cccccPBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of October 2012
Filed on : 17-08-2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
C.C. No. 445/2011
Between
Between
P.M. Abdul Rashed, : Complainant
Puthusserikudiyil house, (By Adv. Tom Joseph,
Puthuppady P.O., Court road, Muvattupuzha)
Muvattupuzha.
Vs.
1. M/s. Cholamandalam Investment : Opposite parties
& Finance Ltd., 1st floor, (By Adv. Philip T. Varghese,
Bethedsa Towers, T.D. road, Ernakulam,
Opp. St. Martins Church, Cochin-11)
Palarivatom, Kochi-682 025.
2.M/s. Cholamandalam Investment &
Finance Co. Ltd., Dare House,
1st floor, 2, NSC Bose Road,
Chennai-600 001.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant is a driver by profession. He availed finance facility to the tune of Rs. 2,41,000/- for his TATA ACE vehicle bearing Reg. No. KL-17E-7276 on 22-09-2007. As per the loan agreement the complainant has to repay Rs. 3,49,498/- in 48 monthly installments commencing from 01-11-2007 to 01-10-2011 at the rate of Rs. 7,281/-. The vehicle met with an accident in January 2009. Hence some delay occurred in repaying the installments. But the complainant cleared the monthly installments. But the complainant cleared the monthly installments till 30-05-2010. The amount collected from him towards the installment for July 2010 was returned to the complainant stating that no more amount to be paid since they are going to seize the vehicle. Subsequently the opposite parties seized the vehicle on 06-10-2010. By that time, the complainant paid Rs. 1,75,527/-. The opposite parties had agreed to refund the excess amount after selling the seized vehicle. The market value of the vehicle at the time of seizure was Rs. 2,25,000/-. Hence the opposite parties were duty bound to refund Rs. 55,550/- immediately after the seizing of the vehicle. But as against the duty to refund the excess amount, they sent a notice dated 01-08-2011 asking him to pay Rs. 3,38,854/-. The demand for further payment even after seizing the vehicle amounts to deficiency in service. The complainant is not liable to make the payment of monthly installments after the seizure of the vehicle. He is also not liable to pay any interest on the financed amount from the date of seizure of the vehicle. The opposite parties obtained undue benefits from the complainant by seizing the vehicle. The complainant is entitled for Rs. 55,550/- excessively benefited by the opposite party by seizing the vehicle in a premature stage. He is also entitled for Rs. 10,000/- towards compensation for the mental agony and hardships suffered due to the repeated demands made by the opposite party even after the closure of the loan by seizing the vehicle. The opposite parties may be refrained from initiating coercive steps against the complainant with respect to the vehicle loan taken by the complainant. This complaint hence.
2. The version of the opposite parties is as follows:
The transaction between the complainant and the opposite party is a commercial loan transaction, therefore the complainant is not a consumer within the ambit of the Consumer Protection act. Article 17 of the loan agreement stipulates for settlement of all disputes by arbitration, in that count also the complaint is not maintainable. The complaint is for settlement of account between the parties, the Forum does not have jurisdiction to decide such a complaint. The complainant willfully defaulted in repayment of loan amount and the opposite party took the possession of the vehicle on 06-10-2010 as per the order of the Hon’ble High Court of Madras. Even after repossession the complainant failed to clear the dues and take back the vehicle. At the time of seizure the vehicle did not have a market value of more than Rs. 1 lakh. The opposite party has not proceeded with sale of the vehicle in view of the assurance by the complainant to settle the account. The complainant has remitted only Rs. 1,75,314/-. At the time of seizure a sum of Rs. 3,25,188/- was payable by the complainant. There is no deficiency in service on the part of the opposite parties.
3. The complainant was examined as PW1 and Exbts. A1 to A4 were marked. The witnesses for the opposite parties were examined as DW1 and Exbts. B1 to B4 were marked. Heard the counsel for the parties.
4. The points that came up for consideration are.
i. Whether the complaint is maintainable in this Forum?
ii. Whether the complainant is entitled to get refund of Rs.
55,550/- from the opposite parties?
iii. Whether the opposite party is entitled to recoup any amount
from the complainant.
5. Point No. i. The opposite parties challenged the maintainability of the complaint on three grounds.
Firstly, the counsel for the opposite parties contented that the complainant has purchased the vehicle in question for commercial purpose and the complainant is not a consumer within the purview of Section 2(1)(d) of the Consumer Protection Act. We are not to accept the contentions of the opposite parties for the simple reason that nothing is on record to substantiate the same. Hearsay evidence is no evidence at all.
