D.O.F:15/03/2023
D.O.O:31/10/2023
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.77/2023
Dated this, the 31st day of October 2023
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SMT.BEENA.K.G : MEMBER
Safeena K, aged 37 years
D/o Abdulkareem,
Fazna Manzil, South Bendichal,
Post Thekkil – 671541.
(Adv: A. Balakrishnan Nair)
: Complainant
And
- M/S TVS Credit Services Ltd.,
Jayalakshmi Estate No.29,
Haddows Road, Nungambakkam
Chennai – 600006.
(Adv: Noushad Kallada)
- TVS Motor Company Ltd.,
Nullipady, Kasaragod – 671121.
(Adv: Giriprasad P)
- The Regional Transport Officer,
Kasaragod. : Opposite Parties
ORDER
SMT.BEENA.K.G : MEMBER
The brief facts of this case is that the complainant purchased a TVS Scooter from opposite party No.2 from Kasaragod and registered as KL-14Y-2421. The Opposite party No.2 arranged financial facility with their own company. The complainant paid Rs.37,000/- in cash and executed higher purchase agreement for Rs.68,882/- payable by EMI of Rs.2703/- with 41 installments with opposite party No.1. The complainant entrusted 10 cheque leaves drawn on Vijaya Bank, Chattanchal branch now the Bank of Baroda towards the security of the loan. And the complainant regularly paid the installments. But the opposite party No.1 did not issued proper receipts. The complainant paid a total amount of Rs.1,50,000/- towards the loan account and asked opposite party No.1 to issue clearance and no objection certificate to the Scooter. But on 09/08/2022, she found that Scooter was missing from her house. The complainant filed a petition before the Melparamba Police Station and on enquiry, the Police investigated that the agents of opposite party No.1 un-authourisedly took the Scooter from the premises of the complainant’s house. No notice before the unauthorized possession or subsequent possession of the Scooter was given to the complainant. The original RC and both the key of the Scooter are even in the custody of the complainant. When the Police started investigation, the agents of opposite party handed over the copy of notice dated 09/08/2022 and 20/08/2022 to the complainant through the Melparamba Police. Since the Police pressurised the agents of opposite party No.1 they have given another copy of notice dated 06/12/2022, in which it is alleged that they repossessed the vehicle on 09/08/2022 and auctioned the same for Rs.21,000/- and claimed Rs.16,793/- towards balance amount. On 27/12/2022, the complainant received copy of an arbitration award from Karun Kumar, Advocate in which it was stated that, the award was passed exparte in 11/10/2022. The complainant never received any notice from the arbitrator for appearance. Moreover, the award was silent with regard to the repossession of the vehicle and its public auction. In the meanwhile the complainant got a phone call from the phone No. 9895779369 stating that, that person is in custody of the scooter and he offered Rs.10,000/- to the complainant provided that she ought to handover the R.C book and key of the Scooter for which she was not ready. The complainant filed a petition before the R.T.O, Kasaragod requesting him not to issue fresh R.C. to the Scooter. Without getting fresh R.C, the opposite party No.1 cannot sell the scooter in public auction and no notice of sale was published by the opposite party No.1. So, the sale is unauthorized and it should be treated only as a theft. The opposite party No.1 presented the cheque subsequent to the repossession of the vehicle. Thereafter opposite party No.1 approached opposite party No.3 for getting fresh R.C. Opposite party No.3 is not liable to issue fresh R.C. in the name of opposite party No.1, since he did not comply the provisions of higher purchase agreement. The relief prayed by the complainant is to direct opposite party No.1 to retain the scooter KL-14Y-2421 to the complainant with damages of Rs.1,00,000/- with interest at the rate of 12% per annum and direct opposite party No.3 R.T.O. to not to issue fresh R.C. to the scooter KL-14Y-2421 in the name of opposite party.
The opposite party No.1 & 2 appeared through their counsels, even though notice is served to opposite party No.3, he remained absent, name called absent, set exparte. The opposite party No.2 filed version. According to him, the complaint is false, frivolous, vexatious and not maintainable either in law or on facts. Opposite party No.2 admit the purchase of TVS Scooter from him by the complainant. But the statement that opposite party No.2 arranged financial facility with their own financial company M/S TVS Credit Services Limited is denied and averred that the case is filed with ulterior motives to create a cause of action against this opposite party. The name of business concern of opposite party No. 2 is M/S Namans Motors who is the authorized dealer of TVS two wheeler vehicles at Kasaragod. The complainant purposefully mentioned opposite party No.2 as TVS motors company to match the name of opposite party No.1 and to mislead this Honorable Commission. M/S Namans Motors has not connection with TVS Credit Services Limited, which is an independent financial institution. The Opposite parties No.1 & 2 are independent concerns having different area of business. There is no business relations between opposite party No.1 & 2. The complainant has chosen the financial assistance from opposite party No.1 at his own free will. This complaint is bad for misjointer of parties as the complainant has not seeking any relief against opposite party No.2. So the complaint against opposite party No.2 may be dismissed.
The complainant filed proof affidavit in lieu of chief examination and was cross examined by the counsel of opposite party as PW1, the documents produced are marked as Ext. A1 to A8. The opposite party No.2 submitted that they have no evidence. Both sides heard and documents perused. The main issues raised for consideration are;
- Whether there is any deficiency in service or unfair trade practice on the part of opposite parties in repossessing the complainant’s scooter?
- Whether the repossession was legal?
- Whether the complainant is entitled for relief,
- If so, what is the relief?
