Complaint filed on: 23-11-2016 Disposed on: 24-08-2017
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM,
OLD DC OFFICE COMPOUND, TUMAKURU-572 101
CC.No.148/2016
DATED THIS THE 24th DAY OF AUGUST 2017
PRESENT
SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT
SMT.GIRIJA, B.A., LADY MEMBER
Complainant: -
Krishnamurthy
S/o. Chikkanarasaiah,
Aged about 31 years,
R/o. Melekote, A.K.Colony,
Tumakuru city
(By Advocate Sri.T.Govindaraja)
V/s
Opposite party:-
Cholamandalam Investment and Finance Co. Ltd, by its Manager,
Kunigal Circle, Near Caltex Petrol Bunk, BH Road, Tumakuru
(By Advocate Sri.M.S.Tharun Kumar)
ORDER
SMT.PRATHIBHA. R.K. PRESIDENT
This complaint was filed by the complainant against the OP, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OP to return the Tractor bearing No.KA-06-D-1937 to the complainant by paying the damages of Rs.50,000=00 in accordance with law by penalizing in the interest of justice and equity.
2. The brief facts of the complaint is as under.
The complainant is the RC owner of the Tractor vehicle bearing No.KA-06-D-1937. The complainant had purchased the said Tractor from the John Deer Company on 25-6-2014. For the purchase of the said vehicle, the complainant had raised the loan of Rs.3,43,300=00 from the OP Company.
The complainant further submitted that, the said vehicle was hypothecated to the OP Company as security for the said amount. At the time of hypothecation, the complainant and the OP had entered into the agreement in respect of the clearance of the loan amount. The complainant has paid the installments regularly, but some installments not paid due to family difficulty and crisis.
The complainant alleged that, when the complainant had parked the Tractor nearby house, the OP had seized the said vehicle without his knowledge and information. Thus it is very clear that, the OP has not given the individual notice and information before making the seizer of this vehicle. Hence the action taken by the OP is illegal and warranted under law.
The complainant further submits that, in fact, the OP is known to be sold it in favour of one Sri.Bharath for some consideration without informing it to the complainant. The OP has taken the process of law before alienating the said vehicle. Even the prior notice is a mandate before initiating any action for sale.
The complainant further submits that, the complainant has requested the OP to receive the installment and to release the vehicle in his favour, but the OP has refused to do so with oblique motive to harass the complainant and if possible to impose heavy arrears of loan at the higher interest against to law. The complainant is suffering very badly on account of stoppage of income of the running of the vehicle. The complainant is entirely depending upon the said income including his family and they are suffering from starvation and difficulty.
The complainant further submitted that, the Bellavi police have filed the FIR in Cr.10/2016 on the file of 1st Addl. Civil Judge and JMFC, Tumakuru alleging the several offence against the complainant of transporting the sand against to law and the police have seized the vehicle. The complainant took a bail and got release of the vehicle in his favour, for this purpose, the complainant has executed a bond undertaking not to alienate the vehicle during the pendency of the case and other conditions stipulated therein.
The complainant further submitted that, the OP has seized the vehicle in contravention of the law and against the order of the learned magistrate. The OP has not taken due course of law for seize of the vehicle. Hence, the OP has committed the illegality and arbitrary action which is not justified under law. The complainant is also ready to pay the arrears of the loan to the OP. The OP has committed the breach of trust and also the service and the OP has committed fault in providing the service being a financier. As such the OP is bound to pay the compensation also an account of the damages sustained by the complainant due to the loss of the income from the Tractor and also an account of illegal seizure of the tractor and the violation of the terms of the agreement. Hence, the present complaint is filed.
3. After service of notice, the OP has appeared through his counsel and filed objection contending interalia as under:
The complaint filed by the complainant is false, vexatious, capricious and not maintainable neither in law or on facts and the same is liable to be dismissed in limine.
The OP further submitted that, the complainant cannot invoke the provision of the CP Act and he is not a consumer under the Act. This forum cannot decide the alleged dispute. The complainant is misusing and abusing the process, he himself being a party to the contract and having committed breach of the terms thereof. At the threshold, the complaint has to be dismissed without going to the merits of the case, as the loan advanced is a commercial loan by OP. Same contains arbitration clause to resolve the disputes between the parties by referring the matter to arbitration, hence, this forum does not have jurisdiction to entertain the complaint.
The OP further submitted that, the complainant was highly irregular in the matter of payment of installments and has kept huge arrears of installments. On 19-5-2016 and 12-7-2016 the OP has issued notice to the complaint to update the arrears of installments by registered post. On receipt of the notice, the complainant has expressed his inability to repay the amount and personally approached by the OP and surrendered the subject matter vehicle to the custody of the OP on 31-7-2016.
The OP further submitted that, the OP is not aware of the facts that, the Bellavi police has filed the FIR in Cr.No.10/2016 on the file of the 1st Additional Civil Judge and JMFC, Tumakuru alleging the several offence against the complainant of transporting the sand against the law and the police has seized the said vehicle and the complainant took a bail and got release of the vehicle, for this purpose the complainant has executed a bond undertaking not to alienate this vehicle during the pendency of the case and other condition stipulated therein and complainant is put to strict proof of the same. At the time of surrender of the vehicle, the complainant has not brought the fact of seizer of the vehicle in crime no.10/2016 on the file of 1st Addl. Civil Judge and JMFC, Tumakuru. Hence the OP was not aware that the vehicle was involved in crime.
