By Smt. C.S. Sulekha Beevi, President,

1. Brief facts:-

Complainant availed vehicle finance from opposite party for the purchase of a bajaj CT 100 Motor cycle. Towards the purchase price complainant contributed Rs.14,650/- by exchange of his old scooter to the dealer and by payment of some cash. The cash of Rs.3,000/- thus contributed was paid by him to opposite party bank by way of cheque drawn in favour of State Bank of Travancore. Opposite party paid the amount of the vehicle directly to the dealer which was only the balance of Rs.34,290/- after deducting Rs.14,650/-. Complainant paid Rs.1,287/- for extra fittings and Rs.1,500/- towards registration charges. The vehicle was registered as KL-10/V 7304. The vehicle was kept with the dealer for registration purposes and complainant went to Madhyapradesh. The vehicle was brought home by the brother of complainant. Thereafter complainant was put in a situation whereby he could not return to his home town and the vehicle was kept idle at his home. His relatives repaid almost 10 instalments of Rs.1,500/- each. While so, in July, 2006 the employees from opposite party Bank came and repossessed the vehicle and stated that the vehicle will be released only on payment of entire loan. Though close relatives of complainant enquired with opposite party as to what is the amount outstanding opposite party failed to disclose the details of balance due. Even after repeated requests neither did opposite party disclose the balance and permit complainant to remit the amount nor did they return the vehicle. Complainant then issued a lawyer notice on 20-9-2007. Though opposite party received the notice opposite party did not disclose the balance or issue any reply. Hence this complaint seeking direction against opposite party to disclose the balance receive payment from complainant and to return the vehicle.

2. Opposite party filed version admitting the hire purchase transaction. It is stated that complainant availed a loan of Rs.37,623/- for purchase of two wheeler, by executing an agreement to pay monthly EMI without any default. Complainant violated the terms and conditions by committing default in repayment. Despite oral requests as well as by letter, complainant never repaid the loan for a long period. Ultimately the vehicle was repossessed as per terms and conditions. As a follow up, a letter dated, 15-7-2006 was issued to complainant giving him opportunity to take back the vehicle after remitting the outstanding debt. Complainant did not respond to this letter and the vehicle was sold to third party after due intimation by the above letter. The sale proceeds was not enough to close the loan and therefore Rs.13,867/- was still to be paid by complainant. Another registered letter was issued to him on 03-8-2006 intimating about the sale details and calling upon him to pay the balance within 10 days. Complainant failed to respond to this letter also. This complaint is filed with ulterior motives anticipating legal consequences. The contention that complainant availed loan of Rs.34,290/- only is denied. That there is no deficiency in service and complaint is only to be dismissed.

3. Evidence consists of affidavit filed by complainant and Exts.A1 to A4 marked for him. Opposite party filed counter affidavit and Exts.B1 to B10 marked for opposite party. Either side has not adduced any oral evidence.

4. Points for consideration:-

(i) Whether opposite party is deficient in service.

(ii) If so, reliefs and costs.

5. Point (i):-

It is the say of complainant that the purchase price of the Motor cycle was only Rs.34,290/- and that he has contributed Rs.14,650/- towards this sum. It is his further case that purchase of Motor cycle was done by exchange of his old scooter and payment of Rs.3,000/- by cash which was contributed by issuing cheque to opposite party. Complainant thus contends that he has availed only the balance as loan from opposite party. Disputing these allegations opposite party affirmed that the loan amount availed by complainant is Rs.37,623/-. As per Ext.A1 the price of the vehicle is Rs.34,290/-. Ext.B1 which is the proforma invoice issued by dealer would show the price to be Rs.37,623/-, which includes Rs.2,500/- tax and registration charges and Rs.833/- as insurance amount. Ext.B2 which is the loan application shows the loan applied is Rs.37,623/-. But in Ext.B9 which is the account statement produced by opposite party although the amount financed is stated as Rs.37,623/-, the amount disbursed is only Rs.29,387/-. This means that though opposite party had sanctioned a loan of Rs.37,623/- the amount disbursed to complainant was lesser and only Rs.29,387/-. Though complainant contends to have contributed Rs.14,650/- towards the purchase price, apart from the vague affirmation there is no reliable evidence to support this. We are therefore convinced that complainant has received only Rs.29,387/- as loan from opposite party and is liable to repay this amount.

6. Admittedly the instalments had to be repaid by EMI of Rs.1,330/-. The number of EMI as per Ext.B4 is 28. The total tenure of loan stated in Ext.B4 is 34 months. The mode of repayment was such that complainant would remit the instalment in his S.B. A/c maintained with opposite party Bank and the amount would be debited to the loan by clearing the post dated cheques submitted by complainant to opposite party at the time of availing the loan. Complainant contends to have remitted ten EMI at the rate of Rs.1,500/- each. Opposite party refutes this and submits that complainant has remitted only eight EMI. The details of remittances made by complainant as per Ext.A4 series are as follows:

Date Amount

02-05-2005 Rs.1,500/-

23-06-2005 Rs.1,500/-

26-07-2005 Rs.1,500/-

06-10-2005 Rs.1,500/-

17-01-2006 Rs.1,500/-

23-02-2006 Receipt in complete. Amount paid not clear.

