KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 147/2010 JUDGMENT DATED: 28.9.2010 PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER 1. The Manager, : APPELLANTS Muthoot Vehicle & Assets Private Limited, Muvattupuzha Road, Thodupuzha.P.O., Idukki District. 2. The Manager, Muthoot Vehicle & Assets Private Limited, Kurian Towers, 3rd Floor, Banergi Road, Kochin – 18. (By Adv.D.S.Jayachandran) Vs. T.H.Haleel, : RESPONDENT Thyparambil House, Thodupuzha East.P.O., Thodupuzha, Idukki district. JUDGMENT SRI.S.CHANDRAMOHAN NAIR : MEMBER The order dated 30.10.2009 in CC 107/2009 of CDRF, Idukki is being assailed in this appeal by the opposite parties calling for the interference of this Commission as to the sustainability of the order passed by the Forum below. By the impugned order the opposite party is directed to recalculate the vehicle account of the complainant by considering the price of the vehicle as Rs.20000/- from the date of resale failing which the amount shall carry interest at 12% per annum from the date of default. 2. The complainant’s case before the Forum was that he had purchased a TVS victor motor bike from Athickal Auto mobiles, Thodupuzha by availing a loan from the opposite parties and that the monthly instalments fixed was at the rate of Rs.1650/- per month. It was further submitted that in December 2007 the complainant approached the opposite party and he was told that the loan amount would be closed if the vehicle was surrendered before the opposite party and accordingly he surrendered the vehicle in June, 2008. However the opposite parties demanded a further sum of Rs.24634/- from the complainant in order to close the loan. It was his very case that the vehicle was only 1 ½ years old at the time of surrendering and it was having a market value of Rs.30000/- at that time and opposite party had sold the vehicle for a sum of Rs.12750/- which according to him was very much on the lower side. Alleging deficiency in service, the complaint was filed praying for directions to opposite party to cancel the demand notice and to pay compensation and costs. 3. The opposite parties in their version admitted that the complainant had availed a loan of Rs.37000/- on 18.7.06 after executing an agreement for hypothecation and that the repayment of the loan was through 36 equal monthly instalments @ Rs.1498/- It was further submitted that the complainant had paid only 15 instalments amounting to Rs.23845 and the vehicle was surrendered on 17.12.07 with a letter informing that he would repay the loan before 28th December 2007. It was further submitted that the complainant did not remit any amount and the vehicle was sold inviting quotations and the same was sold at the highest rate made in the quotation. Contending that the complainant had to pay the balance amount with interest the opposite parties prayed for the dismissal of the complaint. 4. The evidence consisted of the testimony of PW1 and DW1. On the side of the complainant the lawyer notice dated 29..4.09 was marked as Ext.P1 and on the side of the opposite parties Exts.R1 to R9 were marked. 4. The learned counsel for the appellants/opposite parties vehemently argued before us that the Forum below had fixed resale value of the vehicle at Rs.20000/- without any evidence and that the same is liable to be set aside. He has also the case that the opposite parties had complied with all the formalities for selling the vehicle and it was at the highest rate quoted that the vehicle was sold and there was no negligence, deficiency in service or unfair trade practice on the part of the opposite parties. He has also canvassed before us that as per section 101 of the Evidence Act, the burden of proof is heavily on the complainant to prove that the vehicle would have fetched more value. It is also submitted by him that the complainant has not adduced any evidence to show that the value obtained by the opposite parties is on the lower side. Thus he argued for the position that the order of the Forum below is liable ot be set aside. 6. On hearing the learned counsel for the appellants and also on perusing the records we find that it is the admitted case of both the parties that a loan was taken by the complainant from the opposite parties. It is seen that the complainant had surrendered the vehicle. The learned counsel for the appellants heavily relied on Ext.R8 series which are the quotations obtained from three different persons. He has also relied on the letter given by the complainant to the opposite party stating that he would clear the loan before December 2007 failing which the opposite party has freedom to take any steps for realization of the amount. We have perused the above said letter marked as Ext.R2 and see that the letter contains an undertaking enabling the 1st opposite party to proceed further in the matter for the realisation of the amount if the complainant fails to pay the arrears before 28th December 2007. We have also perused Ext.R8 series which are the quotations obtained by the opposite parties and find that the highest rate quoted is Rs.12750/- . We find force in the arguments of the learned counsel for the appellants that the complainant has not produced/adduced any evidence to show that the vehicle would have fetched more value than the one quoted in the quotation. It is also to be seen that the complainant had a bounden duty to prove his case that the vehicle was having a value of Rs.30000/- at the time of the resale. In the absence of evidence to show that the vehicle was having the value of more than Rs.12750/-, the Forum ought not have fixed the rate at Rs.20,000/- without any basis. The direction of the Forum below to fix value at Rs.20000/- is liable to be set aside and we do so accordingly. In the result the appeal is allowed. The order dated 30.10.04 in CC.107/09 of CDRF, Idukki is set aside. In the nature and circumstances of the present appeal, the parties are directed to suffer their respective costs. SRI.S.CHANDRAMOHAN NAIR : MEMBER SMT.VALSALA SARANGADHARAN : MEMBER ps | 