The OP further submitted that, the complainant obtained a loan on tractor bearing No.KA-06-D-1337. The complainant had agreed to repay the loan amount along with interest in 47 equal monthly installments. Both parties have entered into an agreement No.XTRATUM00001167957 by hypothecating the vehicle No.KA-06-D-1337 in favour of the company. It is the duty of the complainant to pay the installments amount regularly without any default. The complainant became defaulter in payment of the monthly installments. The OP has sent a final call letter to the complainant on 19-5-2016 by RPAD to pay total due sum of Rs.2,43,000=00 within 7 days, but the complainant has failed to pay the said notice amount. On 1-8-2016 the OP finance company sent a pre-sale letter to the complainant. Since the OP has not committed any deficiency in service and there is no cause of action to file the complaint. The complainant is not entitled any relief as prayed in the complaint. Hence it is prayed to dismiss the complaint with cost, in the interest of justice and equity.
4. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced documents along with the complaint, which were marked as Ex-C1 to 13. The OP has produced documents, which were marked as EX-R1 to R6. We have heard the arguments of both parties and perused the documents produced by both parties and posted the case for orders.
5. Based on the above materials, the following points will arise for our consideration.
- Whether there was deficiency in service on the part of the OP as alleged by the complainant?
- What Order?
6. Our findings on the above points are;
Point no.1: In the negative
Point no.2: As per the final order below.
REASONS
7. On perusal of the pleadings, affidavit evidence, objections of the OP and documents produced by both parties, it is an admitted fact that, on 25-6-2014 the complainant had availed a loan of Rs.3,43,300=00 from the OP Company for the purchase of Tractor vehicle bearing Reg. No.KA-06-D-1937 and the same was hypothecated to the OP company. It is also an admitted fact that, the complainant failed to pay some installments.
8. The main contention of the complainant is that, the OP had not given the individual notice and information before seizer of the vehicle and the OP had sold the vehicle without giving notice of auction of sale. Hence, the auction of the OP is illegal and the OP had violated the terms and conditions of the hypothecation agreement.
9. The OP’s counsel submitted that, the complainant was not deposited the interest regularly and defaulted in making instalments, therefore the OP had issued notice on 19-5-20115 through RPAD calling upon to pay total sum of Rs.2,43,000=00 within 7 days, but the complainant did not pay the said due amount. The OP further submitted that, the complainant himself surrendered the vehicle before the OP on 31-7-2016. Thereafter, on 1-8-2016 the OP has sent a pre-sale letter to the complainant. Hence, the OP has not committed any deficiency in service. To substantiate his contention, the OP has produced Ex-R1 & R2/Final call letter to the customer dated 19-5-2016 and 12-7-2016, Ex-R3/surrender letter dated 31-7-2016, and Ex-R4/Pre sale letter to the customer dated 1-8-2016.
10. On perusal of the documents produced by the OP. Ex-R1 and R2 are final call letters dated 19-5-2016 and 12-7-2016. As per the final call letters, it is made clear that, the complainant is liable to pay overdue instalment value and additional finance charges. Further the OP had given an opportunity to make payment amount within 7 days from the date of issue of final call letter in case the complainant had failed to pay within 7 days, the OP shall be constrained to take recourse to their rights available under the said agreement and the complainant shall be held liable for all such costs, omission and inaction. Thereafter, the complainant has surrendered the vehicle before the OP as per Ex-R3/Surrender letter dated 31-7-2017. The surrender letter/Ex-R3, it is reads as hereunder; “with reference to my Krishnamurthy Tractor vehicle loan taken from the OP Company against the loan agreement No.XTRATUM0000 1167957, I am unable to pay his monthly installments and hence I am voluntarily surrendering the vehicle bearing Reg. No.KA-06-D-1337 (J.D.-5038) to you branch office. You are empowered to sell the vehicle and adjust the sale proceeds against my dues”.
11. From the above perusal of the document/Ex-R3, it appears that, the complainant’s have signed the documents and the same has not been disputed by the complainant. Hence, it is clear that, the complainant himself surrendered the vehicle voluntarily to the OP. On the basis of surrender of the vehicle in question, was sold by the OP as per the terms and conditions of the agreement. Once the complainant himself surrendered the vehicle, he is estopped from taking such contention as the OP has not informed about the sale of the vehicle. Moreover, the OP had informed through final call letter dated 19-5-2016 and 12-7-2016 and also informed sale through pre-sale letter dated 1-8-2016.
12. Hence, the OP has acted in accordance with the terms and conditions of the loan agreement. As per the payment schedule, the complainant has failed to make payment, but the complainant paid the amount as per his convenience it amounts to violation of terms and conditions of the loan agreement and as such we are of the view that there is no deficiency in service on the part of the OP in making seizure of the vehicle and accordingly we answer this point in a negative.
ORDER
The complaint is dismissed. No costs.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 24th day of August 2017).
LADY MEMBER PRESIDENT
