CDRF Wayanad Civil Station,Kalpetta North consumer case(CC) No. 140/2003
Rajalekshmi swan,S/o radhakrishnan
...........Appellant(s)
Vs.
Propriter,K M Bokadia Golden Plaza Chacko, Vikas Auto Consultant
...........Respondent(s)
BEFORE:
1. K GHEEVARGHESE 2. SAJI MATHEW
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
By Sri.K. Gheevarghese, President The complaint filed under section 12 of the Consumer Protection Act. The gist of the complant is as follows: The Complainants are legal heirs of the deceased T. Radhakrishnan, who was the owner of Jeep No.KL 12/A 7900. The Opposite Party No.1 is the Financier who gave the (Contd......2) -2- financial assistance of Rs.2,25,000/- on 21.01.2000 under the security of the vehicle. The Opposite Party No.2, was the agent of the Opposite Party No.1, who acted in behalf of the Opposite Party No.1 as an agent and the agreement of loan was executed at S. Bathery and the amount was also received from the Office of Opposite Party No.2. The terms and conditions of the agreement was as such the Complainant had to pay Rs.3,39,000/- including principle and interest to the Opposite Parties and the amount is to be paid in 40 monthly installments of Rs.8,475/-. The repayment was scheduled to begin on 21.03.2000 and ending on 21.06.2003 in monthly wise of 40 times. The deceased paid the monthly installments regularly and all together Rs.1,11,600/- was paid. During the 2001 the deceased could not continue the installments being he was ill and undergoing treatments. On 02.01.2002 the Opposite Parties seized the vehicle forcefully from the custody of the Complainant and took off it. The seizing of the vehicle was on the day when the deceased brother died and all the members were out of the house. The deceased went to Chennai to contact the Opposite Party No.1 and to settle the matter in terms. It is learned that the Opposite Party No.1 treated the diseased in such a way and because mental pain and agony the deceased died on 13.01.2002 on his way back from Chennai due to the illegal and forcefully seizing of the vehicle and more over the ill treatment paved the way for the death of deceased. The attempts made by the legal heirs get back the vehicle was not responded positively. A lawyer notice was sent on 26.02.2002 by the Complainant to the Opposite Party who settled the account and to give back the excess amount collected. The notice was replied with false and untenable contention. The transaction between the deceased and the Opposite Parties are not a hire purchase instead it is only a loan transaction. The documents executed by the Opposite Parties are not in fact a Byparty agreement and the other credential course signed by the Opposite Party are not valid nor (Contd......3) -3- binding upon the deceased and the Complainants. The seizing of the vehicle from the lawful custody is an illegal act and more over deficiency in service. The Complainant had the loss of Rs. 5,00,000/- by the illegal and defective dealing of the Opposite Parties. The Opposite Parties are liable to compensate the loss of the Complainants and to restore the possession of the vehicle to the Complainant. As a future loss the Opposite Parties are to be give the Complainants Rs.500/- per day so long the vehicle is in the custody of the Opposite Parties. There may be the direction to the Opposite Parties to restore the possession of the vehicle No.KL 12/A 7900 to the Complainant directed to give a sum of Rs.5,00,000/- as compensation for damage and injury and to pay compensation of Rs.500/- per day deal. The Opposite Parties filed version on their appearance. The Opposite Party averred in version that the terms and conditions of the transaction are as per the written agreement between the Complainant and Opposite Party at Chennai. The term between the Complainant and Opposite Party No.1 is absolutely governed by the lawful hire purchase agreement and that also comes under the motor vehicle act and rules. The petition does not come under the purview of the Consumer Protection Act. The hire purchase agreement dated 21.2.2000 executed in Chennai between Complainant and this Opposite Party with respect to the vehicle No.KL 12/A 7900. The main clause of the agreement specifies that the real owner of the vehicle would be the Opposite Party though the diseased is the RC owner. The Complainant has to keep the vehicle in good condition there is no right confirmed upon the Complainant to sell, assign or alienate or any transaction in way of exchange are to be with the free consent of the Opposite Party. The repayment is to be made punctually and if in default take place an additional finance charge will be imposed at the rate of 36% interest. The Opposite Party has (Contd.....4) -4- every right to determine either to terminate hire purchase or to repossess the vehicle without any notice. The vehicle can be retained as the absolute property of the Opposite Party alone. If any dispute arises the territorial jurisdiction for litigation will be confirmed to Courts in Madras. According to the Opposite Party No.1 the Complainant is a chronic defaulter. The repayment was to be started from 21.02.2000 and the subsequent payments without failure. The schedule of payment was not properly maintained by the Complainant. The Complainant's husband failed to clear the liability even after the repeated demands. Apart from that the Complainant's husband also failed the surrender the vehicle. The vehicle was repossessed in a very bad conditions. The telegram message was sent to the Complainant's husband and the Inspector of Police, Mananthavady was also informed the repossession of the vehicle due to the non payment of the hire installments. On 24.1.2002 the Regional Transport Officer, Kalpetta issue notice in form No.37 to the Complainant. The over due amount is not claimed by the Opposite Party No.1. The statement accounts shows that the Complainant is liable to pay Rs.90,400/- including the other expenses up to 21.02.2000. The