IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Hon’ble Mr. Bose Augustine, President
Hon’ble Mr. K.N. Radhakrishnan, Member
Hon’ble Mrs. Renu P. Gopalan, Member
CC No. 275/12
Monday the 29th day of February,2016
Petitioner : Sijo Thomas,
Mangalathu Karottu House,
Chennad PO, Malika, Kottayam Dist.
Pin 686581
(Adv.P.A.Rabeez &Amal Jose
Varghese)
Vs.
Opposite parties : 1) Shriram Transport Finance
Com.,Ltd., 1st floor, Capital building,
Chennattumattam Junction,
Kattappana, Idukki Dist. Kattappana
686 508 Repted by its
Branch Manager
2) Shriram Transport Finance Co.Ltd.
3rd floor, Wockhardt Towers,
West Wing, GBlock, Bandra-Kula
Complex, Bandra East, Mumbai,
Pin 400051. Repted by the
Managing Director
(OP 1&2 Adv. R.Ajith)
O R D E R
Hon’ble Mr. Bose Augustine, President
The case of the complainant filed on 13-9-12 is as follows.
The complainant availed a vehicle loan of Rs.2,65,000/- from the 2nd opposite party for the purchase of a Tipper /Lorry bearing Reg.No.KL-07-AN1455. According to the complainant he entered the Hire Purchase Agreement through the 1st opposite party at the workshop of the complainant in the presence of their agent. And 1st opposite party collected 5 cheques from the complainant and 2 from his guarantor as a security for the said hire purchase agreement. The payment of the instalments become due. So the opposite parties demanded to surrender the vehicle at their Kattappana Office and the complainant surrendered the said Mahindra Tipper to the opposite party’s Recovery Executive, Vinu C.Gopi at Thiruvananthapuram, who have duly issued a letter regarding the same on 12-11-2010. Thus on 15-11-10 the complainant received a letter from the opposite parties stating that due to breach of the conditions of Hire Purchase Agreement, the opposite parties have terminated the Hire Purchase Agreement and complainant was directed to pay a sun of Rs.3,27,000/- within 7 days from the date of receiving the letter for the full and final settlement. It is also stated that in case of default in payment of the amount, the opposite party would proceed to auction the said vehicle and the sale proceeds would be adjusted to the amount due to the opposite parties. Then the complainant informed the opposite parties to proceed with the auction and later no further communication from the opposite party. So the complainant believed that there is no further claim by the opposite parties. But on 8-3-2011 the opposite parties issued a letter claiming a sum of Rs.3,26,525 towards the settlement of the dispute. Then the complainant informed the opposite party that he is not responsible for the delayed auction and not liable to bear any additional government dues or expenses incurred in between 12/11/10 to 8/3/11. But on 2-4-12 the opposite parties again issued another letter stating that the complainant is liable to pay a sum of Rs.3,31,287/- so as to settle the account. If the complainant is not remitted the said amount within 15 days the opposite parties would refer the matter to the sole Arbitrator appointed by them. According to the complainant the opposite parties released Rs.2,65,000/- after assessing the market value of the vehicle as Rs.3,53,300/-. The complainant also remitted 8 instalments in total amounting to Rs.94,800/-. The vehicle as according to the valuation of the opposite party, after 10% yearly depreciation, had a market value of Rs.3,18,000/- on 15/11/10. Even if the interest is calculated at the maximum allowed statutory rate of 18% per annum, if the vehicle was sold at the proper time, after setting of the accounts by auction, the opposite parties could have refunded Rs.1,00,000/- to the complainant. According to the complainant, he had surrendered the vehicle on 12-11-10 and from that date onwards, the tax, insurance and permit charge etc, stands outstanding to the government and demand of the said amount is unfair. The demand of outstanding due even two years after surrendering the vehicle amounts to unfair trade practice. Hence this complaint.
