DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 31st day of August 2019
Present : Smt.Shiny.P.R, President
: Sri. V.P.Anantha Narayanan, Member Date of Filing : 25/11/2014
CC/185/2014
Alavi, S/o.Muhammed,
5/115 Karikkumpurath Veedu,
Paral, Thootha P.O,
Aliparamba Grama Panchayath, - Complainant
Perinthalmanna, Malappuram.
(By Advs.P.Narayanankutty & K.Dhananjayan)
Vs
1. M/s.Shriram Transport Finance
Co. Ltd, Administrative Office,
101-105 Shiv Chambers,
Sector 11, C.B.D, Belapur,
Navi Mumbay 400 614
2. Managing Director / Authorised - Opposite parties
Signatory
M/s.Shriram Transport Finance
Co. Ltd, Administrative Office,
101-105 Shiv Chambers,
Sector 11, C.B.D, Belapur,
Navi Mumbay 400 614
3. Branch Manager/Authorized
Officer,
Shriram Transport Finance
Co. Ltd, 2nd Floor,
Sunshine Complex,
T.B.Road, Palakkad.
(By Adv.B.Kamal Chand)
O R D E R
By Sri.V.P.Anantha Narayanan, Member
Brief facts of the complaint are mentioned below.
The complainant is a driver by profession and was working in a lorry owned by his neighbour. On 29/07/2009 he purchased a TATA SFC 407 bearing registration number KL-53/A-7365 2009 model by availing financial assistance from the opposite party. The complainant and his family are eking out their livelihood by running the said vehicle for self employment. The complainant has no other source of income for subsistence of his family. While availing the financial assistance, the opposite party had obtained the signature of the complainant in various papers including blank sheets. The complainant had secured Rs.4,60,000/- for purchasing the above said vehicle and it was agreed to repay the said amount in 36 equal monthly instalments with 10 % interest p.a. According to the complainant the total amount to be repaid including the principal amount of Rs.4,60,000/- and the interest thereon at of 10% p.a for 36 months divided into 36 equal monthly instalments to be paid each month. The complainant submits that as per the terms he has to repay the loan amount i.e Rs.4,60,000/- principal amount plus Rs.1,41,063/- including interest and other charges (totally amounting to Rs.5,99,656/-) in equal 36 monthly instalments of Rs.16,657/- each. During the repayment the complainant was directed by the opposite parties to pay monthly amount more than the actual due amount of Rs.16,657/- only. According to the complainant such a demand of the opposite parties is against the terms agreed between the two parties and is unreasonable and unfair. Except on two or three occasions complainant had repaid the loan amount regularly without any default. The complainant pleads that the amount of interest @ 10% p.a upon the principal amount of Rs.4,60,000/- is computed for 36 months and therefore complainant is entitled to repay the loan in 36 monthly equal instalments of Rs.16,657/- per month only. The demand of the opposite party to pay an amount exceeding Rs.16,657/- per month is unjustifiable and deficiency in service and unfair trade practice on the part of the opposite parties. Complainant further pleads that he has repaid the loan instalments regularly, even then the opposite parties have forcibly seized the vehicle while running without any prior notice. The forcible repossession of the vehicle is carried out by the opposite parties without obtaining any lawful orders from any Legal Authorities or from Courts or Tribunals. According to the complainant the opposite parties have done all ultra-virus acts by flouting the laws. Therefore the complainant approached the opposite parties to clear the dues and take back the vehicle, for which purpose complainant had applied for detailed account statement showing all the transactions. The complainant is legally entitled to take back the vehicle after clearing all dues and the opposite party is legally bound to release the vehicle to the complainant after payment of the dues. According to the complainant the opposite parties have neither issued a copy of the detailed account nor release the vehicle to the complainant after receiving the dues. The opposite party has no right to dispose the said vehicle without giving proper notice to the complainant. This action of the opposite party is a deficiency in service. Then the complainant contacted the opposite parties several times to get proper statements of account relating to the said vehicle but the opposite parties were evasive many a time citing silly reasons. On further demand the opposite party insisted to pay Rs.4,44,606/- as on 07/10/2011. The complainant asked for statement of account again but the opposite party did not give him. After 07/10/2011 complainant approached the opposite party several times and the complainant came to know that the seized vehicle (KL/53/A-7365) was sold without giving notice to the complainant who is the RC owner, which according to the complainant is totally against settled rules and laws of the land. The opposite party also sent a demand notice on 25/09/2013 to the complainant asking the latter to pay Rs.82,686/- without furnishing details of account. According to the complainant he has already remitted Rs.2,58,214/- against the loan amount of Rs.4,60,000/- and the opposite party might have sold the vehicle for a very meager amount. If it has been done so, it is clearly illegal and the opposite parties have committed most gruesome torts. The opposite parties have not intimated the auction details and by selling the disputed vehicle for a very meager amount the complainant had suffered huge loss. According to the complainant, the seized vehicle from the complainant would fetch higher price considering the model and condition of the vehicle. These opposite parties have not followed the tender and bidding regulations and as a result complainant has sustained huge loss. After the repossession of the vehicle, the complainant believes that the entire matter and the dispute is settled. But the opposite parties have sent him a demand notice on 25/09/2013 through their advocate demanding the complainant to pay Rs.82,686/- in connection with the loan transaction of the vehicle. This notice also shows information about the appointment of an arbitrator under the Arbitration and Conciliation Act. According to the complainant there is no justification for this notice and therefore the complainant is not liable to pay Rs.82,686/- demanded by the opposite parties and the amount arrived at and demanded by the opposite parties is the result of malpractice and unfair trade practice. Therefore the complainant approached the Hon’ble Forum to seek a relief and to order that the opposite parties are not at all entitled legally to collect and recover the amount from the complainant. The complainant has not sought any relief except approaching the Hon’ble Forum to redress his grievance. In order to get justice to the complainant against the opposite parties, the complainant has approached this Hon’ble Forum and filed a complaint. It is humbly prayed that this Hon’ble Forum may be pleased to issue a notice to the opposite parties and order that opposite parties are not entitled to get Rs.82,686/- and interest and to quash the notice dated.25/09/2013 issued by the Advocate on behalf of the opposite parties. Apart from that complainant is entitled to get compensation for Rs.1,00,000/- towards mental agony due to deficiency of service and unfair trade practice committed by the opposite parties. Complainant also prays to this Hon’ble Forum to direct the opposite parties to pay Rs.10,000/- as cost of this litigation to the complainant.
The complaint was admitted and notice was sent to the opposite parties to enter their appearance and file their versions. In the version jointly filed by the opposite parties it is contended that the complaint is filed experimentally and to harass the opposite parties. The opposite parties deny all the averments in the complaint except those admitted. According to these opposite parties the complainant is not a consumer envisaged under the Consumer Protection Act and the person who has signed complaint has no locus standi to file the complaint.
The averment in the complaint that complainant is a driver by profession and was working in the lorry owned by his neighbour is denied by these opposite parties and has to be proved by the complainant. The further averment that on 29/07/2009 the complainant purchased a TATA SFC 407 bearing registration number KL-53/A-7365 2009 model by availing financial assistance from the opposite parties and he is earning livelihood by running the said vehicle for self employment are totally wrong. According to these opposite parties the complainant is not at all using the vehicle by way of self employment. The averments that complainant has no other source of income and while availing the financial assistance the opposite party has obtained complainant’s signature in various papers including blank papers are totally false. According to these opposite parties they did not have a practice of getting signed in blank papers. The complainant obtained a financial assistance for Rs.4,60,000/- and agreed to repay it in 36 monthly instalments with 10% interest and rest of the averments in that paragraph are totally incorrect. The averments that the complainant was bound to pay the agreed value in 36 monthly instalments and the complainant was directed to pay more than the agreed amount by the opposite parties are wrong, the complainant used to pay the monthly instalments correctly except on two or three occasions is also totally false. The further averment that the complainant is bound to pay 36 monthly instalments of Rs.16,657/- each and the demand to pay more than that by the opposite parties is deficiency in service are totally false and denied by these opposite parties. The further averment that even though the complainant used to pay the monthly instalments regularly the opposite parties seized the vehicle are totally false and hence denied by these opposite parties. The further averment that complainant approached the opposite parties for getting the account statement is also denied by these opposite parties. The submission that the complainant is legally entitled to get back his vehicle after clearing the dues is wrong. After the seizure the complainant contacted the opposite parties to get the statement of account, which was not met by them and the opposite parties insisted to pay an amount of Rs.4,44,606/- on 07/10/2011 is totally false. Also the averment that complainant approached the opposite parties several times and after that he came to know that the vehicle was sold without giving a notice to the complainant is totally false and further on 25/09/2013 a notice was issued to the complainant demanding Rs.82,686/- and the complainant had remitted Rs.2,58,214/- and the opposite parties have sold the vehicle for a meager amount and the allegations in the rest of paragraph numbers 6 & 7 are totally false. The allegation that complainant is not bound to pay Rs.82,686/- and that demand itself amounts to deficiency in service and unfair trade practice etc. are totally false and denied by these opposite parties. There is also no legal justification for the claim for the mental agony. The relief prayed for by the complainant is not at all allowable and he is not entitled to get any relief prayed for. The true facts are; the complainant as a borrower along with Mr.Ayappan entered into a loan cum hypothecation agreement with the opposite parties on 29/07/2009 for purchasing a TATA SFC 407 vehicle with registration number KL-53-A-7365. The amount advanced to the complainant was Rs.4,60,000/- to be repaid in 36 monthly instalments along with interest, processing charges etc.and the total amount to be repaid by the complainant is Rs.5,99,656/-. The complainant is bound to pay delayed payment charges in case of default in payment of monthly instalments and also the complainant is bound to pay the processing fees and financial charges; as per the terms of the agreement the complainant is liable to pay overdue charges and other penal amounts in case of delayed monthly payment of the instalments and as per the loan agreement the complainant is bound to pay delayed payment charges at 3% per month for the defaulted amount in the event of any delay or default in the payment of monthly instalments on the due dates or insurance premium on the due date. The opposite party has never insisted to give any blank signed papers and had not obtained them. The opposite party does not have a practice of getting signed blank papers from its customers. The complainant was never a prompt payer but, he was a chronic defaulter. The complainant used to pay amount to the loan account but never paid the monthly instalments correctly and fully. He used to pay the amount as and when he thinks to pay, he never paid the amount within the monthly due date and he used to keep arrears of monthly instalment also. Because of irregular payment complainant is also liable to pay the delayed payment charges. Since the amount pending towards the loan accrued, the officials of the opposite party several times approached the complainant and the guarantor Mr.Ayappan for repayment of the loan amount. Even after the repeated demands of the opposite party, they were reluctant to pay the loan amount. After repeated requests to pay the amount the complainant contacted the opposite parties in September 2011 and told his inability to pay the monthly instalments and surrendered the vehicle to the opposite parties and directed them to sell the vehicle at the best available market price and also directed the opposite parties to adjust the same to the loan account and further undertook that he will pay the amount, if any which is in arrears. The opposite parties also contend that after complying with all the legal formalities the opposite parties gave advertisement with regard to sale of the vehicle in a daily named “Thuranna Kathu” dated.13/10/2011 and the vehicle was sold at the best available market price in December 2011 and the auction amount was appropriated to the loan account. Even after that there is a balance of Rs.82,686/- due from the complainant towards the loan account to the opposite parties. The complainant is legally liable and bound to pay the amount which is still pending towards the loan amount, but instead the complainant with ulterior motive approached the Hon’ble Forum to get unjust benefits. The complainant is still liable to pay Rs.82,686/- to the opposite parties towards the loan amount and he is claiming that he had paid the amount and he is entitled to get back the vehicle from the opposite party. The relief prayed for by the complainant is not at all allowable. The complainant has come with unclean hands and he is trying to mislead this Hon’ble Forum to get unjust benefits to harass the opposite party. This cannot be admitted because a person who is liable to pay more than Rs.80,000/- claims that he is entitled to get back the vehicle from the opposite party. He has purposefully suppressed the material facts and submitted those which are false and misleading. As per the loan agreement the complainant is bound to pay the above mentioned amount along with interest till this date. Without paying that amount he is claiming huge amounts from the opposite party which cannot be allowed on any terms. There is no deficiency in service or unfair trade practice on the part of the opposite parties and the opposite parties have done all activities as per the loan agreement and under the provisions of law.
In the additional version filed by the opposite parties in the above matter, these opposite parties deny complainant’s averment that he has never surrendered the disputed vehicle nor asked the opposite parties to sell the vehicle at the best available market price and adjust the loan amount and never undertaken to pay the amount if any arrear amount is there. The complainant has surrendered the vehicle and requested the opposite parties for selling the same and also to adjust the said amount towards the loan amount. The vehicle was surrendered by the complainant because the amount pending towards the loan amount accrued and the officials of the opposite party several times approached the complainant and the guarantor. After that they (the complainant and the guarantor) requested the opposite parties to sell the vehicle at the best available market price and the same was sold after complying all legal formalities and the amount was adjusted towards the loan amount and they further undertook that they will pay the balance amount due towards the loan account. Since the complainant requested for time for payment the opposite parties waited and even after that the complainant and the guarantor did not pay the amount. Hence the opposite parties initiated arbitration proceedings against the complainant and the guarantor. The opposite parties have initiated arbitration proceedings as ARC:274/2013 which is pending now. The opposite parties are entitled to get Rs.82,686/- and interest from the complainant and the guarantor towards the loan amount. As per the loan agreement the complainant and the guarantor are bound to pay the said amount along with interest and penal charges and financial charges. Hence it is prayed that this Hon’ble Forum may be pleased to accept the version and additional version of the opposite parties and dismiss this complaint with heavy costs to the opposite parties.
Complainant filed chief affidavit and additional affidavit so also the opposite parties. Complainant filed IA/392/15 to cross examine the opposite party. Since no counter in IA/392/2015 was filed IA was allowed. From the side of the complainant Exts.A1 to A16 were marked, and from the side of the opposite parties Exts.B1 to B9 were marked. Opposite party was cross examined as DW1. Complainant and the opposite parties were heard.
The following issues come up in this case for consideration by this Forum.
- Whether there is any deficiency in service from the side of the opposite parties?
- If so, the relief and cost which the complainant is entitled for t?
Issues 1 and 2 in detail
The complainant has filed Exts.A1 to A16 to prove his pleas. Exts.B1 to B9 are produced by the opposite parties before this Forum to defend their contentions. Ext.B1 is the Power Of Attorney executed by Sriram Transport Finance Company Ltd which is confirmed by DW1 deposition before this Forum. Ext.B2 is the original loan cum hypothecation agreement entered into between the complainant and the opposite parties. Ext.B3 is the original news paper publication in “Thuranna Kathu’’ daily dated.13/10/2013 which is also confirmed by DW1 in his deposition as ""]»nIv Hm£³ \S¯p¶Xn\p ap³]mbn t]¸À ]»nt¡j³ sImSp¯ncp¶p. BbXv ChnsS s{]mUyqkv sNbvXn«pv. AXv Ext.B3 Bbn amÀ¡v sNbvXn«pv. Ext.B4 is a statement of account of the loan account of the complainant which shows details of the agreement, financial details, TBC, collection amount, due amount, settlement amount, its breakup etc. It also discloses overdue charges, arrears, number of days of arrears and the complainant was a chronic defaulter in payment of monthly instalments etc. Ext.B9 is hml\ hn¸\ IcmÀ between the 3rd opposite party and the highest bidder Mr.Muhammedali it is dated.02/12/2011 but signed on 03/12/2011.
We have closely perused the affidavits and documentary evidences submitted by both the parties in this case before this Forum and understand that both the complainant and the guarantor have signed an agreement with the opposite party for getting advance amount of Rs.4,60,000/- which is evident from Ext.B2. Ext.B4 shows clearly TBC amount (to be collected amount) as Rs.6,78,200/-, collected amount as Rs.5,95,514/- and balance due from the complainant in respect of the loan as Rs.82,686/-. We also observe from Ext.B2 which is loan cum hypothecation agreement, as per clause 1.6 the borrower shall also be liable for all costs, charges and expenses and for events of default as per clause 5 of Ext.B2 and the complainant and the guarantor have signed the agreement (Ext.B2) containing 23 clauses and 3 schedules as token of their acceptance to the terms and conditions of the said agreement. We also observe that as per temporary receipts issued by the opposite party to the complainant, opposite party has received totally Rs.1,02,200/- from the complainant between 18.11.2009 and 05.02.2011. We also observe that as per Ext.B4 financial charges are Rs.1,39,656/-, principal amount outstanding is Rs.77,978/-, insurance premium due is Rs.12,357/-, outstanding due charges are Rs.97,849/-. It is also mentioned in the Ext.B4 that TBC (to be collected amount) is Rs.6,78,200/- and collected amount is Rs.5,95,540/-. We also view from the documentary evidences submitted by the opposite parties that, the complainant never paid the monthly instalments due on his vehicle loan correctly and fully, never paid the amount due within the monthly due date, used to keep arrears of the monthly instalments and therefore complainant was made liable to pay the delayed payment charges and huge overdue charges of Rs.97,849/-.
At the same time we observe that the opposite parties have not been seen to have given to the complainant a notice of auction sale of the disputed vehicle of the complainant before undertaking actual auction sale of the said vehicle of the complainant which constitutes a grave deficiency and unfair trade practice on the part of the opposite parties. This sale without notice also shows that the opposite parties might have sold the disputed vehicle of the complainant for a very low price than its actual market price which the vehicle could have fetched which also shows a serious malpractice and unfair trade practice on the part of the opposite parties. The opposite party is not seen to have complied the bidding and tender regulations for the public auction sale of the disputed vehicle. Further although names and addresses of 5 bidders are given, only 2 bidders are seen given their consent and the amounts for which they have consented but, the remaining 3 quotations and their consent are not seen produced by the opposite parties. Also the opposite party has not been seen to have produced duplicate copy of the receipt for having received Rs.3,35,000/- by Sriram Transport Finance Company Ltd from the highest bidder Mr.Muhammedali from the sale of the disputed vehicle of the complainant in the public auction to him. Above all inspite of repeated requests to the opposite parties, it is seen that proper statement of account of the transactions which the complainant has made with the opposite party between 2009 and 2011 are not seen given to the complainant by the opposite parties which also is viewed as grave deficiency in service on the part of the opposite parties in this case.
Hence considering all the above aspects we decide to partly allow the complaint.
Since it is clearly evident from the opposite parties documentary evidence (Ext.B4), net due amount from the complainant is Rs.6,78,200/- (Rupees six lakh seventy eighty thousand two hundred only) and net received amount is Rs.5,95,514/- (Rupees five lakh ninety five thousand five hundred and fourteen only), complainant still owes Rs.82,686/- (Rupees eighty two thousand six hundred and eighty six only) to the opposite parties. We also understand from the above evidence that complainant is a chronic defaulter and highly irregular in making equated monthly instalments due on his vehicle loan; complainant has never paid the monthly instalments due on his vehicle loan correctly and fully on the due date. Therefore we order that the notice dated.25/09/2013 issued by the advocate on behalf of the opposite parties to the complainant to pay Rs.82,686/- (Rupees eighty two thousand six hundred and eighty six only) due from the complainant to the opposite parties as on 25/09/2013 cannot be quashed. At the same time, the sale of the complainant’s vehicle by the opposite parties in public auction without giving him advance notice of public auction sale shows a grave malpractice and unfair trade practice seen committed by the opposite parties because we view that complainant was using his vehicle for earning his and his family’s livelihood. Therefore this act on the part of opposite parties must have caused him much financial loss and consequent mental agony. Taking into consideration this aspect we order that the opposite parties are jointly and severally liable to pay to the complainant Rs.5,000/- (Rupees five thousand only) as compensation towards mental agony suffered by him and Rs.2,000/-(Rupees two thousand only) by way of cost of this proceedings incurred by him.
The aforesaid amount shall be paid within one month from the date of receipt of this order; failing which the complainant is also entitled to realize 9% interest p.a from the opposite parties on the total amount due to him from the date of this order till realization.
Pronounced in the open court on this the 31st day of August 2019.
Sd/-
Shiny.P.R
President
Sd/-
V.P.Anantha Narayanan
Member
Exhibits marked from the side of complainant
Ext.A1 - registered notice sent by the opposite party’s counsel to the complainant and
the guarantor
Ext.A2 - Photocopy of certificate of registration issued by Reserve Bank of India
Ext.A3 - True copy of notice dated.07/10/2011 sent by the Branch Manager Shriram
Transport Finance Company Ltd, Ottapalam branch to the complainant and the
guarantor
Ext.A4 - list of agreement details such as loan agreement number, vehicle number,
facility amount, date of agreement etc
Ext.A5 - hirer ledger details as on 24/02/2010 which shows receipt details, instrument details,
due details etc
Exts.A6 to A13 - temporary receipts issued by the opposite party to the complainant
Ext.A14 - copy of transaction details issued by the opposite party in respect of
complainant’s vehicle loan
Ext.A15 - Demand notice dated.07.10.2011 sent by opposite party to the complainant
Ext.A16 - certificate cum policy schedule issued by the opposite party to the complainant
Exhibits marked from the side of opposite parties
Ext.B1 - power of attorney executed by Sriram Transport Company Ltd
Ext.B2 - original loan cum hypothecation agreement entered in to between the
complainant and the opposite party
Ext.B3 - original news paper “Thuranna Kathu’’ daily dated.13/10/2011 advertisement under
the head “Vehicles for sale”.
Ext.B4 - statement of account of the loan account of the complainant
Ext.B5 - copy of valuation report given by Mr.A.V.Babu, insurance surveyor dated.08/11/2011
Ext.B6 - quotation given by Ajeesh (A Bidder)
Ext.B7 - quotation given by Shylesh (A Bidder)
Ext.B8 - bidders details, proceedings of public auction, vehicle number, make, model,
loan number, borrower name, date of auction, venue etc
Ext.B9 - hml\ hn¸\ IcmÀ entered on 02/12/2011 and signed on 03/12/2011
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite parties
DW1 - Haridasan
Cost - Rs.2,000/-
