IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI

SRI. C.V. MARGOOR,PRESIDENT

O R D E R

1. This complaint filed by Sri. Madhu.P.M. s/o. late P.S. Muthanna aged 58 years, resident of Devanoor Village, Virajpet Taluk, Kodagu District against the Branch Manager Sriram Transport Finance Company Ltd., Gonikoppal, Virajpet Taluk, Kodagu District with a prayer to direct the opponent either to return the Tata Indigo car of 2015 model bearing registration No. KA 12 B 2453 or to return  Rs.3,00,000/- collected by the opponent from him along with Rs.20,000/- towards the damages and Rs.5,000/- being the cost of the proceedings.

2. The complainant had purchased Tata Indigo car of 2015 model bearing KA 12 B 2453 under hire purchase agreement through the opponent.  The complainant has paid Rs.1,50,000/- towards EMI and there after paid Rs.1,50,000/- to the opponent in installments.  The complainant due to natural calamities such as heavy rain fall, draught and wild animal menace has sustained huge loss in agriculture could not pay some of the installments.  The opponent for nonpayment of few installments has seized the Indigo car of the complainant on 02/07/2017 and issued notice dated 21/08/2017 calling upon the complainant to pay a sum of Rs.4,25,000/- within 10 days from the date of receipt of the notice.  The complainant has gave reply on 04/09/2017 for which he assured and undertook to pay Rs.1,50,000/- in the month of February,2018 and the remaining balance in the month of April, 2018.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

3. It is the further case of complainant that recently he came to know that the opponent has auctioned his car for very meager amount.  The opponent did not inform the auction of the complainant car and without giving natural justice sold the car for meager amount.  Hence, this complaint.

4. The opponent filed his written version contending that the complainant is not a consumer under Section 2(1)(d) of Consumer Protection Act.  This Forum has no jurisdiction to entertain the complaint since there is a clause in loan cum hypothecation agreement to settle the dispute by arbitration.

5. The opponent admitted that the complainant has purchased Tata Indigo car of 2015 model for value of Rs.4,19,000/- plus finance charges of Rs.1,96,604/-.  The complainant has agreed to pay the said amount in 60 monthly installments of Rs.10,231/-.  The complainant is the chronic defaulter in repayment of monthly installments and has paid only a sum of Rs.1,95,199/-.  Even after adjusting the auction amount of Rs.2,10,000/- the complainant is still due a sum of Rs.2,47,603/-.  The opponent denied that it is in deficiency in service.  The opponent further denied that it has auctioned the vehicle of the complainant for meager amount.  On the above grounds, the opponent asked to dismiss the complaint.

6. The complainant filed his affidavit in lieu of evidence and got marked exhibits P1 to P8 documents.  On behalf of opponent its GPA Holder one Shivakumar B.R s/o. Raghavendra, Credit Executive filed his affidavit and got marked exhibits R1 to R4 documents.

7. The learned counsel for the complainant and opponent have submitted their written arguments and the point that would arise for determination are as under;

1. Whether the complainant proves that the act of opponent without issuing notice auctioning Tata Indigo car amounts to unfair trade practice or deficiency in service?
2. Is complainant entitled to the relief sought for?
3. What order?

8. Our findings on the above points is as under;

• Point No.1:- In the Affirmative
• Point No.2:- In the partly Affirmative
• Point No.3:- As per final order for the below

R E A S O N S

9. Point Nos. 1 to 3:-In this case undisputed facts are that purchase of Tata Indigo car bearing registration No.KA 12 B 2453 by the complainant through the finance of opponent and execution of loan cum hypothecation agreement dated 26/08/2015.  The opponent has sanctioned loan of Rs.4,19,000/- for purchase of car and had a financial charges of Rs.1,96,604/-.  The complainant has paid few monthly installments but not regular.  The allegation of the complainant is that due to draught and other reasons he could not pay the installments and requested the opponent through letter that he would make payment in the month of February, 2018.

10. Exhibit P5 is the letter addressed to the complainant after sanction of loan and according to this EMI starting date was 05/10/2015 and EMI end date would be 05/09/2020.  The monthly installment was Rs.10,231/-.  According to the opponent the complainant has paid a sum of Rs.1,95,199/- as on 30/06/2017 and arrears as on 04/09/2017 was Rs.77,697/-.  The opponent has sold the car belonging to the complainant on 12/09/2017 for Rs.2,00,000/-. 

11. Exhibit R4 is the statement of account of the complainant produced by opponent.  Exhibit R4 indicates that the complainant has paid EMIs regularly but he skipped one or two installments in the interval from the date of purchase of vehicle till 04/07/2017.  As already observed that the complainant has made payment Rs.1,95,000/-. The last installment was due in the month of September,2020.  It is the allegation of the complainant that on 02/07/2017 the opponent has seized his vehicle and issued notice dated 21/08/2017 calling upon to pay the total sum of Rs.4,25,000/- within 10 days from the date of receipt.  The complainant has given reply dated 04/09/2017 stating that he would pay Rs.1,50,000/- in the month of February, 2018 and the remaining balance in the month of April, 2018.  Exhibit R4 account statement of the complainant indicates that he has paid Rs.1,95,000/- from 04/09/2015 to 04/07/2017.  As on 04/09/2017 the complainant was in arrears of Rs.80,000/- excluding the remaining installments to be paid till 05/09/2020.

