Kerala

Idukki

CC/27/2020

Lalitha C M - Complainant(s)

Versus

Sriram Trance port financeInsurance Com .ltd - Opp.Party(s)

06 Dec 2022

ORDER

DATE OF FILING : 06/02/2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 16^th day of December 2022

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.27/2020

Between

Complainant                            : Lalitha C.M.,

                                                  Kannankariyil House,

                                                  Ward 3.339, Thoppippala P.O.,

                                                  Swaraj, Idukki District.

                                                       (By Adv.M.S.Mony))

                                                          And

Opposite Party                          : M/s Shriram Transport Finance Co.Ltd.,                                       

                                                    Kattappana Branch, 2^nd Floor,

                                                    Kanakkali Building, Edassery Junction,

                                                    New Bus Stand Road, Kattappana, Idukki District,

                                                    Represented by its Authorised Representative

                                                    Rajesh T.R.

                                                      (By Adv.Gem Korason)

O R D E R

SRI.AMPADY K.S., MEMBER

 

Allegations raised in the complaint against opposite party are as under:-

 

1 . Complainant took vehicle loan from opposite party on 18/04/2013 as per agreement and purchased vehicle and registered with number KL-37B-6832.  Out of the total value of Rs.4,50,000/- she remitted Rs.50,000/- in cash and balance Rs.4 Lakhs was taken as loan.   As per agreement she had to pay total amount of Rs.5,61,047/- in 48 installments from  18/04/2013 to 20/03/2017.  Out of this, she

(Cont…..2)

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remitted Rs.5,17,106/- and an amount of Rs.43941/- only to be paid by her. She remitted Rs.11,681/- each every month without default.  At the time of agreement, opposite party obtained two blank cheques of her bank account No.0603053000004569 of  South Indian Bank, Kattappana.  Besides, opposite party obtained tax receipt for 5 cents of her property comprised in Sy No.57/38 of Kanchiyar Village.

2 . Complainant is old aged, suffering from low eye vision and illness.  While she was alone in her house, certain persons came there and forcibly taken away the vehicle without giving any papers.  When she asked papers, they told her to take it through court.  It is quite injustice.  Opposite party’s persons regularly threatened.

3 . Approximate value of the vehicle comes Rs.3 Lakhs.  As per agreement 8% interest was fixed.  After that 36% interest was levied.  It is an exploiting rate of interest.

4 . Due to serious illness, she was hospitalized for 3 months in Kottayam  Medical College.  So she informed her inability to pay 3 installments and requested for some time for payment.  While so, the vehicle was taken away forcibly, which resulted in mental agony and irreparable loss to her.  Act of opposite party is an unfair trade practice.

5 . Though she requested for account statement and agreement copy, they had given incomplete statement without  proper entries,  but copy of agreement was not given.  Opposite party had manipulated the statement and cheated her.  Certain payments made by her is not shown in the statement given.

6 . Action of the opposite party is deficiency in service and unfair trade practice.

So she prayed for the following reliefs.

1 . Direct the opposite party to give  the amount remitted by her Rs.5,17,106/- with approximate value of vehicle Rs.3 Lakhs along with interest  thereon amounting to Rs.80,000/-.

(Cont…..3)

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2 . Recover Rs.50,000/- from opposite party and give to her towards deficiency in service, mental agony and difficulties caused to her.

3 . Allow Rs.20,000/- towards costs of litigation.

Opposite party filed written version in the following lines.

1 . The opposite party denies all the averments except those that are specifically admitted hereunder.  The complainant filed in the above case is not maintainable either in law, facts or circumstances of the case.  As per  the terms of the agreement if any dispute arose the same has to be referred to the Arbitrator and as per section 8 of the Arbitration and Conciliation  Act any Forum or Court receiving petition should refer the matter to the Arbitrator if there is any Arbitration clause in the agreement.  The matter in issue hence considered and adjudicated before the Arbitrator.  There is an Arbitration award passed on 02/12/2019 in respect of matter in issue between the complainant and the opposite party.  Hence the present complaint is not maintainable before this Honourable Forum.  The copy of the award dated 02/12/2020 is produced as document No.1.

2 . The complainant is using the vehicle for commercial purpose and there is no consumer relationship and the complaint is hence not maintainable before the Forum.  It is true that the opposite party is engaged in the business of vehicle finance.  The contention as to the ownership of the vehicle must be proved by the complainant.  It is true that the complainant availed loan for her vehicle no KL 37 B 6832 but the details of loan and remittance stated by the complainant are false and hence denied.  On 18/04/2013 loan was advanced to the complainant and as per the agreement an amount of Rs.561047/- have to be repaid by the complainant by total 48 instalments.  Out of the 561047/- an amount of Rs.410652/- is the loan advanced and an amount of Rs.150395/- is the interest.  As per the terms of agreement the complainant agreed to pay an amount of Rs.561047/- by 48 instalments within the stipulated time.  The contention contrary to the same is false and hence denied.  The complainant did not turn up to remit instalment and had made default in repaying the instalment.

