| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER Friday, the 27th day of September 2024 CC. 368/2012 Complainant Shaji. C.P, S/o Velayudhan, Chettiparambath House, Puthiyappa, Puthiyangadi (PO), Kozhikode -21. Opposite Parties - M/s Tata Motors,
Bombay House, 24, Homi Mody street, Mumbai , Maharashtra -400001. (As per IA 191/2016 deleted first opposite party) - M/s Shakthi Automobiles,
Branch Office, Meenchanda, Kozhikode district. - M/s Shriram Finance.Co.
Branch Office; Sreepadmam Building, Cherootty road, Kozhikode. (OP2- By Adv. Sri. P. Rajeev, OP3- By Adv. Sri. K. Sivadasan) ORDER By Smt. PRIYA. S – MEMBER This is a complaint filed under Section 12 of the Consumer Protection Act, 1986. - The case of the complainant, in brief, is as follows:
The complainant is the registered owner of the vehicle Tata Mini Lorry bearing registration No. KL-11-AG-2381. The first opposite party is the manufacturer of the vehicle, the second opposite party is the dealer who is marketing the vehicle and the third opposite party is the financier of the above vehicle. The complainant purchased the vehicle for earning his livelihood. The purchase was made on 04/10/2010 from the second opposite party paying Rs. 6,80,000/- and he had made a down payment of Rs. 94,000/- and for the amount of Rs. 5,91,000/- he had availed loan from the third opposite party. - The complainant is a fisherman and he had purchased the vehicle for the purpose of loading fish in order to transport to required places as per the orders. The complainant had paid Rs. 69,000/- to the third opposite party towards loan instalments.
- Unfortunately on 28/09/2011 the vehicle had met with an accident and same was given for repairs to the second opposite party. The second opposite party had assured that the vehicle would be returned to him after repairs within two months. The second opposite party had received the insurance claim amount directly from the insurance company whereas they have not returned the vehicle as promised, consequent to which, the complainant had lost his sole source of income and could not make payment towards loan instalment dues with the third opposite party. The third opposite party has threatened that they would present the signed blank cheques which were collected from him at the time of sanctioning the loan and that they would seize the vehicle forcibly. The acts of the opposite parties amounts to unfair trade and business practice resulting in deficiency in service. Hence the complaint to direct the first and second opposite parties to repair and release the vehicle immediately and to allow compensation of Rs. 1,00,000/-towards loss of income on account of the delay in repairing and returning the vehicle, Rs. 50,000/- being the amount of interest, compound interest, fine and penalties levied by the third opposite party and Rs. 10,000/- as compensation for the inconvenience and mental agony cause to the complainant. Further the third opposite party is to be directed not to illegally seize the vehicle or misuse the blank cheques collected from the complainant.
- The opposite parties have resisted the complaint by filing written version separately.
- According to the first opposite party, the complaint as against them is not maintainable and they are unnecessary party to the proceedings. The relationship between the first and second opposite party is of principal to principal basis and the first opposite party is no way liable or responsible for the alleged transaction between the complainant and the second opposite party. There was no deficiency in service or unfair trade practice on their part as alleged and hence the complaint is liable to be dismissed.
- The second opposite party, in their version, has admitted the purchase of the vehicle by the complainant. The vehicle was brought to them for accidental repairs and it was not covered by the warranty. They have commenced the repairs on approval of the insurance company. The total repair charges amounted to Rs. 3,47,442/- and out of this amount, only a sum of Rs. 2,76,959/- had been sanctioned by the insurance company, leaving a balance of Rs. 70,463/- to be paid by the complainant. The complainant wanted to take back the vehicle without paying this amount. There was no delay in repairing the vehicle. The vehicle came to the first opposite party on 04/10/2021for repairs and the entire work was completed by 31/03/2012. The vehicle had extensive repairs as it had been involved in a serious accident. When the insurer refused to pay the entire amount the complainant stopped contacting the second opposite party. Hence the second opposite party started informing him to come and take back the vehicle and on 15/05/2012 a letter was sent to him. Immediately on getting the letter, he started this litigation. The complainant cannot take back the vehicle without paying the repair charges. There was no unfair trade practice or deficiency of service on their part. It is, therefore, prayed to dismiss the complaint with costs.
- According to the third opposite party, there is no cause of action against them. The complainant had executed loan-cum-hypothecation agreement and availed the finance facility. He was irregular in repayment and hence he is liable to pay penal interest on defaulted instalments and future instalments. The attempt of the complainant is to escape from the obligation to repay the loan. The allegation that signed blank cheques were obtained from the complainant is untrue and false. The third opposite party is entitled to take appropriate legal action against the complainant and to proceed against him and the vehicle for recovery of the amount. According to the third opposite party, there is no unfair trade practice or deficiency of service on their part. With the above contentions, the third opposite party also prays for dismissal of the complaint with costs.
- The first opposite party was removed from party array as per order dated 21/10/2017 passed by our learned predecessors-in-office in IA No. 191/2016 filed by the first opposite party.
- The points that arise for determination in this complaint are; 1) Whether there was any unfair trade and business practice or deficiency of service on the part of the opposite parties, as alleged? 2) Reliefs and costs.
- Evidence was recorded by our learned predecessors-in-office. The complainant has filed proof affidavit and Exts A1 to A5 were marked. Ext A1 is the copy of the registration certificate, Ext A2 is the bank statement, Ext A3 is the copy of the intimation, Ext A4 is the copy of the repayment schedule and Ext A5 is the copy of the insurance certificate. The complainant was not cross examined by the opposite parties.
- Heard. The complainant filed brief argument notes also.
- Point No 1: The complainant is the registered owner of Tata Mini Lorry bearing registration No. KL-11-AG-2381. The complaint was originally filed against the manufacturer, authorised dealer and the financier. As already stated, manufacturer (first opposite party) was subsequently deleted from the party array and now the complaint is only against the dealer and the financier.
- The grievance projected in the complaint against the second opposite party is that there was neglect on their part to deliver back the vehicle to the complainant after accidental repairs despite receiving the insurance claim amount directly from the insurance company, as a result of which, the complainant had lost his sole source of income and could not repay the loan instalments due to the financier. The complainant wants to get immediate repair and release of the vehicle to him along with adequate compensation.
- The definite case of the second opposite party is that the vehicle was involved in a serious accident which had resulted in extensive repairs and there was no unwanted delay on their part in making ready the vehicle for delivery after repairs. The vehicle came to them on 04/10/2011 and was ready for delivering back to the complainant on 31/03/2012. According to the second opposite party, the total repair charges amounted to Rs. 3,47,422/- and the insurance company paid only a sum of Rs. 2,76,959/-, leaving balance of Rs. 70,463/-. The complainant was unwilling to pay this amount and take delivery of the vehicle.
- Admittedly, the complainant has no case that he had paid any amount to the second opposite party towards repair charges. It is pertinent to note that there is no whisper in the complaint about the total repair charges and the actual amount paid by the insurance company to the second opposite party. The complainant has feigned ignorance about all these matters and has filed the present complaint stating that the entire repair charges were received by the complainant from the insurer. It appears that the complainant has suppressed material facts and has approached this Commission with unclean hands.
- The case of the second opposite party that the total repair charges had come to Rs. 3,47,422/- and out of this, only a sum of Rs. 2,76,959/- had been sanctioned by the insurance company is not specifically disputed in the proof affidavit filed by the complainant. It cannot be disputed that the second opposite party is entitled to get the balance repair charges of Rs. 70,463/-. The complainant cannot insist that the vehicle should be released to him without paying the balance repair charges to the second opposite party. The vehicle had extensive repairs and this is evident from the total repair charges. Considering the fact that the vehicle had extensive damage in the accident, the time taken for the repairs cannot be said to be excessive. It appears that the actual grievance of the complainant is not the delay in the repair work, but his attempt is to take back the vehicle without paying the amount due to the second opposite party. However, the records show that during the pendency of the complaint the vehicle was released to the complainant as per the order passed by our learned predecessors-in-office on depositing a sum of Rs. 20,000/-. However, the complainant is not satisfied with the repairs carried out by the second opposite party. The alleged defect in the repairs is not a matter raised in the present complaint. There is no proof of any unfair trade practice or deficiency of service on the part of the second opposite party as alleged.
- The allegation against the third opposite party, which is the financier, is that they are trying to seize the vehicle and misuse the blank cheques collected from him at the time of sanctioning the loan. Admittedly, the availing of the loan executing loan-cum-hypothecation agreement is not disputed. Even according to the complainant, the loan is in arrears. That being the position, the third opposite party cannot be found fault with for exercising their right under the loan-cum-hypothecation agreement. The vehicle being the property hypothecated to the financier is the only security against which the financier can proceed for recovery of the dues. The third opposite party is entitled to proceed against the vehicle for recovery of the amount by resort to legal methods and the exercise of the legal rights under the loan-cum-hypothecation agreement cannot be termed as unfair trade practice or deficiency of service. Equally, there is absolutely nothing in evidence to indicate that the third opposite party had obtained signed blank cheques from the complainant.
- To sum up, we hold that there is no proof of any deficiency of service or unfair trade and business practice on the part of the opposite parties 2 and 3 and consequently the complaint must fail.
- Point No.2: In view of the finding on the above point, the complainant is not entitled to claim and get any relief.
In the result, the complaint is dismissed. However, no order as to costs. Pronounced in open Commission on this, the 27th day of September, 2024. Date of Filing: 03/09/2012 Sd/ Sd/- Sd/- PRESIDENT MEMBER MEMBER APPENDIX Exhibits for the Complainant : Ext A1 - Copy of the registration certificate. Ext A2 - Bank statement. Ext A3 - Copy of the intimation. Ext A4 - Copy of the repayment schedule. Ext A5 - Copy of the insurance certificate. Exhibits for the Opposite Party NIL Witnesses for the Complainant NIL Witnesses for the opposite party NIL Sd/ Sd/- Sd/- PRESIDENT MEMBER MEMBER True Copy, Sd/- Assistant Registrar | |
