Date of filing : 18-12-2009
Date of order : 31-08-2010
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
C.C. 273/09
Dated this, the 31st day of August 2010
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.P.P.SHYMALADEVI : MEMBER
Shaharuddin,
N.A.House,
Kudlu.Po, Eriyal, } Complainant
Kasaragod taluk & Dist.
(Adv. A.B. Nair, Kasaragod)
1. Shriram City Union Finance Ltd,
39/3500, Manikkath Cross Road, } Opposite parties
Ravipuram, Cochin-16.
2. The Branch Manager,
Sriram City Union Finance Ltd,
Nullipady, Kasaragod.
(Adv.Sreejith.K. Kasaragod)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
Case of the complainant
Complainant availed a loan from opposite party No.1 through opposite party No.2. The total amount to be repaid was `36,500/-. The EMI (Equated monthly instalment) fixed was `1,422/-. The last instalment to be paid was on 7-9-2009. Complainant altogether remitted `43,468/- including overdue interest. When the complainant was in judicial custody during the period 26-09-2009 to 22-10-2009 in connection with his wife’s suicide, the opposite parties without any notice seized the vehicle when nobody was therein in the complainant’s home. Thereafter complainant contacted opposite party then it was told that `31,535/- is due from him. But they did not give him copy of the book of account. Actually he paid instalments along with overdue amount. But Opposite party is not returning him the vehicle. The original RC of the vehicle is also with opposite party. At the time of repossession the motor cycle was in good running condition and the market value was `40,000/-. Complainant is self employed and the vehicle is essential for his day to day activities. Therefore the complaint for a direction to opposite parties to return the vehicle with its RC and clearance certificate together with a compensation of `10,000/- and cost of the proceedings.
2. Version of Opposite parties 1 & 2
Opposite parties No.1 & 2 filed a version jointly. According to their version the total amount repayable was `36,500/- is not correct. The RC of the vehicle is also not in the custody of opposite parties. The opposite parties extended loan facility of `36,500/- to the complainant after obtaining a loan cum hypothecation agreement on 22-08-2006. As per the terms and conditions of the agreement complainant has to repay the loan amount together with interest in 36 equated monthly instalments of `1,422/- each which is payable on 7th of every month commencing from 7-10-2006 to 7-09-09. At the time of executing the loan agreement complainant issued 36 post dated cheques of `1,422/- each for the repayment of his loan. Further the agreement contains an arbitration clause in case of disputes. Therefore as per Sec 8(1 )of Arbitration & Conciliation Act the dispute should have been referred to an arbitrator if party applies to refer the matter to an arbitrator. The complainant paid an amount of `43,468/- belatedly and thereafter he neglected and failed to pay the instalments and failed to maintain the financial discipline as per the agreement. On 29-09-09 the company officials once again went to the complainant’s residence for collection of instalments but the complainant was not available. The relatives and neighbours failed to give any information regarding the whereabouts of the complainant and hence opposite parties forced to take the vehicle in to custody and they had not made any objection at the relevant time. The said fact was intimated to the complainant through his relatives. The opposite parties though allowed one month time to clear the dues the request of complainant, he has not cleared the dues till date. The complainant is liable to clear 7 instalments along with cheque bounce charges and overdue interest so as to settle the loan account. The opposite parties never taken any further steps to sell the vehicle. There is no deficiency in service on the part of opposite parties and there is no cause of action for this complaint. The complaint is liable to be dismissed with cost of opposite parties.
3. Complainant filed proof affidavit in support of his case. Exts A1 to A3 marked. On the side of opposite parties Sri. Titus the law officer of 2nd opposite party filed affidavit. Exts B1 & B2 marked. Both sides heard. Documents perused.
4. There is no dispute that the complainant is liable to repay 36 instalments @ `1,422/- cash. So that would comes to `51,192/-. But according to complainant he has paid only `43,468/-. Ext.A3 series Photostat copies of the receipts show that the complainant has remitted 28 instalments of `1,422/- each. So that would amounts to `39,816/- towards the monthly instalments. But the opposite parties admit that complainant has remitted `43,368/- towards the monthly instalments. As per the agreement complainant ought to have remitted the entire agreed amount before 7-9-2009. But as on that date he has remitted `43,468/-. So there is a balance of `50,112-`43,4681/- = `6,644/- to be paid towards the agreed amount. But the claim of opposite parties towards overdue charges + Principal is as per Ext.B3 is `27,911/- as on 6-3-2010.
5. But on a close reading of Ext.B3 it is seen that the statement of account prepared is not according to law. As per the contract opposite parties calculated the interest for the whole period of 36 months in flat rate. It is seen as per Ext.A2 series receipts that the opposite parties have collected only the monthly instalments eventhough complainant is not paid the instalments as per the schedule of payment. Had they been entitled for any additional amount by way of penal interest or additional finance charges then such additional finance charges ought to have appropriated at first when the subsequent monthly instalments were paid on belated stages. That is the law of appropriation of interest. If so the customer would be more vigilant in making the monthly payment punctually so as to avoid additional finance charges. Ignoring the additional finance charges if the opposite parties are collecting the subsequent instalments the presumption is that they have waived or abandoned their right to collect additional finance charges and demand for additional finance charges at a later stage on higher rate is nothing but deficiency in service. From Ext.B2 statement of account it is seen that a sum of `13,487/- is calculated towards additional finance charges. The complainant is liable to pay additional finance charges only for the payments which is remained unpaid. As per the agreement the last instalment should have been paid on 7-9-2009. But as on that date the complainant is seen remitted only `43,468/- as against the agreement amount `50,112/-. So the opposite parties are entitled to collect additional finance charges only for the balance due from the date of last payment to till date of payment.
6. In this case the repossession of the vehicle by opposite parties cannot be regarded as forceful one. Since admittedly during the day on which the opposite parties repossessed the vehicle, the complainant was in judicial custody in connection with a criminal case.
8. The contentions that the matter should have been referred to an arbitrator in view of the arbitration clause contained in the agreement is also not sustainable in view of a catena of decision s rendered by our Hon’ble Supreme Court and Hon’ble National Consumer Disputes Redressal Commission.
9. Relief & costs
Admittedly complainant did not remit the entire instalments to opposite parties. The opposite parties also entitled for cheque bouncing charges and other allied expenses Therefore we fix a global sum of `14,000/- the opposite parties are entitled to collect including all charges. The complainant shall remit the said amount within two months from the date of receipt of copy of this order to the opposite parties. On receipt of payment the opposite parties shall return the Motor Cycle bearing Reg.No.KL-14/F 8842 to the complainant as in the condition when it is repossessed together with vehicular documents kept in their custody with H.P. Termination Letter together with a cost of `2,500/-. If the opposite parties are failed to return the RC then on application by the complainant necessary direction will be issued to the concerned RTA to issue duplicate RC after canceling the H.P endorsement. In that case opposite parties shall be further liable to pay a sum of `1000/- as additional costs.
MEMBER MEMBER PRESIDENT
Exts.
A1.02-0-2006 Sanctioning order with chart of payment.
A2. 07-10-09 Pre-sale notice.
A3.Series (12 Nos) receipts issued by opposite party.
B1. Statement of Account as on 06-03-2010(Shriram City Union Finance Ltd)
B2. Loan Cum Hypothecation Agreement.
MEMBER MEMBER PRESIDENT
Pj/
Date of filing : 18-12-2009
Date of order : 20-01-2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.273/2009
Dated this, the 20th day of January 2012
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT. K.G.BEENA : MEMBER
Shaharuddin, } Complainant
N.A. House, Kudlu Po, Eriyal,
Kasaragod Taluk & Dist.
(Adv.A.Balakrishnan Nair, Kasaragod)
1 Shriram City Union finance Ltd, 39/3500 } Opposite parties
Manikkath Cross road, Ravipuram,
Cochin.16.
2. The Branch Manager,
Shriram city Union finance Ltd,
Nullipady, Kasaragod.
O R D E R
Complainant present. Opposite parties absent. No representation. Counsel for the complainant submits that the complainant want to obtain a duplicate RC from the concerned RTA and in that case opposite parties shall not object the same. The said submission is recorded and hence complaint is closed as settled.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
