By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite party to close the loan account and return Rs.25,000/- to the complainant with compensation and cost of the proceedings.
2. Brief of the complaint:- On 30.12.2013 the complainant has availed a loan from the opposite party for his vehicle No.KL 11 AH 7798, the loan amount was Rs.2,25,000/- and the repayment was fixed by 41 monthly installments of Rs.7,730/- and 1st installment of Rs.2,500/-. The repayment period was fixed up to 20.05.2017. The complainant altogether repaid Rs.1,05,930/-, thereafter he could not pay the installments in time. Then the opposite party approached the complainant and requested that if the complainant is ready to surrender the vehicle, they are ready to close the loan account by selling the vehicle in public auction and after adjusting the sale proceeds the balance amount will be returned to the complainant. Believing this on 09.02.2016 the complainant surrendered the vehicle having the market value of Rs.2,60,000/- to the opposite party. Thereafter on 11.02.2016 he has received a letter demanding for balance payment after adjusting the sale proceeds. Then on 22.04.2016 the complainant received another letter stating that opposite party will start Arbitration Proceedings if the complainant has not closed the loan account. Thereafter complainant obtained statement of account from opposite party, then only he understood that his loan account has not yet closed, and opposite party has credited only Rs.1,00,000/- to his loan account after the surrender. The complainant has surrendered the vehicle before repayment period. At the time of surrender opposite party made an assurance to adjust the sale proceeds to the loan account and the balance amount would be given back to the complainant. Complainant alleged that now he is entitled to get Rs.25,000/- from the opposite party as excessively collected from him after adjusting sale proceeds from him. Hence filed this complaint alleging deficiency of service from the part of opposite party.
3. On receipt of notice, opposite party appeared before the Forum and version filed. In the version, opposite party stated that the complainant availed a loan on his vehicle from the opposite party. The loan amount was Rs.2,27,215/- and terms and conditions of the transaction were reduced in to writing by an agreement dated 30.12.2013. The liability of the complainant to the opposite party is contractual. The agreement value of the loan is Rs.3,19,430/- and the loan were to be repaid by the opposite party in 42 monthly instalments. The 1st installment of Rs.2,500/- and the rest of the installments are for Rs.7,730/-. Opposite party further stated that the vehicle in question was using as a taxi for commercial purpose, hence the complainant is not a consumer. Also the complainant is a chronic defaulter towards the loan repayment as per the statement of Account up to 19.03.2016 an amount of Rs.97,550/- is outstanding against the complainant towards EMI and future EMI pending is Rs.1,15,950/-. The additional finance charges incurred against the complainant due to delay in making repayments is Rs.34,218/- and the cheque return charges incurred against the complainant is Rs.4,000/- and for all these dues the complainant is liable to the opposite party as agreed by him vide contract with No.2971280. The opposite party has sold the vehicle on auction as instructed by the complainant and adjusted the sale proceeds towards the loan account of the complainant and after adjusting the sale proceeds an amount of Rs.65,534/- is still pending as due from the complainant. The opposite party denied that the complainant has repaid Rs.1,05,930/- to the opposite party and handed over the vehicle having cost of Rs.2,60,000/- before one year from the expiry date of loan repayment period. The complainant who surrendered the vehicle and this opposite party has sold the vehicle in public auction after due notice. Subsequently this opposite party send Arbitration Notice to the complainant. Now the complainant filed this complaint only as a precaution and a step in advance with malafide intention to escape from the Arbitration proceedings.
4. Complainant adduced evidence as PW1 and Ext.A1 to A3 documents were marked. Ext.A1 is the Copy of Surrender letter dated 11.02.2016. Ext.A2 is the Copy of Arbitration Notice dated 22.04.2016. Ext.A3 is the Statement of Account. Confronted documents Ext.B1 to B3 documents were marked through complainant. Ext.B1 is the Loan Agreement dated 30.12.2013. Ext.B2 is the Statement of Account. Ext.B3(1) Copy of Surrender Letter dated 11.02.2016. Ext.B3(2) and B3(3) are the Postal Receipts. Ext.B4(1) is the Pre-Sale Notice dated 23.02.2016. Ext.B4(2) and Ext.B4(3) are the Postal Receipts. Ext.B5 and B6 documents were marked through OPW1. Ext.B5(1) is the Post-Sale Notice dated 31.03.2016. Ext.B5(2) and Ext.B5(3) are the Postal Receipts. Ext.B6 is the Attested copy of Power of Attorney.
