Date of Filling: 26.02.2016
Date of Disposal: 12.06.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1
PRESENT: THIRU.S.PANDIAN, B.Sc., L.L.M. ….PRESIDENT
THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP., …MEMBER
CONSUMER COMPLAINT No.30/2012
TUESDAY, THE 12 DAY OF JUNE 2018
N.Murugan, Aged:40,
S/o, Nagappan,
No.65/51, perumal Koil Street,
Thiruverkadu,
Chennai - 600 077. …….Complainant.
//Vs//
1.M/s.Seven Star Parking Yard,
Perumal Agaram,
Thiruverkadu Main Road, Near Arch,
Thiruverkadu, Chennai 77.
2.M/s.Indus Ind Bank Ltd.,
Rep.by its Manager,
Old No.115 and 116, New No.34
G.N.Chetty Road, T.Nager,
Chennai - 600 017.
3.M/s.Indus Ind Bank Ltd.,
Rep.by its Authorised Manager
General Thimmaya Road,
Contonment, Pune -411 001. …… Opposite parties.
This complaint is coming upon before us finally on 05.06.2018in the presence of M/s.Kannan, Counsel for the complainant, Mr.R.Poonkundran, Counsel for the 2nd and 3rd opposite parties and the 1st opposite party is set Ex-parte for non appearance and having perused the documents, evidences and written arguments of both sides , this Forum delivered the following.
ORDER
PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT
1.This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party for seeking directed to pay Rs.70,000/- towards the value of the sold vehicle and towards compensation for Rs.3,00,000/- causing inconvenience, mental agony and deficiency of service with cost Rs.10,000/-
The brief averments of the complaint is as follows:-
2. The complainant approached the First opposite party in the month of July 2010 for a loan to purchase a “TATA ACE MAGIE” vehicle. The first opposite party approved the loan to the complainant on 08.07.2010 and both entered into a loan agreement of the same day. The 3rd opposite party sanctioned a loan of Rs.2,60,000/- and paid the amount to the complainant on execution of demand promissory note on the same day. In turn, the complainant purchased a “TATA ACE MAGIC” B53, 7+1, ARCTICWHIRE from ACT INDIA, a division of SICAGEN INDIA limited and he has paid the balance amount to Act India to purchase the vehicle bears the Registration No.TN-18-C-9534 with engine No.275ID106FZYS87964 and Chasis No.MAT445115AVF433989.That the loan has to be repaid to the 2nd opposite party in EMI’s in 47 months, as per the schedule of repayment given by the 1st opposite party.
3. The complainant states that he has paid the due amount monthly upto the month of February 2011. Due to some financial crisis he was not able to pay the due amount then for March and April 2011. As the complainant himself being a practicing Advocate, and to avoid complication he re-possessed the vehicle to the bank on 10.05.2011 to clear the due’s balance to the 2nd opposite party. The 2nd opposite party has also guaranteed the complainant that after selling the vehicle they will settle the complainant with the additional money they are getting. The vehicle was voluntarily surrendered by the complainant before the 2nd opposite party with a belief that the opposite party will act upon their words. That as per the statement of account given by the 2nd opposite party on 21.02.2012 the overdue amount by the complainant to the 2nd opposite party is Rs.1,62,743.43/-. The opposite party sent a notice to the complainant on 31.02.2011 that the vehicle got an offer ofRs.2,30,000/- as highest bit. So the complainant has to paid nearly Rs70,000/- as the additional amount by the 2nd opposite party.
4. The complainant states that the 2nd opposite party never contacted the complaint again even not obtained his signatures in the transfer forms of the transport Department when the complainant himself contacted the 2nd opposite party, he was generated that the balance of consideration will be paid to him as soon as possible. But after selling the said vehicle also without changing any name in transport records, the opposite party is sending message of receipts till now.
5. That the surprise of him in the month of April 2012 he received a notice from Shri.D.Anand, Advocate and Arbitrator for the op, that a sole Arbitration has been initiated against him for the recovery of Rs.72,278/- as claim by the opposite party. The complainant states that instead of re-paying Rs.70,000/- to him to opposite party is claiming Rs.72,278/- as additional claim apart from the initial charges paid by the complainant and the 9 installments paid by the complainant and also the re-possession of said vehicle which has been sold by the ops.
6. That the opposite parties are trying to gain illegal profits from the complainant, leaving the complainant to be in a position of mental agony and torture from the date of re-possessing the vehicle with the opposite party. The op is now insisting for 36% interest against 12.5% as agreed in the loan agreement as per their first schedule. Hence this complaint.
The contention of written version of the opposite parties 2and3 briefly as
follows:-
7. All the allegations set out in the complaint all false and denied except those that are specifically admitted herein. That the present complaint is not maintainable in law and on facts. The relationship between the complainant and the op is between the creditor and borrower relationship. Therefore the complaint is not maintainable before the consumer Forum. The complainant himself admitted in para 8 of the complaint that he is a practicing Advocate which shows that he had availed it for his commercial use. Already the Arbitration proceeding is initiated and pending before sole Arbitrator Mr.D.Anand for disposal. At this juncture the present complaint is not maintainable.
8. As per the terms of the agreement the opposite party had financed a sum of Rs.2,60,000/- towards the new vehicle out of the vehicle cost of Rs.3,06,327/-.Thus the opposite party had financed more than 85% of the vehicle cost. The loan amount along with interest is repayable in 47 monthly installments. The installments are repayable on every 15th of the English calendar month commencing from 15.08.2010 till 15.05.2014.
9. That the complainant within a short span of time from the date of the agreement started to default the monthly installments, each and every time the branch officials has run pillar to post to collect the monthly installments from him. The account was became a Non-performing asset in the very first year of contract period as classified as NPA account. As admitted by him in para 8 of the complaint that there was no payment after 16th march 2011 and he has surrendered the vehicle to the opposite party stating that he was unable to ran the vehicle and also unable to pay the monthly installments. Hence the opposite party left with no other option except to sell the vehicle on open market to realize the amount advanced to the complainant and the vehicle was sold for the highest bidder and suffered loss for which they have initiate Arbitration proceedings.
10. It is denied that the opposite has guaranteed the complaint that they will settle the complainant with the additional money they are getting through sale of vehicle. That the complainant himself has admitted that he has failed to pay the installments, therefore as per the terms of the agreement additional interest will be accrued. In the present case also there is delay interest. It will also add to the account while calculation the settlement of the loan account. Hence the opposite party is unable to know how the complaint himself concluded that the he will receive a sum of Rs.70,000/- without any basis what so ever. He is bound to prove his point is this respect.
11. The allegation made in para 14 that the interest rate is 12.5% shown in the loan agreement first schedule is for the loan amount advanced towards the vehicle, in the same first schedule there a clause in which it is agreed by the complaint that in case any default he has agreed to pay the additional interest at the rate 36%. It is part of the loan agreement clause. Hence his allegation is proved to be wrong.
12. That there is no cause of action arose in the present complaint since the borrower himself has surrendered the vehicle. Then there is no question of mental agony. Further there is no allegation against the opposite party of any deficiency of service. Hence this complaint is liable to be dismissed.
13. In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1to Ex.A24 were marked. While so, on the side of the opposite party, the proof affidavit is filed and Ex.B1 &ExB4 were marked on their side.
14. At this juncture, the point for consideration before this Forum is:-
1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?
2. To what other reliefs, the complainant is entitled to?
15. Written arguments filed and oral arguments also adduced by both
sides.
Point No:1:-
16. As per the averments of the complaint that the complainant has purchased a new TATA ACE MAGIC vehicle by availing loan from the opposite party 2and 3 for Rs.2,60,000/- and in continues he has paid the due for twenty installments and first installment in advance and thereby in total twenty one installment have been paid by the complainant on subsequently due to the some financial crisis and to avoid the future complications the complainant himself surrendered the said vehicle to the opposite parties. On the guarantee of the 2nd opposite party that they will repay the additional money from resale said to the complainant, but the opposite party-2 failed to do so and therefore for deficiency service committed by the opposite parties for causing mental agony and financial loss this complaint has been filed.
17. On the other hand, it is contended by the opposite parties2&3 with the relationship between the complainant and the opposite party are the creditor and borrower and hence he is not the consumer under the Consumer Act. Further, the complainant himself admitted that he is a practicing Advocate which clearly shows that he has availed loan for his commercial use and on sole ground this complainant not maintainable and may be dismissed in limini. Further it is contented that the complainant is a defaulter from the day one in paying the installment and each and every time to collect the monthly installments worth repeated demands and on are stage the said loan amount was a Non-Performance account (NPA). Therefore as per the terms of the said agreement, an additional interest will be accrued and it is further contended that the opposite parties have not guaranteed the complainant for repay the additional money. Therefore, they are getting through the resale of the vehicle and in this regard the complainant should prove and therefore there is no cause of action in this complaint since the borrower surrendered the vehicle and hence no deficiency of service as alleged by the complainant and also arbitration proceeding also pending for disposal.
