C.C filed on : 12/05/2015

Disposed on : 23/09/2016

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, TUMKUR

DATEDTHISTHE 23^rd DAY OF SEPTEMBER –  2016

C.C. NO. 44 OF 2015

:PRESENT:

SMT. PRATHIBHA. R.K. PRESIDENT, BAL LLM.

SRI. D. SHIVAMAHADEVAIAH, B.A. LLB,  MEMBER

SMT. GIRIJA, B.A. LADY MEMBER

COMPLAINANT/S:

Sri. Kiran C.N. S/o Nagaraju .C.L

6^th Main Road, Opp. To Bus-Stop,

Jayanagar, Tumkur – 572 102.

(By Sri/Smt. G.S.S. -  Advocate)

-V/s-

OPPOSITE PARTY/IES

1.        M/s Shriram City Union & Finance

          Limited, Regd Office, 123, Angappa,

          Naicken Street, Chennai – 600 001.

2.      M/s City Union Finance Limited,

        No.196, 2^nd Floor, Shree towers above,

        H.D.F.C. Bank, Opposite to Hombegowda

        School, 10^th Cross, Wilson Garden,

        Bangalore – 560 027.

(OPS Sri/Smt. J.B.Sannamarappa - Advocate)

BY SMT. PRATHIBHA. R.K. -  PRESIDENT

-:O R D E R:-

The brief facts of the complaint is as under:-

2.       The complainant had obtained a loan from OP No.2 under hypothecation agreement No.Q. TMK-1, T.W.140327001 for the purpose of purchase of motor bike bearing No.K.A.-06-EQ-7634.  The complainant further alleged that the OPS have not provided the information with regard to sanction of loan and payment of E.M.I. and even till today the loan matter was kept under secret.  The complainant further submitted that he has paid the loan amount on oral instruction of the OPS as under:-

1. Dated                                                              :           Rs.2,284-00
2. Dated                                                              :           Rs.2,284-00
3. Dated                                                              :           Rs.2,284-00
4. Through agent Sri. Basavaraju for which                

receipt given                                                    :           Rs.2,600-00

5. In the absence of Sri.Basavaraju paid to

the hand of lady staff for which no                :

receipt given                                                    :           Rs.3,000-00

6. Down Payment                                               :           Rs.23,000-00

Total                                                   :         Rs.35,452-00

The complainant submitted that the OPS have not issued a receipt for the payment made by the complainant.  Further,  the OPS have refused to take the cheque and insisted the complainant to pay in cash.  Hence, the complainant brought the said issue to the notice of OP No.1 who is the Administrative Head of OP No.2, but OP No.1 has not given any response.

          The complainant further submitted that the OP No.2 has seized the hypothecated vehicle and issued a pre sale notice dated 24/03/2015 under reference No.2015/62 calling upon the complainant to pay the balance amount, failing which the vehicle will be sold.   Regarding this, the complainant has issued a legal notice to the pre sale notice dated 25/03/2015.  For this, the OPS have issued another letter dated 04/04/2015.  Hence, the complainant has suffered mental torture.  Therefore, the complainant prays to direct the OPS to pay Rs.10,000/- towards compensation and Rs.5,000/- towards legal expenses and further requested that he is ready to pay the balance correctly calculated before the Hon’ble Tribunal and not Rs.42,725/-.

3.     Upon service of notice, the OPS appeared and filed version.  In the version the OPS submitted that this Court does not have jurisdiction to entertain the complaint and the complaint filed by the complainant is not maintainable either in law or on facts.

        The OPS further submitted that the complainant had approached the OPS with a request to avail financial facilities.  Considering his request, the OPS have informed about the terms and conditions of the loan.  Hence, having accepted by the terms and conditions of the loan, the complainant entered into loan agreement for purchase of two wheeler.

        The OPS further submitted that they have financed a loan amount of Rs.43,000/- and finance charges of Rs.11,816/-.  The OPS further submitted that after taking loan from the OPS Finance Company, the complainant has not repaid the loan amount properly.  Hence, the hypothecated vehicle was seized by the OPS under due process of loan as per the terms and conditions of the loan agreement under clause 10(2)(b).

        The OPS further submitted that the complainant was due of Rs.42,725/- as on 14/03/2015.  Hence, the OPS have issued a re-joinder notice 17/04/2015 to the complainant’s notice dated: 04/04/2015 demanding for payment of default loan amount by the complainant.

The OPS further submitted that they have denied the averments made by the complainant in para-3 of the complaint that other than the down payment made by the complainant amounting to Rs.23,000/- which is credited to the dealer.  It is further submitted that in spite of repeated requests, demand notice and pre sale notice, the complainant did not care to settle the outstanding loan amount and therefore the OPS left with no other option seized the hypothecated vehicle in favour of the company. 

The OPS further submitted that the complainant is liable to pay Rs.42,725/- as on 14/03/2015 towards default amount and therefore prays for dismissal of the complaint filed by the complainant with cost in the interest of justice and equity.   

4.      In order to prove their case, both parties have filed their affidavit evidence.  Both parties have produced some copies of documents, but not marked.  Heard the arguments and then posted the case for orders.

5.     On the basis of the above pleadings and evidence, the following issues will arise for our consideration.

1.     Whether the complainant proves  the

deficiency of service on the part of OPS?

2.     What Order?

6.     Our answer to the above issues are as under:-

Issue No.(1)                 :       In the Affirmative

Issue No.(2)                 :       As per order below

: REASONS :

Issue No(1):-

7.    On perusal of pleadings evidence and documents produced by both parties, it is an admitted fact that the complainant has obtained loan from OPS.

8.     The contention of the complainant is that the OPS have not provided the information with regard to the sanction of loan amount and payment of EMI.  On the contrary, the OPS submit that they have financed a loan of Rs.43,000/- and finance charges Rs.11,816/- for 24 equated monthly installments at the rate of Rs.2,284/- and the said loan commenced from 07/05/2014 to 30/03/2016. To substantiate the same, the OPS have produced the document i.e. loan cum hypothecation agreement.  Hence, it is clear that the complainant entered into a loan agreement with the OPS and availed the loan of Rs.43,000/- and Rs.11,816/- towards finance charges.

9.     Further, the complainant contended that he has paid Rs.35,452/- to the OP’S agent, but the OPS have not issued any receipt with regard to the payment made by the complainant.  To substantiate his contention, the complainant has not produced any documents.  On the contrary, the OPS have produced the documents to show that the complainant had paid only 11 installments and is due of 13 installments amounting to Rs.29,692/- and the complainant is totally due Rs.46,297/- including overdue charges and other charges.

10.    Further, the complainant contended that without giving any prior notice regarding the arrears of loan amount and without information to the complainant, the OPS have seized the vehicle dated 28/02/2015.  On the contrary, the OPS submitted that they have issued a notice on 14/03/2015 to the complainant regarding due amount of Rs.42,725/- demanding for the payment of default loan amount by the complainant.

11.    On perusal of the documents produced by OPS it is clear that the OPS have issued a pre sale notice dated: 14/03/2015 to the complainant calling upon to pay Rs.42,722/- within 7 days on receipt of the notice, failing which they will sell the aforesaid vehicle hypothecated to them for best available price.  Further, it is seen that the OPS have issued another letter to the complainant dated:17/04/2015, wherein the OPS have stated that “we have vide our letter dated:14/03/2015 had requested to pay a sum of Rs.42,725/- to pay otherwise the vehicle will be sold.  Hence, on the above it is clear that the OPS have issued notices to the complainant after seizing of the vehicle.  The OPS have failed to produce any documents to show that they have issued any prior notice regarding the arrears of loan.  In the absence of any notice, the OPS cannot seize the vehicle. Therefore, the said action is in violation of principles of natural justice and hence unsustainable.  Further, the OPS have issued one more sale notice dated:12/01/2016.  The action of the OPS in issuing the sale notice dated: 12/01/2016 that too the complaint filed by the complainant is pending before this Forum is highly deprecated and unsustainable.  On the above discussion and viewed from any angle it is clear that there is deficiency of service on the part of OPS.  Accordingly, we answer the point No.1 in the affirmative.     

Issue No.(2):-

12.    In the instant case, the complainant has contended that he has paid Rs.35,452/- to the OPS.  In this regard, he has not produced any documents.  But the OPS have themselves admitted that the complainant has paid 11 installments amounting to Rs.22,840/-.

13.    Further, at the time of arguments, the OPS submitted that if the complainant paid Rs.42,725/- they have ready to give discount of Rs.13,930/- towards depreciation/repair charges towards damaged parts of the vehicle.  Further, it is seen that there is a deficiency of service on the part of OPS by not giving prior notice to the complainant before seizing the vehicle regarding the arrears of loan amount and therefore it is just and proper to direct the OPS to release the vehicle to the complainant after collecting balance of 13 EMIs amounting to Rs.29,692/-. No doubt, there is a deficiency of service on the part of OPS and due to this, the complainant has suffered mental agony.  Hence, it is just and proper to direct the OPS to pay Rs.10,000/- to the complainant towards compensation.  Apart from that the complainant is entitled for Rs.5,000/- towards litigation cost.  Accordingly, we proceed to pass the following:-

: O R D E R:

1. The complaint filed by the complainant is allowed in part.

2. The OPS are directed to release the vehicle in question to the complainant after collecting balance of 13 EMIs amounting to Rs.29,692/- from the complainant.
3. The OPS are further directed to pay Rs.5,000/- to the complainant towards litigation cost and Rs.10,000/- towards compensation.

4. This order shall be complied within a period of 45 days from the date of knowledge/communication of this order.

5. Supply free order copy to the parties.

(Dictated to the stenographer, transcribed and typed by him, then corrected and pronounced in the open Forum on this the 23^rd Day of  SEPTEMBER 2016).

LADY MEMBER                     MEMBER                PRESIDENT