BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 29th day of August, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.199/2008

Between

Complainant : M.D.Thomas S/o Devasia,

Mullorakam House,

Nadackal P.O,

Eerattupetta,

Kottayam District.

(By Adv: K.J.Thomas)

And

Opposite Parties : 1. Tata Motors Finance,

Bezolla Complex, V.N.Purav Marg,

Chembur, Mumbai – 71.

(By Adv: Jose Thomas)

2. Subhash Krishna,

Authorised Marketing Associate of

Tata Motors Finance,

Thakidiyil Building,

Kattappana P.O.

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The complainant is the proprietor of Red land tea Factory, Elappara in Idukki District. Complainant availed a vehicle loan for his Tata Indigo car on 30.11.2005 for Rs.5,09,000/-. The repayment was in 35 equal monthly instalments starting from 02.01.2006. The transaction was at the initiative of the 2^nd opposite party who is the authorized representative of the 1^st opposite party. An agreement was also executed for the same. But initially when the complainant approached for the loan, the opposite party agreed to disburse the loan with an interest rate of 3.5% with 36 EMIs. 30 days period was permitted for starting the 1^st instalment. The 1^st opposite party issued a detailed chart showing the repayment schedule, dated 23.01.2006. In the said schedule the rate of interest was unilaterally enhanced to 3.8% and the 30 days period for starting the payment of 1^st instalment was not granted. The amount was changed from 5,06,400/- to 5,09,000/-. The insurance premium of Rs.32,000/- was added even though the same was arranged by the complainant. Complainant submitted a detailed letter dated 15.02.2006, pointing out these aspects to the 1^st opposite party. But no reply was issued. The matter was brought for the attention of 2^nd opposite party, who offered to do the need so. But nothing was done in the matter. In view of the dispute, the complainant defaulted the EMIs in the hope that this would prompt the opposite parties to act. But the opposite party served a lawyer notice dated 08.05.2006 stating an amount of Rs.37,400/- was due as on 08.05.2006. It was also demanded that the car should be surrendered at the Cochin Branch of the 1^st opposite party. Later the 2^nd opposite party came to the factory of the complainant on 07.11.2006 and offered personally that the grievances raised by the complainant would be rectified. He also persuaded the complainant to issue a cheque No.233733 dated 11.11.2006 drawn on the SBT Erattupetta Branch for Rs.1,72,500/- in full and final settlement of the dues till date. Receipt was also issued for the same. But unfortunately on 08.11.2006 when the complainant was returning from Thiruvananthapuram in the car, some anti social elements at the instance of the 1^st opposite party, way laid the complainant at Chittar at about 3 PM. They forcibly ejected the complainant and others from the car and took possession of the vehicle. Complainant filed a complaint before the Vattappara Police Station about the illegal possession of the vehicle. Thereafter the complainant instructed his Bank not to honour any cheques he had issued in favour of the 1^st opposite party. Therefore the said cheque was returned unpaid. Opposite party issued lawyer notice dated 12.12.2006 demanding payment of the cheque amount. The complainant replied the same. On 04.04.2008 the 1^st opposite party issued another lawyer notice stating that the car has repossessed from him and was sold for Rs.3,54,000/- on 13.03.2007 and a balance of Rs.1,71,850/- was still due after setting off the sale consideration and demanded payment of the same. The complainant replied for the same. The opposite party is not entitled to repossess the vehicle forcibly even after they accepted a cheque for EMIs. The value of the vehicle would have fetched Rs.5 lakhs. The complainant was put to great inconvenience and mental agony on account of the repossession of the vehicle. So the complaint is filed for getting compensation of Rs.2.5 lakhs from the opposite parties.
 

2. Ist opposite party filed written version and admitted that the complainant availed vehicle loan from the Ist opposite party. But the instalments agreed with the complainant was 36 and the loan amount was not Rs.5,06,400/-. No change of interest was charged against the mutually agreed agreement. The insurance of the vehicle was secured by the complainant for the 1^st year of the loan. The insurance of the 2^nd year and 3^rd year was to be round by the respondent. So the amount was charged for the same. No letter was received from the complainant dated 15.02.2006. Complainant failed to repay the loan amount, so a notice was served on 08.05.2006 calling upon the complainant to regularize the loan account. The 1^st opposite party never received an amount of Rs.1,72,500/- towards the full and final settlement of the dues as alleged. The vehicle was repossessed by the representatives of the 1^st opposite party and was not repossessed forcibly. The vehicle was sold out by the 1^st opposite party on 13.03.2007 after duly informing the complainant. As per the agreement the complainant cannot instruct his bank that not to honour a cheque issued in favour of the respondent No.2 by the complainant, without informing the 1^st opposite party. No inconvenience and mental agony caused to the complainant.

3. The 2^nd opposite party filed a written version and admitted that he had arranged vehicle loan for the complainant's vehicle from the Ist opposite party. The interest rate assured by the opposite party was 3.5 % but afterwards it was raised to 3.8% was not correct. The interest offered by the opposite party was 3.8%. The amount availed was Rs.5,09,000/- and there were 35 instalments for the loan. The complainant never arranged Rs.32,000/- for the insurance premium of the vehicle, that amount was also included in the instalment of the vehicle. The 2^nd opposite party is not aware of the notice issued by the complainant to the Ist opposite party on 15.02.2006. The 2^nd opposite party never received any copy of such a letter. When the instalments of the vehicle were became due, the 2^nd opposite party approached the complainant. So the complainant issued a cheque for Rs.1,72,500/- as cheque No.233733 from the SBT, Eerattupetta branch which is crossed in the name of Tata Motors Limited. The cheque was dated 11.11.2006. The 2^nd opposite party sent the same cheque to the Ist opposite party on 7.11.2006 itself. The 2^nd opposite party was working at the Ist opposite party's firm from 8.08.2005 to 3.03.2007. So the 2^nd opposite party never acted any loss caused to the complainant and there is no cause of action to file a complaint of this nature.
 

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?
 

5. The evidence consists of the oral testimony of PW1 and Exts.P1 to P9 marked on the side of the complainant and the oral testimony of DWs 1 and 2 and Exts.R1 to R4 marked on the side of the opposite parties.
 

6. The POINT:- The complainant availed vehicle loan from the Ist opposite party with the financial assistance of the 2^nd opposite party. But the terms and conditions agreed by them were changed by the 1^st opposite party after the loan was disbursed. So the complainant made default in loan account, but the amount was cleared by giving a cheque. But the opposite party forcibly possessed the vehicle. The complainant was examined as PW1. As per PW1, the 1^st opposite party unanimously increased the rate of interest of the loan from 3.5% to 3.8% and the EMIs were also reduced. This matter was duly informed to the opposite party. Copy of the repayment schedule was marked as Ext.P1. These matters were communicated to the opposite party but the opposite party never tried to regularise the interest rate of the loan as per the clear assurance made by them. So the complainant was not able to pay the loan amount. But when the 2^nd opposite party who is the authorized representative of the 1^st opposite party approached the complainant he assured that the matter could be settled, and the complainant issued a cheque of Rs.1,72,500/- to the account of the 1^st opposite party. Receipt was also given for the same by the 2^nd opposite party, which is marked as Ext.P8. After receiving the cheque, the 1^st opposite party forcibly repossessed the vehicle from the complainant, when he was travelling with his family. So a complaint was filed before the Police Station Vattappara, which is marked as Ext.P9. After a long time about an expiry of one year a lawyer notice was issued by the opposite party on 04.04.2008 stating that the  vehicle was sold out on 13.03.2007 for Rs.3,54,000/- and the OP1 caused a loss of Rs.1,78,150/- and demanded the same from the complainant. The Ist opposite party was examined as DW1. DW1 stated that OP2 is not a staff of the OP1. OP2 never worked with the Ist opposite party. No cheque dated 11.11.2006 was received from OP2 which was given by the complainant. They have duly informed the complainant about the repossession of the vehicle. The complainant never paid any amount in the loan transaction. The ^2nd opposite party was examined as DW2. DW2 deposed that he was an authorized representative of OP1 and the visiting card issued by the OP1 in the name of OP2 is marked as Ext.R2. DW2 arranged finance for the vehicle of the complainant from OP1. Ext.R3(series) is the salary payment schedule given by OP1 to the OP2 which includes the payment for the transaction of the complainant's business. OP2 received a cheque for Rs.1,72,500/- dated 11.11.2006 from the complainant for the settlement of the complainant's loan account. The same was sent to the office of the OP1 by OP2 through courier dated 7.11.2006. Ext.R4 is the copy of the courier receipt.
 