18. At the outset, it goes without saying that, it is the prime duty of the complainant to prove the allegations made against the opposite parties and the deficiency of service committed to the opposite parties by means of consistent and concrete evidence. First of all, on careful perusal of the evidence of the complainant, it is learnt that the complainant approached the 3rd opposite party in the month of July 2010, for a loan to purchase a TATA ACE MAGIC vehicle and in turn the 3rd opposite party approved the loan on 08.07.2010 and for which loan agreement was executed on the same day on sanction of the Rs.2,60,000/- the loan agreement, which is marked as Ex.A1and the first schedule and second schedule and irrevocable power of attorney which are marked Ex.A2 to Ex.A4 respectively and the demand promissory note, the saving Bank account pass Book and insurance cover note which are marked as Ex.A5 to Ex.A7 respectively.
19. It is further stated that on availing of loan from the opposite party’s Bank and of payment of Balance Amount to Act India and purchased the vehicle bearing the Registration No.TN-18-C-9534 through the invoice which is marked as Ex.A8 and the statement of account, AFC (Additional finance charges) statement and statement proposal which are marked as Ex.A9,Ex.A10 and Ex.A23 respectively. It is further stated that the service book and the certificate of registration and permit receipt which are marked as Ex.A13 to Ex.A15 respectively and the tax card which is marked as Ex.A16. On further perusal, it is deposed that the complainant himself voluntarily surrendered the vehicle through Ex.A21 to the 2nd opposite party through letter and the repayment schedule which are marked as Ex.A18 and Ex.A19 and thereby the repossession letter and resale letter issued by the opposite parties are marked as Ex.A20 and Ex.A22 respectively. In turn, the said vehicle handed over to the opposite party1 by the bank and for the same, Ex.A17 has been issued by the 1st opposite party and notice sent by the arbitrator is marked as Ex.A11 and claim statement filed by the opposite parties before the arbitrator which is marked as Ex.A12. The proforma invoice given by the V.S.T. Motors limited for the tentative price of TATA ACE-BA-IV-HT is marked as Ex.A24.
20. While being so, on the side of the ops2&3 it is narrated in their evidence that the complainant himself admitted that he is a Practicing Advocate which clearly shows that he had availed the loan for commercial use and thereby he will not come under the Consumer protection Act. It is true that the complainant had agreed all the terms and conditions of the loan and signed the loan agreement on 08.07.2010 which is marked as Ex.B1 and it is further stated that as per the terms of agreement, the Bank had financed a sum of Rs.2,60,000/-towards the new vehicle which cost of Rs.3,06,327/- and the loan amount along with interest to be repayable in 47 monthly installment for which due date commenced from 08.07.2010 to 15.05.2014. The repayment schedule is marked as Ex.B2 and the vehicle invoice is marked as Ex.B3. It is further learnt from the evidence of the opposite parties that the statement of amount provided to the complainant, to show his repayment despite earnings good income from the vehicle he had defaulted the installments. The statement of account is marked as Ex.B4 and thereby, the said loan amount was became a Non-performing asset (NPA) in the very first year of contract period and that there was no payment after 16th March 2011 and thereafter the complainant had surrendered the vehicle to the custody of the opposite parties 2and3 by stating that he was unable to run the vehicle and unable to pay the monthly installments. It is further stated that the opposite parties 2and3 have left with no other option, the vehicle was sold for the highest bidder and suffered loss for which they have initiated Arbitration proceedings and it is denied that the opposite parties that they will settle the complainant with the additional money to be getting through sale of the vehicle. Furthermore, it is noticed that how the complaint himself concluded that he will receive a sum of Rs.70,000/- without any basis and hence there is no deficiency of service on the part of the opposite parties.
21. At this juncture, on careful perusal of the rival submissions putforth on either side, it is pertaining to note that the fact of availing loan by the complainant from the opposite parties2&3 by accepting the terms and condition of the Ex.B1, the loan agreement and as per the terms and conditions the complainant had purchased the new TATA ACE MAGIC as per Ex.B3, the vehicle invoice. It is further noticed that in connection with the above said loan, the complainant had also executed Ex.A5 the promissory note for purchasing the vehicle and it was registered with necessary form which are marked as Ex.A5and Ex.A14. Similarly, the insurance cover note is Ex.A7 and the repayment schedule as per the complainant Ex.A2,Ex.A3andEx.A19 are marked. On the side of opposite parties 2and3, the repayment schedule for the period of 15.08.2010 to 15.05.2014 is marked as Ex.B2 and the statement of account on the side of the opposite parties 2&3 have been marked as Ex.B4. Similarly, it is learnt that the complainant himself voluntarily surrendered the above said vehicle bearing the No.TN-18-C-9534 through Ex.A21 for the reason that the complainant was unable to pay the due amount for the March and April 2011 due to the some financial crisis and the same was accepted by the opposite parties. In such circumstances, it is crystal clear that the above all facts are admitted by both the parties and also it is noted that the complainant is a practicing Advocate.
