By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. Briefly stated the allegations in the complaint are as under:<br /> Complainant is the registered owner of 1995 model Bajaj Matador F/307 having registration number KL10/C 8458. At the time of purchase of the vehicle complainant availed finance from opposite parties by executing a hire purchase agreement on 7-12-1995. The transaction was arranged and brought about by 2nd opposite party. The loan availed is Rs.1,80,000/- and as per the agreement the amount to be repaid was fixed as Rs.2,81,000/-. Complainant repaid Rs.2,62,440/-. The vehicle met with an accident and complainant authorised opposite parties to receive the own damage insurance claim amount of Rs.18,660/-. Thus by adjusting this amount the entire hire amount has been paid. On 27-10-1999 opposite parties directed the complainant to pay Rs.18660/- immediately. On 6-11-1999 opposite parties took repossession of the vehicle by force. Complainant filed suit before Munsiff Court, Ponnani. Later on receiving advice that he would get speedy remedy before Consumer Forum he withdrew the suit and has preferred this complaint. Complainant is a driver and the vehicle was his sole means of livelihood. Hence the complaint.<br /> <br /> 2. Opposite parties have filed joint version. Jurisdiction of Forum is disputed on the ground that as per clause in the agreement only Courts at Coimbatore has jurisdiction to try any dispute relating to the agreement. Opposite parties admit the loan amount as Rs.1,80,000/- and market value of the vehicle as Rs.2,42,769/-. Opposite parties contend that complainant was a chronic defaulter and as per the hire purchase agreement they are entitled to claim additional finance charges, interests and also take repossession of the vehicle. The amount received from insurance Company for own damage claim is Rs.10,440/- and not Rs.18,660/-. This amount of Rs.10,440/- was adjusted to the 29th instalment and that opposite parties have not received Rs.18,660/-. Complainant is liable to pay additional charges for delayed payments. Vehicle was repossessed only because complainant did not pay the defaulted amount even after repeated warnings. The vehicle was repossessed as per terms and conditions of the agreement. After repossession complainant filed suit before Munsiff Court, Ponnani. Opposite parties opposed the Suit on preliminary issue of jurisdiction whereby complainant withdrew the Suit and has preferred this complaint only on experimental basis. Complainant is not entitled to any relief and complaint is only to be dismissed.<br /> <br /> 3. This complaint is filed on 20-3-2001. Due to vacancy in the post of President of the Forum from October, 2003 there was no sitting of the Forum for a long time. The case came up first before us on 27-7-2007 and it was finally heard on 7-11-2007. Complainant filed affidavit and was cross examined as PW1. No documents marked on the side of complainant. Opposite parties have filed affidavit and Exts.B1 and B2 marked on behalf of opposite parties.<br /> <br /> 4. The points that arise for consideration are (i) Does the Forum have jurisdiction to try the case (ii) Have the opposite parties committed deficiency of service. (iii) If so, reliefs and costs.<br /> <br /> 5. Point(i): Opposite parties contend that this Forum lacks territorial jurisdiction to this complaint for the reason that in the hire purchase agreement, complainant has agreed that only Courts at Coimbatore has jurisdiction to entertain any dispute regarding the transaction. Section 11 of Consumer Protection Act provides that a complaint can be instituted within the local limits of whose jurisdiction the opposite parties resides or carries on business as where the cause of action wholly or partly arises. In the complaint it is stated that 2nd opposite party is doing their business in Malappuram District. This is not specifically denied by opposite parties. Further the vehicle is registered in Malappuram District and it is alleged to be seized from Ponnani which is within the local limits of this Forum. As per Section 3 of Consumer Protection Act the the remedy provided is in addition to other remedies available to consumers. Thus we have no hesitation to hold that the objection raised by opposite parties is not sustainable. The complaint is maintainable before this Forum.