22-04-2006 Rs.1,000/-

24-04-2006 Rs.330/-

20-05-2006 Rs.1,330/-

Date of receipt not clear. Rs.1,500/-

Receipt in complete.

After discarding the two incomplete receipts as unreliable the total amount remitted by complainant as per Ext.A4 series is Rs.10,160/-. Though opposite party has not candidly stated the date of repossession it is clear that the vehicle was repossessed in July, 2006. As per Ext.B4 the first EMI starts on 05-6-2005. Upto July, 2006 complainant is liable to pay thirteen EMI. The total amount to be repaid by complainant during this period by thirteen EMI would be Rs.17,290/- (Rs,1,330/- x 13).

The amount repaid by complainant is Rs.10,160/-. It is also to be stated that the payments were not regular and has defaulted EMI in between also. Even if the borrower defaulted in making payments opposite party is bound to issue notice prior to repossession alerting the complainant about the default. Complainant is aggrieved and affirms that opposite party did not issue any notice prior to repossession of the vehicle. Opposite party does not have a case that any notice was issued to complainant prior to repossession.. Opposite party contends to have issued a letter on 15-7-2006 to complainant after repossession informing the complainant to pay Rs.29,877/- and take back the vehicle. Ext.B10 is this notice relied by opposite party. Complainant vehemently denied receiving any such notice, and has consistently stated from the very beginning that after repossession though he made several enquiries with opposite party to disclose the outstanding debt opposite party failed to do so. Then the burden rests upon opposite party to prove that Ext.B10 was issued and served upon complainant. Apart from Ext.B10 which is a photocopy opposite party has not produced the corresponding postal receipts or acknowledgement card to prove the service of Ext.B10 upon complainant. Hence we have to say that Ext.B10 stands unproved and inadmissible in evidence. Opposite party has stated that the vehicle was sold and the sale proceeds were adjusted to the loan. Opposite party has not issued any presale notice prior to the sale informing the date of sales to complainant. The sale details or the date of sale are not brought in evidence by opposite party. Even a chronic defaulter has a right of notice from the financier prior to repossession and prior to sale of property. Deprivation of those rights is nothing but illegal repossession and sale. The acts done by the financier in realising the loan should be transparent enough to enable the consumer to know what his liability actually is. The act of opposite parties cannot be justified in any manner. We therefore hold opposite party deficient in service.

7. Point (ii):-

Complainant prays for direction against opposite party to receive the balance payment and return his vehicle. The vehicle being sold, this prayer is infructuous. Complainant has not remitted instalments regularly. But he has remitted Rs.10,160/-. Opposite party contends that complainant has repaid eight EMI (8 x 1330 = 10,640). If opposite party had issued notice prior to repossession complainant could have arranged to pay the defaulted instalments, which would not have been a big financial burden to him. The failure on the part of opposite party to issue notice before repossession has resulted in loss of the vehicle to complainant. The date of purchase of vehicle is 11-3-2005. The vehicle was repossessed in July, 2006. Taking into consideration the depreciation and facts of the case we consider that an amount of Rs.15,000/- towards damages for loss of vehicle would be sufficient compensation to complainant.

8. In the result, we partly allow the complaint and order opposite party to pay to the complainant Rs.15,000/- (Rupees fifteen thousand only) as damages along with cost of Rs.1,000/- (Rupees one thousand only) within one month from the date of receipt of copy of this order.

Dated this 9th day of February, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A4

Ext.A1 : Vehicle Sales invoice dated, 11-3-2005.

Ext.A2 : Cash Bill for Rs.1,287/- dated, 11-3-2005 from KVR Automobiles,

Manjeri to complainant

Ext.A3 : Photo copy of the Lawyer notice dated, 20-9-2007 by complainant's

counsel to opposite party.

Ext.A4(series) : Receipts (ten nos.)

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B10

Ext.B1 : Proforma Invoice for Rs.37,623/- dated, 27-3-05 from KVR

Automobiles to complainant.

Ext.B2 : Two Wheeler loan application form by complainant.

Ext.B3 : Letter dated, 15-3-2005 from complainant to opposite party

Ext.B4 : Agreement between opposite party and complainant.

Ext.B5 : Photo copy of telegram cash receipt dated, 15-7-2006 from BSNL.

Ext.B6 : Photo copy of telegram cash receipt dated, 15-7-2006 from BSNL.

Ext.B7 : Photo copy of the inventory of Items in vehicle from opposite party.

Ext.B8 : Declaration from complainant to opposite party.

Ext.B9 : Statement of account.

Ext.B10 : Photo copy of the notice dated, 15-7-2006 by opposite party

to complainant.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER