BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 129/2000 Filed on 01.03.2000

Dated : 15.07.2009

Complainant:

Seenath Beevi, W/o Mohammed Pradeep, Kairali Enterprises, Thiruvananthapuram.

(By adv. V. Bahuleyan)

Opposite parties:

1. M/s GMAC 20^th Century, Finance Corporation Ltd., Padma Complex, 2^nd Floor, 320, Annasalai,

   Nandanam, Chennai, Tamil Nadu represented by its Managing Director.

2. Manager, Branch of GMAC 20^th Century, Finance Corporation Ltd., 1^st Floor, T.C 28/2851(3), Muttara

   Buildings, Vanchiyoor P.O, Thiruvananthapuram.

(By adv. N. Madhukumar& S.V. Shaji)

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 30.06.2004, 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

SMT. S.K.SREELA : MEMBER

The complainant had purchased a Maruti Omni Van bearing Reg. No. KL-01 P 2520 on 25.01.1999. As per the agreement the complainant paid Rs. 23,255/- as initial payment to the 2^nd opposite party on 15.12.1998. It is also further agreed that the complainant has to pay Rs. 6,455/- every month towards instalments. The complainant was making payments as agreed upon. But due to certain unforeseen failure met with the business of the complainant's husband, she defaulted in payment of the three instalments. Altogether complainant has paid Rs. 87,805/-. While so on 08.01.2000 some of the associates of the opposite parties came to the residence of the complainant and forcibly and illegally took away the vehicle using a duplicate key available with them. After repeated enquiry, the complainant was ultimately informed that an amount of Rs. 19,365/- has to be paid for releasing the vehicle and the entire amount was paid accordingly. But the vehicle was not returned and the opposite parties in turn issued a notice to the complainant to pay an amount of Rs. 1,31,902/- within 10 days of the notice. The complainant further submits that she has paid Rs. 87,805/- to the opposite parties and spent Rs. 34,000/-. The opposite parties have illegally taken the vehicle from the complainant with the help of their goondas with the intention of making illegal profit in detriment of the best interest of the complainant. Making use of the helpless condition of the loanees the opposite parties used to make them sign several papers sufficient to coerce them and trap them, which includes even some transfer of ownership forms regarding the vehicle which they purchased making use of the said loan amount. This is in fact an unfair trade practice from the part of the opposite parties since their representations were false regarding the services which they offered as having a particular standard of quality. Their dealings were unfair and are deceptive. Thus the service offered by the opposite parties are defective and with shortcomings. Hence this complaint has been filed by the complainant.

The opposite parties in their version contend as follows: The complaint is not maintainable. This Forum lacks territorial jurisdiction to entertain this complaint. The vehicle was purchased by these opposite parties directly from the dealer and the same was let on hire to the complainant as per H.P. Agreement entered into between parties. The complainant has filed this complaint concealing this material fact. The complainant was a heavy defaulter from the very first instance. The total price of the vehicle was fixed at Rs. 1,95,000/- out of which an amount of Rs. 15,000/- was paid by the complainant as down payment known as initial hire charges. These opposite parties financed an amount of Rs. 1,80,000/- and purchased the vehicle from M/s Popular Vehicle and Services Ltd. vide invoice No. 1601 51664 VF8 dated 22.01.1999. The complainant was under contractual obligation to make payment of 36 instalments at the rate of Rs. 6455/- per month as monthly hire charge. As per clause(11) of the agreement No. 7066/63 the complainant was permitted by these opposite parties to have the registration of the vehicle in her own name provided the HP agreement with these opposite parties is noted in the RC Book. Repossession of the vehicle was done by duly authorized personnel. Any demand made by the opposite party is only as per agreement between parties. The fact of repossession of the vehicle was done lawfully and the same was duly intimated to the concerned authorities. No forms or papers were taken in blank. Not a rupee was spent on the vehicle for extra fittings as pleaded herein There is no unfair trade practice in invoking contractual clauses between parties. The complainant is a hirer and not a loanee as stated. For all payments proper receipts are issued. The claim is highly embellished and unsustainable. Hence pray for dismissal of the complaint with a token cost of Rs. 500/-.

The complainant has filed affidavit and Exts. P1 to P6 were marked. The opposite parties have no evidence.