For convenience, issue no.1 to 4 can be discussed together. Here the complainant purchased a TVS Scooter from opposite party No.2 from Kasaragod. For purchasing the Scooter, the opposite party No.2 arranged a loan with their own financial company, opposite party No.1. The complainant paid Rs.37,000/- in cash and a higher purchase agreement is executed for Rs.68,882/- payable by EMI of Rs.2703 with 41 installments with opposite party No.1. At the time of executing higher purchase agreement, the complainant had entrusted 10 cheque leaves drawn on Vijaya Bank, Chattanchal branch, now Bank of Baroda towards security of the loan. The complainant’s loan account number was 200501011003448. And she regularly paid the installments. Altogether she had paid Rs.1,50,000/- towards the loan account, which was in excess according to her. Moreover the opposite party did not issued statement of loan account to her even after repeated requests. In August 2022, the complainant asked opposite party no.1 to issue clearance certificate and non-objection certificate of the Scooter. But on 09/08/2022, the Scooter was found missing from the house of the complainant. The complaint filed a petition before the SHO Melparamba regarding the missing of the scooter. On enquiry, it was found that the opposite party No.1 unauthorizedly took the scooter from her house. Ext. A2 is the original R.C. of the Scooter. During investigation of the Police, the agents of opposite party No. 1 handed over copy of registered notices dated 09/08/2022 and 20/08/2022 to the complainant. Those notices are marked as Ext. A3 and A4. After further pressurization, the agents of opposite party No.1 given another copy of notice dated 06/12/2022 in which opposite party No.1 alleged that they repossessed the scooter on 09/08/2022 and auctioned the same for Rs.21,000/- and claimed Rs.16,793/- towards the balance amount. That notice is produced as Ext.A5. On 27/12/2022, the complainant received a copy of an Arbitration award from Karun Kumar Advocate in which it was stated that an award was passed against the complainant exparte on 11/10/2022 which is, produced as Ext. A6. The award was silent regarding the repossession of the Scooter and its public auction. In the meanwhile the complainant received a phone call from the number 9895779369 stating that, that person is in custody of the Scooter and he offered Rs.10,000/- to the complainant for the original R.C. book and key of the scooter. The complainant did not agree with the offer. Even though opposite party no.1 approached the R.T.O. Kasaragod for getting fresh R.C, it was not issued to him. The case of the complainant tallies with the documents produced by him. Ext. A7 and A8 prove that the opposite party unauthorizedly taken possession of the Scooter even after the complainant promptly paid the loan. There is serious deficiency in service and unfair trade practice on the part of opposite party in taking repossession of the vehicle without complying the due process of law. In L&T Finance Ltd and another V/S Rampada maithy 2016 (2)CLT343(NC) National commission held that it cannot be said that vehicle was sold following a fair and transparent process.There is deficiency on the part of opposite party in rendering service to the complainant. In City Corpn massathi finance V/S S. Vijayalekshmi IV (2011) CPJ 67( Supreme Court) The Supreme Court held that we reiterate the earlier view taken that even in case of mortgaged goods subject to higher purchase agreements, the recovery process cause to be in accordance with law and the recovery process referred to in agreements also contemplates such recovery to be effected in due process of law and not by use of force. The opposite party sold the Scooter in auction and demanded balance amount from the complainant amounts to gross deficiency in service. Due to the illegal act of opposite party, the complainant suffered huge monitory loss and mental agony. The opposite party has not produced any documents to disprove the case of the complainant. In the absence of rebuttal evidence, the opposite party is bound to compensate her loss and agony. IA 101/2023 is pending for consideration along with main complaint. The Commission found that the scooter is auctioned illegally. The opposite party No.1 is bound to refund the amount paid by the complainant in the circumstances, they were unable to return the same to the complainant as the relief claimed by the complainant is to direct opposite party No.1 to return the scooter KL-14Y-2421 to the complainant along with the entire amount paid by her towards damages along with cost of this proceedings. The complainant is well aware of the fact that her Scooter is already sold by opposite party in auction. And it is not practicable to get return of the same. We carefully perused the affidavit and documents produced by the complainant. The opposite party No. 1 is bound to refund the entire amount collected from the complainant with compensation and cost. The complainant had paid Rs.1,50000/- to opposite party No.1. Hence opposite party No.1 is directed to refund the entire amount paid by the complainant Rs.1,50,000/- with 9% interest from 09/08/2022 (the date of repossession) till disbursal with a compensation of Rs.25,000/- along with cost.
In the result, complaint is allowed directing opposite party No.1 to refund Rs.1,50,000/-(Rupees One lakhs Fifty thousand only) with 9% interest from 09/08/2022 (the date of repossession) till disbursal with a compensation of Rs.25,000/-(Rupees Twenty Five thousand only) along with a cost of Rs.5,000/-(Rupees Five thousand only) to the complainant within 30 days from the date of receipt of copy of this order. The opposite party No.1 is further directed to return the 10 cheque leaves (entrusted by the complainant to him as a security for the loan) to the complainant. On compliance of the order of payment by opposite party No.1, the complainant is directed to handover the key and R.C. of the Scooter KL-14Y-2421to the opposite party No.1.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits
A1 – Complaint letter submitted to the SHO, Melparamba
A2 – Original R.C of the Scooter
A3 – Copy of the notice dated 09/08/2022
A4 – Copy of the notice dated 20/08/2022
A5 – Demand notice dated 06/10/2022
A6 – The copy of the arbitration award
A7 – Statement of Account maintained by Bank of Baroda
A8 – Statement of account issued by opposite party No.1
Witness cross-examined
PW1 – Safeena K.
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
JJ/
