BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 25/03/2009

Date of Order : 31/12/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 182/2009

Between

And

O R D E R

A. Rajesh, President.

1. The complaint stems out the following facts :

The complainant purchased a stage carriage vehicle bearing Registration No. KL-04/R 2165 with the financial assistance of Rs. 6,25,000/- from the opposite party. The complainant had repaid more than Rs. 1,00,000/-. The opposite party obtained blank cheques and other signed papers from the complainant as well as his friend Mr. Sasidharan, who is guarantor to the complainant. The complainant had spend Rs.2,00,000/- for improving the condition of the vehicle. Subsequently, he could not pay the loan instalments due to tsunami disaster. The matter was intimated to the opposite party, they granted time for clearing the dues. However on 03-12-2006, the opposite party forcefully seized the vehicle. On enquiry, the opposite party agreed to return the balance amount after the sale of the vehicle. Believing the assurances, the complainant did not take any action against the opposite party. On 10-11-2008, the opposite party issued a notice to the complainant demanding to pay Rs. 5,35, 535/- so as to initiate proceedings under Section 138 of the Negotiable Instruments Act by misusing the blank cheque entrusted with them as a security. The complainant caused a reply to the opposite party dated 18-12-2008. There is gross deficiency in service on the part of the opposite party. Thus, the complainant is before us seeking the following reliefs against the opposite party :

1. To return the vehicle or to pay the sale proceeds of the vehicle.

2. To pay a compensation of Rs. 3 lakhs.

3. To return the documents obtained by the opposite party.

4. To pay costs of the proceedings.

2. The version of the opposite party :

The complainant and the opposite party entered into a hypothecation agreement in which one Mr. Sasidharan stood as a guarantor for the complainant. The opposite party advanced an amount of Rs. 6,25,000/- to the complainant for the purchase of a vehicle. The amount was to be repaid with interest in 48 monthly instalments from 10-12-2005. The opposite party had not received any document either from the complainant or from his guarantor. The vehicle was surrendered by the complainant before the opposite party. After the surrender, the vehicle was auctioned for Rs. 5 lakhs. Evenafter, the adjustment of Rs. 5 lakhs, there was an amount of more than Rs. 2 lakhs due on the loan account. After the surrender of the vehicle, the complainant issued a cheque to the tune of Rs. 5,35,535/- dated 10-11-2008. The said cheque was delivered by the bank. There is no deficiency in service on the part of the opposite party. The complainant have no cause of action against the opposite party.

3. The complainant and his witnesses were examined as PW's 1 to 3 and Exts. A1 to A5 were marked on his side. No oral evidence was adduced by the opposite party. Ext. B1 was marked on their side. Heard the counsel for the parties.

4. The points that arose for consideration are :-

1. Whether the complainant is entitled to get the vehicle returned or to get the sale proceeds of the vehicle?

2. Whether the complainant is entitled to get a compensation of Rs. 3 lakhs from the opposite party?

3. Costs of the proceedings?

5. Point Nos. i. and ii. :- Parties are in consensus on the following issues :

1. The complainant availed himself of a loan of Rs. 6,25,000/- from the opposite party after executing a hypothecation agreement.

2. The complainant has remitted the following amounts in the loan account evident from Ext. A5 series (4 in Numbers).

    

Serial No.	Date	Amount in Rupees
	31-12-2005	15,500
	08-02-2006	20,000
	07-03-2006	20,000
	08-05-2006	19,000
	Total	74,500

6. According to the complainant, he had expended Rs. 2 lakhs to improve the condition of the vehicle. However, nothing is on record to substantiate the same. The complainant has examined PW3 to establish the market value of the vehicle, but he himself admitted that he has no authority to assess the price of a vehicle. PW2 is the guarantor of the complainant. He has availed himself of another loan to purchase a vehicle. The agreements are distinct and different. His testimony in no way is helpful for the complainant to sanctify his averments.

7. The opposite party maintains that the complainant had surrendered the vehicle and the opposite party sold the vehicle in public auction for Rs. 5 lakhs. It is stated that the amount was adjusted in the loan account of the complainant and an amount of Rs. 2 lakhs is outstanding still.

8. The opposite party has failed to produce the vital documents such as the statement of accounts and the records of auction etc. for their own reasons. However, the complainant as well did not take steps to produce the same in this Forum. As per Ext. A2 notice dated 10-11-2008, the opposite party demanded a sum of Rs. 5,35,530/- from the complainant. While in their version, they have stated that an amount of Rs. 2 lakhs is outstanding from the complainant. These two averments do not go together however accounted. Moreover, the opposite party has failed to mention anything about the receipt of the amounts as per Ext. A5 series. From the available records, the complainant is only liable to pay a sum of Rs. 1,25,500/- to the opposite party (Rs. 2,00,000/- - Rs. 74,500/- = 1,25,500/-) as the full and final settlement of the account with the opposite party. For reasons considered above, we are at a loss to appreciate the tall claims of the complainant to the positive. It is made clear that the complainant is entitled to get the documents back received by the opposite party if the complainant remits the above amount.

9. In view of the above, we partly allow the complaint and direct that, the complainant shall pay a sum of Rs. 1,25,500/- (Rupees One lakh twenty five thousand and five hundred only) as full and final settlement of the account in which event the opposite party shall return the documents in their possession.

The complainant is directed to comply with the above order within 30 days from the date of receipt of a copy of this order, failing which the above amount shall carry interest 12% p.a. till payment.

Pronounced in open Forum on this the 31^st day of December 2011.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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