BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P. No. 363/2000 Filed on 28/06/2000 Dated: 15..07..2009 Complainant: Manoharan. G., Manuja Sawmill, Koliyoor, Muttaikkad-P.O., Vengannoor, Thiruvananthapuram – 695 523. (By Adv. G. Ajayakhosh)
Opposite parties: Manager, Integrated Finance Limited, IInd Floor, Karimpanal Shopping Complex, Statue, Thiruvananthapuram 695 001. (By Adv. R. Jagadishkumar) Prem Kumar (CC Manager) Integrated Finance Limited ..do..
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 30..05..2005, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..05..2009, the Forum on 15..07..2009 delivered the following: ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that complainant purchased LML Vespa II Scooter (self starter) under hire purchase agreement with the 1st opposite party at a total cost of Rs. 32,729/-, that as per the terms of the agreement the entire amount has to be remitted within 24 months commencing from 5/5/97 to 5/5/99, that the complainant had remitted booking charge of Rs.1,000/- to Kulathunkal Automobiles, that complainant had given 24 signed blank cheques as a security for the monthly payment, that the monthly installment was of Rs.1,696/-, that the entire amount was paid on 23/12/98, though the agreement period was upto 5/5/1999, that the opposite party had purposely dishonoured the cheques with an intention to collect bouncing charge of Rs.500/- per cheque. On 13/5/1999 five persons from the opposite parties' office came to complainant's house and informed him that the termination certificate was ready to deliver, and asked him to accompany them to the office of opposite parties and on reaching the office, opposite parties claimed further amount of Rs.23,000/- and re-possessed the said Scooter with license and spects from the complainant. Later complainant was informed by the opposite parties on enquiry that the said vehicle was sold out. Hence this complaint claiming refund of the remitted amount.
2. 1st opposite party filed version. 2nd opposite party remained ex-parte. 1st opposite party's version contents that the complainant is not a consumer as defined in the Consumer Protection Act, that the complainant entered into a hire purchase agreement with the opposite party for purchasing a LML Vespa 2 Scooter, that both parties were governed by the recitals of the Hire Purchase Agreement, that complainant had to repay the hire money in 24 EMIs with interest as agreed. As per the terms of the agreement complainant had to make payments on or before 5th of every month, that in default of payaments of installments, opposite party was entitled to additional financial charges. The complainant was irregular in paying the installments of hire money, that several cheques issued by the complainant were bounced and bounce cases were instituted against him in various Courts in Trivandrum and Madras, that there was a huge amount of arrears amounting to Rs.20,000/-, that the said scooter was repossessed by the opposite party and the same was done as per the provisions of law. The complainant was asked to clear his arrears and take back the scooter, but complainant turned a deaf ear to all the request made by the opposite parties. Since there was no clearance of hire money from the side of the complainant, the said scooter was sold for Rs.15,000/- and at present there is Rs.5,000/- outstanding in the hire purchase account of the complainant. This complaint is false and frivolous. Hence opposite parties prayed for dismissal of the complaint with compensatory cost.
3. The points that arise for consideration are:
Whether the complainant is a defaulter in payment of monthly installments? Whether the re-possession of financed property from the complainant was lawful? Whether there is any deficiency of service on the part of opposite parties?