22. At the outset, as already pointed out, the complainant himself admitted in the complaint as well as proof Affidavit that he is a practicing Advocate and thereby his main profession is an Advocate profession. So, it is needless to say that the complainant is having the noble profession of Advocate there is no question to say that the said loan availed only for his livelihood. In such circumstances, there is no specific averments either in the complaint or in the proof Affidavit that the complainant had purchased of the said to vehicle for his livelihood only. Moreover, it is pertinent note that the alleged purchased of the vehicle by availing loan from the Opposite parties 2and3 is a goods carriage vehicle and by using the vehicle, the complainant has earned money by letting the vehicle for hire. Therefore, as rightly pointed out by the opposite parties 2and3, the purchase of said vehicle by the complainant is only for the commercial purpose not for the livelihood of the complainant who is a practicing Advocate by profession. Hence, there is no doubt that the complainant had purchased the vehicle only for commercial purpose and thereby he will not come under the purview under the Consumer Protection Act 1986. At this instance, the complainant has relied upon some decisions in (1992CPT(1)95 NC) as per Super Engineering Corporation Vs Sanjai Vinayak Pant and another,(1991) 1 CPJ Synco Textiles Private ltd VS Greeves Cotton and Company limited, AIR1995SC1428 Lakshmi Engineering Works Vs PSG Industries, (II(1995) CPJ 139) NC and III (2006) CPJ 265(NC),2001-CPJ-3-9-NC,2001-CPR-2-92-NC and III (2006)CPJ265(NC), regarding the ambit and support and the terms of commercial purpose in support of this complaint.
23. At this juncture, this Forum wants to enlighten that it is an admitted fact, that the complainant is a practicing Advocate which is a noble profession and from the profession, the complainant is very well able to earn money for his livelihood. In such circumstances the plea taken by complainant that the alleged vehicle purchased for self employment. Therefore, the above decisions are not applicable to the facts of the case on hand. Hence this Forum has without any hesitation to conclude that the complainant had purchased the alleged goods carriage vehicle only for commercial purpose and not for any livelihood or for self employment.
24. The next point to be taken into consideration is as to whether the complainant has repaid the installments as per the loan of agreement Ex.A1and Ex.B1and as per the repayment scheduleEx.B2 without any default. Regarding this aspect, on careful perusal of the evidence and the documents produced on either side, it is admitted by the complainant himself that due to financial crisis he has not paid the due amount for month of March and April 2011and to avoid future complication, and so that he himself surrendered the said vehicle to the opposite parties 2and3 and left the vehicle in the 1st opposite party seven star parking yard. While so, from the evidence of the opposite parties 2and3 it is learnt that there is no repayment after the said fact has been clearly shown from Ex.B4 the statement of amount, which is not disputed by the complainant. At this instance, it is crystal clear, that the complainant is a defaulter in repayment of the alleged loan and thereby the complainant has evaded the terms and conditions as already agreed and signed in Ex.A1and Ex.B1. If it is so, because of the complainant himself surrendered the vehicle and being a defaulter, he is not entitled to claim any relief. Therefore, the version placed by the opposite parties 2&3 that the complainant is the defaulter in respect of the loan availed by him from the bank holds good.
25. Next, this Forum has to be taken into consideration about the allegations made by the complainant that he had surrendered the vehicle to avoid future complications and also the opposite party guaranteed the complainant that after selling the vehicle, they will settle the complainant with the additional money they are getting through resale and in fact as per the highest bidder, the vehicle sold of Rs2,60,000/- the complainant has to be paid Rs.70,000/- by the opposite parties. In such circumstances, on seeing Ex.A22, it is pertinent to note that the opposite party Bank received only an amount of Rs. 2,30,000/-as sale price for the said vehicle with refinance option and the statement amount for the contract is of Rs.2,45,240/- as on31.05.2011 and thereby there is no possibility of any refund since there is a shortfall of Rs.15,240/- to close the contract and to that effect Ex.A22 was issued by the opposite party Bank to the complainant. In such circumstances, the complainant has not at all produced any relevant documents before this Forum to show that the complainant has to be paid Rs.70,000/-. Therefore, as rightly pointed out by the learned counsel for the opposite parties that the above said allegations proved by the complainant in a proper manner.