<br /> 6. Point(ii): It is not in dispute that complainant availed a loan of Rs.1,80,000/- from opposite parties for the purchase of the vehicle KL-10-C 8458 by executing hire purchase agreement on 7-12-1995. Complainant is the registered owner of the vehicle. Ext.B2 is the hire purchase agreement. As per Ext.B2 complainant is liable to repay the loan with interest @ 16.5% per annum in 36 monthly instalments starting from 7-1-1996 and ending on 7-12-1998. The first twenty four instalments are fixed at the rate of Rs.8000/- per month. The next eleven instalments are at the rate of Rs.7500/- per month and the last instalment is Rs.6600/-. Thus the total amount fixed to be repaid is Rs.2,81,000/-. Admittedly complainant has repaid Rs.2,62,000/- The difference is Rs.18,660/-. According to complainant the vehicle met with an accident on 19-4-1998 and he authorised opposite parties to receive the own damage insurance claim amount of Rs.18,660/- passed by United India Insurance Company. Complainant contends that by adjusting this claim amount the entire hire amount has been paid. Opposite parties resist this contention for the reason that the own damage insurance claim received by them from United India Insurance Company is Rs.10,440/- and not Rs.18,660/-. Even after adjusting this claim amount the balance due is Rs.18,660/-. Ext.B1 is the statement of accounts. In Ext.B1 29th and 30th instalments are paid on 26-3-1999 vide cheque No.5797801 which according to the opposite party is the insurance amount received by them. The total payment of 29th and 30th instalment is Rs.10,440/- complainant has failed to produce any evidence to establish that the insurance claim amount is Rs.18,660/-. Ext.B1 thus proves the version of opposite parties that only Rs.10,440/- was received by them from insurance company and this amount has been adjusted to the hire amount. In cross examination PW1 has deposed that Rs.18,000/- is due as balance to be paid. It is established and proved from evidence and records that an amount of Rs.18,660/- is due to the opposite parties from the complainant to the hired amount.<br /> <br /> 7. Complainant is aggrieved that opposite parties repossessed the vehicle illegally and that he was prevented from settling the dues and taking back his vehicle only because opposite parties claimed huge amount. According to complainant on 27-10-1999 he received a telegram from opposite parties to remit Rs.18,660/- immediately. Complainant then approached 2nd opposite party and requested for statement of accounts. Opposite parties refused to give him the same. On 6-11-1999 complainant returned to Ponnani at 8 PM after carrying load in his vehicle from Veliyamcode to Areacode. He parked his vehicle to have tea and when he came back the vehicle was gone. On enquiries he came to know that opposite parties have seized the vehicle. Thereafter he received a telegram from opposite parties informing repossession of the vehicle by them. Complainant approached opposite parties to settle the accounts and for return of his vehicle. The amount claimed by opposite parties was high and complainant was unable to make the payment. He then filed a Suit before the Munsiff Court, Ponnani as O.S.309/99 with an interim application to return the vehicle. Later on receiving advice that he would be able to get speedy remedy before the Consumer Forum he withdrew the Suit and has preferred this complaint. The counsel for opposite party vehemently argued that since the complainant filed a Suit for the same relief earlier this complaint is not maintainable. We do not find any merit in this contention because admittedly the Suit is withdrawn and there is no case as subjudice. We do not think it necessary to go further into this question.<br /> 8. Counsel for complainant strongly argued that repossession of the vehicle was without consent and knowledge of complainant and hence illegal. In Ext.B2 the market value of the vehicle is Rs.2,42,769/-. The amount contributed by the complainant to the purchase price is Rs.62,769/-. The loan amount is Rs.1,80,000/-. The amount fixed to be repaid is Rs.2,81,000/-. Complainant has repaid Rs.2,62,440/-. Thus complainant has repaid substantial number of instalments and a very major portion of the amount. In fact he has repaid an amount higher than the market value of the vehicle. Admittedly there is delay in payment of instalments. Complainant alleges that opposite parties claimed hug eamount after repossession. In Ext.B1 opposite parties have claimed Rs.56,155.40 as additional finance charges and Rs.37,509.25 as debit note charges. So apart from the balance of Rs.18,660/-opposite parties have claimed Rs.93,664.65 as additional finance charges and debit note charges. Thus the total claimed is Rs.1,12,324.65. From the above calculations in Ext.B1 the only inference that can be made is that opposite parties did claim huge amount over and above Rs.18,660/-. Counsel for opposite parties submitted that as per the condition in Ext.B2 opposite parties are entitled to collected additional finance charges and interest for delayed payments. Complainant was a chronic defaulter and the above charges are only legal. On examination of the loan repayment schedule in Ext.B2 it is seen that opposite parties have derived the repayment amount as Rs.2,81,000/- by calculating interest at flat rate ie., interest is calculated for the entire period for the entire sum. It is not a case of fixing instalments on the principal and then collecting interest upto the date of payment of instalment and then equating the instalments. That means even after dimunition of principal interest interest is calculated on the entire period. Dimunition of principal has not been taken into account at all. So if additional finance charges are collected on delayed instalments it will amount to collection of interest for a second