Date of filing:08-01-2014
Date of Disposal:29-12-2014
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: ANANTHAPURAMU
PRESENT: -Kum. Y.H.Prameela Reddy, M.A., LL.B., President
Sri S.Niranjan Babu, B.A., B.L., Male Member
Smt.M.Sreelatha, B.A., B.L., Lady Member
Monday, the 29th day of December, 2014
C.C.NO.14/2014
Between:
Gokula Lokeswara Swamy
S/o Obilesu, D.No.11-2-488,
Near Geetha Mandir,
Ananthapuramu. …. Complainant
Vs.
- M/s TATA Finance Ltd.,
by its Authorized person
1-Think Techhno,
Campus Building-A,
2 floor,opp.pokhran road no 2
THANE (West) – 400 601, India.
- The Manager,
TATA Motors Finance Ltd.,
No.6-1-2, B.V.Regent Plaza,
Kallur Road
Kurnool – 518 003. …. Opposite Parties
This case coming on this day for final hearing before us in the presence of Sri B.Viswanath, Advocate for the complainant and Sri K.Chandrasekhar Rao, Advocate for the opposite parties 1 & 2 and after perusing the material papers on record and after hearing the arguments on both sides, the Forum delivered the following:
O R D E R
Sri S.Niranjan Babu, Male Member:- This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite parties 1 & 2 directing them to hand over the vehicle to the complainant and to pay a sum of Rs.1,00,000/- towards mental agony and personal inconvenience, interest and costs of the complaint and grant such other relief or reliefs.
2. The brief facts of the complaint are that :- The complainant is the absolute owner of Indica Vista Car bearing No.AP-02-AL-0004 and he purchased the above said vehicle for his personal use at TATA Showroom, Ananthapuramu and the officials of TATA Showroom introduced the staff of the opposite parties to the complainant for financial accommodation and he obtained a loan of Rs.5,70,000/- from the opposite parties in the month of October, 2011 and hypothecated the same with the opposite parties and the entire loan formalities took place at TATA Showroom at Ananthapuramu and the monthly installments started from 09-11-2011 and the maturity date is 11-10-2016 and the monthly installment amount is Rs.13,350/-. The complainant paid an amount of Rs.15,000/- as advance installment to the opposite party and the monthly installment started from 02-12-2011. The complainant regularly paid installments and due some installments to the opposite parties as he suffered with ill health. The 2nd opposite party seized the above said vehicle on 20-09-2013 from the custody of the complainant at Ananthapuramu though the complainant repeatedly requested the 2nd opposite party that he shall pay the due installments within few days. Subsequently the complainant paid balance installments of Rs.40,000/- on 27-09-2013 vide receipt No.304094521, Rs.45,000/- on 28-09-2013 vide receipt No.304124115, Rs.45,000/- on 10-10-2013 vide receipt No.304388091, Rs.35,000/- on 10-10-2013 vide receipt No.304388068, Rs.45,000/- on 10-10-2013 vide receipt No.304388129 to the 2nd opposite party. As on the date of clearing the dues of installments, the complainant paid excess amount for future installments and also undertaking that he shall pay the future installments regularly and the 2nd opposite party promised that the above said vehicle will be handed over to the complainant within a week. But the opposite party did not hand over the vehicle insptie of repeated requests made by the complainant. As per the terms and conditions of the contract, the complainant has no dues of installments as on today and he is entitled to take the above said vehicle from the opposite parties. The complainant also submitted that he is having very good reputation in the society and he is busy man in his profession and the vehicle is very much required and he is always ready and willing to pay the installments regularly in future and he caused lot of inconvenience due to attitude of the 2nd opposite party. The complainant issued a legal notice to the opposite parties by demanding them to hand over the above said vehicle on 07-12-2013.Though the legal notice served on the opposite parties, they did not respond positively. The complainant submitted that though he cleared all the dues he suffered lot of mental agony and facing lot of inconvenience due to postponement of hand over the vehicle. The opposite parties without any manner of right and without any justifiable reasons postponed to hand over the vehicle to the complainant and there is a clear negligence and deficiency of service on the part of the opposite parties and they are liable to pay damages to the complainant along-with the vehicle. Due to negligent attitude of the opposite parties in discharging their duties, the complainant suffered lot and claiming Rs.50,000/- towards mental agony and Rs.50,000/- towards personal inconvenience from the opposite parties. Hence, the complainant prayed this Forum to direct the opposite parties to hand over the vehicle and direct them to pay a sum of Rs.1,00,000/- towards mental agony and personal inconvenience and also to pay interest and costs of the complaint.
