Complaint filed on: 02.05.2016
Complaint Disposed on:03.06.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.52/2016
DATED THIS THE 3rd DAY OF JUNE 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT:
Ranganatha L.N. @ Devaraj L.N.
S/o Nagappa S @ Melanna,
Aged about 41 years,
Teacher in Poornachandra Higher
Primary English Medium School,
Lakkavalli Village & Post,
Tarikere Taluk, Chikmagalur District.
(By Sri/Smt. B.M.Laxmana Gowda, Advocate)
V/s
OPPONENT:
Tata Motors Finance Ltd.,
A Company incorporated under the
provisions of the Indian Companies
Act, 1956, having its office at Building
A, 2nd Floor, Lodha I-Think Techno Campus,
Off. Pokharan Road, 2, Thane (West), 400607.
Branch: TMFL Shimoga Branch,
2nd Floor, No.35-B, Sathish Arcade,
Savalanga Road, Shimoga.
(OP By Sri/Smt. Md.Yunus Saleem, Advocate)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP alleging deficiency in service in repossessing the vehicle of the complainant. Hence, prays for direction against Op to return the vehicle with its original condition and compensation of Rs.50,000/- for deficiency in service/harassment and mental agony.
2. The brief facts of the complaint is that:
The complainant is a teacher working in Poornachandra Higher Primary English Medium School, which is private education institution and the students of the said school are from Lakkavalli and nearby villages. In order to facilitate the students to come to the school the complainant intended to purchase the vehicle and approached the Op for financial assistance. Accordingly, Op agreed to provide finance and complainant purchased the vehicle for total sum of Rs.1,99,880/- on 16.12.2011. The complainant paid Rs.2,500/- for booking of the vehicle and Rs.18,500/- towards down payment on 03.02.2012. But Op issued a receipt for only Rs.12,000/-. After sanction of the loan of Rs.1,79,000/- on 30.01.2012 the vehicle was delivered to complainant on 03.02.2012. The complainant spent another Rs.20,000/- for extra fittings and alteration.
After sanction of the loan the complainant agreed to repay the loan in 48 equal monthly installments of Rs.5,150/- on or before 15th of every month and last installment payable on 15.12.2015. The complainant had paid the entire loan installments regularly without any dues and he paid the loan amount of Rs.2,47,200/- plus Rs.21,000/- by way of down payment in total the complainant had cleared the loan by paying Rs.2,68,200/-.
Inspite of clearance of the loan payments the Op had issued a notice dated 09.06.2014 and called the complainant to pay Rs.16,768/- under the head of loan due. Thereafter again on 13.08.2014 the Op had issued another notice stating that Rs.17,836/- is still due from complainant, the said notices are issued without any basis inspite of complete payment of the installments.
Further the Op inspite of payment of the installments had appointed Sole Arbitrator who hurriedly made a show-off enquiry and passed an interim order directing the Op to seize the vehicle of the complainant. Thereafter, the Arbitrator passed an award on 16.02.2015. The complainant went on paying the installments regularly and the last installment was paid on 23.12.2015, after the last payment the complainant approached the Op to issue No Due Certificate, for which they have demanded for payment of overdue of Rs.11,164/-.
On 12.04.2016 at the utter surprise the officials of the Op came to the place of the complainant and orally demanded for payment of Rs.30,000/- towards overdue of the loan, without giving any opportunity the Op company are seized the vehicle illegally. In this regard the complainant gave a police complaint to Lakkavalli Police Station, the police have not taken any action in this regard. While taking the vehicle the officials of the Op company have issued a printed inventory items in the vehicle by making tick marks according to their whims and fancies, the vehicle seized by Op is in good condition. Due to seizure of the vehicle the students suffered inconvenience to attend the classes, inspite of entire payment of loan the Op has seized the vehicle. Hence, Op rendered a deficiency in service in taking possession of the vehicle without any valid reasons.
Hence, the complainant filed this complaint and prays for direction against Op to return the vehicle along with compensation for deficiency in service as prayed above.
3. After service of notice Op appeared through his counsel and filed version and contended that the complainant has taken a loan from this Op and loan matters does not come within the purview of Consumer Protection Act. As such there is no relationship between the service provider and customer. In this case the relationship between complainant and this Op is borrower and not customer and service provider. Hence, prays for dismissal of the complaint.
Op further contended that the complainant along with one Mr.Kumar had approached this Op for loan for the purpose of purchase of the TATA Magic IRIS commercial vehicle for carrying out commercial activities. The Op considering the request of the complainant has sanctioned Rs.1,79,000/- to the complainant and complainant also agreed to pay 47 equal monthly installments towards repayment. After that the complainant executed hypothecation agreement bearing loan agreement no.5000884051, after obtaining the loan the complainant is not regular in paying installments on the stipulated time, which clearly amounts to breach of terms and conditions of the hypothecation agreement. This Op had issued several notices dated 16.07.2014, 10.09.2014, 15.10.2014, 12.12.2014, 13.01.2015, 09.03.2015 and 14.08.2015 to complainant for repayment of the loan outstanding amount. Inspite of said number of notices complainant never bother to repay the loan installment dues and arrears. The complainant had continued to default and this Op in order to recovery of the dues constrained to invoke the Arbitration clause and appointed the sole Arbitrator and presented a claim before the Arbitrator and also filed a interim application under section 17 of the Arbitration & Conciliation Act of 1996 to take the custody of the vehicle. For which the Arbitrator has permitted the Op to take possession of the vehicle. Accordingly, after due process of law the vehicle was repossessed by this Op on 30.04.2016 without any force. As on the date of repossession of the vehicle the complainant is in due of Rs.31,341/- towards loan. Even at the time of taking possession of the vehicle the complainant not worried about payment of loan installments. After taking possession the Arbitrator passed an award in favour of this Op with liberty to sell the possessed vehicle for recovery of the loan.
The complainant had not approached this Op even after repossession of the vehicle, even not challenged the award as contemplated under section 34 of Arbitration Act 1996. After passing an award this Op by following due process of law have auctioned the vehicle in the market on 17.06.2016, at the public auction one Sri.Javed Khan resident of Bhadravathi, being the highest bidder had purchased and consideration amount was adjusted to the loan amount of the complainant. Even after adjustment of the loan the complainant is in due of Rs.7,795/-, but complainant failed to comply the notice and award. The complainant in order to escape from the payment of balance amount has filed this false complaint alleging deficiency in service. They have sold the vehicle for recovery of the loan amount and they have followed the procedures of loan agreement and there is no any deficiency in service on the part of this Op and prays for dismissal of the complaint.
4. Complainant filed affidavit and marked documents as Ex.P.1 to P.12 and Op also filed affidavit and marked documents as Ex.R.1.
5. Heard the arguments.
6. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is deficiency in service on the part of OP.
- Whether complainant entitled for any relief & what Order?
7. Our findings on the above points are as follows:-
- Point No.1: Negative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
8. The case of the complainant is that he has purchased one vehicle by availing loan from Op in order to transport the students to the school situated at Lakkavalli. The Op had sanctioned Rs.1,79,000/- and executed a hypothecation agreement. The complainant alleges that he has paid entire loan installments to Op amounting to Rs.2,68,200/-, inspite of repayment of the entire loan amount the Op had issued a notice and demanded for payment of Rs.30,000/- as overdue. Subsequently, the Op has seized the vehicle without intimating and not following due process of law inspite of repayment of the entire loan amount. Hence, alleges deficiency in service and prays for return the vehicle and to issue No Due Certificate.
9. On contrary the Op has taken a contention that after availing the loan complainant is not regular in paying the loan installments, for which they have issued several demand notices to the complainant. Even inspite of receipt of the notices complainant had not paid the overdue loan. Finally they have initiated Arbitration case against complainant and as per the direction and award of the Arbitrator they have seized the vehicle and sold it for recovery of the loan of the complainant.
Further Op contended that inspite of Arbitration notice and award complainant not paid the balance over due to this Op. Hence, they sold the vehicle in the public auction and adjusted the sale proceeds to the loan account. Even after adjustment of the loan the complainant still due of Rs.7,795/- and complainant in order to avoid the payment of the said amount has filed this false complaint alleging deficiency in service. But there is no any deficiency in service on the part of this Op and hence prays for dismissal of the complaint.
10. Complainant produced two receipts marked as Ex.P.1 and 2 to show he paid Rs.2,500/- and Rs.12,000/- down payment at the time of purchase of the vehicle. Loan statement along with schedule marked as Ex.P.3 and Delivery receipt marked as Ex.P.4. Statement of S/B account of the complainant at Vijaya Bank marked as Ex.P.5 to show he has paid installments to Op. Further demand notice issued by Op marked as Ex.P.7 and also produced award copy passed by Arbitrator marked as Ex.P.8 and 9. Further complainant also produced statement of accounts marked as Ex.P.10. Inventory of the items in vehicle marked as Ex.P.11, Police Complaint marked as Ex.P.12 in support of his case. Op also produced statement of loan account marked as Ex.R.1.
On going through the documents produced by both complainant and Op admittedly the complainant has received a demand notice from Op dated 09.06.2014 marked as Ex.P.6, dated 13.08.2014 marked as Ex.P.7, in the said demand notices Op company have demanded Rs.17,836/- over due from complainant. After receipt of the said notices the complainant had not established before this Forum that whether he had paid the loan amount or not. The complainant further produced Arbitration award marked as Ex.P.8 and 9, where we noticed that the complainant not appeared before the Arbitrator to answer the claim made by Op and complainant placed exparte before Arbitrator and award was passed against the complainant, even after passing the award the complainant has not preferred any appeal or made any arrangements for payment of the over dues of the loan. Instead of that complainant has filed this complaint alleging deficiency in service. We noticed that admittedly Op has seized the vehicle after award passed in favour of them, even after the seizure of the vehicle complainant not clarified that he had paid the entire loan installments and on the other hand complainant not made any attempts for repayment of the loan amount. We found that complainant is a defaulter in paying the loan installments to Op. On perusal of the statement of loan accounts it is clearly reflected that the complainant is in due of certain amount. Hence, we found there is no deficiency in service in seizing the vehicle of the complainant and complainant failed to establish that there is a deficiency in service on the part of Op. Hence, the complaint is liable to be dismissed and for the above said reasons, we answer the above point no.1 and 2 in the Negative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is hereby dismissed. No order as to costs.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 3rd day of June 2017).
(RAVISHANKAR)
President
(B.U.GEETHA) (H. MANJULA)
Member Member
ANNEXURES
Documents produced on behalf of the complainant/S:
Ex.P.1 & 2 - 2 Receipts.
Ex.P.3 - Loan sanction letter with schedule and repayment.
Ex.P.4 - Delivery Receipt.
Ex.P.5 - Bank Statement of the Complainant.
Ex.P.6 - Demand Notice dtd:09.06.2014.
Ex.P.7 - Another Demand Notice dtd:13.08.2014.
Ex.P.8 - Covering Letter issued by Arbitrator.
Ex.P.9 - Certified copy of Award.
Ex.P.10 - Repayment Details.
Ex.P.11 - Inventory of items in vehicle.
Ex.P.12 - Police complaint.
Documents produced on behalf of the OP/S:
Ex.R.1 - Statement of loan account.
Dated:03.06.2017 President
District Consumer Forum,
Chikmagalur.
RMA