Opposite parties filed version contenting that the complaint is not maintainable. According to the opposite parties they had provide a vehicle loan of Rs.2,65,000/- to the complainant. As per the loan agreement dated 30-3-09, the complainant had to repay the loan amount with finance charges of Rs.99,176/-, in total Rs.3,64,176/- in 30 monthly instalments as Rs.12,139/- starting from 1/5/09 and the last instalment date is on 1-10-11. But the complainant did not repay the loan instalments as per the repayment schedule and he had remitted in total amount of Rs.97,942/-. The last instalment was paid on 1-4-10. After which there was no payment at all inspite of repeated reminders. And on 12-1-2010 he had surrender the vehicle with the 1st opposite party by retaining all the vehicle records including R.C.Book. The complainant assured that he will clear the loan account soon and get the vehicle released for which he is retaining the R.C.book. But the complainant failed to remit the amount as promised. So the vehicle is kept idle in the yard of the 1st opposite party. The opposite party is not able to dispose the vehicle as the R.C.book of the vehicle is in the custody of the complainant. The amount due as on 4-2-13 is Rs.3,64,176/-. According to the opposite parties the complainant filed this complaint for preventing the recovery proceedings and obstructing to the arbitration proceeding. The complainant is running a workshop and the vehicle was purchased for a commercial purpose. And the complainant is not a consumer as defined in the Consumer Protection Act. Furthermore the loan cum hypothecation agreement was executed at the office of the 1st opposite party at Kattappana and not in the workshop of the complainant. And the 1st opposite party has not collected any cheque leaf of the complainant or his guarantor as a security. According to the opposite parties by retaining the RC book the complainant requested the opposite party that not to auction the vehicle. The complainant never demanded the opposite party to sell the vehicle in auction. He was always seeking time by giving false assurance for settlement of the loan account. So the opposite parties were prevented from auctioning the vehicle. As per clause No.3.7 of the loan agreement the complainant /borrower is responsible for all rents, taxes, outgoings and other charges in respect of the garages and other premised in which the hypothecated assets are kept. So he cannot claim that he is not liable for any dues, expenses incurred in between 12-1-10 to 8-3-11. The complainant is not legally entitled to claim any amount from the opposite parties. According to the opposite parties there is no deficiency in service or unfair trade practice on the part of them. And they prayed for dismissal of the complaint with their cost.
Points for considerations are:
- Whether the complaint is maintainable or not?
- Whether there is any deficiency in service on the part of opposite parties?
- Relief and costs?
Evidence in this case consist of the proof affidavits of both sides and Ext.A1 to A4 documents from the side of the complainant and Ext.B1 and B2 documents from the side of opposite parties.
Point No.1
According to the opposite party the complaint is not maintainable before this Fora and this Fora has no territorial jurisdiction to entertain the complaint. According to the complainant the cause of action for the complaint partially arose at Kanjirappally at the workshop of the complainant there after when the complainant surrendered the vehicle to the opposite party and finally opposite party terminated the hire purchase agreement by issuing a notice. Admittedly, the opposite party’ s office at Kattappana, Idukki District and at Mumbai. Even though complainant stated that the cause of action for the complaint arose at the workshop of the complainant. Nothing has been placed on record to prove that cause of action wholly or in part arosed in Kanjirappally. In para 5 it is admitted that the vehicle was surrendered at Thiruvananthapauram. From Ext. B1 agreement it can be seen that the loan agreement was executed at Kattappana. In our view no cause of action wholly or partly arised within the jurisdiction of this Fora. So this Fora has no territorial jurisdiction as per Section II(2) of the Consumer Protection Act 1986. Point No.1 is found accordingly
Point No.2&3
In view of the findings in Point No.1 complaint is dismissed as not maintainable before this Fora.
Pronounced in the Open Forum on this the 29th day of February, 2016.
Hon’ble Mr. Bose Augustine, President Sd/-
Hon’ble Mr. K.N. Radhakrishnan, Member Sd/-
Hon’ble Mrs. Renu P. Gopalan, Member Sd/-
Appendix
Documents for the petitioner
Ext.A1-Letter dtd 12-11-2010 from Vinu.C.Gopi
Ext.A2-Copy of notice dtd 15/11/2010
Ext.A3-Copy of notice dtd 8/3/11 from Shriram Transport Finance Co.Ltd
Ext.A4-Copy of notice dtd 2/4/2012
Documents for the opposite party
Ext.B1-Photocopy of Loan cum Hypothecation Agreement dtd 30-3-2009
Ext.B2- Copy of statement of accounts dtd 4/2/13
By Order,
Senior Superintendent.
