CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 15th day of March 2014
PRESENT : SMT. SEENA. H, PRESIDENT
: SMT. SHINY. P.R, MEMBER
: SMT. SUMA. K.P, MEMBER Date of filing : 8/3/2013
CC / 51 / 2013
Muhamed Musthafa,
S/o. Mr. Hamza,
Murandiyil House,
Vazhempuram Post,
Karakurussi, Mannarkkad Taluk,
Palakkad – 678 595.
Rep. by Power of Attorney Holder and
Brother Mohammed Faizal,
S/o. Hamza, Murandiyil House,
Vazhempuram Post,
Karakurussi, Mannarkkad Taluk,
Palakkad – 678 595. : Complainant
(By Adv. K. Dhananjayan)
Vs
1. M/s. Manappuram Finance Ltd., Corporate and Regd. Office,
Manappuram House,
P.O. Valappad, Thrissur,
Kerala – 680 567.
2. The Managing Director/ Authorized Signatory,
Manappuram Finance Ltd., Corporate and Regd. Office,
Manappuram House,
P.O. Valappad, Thrissur,
Kerala – 680 567.
3. The Manager,
Manappuram Finance Ltd., Branch Office, Kodathipadi,
Mannarkkad, Palakkad Dt.
4. Binu (Staff),
Manappuram Finance Ltd., Branch Office,
Kodathipadi,Mannarkkad, Palakkad Dt.,
Presently working at Manappuram Finance Ltd.,
Branch Office, Vellan Road,
Sulthanpet, Palakkad – 678 001. : Opposite parties
(By Adv. K.N. Babu)
O R D E R
By Smt. Suma K P , Member
Brief case of the complainant is as follows:
Complainant herein is represented by his brother and power of attorney holder Mr. Mohammed Faisal by virtue of power of attorney dated 11/12/12 duly executed before the Attache, Embassy of India, Riyadh by the complainant. The complainant has availed a vehicle loan from the 3rd opposite party and entered into a hypothecation agreement dated 30/5/2007 with opposite party company for the purchase of a three wheeler transport vehicle for an amount of Rs. 1,14,000/-. 3rd opposite party is the branch office from where the complainant has availed the vehicle loan. As per the terms and conditions of Hire Purchase Agreement the said vehicle is given as security for the above loan. The complainant has to remit 48 EMIs to the tune of Rs. 4,635/- per month which will be completed on 28/2/2011. The complainant also submits that, apart from creating a charge and hypothecation on the vehicle it has been endorsed on the RC book of the vehicle belonging to the complainant. He was compelled by the opposite parties to hand over 20 (twenty) numbers of signed blank cheque leaves drawn on the Service Co-Operative Bank Ltd. , Alanallur. Meanwhile complainant got an employment in Gulf country, therefore before leaving India the complainant surrendered the vehicle to 3rd opposite party for the entire balance amount. Allegation of the complainant is that at the time of surrender the balance amount due to opposite parties is Rs. 41,992/- only and the opposite party promised that the vehicle will be sold in open market for maximum amount. On 15/6/12 complainant received notice from the opposite party stating that an amount of Rs. 2,05,015/- is due towards loan. The complainant submits that there is deficiency of service on the part of opposite party on the ground, even after surrendering of the vehicle and after paying Rs. 72,508/- there no logic or reasoning in such a demand. Complaint was admitted and notice was issued to the opposite parties for appearance. Opposite parties entered appearance and filed version contenting the following allegations;
The complaint is time barred under the provision of the limitation Act and is liable to be dismissed. The complainant had availed a vehicle loan from 3rd opposite party hire purchase agreement dated 30/5/2007 and repayment has to be made in 48 monthly installments. But the allegation that opposite parties forcefully compelled the complainant to hand over 20 signed blank cheques was denied by the opposite party. They had not obtained any blank documents for the purpose of granting the loan. The complainant has defaulted the payment of the monthly installment. So the 3rd opposite party requested the complainant several time to clear the arrears of monthly installments. But the complainant informed that due to financial problem he was not in a position to clear the dues, and he had surrendered the vehicle to the 3rd opposite party at Mannarkkad. The allegation in the complaint that the vehicle has been surrendered for the entire repayment of loan is incorrect. At the time of surrender of the vehicle, Rs.41,492/- was not the actual amount due under the Hire Purchase agreement. It was admitted that the opposite party has issued a demand notice to the complainant and his surety on 15/6/12 and the complainant has to pay an amount of Rs. 2,05,015/- towards Hire Purchase Loan account. The complainant is liable to clear outstanding dues under the Hire Purchase agreement. Even after surrender of the vehicle, the complainant has not cared to close the loan account. So the opposite parties sent notices requesting him to clear the dues and take back the vehicle. But the complainant has not paid any amounts to the opposite party towards the dues hence the opposite parties informed the complainant through registered notice about public auction of the vehicle. The auction details were published in Mathrubhumi Daily also. Before the auction, the vehicle was duly inspected by a licensed Surveyor and he has given a valuation report dated 28/1/2010. After inspection, the surveyor assessed the value of the vehicle as Rs. 45,000/-. Thereafter on 29/1/2010, the vehicle was sold in public auction for an amount of Rs.45,250/- and the sale proceeds of the vehicle was credited to the loan account of the complainant. Even after the adjustment of the sale amount, still there was a balance amount of Rs, 1,09,100/- due to the opposite party. The details of the amount