(Cont…..4)

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3 . The complainant further availed WCL on 07/04/2014 and an amount of Rs.20321/- was sanctioned and the interest for the same is Rs.2455.  The complainant promised the prompt payment of said WCL by 12 instalments.  The complainant further availed WCL on 28/03/2015 and an amount of Rs.88,000/- was sanctioned and the interest for the same is Rs.32831.  The complainant promised the prompt payment of said WCL by 24 instalments.  The complainant further availed WCL on 09/06/2015 and an amount of Rs.20645/- was sanctioned and the interest for the same is Rs.2467/-.  The complainant promised the payment of said WCL by 12 instalments.  The complainant further availed WCL on 17/05/2016 and an amount of Rs.20309 was sanctioned and the interest for the same is Rs.2263.  The complainant promised the payment of said WCL by 12 instalments.  The complainant further availed WCL on 04/05/2017 and an amount of Rs.19966/- was sanctioned and the interest for the same is Rs.2690/-.  The complainant promised the payment of said WCL by 12 instalments.  The complainant hence liable to pay the WCL loan availed by him with interest to the opposite parties.  The amount availed by the complainant as WCL is also accounted in the statement of account and the receipt amounts shown in the statement of account includes the WCL sanctioned and hence the amount shown in the receipt column of the statement is in fact not totally remitted by the complainant but in fact includes the WCL.  The contentions in contrary to the above true facts are false and hence denied by the opposite party.

4 .  The contentions as to the remittance of Rs.517106 are false and hence denied.  The contention that there is only due of an amount of Rs.43941/- is also false and hence denied.  The contention as to the prompt payment by the complainant is false to the core and hence denied.  The contention that the complainant had entrusted cheque leaves and tax receipt as security are absolutely false and hence denied.  The cheque if any entrusted is duly executed by the complainant and the same is only towards the legally enforceable debt.  The contention as to the disease and the reason for the non remittance of the installments are all cooked up stories for the sake of the complaint and there is no bonafides in the same and the complainant must put to strict proof to prove the same.  The allegations as to the threatening and

(Cont…..5)

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abusing from side of the opposite party are false and hence denied.  The contention as to the market value of the vehicle is false and hence denied.  The contention that the interest rate is 8% and the opposite party had charged 36% is false and hence denied.

5 . The complainant and guarantors had executed the agreement duly and it is duly signed by the complainant and guarantors.  The contention that the complainant is ready to remit the instalments is false and hence denied.  The above complaint is filed with the ill intention to drag the remittance of loan.  The contention put forward by the complainant is not correct.  Opposite party is claiming the amount only which they are legally entitled.  The contention as to the illegal demand of the opposite party is also false and hence denied.

6 . The contention as to the interest calculation and that the opposite parties has not complied with the RBI guidelines is false and hence denied.  The above opposite parties had demanded and received only what they are legally entitled as per the terms of the agreement.  The complainant at the time of availing the loan had duly executed loan agreement affirming the terms and conditions regarding the interest.  The complainant hence not entitled to act against the terms of the agreement duly executed by him.  The complainant is bound to make payment as per the terms of the agreement.  The above said allegations are for escaping from his liability.  The contention that the complainant was ready to pay the amount due in the loan account is false and hence denied.

7 . The contention as to the unfair trade practice, penal interest and default charges is false and hence denied.  The opposite party had claimed only what they are legally entitled.  The complainant is not entitled to keep away from paying the due amount by above said lame excuses.  The contention that the complainant was remitting the instalments correctly and the reason stated for default is false and hence denied.  The complainant is a gross defaulter and the complainant did not make any payment as stipulated and as per the terms of the agreement.  The payment was made after the stipulated date.  Since the payment of instalment was

(Cont…..6)

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not made within the stipulated time the opposite party is entitled to claim overdue charges as per the terms of the agreement and the complainant is liable to pay the same.

8 . The  interest rate was specifically stated in the loan agreement and the instalment was  scheduled accordingly.  The complainant had affixed her signature after knowing all these terms and conditions and the contention contrary to the same is made only for the sake of the complaint.  The complainant is liable to pay the overdue charges for the delayed payment and the opposite party is entitled for the same as per the terms of the agreement.  The contention that the complainant sustained loss and the opposite party is liable to compensate the same is false and hence denied.  The contention as to the consumer dispute is only for the sake of complaint.  The opposite party is sustaining loss due to the act of the complainant.