In view of the aforesaid facts, the points for our consideration are:-

1. Whether this Forum has territorial jurisdiction to entertain the complaint and whether the complaint is maintainable before the Forum?

2. Whether the complainant is entitled for any of the reliefs claimed in the complaint?

    

Point (i):- As regards the 1^st point, advancing loan has been held to be very much a service within the definition of service under Sec. 2 (o) of Consumer Protection Act 1986. With regard to territorial jurisdiction the learned counsel for the complainant had submitted that, the 2^nd opposite party is the agent of the 1^st opposite party whose branch office is at Thiruvananthapuram and the agreement has been entered at Thiruvananthapuram and hence this Forum has territorial jurisdiction to entertain this complaint. In support of the contention, the learned counsel referred the order of the Hon'ble National Commission reported in 2002 NCJ 429 (NC) wherein it has been held that a complaint shall be instituted where the opposite parties reside or carry out business. But on the other hand, the opposite party's counsel had vehemently contended in their version that this Forum lacks territorial jurisdiction to entertain this complaint as the complainant as well as the opposite parties had expressed their agreement that disputes with respect to the written agreement shall be subject to the exclusive jurisdiction of the Courts of Chennai as per clause 24. The said agreement has not been produced by the opposite parties. But there is no dispute that the 2^nd opposite party's office is at Thiruvananthapuram. At this instance, we would like to highlight the fact that the said agreement has not been produced before the Forum. Even otherwise, it is well known and well settled by now that parties by mutual consent cannot confer jurisdiction upon a particular court when such court lacks inherent jurisdiction. Whereas on the other hand, in case the 2 courts have jurisdiction, then the parties can always agree to confer jurisdiction on one such courts. So far the 2^nd opposite party's office is at Thiruvananthapuram and part of the cause of action having been arisen within the territorial jurisdiction of this Forum, as the opposite parties do not have a case that the agreement was not entered at Thiruvananthapuram, it will not make any difference when the parties had agreed to exclusively confer jurisdiction on the courts at Chennai. In the light of the above, this point is found in favour of the complainant and the complaint is found maintainable before this Forum.

Point (ii):- It is admitted by both parties that the price of the vehicle at the time of delivery was Rs. 1,95,000/-. The opposite parties contend that they have financed an amount of Rs. 1,80,000/-. The complainant pleads that, she has paid an amount of Rs. 87,805/- to the opposite parties and had spent an amount of Rs. 34,000/- towards additional fittings of the said vehicle. Denying the aforementioned, the opposite parties have contended that the complainant had paid Rs. 15,000/- as initial hire charges as down payment. They further contend that she was a persistent defaulter in payment of monthly hire charges right from the beginning and the demand for Rs. 19,365/- was made as the same was due as hire charges evidenced by dishonoured cheques and not as a condition for releasing the vehicles.

Admittedly, both parties agree that the complainant has to pay Rs. 6,455/- per month towards instalment. But the complainant has not specified the period of instalment. According to the opposite parties, the complainant has to make the payment in 36 instalments at the rate of Rs. 6,455/- per month as monthly hire charges.

We have very carefully gone through the materials brought on record and we do not see any specific agreement between the parties with the help of which it could be said that the terms of the agreement have been violated by either the complainant or by the opposite parties. As per the documents produced by the complainant, Exts. P1 & P4 prove payment of Rs. 19,365/- and Rs. 23,225/- to the opposite parties respectively. Besides these documents, the complainant has failed to produce any other evidence to corroborate their contention that she has paid Rs. 87,805/- to the opposite parties. Though the learned counsel for the complainant contended that, the opposite parties have admitted the acceptance of the said amounts in their version we find no such admission by the opposite parties except the receipt of Rs. 15,000/- and Rs. 19,365/-. The main contention of the opposite parties is that the complainant was a repeated defaulter in payment of monthly hire charges. When there is no such admission by the opposite parties, the complainant also has the burden to prove that she has remitted the amount as pleaded in the complaint. The learned counsel for the complainant has referred a decision of the Hon'ble Delhi High Court reported in 2003(2) KLT 1054 wherein certain guidelines enumerating procedure to be followed by finance companies for recovery and taking repossession of financed properties are mentioned amongst which one of them to be strictly followed by all finance companies before it exercises its power to repossess a vehicle is the issuance of notice to the borrower by registered post in case of dishonour of cheque of the borrower.

