D.O.F. 20.02.2006 D.O.O. 05.10.2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri.K.Gopalan : President K.P.Preethakumari : Member Smt.M.D.Jessy : Member Dated this the 5th day of 2010 C.C.No.40/2006 Rasak S.K., Sastankandy House, Post Kadalayi, : Complainant Kannur District (Rep. by Adv.T.M. Phalgunan) Centurian Bank Limited, Represented by its Manager, Majestic Centre, Bypass Road, Calicut – 673 004 : Opposite party (Rep. by Adv. Shahier Singh M.) O R D E R Sri. K. Gopalan, President This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to return the motor cycle bearing registration No.KL 13K 8628 to the complaint together with a sum of Rs.40,200/- as compensation and to pay cost of this proceedings. The case of the complainant in brief are as follows : complainant had purchased a motor cycle taking loan of an amount of Rs.32,000/- from the opposite party. Complainant and opposite party entered into an agreement as FA 13 355 dated 25.02.2004. As per the agreement he has to repay the amount in 24 installments of Rs.1695/- each. Complainant paid 12 installments. Due to financial difficulties complainant could not pay the balance installment. On 14.05.2005 opposite party seized the motor cycle and issued a notice informing that the agreement was thereby terminated. It was absolutely illegal that the opposite party directed to pay Rs.30,505/- towards liability. Complainant is not liable to pay that much amount. Complainant is ready and willing to perform the agreement. The seizing of vehicle and terminating the agreement before the date mentioned in the agreement is a deficiency in service on the side of the opposite party. Complainant being a fish merchant is getting an income of Rs.600/- but due to seizing of vehicle complainant could not continue his work. Complainant has lost a total amount of Rs.40,200/- from 14.05.2005 to 20.07.2005. He is entitled to get this amount as compensation. Hence this complaint for returning the cycle and for compensation and cost. Pursuant to the notice opposite party entered appearance and filed version denying the main contentions of the complainant. The case of the opposite party in brief are as follows : The complaint is not maintainable. The complainant availed hire purchase loan for purchasing a Yemaha Libero Motor Cycle. Agreement executed on 23.02.2004. Complainant agreed to repay the loan with interest in 24 equated installments of rs.1,698/- each from 15.03.2004 to 05.05.2006. But except the first installment other installments remitted much after due date with penal interest and cheque dishonour charges. Complainant never paid the installments regularly. Opposite party constrained to repossess the vehicle on 14.05.2005 since there was more than 3 continuous installments giving prior notice as per Clause 3 of the agreement. After repossession opposite party informed the fact of the termination of agreement to the complainant by registered letter dated 14.05.2005. The complainant was given time upto 21.05.2005 to clear the balance outstanding amount Rs.30,505/-. Complainant did not turned up to clear the balance. The opposite party after giving prior proper auction notice sold the vehicle by way of auction to the higher bidder for Rs.23,000/-. Thus as per accounts an amount of Rs.7,505/- is still in balance. The complainant is a hirer of the vehicle and not purchaser. The relationship of the financier and the hirer is that of a bailor and bailee and hence the complaint has not availed any service to come within the ambit of the Consumer Protection Act. Further there is no deficiency of service involved since the liability arises out of a contract. The opposite party has acted within the four corners of the stipulations of the contract entered between the parties. Complainant is not entitled for any remedy. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether the complaint is maintainable and there is any deficiency on the part of opposite party? 2. Whether the complaint is entitled for the relief as prayed for? 3. Relief and cost. The evidence consists of oral testimony of PW1, DW1 and documentary evidence Ext.A1 to A14, B1 to B3. Issue 1 to 3 : Complainant is a fisherman and opposite party is a financial concern. Complainant availed a loan in respect of a motor cycle as per the agreement executed on 23.02.2004 agreeing to repay the loan amount of Rs.32,800/- in 24 equal installments. But complainant admittedly paid only 12 equated installments. The opposite party seized the vehicle on 14.05.2005. On the same day opposite party issued notice terminating the agreement between them on 25.02.2004. The main case of the complainant is that the termination of the agreement and repossession of the vehicle was premature and illegal. Opposite party contented that complainant is a habitual defaulter. Except the first installment all other paid installments were made such after the due date attracting penal interest and dishonour charges. Timely payment is the essence of contract. Vehicle was seized after continuous default of 3 installments. Termination of agreement sent by registered letter dated 14.05.2005 and time given up to 21.05.2005 to clear the balance amount. Complainant did not turned up and the vehicle was sold after giving prior auction notice. Complainant filed chief affidavit in lieu of chief examination repeating the same facts stated in the complaint. Further more complainant denied the contentions of opposite party. But it is a fact that complainant in pleading itself admitted that the complainant was in acute financial difficulty for some months because of Tsunami related problems and he was not able to repay the agreed installment amount in time. Complainant submitted that he is ready to pay his amount which has become overdue. It is quite evident that the complainant having entered into a hire purchase agreement and having undertaken to pay the installments. The pleadings of the complainant itself makes it clear that complainant failed to pay the agreed installment amount, though he submit that he is ready to pay the amount. Complainant produced three receipts Ext.A4 to 6. These three receipts will show that he has remitted the amount with cheque bounce charges and delayed payment charges that makes clear the contention of opposite party that the complainant is a habitual defaulter. Thus it is quite evident from the facts of the case that the complainant could not pay the installments due. It is also admitted case that the cycle was taken possession by opposite party. After re-possession opposite party sent Ext.A1 letter informing that due to default in repayment installments they had repossessed the vehicle on 14.05.2005. Terminating the agreement they has also called upon to remit Rs.30,505/- towards the due amount on or before 21st May, 2005 to enable them to return the vehicle to him. It was also informed that if the amount is not paid they will dispose off the vehicle without any further intimation and adjust the sale proceeds towards the due. Complainant has no care that he has paid any amount thereafter. On 21.07.2005 complainant sent Ext.A2 lawyer notice calling upon to return the motor cycle and to pay compensations. But he has not made any payment instead of stating that he will continue to pay the installments. It is already seen that opposite party issued notice dated 14.07.2005 intimating the complainant that unless the amount is paid the vehicle will be sold. Opposite party contented that by virtue of the power granted under the hire purchase agreement they sold the motor cycle and according to them to the higher bidder for Rs.23,000/-. Opposite party further contented that as per the account an amount of Rs.7,505/- is in balance remains to be paid. If the act of opposite party in re-possessing the motor cycle is illegal or if the sale of the vehicle by the opposite party acting under the provisions of higher purchase is also alleged to be illegal, then the remedy of the complainant is to seek the assistance of a Civil Court. In the light of the admitted facts and available evidence on record we are satisfied that there is no deficiency of service. Evidently whatever that has been done by the opposite party have been done pursuant to the terms and conditions of the agreement and because of the default committed by the complainant. In such circumstances, a complaint of this nature is not maintainable. When, pursuant to a subsisting contract between the parties, an act is done, the complainant can not seek the remedy of this Forum for a direction to the opposite party to return the motor cycle without making payment of the amount due. The complainant cannot get over the terms of the higher purchase agreement by merely labelling the act of the opposite party as deficiency in service and resort to this Forum. The proper remedy of the complainant would have been to approach the Civil Court to seek appropriate relief. Thus we are of the view that there is no merit in this case. Hence the issues 1 to 3 are found against complainant. In the result the complaint is dismissed. No cost. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1. Letter dated 14.05.2005 issued by opposite party. A2. Copy of the lawyer notice. A3. Reply notice. A4 to A6. Receipt dated 24.02.2005, 14.03.2005 and 20.04.2005 issued by the opposite party. A7. Receipt issued by UCO Bank. A8 to A14. Receipts dated 25.05.2004, 23.07.2004, 04.09.2004, 04.11.2004, 27.11.2004, 30.11.2004 and 27.01.2005. Exhibits for the opposite party B1. Authorisation letter. B2. Account Statement. B3. Copy of the order of the Reserve Bank of India dated 20.05.2008. Witness examined for the complainant PW1. Complainant Witness examined for opposite party DW1. Sojin Kumar U. /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
