged. The opposite party averred that on 03/05/2018 the loan account of the complainant was in dues of Rs. 7,468/-(Rupees Seven thousand four hundred and sixty eight only) and Rs. 2,652/-(Rupees Two thousand six hundred and fifty two only) towards other over dues. Then a notice was sent by the opposite party and same was received by the complainant. But, the complainant did not turn up and failed to regularize the loan instalments. The opposite party made repeated request for repayment of defaulted amount and thereby regularize the loan repayment or handover the peaceful possession of the vehicle to the opposite party as per the terms and conditions of the agreement. Because of the inaction of the complainant, the opposite party issued a loan recall notice dated 07/06/2018 and informed to remit net outstanding amount of Rs. 1,23,067/- or surrender the vehicle. But the complainant not responded to the letter issued by the opposite party. The opposite party alleged that the complainant was not regular in payment of EMI right from beginning and chosen to be a defaulter. Later in the month of February, 2019 the complainant handed over the possession of the vehicle and thereby avoided impending legal action. As on 18/02/2019, the complainant loan account was in due of Rs. 44,808/- towards EMI dues, and Rs. 19,818/- towards other dues along with Rs. 74,680/- towards future instalments payable. The opposite party categorically stated that as per agreement the opposite party got every right to repossess the vehicle from the complainant, who was a chronic defaulter in repayment of loan. The opposite party also sent a pre-sale notice dated 18/02/2019 informing the complainant to remit outstanding amount and take back the custody of the vehicle. The complainant was remained idle and raised no objection to the sale proceedings. So the opposite party conducted sale of the subject vehicle to the intended purchaser for Rs. 35,000/- and as a result the balance due amount remained as Rs. 1,04,306/-(Rupees One lakh four thousand three hundred and six only). It is further stated by the opposite party in the version that the present complaint is an attempt to evade from the responsibility of making payment of balance due of Rs. 1,04,306/- . The opposite party has given sufficient opportunity to the complainant to take back the custody of the vehicle after repayment of dues. The opposite party did not commit deficiency in service towards the complainant. The complainant has not suffered mental agony or inconvenience as alleged in the complaint. The complainant is not entitled for any amount as claimed in the complaint.
5) The Complainant and the opposite parties filed affidavits. Both sides produced documents. The documents produced by the complainant are marked as Ext. A1 to A4 documents. Ext. A1 document is the copy of certificate of registration of the subject vehicle showing the name of the complainant as the owner. Ext. A2 document is the copy of notice issued by the second opposite party to the complainant with regard to arbitration proceedings. Ext. A3 document is the copy of inventory of assets dated 25/12/2018 prepared at the time of surrender. Ext. A4 document is the copy of project report related to M/r S & J Tech Solutions, Thiruvananthapuram. The Commission also marked documents produced by the second opposite party as Ext. B1 to B8 documents. Ext. B1 document is the copy of loan agreement executed between the complainant and the second opposite party. Ext. B2 document is the copy of notice dated 03/05/2018 issued by the second opposite party to the complainant demanding to repay the due amount. Ext. B3 document is the copy of loan recall notice dated 07/06/2018 issued by the second opposite party to the complainant. Ext. B4 document is the copy of inventory of assets dated 08/02/2019 issued by the second opposite party to the complainant at the time of surrender. Ext. B5 document is the copy of account of statement between 01/01/2000 and 18/02/2019 related to loan account of the complainant. Ext. B6 document is the copy of letter dated 18/02/2019 regarding pre-sale intimation issued by the second opposite party to the complainant. Ext. B7 document is the copy of demand notice dated 26/03/2019 directing to repay the balance amount of loan after the sale of vehicle. Ext. B8 document is the copy of quotation dated 12/03/2019 issued by MKC Auto , Chalappuram, Kozhikode. The complainant filed an interim application numbered as IA 372/2022 (A) for cross examination of opposite parties. But the Commission dismissed the application as it filed in a belated stage to protract the matter.
6) Heard the contested parties. Perused all documents. The Commission considered the following points for adjudication of the case:-
- Are the opposite parties committed any acts of deficiency in service?
- Relief and cost?
