DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 20th day of July 2013
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt.Bhanumathi.A.K. Member Date of Filing : 10/12/2012
(C.C.No.220/2012)
Shaji,
S/o.Chacko,
Pambanal House,
Palakkayam (PO),
Mannarkkad - Complainant
(By Adv.K.Dhananjayan)
V/s
1.Proprietor
Surya Motors,
Melamuri, Palakkad
(By Adv.M.P.Rajesh)
2.The Manager,
Mahindra Finance,
Stadium Road, Palakkad - Opposite parties
(By Adv.Viju K Raphel)
O R D E R
By Smt.PREETHA.G.NAIR, MEMBER
The complainant approached 1st opposite party for purchasing an autorickshaw. The complainant has paid only Rs.100/- as token advance and bought the vehicle which is the source of his income and livelihood. The cost of the vehicle is Rs.1,70,000/- and an amount of Rs.60,000/- paid as advance. The complainant demanded the financial assistance for purchasing the vehicle to the 1st opposite party. At that time the 1st opposite party has informed that they are ready to arrange the financial assistance from the ICICI Bank. But the 1st opposite party has arranged the finance through 2nd opposite party against his wishes. Complainant came to know the finance assistance arranged through 2nd opposite party, only when the representative of 2nd opposite party came to him. The 2nd opposite party demanded cheques to the complainant after paying the 9 months installments. Then the complainant enquired to the 1st opposite party about the change of financial assistance. The complainant has paid 9 installments for an amount of Rs.4,270/- as one installment. Thereafter the complainant has not paid the installments because the 1st opposite party has arranged the finance through 2nd opposite party against his wishes and desires. So the 2nd opposite party has trying to take the vehicle forcefully.
On 19/11/2012 when the complainant has parked his autorickshaw, a representative from the 2nd opposite party has forcefully taken and seized the vehicle. The complainant enquired about this to 2nd opposite party. But the 2nd opposite party stated that the vehicle was not came there. Then the complainant had filed a complaint before the S.I.of Police, Mannarkkad and on enquiry the police has informed him that the vehicle was taken by 2nd opposite party. According to the complainant he had not signed on the documents of 2nd opposite party. He had signed only the documents of ICICI Bank. The act of 1st opposite party amounts to deficiency in service. Hence, the complainant prays an order directing the opposite parties to return the documents signed by him and wife, and to pay Rs.98,430/- as the amount paid by him and Rs.4200/- the amount kept in the vehicle and Rs.25,000/- as compensation for deficiency in service and cost of the proceedings.
Opposite parties filed version stating the following contentions. It is an admitted fact that the complainant has purchased the autorickshaw from 1st opposite party. The 1st opposite party has not arranged any financial assistance to the complainant. The opposite party has only informed the places in which the loan available to the customers as they enquired about the finance. After availing the financial assistance the loan amount given to 1st opposite party from the Bank on behalf of the customers and the Hypothecation mentioned in the RC book. The 1st opposite party has not arranged financial assistance from ICICI Bank to the complainant. They had not known the field officer of ICICI Bank who taken the signature of complainant to the documents. The 1st opposite party institution is only a partnership firm. All other allegations stated in the complaint are denied by the 1st opposite party. The 1st opposite party has done the sales of passenger autorickshaw. After the purchase of autorickshaw they had done the service to the vehicle. Hence 1st opposite party prayed that dismiss the complaint with cost. The complainant for purchasing an auto availed a loan from the 2nd opposite party by entering into a loan cum hypothecation agreement. The amount financed was Rs.1,11,047/- and the finance charges were Rs.42,853/-. Thus agreement value was Rs.1,53,900/- and agreed to be repaid on 36 monthly installments of Rs.4,275/-. The installment was agreed to be paid on 5th day of every month and the last installment was on 5/7/14. Towards the loan account the complainant had paid an amount of Rs.39,475/- altogether and has kept the installment in arrears from 5/5/12 onwards. Even after repeated demands the complainant has not paid the balance installment. Since the complainant has committed the default the loan was recalled. Thereafter the vehicle was surrendered by the complainant to 2nd opposite party. The vehicle is in the yard of 2nd opposite party and the process of sale of the surrendered vehicle is on. The 2nd opposite party has also started the Arbitration Proceedings as per the terms of the agreement against the complainant. The purchase of the vehicle and the arrangement of finance by 1st opposite party is not known to 2nd opposite party. The 2nd opposite party has released the loan as per the written application of the complainant. The complainant has availed the loan after making an application and after executing an agreement with them. The allegation of repossession of the vehicle while the complainant parked the vehicle infront of Palakkayam Service Sahakarana Sangam Bank by a person arranged by 2nd opposite party is denied. The contention of the complainant that at the time of repossessing of the vehicle an amount of Rs.4200/- as well as 2 receipts of pledged gold ornaments was inside the vehicle is denied. When the complainant made a complaint before the Mannarkkad policestation,2ndopposite party has explained the real facts to the police authority and they had advised the complainant accordingly. In fact the complainant has defaulted the payment of the loan amount even as per his complaint. There is no deficiency of service from the part of 2nd opposite party. Hence it is prayed that the complaint may be dismissed with cost.
