ORDER

 

By G. Yadunadhan, President:

 

            The petition was filed on 26-2-2009. The complainant has approached this Forum alleging deficiency in service and unfair trade practice on the part of the opposite parties regarding the hire purchase loan availed by him for purchasing a Tavera Car. The complainant contends inter alia that the loan of Rs.4,92,600/- availed by him was to be repaid in monthly instalments of Rs.10,800/- and nothing was mentioned regarding the same in the Hire Purchase agreement while the same was executed by him. It was only much later that a chart showing the repayment schedule in a different pattern was issued to him, which was contrary to the originally agreed terms and conditions. According to the complainant when he contacted the opposite parties he was assured that the said chart should be re-scheduled with Rs.10,800/- as EMI. Believing relying on the said representations the complainant had been regularly remitting the monthly instalments @ Rs.10,800/-. Later as per communication dated 10-02-2009 the complainant was intimated by the 1^st opposite party that the re-scheduling cannot be done and that the complainant will have to remit the amounts at the rate mentioned in the chart earlier issued. Aggrieved by the same the complaint is filed seeking the relief of re-scheduling the chart facilitating the complainant to pay Rs.10,800/- per SMI and seeking Rs.10,000/- as damages.

 

            The opposite parties entered appearance and filed joint version contending that the loan agreement executed by the complainant specifically stipulated that the loan amount together with interest thereon @ 9.9% per annum was to be repaid in 45 monthly instalments. The loan amount was disbursed after deducting the 1^st instalment of Rs.10,800/-. As per the terms on the overleaf of the loan application submitted by the complainant, he was to remit Rs.10,800/- towards the instalment Nos. 2 to 9 Rs.18,800/- each towards instalment Nos. 10 to 29 Rs.17,750/- towards instalment Nos 30 to 40 and Rs.5253/- each towards instalment Nos. 41 to 45, all payable on the 10^th of each month. It is further contended that the complainant was plying the car as a taxi, and hence it being a commercial transaction the complainant is not a consumer. Apart from the above, maintainability of the complaint is challenged basing on clause-17 of the loan agreement wherein settlement of all disputes by arbitration is providing and that Court at Chennai is alone having jurisdiction is provided. In short the opposite parties prayed for dismissal of the complaint.

           

 

            The issues that arise for consideration are (1) Whether the complaint is maintainable? (2) Is there any deficiency in service or unfair trade practice on the part of the opposite parties? (3) What order as to reliefs and costs.

 

            Evidence in the matter consists of the oral testimony of the complainant as PW1 and documents marked as Exts.A1 to A3 and Exts. B1 to B3. No oral evidence was adduced on the part of the opposite parties. The opposite parties have filed notes of arguments.

Issue No.1:

 

            Except for raising the contention of commercial transaction, lack of territorial jurisdiction, complainant not being a consumer being a hirer and arbitration clause etc., the issue of maintainability was not seriously pressed at the time of hearing. No suggestion is seen put to PW1 in cross examination regarding commercial transaction. No positive evidence was adduced on the part of the opposite parties regarding the same as well. The arbitration clause relied on by the opposite parties is only a contractual one and not a statutory arbitration, and hence the same will not oust the jurisdiction of the Fora constituted under the Act. Moreover nothing is produced by the opposite parties to evidence the sake clause has been evoked. General clauses contained in an agreement like Ext.B1 conferring jurisdiction to courts at Chennai will not oust the jurisdiction of this Forum. That Ext.B1 was executed from Chennai, there is no specific plea or evidence. Service as defined under the Act takes in services relating to financing as well. Hence we find that the objection vaguely raised by the opposite parties regarding the maintainability of the above complaint is not maintainable.

 

Issue No.2:

 

            The specific case of the complainant is that at the time of availing the financial assistance from the opposite parties he was made to understand and believe that the EMI would be Rs.10,800/- only, and believing and relying on which he had availed the said financing service. If the same is true, any unilateral change in the repayment schedule would amount to deficiency in service and unfair trade practice, especially because the complainant would be entrapped for he has already availed of the finance and is bound to repay the same. The complainant has adduce oral evidence to prove his case, which has not been able to be belied or discredited in the cross examination. There is no cross examination on many crucial aspects as well. Literally the fact that the repayment chart was sent much after the loan agreement was executed is seen admitted in the questions put in the cross examination. The opposite parties rely on Ext.B1 agreement to content that the complainant was aware of loan repayment schedule at the time of availing the loan itself. But in the absence of any contra evidence from the part of the opposite parties and in the light of their failure to discredit the testimony of PW1 in cross examination, we are inclined to believe the contention of the complainant that the said agreement was not duly filled up at the time of its execution and the same was got executed without affording an opportunity to the complainant to read or understand its contents. The further reliance seen made on Exts. B1 and B2 also does not appear to be sustainable. In the absence of any oral evidence being adduced on the part of the opposite parties, adverse inference is also liable to be drawn against them. Moreover it has come out during the hearing that the opposite parties have seized the vehicle while the matter was pending before this Forum. The opposite parties have not produced anything to show that the said seizure was according to law or after complying with the procedure mandated by law. The fact that the complainant has been remitting the EMI @ Rs.10,800/- without any delay or default is admitted by the opposite parties, but their case is that the EMI amount is not Rs.10,800/- but much more as contended in their version. In the result it is found that the opposite parties have unilaterally changed the repayment pattern to the prejudice of the complainant after the loan was availed by him, whereby causing loss and hardship to him. At the same time we cannot ignore the contention of the opposite parties that if the EMI is to be fixed at Rs.10,800/-, recovery of the loan amount and interest is not possible within the 45 month period. Hence a direction to pay an amount of Rs.2,50,000/- towards the loan amount is liable to be passed against the complainant as there was contributory negligence on his part is not being vigilant and in not properly verifying the offer or representation made by the opposite parties while availing the financial assistance from them.

 

Issue No.3:

 

            In view of the above finding that there is deficiency in service and unfair trade practice on the part of the opposite parties it is only just and proper to direct the opposite parties to return the unauthorizedly and illegally seized vehicle in good condition to the complainant upon the complainant remitting an amount of Rs.2,50,000/- towards the loan amount, and to reschedule the repayment of the balance loan amount by fixing the EMI at the originally agreed rate of Rs.10,800/- per month, which the complainant shall be liable and responsible to remit without any delay or default before the 10^th of every month. The opposite party shall also pay an amount of Rs.10,000/- as compensation to the complainant for the loss and injury caused to him on account of their negligence and deficiency in service. The parties shall bear their respective costs.

 

Pronounced in the open court this the 31^st day of august 2010.

Date of filing: 26.03.2009

 

 

            SD/-PRESIDENT                    SD/-EMBER                SD/-MEMBER

 

 

APPENDIX

Documents exhibited for the complainant:

A1.Photocopy of Repayment schedule

A2. Letter dated. 10.02.2009.

A3.(Series 25 in Nos.)Photocopy of receipts.

 

Documents exhibited for the Opposite party.

B1.Photocopy of application.

B2.Receipts (4 in Nos)

B3. Acknowledgement receipts (5 in Nos.)

 

Witness examined for the complainant:

PW1. Dineshan.P.(Complainant)

Witness examined for the opposite party:

      None

 

Sd/- President.

 

//True copy//

 

 

(Forwarded/By Order)

 

 

 

SENIOR SUPERINTENDENT.