Ext. P2 is a notice dated 24.01.2000 sent by the opposite parties to the complainant informing her about the overdues and demanding Rs. 1,31,902/- towards clearance of the dues. The complainant has admitted that initial payment of Rs. 23,255/- as per Ext. P4 has been made on 15/12 and as per Ext. P1 dated 15.01.2000 an amount of Rs. 19,365/- has been seen paid. Neither the complainant nor the opposite parties have mentioned the date of agreement. Ext. P1 receipt is dated 15.01.2000 and Ext. P2 demand notice by the opposite parties is dated 24.01.2000. The complainant has pleaded that she has remitted the initial payment on 15.12.1998. As per Ext. P4 the date has been mentioned as 15/12 and the year has not been mentioned. But from the Exts. P1& P2 and P5 series it could be seen that the complainant has purchased the vehicle in the year 25.01.1999 and the date of booking as per Ext. P5 is 24.12.1998. At this juncture, the point that we would like to highlight is that, the complainant is also equally responsible to produce the records showing the payment of the amount as pleaded in the complaint. If at all the complainant had ever made the instalments as averred in the complaint, what prevented her from producing any records to substantiate the same has not been explained. The complainant could at least produce the statement of account from the bank concerned to prove their pleading as to the payment of instalments. The complainant has pleaded that the opposite parties have made her to issue signed cheque leaves. If at all the said cheques were presented by the opposite parties, then the details pertaining to the complainant's bank account would definitely reflect that. But the complainant has not produced any corroborating evidence for establishing the same.

In the light of the above discussions, we find that the complainant could use the vehicle for a period of one year only. The price of the vehicle is 1,95,000/- and the amount financed by the opposite parties is Rs. 180000/-. Though the complainant has made a payment of Rs. 57590/-[(Rs. 19,365/- + 23,225/- + Rs. 15,000/-) Rs. 15,000/- is also added towards the payment made by the complainant as the opposite parties admit the payment of the same], he has been restrained from using the vehicle which we do not find just and proper. The complainant has claimed Rs. 4,64,375/- for the loss caused to him. The complainant claims refund of amount spend for additional fittings etc. for which the complainant has failed to produce any evidence. In the above circumstances, a ratio regarding the period of use of the vehicle and the expected life span of the vehicle are to be taken into consideration. Accordingly, the life span of a Maruthi Omni van can be presumed as 10 years. In this case the complainant has used the vehicle for about one year for which Rs. 20,000/- is to be deducted from Rs. 57,590/-. In view of the said ratio the complainant has been curtailed the right to use the vehicle for the rest of the years inspite of payment of Rs. 57,590- Rs. 20,000= Rs. 37,590/-. As per the agreed instalment, the complainant has to pay Rs. 6,455/- per month. But when the vehicle was seized by opposite party after one year, the complainant had to pay Rs. 77,360/- as 12 instalments, but the complainant has paid only Rs. 42,590/- as per records. From the above calculations we find that the complainant is a defaulter. The opposite parties submit that the vehicle has been garaged. In such a situation it would be onerous on the part of the complainant to take back the vehicle which has been seized by the opposite parties in 2000 and kept idle for such a long period. Considering all the above facts and circumstances, we find that the complainant is entitled for refund of the amount paid i.e, Rs. 37,590/- with 9% interest from 21.02.2000 till realisation. Since the complainant is a heavy defaulter, he is not entitled for any compensation. Both parties shall bear 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 15^th day of July 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 129/2000

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of receipt for Rs. 19,365/- dated 15.01.2000 issued by 1^st opposite party.

P2 - Copy of registered letter dated 24.01.2000 issued by the 2^nd opposite party to the complainant.

P3 - Copy of letter dated 05.02.2000 addressed to R.T.O, Tvpm.

P4 - Copy of receipt dated 15/12 for Rs. 23,225/-.

P5 - Copy of invoice issued by Popular Vehicles & Services Ltd. dated 22.01.1999.

P5(a) - Copy of PCCP – 3 Terms of Understanding.

P6 - Copy of insurance cover note dated 22.01.1999.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT