Complaint filed on: 27-05-2010 Disposed on: 25-11-2010 BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 C.C.No.1194/2010 DATED THIS THE 25th NOVEMBER 2010 PRESENT SRI.D.KRISHNAPPA., PRESIDENT SRIGANGANARASAIH, MEMBER SMT. ANITA SHIVAKUMAR. K, MEMBER Complainant: - Krishna S/o. Gadi Kempaiah, Aged about 38 years, R/at No.38/4322/1, Shettihalli, M.G.Road, Ramanagar Town, V/s Opposite parties: - 1. M/s. Sri Ram Transport Finance Company Ltd, No.501, 5th Block, Ranka Park, Lalabagh Road, Near Richmond Circle, Bangalore-01 By its Manager 2. M/s. Sri Ram Transport Finance Company Ltd, Regd. Office, No.123, Angappa Naickan Street, Chennai-1 By is manager O R D E R SRI. D.KRISHNAPPA., PRESIDENT., Brief facts of the complaint filed by the complainant against the opposite parties is, that he availed a loan in respect of lorry owned by him from the Ops, at that time, Ops collected several blank signed cheques and he had hypothecated the lorry. On various dates, he has paid Rs.5,85,000/- to the Ops leaving the balance of Rs.1,10,000/-. Ops without intimation to him took away the vehicle on 28-4-2010. Despite requesting to grant some time to clear the loan and further offered Rs.30,000/- immediate cash to release the lorry, but the Ops did not listen to him. Further contended that as on 28-4-2010 he was only due Rs.1,10,000/-. Then got issued a legal notice on 5-5-2010 to release the vehicle by accepting Rs.30,000/-. That he is ready to pay Rs.30,000/- and the balance in 3 to 4 installments. The complainant attributing deficiency in the service of the Ops has prayed for a direction to the Ops to accept Rs.1,10,000/- in 3 or 4 installments, issue no due certificate, return blank signed cheques and to pay Rs.50,000/- as compensation and to award cost. 2. Ops have filed version through their advocate, contending that the complaint is not maintainable. Admitting advancing loan to the complainant stated that the transaction is governed by Indian Contract Act. That the complainant availed a loan of Rs.6,75,213/- agreeing to repay the same in 36 monthly installments of Rs.18,756/- each commencing from 1-11-2008. When the complainant committed default in repayment of loan, they finding no option repossessed the vehicle. That the complainant has only repaid Rs.1.06,950/- and still due Rs.5,92,331/- as on 18-6-2010. Denying that the complainant has paid the amount as claimed by him and is only due Rs.1,10,000/- have further stated that with a view to afford an opportunity to the complainant a notice before repossessing the vehicle was given to repay the loan to avoid repossession, but the complainant did not respond, even now the complainant may repay the loan and get the lorry released. Further reiterated the complainant still due Rs.5,92,331/- denying other allegations has submitted for dismissal of the complaint. 3. In the course of enquiry into the complaint, the complainant and the manager of the legal department of the Ops have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant alongwith the complaint has produced Xerox copies certain receipts, copy of account extract. Ops have produced copy of the notice issued to the complainant and copies of postal notice. Counsel for the complainant has filed written arguments. We have heard the counsel for the OPs and perused the records. 4. On the above materials following points for determination arise. 1) Whether the complainant proves that the OPs have caused deficiency in their service by seizing his lorry and not releasing it to him? 2) To what reliefs, the complainant is entitled to? 5. Our findings are as under: Point no.1: In the Negative Point no.2: See the final Order REASONS 6. Answer on Point No.1: The complainant admitting to had borrowed a loan from the Ops stated to have repaid a sum of Rs.5,85,000/- leaving balance amount of Rs.1,10,000/- as on 28-4-2010. He has further admitted, that because of loss he suffered in his business, he could not pay the balance installments and committed default and it is because of that default, Ops have repossessed the vehicle. Therefore the fact that, Ops have repossessed the vehicle from the complainant for the complainant default in not paying the balance installments is not in dispute. Similarly the right of the Ops to repossess the vehicle hypothecated under the terms of the hypothecation agreement is not denied by the complainant. Therefore, repossessing of the vehicle by the Ops cannot be found fault with. The Ops even produced a notice dated 1-3-2010 issued to the complainant giving prior intimation that as on that date the complainant was due of Rs.1,46,416 + other charges and if that over due amount is not paid within 7 days, they will repossess the vehicle. When the complainant failed to act upon this prior notice, the Ops stated to have repossessed the vehicle on 24-8-2010. Thus, the Ops in our view found to have exercised their right of repossession of the vehicle on the default of the complainant in for not paying the amount due. 7. Apart from the aforesaid undisputed facts that there seems to be serious dispute between the parties with regards to the over due amount from the complainant. The complainant claims to have paid Rs.5,85,000/- leaving the balance Rs.1,10,000/- as on 28-4-2010. Whereas, according to the Ops, the complainant has only repaid Rs.1,06,950/- and was due Rs.5,92,331/- as on 18-6-2010 Ops have totally denied the claim of the complainant in this regard. The Ops have further admitting repossessing of the vehicle on 28-4-2010 have stated that even before repossession of the vehicle, the complainant was given an opportunity to settle the over due amount with ODC but when he failed to comply that pre-notice they without any option took possession of the vehicle. The complainant in respect of this contention that he so far as repaid Rs. 8,85,000/-to the Ops has filed several copies of receipts under which he contended to have paid a sum of Rs.5,45,000/-. But the complainant has not produced original of those receipts. Some of the Xerox copies are not even legible to know the amount alleged to have been paid. The complainant and the Ops though have filed affidavit evidence, they have simply reproduced what they have stated in their respective complaint and version without traversing or contradicting the claims made by them in the respective complaint and version. That means to says the complainant has not denied the defence of the Ops regarding payment made and over due amount in the affidavit evidence filed by him. Similarly the Ops in their affidavit evidence have not denied issue of receipts and correctness of the memo filed by the complainant. Therefore for bear looking, it looks the complainant found to have repaid some substantial amount, but the Ops are not prepared to admit it. Even coming to documents of the Ops themselves, we find certain discrepancy and contradiction, with regard to the over due amount. In the notice issued by the Ops to the complainant prior to repossessing of the vehicle on 1-3-2010 the Ops claimed over due the amount of Rs.1,46,416/- + ODC and called upon the complainant to pay that amount within 7 days from the date of receipt of this notice, otherwise, warned of the consequence. This proves that the complainant was due only so much as on 1-3-2010. But in the 2nd letter issued on 7-5-2010 after repossession, they have stated as if the complainant was due a sum of Rs.5,63,200/- inclusive of seizer expenditure of Rs.4,500/- and over due charges of Rs.44,600/- and demanded payment of those amount failing which the vehicle will be sold. With this it is found within 2 months the Ops increased the amount due from Rs.1,46,000/- plus to Rs.5,63,000/- plus, how this discrepancy has arisen and such huge amount is claimed is not explained by the Ops. It is unfortunate that the complainant except washed of his hands by simply filing affidavit evidence and has not chosen to prove the payment he has made by subjecting the Ops to test with regard to over due amount, and it is seen that the complainant has not taken any pain to address this anomaly and illegal claim of the Ops. 8. Ops have in their version and affidavit evidence have contended that even if the complainant repay the over due amount, they are prepared to return the repossessed vehicle to the complainant, but the complainant is not willing to pay the over due amount and to take the vehicle to his possession, but asking permission to pay the over due amount in 3-4 installments which cannot be ordered by this forum. It is further unfortunate that the complainant has not asked for return of the vehicle in the prayer column, under these circumstances, the complainant has failed to prove that seizer of the vehicle by Ops amounts to deficiency and therefore is not entitled for relief, as such we answer point No.1 in the negative and pass the following order: ORDER Complaint is dismissed. Parties to bear their own cost. Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 25th November 2010. Member Member President
| | [HONORABLE Ganganarsaiah] Member[HONORABLE Sri D.Krishnappa] PRESIDENT[HONORABLE Anita Shivakumar. K] Member | |