5. On considering the complaint, version and evidences the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite party?
2. Relief and Cost.
6. Point No.1:- Admittedly the complainant defaulted in payment of installment and some cheques were bounced due to insufficient funds. Both parties admitted the surrender of the vehicle and the complainant surrendered the vehicle in order to close the loan account. The complainant objected the receipt of Ext.B3 Pre-Sale Notice. The opposite party produced postal receipt of the same but Acknowledgment card not seen produced. Opposite party also produced Ext.B5 Post-Sale notice with postal receipt. The complainant objected the same on the ground that he has not received the same. In the version opposite party had not mentioned anything regarding the issuance of Pre-Sale and Post-Sale notice. Such as no sale amount mentioned in the version and Post-Sale Notice. Complainant challenged the genuinity of the Ext.B4 and B5 documents. So as it is nowhere stated in the version and proof affidavit of the opposite party that What is the Sale price and What is the balance amount etc, and opposite party has not produced any documents showing actual sale price.
7. Complainant argued that as per opposite party the asset value of this vehicle in 2013 is Rs.3,20,000/-. At the time of surrender of vehicle prevailing market value of this vehicle was about Rs.2,60,000/-. But opposite parties sold the vehicle for lesser amount and demanding for more amount from the complainant. This complainant had already paid Rs.1,05,930/- to opposite party and surrendered the vehicle having market value around Rs.2,60,000/-. Thereafter opposite party send Ext.B5 Post Sale Notice demanding for balance amount of Rs.65,534/- which is still due after adjusting the sale proceeds.
8. On going through the facts and evidences of the case, we opine that as a consumer the complainant is entitled to know the clear picture of his loan account. Here auction proceedings were conducted on 23.03.2016, the complainant challenged the genuinity of pre-sale and Post-sale notices since it was not served to him. He has the right to know the actual auction amount. But opposite party failed to produce before us a clear picture of his loan account and sale details. As per the loan agreement the liability of the complainant towards the opposite party is contractual and the opposite party is entitled to charge, default interest, cheque return charges and Additional Finance Charges etc. But complainant also have the same right to know the sale amount and auction details. In a ruling by NCDRC in 2016(2) CPR 342 NC, RP No.2581 of 2015 Hon'ble National Commission observed that the surrendered vehicle must be sold by following fair and transparent process. It cannot be sold for a meager amount. Hence in this case opposite parties failed to provide the details of auction sale, thus they are deficient in providing their service. The Point No.1 is found accordingly.
9. Point No.2:- Since the Point No.1 is found in favour of complainant, the complainant is entitled to get compensation and cost of the proceedings.
In the result, the complaint is partly allowed and the opposite party is directed to pay Rs.20,000/- (Rupees Twenty Thousand) as compensation to the complainant for the non disclosure of sale amount in the Post sale Notice. Opposite party is also directed to pay Rs.5,000/- (Rupees Five Thousand) as cost of the proceedings. Opposite party is directed to adjust this amount to the loan account of the complainant and settle the loan. This Order must be complied by the opposite party within 30 days from the date of receipt of this.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 7th day of December 2016.
Date of Filing: 24.05.2016.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Suneesh. C. R. Carpenter.
Witness for the Opposite Party:-
OPW1. Adharsh. Assistant Manager, Legal, Mahindra and Mahindra
Financial Services.
Exhibits for the complainant:
A1. Copy of Surrender Letter. Dt:11.02.2016.
A2. Copy of Arbitration Notice. Dt:22.04.2016.
A3. Statement of Account.
Exhibits for the opposite party:-
B1. Loan Agreement. Dt:30.12.2013.
B2. Statement of Account.
B3(1). Copy of Surrender Letter. Dt:11.02.2016.
B3(2). Postal Receipt.
B3(3). Postal Receipt.
B4(1). Copy of Pre-sale Notice. Dt:23.02.2016.
B4(2). Postal Receipt.
B4(3). Postal Receipt.
B5(1). Copy of Post-sale Notice. Dt:31.03.2016.
B5(2). Postal Receipt.
B5(3). Postal Receipt.
B6. Attested copy of Power of Attorney.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