obtained by the auction of the vehicle, and the balance amount due, were duly intimated to the complainant as per notice dated 22/2/2010. Even after the sale of vehicle, there is still balance amount due and the complainant is liable to pay the loan amount as agreed to in the Hire Purchase agreement. The opposite parties have been maintaining proper and correct account of the complainant. After the sale of the vehicle it was duly transferred in the name of the auction purchaser. According to the opposite parties, an amount of Rs.2,05,015/- is due from the complainant, and the opposite parties are entitled to recover the said amount. The complainant is not entitled to any relief prayed for in the complaint. The complaint is false , frivolous and vexatious and is filed with ulterior motive to escape from the liability to pay the amount legally due to the opposite parties. Hence the complaint has to be dismissed with cost. Opposite parties also filed an additional version stating that according to the Clause 21 of the Hire Purchase Agreement “all disputes and differences between the said parties in relation to this agreement shall be referred to the sole Arbitrator, hereby mutually agreed by the said parties, who decision shall be final and binding on the said parties”. The opposite parties filed an Arbitration Case as AP No. 309/2012 before the Arbitrator, Thrissur. In the above circumstances, the above complaint is not maintainable before the Forum. Since the opposite parties filed additional version complainant filed rejoinder stating that as per Section 3 of the Consumer Protection Act provides that the remedies under Consumer Protection Act is in addition and not in derogation of any other statutes. This is an established position of law. Existence of an Arbitration Clause will not cease jurisdiction of this Forum.
Issues to be considered are:
- Whether the complaint is maintainable?
- Whether there is any deficiency of service on the part of opposite party?
- If so, what are the reliefs to be granted?
Both parties filed their respective affidavits. Opposite party filed application to cross examine the complainant. Complainant filed objection hence application dismissed with liberty to file interrogatories. Opposite parties filed questionnaire for which complainant filed answers. Complainant filed petition for production of Account Statement maintained by opposite parties. Application was allowed and documents was produced. Ext. A1 to Ext.A8 Series was marked on the part of complainant. Ext. B1 to Ext. B11 was marked on the part of the opposite parties. Complainant filed an application to examine the Surveyor and the Surveyor was examined as PW1.
Matter was heard. We have perused relevant documents and the affidavits produced before the Forum. Opposite parties contented that since there is arbitration proceedings this Forum does not have jurisdiction to try this case. The existence of another remedy is not a bar to the jurisdiction of the machinery as it could be gathered from Section 3 of the Act which provides that the provisions of this Act will be in addition of the provisions of any other law for the time being in force. The complainant claims that he has availed of a service from the opposite parties and that there was deficiency in such service. The Surveyor was examined as PW1 had deposed to the effect that the vehicle fetches a market value of Rs.1,20,000/- and at the time of inspection it has covered 39,291 Kms. He had inspected the vehicle on 28/1/2010 and he had assessed the market value of the vehicle as Rs. 45,000/-. The reason for his assessment was not specifically stated or detailed in the report. He has stated that the amount was fixed on the basis of maintenance of the vehicle . Vehicle could not be started, since it was kept idle. He also stated that vehicle was not well maintained. Hence he has stated the present condition of the vehicle as Average in his valuation report which was marked as Ext.B6. Opposite parties had admitted that the vehicle was sold in auction for an amount Rs. 45,250/-. According to the opposite parties as on the date of surrender of the vehicle an amount of Rs. 86,724/- was due from the complainant. After surrender of the vehicle the opposite party sent notice to the complainant to clear the dues and take back the vehicle but the complainant does not respond to the said demand. The vehicle was surrendered on 10/12/2009 and on 29/1/2010 the vehicle was sold in public auction for an amount of Rs. 45,250/. After adjusting the said amount towards the loan account there was a balance of Rs. 1,09,100/-. Since the complainant had failed to settle the loan account, the opposite party issued notice demanding the balance loan amount. According to complainant vehicle has been surrendered for the entire repayment of loan and outstanding dues as on 2/9/2009 which amounting to Rs. 41,492/- and the vehicle was sold for an amount of Rs.45,250/-. Hence there is no liability to the complainant and no amount is due towards the opposite parties. Opposite parties produced Ext.B11, the Account Statement maintained on complainant’s account showing that an amount of Rs.2,05,015/- is due from the complainant. Settlement of accounts is purely a dispute of civil nature and it has to be determined before a Civil Court for which Arbitration proceedings are pending. The complainant had contented that the assessment of the Surveyor is not legally correct. Learned Counsel for the complainant submits that the value of the vehicle shall be determined by calculating the depreciation not less that 50% according to the provisions of Income Tax