Kerala

Wayanad

26/2007

N Moidu haji - Complainant(s)

Versus

Susil Kumar,Propriter - Opp.Party(s)

10 Apr 2008

ORDER


CDRF Wayanad
Civil Station,Kalpetta North
consumer case(CC) No. 26/2007

N Moidu haji
...........Appellant(s)

Vs.

Susil Kumar,Propriter
T P Saleem thangal
...........Respondent(s)


BEFORE:
1. K GHEEVARGHESE 2. SAJI MATHEW

Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




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ORDER

By Sri. K. Gheevarghese, President: Complaint filed under section 12 of the Consumer Protection Act. The sum up of the complaint is given bellow. The Complainant availed a vehicle finance from the 1st Opposite Party, as per the Hire Purchase Agreement dated 26.11.2008 for the vehicle No.KL 8/K 5533. The loan papers were executed at Vythiri for which all arrangements were done by the 2nd Opposite Party who is the agent of the 1st Opposite Party. The terms of hire purchase agreement is such that the Complainant has to pay the monthly installments of Rs. 5,500/- each for the first 10 months - 2 - commencing from the 26.12.2001. A sum of Rs. 5,000/- each on monthly wise to be paid for the next 20 months commencing from 26.10.2002. As per the stipulation of the agreement 30 installments are to be paid. The terms of agreement further narrated that for Rs.1,00,000/- for a period of 30 months the Complainant has to pay Rs.5,500/- . Till 5.06.2002 in the way of monthly installments the Complainant had paid Rs.33,000/-. The Opposite Party were informed that the Complainant is ready to pay the entire balance amount. According to the Opposite Parties Complainant has to pay hire interest. The request on the part of the Complainant that he is ready to pay the proportionate interest for the period beginning from 26.11.2001 to 28.10.2002. On 28.10.2002 the Complainant paid a sum of Rs.99,000/- by way of demand draft including this amount a total of Rs. 1,32,000/- is received by the 1st Opposite Party. The 1st Opposite Party received Rs. 32,000/- as interest for Rs. 1,00,000/- for a period of 11 months. It is contrary to the terms of the hire purchase agreement. According to the terms of hire purchase agreement for a period of 30 months the Complainant has to give interest of Rs. 55,000/- only. The monthly interest payable is Rs.1,531/- the Opposite Party is entitled to receive Rs.20,166/- from the Complainant for 11 months. The request on the part of the Complainant to reduce the interest proportionally was not considered and more over the Opposite Parties threatened the Complainant that the vehicle will be seized and no clearance certificate will be issued. The 2nd Opposite Party is the agent of the 1st Opposite Party who made arrangements to avail the finance from the 1st Opposite Party. The papers were executed in Vythiri. The Complainant is entitled to get Rs.11,834/- from the Opposite Party. It is a deficiency in service of the Opposite Parties in collecting exorbitant amount other than the terms of agreement. The Opposite Parties are jointly and severally liable for the excess amount collected from the Complainant. There may be an order directing the Opposite Party to give the Complainant Rs.11,834/- as the refund of excess amount collected and to pay Rs.10,000/- towards compensation. (Contd......3) - 3 - 2. The 1st Opposite Party filed version on their appearance. The territorial Jurisdiction of the complaint is contended. It is admitted that the Complainant availed a loan of Rs.1,00,000/- as per the hire purchase agreement No.26.11.2001 for the vehicle No.KL 8/K 5533. The 1st Opposite Party has not appointed any agent to execute the papers for loan at Vythiri. The averment in the complaint that 2nd Opposite Party acted as an agent and executed the papers at Vythiri are incorrect. The hire purchase business is done by the 1st Opposite Party in Channai from where the execution of the papers are usually done. The cause of action alleged by the Complainant at Vythiri is falsely implicated. All disputes regarding the hire purchase dealing, as per the terms of agreement, the jurisdiction to adjudicate is limited to Channai. The complaint is to be dismissed in the absence of jurisdiction limit. The averment in the complaint that has collected interest for 30 months is incorrect. The Opposite Party collected Rs.50,000/- is also denied. The Opposite Party not charged interest on the loan but the amount charged is only as finance charges. The Opposite Party is in the right of collecting recovery Rs.55,000/- as finance charges. The payment of the installments were not prompt and correct in time. If any delay effected in payment, the Opposite Party is entitled to recover additional finance charges at the rate of 36% per year. Over and above of the finance charge a total payment Rs.1,32,000/- by the Complainant is admitted. The allegation against the Opposite Party that there was a threat from the Opposite Party to seize the vehicle and in such a circumstances the Complainant remitted the entire amount is also denied. The Opposite Party has not collected any amount illegally. There is no deficiency in service on the part of the 1st Opposite Party. The Complainant is not entitled for any compensation. The complaint is to be dismissed with cost to the Opposite Party. 