3. The opposite parties filed counter denying the allegation made in the complaint and submitted that the complainant himself approached the opposite parties to avail financial assistance and enquired about the same with the opposite parties. The opposite parties as a matter of business practice made him aware about the various aspects and features of the loan facility and the complainant decided to take financial assistance. Subsequently the complainant entered into loan-cum-hypothecation agreement bearing No.5000827709 dt.09-11-2011 with the opposite parties for availing financial assistance of Rs.5,70,000/- . Under the said agreement the complainant has agreed to pay finance charges of Rs.2,32,817/- . In the said agreement, the complainant has undertaken to pay Rs.15,167/- towards 1st installment, Rs.13,350/- towards the repayment of installments 2 to 60 which were payable from 09-11-2011 to 11-10-2016. As per the contract, the complainant was liable to pay Rs.8,02,817/- to the opposite parties subject to the terms and conditions of agreement. The opposite parties submitted that the opposite party is a non-banking financial company and therefore huge cost is incurred and procuring the funds for disbursements as loans. The opposite party submitted that the complainant had availed the said loan from the opposite parties under the assurance that he shall honour his obligations and undertakings under the terms of the said loan and the complainant failed to adhere to the terms of the said loan repayment and committed various defaults. The opposite parties submitted that as per terms of the said loan agreement was constrained to terminate the said loan agreement served upon the complainant and loan recall notice dt.14-03-0213 was issued to the complainant calling upon to pay the total outstanding due and payable by the complainant in respect of the said loan. The opposite parties submitted that the complainant was notified that in case, the complainant would fail to pay the due as claimed in the said notice within the period mentioned therein, the opposite parties shall be constrained to refer the matter to the Arbitration for resolution of the disputes. Though the complainant received the said notice, neither paid the said dues nor sent any reply. Under these circumstances, the opposite parties as per the Arbitration clause forming part of the said loan agreement had referred the matter to the Arbitrator. The learned arbitrator passed interim award dt.23-03-2013 under section 17 of Arbitration and Conciliation Act, 1996 directing the complainant to handover possession of the said vehicle to the opposite parties. The arbitrator also directed the opposite parties to take possession of the vehicle from the complainant or from any person, who may be in possession of the said vehicle wherever it may be situated with the help of the police if necessary. The Arbitrator further directed that the opposite parties shall keep the said vehicle in safe custody without causing any loss or damage. The opposite parties repossessed the vehicle on 31-07-2013 by following the due process of law. The opposite party further submitted that the learned Arbitrator repeatedly issued notice upon the complainant for appearance. The complainant despite receipt of the notices failed to contest the matter as he had nothing to say on merits. Thus, the learned Arbitrator on the basis of documents and evidences tendered by the opposite parties passed arbitral award on 01-08-2013 in favour of the opposite parties and the opposite parties are entitled to sell the vehicle in question in accordance with law. The opposite parties also submitted that the vehicle being a depreciating asset, the opposite parties sent a pre-sale notice dt.06-08-2013 requesting the complainant to pay the outstanding dues. However there was no response form the complainant, hence the vehicle duly valued and sold by the opposite parties for realization of its legitimate dues. The opposite parties submitted that they have acted in accordance with law and has adopted the due process of law in initiating arbitration passed in its favour in repossessing the vehicle in question and thereby selling it for realization of its legitimate dues. The complainant had agreed the same under the loan agreement and the opposite parties rely upon clause 18(a) of the loan agreement. It is important to plead that even after appropriating the sale proceeds, there is a shortfall of Rs.35, 540/- due from the complainant that there is no question of making any excess payment by the complainant in respect of the said loan account. The averments made by the complainant in the complainant in contrary to the averments made herein are false and denied. The opposite parties denied that the complainant having good reputation in the society and submitted that there was lack of intentions on the part of the complainant to pay the installments in respect of the said loan as such he had committed various defaults in repayment of the said loan and did not regularize the said loan account despite various requests and reminders made by the opposite parties. The opposite parties also denied about the sufferance mentally and inconvenience caused to the complainant and the opposite parties submitted that the facts mentioned in the complaint, it is clear that as per the terms and conditions of the agreement, which has been clearly communicated to the complainant, the opposite parties were required to repossess the vehicle and in turn sell the same in the event of default by the complainant. The opposite parties submitted that despite recurrent demands and notice by the opposite parties, the complainant has failed to make the balance payment. Resultantly the opposite parties acting within the ambit of the agreement has repossessed the vehicle afterwards sold it after following due process of law. After appropriating the sale proceeds, there is an outstanding amount of Rs.35, 540/- due from the complainant. It is quite evident that the opposite parties have acted in accordance with the agreement, the terms & conditions of which has been clearly communicated to the complainant and the opposite parties also denied that there is negligence or deficiency of service on the part of the opposite parties in rendering its services and the opposite parties are not liable to pay any compensation or damages to the complainant. The opposite parties submitted that this Forum has no jurisdiction to adjudicate the complaint filed by the complainant as the complaint is filed based on false and frivolous averments and liable to be dismissed with costs. The opposite parties also requested this Forum that the complainant shall be ordered to repay the outstanding amount and continue to pay the remaining installments on the stipulated dates. The opposite parties also requested this Forum to dismiss the complaint with exemplary costs as per section 26 of Consumer Protection Act.
4. Basing on the above pleadings, the points that arise for consideration are:-
1. Whether the complainant’s vehicle seized by the opposite parties is illegal?
2. Whether there is deficiency of service on the part of the opposite Parties 1 & 2?
3. to what relief?
5. In order to prove the case of the complainant, the evidence on affidavit of the complainant has been filed and marked Ex.A1 to A4 documents. On behalf of the opposite parties 1 & 2, evidence on affidavit of State Head Legal of the opposite parties and marked Ex.B1 to B11 documents.
6. Heard on both sides.
7. POINT NO.1 – The complainant’s counsel argued that the complainant is the absolute owner of the India Vista Car bearing No.AP-02-AL-0004. The complainant purchased the above said vehicle with financial assistance of the opposite parties and obtained loan of Rs.5,70,000/- in the month of October, 2011 and paid an amount of Rs.15,000/- towards advance and the installments starts from 09-11-2011 to 11-10-2016 and the 1st installment amount is Rs.13,550/- and 60 installments. The counsel for the complainant argued that the complainant paid installments regularly and due some installments to the opposite parties as he suffered with ill-health. On 20-09-2013 the 2nd opposite party seized the vehicle though the complainant expressed his willingness to pay the installments within few days. Later the complainant paid installment amount of Rs.40, 000/- on 27-09-2013 vide receipt No.304094521, Rs.45, 000/- on 28-09-2013 vide receipt No.304124115, Rs.45,000/- on 10-10-2013 vide receipt No.304388091, Rs.35,000/- on 10-10-2013 vide receipt No.304388068, Rs.45,000/- on 10-10-2013 vide receipt No.304388129 to the 2nd opposite party. As on the date of clearing the dues of installments, the complainant paid excess amount of Rs.40,000/- for future installments and also undertaking that he shall pay the future installments regularly and the 2nd opposite party promised that the above said vehicle will be handed over to the complainant within a week. The opposite parties promised to release the vehicle but failed to do so. Then the complainant got issued legal notice dt.05-12-2013 and the same was served on the opposite parties on 07-12-2013 but no reply. Hence the complainant filed the complaint before this Forum as the opposite parties seized the vehicle illegally and not followed the procedure and postponing to release the vehicle amounts to deficiency of service and prayed this Forum to direct the opposite parties to hand over the vehicle and direct them to pay Rs.1,00,000/- towards mental agony and personal inconvenience.
