D.O.F. 17.10.2008
D.O.O.2.1.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 2nd day of January 2012.
C.C.No.228/2008
K.K.Abdul Muthalib,,
Shahida Manzil,
401/8, Chakkarakkal, Post Mamba.
Rep. by PAH Rasiya,
W/o/AbdulMuthalib,
Vannankandy Keloth,
Post.Mamba, Kannur Dist. Complainant
(Rep. by Adv.Ajithkumar kattampalli)
M/s.Mahindra and Mahinra Financing
Service Ltd., 2nd floor,
Emarald Shopping Centre,
Kakkad Road,
South Bazar, Kannur 2.
(Rep.by Adv. Joe George) Opposite party
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to refund `1,65,000 with 12% interest from the date of sale and to return the cheque leaves and other documents and also to pay `25,000 as compensation together with the cost of litigation.
The brief fact of the case of the complainant is as follows: Complainant was the owner of the Max Pickup KL.13M3971 complainant availed a loan for a sum of `3, 40,000 on 18.1.2005. The agreement value was `4, 16,250. Due to financial stringency complainant failed to pay two or three installments in time. The vehicle was repossessed on 15th March 2008 and opposite party sold the vehicle in auction for an amount of `2, 65,000. Opposite party issued a pre-sale notice dated 8.5.2008 to the complainant but no notice was issued after conducting the sale auction. Complainant is entitled to get back an amount of `1, 65,000 since he has only owed `1 lakh to pay to opposite party. As per agreement complainant is liable to pay last installment only in the month of November 2008. Since the opposite party received the entire amount well in advance, the complainant is entitled to get some cash incentives and entitled to get back the documents and deposited cheque leaves. Opposite party did not fulfill their legal obligation yet. Hence this complaint.
Pursuant to the notice opposite party made appearance and filed version contending as follows: Complainant has availed loan of `3,00,000 for purchasing the said vehicle. The averment that complainant had been regularly paying the loan installment is false. He was highly irregular. He had even parted with the vehicle to 3rd person at Mysore without intimating and obtaining consent form. In fact the vehicle was once repossessed by the opposite party due to default in payment of installments. But the vehicle was released and thereafter he parted with the possession of the vehicle to a third party at Mysore and left India to defraud the opposite party company. Subsequently the vehicle was traced out by the opposite party and in order to avoid criminal prosecution the guarantor/Power of Attorney holder of complainant and other relatives agreed to surrender the vehicle from a third party’s premises at Mysore. On the date of repossession the amount due were `56,275. The post sale notice was issued both the complainant and his surety. The post sale notice to surety returned on account of refusal. In fact pre sale and post sale notices were sent to the complainant. The averment that the complainant is entitled to get `1, 65,000 since the total amount owed is only
`1, 00,000 is incorrect. It is a baseless allegation that the opposite party received the entire amount in advance and he is entitled to get incentives and an amount of `1, 65,000 are false and baseless. The complainant did not deposit cheque leaves and other documents as alleged in complaint. The balance amount could not be paid due to his non availability in India. The amount payable to the complainant as per the terms of the agreement entered into between the complainant and the opposite party’s company is `78,444. The wife of the complainant was approached the opposite party but since she had no proper authorization she could not receive the documents and the amount. This fact was intimated to complainant’s advocate by the reply notice dated 9.7.2008. Opposite party is ready to pay the balance amount and document. There is no deficiency in service on the part of opposite party. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency on the part of opposite
Party?
2. Whether the complainant is entitled for the remedy as
prayed in the complaint?
3. Relief and cost.
The evidence consists of the oral testimony of PW1, DW1 to DW3, Exts.A1 to A6 and B1 to B14.
Issue Nos.1 to 3
Admittedly complainant availed loan from opposite party for an amount of `3,40,000 for purchasing the Max Pic-Up KL.13M.3971 on 18.1.2005. The main allegations of the complainant is that since there was default in payment of last two or three insalments, the vehicle was repossessed by opposite party on 15.3.2008 and sold for an amount of `2,65,000. Presale notice dated 8.5.2008 issued but no notice after conducting the sale auction. He owed `1lakh so he is entitled to get `1,65,000.