4. In support of the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and Exts.P1 to P11 were marked. In rebuttal, 1st opposite party has filed affidavit. 5. Points (i) to (iii) : Admittedly, the complainant has purchased LML Vespa II Scooter (self starter) under hire purchase agreement with the 1st opposite party at a total cost of Rs. 32,729/-. Submission by the complainant is that as per terms of the agreement the entire amount has to be remitted within 24 months commencing from 5/5/97 to 5/5/99, that on 24/3/1997, complainant had remitted booking charge of Rs. 1,000/- to Kulathunkal Automobiles, that complainant had given 24 signed blank cheques as security for the monthly payment, and that the monthly installment was of Rs.1,696/-. It has been the case of the complainant, that the entire amount was paid on 23/12/98, though the agreement period was upto 5/5/1999, and that opposite party had purposely dishonoured the cheques with an intention to collect bouncing charge of Rs.500/- per cheque. On 13/5/1999 five persons from the opposite parties' office came to complainant's house and informed him that the termination certificate was ready to deliver, and asked him to accompany them to the office of opposite parties and on reaching the office, opposite parties claimed further amount of Rs.23,000/- and re-possessed the said Scooter (vehicle) with license and spects from the complainant. The grievance of the complainant is that, even after remittance of entire amount, opposite parties re-possessed the scooter and filed a criminal complaint against him. Ext.P1 is the copy of the invoice/bill dated 8/5/97 for Rs.32,729/- issued by Kulathunkal Automobiles to complainant, wherein the name of Integrated Finance Company Ltd., Trivandrum is mentioned as financier. Ext.P2 is the copy of the receipt for Rs.1,000/- dated 24/3/97 issued by Kulathunkal Automobiles to complainant. Ext.P3 is the copy of the cash receipt voucher for Rs.1,700/- as H.P installment dated 25/6/97 issued by the opposite parties to complainant. Ext.P4 is the copy of the voucher for Rs.1,700/- dated 10/7/97 as HP installment issued by the opposite parties. Ext.P5 is the copy of the temporary receipt dated 17/12/97 for Rs.1,698/- against HP 97/23 issued by the opposite parties. Ext.P6 is the receipt dated 2/3/98 issued for Rs.3,400/- against HP 97/23 issued by the opposite parties. Ext.P7 is the copy of the temporary receipt dated 22/5/98 for Rs.1,700/- against HP 97/23 issued by the opposite parties. Ext.P8 is the copy of the cash receipt voucher dated 10/6/98 for Rs.3,400/- against HP installment issued by the opposite parties. Ext.P9 is the copy of the cash receipt voucher for Rs.5,900/- dated 2/9/98 against HP installment issued by the opposite parties. Ext. P10 is the copy of the remittance receipt dated 23/10/98 for Rs.6,030/- issued by SBI, Statue Branch to the complainant. As per Ext.P10, the said amount is remitted towards Integrated Finance Ltd. Ext.P11 is the copy of Bank receipt voucher dated 23/12/98 for Rs.6,000/- issued by the opposite parties. On going through Exts. P3 to P11, it is found that complainant has remitted amounts of 17 H.P installment including Addl.Fin charges. Admittedly, the aforesaid loan amount of Rs.32,729/- has to be repaid in 24 EMI. Evidently, 17 EM installments paid by complainant, complainant has to remit the remaining 7 EMIs with Add Fin charges if any. Submission by the complainant is that on 13/5/99 opposite parties re-possessed vehicle from the complainant and invited him to remit Rs. 23,000/-. Opposite parties admitted the re-possession of the vehicle from the complainant and that the same was done as per provisions of law. Opposite parties submits the said scooter was re-possessed and sold the same for Rs.15,000/-. Opposite parties furnished two documents which are on the records, not seen marked – One of the documents furnished is the specimen copy of the HP Agreement and the other is a statement prepared by the opposite parties, opposite parties did not furnish the relevant documents of the HP agreement executed by the complainant and the opposite parties, nor did opposite parties produce any other documents in connection with the procedure adopted by opposite parties to re-possess the said vehicle, and sale of the same. In this context we need to highlight the guidelines to be strictly followed by Finance Companies before it exercises its power to re-possess a vehicle; which have been reiterated time and again by various High Courts. “If the amount is not paid by the borrower, it would be open to finance company in exercise of its power under the finance agreement to recall the loan. If it exercises of this power another notice be given to the borrower intimating that the loan has been recalled and the borrower should be called upon to tender the amount due within 7 days of receipt of notice. This notice be sent by the registered post at the address given by the borrower. If no amount is paid within the stipulated period as per notice finance company would be authorised to re-possess the vehicle but this power of re-possession would not entitle the finance company to track the vehicle while plying on the road. In case the borrower refuses to sign the papers when the car is re-possessed, on re-possession of the vehicle, immediate information be provided by the Finance Company to local Police intimating the time and place when the vehicle was re-possessed. In the instant case no such guidelines are seen followed by the opposite parties before it exercises its power to re-possess the vehicle concerned. The re-possession was unilateral and against the aforesaid guidelines. No document furnished by opposite parties to show the sale of the vehicle at Rs.15,000/-. Eventhough agreement permits the opposite parties to re-possess the said vehicle, opposite parties could not claim the full ownership of the said vehicle since 17 EMIs out of 24 EMIs paid by the complainant. That is, complainant has remitted more than 70% of the price of the vehicle (loan amount). Complainant had used the vehicle only for two years (from 9/5/97 to 13/5/99). Evidently, complainant had remitted 17 EMI, which amounts to Rs.28,910/-. He has still to remit 7 installments which comes to Rs.11,900/-. Total amount of 24 EMI comes to Rs.28,910/- + Rs.11,900/- = Rs. 40,810/-. If we presume the life of the vehicle for 10 years – every year its wear and tear comes to worth Rs.4,000/-. If that be so, complainant's consumption of capital (vehicle) comes to worth Rs.8,000/-. In view of the foregoing discussion and evidence available on record, we find complainant is a defaulter in payment of EMI, but re-possession of the vehicle by the opposite parties was unilateral and without following the established guidelines; to the extent of which there is deficiency in service on the part of opposite parties. 2nd opposite party has no personal liability. Taking into consideration of the use of vehicle and the amount remitted by the complainant we think justice will be well met if complainant is allowed a compensation of Rs.15,000/-. In the result, complaint is allowed. 1st opposite party shall pay the complainant a sum of Rs.15,000/- towards compensation. The said amount will carry interest at the rate of 12% if not paid within two months from the date of receipt of this order. Both parties shall bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of July, 2009.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI. A : MEMBER
S.K. SREELA : MEMBER
ad.
O.P.No. 363/2000 APPENDIX I. Complainant's witness: NIL II. Complainant's documents: P1 : Copy of invoice/bill dated 8/5/97 for Rs.32,729/-. P2 : Copy of receipt No.1008 dated 24/3/97 for Rs.1,000/-. P3 : Copy of cash receipt voucher dated 25/6/97 for Rs.1,700/-. P3(a) Copy of cash bill dated 8/5/97 for Rs.405/-. P4 : Copy of cash receipt voucher dated 10/7/97 for Rs.1700/-. P5 : Copy of temporary receipt dated 17/12/97 P6 : Copy of receipt dated 2/9/98 P7 : Copy of temporary receipt dated 22/5/98 P8 : Copy of cash receipt voucher dated 10/6/98 for Rs.3,400 P9 : Copy of cash receipt voucher dated 2/9/98 for Rs.5,900/-. P10 : Copy of receipt dated 23/10/98 P11 : Copy of bank receipt voucher dated 23/12/98. III. Opposite parties' witness : NIL IV. Opposite parties' documents: NIL
PRESIDENT ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P. No. 363/2000 Filed on 28/06/2000 Dated: 15..07..2009 Complainant: Manoharan. G., Manuja Sawmill, Koliyoor, Muttaikkad-P.O., Vengannoor, Thiruvananthapuram – 695 523. (By Adv. G. Ajayakhosh)
Opposite parties: Manager, Integrated Finance Limited, IInd Floor, Karimpanal Shopping Complex, Statue, Thiruvananthapuram 695 001. (By Adv. R. Jagadishkumar) Prem Kumar (CC Manager) Integrated Finance Limited ..do..
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 30..05..2005, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..05..2009, the Forum on 15..07..2009 delivered the following: ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that complainant purchased LML Vespa II Scooter (self starter) under hire purchase agreement with the 1st opposite party at a total cost of Rs. 32,729/-, that as per the terms of the agreement the entire amount has to be remitted within 24 months commencing from 5/5/97 to 5/5/99, that the complainant had remitted booking charge of Rs.1,000/- to Kulathunkal Automobiles, that complainant had given 24 signed blank cheques as a security for the monthly payment, that the monthly installment was of Rs.1,696/-, that the entire amount was paid on 23/12/98, though the agreement period was upto 5/5/1999, that the opposite party had purposely dishonoured the cheques with an intention to collect bouncing charge of Rs.500/- per cheque. On 13/5/1999 five persons from the opposite parties' office came to complainant's house and informed him that the termination certificate was ready to deliver, and asked him to accompany them to the office of opposite parties and on reaching the office, opposite parties claimed further amount of Rs.23,000/- and re-possessed the said Scooter with license and spects from the complainant. Later complainant was informed by the opposite parties on enquiry that the said vehicle was sold out. Hence this complaint claiming refund of the remitted amount.
2. 1st opposite party filed version. 2nd opposite party remained ex-parte. 1st opposite party's version contents that the complainant is not a consumer as defined in the Consumer Protection Act, that the complainant entered into a hire purchase agreement with the opposite party for purchasing a LML Vespa 2 Scooter, that both parties were governed by the recitals of the Hire Purchase Agreement, that complainant had to repay the hire money in 24 EMIs with interest as agreed. As per the terms of the agreement complainant had to make payments on or before 5th of every month, that in default of payaments of installments, opposite party was entitled to additional financial charges. The complainant was irregular in paying the installments of hire money, that several cheques issued by the complainant were bounced and bounce cases were instituted against him in various Courts in Trivandrum and Madras, that there was a huge amount of arrears amounting to Rs.20,000/-, that the said scooter was repossessed by the opposite party and the same was done as per the provisions of law. The complainant was asked to clear his arrears and take back the scooter, but complainant turned a deaf ear to all the request made by the opposite parties. Since there was no clearance of hire money from the side of the complainant, the said scooter was sold for Rs.15,000/- and at present there is Rs.5,000/- outstanding in the hire purchase account of the complainant. This complaint is false and frivolous. Hence opposite parties prayed for dismissal of the complaint with compensatory cost.
3. The points that arise for consideration are:
Whether the complainant is a defaulter in payment of monthly installments? Whether the re-possession of financed property from the complainant was lawful? Whether there is any deficiency of service on the part of opposite parties?
4. In support of the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and Exts.P1 to P11 were marked. In rebuttal, 1st opposite party has filed affidavit. 5. Points (i) to (iii) : Admittedly, the complainant has purchased LML Vespa II Scooter (self starter) under hire purchase agreement with the 1st opposite party at a total cost of Rs. 32,729/-. Submission by the complainant is that as per terms of the agreement the entire amount has to be remitted within 24 months commencing from 5/5/97 to 5/5/99, that on 24/3/1997, complainant had remitted booking charge of Rs. 1,000/- to Kulathunkal Automobiles, that complainant had given 24 signed blank cheques as security for the monthly payment, and that the monthly installment was of Rs.1,696/-. It has been the case of the complainant, that the entire amount was paid on 23/12/98, though the agreement period was upto 5/5/1999, and that opposite party had purposely dishonoured the cheques with an intention to collect bouncing charge of Rs.500/- per cheque. On 13/5/1999 five persons from the opposite parties' office came to complainant's house and informed him that the termination certificate was ready to deliver, and asked him to accompany them to the office of opposite parties and on reaching the office, opposite parties claimed further amount of Rs.23,000/- and re-possessed the said Scooter (vehicle) with license and spects from the complainant. The grievance of the complainant is that, even after remittance of entire amount, opposite parties re-possessed the scooter and filed a criminal complaint against him. Ext.P1 is the copy of the invoice/bill dated 8/5/97 for Rs.32,729/- issued by Kulathunkal Automobiles to complainant, wherein the name of Integrated Finance Company Ltd., Trivandrum is mentioned as financier. Ext.P2 is the copy of the receipt for Rs.1,000/- dated 24/3/97 issued by Kulathunkal Automobiles to complainant. Ext.P3 is the copy of the cash receipt voucher for Rs.1,700/- as H.P installment dated 25/6/97 issued by the opposite parties to complainant. Ext.P4 is the copy of the voucher for Rs.1,700/- dated 10/7/97 as HP installment issued by the opposite parties. Ext.P5 is the copy of the temporary receipt dated 17/12/97 for Rs.1,698/- against HP 97/23 issued by the opposite parties. Ext.P6 is the receipt dated 2/3/98 issued for Rs.3,400/- against HP 97/23 issued by the opposite parties. Ext.P7 is the copy of the temporary receipt dated 22/5/98 for Rs.1,700/- against HP 97/23 issued by the opposite parties. Ext.P8 is the copy of the cash receipt voucher dated 10/6/98 for Rs.3,400/- against HP installment issued by the opposite parties. Ext.P9 is the copy of the cash receipt voucher for Rs.5,900/- dated 2/9/98 against HP installment issued by the opposite parties. Ext. P10 is the copy of the remittance receipt dated 23/10/98 for Rs.6,030/- issued by SBI, Statue Branch to the complainant. As per Ext.P10, the said amount is remitted towards Integrated Finance Ltd. Ext.P11 is the copy of Bank receipt voucher dated 23/12/98 for Rs.6,000/- issued by the opposite parties. On going through Exts. P3 to P11, it is found that complainant has remitted amounts of 17 H.P installment including Addl.Fin charges. Admittedly, the aforesaid loan amount of Rs.32,729/- has to