8. The counsel for the opposite parties filed written arguments stating that the complainant is not a ‘consumer ‘ within the meaning of section 2(1)(d) of the Consumer Protection Act, 1986 as he purchase the vehicle for business purpose. The opposite parties also argued that the complainant has not produced any record to show that the vehicle was being used for his livelihood. The complainant cannot claim the status of a ‘consumer’ under the Consumer Protection Act, 1986 and is not entitled for any relief from this Forum. As per the Hon’ble Supreme Court of India, in the case of Laxmi Engineering Works Vs. PSG Industries Institute (1995) II CPJ I (SC) held that if any person has obtained goods for commercial purpose, he is not entitled relief in the Forum. The counsel for the opposite parties also argued that the complainant in the present complaint ought to keep in mind the well-established maxim ‘one who comes into equity must come with clean hands.’ The complainant in this instant case has been a chronic defaulter of the installments and the complainant has made late payments for few installments, besides defaulted and late payments, the complainant has also made part payments for few installments. Thus it is apparent that the complainant by way of late, part of defaulted payments has grossly violated the terms of the agreement and hence there cannot be any complaint of deficiency of service. The counsel for the opposite parties argued that 16 cheques issued by the complainant towards the repayment of installments were dishonoured on presentation due to insufficient funds maintained in the Bank. The opposite parties also submitted that dishonor of cheques have contributed to the bank charges of Rs.6,000/- as agreed by the complainant and the opposite parties have sent its Officers/Agents to the residence of the complainant for collection of defaulted installments, which was resulted in retainer charges of Rs.2,250/-, Rs.1,090/- towards legal expenses and Rs.3,500/- towards document charges. The complainant has himself agreed to pay the bank charges, retainer charges, legal expenses etc., under clause 9(a) of the agreement. The opposite parties also submitted that the complainant himself applied for the loan after fully conversant with the terms and conditions of the loan. In this regard, the opposite parties submitted a decision reported in1996 4 SCC 704 between Bharti Knitting Company Vs. DHL Worldwide Express Courier wherein it was mentioned that “ the borrower shall repay to the lender the loan, together with interests by way of periodical installments as computed by the lender from time to time and the interest shall be payable at the rate set out in Serial No.4(b) of Annexure-1 and shall be charged from the date of disbursement of the loan under this agreement. The lender shall not dispute the same. The complainant had voluntarily applied for the loan after fully conversant with the terms and conditions of the said agreement and he is liable to pay installments, interest, charges and other expenses.” The counsel for the opposite parties also relied on the decision reported in I 2009 CPJ 502 in Ramesh Kumar Sharma Vs. Kotak Mahindra Primus Limited & Ors, wherein it was held that vehicle financed - payment of installments defaulted – vehicle repossessed forcibly not proved – As per agreement O.P. free to take over possession of vehicle in default in payment of installment and put it to sale for recovery of dues and there is no deficiency of service on the part of the opposite parties and no relief is granted – appeal is dismissed. The opposite parties also submitted they have acted as per the terms and conditions of the agreement and the complainant malafidely evaded in paying the loan installments and in turn the opposite parties repossessed the said vehicle after giving pre repossession notices. The opposite parties also submitted that the complainant is not entitled any reliefs as there is no deficiency of service on the part of the opposite parties and the opposite parties have not acted any unfair trade practice. The opposite parties also submitted that the complainant entered into a loan-cum-hypothecation agreement on 09-11-2011 and availed financial assistance of Rs.5,70,000/- and he agreed to pay the same by way of installments of Rs.13,350/- from 09-11-2011 to 11-10-2016. As per the contract, the complainant was liable to pay Rs.8,02,817/- subject to other terms and conditions of the agreement. In case the complainant has been guilty of defaults in repayments, which increases the overdue charges on the said amount. The opposite parties submitted that the company is required to incur huge administrative and infrastructure costs for managing its affairs. Accordingly, the opposite parties have no option but to claim the amount due to it from the complainant in accordance with the terms of the agreement. The counsel for the opposite parties argued that the complainant availed the loan from the opposite parties under the assurance that he shall honour his obligations and undertakings under the terms of the said loan, but he failed to adhere to the terms of the said loan repayment and committed various defaults. Thus the opposite parties constrained to terminate the said loan agreement and sent loan notice dt.14-03-2013 to pay outstanding dues when the complainant failed to pay the same was referred to Arbitrator. The Arbitrator passed interim award dt.23-03-2013 to repossess the vehicle and keep the vehicle in safe custody. The learned arbitrator issued several notices to the complainant, but the complainant failed to appear before the Arbitrator, then passed award in favour of the opposite parties after considering the documents and evidence filed by the opposite parties in their favour. The learned arbitrator directed the opposite parties to sell the vehicle for realization of the legitimate dues. The counsel for the opposite parties argued that the complainant is due an amount of Rs.35,540/- even after appropriating the sale proceeds, there is no question of making any excess payment by the complainant in respect of the said loan account. The counsel for the opposite parties argued that the complainant was having any intentions to pay the dues in respect of the said loan. In fact there was lack of intentions on the part of the complainant to pay the installments in respect of the said loan and committed various defaults in repayment of the said loan and did not regularize the said loan account despite various requests and reminders made by the opposite parties. The counsel for the opposite parties also submitted that it is clear that as per the terms and conditions of the agreement, which has been clearly communicated to the complainant, the opposite parties were required to repossess the vehicle and in turn sell the same in the event of default by the complainant. The opposite parties also submitted that they have followed the due process of law to repossess the vehicle and they have acted fairly on their part. The opposite parties submitted that despite recurrent demands and notice sent by the opposite parties to the complainant, the complainant has failed to make the balance payment and thus there is no inconvenience cause to the complainant and there is no deficiency of service on the part of the opposite parties and the complainant himself is a chronic defaulter and still he is due an amount of Rs.35,540/- to the opposite parties. Hence the complaint is liable to be dismissed with exemplary costs under section 26 of the Act.
9. When we go through the documents and pleadings of both parties, some facts are admitted by both parties. The complainant obtained loan from the opposite parties and the complainant entered into an agreement with the opposite parties in the month of October, 2011 and availed financial assistance of Rs.5,70,000/- and the complainant paid Rs.15,167/- towards advance and the complainant agreed to pay the balance amount by way of installments and installment amount is fixed as Rs.13,350/- and were payable from 09-11-2011 to 11-10-2016.
10. Here the crucial point to decide is whether the complainant paid the installments regularly as per agreement. The evidence on affidavit of the complainant reveals that he has not paid installments regularly and due some installments. The complainant has not filed any documents to show that he paid installments regularly from the date of agreement. The complainant filed Ex.A2 i.e. payment receipts. The amounts paid by the complainant towards installments only after seizure of the vehicle. The same is mentioned in the complaint that the opposite party seized the vehicle on 20-09-2013 and he paid installment amounts on 27-09-2013 and 10-10-2013 like-wise. Prior to it how much of amount the complainant paid towards installments not mentioned in the complaint. He simply stated that he paid excess amount of Rs.40,000/- than the installments. When there is no proof to show that how many instalments in total the complainant paid before seizure of the vehicle, it is tough to come to a conclusion that the complainant paid excess amount. On the other hand, the opposite parties argued that due to default in payments by the complainant, the opposite parties sold the vehicle and still an outstanding amount of Rs.35,540/- due from the complainant. When we go through Ex.A1 and B1, the complainant paid installments irregularly. Very 1st installment i.e. 11-12-2011 the complainant paid the amount with O.D.Charges. Later he paid 5 to 6 installments regularly. Again the complainant has not paid installments regularly from 11-08-2012 to 11-09-2013. The complainant has failed to mention in the complaint that when he stopped to pay the installments and when he became sick. The complainant simply stated in the complaint and affidavit that he was due some installments due to ill-health. The averments in the complaint and affidavit are not reliable as the complainant that he paid installments regularly and due installments from 11-08-2012 itself and admittedly he paid the amount to the opposite parties only after seizure of the vehicle. It clearly shows that the complainant is a chronic defaulter as per Ex.B2.
11. The other aspect of the complainant is that though he paid installment amount to the opposite parties, the opposite parties failed to release the vehicle seized on 20-09-2013 arbitrarily. The counsel for the opposite parties argued that the complainant is a defaulter and the opposite parties sent reminder notices for payment when the complainant failed to pay the installment amount, the opposite parties filed claim before arbitrator as per the agreement under section 11 of arbitration and conciliation Act. The arbitrator issued notice to the complainant, when complainant failed to appear before the arbitrator, the arbitrator passed an interim award on 23-03-2013 in favour of the opposite parties and allowed to take possession of the vehicle from the custody of the complainant, if necessary use help of police to seizure the vehicle and keep the said vehicle in safe custody. The arbitrator passed an award on 01-08-2013 in favour of the opposite parties and against the complainant and the opposite parties are entitled to sell the vehicle in accordance with law. Then the opposite parties issued pre-sale notice on 06-08-2013 and sold the vehicle to some third party. All the seizure procedure followed as per law and there is no arbitrary in seizing the vehicle. On the other hand the complainant’s counsel argued that no demand notice, no notice from the arbitrator and no pre-sale notice was received by the complainant as alleged by the opposite parties.
12. When we go through the documents filed by the opposite parties, the opposite parties issued notice to the complainant demanding for payment of the due amount on 14-03-2013 under Ex.B6. Later the opposite parties filed claim before the arbitrator and the arbitrator passed interim order on 23-03-2013 in favour of the opposite parties to take possession of the vehicle from the custody of the complainant and keep the said vehicle in safe custody. Later the arbitrator passed an exparte order in favour of the opposite parties on 01-08-2013. When we go through the order of the arbitrator under Ex.B7, the arbitrator specifically mentioned in the order that he issued notice to the complainant on 23-03-2013 directing to appear on 27-03-2013. When the complainant failed to appear on 23-03-2013 again the arbitrator issued 2nd notice on 29-04-2013 to appear on 18-05-2013 either in person or through his counsel. The arbitrator clearly mentioned in para 5 of award that notice was sent to the complainant on last known address. When we go through the address of the complainant in the award and with the present complaint address that is one and the same. So the question of not receiving the notice from the arbitrator does not arise and arbitrator passed exparte order by mentioning all facts.
13. The counsel for the complainant argued that though the complainant paid the entire amount the opposite parties postponing to release the vehicle on some pretext or the other. The counsel for the opposite parties argued that the complainant is a defaulter in payment of installments and there is no need to send notice before sale. The counsel for the opposite parties relied on a decision reported in 2009(1) CPJ 502 in Ramesh Kumar Sharma Vs. Kotak Mahindra Primus Limited & Ors, wherein it was held that vehicle financed - payment of installments defaulted – vehicle repossessed forcibly not proved – As per agreement O.P. free to take over possession of vehicle in default in payment of installment and put it to sale for recovery of dues and there is no deficiency of service on the part of the opposite parties and no relief is granted – appeal is dismissed. The opposite parties also submitted they have acted as per the terms and conditions of the agreement and the complainant malafidely evaded in paying the loan installments and in turn the opposite parties repossessed the said vehicle after giving pre repossession notices. The counsel for the opposite parties relied on another decision reported in 2006(2) Section 598 in Managing Director, Orix Auto Finance (India) Ltd., Vs. Jagmander Singh & Anr., that there is no legal impediment on the financier to repossess the vehicle in terms of the agreement on failure of the hirer to pay the dues installments and the fact that after repossession, the financier disposed it of could also not be a ground for the hirer to contend that he was prejudiced.
14. The facts of the above cases and facts of the case in hand are similar. More-over the opposite parties issued pre-sale notice to the complainant on 06-08-2013 under Ex.B10 requesting to pay outstanding due. When there is no response from the complainant the opposite parties are forced to seize the vehicle and sold to some third party for realization of the legitimate dues as per Ex.B11 dt.17-10-2013.
15. With all the above observations, we are of the opinion that the opposite parties seized the vehicle under due process of law. The complainant suppressed all the facts and filed the present claim. Hence, this point is answered accordingly in favour of the opposite parties and against the complainant.
16. POINT NO.2 – The counsel for the complainant submitted that the complainant paid entire amount to the opposite parties as per agreement and the opposite parties officials promised to release the seized vehicle and the complainant purchased the above said vehicle for his personal use and it is very much required to his day to day works, due to the attitude of the opposite parties, the complainant suffered lot of mental agony and personal inconvenience. The opposite parties failed to give any reply to the legal notice of the complainant and the opposite parties without any justifiable grounds and manner postponing to hand over the vehicle. These are all amounts to negligence and deficiency of service on the part of the opposite parties. Hence, the complainant is entitled Rs.1,00,000/- and release of the vehicle.
17. The counsel for the opposite parties submitted that the opposite parties seizure the vehicle under due process of law and the complainant is defaulter in payment of installments and the complainant paid the amounts after seizure of the vehicle. The counsel for the opposite parties also submitted that as per agreement (Ex.B3) in clause 18(a) the opposite parties followed the procedure while seizing the vehicle and the complainant is still due an amount of Rs.35,540/- after sale proceeds. The opposite parties also submitted in written arguments that they denied that the complainant was having any intentions to pay the dues in respect of the said loan . In fact there was lack of intentions on the part of the complainant to pay the installments in respect of the said loan as such he had committed various defaults in repayment of the said loan and did not regularize the said loan account despite various requests and reminders made by the opposite parties. The complainant even did not turn up to present his case before the learned arbitrator despite repeated notice issued by the learned arbitrator as he had nothing to say on merits. The captioned complaint is merely a tactic adopted by the complainant to harass the opposite parties and take undue monetary benefits by misleading this Forum on false averments when the award passed by the learned arbitrator has attained finality by selling the vehicle in question. The opposite parties also denied that the complainant has suffered any inconvenience because of the opposite parties. On the contrary it is the opposite parties which has suffered a loss of Rs.35,540/- because of the complainant. Thus there is no cause for filing the complaint with the complainant The complaint based on false and concocted stories is liable to be dismissed with costs.
18. The counsel for the opposite parties argued that there is no deficiency of service on the part of the opposite parties and opposite parties are not liable to pay any amount as claimed by the complainant. The complainant has not come to Forum with clean hands and liable to be dismissed with exemplary costs.
19. As we have already discussed in point No.1 we are not going to reiterate the same facts in point No.2. The opposite parties have acted as per agreement and the complainant admitted the terms and conditions of agreement. Admittedly the complainant is a chronic defaulter and disputed vehicle was repossessed by the opposite parties after issuing pre-sale notice to realize the legitimate dues of the opposite parties and sold the vehicle to some third parties. It is the duty of the complainant to pay installments regularly as agreed by him. The complainant failed to pay the agreed installment amount nearly 16 months, no financier will wait such a long period to collect the due amount. More-over the complainant blaming the opposites parties that they have promised to release the vehicle. The burden is on the complainant to prove that the opposite parties acted arbitrary and not followed the procedure of law as such he paid installments regularly. But no piece of document is filed to prove the same. The opposite parties proved their case by filing documents and oral evidence that the opposite parties acted as per terms and conditions of agreement and seized the vehicle only after obtaining the award from the arbitrator as per agreement and there is no negligence on the part of the opposite parties. The complainant failed to prove the deficiency of service on the part of the opposite parties. Hence this point is answered accordingly in favour of the opposite parties and against the complainant.
20. POINT NO.3 – In the result the complaint is dismissed without costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 29th day of December, 2014.
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MALE MEMBER LADY MEMBER PRESIDENT
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTHAPURAMU ANANTHAPURAMU ANANTHAPURAMU
APPENDIX OF EVIDENCE
WITNESSES EVIDENCE ON CHIEF AFFIDAVITS
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOISITE PARTIES
PW1 – Gokul Lokeswara Swamy RW1 - Hakim N M, State Head Legal, Tata Motors
Complainant Finance Ltd., Mumbai.
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 – Photo copy of Cardex I contract details relating to the complainant with Tata
Motors Finance Ltd., dt.30-10-2013.
Ex.A2 – Photo copy of receipt dt.10-10-2013 issued by Tata Motors Finance Ltd., to the
Complainant.
Ex.A3 – Office copy of legal notice dt.05-12-2013 got issued by the complainant to the
Opposite parties.
Ex.A4 – Postal acknowledgment signed by the opposite parties 1 & 2.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES
Ex.B1 – Cardex II (repayments) details relating to the complainant issued by the
opposite parties dt.31-03-2014.
Ex.B2 – Rejected receipts issued by the opposite parties dt.31-03-2014.
Ex.B3 - Loan-cum-Hypothecation-cum-guarantee agreement executed by the complainant in
favour of the opposite parties.
Ex.B4 - Irrevocable Power of Attorney executed by the complainant in favour of opposite
parties.
Ex.B5 - Cardex I contract details dt.31-03-2014 relating to the complainant.
Ex.B6 - Letter dt.14-03-2013 issued by the Mohit Gadkar & Company, Advocates, Mumbai to
the complainant.
Ex.B7 - Award passed by Arbitrator dt.23-03-2013.
Ex.B8 – Inventory of items in vehicle relating to the complainant.
Ex.B9 – Letter dt.01-08-2013 issued by the arbitrator to the complainant.
Ex.B10 – Letter dt.06-08-2013 issued by the opposite parties to the complainant.
Ex.B11 – Invoice dt.17-10-2013 issued by the opposite parties for Rs.3,40,000/-
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MALE MEMBER LADY MEMBER PRESIDENT
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTHAPURAMU ANANTHAPURAMU ANANTHAPURAMU
Typed by JPNN