Both parties filed their affidavit. Ext.A1 to A6 marked on the side of complainant. Ext.B1 to B3 marked on the side of opposite parties. Complainant and 2nd opposite party examined as PW1 and DW1. Matter heard.
Issues to be considered are
1. Whether there is any deficiency in service on the part of opposite parties?
2. If so, what is the relief and cost ?
Issues I & 2
Heard both parties and perused relevant documents on record. It is an admitted fact that complainant had purchased the vehicle from 1st opposite party. In Ext.B3 the complainant had paid only 9 installments from 8/8/11 to 5/4/12. Also the complainant has stated that he had paid 9 installments in the loan account. Thereafter the complainant has not paid the amount in the loan account. At the time of cross examination complainant deposed that വണ്ടിയുടെ കൈവശം നഷ്ടപ്പെടുന്ന സമയത്ത് 5 installment due ഉണ്ടായിരുന്നു. പിടിച്ചെടുത്ത മാസം കൂടി കണക്കാമ്പൊല് 6 ഉണ്ടാവും. പരാതിയില് 6 മാസം എന്ന് പറഞ്ഞിട്ടുള്ളത് ശരിയാണ്. Default വന്നാല് സാധാരണ Company അറിയും. മനപ്പൂര്വ്വമാണ് ഞാന് installment മുടക്കം വരുത്തിയത്. ഞാന് ഒപ്പിട്ടുകൊടുത്ത finance അല്ല എന്നതാണ് കാരണം. In short the complainant has not paid the installments due to the change of financial assistance.
At the time of cross examination of opposite party, the complainant had produced one document marked as Ext.A6 with objection. Ext.A6 is a letter given to the complainant by the S.I. of Police, Mannarkkad as per Right to Information Act, stating that one Basheer the agent of 2nd opposite party has repossessed the vehicle and kept in the yard of 2nd opposite party at Yakkara. The 2nd opposite party has already stated that the vehicle of the complainant has kept in the yard at Yakkara. At the time of examination DW1 deposed that he had not known Mr.Basheer. The complainant has not produced evidence to show that the agents of 2nd opposite party forcibly taken the vehicle. Moreover the complainant has not produced evidence to show that at the time of repossessing of the vehicle an amount of Rs.4200/- as well as 2 receipts of pledged gold ornaments was inside the vehicle. According to 2nd opposite party the vehicle was surrendered by the complainant to the company.
The complainant has not produced evidence to show that he was willing to opt financial assistance from the ICICI Bank. The complainant has not raised objections in his signature in Ext.B1 agreement. In Ext.B1 agreement the complainant has signed under the heading “Mahindra & Mahindra Financial Services Limited”. At the time of cross examination complainant deposed that
വേറെ നാലാള് കൂടെ ഞാന് മുഖാന്തിരം Opposite party യുടെ കൈയില് നിന്ന് വാഹനം വാങ്ങിച്ചിട്ടുണ്ട്. ബാക്കി വണ്ടിയ്ക്ക് finance ഉണ്ട്. എവിടെയാണെന്ന് അറിയില്ല. So the complainant has very well knowing the purchase of vehicle under hypothecation agreements. According to the complainant the agents of 2nd opposite party, one Basheer has taken his vehicle. But the complainant has not taken steps to examine Basheer as a witness. Hon’ble Supreme Court has recently in Suryapal Singh V.Siddha Vinayak Motors & Another 11(2012) CPJ 8SC held that “Under the Hire purchase agreement it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee/trustee, therefore taking possession of the vehicle on the ground of non payment of installment has always been upheld to be a legal right of the financier.” As per the agreement 2nd opposite party has right to take immediate possession of the vehicle in case of default. The complainant has not produced evidence to show that he has signed documents of ICICI Bank. Further the 2nd opposite party has taken possession of the vehicle due to default of loan amount. In the present case the complainant has not paid the balance loan amounts due to the 1st opposite party has arranged the finance through 2nd opposite party against his wishes and desires.
In the above discussions we could not attribute any deficiency in service on the part of opposite parties. Complainant miserably failed to prove his case. In the result complaint dismissed.
Pronounced in the open court on this the 20th day of July 2013.
Sd/-
Seena H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi.A.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Photocopy of complaint filed before the Mannarkkad Police Station
Ext.A2 – Application by complainant as per RI Act to SI, Mannarkkad.
Ext.A3 – Photocopy of Registration Certificate
Ext.A4 – Photocopy of Contract Carriage Permit.
Ext.A5 – Photocopy of Insurance Policy
Ext.A6 – Reply sent by SI of Police, Mannarkkad to the complainant as per RI
Act.
Exhibits marked on the side of the opposite party
Ext.B1 – Loan agreement entered between the complainant and opposite party
Ext.B2 – True copy of Power of Attorney.
Ext.B3 – Statement of account of complainant
Examination of Complainant
PW1 – Shaji
Witness examined on the side of the opposite parties
DW1 – Pradheesh.A.C