Act. But the said argument shall be applicable only for the purpose of Income Tax Act for the assessment of income, under the source of income based on business or profession , and shall not be applicable in this context. Vehicle was sold on 29/1/2010 but opposite parties had issued notice to the complainant demanding him to remit Rs. 2,05,015/- on 15/6/2012, showing that amount is pending still now. Soon after the auction on 22/3/10 opposite parties had issued a Demand Notice calling upon the complainant to repay the balance amount. But the notice returned as “unclaimed” which is evident from Ext.B.8. The next question to be determined is whether there is any deficiency in service. The complainant would content that there is one, but the opposite parties very strongly stated that the complainant is a defaulter and if there is any deficiency it is from his side. It is alleged by the complainant that there is serious irregularities in the Account Statements maintained by the opposite parties which was marked as Ext. B11. Yet another aspect stressed by us is that where a case involves complicated questions of facts requiring detailed examination of several witnesses and necessitates also the scrutiny of books of account and settlement of accounts between the parties the more appropriate remedy to be restored to by the parties is to approach a Civil Court for adjudication of such issues. But on perusal of Ext.B11 which is a Account Statement produced by the opposite parties clearly shows that there is error apparent on the face of its record. This is a fit case where the principles of res ipsa loquitur applies, wherein the document speaks for itself. From Ext. B11 it is obvious that the opposite party had charged additional financial charges as Rs. 89,570/-, Rs.7,081/- etc. for which there is no clarification for which it was charged, which according to our opinion amounts to deficiency of service and unfair trade practice. It is the right of each consumer to be informed about the quality, quantity, potency, purity, standard and price of goods (or services, as the case may be), so as to protect the consumer against unfair trade practices, as per Section 6 (b) of Consumer Protection Act, 1986. Hence opposite party failed to explain the reasons for which the above amount is claimed from the complainant which according to our opinion amounts to deficiency of service and unfair trade practice.
In respect of any complaint regarding deficiency of service, it is sufficient for the complainant to specify the deficiency therein. In other words, there is no requirement that the complaint regarding deficiency in service must also indicate the loss or damages suffered by the complainant due to that deficiency.
The reliefs, which a Consumer Disputes Redressal Forum can grant, are specified in Section 14. As per Section 14 (1)(d) it is for the Consumer Forums to pay an appropriate amount by way of compensation to a consumer for any loss or injury suffered by him due to the negligence of opposite party. In other words it is not mandatory or obligatory on the part of the complainant to ask for a specific relief and the Consumer Forums are not debarred from granting reliefs not prayed for by the complainant in the complaint (District Manager, Telephones, Patna Vs Tarun Bharathuar (1991 1 CPR 171)).
In the view of above discussions, complaint is partly allowed. We direct the opposite parties to pay an amount of Rs. 1,00,000/- (Rupees one lakh only) as compensation to the complainant along with Rs. 2,000/- (Rupees two thousand only) as cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.
Pronounced in the open court on this the 15th day of March 2014
Sd/-
Smt. Seena. H
President
Sd/-
Smt. Shiny. P.R
Member
Sd/-
Smt. Suma. K.P
Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1 - Notice (original) sent by the opposite party to the complainant dated 15/6/2012.
Ext.A2 - Copy of Certificate of Registration (of complainant’s vehicle).
Ext.A3 - Copy of Lawyer Notice sent by the complainant to opposite parties.
Ext.A4 - Copy of Lawyer Notice sent by the complainant to 4th opposite party dated 3/8/2012.
Ext.A5 - Copy of Complaint submitted by the complainant to The Sub Inspector of Police, Mannarkkad.
Ext.A6 - Copy of Complaint submitted by the complainant to R.T.O, Mannarkkad.
Ext.A7 - Power of Attorney executed in favour of the complainant.
Ext.A8 series - Cash Bills (original) issued by the 1st opposite party to the complainant.
Exhibits marked on the side of opposite parties
Ext.B1 - Original Letter of surrender of vehicle dated 18/12/2009.
Ext.B2 - Copy of Letter sent by the opposite party to the complainant dated 23/12/2009.
Ext.B3 - Copy of Letter (intimation of auction sale) issued by the opposite party to the complainant dated 11/1/2010.
Ext.B4 - Sale Agreement dated 4/2/2010.
Ext.B5 - Copy of Notice (intimation regarding sale of asset) issued by the opposite party to the complainant dated 22/2/2010.
Ext.B6 - Vehicle Valuation Report assessed by the Surveyor (original).
Ext.B7 - Paper publication in Mathrubhumi Daily regarding the auction of vehicle dated 28/1/2010.
Ext.B8 - Unclaimed Letter sent by the opposite party to the complainant dated 22/3/2010.
Ext.B9 - Memorandum of Association (original) of opposite parties.
Ext.B10 - Certificate of Registration (copy).
Ext.B11 - Statement of Account (original) maintained by the opposite parties in the name of complainant.
Witness examined on the side of complainant
PW1 - Ananthakrishnan. R
Witness examined on the side of opposite parties
Nil
Cost allowed
Rs. 2,000/- (Rupees two thousand only) allowed as cost of the proceedings.