6. Secondly, the opposite parties vehemently contend that in the loan agreement it is stated that if any dispute arises between the complainant and the opposite parties it must be referred for arbitration. The opposite parties filed I.A. No. 668/2011 seeking direction to refer the parties to arbitration. This Forum vide order dated 03-12-2011 dismissed the petition. The said order has not been challenged by the opposite parties. So the 2nd contention for the sake of argument also goes.
7. Thirdly, the opposite party contends that the nature of the complaint is for settlement of account in the loan transaction in consequence of the loan agreement. Indisputably as per Section 2 (1) (o) of the Consumer Protection Act “banking” is a service and we have no hesitation to hold that the complainant is a consumer within the ambit of the Consumer Protection Act.
8. Point Nos. ii & iii. The following issues are undisputed.
i. The complainant availed himself of a loan of Rs. 2,41,000/-
from the opposite parties by executing Ext. B1 loan
agreement dated 22-09-2007.
ii. The loan amount with interest was to be repaid in 48 equal
monthly instalments of Rs. 7,281/- each.
iii. The vehicle was seized on 06-10-2010 in furtherance of the
order of the Hon’ble High Court of Madras.
iv. As on the date of seizure the complainant has remitted a
total amount of Rs. 1,75,527/- in the loan account.
9. According to the complainant the market value of the vehicle was 2,25,000/- as on the date of seizure. The complainant relied on the insured declared value of the vehicle as per Ext. A4 motor vehicle Insurance Proposal and cover note to substantiate the same. The opposite parties maintain that the market value of the vehicle as on 26-08-2011 was Rs. 80,000/-. They relied on Ext. B4 an inspection report proposal issued by a chartered engineer and valuer. It is pertinent to note that both the parties challenged the veracity of the documents submitted by their respective counter parts. In short no reliable evidence is on record to show that the market value of the vehicle is conclusive to both at any point of time. DW1 the witness for the opposite parties deposed that as on the date of seizure of the vehicle is the complainant was to pay a total amount of Rs. 2,29,475/- to the opposite parties and the same has been increased to Rs. 3,25,158/- as on the date of filing of their version. Since the exact market value of the vehicle is not available we are at a loss to commend on the contentions of the parties regarding the appraisal of the loan account.
10. Indisputably both the parties are bound by the terms and conditions in Ext. B2 loan agreement. As per clause 11.6 in Ext. B2 the opposite parties are bound to sell the vehicle after the expiry of 15 days from the date of repossession and appropriate the sale proceeds towards the amounts due to the borrower which they did not do. Admittedly in the instant case the opposite parties seized the vehicle on 06-10-2010, the lackadaisical attitude continues even after 2 years for no reasonable explanation is forthcoming. Had the opposite parties sold the vehicle immediately after repossession of the vehicle this complaint would not have arisen and the complainant would not have been put to unnecessary hardships due to litigation. By the time much water has flown under the bridge and the market value of the vehicle must have deteriorated. The serious lapse on the part of the opposite parties can not be countenanced.
11. To set things right we pass the following order.
i. The complainant is not liable to pay any more amount in the
disputed loan account.
ii. The opposite parties are at liberty to proceed with the sale of
the vehicle or to get the vehicle transferred in their favour.
iii. The complainant shall hand over the original records of the
vehicle admittedly in his possession to the opposite parties
including the registration certificate within 30 days from the
date of receipt of a copy of this order.
Pronounced in the open Forum on this the 31st day of October 2012
Sd/-
A Rajesh, President.
Sd/-
Paul Gomez, Member.
Forwarded/By Order,
Senior Superintend.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of lawyer notice
dt. 06-10-2010
A2 : Copy of affidavit filed before the
High Court of Judicature at
Madras.
A3 : Copy of letter dated 01-08-2011
A4 : Copy of Motor Vehicle Insurance
Proposal and Cover note
Opposite party’s Exhibits : :
Ext. B1 : Copy of loan agreement
B2 : Copy of A.No.4087 of 2010
filed before the High court of
Judicature, Madras.
B3 : Copies of account
Statements
B4 : Copy of registration details.
Depositions:
PW1 : Abdul Rasheed P.M.
DW1 : Naveen T.P.