7) It is stated in the complaint that the complainant had advanced Rs. 5,000/- to the first opposite party for purchasing a scooter. The complainant produced copy of registration certificate of newly purchased vehicle and same is marked as Ext. A1 document. The complainant also sold his old scooter to the first opposite party for a consideration of Rs. 15,000/-. So, according to the complainant, he advanced altogether Rs. 20,000/- for the vehicle after the assurance of taking the delivery of new vehicle after 4 months of time. The grievance of the complainant was that he was compelled to avail a vehicle loan from the second opposite party and forced to remitted four monthly instalments even without effecting delivery of the vehicle. The opposite parties vehemently opposed the contention of the complainant. It is averred by the opposite parties that alleged transfer money as advance and exchange of vehicle are took place on different occasions not as stated in the complaint. The Commission finds that the complainant did not adduce any kind of evidence with regard to the advance payment made to the vehicle, except the submission found in the complaint. It is admitted by the complainant that he defaulted in repayment of loan. In the complaint and affidavit filed in lieu of evidence by the complainant, it can be seen that the complainant had wilfully defaulted the repayment of loan at the very moment of his knowledge that he was cheated by the opposite parties. So Commission finds that the complainant is a defaulter in repayment of loan. The opposite parties produced the copy of loan agreement showing terms and conditions. The copy loan agreement is marked Ext. B1 document. It is averred by the opposite parties that the vehicle was billed on 31/08/2017 and thereafter the complainant could not make payment of balance amount. So the opposite parties assisted the complainant for availing a vehicle loan. It is also averred that the complainant was not availed for registration proceedings as he was an absentee for a long period. It is also stated in the version and evidence of the opposite parties that the complainant surrendered the vehicle due to financial crisis as he was not able to make repayment of loan. But when evaluating the evidence available on the record, it can be seen that the complainant did not speak about surrender of the vehicle in his complaint. According to the complainant, delivery of the vehicle was not effected. The Commission cannot find the allegation of non delivery of the vehicle as bonafide and trustworthy. The opposite parties produced a number of documents leading to the surrender of vehicle by the complainant. The very case of the opposite parties were that the complainant was a chronic defaulter in repayment of loan. The opposite party produced loan recall notice sent to the complainant demanding to pay Rs. 1,23,067/-(Rupees One lakh twenty three thousand six hundred and sixty seven only) as balance due amount and same is marked as Ext. B3 document. The opposite parties produced the copy of inventory of assets prepared at the time of surrender of vehicle and it is marked as Ext. B4 document. Moreover, in addition Ext.B2, B3 and B4 document, the opposite parties produced loan account statement of the complainant between the periods of 1/01/2000 to 18/02/2019 and it marked as Ext. B5 document. Ext. B5 document clearly shows that the complainant had violated the terms and conditions stipulated in Ext. B1 document. The complainant did not oppose or questioned the veracity of evidence came from the documents produced by the opposite party. Moreover it has come out in evidence that these opposite parties gave sufficient opportunity to the complainant to take back the vehicle after making repayment of the defaulted amount. The opposite parties produced a pre-sale intimation letter dated 18/02/2019 issued to the complainant in which the opposite parties had given 7 days time to take back the vehicle from the custody of the opposite parties. But no action was taken by the complainant for repayment of defaulted amount and get back the vehicle from the custody of the opposite parties. But when the opposite party demanded the balance amount of the loan from the complainant through a legal notice, the complainant approached this Commission. The copy of demand notice issued by opposite party is produced before the Commission and same is marked as Ext. A7 document. The opposite parties also produced Ext. A8 document to show that the value secured after the sale of the subject vehicle. So the Commission finds that the complainant was defaulter in repayment of the loan and there is no room for interference by the Commission. Moreover, the Commission finds that the complainant approached the Commission by suppressing material facts. The complainant also failed to substantiate the reason for delay to take possession of vehicle from the first opposite party. According to the complainant, he was forced to sign a document as per the instruction of the second opposite party in order to refund the paid instalments and same is produced before the Commission and marked as Ext. A3 document. But the contents of Ext. A3 document reveals that it is an inventory of assets issued by the opposite party to the complainant . The complainant is also tried to establish his case by adding new contention in his affidavit filed in lieu of evidence. It is stated by the complainant in his affidavit that his cibil score was troubled due to the act of the opposite parties and became incompetent to avail another loan for his employment project. According to him, no banks are providing loan to his new project due to fall in cibil score. The complainant produced copy of project report and same is marked as Ext. A4 document. But the Commission can not consider the above pleadings of the complainant as he is failed to adduce evidence on the aspect of Cibil score. The Commission cannot address a newly developed contention from the side of the complainant as it was lacked a place in his complaint. So the Commission finds no merit in the complaint and hence complaint is dismissed.
Dated this 20th day of April, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A4
Ext. A1 document is the copy of certificate of registration of the subject vehicle
showing the name of the complainant as the owner.
Ext. A2 document is the copy of notice issued by the second opposite party to the
complainant with regard to arbitration proceedings.
Ext. A3 document is the copy of inventory of assets dated 25/12/2018 prepaid at
the time of surrender.
Ext. A4 document is the copy of project report related to M/r S & J Tech Solutions,
Thiruvananthapuram.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B8
Ext. B1 document is the copy of loan agreement executed between the
complainant and the second opposite party.
Ext. B2 document is the copy of notice dated 03/05/2018 issued by the second
opposite party to the complainant demanding to the due amount.
Ext. B3 document is the copy of loan recall notice dated 07/06/2018 issued by the
second opposite party to the complainant.
Ext. B4 document is the copy of inventory of assets dated 08/02/2019 issued by the
second opposite party to the complainant at the time of surrender.
Ext. B5 document is the copy of Account of statement from 01/01/2000 to
18/02/2019 related to loan account of the complainant.
Ext. B6 document is the copy of letter dated 18/02/2019 regarding pre-sale
intimation issued by the second opposite party to the complainant.
Ext. B7 document is the copy of demand notice dated 26/03/2019 directing to
repay the balance amount of loan after the sale of vehicle.
Ext. B8 : Document is the copy of quotation dated 12/03/2019 issued by MKC Auto ,
Chalappuram, Kozhikode.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
