Telangana

Mahbubnagar

CC/11/48

L. Praveen Kumar S/o L. Ramalingam, - Complainant(s)

Versus

The Branch Manager, Srirama Transport Finance Company Ltd , and Another - Opp.Party(s)

Sri M. Chennaiah Goud

21 Nov 2011

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Monday, the 21^st day of November, 2011 

                                                  Present:- Sri P. Sridhara Rao, B.Sc., LL.B., President

       Sri A. Veerupakshi, B.A., LL.B., Member     

     Smt. D. Nirmala, B.Com., LL.B.,Member

C.C.NO. 48  Of   2011

Between:-

L. Praveen Kumar S/o L. Ramalingam, aged: 25 years, Occ: Owner of Eicher Van No.AP22 X 2946, R/o H.No.2-113, Marikal village, Dhanwada Mandal, Mahabubnagar District.  

                                                                                                                                           … Complainant

And

1. The Branch Manager, Srirama Transport Finance Company Ltd., Door  

    No.1-5-107/4A, Opp: Mallikarjuna Enterprises, New Town, 

    Mahabubnagar.

2. The Manager, Srirama Transport Finance Company Ltd., Administrative 

    Office, 101-105, Shiva Chambers, Sector 11, C.B.D., Belapur, Navi 

    Mumbai.                                                                                           … Opposite Parties

    

 This C.C. coming on before us for final hearing on 11-11-2011 in the presence of Sri M. Chennaiah Goud, Advocate, Mahabubnagar on behalf of the complainant and Sri C. Rajeev Kumar, Advocate, Mahabubnagar for the opposite parties and the matter having stood over for consideration till this day, this Forum made the following:   

                                                                                                      O R D E R

 (Smt. D. Nirmala, Member)

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to stop the auction of the vehicle and hand over the Eicher Van No.AP22 X 2946 after receiving due installments i.e., January, 2011 installment or return vehicle costs with interest from the date of seizure of vehicle and to pay Rs.1,00,000/- towards financial loss for seizing of the vehicle, Rs.30,000/- towards compensation for adopting unfair trade practice and deficiency of service and Rs.20,000/- towards costs of the complaint.  

2. The averments of the complaint in brief are that:- The complainant is the owner of Eicher Van No.AP22 X 2946 Model 2009/3 cost about 7,95,000/-.  The complainant paid down payment of Rs.1,65,000/- by obtaining the remaining amount of Rs.6,30,000/- from the OP-1 by entering into an agreement dated 30-3-2009 agreeing to pay the same in 47 installments   @ Rs.19,795/- per month and Rs.19/- towards 48^th installment commencing from May, 2009 to be ended in the month of April, 2013 and at the same time he delivered 6 cheques to the opposite parties.  During the course of the said transaction the complainant regularly paid the monthly installments from the month of May, 2009 till December, 2010 total comes to Rs.3,93,231/- and obtained receipts from the opposite parties.  While the matter stood thus, though he did not commit any default in making payment of the installments amount, but in the month of January, 2011 in his absence the opposite parties without giving any notice to him forcibly seized the vehicle by damaging the steering while it was parked in his village.  Then on his approaching and questioning the OP-1 about their such unlawful activity agreeing to pay the installment amount for the month of January, 2011 and requesting him to hand over the vehicle but the opposite parties refused to hand over the vehicle and demanded that he shall pay the entire future installments amount of Rs.7,95,893/-. Subsequently, the opposite parties sent a full settlement notice to him on 4-2-2011 demanding him to pay the said outstanding amount of Rs.7,95,893/- on or before              28-2-2011. On receipt of the said notice when the complainant again approached the opposite parties and requested to release the vehicle on receiving the due installments amount, the opposite parties again demanded the entire future installments amount of Rs.7,95,893/- or otherwise they will auction the vehicle. The complainant is a poor person having number of dependents upon him and he purchased the vehicle for his livelihood, and that due to the attitude of the opposite parties his entire family is on road suffering financial and mental agony. Such acts on the part of the opposite parties amounts to deficiency of service and unfair trade practice. Thus the present complaint is filed for the aforesaid relief.   