26. Furthermore, the learned counsel for the opposite parties would submit that they have filed the arbitration proceedings and therefore the complaint is bound to pay the loss amount to the opposite party for which arbitration is pending and in order to substantiate the said plea they have relied upon the unreported judgment in CA.No.2079/2015 and OS.No.68/2014 rendered by the Hon’ble supreme court of India. Whereas, on the side of the complainant it is relied upon the decisions rendered by the Hon’ble Supreme Court that the remedy of arbitration is not the only remedy available, rather, it is an optional remedy. Consumer can either seek reference to an arbitrator or to file a complaint under the consumer Act and it is authoritatively settled that the Arbitration clause is not a bar to the entertainment of the complaint by the Redressal Agency constituted under the Consumer Protection Act, even if the arbitration provision has be on laid in a statute(2012)2SCC 506 NSCL Vs M.Madhusudhan Reddy.
27. At this juncture, on going through the rival submissions putforth as above, this Forum held that as rightly pointed out by the complainant that the pending of arbitration proceedings is not a bar to entertain this complaint under Consumer Protection Act.
28. In the light above facts and circumstances and discussion, this Forum concludes that there is no deficiency of service on the part of the opposite parties 2&3 as alleged in the complaint by the complainant and the same has not been proved by means of reliable and consistent evidences by the complainant In respect of 1st opposite party which, there is no cause of action and no prima facie case being made out since there is no specific allegation in the complaint against him. Thus point No.1 is answered accordingly.
Point No:2:-
29. As per the decisions arrived in the point No.1, the complainant is not entitled for any relief as prayed in the complaint. Thus, the point No2 is answered accordingly.
In the Result, this complaint is dismissed. No cost.
Dictated by the President to the steno-Typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum on this 12th June2018.
.
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MEMBER PRESIDENT
List of documents filed by the complainant:-
Ex.A1 | 08.07.2010 | Loan agreement | Xerox |
Ex.A2 | 08.07.2010 | First schedule copy | Xerox |
Ex.A3 | 08.07.2010 | Second schedule copy | Xerox |
Ex.A4 | 08.07.2010 | Irrevocable power of Attorney copy | Xerox |
Ex.A5 | 08.07.2010 | Demand promissory note copy | Xerox |
Ex.A6 | ……. | Saving bank Account pass book copy | Xerox |
Ex.A7 | 10.07.2010 | Insurance cover note copy | Xerox |
Ex.A8 | 10.07.2010 | Invoice for vehicle from Act of India | Xerox |
Ex.A9 | 21.02.2012 | Statement of account | Xerox |
Ex.A10 | 22.02.2012 | Additional Finance Charges | Xerox |
Ex.A11 | 13.03.2012 | Notice of Arbitration | Xerox |
Ex.A12 | 12.03.2012 | Arbitration claim statement | Xerox |
Ex.A13 | 10.07.2010 | Operator’s service book copy | Xerox |
Ex.A14 | 22.07.2010 | Certificate of Registration | Xerox |
Ex.A15 | 29.07.2010 | Permit of Transport Department | Xerox |
Ex.A16 | 29.07.2010 | Tax Card | Xerox |
Ex.A17 | 10.05.2011 | Re-possessing Receipt | Xerox |
Ex.A18 | 10.05.2011 | Re-possession letter (Complainant) | Xerox |
Ex.A19 | 08.07.2010 | Repayment schedule | Xerox |
Ex.A20 | 10.05.2011 | Repossession Letter (Opp.Party) | Xerox |
Ex.A21 | 10.05.2011 | Surrender Letter | Xerox |
Ex.A22 | 31.05.2011 | Re-sale letter | Xerox |
Ex.A23 | 10.05.2011 | Settlement proposal | Xerox |
Ex.A24 | | Proforma Invoice copy of V.S.T. Motors. | Xerox |
List of documents filed by the opposite parties 2&3:-
Ex.B1 | 08.07.2010 | Loan agreement under contract No.TQAA08736 dt.08.07.2010 | Xerox |
Ex.B2 | 15.08.2010to 15.05.2014 | The repayment schedule | Xerox |
Ex.B3 | 10.07.2010 | The vehicle invoice | Xerox |
Ex.B4 | 08.05.2013 | The statement of Account | Xerox |
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MEMBER PRESIDENT