time. It will be collection of interest more than once which is not allowable in law. Thus the claim for additional finance charges is not legal. Opposite parties contend that complainant is bound by the terms and conditions. In Ext.B2, condition No.16 provides for collection of additional finance charges. Complainant has affirmed and proved that only blank form was got signed by him along with blank stamp papers and cheque leaves. Going through the various conditions in the contract it is a standard form of contract where in the complainant has very less bargaining power. He has either to accept it in toto or reject it. When put in a position for need of money he has signed in the dotled lines. Opposite parties have no explanation as to what is the debit note charges. We find the claim for additional finance charges and debit note charges as unreasonable and opposed to law. Further complainant affirms that on 27-11-1999 he received a telegram to pay Rs.18,660/-. On the tenth day t he vehicle was repossessed by opposite parties. These facts are neither specifically denied by opposite parties nor challenged in cross examination. The only inference that can be made is that at the time of repossession of the vehicle the actual amount due is Rs.18,660/-. Thus the vehicle was repossessed for recovery of Rs.18,660/-. It is submitted that opposite parties are rightfully entitled to repossess the vehicle on default of payment. Counsel for opposite parties relied on condition No.9 of Ext.B2 agreement, which states that opposite parties are entitled to forfeit the amounts paid by the hirer and to retake possession of the vehicle without notice to hirer. Taking into consideration the huge amount complainant has repaid and the amount contributed by him to the purchase price the denial of notice of repossession and of sale is highly against the principles of equity and natural justice. The vehicle was repossessed in a high handed manner in the absence of the complainant. Opposite parties have no case that there was willing and voluntary surrender of the vehicle by the complainant. When the vehicle is taken away without knowledge and consent of the complainant it is defenitely illegal repossession. It is laid in 2007 (3) KLOT 923 (Shibi Franis V. State of Kerala) and followed in 2007 (4) KLT 402 (Bahuleyan Vs. State of Kerala) that the financier can take possession of the security only through the course of law. The aforesaid discussions we have no hesitation to hold that the act of opposite parties claiming additional charges and taking repossession of the vehicle by illegal means amounts to deficiency of service for which the complainant is entitled to be compensated.<br /> <br /> 9. Point (iii): The vehicle was repossessed on 6-11-1999. After repossession opposite parties are duty bound to take good care of the vehicle and made every effort to fetch the highest market value for the vehicle in case of sale of the vehicle. Any balance after adjustment has to be paid to the hirer. In Ext.B1 the vehicle is sold on 01-01-02. Opposite parties have failed to explain and establish who was holding/using the vehicle for more than 2 years, after repossession. The sale amount is Rs.45,500/-. Complainant ought to have been informed about the sale. Opposite parties have failed to produce any evidence as to the date of sale, to whom it was sold and what was the consideration received. The act of opposite parties is hideously harsh. Complainant is a driver and the vehicle was his sole means of livelihood. Even after repayment of an amount higher than the market value of the vehicle he is put in a position of total helplessness. The Honourable National commission has held in 2007 CRJ 1145(CP) NCDRC (Citicorp Maruthi Finance Ltd. Vs. S.Vijayalaxmi that <br /> “In case where the vehicle was repossessed by the use of force and thereafter sold without informing the borrower, it would be unjust to direct him to pay balance amount. If such a relief is given to the lender, it would be unjust enrichment to him and against equity.”<br /> We hold that a compensation equivalent to the market value of the vehicle along with interest would do justice to the complainant<br /> <br /> 10. In the result, we allow the complaint and order opposite parties jointly and severally to pay an amount of Rs.2,42,769/- (Rupees Two lakh, forty two thousand, seven hundred and sixty nine only) to the complainant with interest @ 9% per annum with effect from 23-3-2001 along with costs of Rs.1500/- (Rupees one thousand five hundred only) within three weeks from the date of receipt of copy of this order.<br /> <br /> Dated this 23rd day of November, 2007.<br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER<br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : PW1<br /> PW1 : V.K. Kunhimon, Complainant.<br /> Documents marked on the side of the complainant : Nil<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1 and B2<br /> Ext.B1 : Statement of accounts.<br /> Ext.B2 : Photo copy of the Hire purchase agreement.<br /> <br /> <br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER<br />