CDRF Wayanad Civil Station,Kalpetta North consumer case(CC) No. 61/2006
Saramma Vincent
...........Appellant(s)
Vs.
MD,Ashok leyland Finance Company Manager,Ashok leyland Finance Company Manger,Ashok leyland Finance Company
...........Respondent(s)
BEFORE:
1. K GHEEVARGHESE 2. SAJI MATHEW
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
PRESENT: Sri.K.Gheevarghese, M.A, L.L.B - President Smt. Saji Mathew, B.A, L.L.B - Member Saramma Vincent, W/o. Vincent, : Ebenezer House, Poomala Post, : Sulthan Bathery, : Complainant Wayanad District. : 1. The Managing Director, : Ashok Leyland Finance Ltd., : Regd. Office, Sudarsan Building, : 86, Chamiers Road, Madras - 600018. : : 2. The Manager, : Ashok Leyland Finance Limited, : 36/1270, Ist Floor, : Vithayathil Chambers, : Opposite parties. Lessie Junction, Kochi - 682018. : : 3. The Manager, : Ashok Leyland Finance Limited, : Saradha Building, : Annie Hall Road, Calicut. : Complainant by : Sri.K.V. Prachod, Advocate S.Bathery. Opposite Parties No. 1 to 3 by : Sri. Shyju Manisseril, Advocate Kalpetta. ORDER By Smt. Saji Mathew, Member: The gist of the complaint is as follows: The Complainant was the registered owner and in possession of KL -12 - A- 9540 Ashok Lyland Bus. On 30.06.2000 the Complainant entered in to a loan agreement with the (Contd......2) -2- Opposite parties as per No: BEOED- 01 - ED- 000711 and the Opposite Parties had allowed a loan of Rs. 4,50,000/- (Rupees four lakhs and fifty thousand only) and issued a chart to the Complainant and directed to pay a total sum Rs.5, 95, 500/- only (Which includes principle amount of Rs. 4,50,000/- plus flat interest of Rs.1,21,500/- plus insurance premium of Rs. 24,000/- ) by 35 monthly installments. The Complainant has availed 35 monthly installments to repay the amount for convenience. The loan amount was agreed to be repaid on or before 01.06.2003. The loan endorsement was made on the RC book at the Regional Transport Officer's Office at Kalpetta, Wayanad. The Complainant repaid an amount of Rs. 5,48,166/- on various dates. At last on 27.3.2003 - two months prior to the closing date of loan the Complainant closed the said loan amount by paying an amount of Rs. 86, 840/- and the Opposite Party No.3 had issued a receipt for the same and on verification of the receipts issued by the Opposite Parties the Complainant noticed that an amount of Rs.29,972.82 was excessively collected by the Opposite Parties without any legal ground. The opposite parties has collected an additional amount of Rs.3,000/- from the Complainant in excess of the agreed amount after closing the accounts. The Opposite Parties on 21.8.2001 seized vehicle from the Complainant and retained it for 3 days. This act of the Opposite Parties has caused a damage of Rs.9,000/- to the Complainant. The Complainant claims for Rs.50,000/- towards the loss and damages caused due to the negligent service and violation of present law by the Opposite Parties. The Complainant also claims Rs.2500/- towards the cost of the case. The Opposite Parties No. 1 to 3 appeared and filed version. It is stated that the Complaint is not maintainable either on law or on facts and stated that the Complainant is not (Contd......3) -3- a consumer to invoke the provisions of the Consumer Protection Act. The vehicle was used for commercial purpose employing drivers and other workers. The Opposite Parties admitted the Hire Purchase Agreement. As per the HP agreement all disputes between the Complainant and Opposite Parties in connection with the HP agreement is to be settled by arbitration proceedings. The opposite parties also stated that this forum has no jurisdiction to entertain this case. The payments were made at Calicut, the account was settled at Calicut etc. As per the version of Opposite Parties, the total HP agreement amount was fixed at Rs. 5,95,500/- and this has to be paid in 35 monthly installments promptly on the first day of every months as per the schedule of the agreement. In default of payment of any installment on due date, an additional charge at the rate of 36% per annum is to be paid on the defaulted arrears until payment. In this case the Opposite Parties has charged additional finance charges as per the terms of the agreement. The Opposite Parties had waved an amount of Rs.14, 985/- from the additional charges. And the Opposite parties denied the allegation that they have collected the amount of Rs.29,975/- without any legal ground. Regarding the allegation of seizure of the vehicle, the Opposite Parties stated that the vehicle was repossessed on continuous default of installment payments. Opposite Parties also content that the subject matter of complaint is settlement of accounts and for the above said reasons, the Complainant is to be dismissed. The matters to be decided are as follows:- 1. Whether this forum has jurisdiction to entertain this case. 2. Whether any deficiency in service on the part of the Opposite Parties. 3. Any order as to cost or compensation. (Contd......4) -4- The Complainant is examined as PW1. Ext. A1 to Ext A8 are marked on the side of the Complainant. The Manager of the Opposite Parties has given evidence as OPW1 and Ext.B1 to B4 are marked on the side of the Opposite Parties. Point No.1 The loan endorsement was made on the RC book at the Regional Transport Officer' s, Office at Kalpetta, Wayanad. In addition, OPW1 admits that, on default of installment payments, demand is made at the residence of the Complainant, by the agent of Opposite Party. The seizure of vehicle also is made in Wayanad district. Therefore this forum is found to have jurisdiction to entertain the case. Point No.2 and 3. It is the case of the Complainant that at the time of availing the loan of Rs. 4,50,000/- for a period of 3 years, interest for the said period of 3 years for Rs. 4,50,000/- was calculated and the total amount was divided into 35 installments. For the 3 years no further amount can be claimed by the Opposite Party as additional finance charges. The Opposite Party has admitted that the entire amount covered by the all installments were received by them before the date fixed for payment of the last installment. The Opposite Party has charged additional finance charges though the entire amount was paid by the Complainant 2 months before fixed date of last installment. The Opposite parties admits this amount as Rs.29, 975/-. This amount is to be returned to the Complainant. Regarding the seizure and repossession of the vehicle, the National Commission in (Contd.......5) -5- Citicorp Maruti Finance Ltd. V.S. Vijayalakshmi (CPR 2007 Vol X) held that financier is not invested with the right to repossess the vehicle, for which loan has been given by it by use of force under any law, precedent or code of conduct. The National Commission has held that when a vehicle is purchased by a person by borrowing money from the money lender/ financier/ banker, the customer is the owner of the vehicle and not the money lender/ financier/ banker, unless the ownership is transferred. The OPW1 admits and the documents show that the vehicle was seized by the Opposite Parties. In this case the vehicle was re- possessed without seeking any legal or judicial process. Even the notice of repossession was very short - 7 days- where as the judicial direction is for 14 days notice. OPW1 admits that no amount is due after 27.3.2003 as per Ext.B3. He admits that Ext.A5 to A7 does not show the ground on which the amount of Rs.3,000/- has been collected on 28.3.2003. So this amount is collected in excess of the agreement amount. This is deficiency in service on the part of the Opposite parties. Therefore it is found that there is clear deficiency in service on the part of the Opposite parties. The Opposite parties are directed to pay a total amount of Rs.50,000/- (Rupees Fifty thousand only) with 9% interest from the date of order of this forum till payment. Rs.500/- (Rupees five hundred only) to be paid to the Complainant as cost. The complainant is also entitled to execute the order as per the provisions of law. Pronounced in the open forum on 6th day of December 2007. PRESIDENT: Sd/- MEMBER: Sd/- /True Copy/ PRESIDENT, CDRF WAYANAD. -6- Witnesses for Complainant: PW1 Saramma Vincent Complainant Witnesses for Opposite party: OPW1 Jaimon Mathew Manager, Indus Bank Calicut. Exhibits for Complainant A1 Photostat copy of the R.C book dt: 6.9.2000. A2 Schedule A3 Receipt dt: 27.3.2003. A4 Statement of account dt: 16.4.2003. A5 Receipt dt: 25.3.2003. A6 Receipt dt: 28.3.2003. A7 Receipt dt: 28.3.2003. A8 Telegram Exhibits for Opposite parties B1 Hire purchase agreement dt: 30.06.2000. B2 Letter dt: 21.01.2003. B3 Account statement dt:10.09.2007. (2 sheets) PRESIDENT, CDRF WAYANAD.