12. The learned counsel for the opponent contention is that the complainant has become chronic defaulter as such they have auctioned the car for Rs.2,10,000/- and even after adjusting the auction amount still he is due a sum of Rs.2,47,603/-.  The opponent though the complainant was due meager amount of Rs.80,000/- as per agreement without issuing notice to the complainant has auctioned the car.  In case of HDFC Bank Ltd. v/s Sharmila Das Gupta 2018 (3) Consumer Protection Reporter 152, the National Commission in Revision Petition No.1835 to 2013 dated 28/06/2018 held that there is no illegality or infirmity in concurrent orders of Fora below consequently dismissed the Revision Petition filed by HDFC bank.  In the said case the complainant/ opponent by pledging 113 gram gold armaments has availed loan but failed to repay the loan amount with interest after the maturity period.  The complainant has paid a sum of Rs.1,500/- for renewal of the loan and even after renewal the bank has sent letter along with bankers cheque stating that they have sold the gold deposited in auction.  The District Forum, Kolkatta held that the opponent bank without issuing notice of the auction has sold the gold in auction and appropriated the amount towards the loan.  The opponent bank has preferred appeal before the State Commission but its appeal came to be dismissed.  The opponent bank has preferred Revision Petition before the National Commission there also it did not succeed.  The National Commission held that the act of opponent bank auctioning the gold without issuing notice to the complainant is against the principle of natural justice and audi alterm partem. 
13. The facts of the above citation are aptly applicable to the case on hand.  In this case also the opponent without intimating the complainant has sold the car and even not intimated after sale of the car.  The opponent has not produced any document show that they have intimated the date of auction of the car to give an opportunity to the complainant to participate in the auction.  Further the opponent has not produced any document to show that after sale of car in auction has intimated the complainant the price at which the car was sold.  Therefore, the act of opponent auctioning the car belonging to the complainant without giving notice as per the decision of National Commission amounts to unfair trade practice. 

14. The learned counsel for the opponent contention is that this Forum does not have jurisdiction in view of clause no.15 of exhibit R1 loan cum hypothecation agreement. Clause No.15 of exhibit R1 provides for arbitration that all disputes, differences or claims arising out of these present or as to the construction, meaning or effect here of or as to the rights and liabilities of the parties hereunder shall be settled by arbitration to be held in Madikeri in accordance with the provisions of the Arbitration and Conciliation Act, 1996.  Though there is a clause in exhibit R1 agreement but Section 3 of the Consumer Protection Act says that the provisions of the act are in addition and not in derogation of provisions of any other law for the time being in force.  In presidency post master v/s Dr.V Shankar Rao 1993(2) CPJ 141 held that manifestly provisions of the act granted additional remedy to the consumers, but where the remedy itself is barred by some provisions of some other act then the remedy which the consumer prays cannot be granted by the Forums constituted under the act.  There is no bar under the Arbitration Act to get remedy under the provisions of Consumer Protection Act.  But it is only an arbitration agreement entered in to between the parties.  The agreement entered between the parties i.e., complainant and opponent does not oust the jurisdiction of this Forum.  Therefore, this forum is having jurisdiction to entertain the complaint filed by the complainant.

15. According to exhibit R4 the complainant has paid Rs.2,00,000/- by way of installments.  The opponent without giving notice and intimating the date of auction has sold the seized car and realized the auction amount.  That apart the opponent has not even intimated the price at which the car was sold and the date of auction.  The act of opponent amounts to unfair trade practice.  The complainant prayer is that to pass an order to direct the opponent to either return the Tata Indigo car of 2015 model which was illegally seized and auctioned or to repay the EMI amount of Rs.3,00,000/- in addition to damages and cost of the proceedings.  The opponent has already sold the car in auction in the month of September, 2017 as such the said car could not be returned to the complainant.  The complainant is entitled to the amount paid by him a sum of Rs.2,00,000/-by way of installments.  The complainant has not produced documents to show that he has paid Rs.3,00,000/- by way of installments.  The opponent has already sold the seized car and adjusted the auctioned amount towards the balance amount of the car.  The complainant has suffered mental agony for seizer of the car though he has paid Rs.1,95,000/- within two years from the date of purchase of car and still he has time to pay the amount till 05/09/2020.  Though the complainant was due meager amount of Rs.80,000/- short amount of the installments even then the opponent has seized the car and without intimating the opponent has auctioned.  Therefore, the complainant is entitled for damages of Rs.20,000/- asked by him.  In view of the above discussion, we proceed to pass the following;

O R D E R

1. The complaint filed by Mr. Madhu.P.M. is partly allowed directing the opponent to return a sum of Rs.2,00,000/- to the complainant with interest at the rate of 15% per annum from 04/09/2017 till its realization.
2. It is further ordered that the opponent shall liable to pay Rs.20,000/- as compensation towards mental agony and Rs.5,000/- cost of this proceedings to the complainant within two months from the date of order.  In case the opponent fails to pay said amount of Rs.25,000/- within stipulated period it carries interest at 15% per annum from the date of order till payment.
3. Furnish the copy of the order to the complainant and opponent at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and pronounced in the open Forum on this 29^th day of DECEMBER, 2018)

                                                  (C.V. MARGOOR)

                                                      PRESIDENT 

                                                (M.C. DEVAKUMAR)

                                                        MEMBER