BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.191-2013

DATED ON THIS THE 12^th February 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri Devakumar.M.C.

Member

1.     The complainant filed the complaint under section 12 of the C.P.Act, against the opposite party Nos.1 and 2 seeking a direction to return the confiscated vehicle by receiving the dues, or to refund `48,897/- along with 18% interest per annum from the date of filing of the complaint, `50,000/- compensation for causing mental agony, frustration, harassment and monitory loss with such other reliefs.
2.     The complainant availed vehicle loan from opposite party No,1 on execution of a hypothecation agreement and agreed to clear the entire loan in 18 EMI’s.  The period of EMI starts from August 2011 to January 2013, and same paid regularly.  The complainant paid `29,397/- till July 2012 as against `35,028/-.  A legal notice caused by opposite party No.1 on 20.09.2012, to clear the dues within 7 days.  On 27.09.2012, the opposite party No.2 authorized person forcibly took the possession of the vehicle, even though the complainant was ready to clear the dues.  It is alleged that, the opposite party have not given intimation before the auction sale of the repossessed vehicle. In spite of repeated requests, the opposite parties have not given an opportunity to retain the vehicle for himself.  As such, the aggrieved complainant alleging the deficiency in service on the part of opposite parties filed the complaint and sought for the reliefs.
3.     The opposite party Nos.1 and 2 represented through its counsel filed their version, denying the allegations as false and submits the complaint is frivolous and mischievous and liable to be dismissed.  The opposite parties admitted the issuance of loan on execution of hypothecation agreement.  Since the complainant failed to make the EMI amounts as on the agreed due date, the vehicle was repossessed by the agent.  The cheques issued were dishonoured for the reason “Insufficient funds”.  On failure to clear the outstanding dues, by issuing a pre-sale notice on 28.09.2012, the vehicle was sold in auction.  As such, there is no deficiency in service or unfair trade practice by it and prays for dismissal of the complaint.
4.     Both parties filed their affidavit along with several documents.  Written arguments filed and made oral submissions.  On perusal of the material the matter posted for orders.
5.     The points arose for our consideration are:-

1. Whether the complaint is maintainable?
2. Whether the complainant proves the deficiency in service or unfair trade practice by opposite parties, in repossessing and auction sale of the repossessed vehicle without giving intimation and thereby entitled for the reliefs sought?
3.  What order?

6.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the negative.

Point No.2 :- Does not call for discussion.

Point No.3 :- As per final order for the following

:: R E A S O N S ::

7.    Point No.1:- The complainant availed loan from opposite parties, by executing hypothecation agreement and agreed to clear the loan in 18 EMIs (each EMI of `2,919/-).  The complainant paid a sum of `29,397/- until 12.07.2012 as against `35,028/-.  The authorized person of opposite parties, confiscated the vehicle, for the amount due, even though the complainant was ready to pay the same.  The complainant alleged that the repossession of the vehicle was done without prior notice to him by opposite parties.  The agent without receiving the amount due, took the possession of the vehicle forcibly.  The act of opposite parties is alleged as unfair trade practice.  Though the complainant had paid over 80% of the EMIs, before the termination of agreement with a malafide intention and to make unlawful gain, forcibly the vehicle has been repossessed by opposite parties.  Further alleges that, the opposite parties fail to give notice prior to the sale of the repossessed vehicle.  Therefore, there is deficiency in service by opposite parties and hence the complainant seeking reliefs.
8.    The opposite party Nos.1 and 2 contended that the complaint is frivolous and mischievous hence liable to be dismissed.  The hypothecation agreement entered to repay the loan amount in 18 EMI’s is admitted.  The complainant was not paying the instalment amount as on the due date.  The cash receipts establishes the date of payment by complainant. 
9.    The vehicle in question has been repossessed, for default in payment of instalment dues, hence, there is no deficiency in service or unfair trade practice by opposite party.  The cheques issued by the complainant, for payment of instalment have been dishonoured for the reason “Insufficient funds”.  As such, the opposite party charged penal interest for delayed payment.  The complainant was in due for a sum of `29,492/- on 27.09.2012, at the time of repossession, hence under the authorisation letter issued by the opposite party, the vehicle has been repossessed on failure to make the payment.  Subsequently, the complainant fail to clear the entire dues, as such, a presale notice was issued to the complainant on 28.09.2012, intimating the auction sale of the repossessed vehicle.  In spite of the said notice, the complainant never bothered to clear the dues.  However, on receipt of intimation from the transport authority to transfer the R.C., the complainant filed the complaint, suppressing the sale of repossessed vehicle in auction with ulterior motives.  As such, the opposite party Nos.1 and 2 prays for dismissal of the complaint.
10. The opposite parties relied on the decisions reported in I (2015) CPJ 228 (NC) and II (2012) CPJ 8 (SC).  It is observed that, the financier in the real owner of the vehicle and the person who takes loan retains vehicle only as Bailee / trustee.  In view of the said decision, the auction of the repossessed vehicle for the recovery of balance by the opposite party Nos.1 and 2 is justified.

11. In view of the evidence placed by opposite party Nos.1 and 2 i.e. issuance of presale notice, dated 28.09.2012, decision reported in (2012) CJ 1009 (NC) does not support the complainant.
12. As such, we are of the opinion that the act of opposite parties Nos.1 and 2 is just and as per law.  Accordingly, point No.1 is answered in the negative. Thereby, the complaint is liable to be dismissed as not maintainable.
13.  Point No.2:- In view of the above observations, point No.2 does not call for discussion.
14. Point No.3:- From the above discussions, we proceed to pass the following order.

:: O R D E R ::

1. The complaint is dismissed as not maintainable.
2. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 12^th February 2016)