3. The 2nd Opposite Party filed version. The 2nd Opposite Party is not an agent of the 1st Opposite Party in executing papers or making arrangements to provide finance for the purchase (Contd......4) - 4 - of the vehicle. There is no relation between the 1st and 2nd Opposite Parties as a principle and agent. The maintainability of the Complainant is to be heard as the preliminary issue. The terms and conditions of the hire purchase agreement is not known to the 2nd Opposite Party and similarly the mode of repayment is also not known to him. The 2nd Opposite party is not aware of the alleged payment of Rs.99,000/- or any other amount paid by the Complainant. The 2nd Opposite Party is not a party in the whole dealings. The Complainant has not contacted this Opposite Party or executed any documents. The 2nd Opposite Party is a vehicle dealer by profession and is not an agent of any financiers. The Complainant approached th 2nd Opposite Party to connect him with the Financier. Apart from that any transaction if effected between the Complainant and the 1st Opposite Party the 2nd Opposite Party has no connection with it. Being absolutely an unnecessary Party, the 2nd Opposite party has to get compensatory cost from the Complainant. The Complainant is not entitled for the compensation and it is to be dismissed with cots. 4. The points in consideration are: 1.Whether the complaint is within the territorial jurisdiction of this Forum?. 2.Is there any deficiency in service in the dealing?. 3.Relief and cost. 5. Points No.1 and 2:- The Complainant entered in to hire purchase agreement on 26.11.2001 with the 1st Opposite Party. The 2nd Opposite Party is the agent according to the testimony of the Complainant. It is admitted by the 2nd Opposite Party that he is a vehicle dealer by profession but not an agent of any financiers. No oral testimony is rendered by the 1st and 2nd Opposite Parties. More over it is avered in the version of Opposite Party No.2 that the Complainant has approached the 2nd Opposite Party to get connection with the financier on the Contd......5) - 5 - preponderance of probability it is to be considered that the cause of action for the complaint is at Vythiri where the execution of the document to avail the hire purchase loan is effected. This Forum is having jurisdiction to try the case. The Complainant's son authorized is examined as PW1. Ext.A1 is the payment chart recorded with respect to the vehicle No. KL 8/K 5533. The terms of payment as per the agreement is that the Loanee has to pay the amount in 30 installments. The 30th installments completed on 26.05.2004 and as such the installments started on 26.12.2001 remitting Rs.5,500/- up to the 10th installment. The mode of payment was Rs.5,500/- and for all the remaining installments Rs.5,000/- was remitted on monthly wise it is also endorsed by Raj Motors Finance. It is admitted by the 1st Opposite Party that the Complainant remitted a total sum of Rs.1,32,000/- towards the H.P. Account. The above amount includes of principle amount and finance charges for 11 months. It is admitted by 1st Opposite Party that the Complainant is entitled to make payments towards the H.P Account by a period of 30 months. The Complainant remitted the entire amount during the period of 11 months. The loan amount given to the Complainant is only Rs.1,00,000/-. For a period of 11 months Rs.32,000/- is collected by the 1st Opposite Party. The interest payable by the the Complainant to the 1st Opposite Party if calculated on monthly wise is agreeable to the contention of the complaint that Rs.1,833/-. The averment of the 1st Opposite Party that the remittance of Rs.32,000/- for a period of 11 months is not on the basis of interest instead it is the finance charges for 11 months. The excess amount collected by the 1st Opposite Party from the Complainant in the hire purchase dealing is a deficiency in service. The points No.1 and 2 are found in favour of the Complainant. The 1st Opposite Party collected Rs.11,834/- in excess from the Complainant, though the payment became absolute within the period of eleven months. The 2nd Opposite Party has not received any amount from the Complainant and hence 2nd Opposite Party is not liable in the transaction. Contd......6) - 6 - In the result, the 1st Opposite Party is directed to give the Complainant Rs.11,834/- (Rupees Eleven thousand Eight hundred and Thirty Four only). The excess amount collected from the Complainant along with an interest at 12% from the date of filing the complaint till realization. The 1st Opposite Party has to comply within one month from the date of this order. Pronounced in open Forum on this the 10th day of April 2008.




......................K GHEEVARGHESE
......................SAJI MATHEW