be repaid in 24 EMI. Evidently, 17 EM installments paid by complainant, complainant has to remit the remaining 7 EMIs with Add Fin charges if any. Submission by the complainant is that on 13/5/99 opposite parties re-possessed vehicle from the complainant and invited him to remit Rs. 23,000/-. Opposite parties admitted the re-possession of the vehicle from the complainant and that the same was done as per provisions of law. Opposite parties submits the said scooter was re-possessed and sold the same for Rs.15,000/-. Opposite parties furnished two documents which are on the records, not seen marked – One of the documents furnished is the specimen copy of the HP Agreement and the other is a statement prepared by the opposite parties, opposite parties did not furnish the relevant documents of the HP agreement executed by the complainant and the opposite parties, nor did opposite parties produce any other documents in connection with the procedure adopted by opposite parties to re-possess the said vehicle, and sale of the same. In this context we need to highlight the guidelines to be strictly followed by Finance Companies before it exercises its power to re-possess a vehicle; which have been reiterated time and again by various High Courts. “If the amount is not paid by the borrower, it would be open to finance company in exercise of its power under the finance agreement to recall the loan. If it exercises of this power another notice be given to the borrower intimating that the loan has been recalled and the borrower should be called upon to tender the amount due within 7 days of receipt of notice. This notice be sent by the registered post at the address given by the borrower. If no amount is paid within the stipulated period as per notice finance company would be authorised to re-possess the vehicle but this power of re-possession would not entitle the finance company to track the vehicle while plying on the road. In case the borrower refuses to sign the papers when the car is re-possessed, on re-possession of the vehicle, immediate information be provided by the Finance Company to local Police intimating the time and place when the vehicle was re-possessed. In the instant case no such guidelines are seen followed by the opposite parties before it exercises its power to re-possess the vehicle concerned. The re-possession was unilateral and against the aforesaid guidelines. No document furnished by opposite parties to show the sale of the vehicle at Rs.15,000/-. Eventhough agreement permits the opposite parties to re-possess the said vehicle, opposite parties could not claim the full ownership of the said vehicle since 17 EMIs out of 24 EMIs paid by the complainant. That is, complainant has remitted more than 70% of the price of the vehicle (loan amount). Complainant had used the vehicle only for two years (from 9/5/97 to 13/5/99). Evidently, complainant had remitted 17 EMI, which amounts to Rs.28,910/-. He has still to remit 7 installments which comes to Rs.11,900/-. Total amount of 24 EMI comes to Rs.28,910/- + Rs.11,900/- = Rs. 40,810/-. If we presume the life of the vehicle for 10 years – every year its wear and tear comes to worth Rs.4,000/-. If that be so, complainant's consumption of capital (vehicle) comes to worth Rs.8,000/-. In view of the foregoing discussion and evidence available on record, we find complainant is a defaulter in payment of EMI, but re-possession of the vehicle by the opposite parties was unilateral and without following the established guidelines; to the extent of which there is deficiency in service on the part of opposite parties. 2nd opposite party has no personal liability. Taking into consideration of the use of vehicle and the amount remitted by the complainant we think justice will be well met if complainant is allowed a compensation of Rs.15,000/-. In the result, complaint is allowed. 1st opposite party shall pay the complainant a sum of Rs.15,000/- towards compensation. The said amount will carry interest at the rate of 12% if not paid within two months from the date of receipt of this order. Both parties shall bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of July, 2009.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI. A : MEMBER
S.K. SREELA : MEMBER
ad.
O.P.No. 363/2000 APPENDIX I. Complainant's witness: NIL II. Complainant's documents: P1 : Copy of invoice/bill dated 8/5/97 for Rs.32,729/-. P2 : Copy of receipt No.1008 dated 24/3/97 for Rs.1,000/-. P3 : Copy of cash receipt voucher dated 25/6/97 for Rs.1,700/-. P3(a) Copy of cash bill dated 8/5/97 for Rs.405/-. P4 : Copy of cash receipt voucher dated 10/7/97 for Rs.1700/-. P5 : Copy of temporary receipt dated 17/12/97 P6 : Copy of receipt dated 2/9/98 P7 : Copy of temporary receipt dated 22/5/98 P8 : Copy of cash receipt voucher dated 10/6/98 for Rs.3,400 P9 : Copy of cash receipt voucher dated 2/9/98 for Rs.5,900/-. P10 : Copy of receipt dated 23/10/98 P11 : Copy of bank receipt voucher dated 23/12/98. III. Opposite parties' witness : NIL IV. Opposite parties' documents: NIL
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | |
