By. Sri. K. Gheevarghese, President:

The complaint filed against the opposite party to pay back the excess amount received in the sale of the vehicle along with cost and compensation.

2. The complaint in brief is as follows:- The complaint availed Rs.7,80,000/- from the 1^st opposite party as vehicle loan. Conditionally that the amount availed as loan would be repaid in 60 installments. The complainant repaid Rs.3,53,000/- the EMI extent to 01.12.2011. The 3 installments of the last payments became due. The repayments except this

3 were satisfying the dates in the chart. The opposite party seized the vehicle on 28.01.2010 and told the complainant that the vehicle would be delivered on the completion of the installments due. The complainant was ready with amount to clear the due on 15.03.2010. Whereas the opposite party demanded an excess amount of Rs.68,000/- as additional charges which lead to the auction of the vehicle in public. The complainant could realize later that the vehicle was purchased by one Salam, Muvattupuzha in public auction for an amount of Rs.7,87,500/-. The loan amount of Rs.7,48,000/- was availed by complainant on down payment of advance of Rs.20,000/- to the 1^st opposite party. When the vehicle was in the custody of complainant Rs.3,53,000/- paid as installments towards the loan amount. The opposite party in total including repayments of the complainant received Rs.11,40,500/-. The opposite party is liable to give back Rs.3,10,680/- to the complainant. There may be Order directing the opposite party to give back the complainant Rs.3,10,680/- the excess amount received from the complainant in the vehicle deal along with cost and compensation.

3. The opposite parties filed version in short it is as follows: The complainant entered into the terms of agreement with the opposite party that if any dispute or difference arises it is to be decided by an arbitrator. The petition filed before the arbitrator is still pending and upon that reason alone the complaint is not maintainable in this Forum. The complainant entered into hypothecation agreement with opposite party at the time sanctioning the loan. The 1^st opposite party disbursed Rs.7,48,000/- on 28.12.2007 and the repayment was to be on monthly basis of 48 installments in total. The repayments scheduled to an amount of Rs.10,09,800/-. The opposite party is entitled to impose interest for the defaulted payments. The complainant was asked either to surrender the vehicle or to clear the dues. Because of the inability of the complainant to remit the installments in time the vehicle was surrendered.

4. Subsequently the complainant brought one Abdul Salam to negotiate with the sale of the vehicle and the vehicle was sold to Abdul Salam at the price of Rs.5,20,000/- the amount realized out of the sale of the vehicle was adjusted to the loan amount and the balance amount is still due from the complainant. The complainant handed over the entire vehicle documents to this Abdul Salam Rs.1,80,144/- is still due from the complainant to clear the liability with the opposite party. The allegation of the complainant that he was ready to repay the installments and the vehicle was sold to somebody else at an amount of Rs.7,87,500/- is utter falsehood. The complaint is sprout up from ill motivation and it is nothing but a rues to escape from the proceedings initiated by the arbitrator and to escape from the liability due to the opposite party.

5. There is no unfair trade practice or deficiency in service on the part of the opposite party, the complainant is entitled to repay the amount due to the opposite party with interest as averred in the agreement. The opposite party is not liable to compensate the complainant at any means. Hence the complaint is to be dismissed with cost to the opposite party.

6. The Points to be decided are:-

1. Is there any unfair trade practice or deficiency in service on the part of the

opposite parties?

2. Relief and Cost.

7. Points No.1 and 2 :- The evidence in this case consist of the proof affidavit of the complainant. Ext.A1 to A4 and B1 to B6 are the documents produced. The oral testimony of the complainant and witnesses are also considered.

8. The complainant's case is that the stage carriage purchased under hypothecation with 1^st opposite party was seized and sold by 1^st opposite party. The complainant remitted around Rs.3,53,000/- in installments up to the time and two or three installments were due when the vehicle was seized by the 1^st opposite party. The complainant is examined as PW1. It is admitted by the complainant that the opposite party sold the vehicle to a 3^rd party. According to the complainant the vehicle was seized by the 1^st opposite party. The loan agreement with the 1^st opposite party is admitted by the complainant. On examination of the complainant it is admitted that the vehicle was surrendered by him. According to the complainant the vehicle was surrendered along with the documents of the vehicle. It is undisputed that the Abdul Salam from Ernakulam is person who purchased the vehicle from 1^st opposite party. Apart from oral testimony no documents is produced by both parties to establish their contention for what amount the vehicle was disbursed to Abdul Salam. The complainant's case is that the vehicle was seized by the 1^st opposite party for which they are liable to compensate the

complainant. The oral testimony of the complainant itself admitted that the vehicle was surrendered. The witness examined for complainant as PW2 is a close relative of the complainant and it is also admitted by him that he deposed for the complainant under therequest and this witness cannot be considered unbiased. The 3^rd witness who is also in acquaintance with the complainant for the last three years. The testimony of this witness also not to be genuine and reasonable.

9. Ext.B5 is the Loan cum Hypothecation Agreement. This agreement set apart a right up on the 1^st opposite party to charge interest and penal charges for the defaulted payments. Apart from the oral testimony of the complainant nothing is there to bring forth that the vehicle was disbursed by 1^st opposite party for an higher amount than the admitted amount of Rs.5,20,000/-, no documents or any testimony of the purchaser Abdul Salam is before us to conclude the rate at which the vehicle was sold by the 1^st opposite party. In the light of the above inferences it is considered that there is no deficiency or unfair trade practice on the part of the opposite parties in the sale of the vehicle.

In the result the complaint is dismissed. No Order as to cost.

Pronounced in Open Forum on this the day of 31^st January 2012.

Date of Filing:24.02.2011.