DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 22nd day of March 2014
Present: Smt.Seena.H. President
Smt.Shiny.P.R. Member
Smt.Suma.K.P. Member Date of filing : 29/11/2013
CC No.65/2012
Nalini,
W/o.Unnikrishnan Nair,
Thazhathethil House,
Kalluvazhi (PO),
Thiruvazhiyode Via,
Ottapalam
(By Adv.R.Manikandan) - Complainant
Vs
Branch Manager,
Sreeram Transport Finance Ltd.
Palakkad Branch,
2nd floor, Sunshine Complex,
T.B.Road, Opp.Alukas Jwellery,
Palakkad. - Opposite party
(By Adv.B.Kamal Chand)
O R D E R
Order by Smt.SEENA.H, PRESIDENT
In short the case of the complainant is as follows:
Complainant purchased a three wheeler goods vehicle Bajaj Minidoor Pickup for her son. An amount of Rs.1,00,000/- was availed as finance from the opposite party. It was agreed to pay equal monthly installments of Rs.4015/- for 36 months. The grievance of the complainant is that during repayment the complainant was directed to pay monthly installments exceeding the actual amount fixed which is deficiency in service and unfair trade practice on the part of opposite party. Again when the balance to be paid has reached an amount of Rs.22,000/-, opposite party has seized the vehicle on 31/5/2010 when the vehicle was engaged in a work. The tenure of the loan period ends only in the month of October 2011. Complainant in order to clear the dues and to take delivery of the vehicle demanded a detailed account statement which was also denied by the opposite party.
According to the complainant, opposite party is bound to deliver back the vehicle after receiving the dues. The act of opposite party amounts to clear deficiency in service and hence the complaint. Complainant prays for an order directing the opposite party to deliver back the vehicle upon receipt of the dues from the complainant, pay an amount of Rs.75,000/- as compensation and also cost of the proceedings.
Opposite party filed version contending the following.
Complainant as borrower and Mr.Subramanian as guarantor entered into a loan cum hypothecation agreement with the opposite party whereby an amount of Rs.1,00,000/- was advanced for purchase of Bajaj ac 1000. As per the agreement loan has to be repaid in 36 monthly installments of which an amount of Rs.4011/- to be paid in 35 installment and an amount of Rs.4015/- to be paid as last installment. Thus the total amount to be repaid is Rs.1,44,400/-. If there is any delay in payment of monthly installment, the delay payment charges also will accrue. The complainant was never a regular payer. When the complainant and the guarantor kept huge amount as arrears, the officials of the opposite party requested the complainant to pay the defaulted amount. Complainant instead of paying the amount has surrendered the vehicle to the opposite party on 31/5/2010 and also promised to pay the balance amount after the sale of the vehicle. After that notice prior to sale was issued by opposite party on 7 /6/10 to the complainant. That was received by the complainant, but there was no response. Details regarding sale was published in “Thurannakathu” Daily on 11/06/2010. The vehicle was sold on 14/6/2010 for an amount of Rs.39,000/-. After that a notice dated 10/8/10 was sent to the complainant intimating the details of the sale and requesting payment of balance amount of Rs.82,327/-. The same was also received by the complainant, but she kept mum. Since more than Rs.80,000/- is due to opposite party, complainant is not entitled for any relief as prayed for.
Both parties filed their respective chief affidavits. Ext.A1 to Ext.A4 marked on the side of the complainant. Ext.B1 to B9 marked on the side of opposite party. Complainant and opposite party cross examined as PW1 and DW1. An interim application 157/12 was filed by complainant alongwith the complaint for granting interim custody of the vehicle which was seized by the opposite party. Opposite party filed counter stating the vehicle was already sold hence the application was infructous. Since no documents was produced before the Forum to prove sale, the Forum vide order dated 19/6/2012 allowed the application. It was taken up in revision before Hon’ble State Commission wherein Hon’ble State Commission set asided the order of the Forum vide order dated 15/01/13.
Issues for consideration.
1.Whether there is any deficiency in service on the part of opposite party ?
2.If so, what is the relief and cost ?
Heard both parties and has gone through the entire evidence on record.
Issue No.1&2
It is an admitted case that the complainant has availed an amount of Rs.,1,00,000/- from the opposite party with promise to repay the amount with interest in 36 monthly installments. It is the case of the complainant that when the balance amount to be repaid has reached Rs.22,000/- opposite party repossessed the vehicle on 31/5/2010. No evidence is forthcoming on the part of the complainant to the balance amount payable. Complainant has produced some receipts and stated some are missing. As per Ext.B9 account statement an amount of Rs.41,553/- is due as on May 2010. If there is any amount due, opposite party has every right to repossess the vehicle as per the provision of law. The contention of the opposite party is that the complainant herself has surrendered the vehicle on 31/05/2010, but complainant alleges that the same was forcefully repossessed by the opposite party. No evidence adduced by the opposite party to show that the vehicle was surrender to them. No receipt is seen issued to the complainant on surrender of the vehicle. Instead Ext.B4 series which is lawyer notice issued by the opposite party shows that vehicle was repossessed by the opposite party. The relevant portion of Ext.B4 series is noted below:
“This is to inform both of you on 7/6/2010,No.1 and 2 of you jointly and severally entered into an agreement with M/s.Shriram Transport Finance Co.Ltd. as borrower and guarantor for extending financial facility for purchasing the vehicle bearing Reg.No.KL-51-9671. Inspite of repeated requests and reminders you have not taken any steps to clear the arrears due to the company. This constrained us to repossess the vehicle”.
Opposite party’s own document reveals the fact that vehicle was repossessed by the opposite party. The case of the complainant that the vehicle was repossessed by force remain to be a more probable one.
Further in Ext.B4 it is stated that an amount of Rs.1,13,457/- is the arrears to be paid and requested the complainant to pay the same within 3 days from the date of receipt of the notice. Notice is dated 7/6/2010. It is seen to be sent on 8/6/2010 and same is seen reached the complainant on 10/6/10. Ext.B5 “Thurannakathu” Daily dated 11/6/10 wherein advertisement for sale of the vehicle is published shows that opposite party has not waited for atleast 3 days as assured in the notice. The attitude and the real intention of the opposite party is very much clear from their conduct. Opposite party has not given the complainant a breathing time to settle the dues.
Next aspect is regarding the procedural irregularities in conducting auction proceedings. No notice intimating the place and date of auction is seen communicated to the complainant personally. Principles of natural justice warrants the intimation of the same. Ext.B4 which according to opposite party is the presale notice, only intimation is regarding the due amount and that steps will be taken for sale. The due amount is not paid. Ext.B5 wherein the publication is effected, “Thurannakathu” Daily also does not reveal the fact that the vehicle was put on auction. Date and place of auction is also not stated therein. It merely stated “vehicle for sale contact shriram Co.Ltd.. Complainant has disputed the credibility of Ext.B6 series which is the quotation dated 11/6/10 issued by various persons for the purchase of the vehicle. No seal or initial of the opposite party is seen affixed in Ext.B6 series to show the receipt of the same by opposite party. No auction register or any other document produced by opposite party to show that the auction has actually taken place. According to opposite party the vehicle was sold on 14/6/2010 for an amount of Rs.39,000/-. Ext.B9 which is the account statement issued by opposite party, it is seen that an amount of Rs.34,000/- was credited into the account on 15/6/2010, but an amount of Rs.5,000/- is seen credited on 14/5/10 i.e. one month prior to the sale and also prior to the offer for sale. That itself shows the irregularities in the auction proceedings if at all such an auction has already taken place.
Finally a registered notice with acknowledgment due dated 10/8/10 (Ext.B8)intimating that the vehicle was sold in auction and requests to pay an amount of Rs.82,327/- within 7 days from the date of receipt of notice, failing which arbitration proceedings will be initiated is said to be issued by the opposite party. Complainant disputed receipt of Ext.B8. Opposite party has not produced the acknowledgment card. Copy of the postal receipt reveal the fact that the notice dated 10/8/10 was sent on 11/10/2010.
Another important aspect is that no valuation of the vehicle is seen done before sale. Ext.A1 reveals the fact that a brand new vehicle was purchased by the complainant in the month of November 2008. In Ext.B3 loan cum hypothecation agreement dated 5/11/2008, present value of the hypothecated vehicle as noted is Rs.1,28,990/-. Sale has taken after a period of 1 ½ year. Even if 30% depreciation is calculated, the vehicle will fetch approximate Rs.90,000/- The act of opposite party has resulted in incurring loss to the complainant.
As per Section 2(1)(o) Service rendered with regard to financing specifically come under the purview of the Consumer Protection Act.
Section 2(1)(g) define deficiency of service is as “Deficiency” means any fault imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.
Lots and lots of inadequacies and shortcomings noted in the service rendered by opposite party for which complainant has to be adequately compensated. Considering all the aspects we are of the view that an amount of Rs.40,000/- as compensation will meet the ends of justice.
In the result complaint partly allowed. Opposite party is directed to pay complainant an amount of Rs.40,000/- (Rupees Forty thousand only) as compensation alongwith Rs.1,000/- (Rupees One thousand only) as cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 22nd day of March 2014.
Sd/-
Seena H
President
Sd/-
Shiny.P.R.
Member
Sd/-
Suma.K.P.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Attested copy of Registration Certificate
Ext.A2 – Fitness Certificate (Original)
Ext.A3 – Tax receipt (Original)
Ext.A4 – Insurance Certificate(Original)
Exhibits marked on the side of the opposite party
Ext.B1 series – Certified copy of the notice dated 5/4/2011 issued to the
complainant alongwith postal acknowledgment card
Ext.B2 – Certified copy of Power of Attorney
Ext.B3 – Loan cum Hypothecation Agreement
Ext.B4 series – Copy of letter sent by opposite party to the complainant and
undelivered envelop
Ext.B5 – Paper publication in Thurannakathu daily.
Ext.B6 – Letter sent by complainant to the opposite party dated 11/06/2010
Ext.B7- Agreement of sale with K.Abdul Hameed
Ext.B8 - Copy of the post sale notice dated 10/8/2010
Ext.B9 – Statement of accounts of the complainant
Witness examined on the side of complainant
PW1 – Nalini.T
Witness examined on the side of opposite party
DW1 – Haridas.M
Cost
Rs.1,000/- allowed as cost of the proceedings.
