Date of filing :13-08-2010
Date of order:12-10-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC. 180/2010
Dated this, the 12th day of October 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT. K.G.BEENA : MEMBER
Joseph D’Souza,S/o Danial D ‘Souza, } Complainant
R/at “Everest Mansion”,
Kayyar, Po.Kayyar. Uppala Via,
Kasaragod District.
(Adv.A.Balakrishnan Nair, Kasaragod)
Shriram Transport Finance Co. Ltd, } Opposite party
Ist floor, Thalangara Gate,
Opp. IBP, Petrol Pump, Nullipady,
Kasaragod
(Adv. B.Ramakrishna Bhat, Kasaragod)
O R D E R
SMT.K.G.BEENA, MEMBER
This complaint is filed by Joseph D Souza alleging deficiency of service on the part of opposite party. The complainant purchased a JCB Tractor with the financial aid of opposite party for `13,75,000/-. Out of which `10,30,000/- was sanctioned by opposite party as loan. Eventhough the complainant promptly repaid the loan the opposite party re-possessed the vehicle on 31-05-2010 without notice or information. Now opposite party is retaining the vehicle as well as the money of the complainant unlawfully. Hence the complaint for necessary redressal.
2. According to opposite party the complainant himself voluntarily surrendered the vehicle to the opposite party as he is not in a position to pay instalments. As per the request of the complainant the opposite party sold the vehicle and the amount was credited to the complainant’s loan account and closed the loan. These things are informed to the complainant. The complainant has no locus standi to prefer this complaint as he is not a consumer within the meaning of Sec 2 (d) of the Consumer Protection Act 1986. If there is any difference or dispute the complainant has to make a request to opposite party for referring the dispute to Arbitration.
3. The complainant filed proof affidavit in support of his case. Exts A1 to A7 marked. Complainant faced cross-examination. Insurance Surveyor Riyas Ali who assessed the value of the vehicle was examined as DW1 and Exts. B1 to B7 marked. Both sides heard. Documents perused.
4. After considering the facts of the case the following issues were raised for consideration.
1. Whether there is any deficiency in service on the part of opposite party?
2. If so, what is the relief?
5. For convenience both these points can be discussed together.
Here the complainant with the financial aid of opposite party purchased a JCB Tractor bearing Reg.No.KL-14 G- 6608. The opposite party after complying all formalities sanctioned the loan of `10,30,000/-. Complainant resulted the repayment instalments regularly. On 8-3-2010 the complainant paid `38,758/- and in total he paid `7,17,212/-. Yet the vehicle repossess by the opposite party on 31-05-2010 without any notice or information. There was no sufficient ground for repossession. The opposite party retained the vehicle of the complainant and money paid towards the instalments. Ofcourse the action of opposite party is unfair trade practice and deficiency in service. The contention of the opposite party that the complainant himself voluntarily surrendered the vehicle as he is not in a position to pay the loan instalments and asked the opposite party to sell the vehicle etc are unbelievable considering the circumstances of the case. Had it been surrendered then they should have obtained a surrender certificate from the complainant. Ext.B5 is the report of insurance surveyor. As per Ext.B5 the insurer inspected the vehicle on13-07-2010 and filed the report on 15-07-2010. At the time of inspection the vehicle was in good running condition the only defect he noted is a bent on the cabin assembly. The date of registration of the vehicle is 16-10-2007. According to the insurance surveyor the depreciation of the vehicle for the 1st year is 5% the 2nd year is 20%, for the 3rd year is 30%, for 4th year is 40%. The vehicle was re-possessed by the opposite party on 31-05-2010. The registration of the vehicle was in the year 2007. So the depreciation of the vehicle in the year 2007 is about 30%. The insurance surveyor assessed the value of the vehicle by deducting depreciation from purchase value is about 9 lakhs. The market value of the vehicle at the time of re-possession is about 9 lakhs as per the insurance surveyor in his cross-examination. Eventhough the complainant could not repay the entire loan amount he paid `7,17,212/- after that the vehicle was re-possessed by the opposite party. There was no sufficient ground for re-possession. The repossession was not legal also in view of a catena of decision of the Hon’ble Supreme Court and National Commission. What the opposite party done is mere exploitation of the consumer. Consumer Forums are constituted to safeguard the interests of consumers from the high handed actions of service providers and traders.
7. In Ext.A6 document that is the copy of OP NO.7/2010 before the Arbitrator, Kannur. In para 4 of the said petition it is stated by the opposite party that “consequently the said vehicle is surrendered by the respondents which was duly sold by the petitioner for `3,75,000/- (`Three lakhs seventy five thousand only) which is the best available market price and the sale amount was credited to the account on 16-06-2010”. The sale proceedings are over before 16-06-2010 and the amount was credited to the account of the complainant. As per Ext.B5 document the surveyor inspected the vehicle on 13-07-2010 and the valuation report filed on 15-07-2010. i.e. one month after the sale of the vehicle. We are of the view that Ext.B5 and B7 are concocted after getting notice from the Forum and only for the purpose of the case. As per Ext.B7, IDV of the vehicle is `4,05,000/- which is produced for the purpose of reducing the real value of the vehicle. Ext.B7 is issued from Sriram General Insurance Company a subsidiary unit of opposite party. It proves that the vehicle is under insured. Perhaps it may be for saving the insurance premium. A licensed insurance surveyor Riyas Ali who assessed the value of the vehicle was examined as DW1. According to him after deduction 30% from the purchase value the value of the vehicle will come around 9 lakhs. From the documents produced before the Forum it is clear that the intention of opposite party was to sell the vehicle for a nominal amount and to grab money unauthorisely from the complainant. The purchase value of the vehicle was `13,75,000/- out of that `10,30,000/- was financed by opposite party and the remaining amount `3,45,000/- was advance by the complainant himself. He remitted `7,17,212/- (rounded to `7,17,000/-) towards the payment of fiancé amount. So after the repossession of the vehicle his total loss is `7,17,000/- + `3,45,000/- i.e. `10,62,000/-. Now he lost both his money and the vehicle and it is illegally retained by opposite party. This is nothing but an unjust enrichment and it is legally impermissible. Ofcourse the complainant may have paid the instalments from the income derived by plying the vehicle. We are of the view that complainant has to be adequately compensated for his high handed action of the opposite party. The complainant is therefore entitled to get back the entire amount he remitted by way of instalments i.e. 7,17,000/- and a compensation of `1,00,000/-
In the result, the complaint is allowed and opposite party is directed to pay `8,17,000/- to the complainant within 30 days from the date of receipt of this order. Failing which opposite party shall be liable to pay interest @ 12% from the said amount `7,17,000/- which complainant remitted in instalments from the date of complaint till payment.
MEMBER MEMBER PRESIDENT
Exts.
A1. Hirer Ledger Details as on 31-05-2010.
A2. Copy of RC
A3. 04-06-2010 copy of letter issued by opposite party.
A4. Copy of title deed
A5.5-10-2010 copy of receipt.
A6. Copy of OP No.7/2010
A7.Copy of Arbitratior B.P. Saseendran, Advocate Kannur. A.O.P.No.7/2010.
B1. 04-06-2010 copy of letter
B2.Postal receipt.
B3.Postal acknowledgement card
B4.Photocopy of Loan Cum Hypothecation agreement.
B5. 15-07-2010 photocopy of valuation report.
B5 (a) Photo of the vehicle.
B6. Hirer ledger
B7. Copy of the Insurance Policy.
PW1.Joseph D’Souza.
DW1. Riyas Ali
MEMBER MEMBER PRESIDENT
Pj/
