ADV. RAVI SUSHA, MEMBER.

            Complaint for compensation and other reliefs.

          The averments in the complaint can be briefly summarized as follows:

          On 19.12.2003 the complainant availed financial assistance from the 1^st opp.party for purchasing a vehicle bearing Re.No.KL-02/E 1499 for the purpose of using it as contract carriage.    The 1^st opp.party availed Rs.3,50,000/- as loan to the complainant   As per the agreement the loan amount has to pay back by 36 instalments.    The repayment starts from 19.1.2004 and ends in 36^th instalment on 19.12.2006  The opp.party admitted that the complainant repaid Rs.75,650/- to the opp.party..   The opp.parties illegally without issuing notice to the complainant seized the vehicle forcefully by July 2005.   At the time the vehicle is having value of Rs.3,50,000/-.  After seizing the vehicle, opp.parties illegally kept the vehicle in custody and whenever the complainant approached the 1^st opp.party to settle the account requesting to setting off the value of the vehicle with the balance due the 1^st opp.party orally agreed.    The 1^st opp.party sent a letter  on 18.7.2005 to the complainant and then the complainant again approached the opp.party requesting to sell the vehicle for the market value by public auction, and the opp.party assure the same.     On July 2005 the opp.party sold the vehicle.   After that July 2005 onwards upto December 2006 the complainant is not liable to pay any future interest since the vehicle is seized by the opp.party.  The actual price value or the finance amount of the vehicle is 3.5 lakhs as on December 2004.  The complainant already paid Rs.75,650/-  The opp.parties are liable to give the market value as on July 2005 that comes Rs.3.5 lakhs.  So the opp.parties are not entitled to any amount from the complainant at the same time the opp.parties are liable to pay Rs.3.5 lakh as the market value of the vehicle and liable to set off the balance due.  At the time of availing financial assistance the opp.party obtained 3 blank cheque leaf of Catholic Syrian Bank Ltd. from the complainant as security for repayment of the instalments.     The opp.parties are jointly and severally liable to pay Rs.3.5 lakhs to the complainant as it amount to the value of the vehicle.     There is deficiency in service on the part of the opp.parties.  Hence the complaint.

          The opp.party 1 and 2  filed a joint version contending, interalia that the complaint is not maintainable either in law or on facts.  On 19.12.2003 complainant has availed a loan for an amount of Rs.3,50,000/- from the opp.party company for the purchase of used Contract Carriage Bus bearing No.KL-2 E 1499 by executing a lease agreement NO.KSD/28894 in favour of M/s. Shriram Transport Fon Co. Ltd., Kollam  As per the lease agreement dt. 19.12..2003 the amount of Rs.3,50,000/- along with hire charges and insurance deposit was agreed to be repaid by the complainant in 36 monthly instalment totaling Rs.5,39,375/-  The first 24 instalment were fixed at the rate of Rs.15,325/- and the  next 11 instalment were fixed @ 14,325/- and the last instalment was fixed at the rate of Rs.1`4,000/-   The instalments begins on 19.1.2004 and ends on 19.12.2006.  But the complainant violated the agreement and failed to repay the amount as agreed.    The opp.party registered notice to the complainant demanding the amount covered under the cheque on 24.8.2006.    But so far the complainant has not cared to repay the amount.   After that the opp.party filed a criminal complaint against the complainant before the Hon’ble CJM, Kollam and now the case is pending before the Judicial first class Magistrate Court –II, Kollam.  After that the complainant without knowledge and consent of  the opp.party transferred the vehicle to the some other person for consideration.  Now the where abouts of the vehicle is not known to the opp.party company.    All these facts the complainant approached this Forum with unclean hands and filed this complaint raising fale allegation.    The complaint is a chronic defaulter in payment of the amount due as per the agreement executed between the parties and while the agreement is in force he transferred he vehicle to the 3^rd opp.party without the knowledge and consent of the opp.party complaint     There is no unfair trade practice and deficiency in service on the part of the opp.parties.   Hence these opp.parties pray to dismiss the complaint.

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.parties.

2.     Reliefs and costs.

For the complainant PW.1 and 2 are examined.   Ext.P1 to P8 are marked.

For the opp.parties Ext.D1 to D6 are marked.

POINTS

          There is no dispute that the complainant has taken loan of Rs.3,50,000/- from KTDFC and it was arranged by the 1^st opp.party.   Complainant claimed that he has repaid Rs.75,650/- to the opp.party.   According to opp.party the complainant violated the agreement and failed to repay the amount as agreed.  No timely payment were given by the complainant and the opp.party is liable to remit the amount to the finance company irrespective.  If the fact whether the complainant has remitted the instalment or not to the opp.party.  Opp.party contented that as per the clause in the agreement, in thje event  of any default occurring in the payment of the insalment amount or other charges under the agreement the borrower shall pay to the company additional financial charges at the rate of 3% compounded monthly for the period commencing from the date of default upto the date of said instalment or other charges is paid.

          Opp.party’s 1^st point of submission is that this complainant is not maintainable asper Sec.2[1][d] of the Consumer Protection Act.   During cross examination of PW.1 he deposed that he purchased the vehicle for his livelihood.   For proving that PW.2 was also examined.  Hence the complainant is maintainable as per Sec. 2[1] [d] of Consumer Protection Act.

          The next point of argument of the  opp.party counsel is that the complaint s barred by limitation.   As per the complainant the cause of action arised on 18.10.2005 and 15.5.2007.   The complainant admits that he has not filed any petition before the concerned police station about the alleged seizer of the vehicle from January, 2005.   But from the deposition of PW.1 it can be seen that the process was continued during 27.10.2005 also.  Hence the question of limitation does not arise in this case.

          Opp.party’s contention is that they did not seizure vehicle as alleged in the complaint.  But Ext.P8 reveals that the vehicle was seized by the opp.party by the assistance of  Malampuzha Police it was  represented by the complainant on condition . 

          Through Ext.P5 the complainant proved that the cheque of Rs.5.11,320/-   is having no consideration which was filled up by the opp.party according to  whim  and fancies after obtaining it from the complainant as a security while entering into the agreement.  Ext.P7 shows the intention of the opp.party to sale the vehicle.  Considering the entire evidence we of the view that even though the complainant is liable to  pay the balance amount  to the opp.party,  the opp.party seized the  vehicle without complying the legal method.  Hence there is deficiency in service  on the part of the opp.party.

          In the result the complaint is allowed in part.   Opp.party is liable to pay Rs.50,000/- [Rupees Fifty thousand only] to the complainant as compensation for the deficiency in service.  Opp.party is also directed to pay Rs.2000/- as cost to the complainant.  The order is to be complied with within one month from the date of receipt of the order.

Dated this the  30^th     day of March, 2011.

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I N D E X

List of witnesses for the complainant

PW.1. – Sivaprasad

PW.2. – C. Rajan

List of documents for the complainant

P1. – Statement from opp.parties

P2. – Notice dated 18.10.2005

P3. – Statement dt. 20.10.2007

P4. – Letter dt. 19.9.2005 from the RTO

P6. – Certified copy of Statement dt. 18.7.2005

P7. -  Notice issued to the complainant

P8. – Signed paper

List of witnesses for the opp.parties

NIL

List of documents for the opp.parties

D1. -  Registration particulars

D2. – Blank cheque

D3. -  Dishonor slip

D4. – Letter dt. 18.10.2007

D5. – Acknowledgement card

D6. -  Complaint before the CJM, Kollam.