9 . The complainant did not remit the amount as per the terms of the agreement and the complainant in order to escape from the liability had approached the Forum by suppressing the real factual scenario and by suppressing the material facts.  There is no loss for the complainant while the opposite party is sustaining heavy loss due to the non-payment of loan amount.  There is no cause of action against the opposite party.  None of the relief sought for by the complainant is allowable.  The complainant is not entitled to get any relief from this Hon’ble Forum.

Hence opposite party prayed for dismissal of complaint with compensatory costs.

Complainant filed proof affidavit and copy of 4 documents and marked as Ext.P1 (Series) 39 in numbers and P2 to P4 as follows.

Ext.P1Series (39 in numbers) – Copy of loan receipts of various days.

Ext.P2 - Print out of summary of loan for vehicle No.KL 37B 6832 issued by opposite party to the complainant.

 

(Cont…..7)

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Ext.P3 – Copy of claim petition filed by opposite party before Arbitrator, Thodupuzha in Ac.No.178/2018 along with affidavit, schedule of property, statement of accounts from 18/04/2013 to 10/06/2016.

Ext.P4 – Copy of statement showing payment of installment from 18/04/2013 to 01/02/2017.

Opposite party or counsel was not present on the dates of examination of PW2 and PW3.  No cross examination was done also.  Opposite party is not regular in attending the proceedings of this Commission.

Opposite party has not produced any documents or adduced oral evidence.

 We have examined the averments of both sides, documents produced by complainant and oral testimony of PW1 to PW3.

On a perusal of the same, following points arise for consideration.

1 . Whether there is any deficiency in service or unfair trade practice on the part of opposite party?

2 . Whether the complainant is entitled to the reliefs prayed for?

3 . Litigation costs?

As opposite party has not produced any documents or adduced oral evidence, this complaint is decided on merits as follows.

Point Nos.1 & 2 considered together

Though specific allegation was raised by the complainant regarding the payment of amounts, opposite party could not rebut it while cross examining PW1.  Similarly opposite party is silent about the forcible possession of the vehicle involved.  Even though they have shown consolidated figure of principal amount of loan and interest, bifurcation of the same is not given in written version.  They have also shown sanctioning of WCL on various dates from 07/04/2014 to 04/05/2017 of a total amount of Rs.1,69,061/- with interest, but they have failed to

(Cont…..8)

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produce the documentary evidence thereof.  They have not produced vehicle loan agreement also to substantiate their contention.  They have also not produced copy of so called Arbitration Award, though it is stated as produced as document No.1 in written version filed.   Levying additional amounts under various names like over due charges, penal interest  or penal charges etc are not sustainable in the absence of valid documents and sanction of law.  Similarly forcible repossession of vehicle is not permitted under law.   In these circumstances, we can only accept the contentions and evidences of complainant to dispose of this complaint.  The specific averments of the complainant is that she had remitted instalments in time up to 01/12/2017.  As per this, it is seen that a total amount of Rs.5,17,106/- is claimed to be remitted by the complainant.  On going through the copy of loan receipts (Ext.P1 (series) and the additional 6 receipts filed, it is seen that a total amount of Rs. 5,17,106/-  is collected from complainant by opposite party towards principal and interest.  On cross verification of Ext.P1 series and Ext.P4 with Ext.P2, it is seen that in P2 an amount of Rs.88,000/- is seen remitted by complainant on 28/03/2015 which is not shown in Ext.P4.  While considering this total amount remitted by complainant towards principal and interest comes Rs.605106/-.  Ext.P2 statement issued by opposite party is only up to 20/05/2016 which is not a complete statement of account considering Ext.P1 series and Ext.P4. This strengthens the contentions of opposite party.   On a rough calculation of interest based on the averments of opposite party, it is seen that rate of interest on vehicle loan charged comes Rs.9.15% whereas it ranges from 11% to 19% in respect of so called 5 WCL.  But opposite party had abstained from producing such loan agreements.  Besides details of such disbursal of loan amounts are not disclosed also.  Only a computer entry is seen in Ext.P2.   Method of preparation of account statement itself shows that a layman cannot verify the veracity of the accounts. On an entire analysis of the evidence on record reveals that there is deficiency in service and unfair trade practice on the part of opposite party.  If the borrower fails to remit amount legally due, the creditor has to pursue legal remedy.   The averments of the opposite party that complaint is not maintainable, is not

 

(Cont…..9)

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sustainable.  There is no evidence on record to establish that there was already an Arbitration Award  passed before the filing of this complaint.  As per Sec.3 of Consumer Protection Act 1986, the provisions of this act shall be in addition and not in derogation of the provisions of any other law for the time being in force.   When a vehicle is purchased by taking loan, its illegal repossession by the creditor,  would definitely cause mental agony and irreparable loss to the loanee.  Such difficulties are to be compensated. 