complaint is to be dismissed for the reasons. Being the Forum has not territorial jurisdiction and the transaction does no come within the definition of Consumer Protection Act and there is no deficiency on the part of the opposite Party. The Opposite Party No.1 is to be paid Rs.90,000/- plus cost and additional and damages cost to the goodwill and reputation of the Opposite Party. The Opposite Party No.2 filed version and it is averred that the Opposite Party No.2 has no roll in arranging the loan or the repayment of the scheme. The Opposite Party No.2 has no knowledge of the seizing of the vehicle too. The Opposite Party No.2 consider that the Opposite Party No.1 acted only as per the terms and conditions of the hire purchase agreement. The relief prayed by the Complainant is exorbitant amount and the Complainant is (Contd........5) -5- not entitled for it. The complaint may be dismissed with exemplary cost and compensation to the Opposite Party. The points in consideration are: 1.Whether the deficiency or unfair trade practice effected in the dealing of the Opposite Parties. 2.Relief and costs. Point No.1: The Ist Opposite Party is the Financier and the Opposite Party no.2 is the Agent of the Opposite Party No.1. The Complainant is examined as PW1, Ext.A1 to A4 are marked. Ext.A1 is the family membership certificate which shows the Complainant are the legal heirs. Ext. A2 series 17 in numbers shows the receipt given to the deceased towards the payment of the hire purchase installments. The Complainant sent lawyer notice to the Financier and it is the Ext.A3. A reply to the lawyer notice was also sent it is the Ext.A4. The Opposite Parties filed documents which are marked as Ext.B1 to B13. B1 is the hire purchase agreement, the amount remitted towards hire purchase installment by the Complainant is not disputed entirely. According to the OPW1, the sun of the Opposite party is acquired as OPW1. The OPW1 is not a party in the dealing. The Opposite Party No.1 is not in a position to walk due to the old age. The contention of the Complainant that blank cheque were received are denied by the OPW1. The Complainant has to repay Rs.3,39,000/- along with interest. The OPW1 who appeared in behalf of the Opposite Party has not filed any power of attorney or any letter authorised him to appear in behalf of the Opposite Party. The OPW1 has deposed that a special instruction (Contd......6) -6- was given by him for the repossession of the vehicle. A letter to seize vehicle was also given to Opposite Party No.2. Ext.B15 is the consent letter given by the deceased Radhakrishnan. The contention of the Complainant that the consent letter procured by the Opposite Party is a concocted document. The genuiness of Ext.B15 is not trust worthy. The endorsement in this document is not in presence of witnesses and hence it is to be considered that the letter produced in consistent with the consent of the deceased. More over OPW1 the son of the Opposite party gives the testimony that he has given the seizing letter to the Opposite Party No.2. The installments remitted towards the hired sum. Rs.1,22,600/- is the remitted amount according to Ext.A4. The vehicle was also sold to other party and the RC is also transfered by the steps taken by the Opposite Party. The seizing of the vehicle at the instance of the Opposite Party No.1 is against reason and justice. According to OPW2 the Jeep was sold in auction and the documents with respect to that is also in possession of the Opposite Party. No document is produced to establish that whether the Jeep was sold in auction at the highest rate. The OPW3 is the second party, who purchased the Jeep from one Baby who is examined as OPW2. According to them the Opposite Party sold the vehicle first to one Baby for the rate stated by them is Rs.2,00,000/-, there is nothing to bring forth the price of the vehicle apart from the oral testimony. There is a considerable depreciation in the value of the vehicle within a short span of time if the testimony given by the OPW2 and OPW3 are considered. The entire transaction of the repossession of the vehicle and its sale envisage deficiency in service and unfair trade practice. The point No.1 is found in favour of the Complainant. (Contd.......7) -7- Point No.2: The son of the Opposite Party is the OPW1, who is not authorised to give evidence, according to him he is the partner of the business concerned. Apart from documents nothing is deposed to show that how much is the amount due to the Opposite Party. The lawyer notice is the Ext.B10 the due amount after deducting the value of the vehicle Rs.27,400/- the amount claimed by the Opposite Party from the Complainant is Rs.90,400/- which according to them due amount. The deserving price cannot be assessed in this juncture and no document is produced to estimate the actual price. The illegal repossession of the Jeep is effected and the seized vehicle was sold subsequently transferring the name from the RC. The over due amount claimed by the Opposite Party No.1 of Rs.90,400/- is unreasonable and the Complainant is not entitle to give the amount towards over due amount as claimed by the Opposite Party. The Complainant is also entitled for the compensation of Rs.5,000/- along with cost of Rs.1,000/-. In the result, it is held that the Complainant is directed not to give the over due amount Rs.90,400/- (Rupees Ninety thousand Four hundred only) to the Opposite Party and the Opposite Party is also directed to give the Complainant Rs.5,000/- (Rupees Five thousand only) towards the compensation and Rs.1,000/- (Rupees one thousand only) as cost. In case of any failure on the part of the Opposite Party, the Complainant is entitle to execute this order as per the provisions of law. Pronounced in in open Forum on this the 15th day of February 2008. PRESIDENT: Sd/- MEMBER: Sd/- /True Copy/ PRESIDENT, CDRF WAYANAD. APPRENDIX Witnesses for the Opposite parties OPW1 Sunil Bokadia Business man OPW2 OPW3 Thomas Vehicle Business
