Date of filing:3.4.2013
Date of Disposal:28.1.2014
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II::
VIJAYAWADA, KRISHNA DISTRICT.
Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT
SMT N. TRIPURA SUNDARI, B. COM., B. L., MEMBER
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
TUESDAY, THE 28TH DAY OF JANUARY, 2014.
C.C.No.50 OF 2013.
Between :
Penubothula Tirumala Rao, S/o Subba Rao, Hindu, 28 years, Car Driver, R/o D.No.77-17-7, Pipularoad, Santhinagar, Ajitsinghnagar, Vijayawada – 15.
….. Complainant.
And
1. M/s Shriram Transport Finance Company Ltd., Rep., by its Branch Manager, Near Vinayaka Theatre, Veternary Colony, Vijayawada.
2. M/s Shriram Transport Finance Company Ltd., Administrative Office, Rep., by its Administrative Officer, 101-105, Shiv Chambers, Sector – II, C.B.D. Belapur, Vani Mumbai – 400 614.
…..Opposite Parties.
This complaint is coming before us for final hearing on 16.1.2014 in the presence of Sri N.Uday Kumar, Counsel for complainant and Sri D.Rajasekhar, Counsel for opposite party No.1 and opposite party No.2 remained absent and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Smt N. Tripura Sundari)
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
1. The averments of the complaint are in brief:
The complainant is a car driver and he intended to purchase a second hand car. The agents of the 1st opposite party approached the complainant and offered to take loan from the 1st opposite party for purchasing the said car. The agents of the 1st opposite party made believe the complainant that the 1st opposite party is sanctioning loan on very less interest @ 15% per annum and also revealed that they are very easy instalments and no penal interest etc. Believing the 1st opposite party and its agents representations, the complainant obtained loan to purchase Indica Car No.A.P.-16-T.V.-8000 as per the estimation for an amount of Rs.1,10,000/- on the terms and conditions of the agreement, the complainant has to pay the loan amount on 33 equal instalments at the rate of Rs.4,817/- each instalment. The loan period starts from 5th January,2011 and ends with the month of September, 2013. The complainant purchased the car for Rs.1,80,000/- and he paid Rs.1,20,000/- cash to his vendor and the remaining Rs.60,000/- through the 1st opposite party and received cash of Rs.50,000/- by way of cheque drawn on State Bank of Mylapur, Chennai from the 1st opposite party towards the cost of the accessories and to attend for repairs out of the loan amount of Rs.1,10,000/- sanctioned by the 1st opposite party herein. The complainant obtained registration in his favour and became the owner of the car. Since the date of obtaining from the 1st opposite party, the complainant paid about 24 instalments i.e., Rs.1,22,880/- without any default which includes insurance and other charges. The complainant has to pay only 9 instalments from January, 2013 to September, 2013 for clearance of the loan period. The complainant approached the 1st opposite party to pay the instalment amount in January 2nd 2013, the agents of the 1st opposite party refused to receive instalment amount and demanded to clear the entire loan amount of Rs.95,000/- even though there is 9 months of time to complete 33 months i.e., by the month of September, 2013. The actual amount payable for 9 months at Rs.4,817/- each comes to a total Rs.43,353/- only. But the agents of the 1st opposite party demanding an excess amount of Rs.51,647/- which is illegal and unlawful on the part of the 1st opposite party. The 1st opposite party and its agents unlawfully demanding to pay Rs.95,000/- or otherwise they would seize the vehicle by force. Hence the complainant filed this C.C. praying the Forum to pass injunction orders restraining the opposite parties 1 and 2, their men and agents from ever seizing the car of the complainant and grant permission to deposit the monthly instalments from January, 2013 to March, 2013 i.e., three months instalments at Rs.4,817/- per month, total Rs.14,451/- and future instalments and to grant compensation of Rs.1,00,000/- towards causing mental agony to the complainant and costs of the complaint.
2. The 2nd opposite party called absent and the 1st opposite party filed its version.
The version of the 1st opposite party is in brief:
The 1st opposite party denied all the allegation of the complaint and submitted that the complainant obtained a loan No.VIJBRO011270001 for an amount of Rs.1,10,710/- towards loan amount and Rs.48,969/- towards financial charges total agreement value is Rs.1,59,679/- which are payable in 33 monthly instalments being at the rate of Rs.5,546/- for the 1st instalment; and @ 4,817/- for the next 31 instalments and Rs.4,806/- for the remaining last instalments. Accordingly he executed the agreement in favour of the 1st opposite party on 27.11.2010 and one M.Naga Durga Srinivasa Prasad stood as guarantor to the said agreement and both persons agreed to abide by the terms and conditions of the agreement. As per terms and conditions of the agreement the complainant is liable to pay delayed payment charges @ 36% per annum on the related and defaulted instalments. The instalments commencing from 5.1.2011. The complainant had paid only sum of Rs.90,698/- towards the instalments. As per the account copy of the complainant he paid 18 monthly instalments and he is liable to pay a sum of Rs.83,225/- including delayed payment charges and other incidental charges as on 17.1.2013. He paid the instalments irregularly and he is defaulter in payment of instalments to the 1st opposite party. The 1st opposite party made repeated demands through it field staff to the complainant to pay the arrears or to produce the vehicle along with documents. On repeated demands of the 1st opposite party the complainant came forward to settle the agreement, and expressed his inability to pay the total arrears along with 36% delay payment charges. So his loan was closed with re-agreement and credited the new loan sanctioned amount to his old agreement and it was closed and the loan account was re-scheduled vide a fresh agreement dated 17.1.2013 vide loan A/c No.VIJBRO301170004 for an amount of Rs.85,408/- towards loan amount and Rs.20,282/- towards finance charges total agreement Rs.1,05,690/- payable in 18 monthly instalments @ Rs.6,067/- for 1st instalment, and @ Rs.5,860/- for the next 16 instalments and Rs.5,863/- for the last instalment commencing from 20.2.2013. Accordingly he executed new agreement in favour of the 1st opposite party on 17.1.2013 and Smt P.Sudha Rani stood as guarantor to that agreement. But he did not pay any instalment and arrears till date inspite of several reminders of the 1st opposite party. In the above said fact the 1st opposite party prays to dismiss the complaint with costs.
3. On behalf of the complainant he filed Ex.A.1 to Ex.A.7 along with the complaint and the 1st opposite party filed Ex.B.1 to Ex.B.5 along with version and no affidavits were filed by both parties.
4. Heard and perused.
5. Now the points that arise for consideration in this complaint are:
1.Whether there is any deficiency in service on the part of opposite parties
towards the complainant in trying to seize the car of him without due process of law?
2. If so is the complainant entitled for any relief/
3. To what relief the complainant is entitled?
POINTS 1 AND 2:-
6. On perusing the documents as per Ex.B.3 the complainant obtained loan of Rs.1,10,710/- with financial charges of Rs.48,969/- to purchase second hand car on repayment of 33 instalments,1st instalment Rs.5,546/- and 31 instalment @ Rs.4,817/- each and 33rd instalment Rs.4,806/- starting from 5.1.2011 and ends by 5.9.2013. As per Ex.A.1 the complainant paid Rs.5,550/- on 18.1.2011; Rs.9,600/- on 28.3.2011; Rs.5,000/- on 9.5.2011; Rs.9,600/- on 10.7.2011; Rs.9,000/- on 25.7.2011, Rs.9,600/- on 14.9.2011; Rs.4,820/- on 19.11.2011; Rs.4,820/- on 25.12.2011; Rs.6,000/- on 15.2.2012; Rs.6,600/- on 10.3.2012; Rs.9,000/- on 6.4.2012; Rs.4,820/- on 8.5.2012; Rs.5,000/- on 8.5.2012; Rs.4,820/- on 10.6.2012; Rs.5,000/- on 25.7.2012; Rs.5,000/- on 15.10.2012 and Rs.9,650/- on 15.11.2012 under various valid receipts towards loan instalments to the opposite party. But he was irregular in payment of instalments and was defaulter. As per Ex.B.1 the complainant paid irregular payments. The complainant says that he paid Rs.1,22,880/- to the opposite party upto 24 instalments but the opposite party says that the complainant had paid only Rs.90,698/- towards instalments. He has to pay @ 36% per annum for delayed payment charges. The complainant paid only 18 monthly instalments and he is liable to pay Rs.83,225/- including delayed payment charges etc. as on 17.1.2013. On repeated demands of the 1st opposite party, they came forward to settle the agreement and expressed his inability to pay the arrears along with 36% interest per annum and requested the 1st opposite party under Ex.B.5 dated 16.1.2013 to close the 1st agreement and to open the new agreement for due amount. The complainant and the 1st opposite party entered into new agreement by cancelling the 1st agreement under Ex.B.4 for an amount of Rs.85,408/- towards loan amount and Rs.20,282/- towards financial charges, total agreement amount Rs.1,05,690/- payable in 18 monthly instalments @ Rs.6,067/- for the 1st instalment and @ Rs.5,860/- for the next 16 instaments and Rs.5,863/- for the last instalment. P.Sudha Rani stood as guarantor to that agreement. Ex.B.2 the complainant’s outstanding summary shows the same. After the 2nd agreement was executed the complainant got issued a legal notice Ex.A.4 dated 12.3.2013 through his advocate to the opposite parties stating that the opposite parties are threatening the complainant to pay due amount at once or to take as the second loan for the said amount and if the complainant is not ready to take as second loan the car will be seized. The 1st opposite party and its agents forcibly took the signatures of the complainant on empty papers, pronotes and applications. The opposite parties received the same under Ex.A.6 and Ex.A.7. But when we have gone through the complaint no where it was mentioned about the illegal acts of the opposite parties and the complainant suppressed the material facts before the Forum and filed this C.C. along with I.A.106/2013 on 3.4.2013 to secure an ad-interim injunction restraining the opposite parties their men, servants and follower etc. from ever seizing his car No.AP.16TV-8000 Indica Car from the possession of the complainant. This Forum grant the interim orders against the opposite parties in favour of the complainant for not to seize the car and to deposit the amount of four instalments and to give notice to opposite parties. On receiving the counter of the opposite parties in I.A.106 of 2013 the Forum came to conclusion that the complainant has suppressed the fact of entering into 2nd agreement, no relief can be granted on the basis of 1st agreement relying on the contention of the complainant. Suppression of material facts is also a factor to deny the equitable relief of temporary injunction and dismissed the petition saying that the petitioner is at liberty to withdraw the amount deposited on I.A. No.107/2013. The complainant withdrew the deposited amount from the Forum and no representations made on behalf of him to file his affidavit. No affidavit was filed by the complainant and he is not present before the Forum. As the complainant has suppressed the material facts of entering into 2nd agreement with the opposite parties by cancelling the 1st agreement no relief can be granted on the basis of 1st agreement. Therefore we hold that there is no deficiency in service on the part of opposite party, hence the complainant is not entitled for any relief as prayed. Accordingly these points are answered.
POINT No.3:-
7. In the result, the complaint is dismissed with no costs.
Typewritten by Stenographer K.Sivaram Prasad, corrected by me and pronounced by us in the open Forum, this the 28th day of January, 2014.
PRESIDENT MEMBER MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant: For the opposite parties:-
None. None.
DOCUMENTS MARKED
On behalf of the Complainant:
Ex.A.1 Bunch of receipts.
Ex.A.2 27.11.2010 Photocopy of cheque for Rs.49,994/-.
Ex.A.3 14.12.2010 Photocopy of Certificate of Registration.
Ex.A.4 12.03.2013 Office copy of legal notice.
Ex.A.5 12.03.2013 Two postal receipts.
Ex.A.6 . . Postal acknowledgement.
Ex.A.7 . . Postal acknowledgement.
For the opposite parties:-
Ex.B.1 21.05.2013 Customer outstanding summary.
Ex.B.2 21.05.2013 Customer outstanding summary.
Ex.B.3 . . Loan cum hypothecation agreement.
Ex.B.4 . . Loan cum hypothecation agreement.
Ex.B.5 16.01.2013 Letter from the complainant ot the opposite party.
PRESIDENT