On the other hand opposite party contended that was highly irregular in payment of installments. He had even parted with vehicle to 3rd person at Mysore without intimation and consent. Earlier to this also the vehicle was repossessed due to default in payment but released. It is thereafter the vehicle was with 3rd party at Mysore and he left India to defraud the opposite party company. Subsequently when opposite party traced the vehicle the guarantor and other relatives in order to avoid criminal prosecution agreed to surrender the vehicle from third parties premises. On the date of repossession the amount due was `56,275.The averment that he is entitled to get an amount of `1,65,000 and the total amount owed to opposite party is only `1,00,000 is not correct. Pre sale and post sale notices were sent to complainant. The amount payable to complainant as per the agreement is `78,444. Opposite party was ready to pay the balance amount and documents but complainant was out of India.
PW1 complainant adduced evidence by way of affidavit evidence in tune with the pleadings. He has stated that complainant is liable to pay `4,16,250 including interest by 47 installments. He adduced evidence that because of the financial stringency due to repeated repairs and of lack of order committed default of two three installments. He further continues that because of this reason opposite party repossessed the vehicle on 15.3.2008 and auctioned later for a sum of `2,65,000. The vehicle was 2005 model and the price of the vehicle then was
`4, 00,000. At the time of repossession the vehicle was 3 years old.
The opposite party had contended that the vehicle was once repossessed due to default in payment of installments and subsequently released. PW1 stated nothing about this fact. The evidence of PW1 by way of affidavit stated thus: “cvaq¶p AS-hp-IÄ ka-b-¯n\p HSp-¡m³ ]än-bn-cp-¶nÔ. Nothing has stated about the repossession done earlier. It shows the contention of opposite party with regard to first repossession is true. Complainant did not say what exactly the amount due. He has mentioned two or three installments are to be paid. He is not definite of the exact amount due. PW1 also adduced evidence that opposite party told them that for 2004-2005 model will get a price `3 lakh to `3.30 lakh and after deducting the due amount `1 lakh the balance will be given after the sale. PW1 and the wife of complainant given consent to that since there was no other way out. He further stated that after the sale no communication was sent to complainant. Since there was no communication the wife of complainant and himself approached the opposite party after two months. At that time opposite party told them the vehicle auctioned for `2,65,000 and after deducting the due `1,70,000 will be returned to complainant immediately after getting approval from Head office. But there was no communication thereafter. So they sent lawyer notice. In the evidence of PW1 itself it can be assumed that complainant has committed default not only as stated by complainant but there was default and repossession in earlier occasions also. PW1 as per the pleadings is not sure of the actual liability and moreover the surety and the wife of complainant has accepted the proposal of opposite party that the price of the vehicle supposed to get from the sale would be `3 lakh to `3.10 lakh and to get the balance amount after deducting the due amount of `1 lakh. However, stated in chief affidavit that complaint is entitled for `1,65,000 after deducting the dues from the auction amount. His further demand is for cheque leaves and documents.
As per the contentions of opposite party the balance with them to be paid to complaint is `78,444. This admitted amount had already been paid pending these proceedings. Opposite party has also agreed to return the documents available with them. PW1 in his cross examination admitted that Ext.B3 is the letter. Complainant has written in Ext.A3 thus “ 2,45  IqSp-X Bcp-T-]-d-bp-¶nÔ. Ext.A3 dated 25.9.2007. In the re-examination he had made it clear the letter was written from the office of the Mahindra Company for the purpose of releasing the vehicle. When the vehicle was repossessed earlier. In cross examination he has deposed that “ Ext.B3 kz-ta-[bm Fgp-Xn-sIm-Sp-¯-XmsW¶p-]-d-ªm i-cn-b-Ã. Ah-cpsS t{]c-WmÀ°T Fgp-Xn-sIm-Sp-¯-XmWv”. The evidence shows that the letter B3 was written in the office of the company. Under the then prevailing circumstances so as to get the vehicle released, complainant naturally might have guided by opposite party to write such a letter.