7. The vehicle loan was defaulted by the complainant because the Ist opposite party never acted as per the assurance given to the complainant. The interest rate of the vehicle loan was increased unilaterally by the Ist opposite party and so the Ist opposite party informed these matters to the complainant by a letter dated 15.02.2006, copy of the same was given to the 2^nd opposite party also. Copy of the letter and copy of the postal AD card for the receipt of the letter by the 2^nd opposite party is marked as Ext.P2(series). Even after when the loan amounts were became due, the 2^nd opposite party approached the complainant for a settlement and the complainant issued a cheque dated 11.11.2006 for Rs.1,72,500/-. Receipt issued by the 2^nd opposite party for the said cheque is marked as Ext.P8. But unfortunately the vehicle was repossessed by the Ist opposite party forcibly. Ext.P9 is the copy of the complaint given to Vattappara Police Station by the complainant for the forcible repossession of the vehicle. A lawyer notice was issued to the Ist opposite party stating these facts by the complainant, which is marked as Ext.P5 dated 28.12.2006. The vehicle was then sold out by the Ist opposite party on 13.03.2007 for Rs.3,54,000/- which is also intimated to the complainant by a letter dated 4.04.2008 by the Ist opposite party, which is marked as Ext.P6.
 

8. The opposite party also admitted that the vehicle has been repossessed by the Ist opposite party through their representatives. It is written in Ext.P6 that "lastly my client was forced to take possession of the vehicle". So repossession of the vehicle is admitted by the opposite party. As per PW1, the vehicle was repossessed while PW1 and his party were travelling in the vehicle on the way to Thiruvananthapuram at day time 3.30 p.m, which may caused much hardships and mental agony to the complainant. So we think that there is no reason to disbelieve the version of PW1. As per the ^Ist opposite party, the 2^nd opposite party is not an agent of Ist opposite party. Ext.R3(series) is the salary statement of 2^nd opposite party given by the Ist opposite party in which the 2^nd opposite party received Rs.1,000/- as remuneration for the loan transaction of the complainant. The complainant's name and transaction are also written in Ext.R3. Another  receipt shows that 2^nd opposite party received Rs.61,595/- as remuneration from the Ist opposite party. City Union Vehicle finance is the name of the finance company of the 2^nd opposite party's brother. As per DW2, who is the 2^nd opposite party, is an advocate is working with his brother as a representative of the Ist opposite party. Ext.R2 is the visiting card printed in the name of the Ist opposite party Tata Motors Limited and its emblem is also printed. DW2's name, phone No. and address are also written there. DW2 delivered that, it was supplied by the Ist opposite party. The Ist opposite party never challenged these things and they never initiated legal proceedings against the 2^nd opposite party who is holding authorised visiting card of Ist opposite party. Ext.R4 is the copy of the courier receipt dated 7.11.2006 in which, the courier was sent in the name of the Ist opposite party by the 2^nd opposite party. These things are not challenged by the Ist opposite party. So we think that the 2^nd opposite party is an authorised representative of the Ist opposite party and he may have received a cheque from the complainant for the settlement of complainant's loan. Even though the Ist opposite party forcibly possessed the vehicle of the complainant, which is a gross unfair trade practice from the part of the Ist opposite party. The complainant caused severe mental agony and sufferings due to that. So we think that Rs.10,000/- can be awarded for the mental agony and hardships caused to the complainant by the act of the opposite party. After the repossession of the vehicle the matter was intimated to the complainant only on 4.04.2008 nearly after 1 ½ years of time. The vehicle was also sold out by the opposite party without intimating the complainant. As per the complainant the value of the vehicle would fetch Rs.5 lakhs at that time. As per Ext.P1 repayment schedule, issued by the Ist opposite party, it is written that the price of the chassis is Rs.5,99,770/-. The down payment done by the complainant is written as Rs.90,770/-. The balance amount Rs.5,09,000/- is given as loan to the complainant by the Ist opposite party and the interest for the loan is written as Rs.64,134/-. The insurance premium is written as Rs.32,000/-. So the total amount receivable from the complainant is written as Rs.6,05,134/-, which was divided into 35 instalments. Each instalment comes around Rs.17,250/-. The Ist instalment comes to Rs.18,634/-. But the complainant was in dispute about the interest of the vehicle loan and the instalment of the loan. So he was not able to remit the loan in time. The complainant used the vehicle for some period before the repossession of the vehicle. But it is written in Ext.P1 repayment schedule that the complainant paid down payment at the time of purchase of the vehicle is Rs.90,770/- excluding the loan amount. The amount paid for the road tax of the vehicle and registration fee of the vehicle were not mentioned. But the opposite party admitted the insurance premium for the Ist year was remitted by the complainant. So he may have paid a huge amount at the time of purchase of the vehicle. But the vehicle was repossessed by the opposite party and the complainant also sustained a heavy loss because of the same. We think that there may have some dispute about the interest of the loan, because if the complainant never paid any amount in the vehicle loan, the opposite party might have repossessed the vehicle before the expiry of 3 or 4 defaulted instalments. Here the opposite party was ready for a settlement even with the complainant after a due of Rs.1,72,500/- which is evident from the deposition of DW2. As per PW1, the vehicle would have fetch Rs.5 lakhs at the time of resale of the vehicle. We cannot think that the value of the new vehicle was only Rs.3,40,000/- at that time. So the opposite party may have made good the loss sustained to them by the resale of the vehicle. So we think it is not proper to proceed against the complainant for the realisation of the loan amount of the disputed vehicle as No. KL5V-7001 and the Ist and 2^nd opposite parties are restrained from doing so.

Hence the petition allowed. The Ist opposite party is restrained from further proceedings against the complainant for the recovery of the vehicle loan as Vehicle No.KL5V-7001 Tata Indigo car. The Ist opposite party is directed to pay Rs.10,000/- to the complainant as compensation for mental agony caused to the complainant because of the forcible possession of the vehicle. The Ist opposite party is also directed to pay Rs.2,000/- as cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 29^th day of August, 2009

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

I agree SMT.SHEELA JACOB(MEMBER)
 

Sd/-

I agree SMT.BINDU SOMAN(MEMBER)
 

APPENDIX

Depositions :

On the side of Complainant :

PW1 - M.D Thomas

On the side of Opposite Parties :

DW1 - Siby Antony

DW2 - Subhash Krishna

Exhibits:

On the side of Complainant:

Ext.P1 - True copy of Repayment Schedule dated 23.01.2006

Ext.P2(series) - True copy of complainant's letter dated 15.02.2006 with Postal AD Card

Ext.P3 - True copy of Lawyer Notice dated 8.05.2006 issued by the advocate of the Ist opposite party

Ext.P4 - True copy of Lawyer Notice dated 12.12.2006 issued by the advocate of the Ist opposite party

Ext.P5 - True copy of reply notice dated 28.12.2006 issued by the advocate of the complainant with postal AD Card

Ext.P6 - True copy of Lawyer Notice dated 4.04.2008 issued by the advocate of the Ist opposite party

Ext.P7 - True copy of reply notice dated 15.04.2008 issued by the advocate of the complainant with postal AD Card

Ext.P8 - True copy of Receipt dated 7.11.2006 issued by the 2^nd opposite party

Ext.P9 - True copy of Complainant's complaint dated 8.11.2006 submitted before the S.I of Police, Vattappara Police Station

On the side of Opposite Parties:

Ext.R1 - Photocopy of Loan cum Hypothecation cum Guarantee agreement

Ext.R2 - Visiting Card of 2^nd opposite party issued by the Ist opposite party

Ext.R3(series)- Payment details dated 5.10.2006

Ext.R4 - True copy of Courier Receipt dated 7.11.2006