Though opposite party has stated various Working Capital Loans (WCL), in the absence of such loan agreements, contentions of the opposite party cannot be accepted.  It is the duty of the opposite party to substantiate the contention through documents and also with the support of law for demanding various charges.  Complainant admits only availing of vehicle loan.  The onus of proof is on the opposite party to show that they have issued further WCL Loan.  Opposite party has utterly failed to substantiate their contentions with the aid of law and documents.   It is quite unknown to issue WCL in respect of vehicle loans also.

In these circumstances we are of the considered view that there is deficiency in service and unfair trade practice on the part of opposite party for which opposite party is liable under the provisions of Consumer Protection Act 1986.

PW 2 and 3 have deposed that they had seen repossession of the vehicle from the house of the complainant.  From Ext.P4 statement, it is seen that complainant was remitting the instalment from  18/04/2013 to 01/12/2017. Out of the 48 instalments 45 instalments were already paid though in certain months payment was delayed and for certain months no amounts were paid.  Reason for non payment of last 3 instalments is stated by the complainant  which is found to be acceptable.  As lion portion of the amount was already paid, the action of the opposite party is not sustainable.  Opposite party has no authority to take forcible repossession of the vehicle.  They can only resort to legal remedy.  Complainant produced order of Hon’ble National Consumer  Disputes Redressal Commission in a similar case of the opposite party company itself.  Hon’ble   National Consumer  Disputes Redressal Commission in Shriram Transport Finance Company Ltd., Vs Jaysingh Damodar Patil  decided on 19/03/2020, it was held that complainant in that case was entitled to margin money paid with instalments paid estimated resale value based on certain parameters and compensation.  Litigation costs were also

(Cont…..10)

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ordered in that case.  Evidence of PW1 that two blank cheque leaves along with basic tax receipt of her landed property was obtained is not challenged.  There is no contra evidence either.  Hence these facts stand proved.  In the light of above order and considering the facts and circumstances of this case, we are inclined to allow following reliefs to the complainant.

 

Complainant is entitled to Rs.50,000/- towards margin money paid along with an amount of Rs.2,00,000/-  towards her share of instalments paid considering the period of use of vehicle and also an amount of Rs.1,80,000/- towards resale value estimated based on the life time of the vehicle as 15 years.  Besides, complainant is also entitled to recover an amount of Rs.25,000/- towards compensation for the loss and injury caused to her owing to the deficiency in service and unfair trade practice of the opposite party.  Point Nos.1 & 2 are answered as above.

 

Point No.3

 

Considering the facts and circumstances of the case, complainant is entitled to litigation cost of Rs.3000/- .  Point No. 3 is answered accordingly.

 

In  the result complaint is allowed in part as follows.

 

a  )  . Opposite party is directed to pay to the complainant an amount of Rs.2,50,000/-(Rupees Two Lakhs and Fifty Thousand only) which includes  margin money and instalments paid as mentioned  above and Rs.1,80,000/-(Rupees One Lakh and Eighty Thousand only) towards estimated resale value of the vehicle and also compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) for deficiency in service and unfair trade practice which caused loss and injury to the complainant.

 

b )  .  Opposite party is also directed to pay an amount of Rs.3000/- (Rupees Three Thousand only)  towards litigation costs.

 

  The amounts ordered to be paid as per clause (a) above except on compensation awarded  shall carry simple interest @ 9% per annum from the date of complaint ie, 06/02/2020 till realization.  All the above amounts with interest

 

(Cont….11)

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 shown above to be paid by opposite party to complainant within 30 days of receipt of this order, failing which complainant is entitled to recover the same from opposite party with interest including on compensation  and costs without interest.

Opposite party should return the cheques and tax receipt obtained from complainant within a period of 30 days.  Interim application/ order passed if any, stands disposed of.

 

Extra copies to be taken back by parties without delay.

 

 Pronounced by this Commission on this the 16^th day of December, 2022.

                                                                                        Sd/-

                                                                              SRI.AMPADY K.S., MEMBER                                                                                          

                                                                                        Sd/-                                                                          

                                                                        SRI.C.SURESHKUMAR, PRESIDENT

                                                                                                 Sd/-

                                                                              SMT.ASAMOL P., MEMBER                                                                                        

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Lalitha

PW2 - Saneesh Kumar

PW3 - Shaiby C.C.

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1Series (39 in numbers) – Copy of loan receipts of various days.

Ext.P2 -  Print out of summary of loan for vehicle No.KL 37B 6832 issued by

               opposite party to the complainant.

Ext.P3 -  Copy of claim petition filed by opposite party before Arbitrator,

               Thodupuzha in Ac.No.178/2018 along with affidavit, schedule of

               property, statement of accounts from 18/04/2013 to 10/06/2016.

Ext.P4 -   Copy of statement showing payment of installment from 18/04/2013 to

               01/02/2017.

On the side of the Opposite Party :

Nil       

                                                                                               Forwarded by Order

                                                                                             

                                                                                         ASSISTANT REGISTRAR