Complaint filed on: 12.02.2014

                                                                                                                             Complaint Disposed on:28.09.2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.

COMPLAINT NO.13/2014

DATED THIS THE 28^th DAY OF SEPTEMBER 2017

:PRESENT:

HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT

HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER

HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER

COMPLAINANT/S:

Mrs.Nirmala W/o Ullas Kumar,

R/o H.B. Colony, Surgimath,

Iruvalli Village, N.R. Pura Post,

N.R Pura Taluk, Chikmagalur (D)

(By Sri/Smt. Kudligere Manjunatha .H., Advocate)

V/s

OPPONENT/S:

M/s Shriram Transport Finance

Co. Ltd., O/a Mookambika Complex,

III Floor, Mylapore, Chennai,

Regional Office at No.29A, 2^nd floor,

K.H.Road, Bangalore.

 (OP - By Sri/Smt. Hareesh Singatagere, Advocate)

By Hon’ble President Sri. Ravishankar,

:O R D E R:

The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP alleging deficiency in service in not refunding an amount of Rs.13,137/- which was collected in excess from the complainant and also not returning the vehicle bearing registration No.KA-20/B-2101. Hence, prays for direction against Op to refund the said amount along with return of the said vehicle and compensation of Rs.5,00,000/- for deficiency in service and miscellaneous expenses in the interest of justice and equity.

2.     The brief facts of the complaint is that:

        The complainant availed a financial assistance to the tune of Rs.2,60,000/- for purchase of the      Mahindra Max pick-up vehicle bearing registration No.KA-20/B-2101. At the time of providing a loan the Op had collected three blank cheques as a security to the loan and executed loan-cum-hire purchase agreement to the loan amount of Rs.2,60,000/- and with financial charges of Rs.1,28,000 in total complainant executed a loan-cum-hire purchase agreement for an amount of Rs.3,88,960/-. The complainant agreed to repay the said loan in 48 installments.

        After obtaining the loan from Op complainant had paid the installments regularly as shown below:

In total complainant had paid Rs.3,73,137/- to Op, but even after payment of the said loan amount the agents of the Op had came over to complainant business place with a award bearing No.726/2012 and seized the vehicle of the complainant. Though, the complainant tried to convince the Op’s agent with respect to the non-payment of installments due to financial contingencies. The agent of the Op has seized the vehicle ill-legally.

        Further on 21.09.2013 the complainant also received a notice from Op for dishonor of the cheque bearing No.441843 dated 04.09.2013 for Rs.3,60,000/, the notice was replied suitably through his counsel on 10.10.2013. The complainant has cleared the loan to the tune of Rs.3,73,137/-. Inspite of that Op misappropriated the blank cheques issued to Op as a security. The Op has obtained the award by misleading the court and got seizure order. There afterwards the complainant has calculated the amount towards the loan for his convenience and it is noticed that the Op has collected excess amount of Rs.13,137/- apart from the loan installments. Even after payment of the entire loan amount Op had issued a notice of dishonor of cheque in order to gain wrongfully. The Op without any valid reason has seized the vehicle and complainant had suitably replied to the notice issued by Op by stating all the details. Even inspite of receipt of the notice also Op failed to refund the excess amount and also failed to return the vehicle seized by agent of the Op. Hence, Op rendered a deficiency in service in collecting excess amount and also not returning the vehicle bearing No.KA-20/B-2101 after completion of the loan. Hence, prays for direction against Op to refund the said amount along with return of the vehicle to the complainant and compensation for deficiency in service as prayed above.

3. After service of notice Op appeared through his counsel and filed version and contended that the complainant along with one Muhiddinbyari S/o Ahmed Kaka approached this Op for financial assistance towards purchase of the vehicle and this Op has extended the loan to the tune of Rs.2,60,000/- by executing loan/hypothecation agreement and not hire purchase agreement. But it is not true that complainant had regularly paid the installments towards loan to this Op. The detail payments made by complainant here under discloses that he has not paid the regular installments to this Op.

The D.D. dated 05.10.2008 for Rs.9,238/- and another D.D. dated 05.07.2009 for Rs.9,238/- which were shown in the above table were not at all paid to this Op. The complainant has shown the number of the D.D. dated 22.07.2009 to D.D. dated 05.07.2009. The D.D. dated 01.02.2012 for Rs.15,000/- shown in the above table was not paid to this Op, only Rs.10,000/- only paid under D.D. Further an amount of Rs.80,000/- shown as paid on 09.09.2010 was an amount availed  by complainant as a loan from this Op vide another agreement dated 10.09.2010, apart from the loan of Rs.2,60,000/- the complainant has not paid Rs.3,73,137/- to this Op under the loan.

        Op further contended that, the complainant along with Muiddinbyari have availed a loan of Rs.2,60,000/- for purchase of the transport vehicle registration No.KA-20/B-2101. The complainant had only paid 8 monthly installments and there after she became defaulter as she could not repay the installments as per the schedule. Again she availed a loan under the head of working capital to the tune of Rs.55,000/- and executed an agreement on 05.04.2009 and she agreed to repay the said loan with interest of Rs.27,035/- in 43 monthly installments of Rs.1,885/- and the installment is Rs.980/-. Further availed another Rs.80,000/- loan under the head of working capital and executed a loan agreement dated 10.09.2010 and also agreed to repay the said amount with interest of Rs.53,841/- in 27 monthly installments, in totally complainant had availed another 2 working capital loan which were credited to loan account of the complainant. This Op had also paid an insurance premium of the vehicle bearing registration No.KA-20/B-2101 from 05.11.2008 to 14.11.2013.

        This Op further contended that, they have repossessed the said vehicle in accordance with the law and by failing the application in A.A.726/2012 on the file of Hon’ble Principal City Civil Court, Bangalore and under the provisions of A and C of the terms and conditions of the Hypothecation agreement. There afterwards the complainant had not repaid the loan amount to this Op, subsequently, this Op has sold the vehicle in a public auction and an amount of Rs.1,05,000/- a proceeds of the sale was credited to loan account of the complainant.

        The complainant in total had availed a loan of Rs.3,95,000/- from this Op under three agreements, the complainant had agreed to repay the said loan amount of Rs.3,95,000/- with interest of Rs.2,09,836/- in total, the complainant is liable to pay Rs.6,04,836/- in monthly installments together with delayed payment charges. But complainant had only paid Rs.2,84,661/- and Rs.1,35,000/- (by availing two working capital loan) and in total Rs.4,19,661/- to the Op and out of the said amount Rs.74,628/- was paid towards insurance premium. The Op had debited Rs.7,500/- fresh registration charges and Rs.7,300/- towards seizure expenditure to the loan account of the complainant. The complainant is in due to the tune of Rs.3,45,940/- as on 07.09.2015 as per the award passed in Arbitration case No.387/2013 dated 29.09.2014 after adjusting the sale proceeds.

        The complainant is a defaulter in repayment of the loan to this Op and as per the clause 10.14 it was referred to the arbitrator and the said arbitrator passed an award in case No.387/2013 on 29.09.2014 as per the arbitration award this Op has recovered the loan amount by public auction of the vehicle of the complainant. Hence, there is no any deficiency in service on the part of this Op. The complainant has wrongly calculated the amount and demanded for reimbursement of the amount and they are not liable to pay any amount claimed in the complaint. Hence, prays for dismissal of the complaint.

4. Complainant filed affidavits and marked documents as Ex.P.1 to Ex.P.10. Op also filed affidavit and marked documents as Ex.R.1 to Ex.R.7.

5.     Heard the arguments.

6.     In the proceedings, the following points do arise for our consideration and decision:

1. Whether there is deficiency in service on the part of OP?
2. Whether complainant entitled for any relief & what Order?

7.     Our findings on the above points are as follows:-

1. Point No.1: Negative.  
2. Point No.2: As per Order below. 

: R E A S O N S :

POINT NOs. 1 & 2:

8. On going through the pleadings, affidavits and documents produced by both complainant and Op we noticed that, the complainant initially had availed a loan of Rs.2,60,000/- from Op for purchase of the Mahindra Pick-up vehicle. Subsequently after purchase of the vehicle she registered into his name vide registration No.KA-20/B-2101, the complainant in her affidavit has sworn that she has repaid an amount of Rs.3,73,137/- as per this list stated above and submits that she has repaid the entire loan amount, inspite of that Op had seized the vehicle ill-legally by showing the arbitration award passed against her. After calculation she noticed that she had paid an excess amount of Rs.13,137/- towards loan and immediately she issued a notice and requested the Op to refund the said amount and also to return the vehicle seized by them.

9.  On contrary Op has also filed affidavit and sworn that the complainant had availed a loan of Rs.2,60,000/- for purchase of the vehicle and apart from that loan she also availed loan of Rs.80,000/- from this Op, even that loan was also not cleared by complainant. Further Op sworn that they have also paid insurance premium towards the vehicle from 2008 to 2013. Further complainant also availed working capital loan of Rs.55,000/- under the agreement dated 05.04.2009 in total the complainant has availed a loan of Rs.3,95,000/- from this Op under three agreements and she agreed to repay the said amount with interest of Rs.2,09,836/- in total she agreed to pay Rs.6,04,836/- in monthly installments together with delayed charges. Out of that the complainant had paid Rs.2,84,661/- and Rs.1,35,000/- only and she is liable to pay a balance amount along with insurance amount of Rs.74,628/- to this Op. But as on 07.09.2015 the complainant is in due of Rs.3,45,940/-. For which they have initiated arbitrary case in case no.387/2013 and award passed against complainant and after passing an award they have seized the vehicle and sold in public auction. Hence, submits no deficiency in service.

10. The complainant produced noticed issued by City Civil and Sessions Judge, Bangalore for recovery of the award amount marked as Ex.P.1, Arbitration award marked as Ex.P.2, Due notice issued by Op marked as Ex.P.3, Copy of the Twenty three D.Ds to show she has paid installments towards loan marked as Ex.P.4 and Seven counter challans issued by State Bank of Mysore towards payment of the loan installments marked as Ex.P.5, office copy of the legal notice issued by Op as per Section 138 of Negotiable Instruments Act marked as Ex.P.6, Reply notice issued by complainant marked as Ex.P.7 and Ex.P.9 in support of her case.

        Op also filed list with documents such as hypothecation agreement dated 24.04.2008 for Rs.2,60,000/- marked as Ex.R.1, Arbitration award marked as Ex.R.2, another hypothecation agreement dated 05.04.2009 for Rs.55,000/- marked as Ex.R.3 and loan-cum-hypothecation agreement dated 10.09.2010 for Rs.80,000/- marked as Ex.R.4. Op also further produced Survey report marked as Ex.R.5 along with photos of the vehicle marked as Ex.R.6 and Statement of loan account marked as Ex.R.7 in support of their defense.

11. On going through the documents produced by Op we noticed that complainant had executed two hypothecation agreements apart from first loan agreement for Rs.2,60,000/-, the said fact was not disclosed by complainant neither in complaint not in her affidavit. The complainant not disclosed the said another two loans raised by her before this Forum. The statement of accounts clearly discloses that how much the complainant had paid towards the loan and further the complainant also not objected another two hypothecation agreements (Ex.R.3 and Ex.R.4) during trial. Hence, we consider that the complainant had availed another two loans from Op, but complainant had only paid installments towards first loan. For which the Op had issued a demand notice as per Ex.P.6 and they also initiated the criminal proceedings against complainant under section 138 of Negotiable Instruments Act, apart from that the Op has obtained a arbitration award against complainant as per Ex.R.2, even the complainant has not made any representation before the arbitrator to defend her claim. In these circumstances we notice that the complainant is a defaulter in paying the installments towards the loan, for which the Op had sold the vehicle in order to adjust the loan of the complainant, but complainant in her affidavit has sworn that she has paid excess amount of Rs.13,137/-. But on perusal of the loan statement we found there is no excess amount paid by complainant and we found there is no any deficiency in service on the part of Op in selling the vehicle of the complainant in public auction for recovery of the loan. As such the complainant is not entitled to get any relief as claimed in the complaint and also failed to establish a deficiency in service on the part of Op. Hence, complaint is liable to be dismissed and for the above said reasons, we answer the above point no.1 and 2 in the Negative and proceed to pass the following:-  

: O R D E R :

1. The complaint filed by the complainant is hereby dismissed.  No order as to costs.
2. Send free copies of this order to both the parties.

(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 28^th day of September 2017).

 (B.U.GEETHA)         (H. MANJULA)      (RAVISHANKAR)

     Member                    Member                 President

ANNEXURES

Documents produced on behalf of the complainant/S:

Ex.P.1              - Copy of the Summons.

Ex.P.2              - Certified copy of the Arbitration order.

Ex.P.3              - Due notice issued by Op.

Ex.P.4              - Copies of 23 D.Ds .

Ex.P.5              - 7 counter challans.

Ex.P.6              - Legal notice issued by Op.

Ex.P.7              - Office copy of the Reply notice.

Ex.P.8              - Postal Ack. due.

Ex.P.9              - Reply notice issued by complainant.

Ex.P.10            - Speed post Ack. due.

Documents produced on behalf of the OP/S:

Ex.R.1              - Copy of loan agreement.

Ex.R.2              - Certified copy of Arbitration award.

Ex.R.3              - Loan-cum-Hypothecation Agreement.

Ex.R.4              - Another Loan-cum-Hypothecation agreement.

Ex.R.5              - Valuation given by loss assessors.

Ex.R.6              - 4 photos of vehicle.

Ex.R.7              - Statement of accounts.

Dated:28.09.2017                         President 

                                       District Consumer Forum,

                                                  Chikmagalur.            

RMA