3. The opposite party No.1 filed counter denying the averments of the complaint and stated that this opposite party has provided financial assistance of a sum of Rs.6,30,000/- to the complainant for purchasing vehicle in question under loan-cum-hypothecation agreement dated 30-3-2009, and that the agreement value is Rs.9,30,384/- including financial charges of a sum of Rs.3,00,384/- with a condition that the loan amount with financial charges has to be paid 47 equated monthly installments of Rs.19,795/- and one installment of Rs.19/- payable from  1-5-2009 to 1-4-2013.  It is further stated that the claim of the complainant that he is ready to pay the due installment is not bonafide, and that the complainant has come up with the present complaint to cover up his own faults and his inability to pay installments regularly, and that the opposite party has scrupulously followed procedure and the terms of the agreement and did not indulge in any such unfair trade practice, and that the amount claimed towards loss, damages, compensation and costs are highly excessive, exorbitant and irrational and when the opposite party has not provided any deficient services then the question of paying damages, costs and compensation to the complainant does not arise at all.  It is also further stated that the complainant has availed interest free tyre loan of a sum of Rs.20,000/- from the opposite party on 29-4-2010 to be repaid in 4 installments @ Rs.5,000/- commencing from 1-6-2010 and he so also obtained SCUF loan of a sum of Rs.80,000/- from the opposite party on  28-1-2010 which has to be repaid in 18 installments @ Rs.5,385/- which includes finance charges of Rs.16,930/- of which repayment commences from 1-3-2010 to 1-8-2011, and that apart he has also obtained “BULLET” loan of a sum of Rs.2,00,000/- from the opposite party on 23-9-2010 for regularizing his above said loans and the same was adjusted to the above said various loans at his request for clearing arrears and regularizing the loans, and that the said loans are as “CHILD LOANS” and are in continuation of the hypothecation agreement. It is also further stated that when the complainant failed to make payments of loan installments regularly even after regularizing the loan and fell due a substantial amount, the opposite party got issued notice dated 20-1-2011 before seizure of the vehicle demanding him to settle the account and when the complainant did not pay the installments dues upto date, the opposite party issued another notice dated 4-2-2011 after seizure of the vehicle to the complainant and his surety calling upon them for full settlement.  Having received the said notice also the complainant and his surety neither paid the installment dues nor replied the notice.  The opposite party also made proper publication for sale of the seizure vehicle in widely circulated daily newspaper on 8-2-2011 for conducting public auction on 15-2-2011 and even then without making payments of due installments the complainant filed the present complaint with false and untenable grounds by suppressing the material facts and dragged the opposite parties in needless and vexatious litigations. Hence the complaint is liable to be dismissed with costs.      

4. The opposite party No.2 having entered into his appearance and availing sufficient opportunity did not choose to file any counter.                

5. Thereupon the complainant in support of his claim filed his affidavit evidence and got marked Exs.A-1 to A-7.  On the other hand, the OP-1 filed his affidavit evidence while the OP-2 filed a memo adopting the affidavit evidence filed by OP-1 and got marked Exs.B-1 to B-14.  

6.  The points for determination now are:

1. Whether there is any deficiency of service and unfair trade practice on the part of the opposite parties as alleged?

    (ii)  Whether the complainant is entitled for the relief sought for by him? 

    (iii)  To what effect? 

7. The admitted facts of the case are that the complainant obtained finance of a sum of Rs.6,30,000/- from the OP-1 and accordingly entered into hypothecation agreement in favour of the OP-1 agreeing the terms and conditions mentioned therein.

8. Point Nos.1 and 2:- It is the case of the complainant that though he regularly paid the installments from May, 2009 till December, 2010 but in the month of January, 2011 without giving any notice to him the opposite parties forcibly repossessed his vehicle.  That on his approach the opposite parties refused to return the vehicle demanding the entire future installment amount of Rs.7,95,893/-. On this aspect, the contention of the learned counsel for the opposite parties is that when the complainant committed default in making payment of installments amount the opposite parties have issued a prior notice to the complainant as under the original of Ex.B-12 informing him that they are going to seize the vehicle due to non payment of installments and arrears. Except taking a plea that the opposite parties without prior notice forcibly repossessed the vehicle from his possession the complainant did not challenge the recitals of Ex.B-12.  There is also no material placed on record by the complainant that he did not receive any such notice prior to the repossession of the vehicle. In the absence of such material it can clearly be said that the opposite parties have issued such notice dated 20-1-2011 as under the original of Ex.B-12 to the complainant.  Therefore, in view of Ex.B-12 the contention raised by the complainant that the opposite parties forcibly repossessed the vehicle without issuance of any notice is not tenable.  As stated above, it is the case of the complainant that he regularly paid the installments from May, 2009 till December, 2010 and accordingly obtained receipts from the opposite parties. But the complainant to the best reasons known to him did not produce all such receipts except the receipts Exs.A-3 to A-7.  A perusal of the recitals of the receipts Exs.A-3 to A-7 clearly goes to show that the complainant is very irregular in making payments to the opposite parties that too with irregular intervals and did not adhere to the terms and conditions of the hypothecation agreement executed by the complainant in favour of the opposite parties. Therefore, as rightly contended by the learned counsel for the opposite parties it can clearly be said that the complainant is a chronic defaulter till December, 2010.  As per the terms and conditions of the agreement executed by the complainant in favour of the opposite parties admittedly the opposite parties are having every right to repossess the vehicle in case if the complainant is a defaulter. Therefore, it is made clear by the opposite parties that since the complainant became defaulter in payment of the installments amounts upto December, 2010 they have repossessed the vehicle only after issuing a prior notice on 20-1-2011 to the complainant as under the original of Ex.B-12. So, the contention raised by the learned counsel for the complainant that the opposite parties without issuing any prior notice forcibly repossessed the vehicle is not tenable. If really there is a truth in the case of the complainant that the opposite parties refused to deliver possession of the vehicle on receiving the due installments, the complainant ought to have shown his bonafides by offering such amount to the opposite parties. But the complainant admittedly failed to make such offer to the opposite parties.  Therefore, we find that there is no truth in the case of the complainant that the opposite parties refused to return the vehicle on receiving the due installments. A further perusal of the material clearly goes to show that after repossessing the vehicle the complainant was given an opportunity to settle his account with the opposite parties, but it appears that the complainant did not try to settle the account. Because, it is the case of the opposite parties that after repossessing the vehicle they have issued notice for full settlement on 4-2-2011 as under Ex.A-2/B-13 (the original of Ex.A-2) and even then the complainant did not come forward to settle his account. According to the complainant admittedly he is in receipt of such notice.  A perusal of the recitals of Ex.A-2/B-13 clearly goes to show that it is specifically informed therein to the complainant that if the complainant fails to settle the said amount within the stipulated period of 10 days from the date of receipt of the same they have no other option except to sell the vehicle and appropriate the proceeds thereof towards the amount due under the agreements. It appears from the record that the complainant even after receipt of such notice as under Ex.A-2/B-13 also not tried to settle his account for the reason that the opposite parties not only issued such notice Ex.A-2 but also made publication in a daily newspaper dated 8-2-2011 as under Ex.B-14 for auction of the vehicle on 15-2-2011 giving an opportunity to the complainant to settle his account. Therefore, it is made clear by the opposite parties that they have repossessed the vehicle after giving notice to the complainant as under the original of Ex.B-12 and so also issued pre sale notice as under Ex.A-2/B-13 and so also the publication Ex.B-14.  The complainant is also unable to deny that he committed default in making the payment as per the terms and conditions of the hypothecation agreement executed by him in favour of the opposite parties except taking a vague plea that he regularly paid the installments amount upto December, 2010.  In view of the issuance of notices as under Exs.B-12, A-2/B-13 and the publication Ex.B-14 the complainant failed to pay the loan amount inspite of the sufficient time given to him. Under the said circumstances, the complainant having failed to pay the loan amount inspite of the sufficient time given to him cannot allege any deficiency of service and unfair trade practice on the part of the opposite parties.  Hence, for the reasons stated above and in view of the principles laid down in the recent decision reported in IV (2011) CPJ 359 (NC) (Mahindra and Mahindra Finance Co. Ltd., Vs. Sankatha Prasad & Others), we hold that the complainant failed to establish his case on the ground of deficiency of service and unfair trade practice on the part of the opposite parties, as such the complainant is not entitled for any relief sought for by him and thus the complaint is liable to be dismissed. Both the points are answered accordingly in favour of the opposite parties and against the complainant.   

9. Point No.3:- In the result, the complaint is dismissed.  In view of the facts and circumstances, both the parties have to bear their own costs.   

         Typed to dictation, corrected and pronounced by us in the open Forum on this the 21^st day of November, 2011.    

 

                                                        I agree                        I agree                                                             

 

 MEMBER                                      MEMBER                             PRESIDENT                       

  Appendix of evidence

      List of Witness examined

On behalf of Complainant:                          On behalf of Opposite Parties:   

- Nil -                                                                      - Nil -                                       

List of documents marked:-

On behalf of Complainant:-    

                        Ex.A-1: Copy of Statement of Account, dt.21.2.2011.

Ex.A-2: Copy of Specimen Notice, dt.4.2.2011.

Ex.A-3: Original Receipt, dt.26.8.2010.

Ex.A-4: Original Receipt, dt.29.11.2010.

Ex.A-5: Original Receipt, dt.30.9.2009.

Ex.A-6: Original Receipt, dt.2.8.2010.

Ex.A-7: Original Receipt, dt.30.6.2009.

On behalf of OPs.:                 

                        Ex.B-1: Copy of Payment/Order Acknowledgement, dt.25.3.2009.

Ex.B-2: Original Loan cum Hypothecation Agreement.

Ex.B-3: Original Demand Promissory Note, dt.30.3.2009.

Ex.B-4: Original Application Form.

Ex.B-5: Original Demand Promissory Note, dt.28.1.2010.

Ex.B-6: Copy of Verification Report, dt.28.1.2010.

Ex.B-7: Copy of Loan Requisition Letter, dt.28.1.2010.

Ex.B-8: Copy of SCUF Requisition Letter, dt.28.1.2010.

Ex.B-9: Copy of Letter, dt.29.1.2010.

Ex.B-10: Original Loan Documentation.

Ex.B-11: Original Loan Documentation.

Ex.B-12: Copy of Letter, dt.20.1.2011.

Ex.B-13: Copy of Specimen Notice, dt.4.2.2011.

Ex.B-14: Photostat copy of Newspaper item.                                                                                                                          

                                                                                                   

 

                                                                        PRESIDENT                                                                                                   

Copy to:-

1. Sri, M. Chennaiah Goud, Advocate, Mahabubnagar for the complainant.

2. Sri C. Rajeev Kumar, Advocate, Mahabubnagar for the opposite parties.