DW1 in cross examination deposed that ‘ Cu hml-\-T- C-Xn-\p-ap¼v surrender sNbvXn-cp-¶nÃ. Repossession charge F¶p ImWn-¨Xp hn surrender sNbvX NmÀÖm-Wv. hn surrender sNbvX-Xnsâ tcJ office  Dv. tImS-Xn-bn lmP-cm-¡n-b-«nÔ. The surrender if true that document would have been produced by opposite party. DW1 also deposed in cross examination that “ pre-sale notice ]cm-Xn-¡msâ `mc-y¡v Ab-¨-Xm-Wv. Bb-Xn F{X IpSn-Èn-I-sb¶p Fgp-Xn-bn-«nÔ. It reveals opposite party has not disclosed what is the actual due amount to complainant. DW1 further deposed “tFähpT DbÀ¶ quotationemWv hn sImSp-¡p-¶-Xp.-R-§Ä hn¡v ASn-Øm-\-hne IW-¡m-¡m-dp-v.-B-bXp hnbpsS condition A\p-k-cn¨v surveyorBWv IW-¡m-¡p-¶-Xp.-A-Sn-Øm\ hne D¯-c-¯ntem affidavit tem F{X-sb¶p ]d-ªn-«nÃ. Survey report l#mP-cm-¡m-Xn-cn-¡m³ Imc-W-an-Ã. ExtA1 tFXp ]{X-¯nÂ]-c-k-y-T-sN-bvXp-F-¶-]-d-bm-Xn-cn-¡m³ Imc-W-anÃ. Ext.B11epT, B13 epT hn F{X cq]-¡mWv hnä-sX¶p ]cm-aÀin-¨n-«n-Ã. _m¡n- k-T-Jy ssI¸-äm³ ]dªv notice Ab-¨n-«n-Ã. ]cm-Xn-¡m-c\p _m¡n In«m-\p-ff XpI-bpsS am\-Z-ÞT F§-s\-bm-sW-¶p-tc-Jm-aq-e-T-A-dn-bn-¨n-«n-Ã…….-]-cmXn¡mc³-Hcp e£-¯n-\p-Xmsg XpItb AS-¡m-\p-f-fq-F-¶p-]-d-ªm icn-b-Ã. correct Bbn«v F{X F¶p And-bnà ”.
Opposite party did not disclose the actual auction amount, so also no where it is stated the actual due amount complainant owed to pay to opposite party. What he has stated in chief affidavit is thus:FXr-I£n Øm]-\-¯n\p \ÂIm-\p-ff kT-J-y-I-gn¨v _m¡n kT-J-y-bmb 78444 cq] ]cm-Xn-¡m-c³ XncnsI sImSp-¡m³ FXr-I£n Øm]-\T Hcp-¡-am-bn-cp¶p”. What is the amount due and what is the amount received from the auction are kept undisclosed. It is an admitted fact that after the sale no intimation/notice has been given to complainant, whatever mode may be, with respect to the particulars of sale amount, due amount and balance amount etc. It is a clear deficiency on the part of opposite party whatever may be the latches seen on the side of complainant. Complainant has the right to know what the sale amount of the vehicle is. The interested testimony of DW1 cannot patch the hole by merely saying quotation had given for `2,09,000 and he got vehicle for that amount, without producing the receipt. If it was true the receipt could have been produced. He has given evidence that he is having the receipt in his hand but not produced even later. So that fact remains suppressed as an element of unfair trade practice. Opposite party has the legal liability to inform the complaint the actual sale amount, which the opposite party failed to do.
Complainant has specifically taken the plea that once the opposite party told them that the vehicle was sold for `2,65,000 and after deducting the amount due the complainant will get around `1,70, 000. It is pertinent to note that the actual facts with respect to the sale as well as dues are best known to opposite party only. Hence the opposite party has the legal burden to bring this fact before the Forum so as to find the final solution. But opposite party has not discharged his burden to bring out those facts which goes against the case of opposite party. The opposite party has stated in version that
“In fact as on the date of repossession a sum of `56,275 was due to respondent company from the complainant”. In other words according to opposite party at the time when the vehicle was in the hands of opposite party the liability of complainant was `56,275 opposite party has not mentioned actual subsequent dues of the complainant anywhere. Opposite party has taken the plea that in fact both the pre-sale and post sale notices were issued to complainant. But there is no evidence to show that post sale notice was issued to complainant. It can also be seen that DW2 in cross examination deposed that “ Ext.B11 F{X-cq-]-¡mWv hn hnä-sX¶p Fgp-Xn-bn-«n-Ã.And also deposed ]cm-Xn-¡m-c-\-b-¨ -a-dp-]Sn t\m«o-kn ]cm-Xn-¡m-csâ hn F{X cq]-¡mWv hnä-sX-¶p-]-d-bm-Xn-cn-¡m³ {]tX-y-In¨v Imc-W-an-Ã. Thus it is clear even after getting the legal notice opposite party did not disclose the amount for which the vehicle was sold. Complainant has specifically alleged in Ext.A2 lawyer notice that opposite party has sold the vehicle in auction for an amount of `2,65,000. Opposite party ignored to answer this allegation in his reply. Complainant has also alleged that as per the loan agreement he needs to pay more installments that too within November 2008 which would come around `1 lakh only. It was also alleged that no notice was issued after conducting the sale of the vehicle. These are all reasonable questions the complainant entitled to get answer from opposite party but opposite party failed to give satisfactory answer. When it is specifically alleged that vehicle was auctioned for an amount of `2,65,000 and opposite party kept silent without discharging the legal obligation to intimate the actual amount of auction sale to complainant, it can be assumed that the vehicle might have been sold for an amount not less than `2,65,000. So also in the case wherein complainant specifically alleged that as per agreement the due amount would come around one lakh the silence and non furnishing of liability details amounts to admission that the amount liable to pay is only less than `1,00,000. Hence we are of opinion that opposite party is liable to return `1,65,000 to complainant. Opposite party has already paid `78,444 towards the balance amount. So at present opposite party has to pay the remaining balance amount `87,000 to the complainant.
Considering the facts and circumstances together with the evidence adduced by respective parties we hold that there is deficiency in service on the part of opposite party. But we are not awarding compensation and interest since there is default on the side of complainant in payment of installments and also taking into account the fact that opposite party has already paid `78,444. It is ordered to pay `87,000 as remaining balance amount to complainant together with an amount of `1000 as cost of this litigation. Hence issues 1 to 3 are found partly in favour of complainant.
In the result, the complaint is allowed partly directing the opposite party to pay a sum of `87,000 (Rupees Eighty Seven thousand only) as remaining balance liable to be paid and an amount of `1000 (Rupees One thousand only) as cost of this litigation within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of consumer protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1.Letter dt.8.5.2007 issued by OP
A2. Copy of the lawyer notice sent to OP.
A3.Reply notice
A4. Passbook issued from UCO Bank
A5.Receipts issued by OP
A6.Power of Attorney
Exhibits for the opposite parties:
B1.Copy of the application form submitted by complainant before OP
B2.Loan agreement
B3.Letter dt.25.9.07 sent by complainant
B4 to B8. Quotations dt.12.5.08 and13.5.08.
B9.Affidavit
B10.Copy of the passport
B11.Copy of the letter sent to complainant and PAH
B12. Postal receipts.
B13.Returned envelope sent to Raziya
B14.Statement of account maintained by OP
Witness examined for the complainant
PW1.Complainant
Witness examined for the opposite parties
DW1.Biju Thomas
DW2.Sivadas
DW3.Haridasan V.N
/ forwarded by order/
Senior Superintendent
