BEFORE THE DISTRICT CONSUMER

       DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO.21/2014
 

Date: 28^th day of November, 2016

   P r e  s e n t: 

01) Smt.Sharada.K.                                                    President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                         Lady   Member…

                            B.A (Music)

03) Shri.Shravanakumar.D.Kadi                               Member…

                        M.Com.LL.B.  (Spl)

                V/s

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

The complainant has filed this Complaint u/s 12 of Consumer Protection Act, 1986 against the Opposite Party (herein after referred in short as OP) seeking ordered to OP to handover vehicle in favour of complainant, on receiving the loan amount which it is due till today, Rs.50,000/- towards compensation, mental agony and harassment which it cause due to illegal causing of vehicle, Rs.10,000/- towards cost of litigation and other relief as the Forum deems fit under the circumstances of the case.

2.    The brief fact of the case are as follows:

The complainant has permanent resident of Bilagi town. The complainant has purchased one TATA Motor Medium Goods vehicle bearing No.KA-29/A-2777 in the year January-2011. At the time of purchasing the vehicle, complainant has avail the loan with OP on 31.12.2010 to the extent of R.7,90,000/- with an agreement of payment of 48 monthly installment of Rs.24,735/- and last date of installment due was on 05.01.2015. For the above said loan transaction, complainant has already paid installment amount of to extent of RS.3,17,000/-. The complainant further stated that due to his financial problem not paid the two month installment amount, but OP without any prior intimation for the payment suddenly repossessed the vehicle with it was parked near Gaddanakeri Cross forcibly on 06.11.2012. Thereafter, complainant requested to OP to return back his vehicle on payment of due installment amount, but OP has not responded and also not ready to receive installments loan due amount and taking undue advantage of loan agreement. The complainant stated that without intimation, nor any notice illegally my vehicle kept in their possession.

3.      The complainant further stated that in the last month of November 2013, it is learned that OP has sold out the complainant’s vehicle to third party illegal without transferring the vehicle in their name that to not getting the Fresh Registered Certificate from the RTO Bagalkot. Thereafter, on 06.11.2013 complainant issued a legal notice to RTO Bagalkot and copy to OP not to transfer the vehicle in any third person without giving opportunities to heard on their side. That on 23.12.2013, RTO Bagalkot issued a notice to OP for appearance and to produce the vehicle documents on 03.01.2014, but on that day OP remained absent and said matter is adjourned for 15 days. Hence, act of OP for not giving the reasonable opportunities to heard on complainant and also not giving any opportunist to pay loan amount and ceasing the vehicle is against the loan agreement which it is illegal and unreasonable act and OP has adopted the unfair practice under C.P. Act. Therefore, due to the above complainant has sustained mental agony and harassment. Hence after excising all the grounds to pay his loan due amount lastly complainant is constrain to file this Complaint before the Forum for his grievances. 

4.      After receipt of notice, OP appeared through his counsel and filed Objection denied the entire contents of the Complaint are all false and vexatious. The same is not tenable in law or on facts. OP further submit that the non banking Public Limited Financial Institutions and they are engaged in the commercial vehicle finance business. The complainant has borrowed a loan from the OP purchase a vehicle bearing registration No.KA-29/A-2777 by executing a loan cum hypothecation agreement. In view of availment of loan from OP, the complainant is a Borrower of the OP. Therefore, Borrower is not a consumer u/s 2 (1) (d) of the C.P. Act.

5.      OP further submits that, the complainant has borrowed a loan from OP to purchase the vehicle for the purpose of his transportation business. The loan availed by the complainant is a commercial vehicle loan. Therefore, the commercial user of the vehicle is also not a consumer under the said Act. The complainant has sought direction against the OP to release the seized vehicle. The said relief sought by the complainant is in the form of a mandatory injunction. Therefore, this Forum has no jurisdiction to grant relief in the form of an injunction. As per the terms of the Agreement, OP has already sold the vehicle much prior to the filing the Complaint. Hence, relief sought by the complainant in the present Complaint has become in fructuous and same is not at all maintainable.

6.      That the contents of Para No.2 to 5 are all false. The total loan availed by the complainant and finance charges agreed to be paid under the loan cum hypothecation agreement is Rs.7,90,000/- including 48 months interest at Rs.2,71,414/- total in Rs.10,61,414/-. According to Terms of Loan Agreement executed by the complainant in favour of OP, the essence of the agreement is prompt, punctual and regular payment of monthly installments according to Schedule III of the Agreement commencing from 05.02.2011 to 05.02.2015. According to the terms of Agreement, the complainant has agreed and under taken to pay delayed payment charges in favour of OP at the rate set out in the Agreement. The complainant has not paid the every month installments regularly. According to Clause 6 (b) of the Agreement, in the event of borrower/complainant committing default, the OP is entitled to take possession of the hypothecated vehicle without further any notice from the complainant.

7.      After repossession of the vehicle, the OP being a financier and owner of the vehicle, they have approached the RTO Bagalkot and obtained FRC in their favour. As per the statement of loan account, the total dues payable by the complainant to the OP as on 04.06.2014 is Rs.11,58,711/-.   

8.      OP further submits that the complainant to pay the dues and get cleared his account. Instead of clearing the dues of OP, the complainant has chosen to file the present false Complaint. There is no cause of action to the complainant to file the present Complaint. The complainant has filed false Complaint, contrary to the terms of Loan cum Hypothecation Agreement. It is submitted that obligation arising out of the agreement cannot be questioned by the complainant before this Forum. Moreover the rights and obligations which are conferred by the terms of the agreement cannot be construed as deficiency in service within the meaning of Section 2 (1) (c) of C.P. Act. Hence Ops pray that this Complaint has to be dismissed with compensatory cost.

9.      To prove the case of the complainant, the complainant himself examined as PW-1 and he got marked the documents as per Ex-P1 to Ex-P6 and closed their side evidence. The OP himself examined as RW-1 and has got marked documents as per Ex-R1 to Ex-R7 and closed their side of evidence.

10.    On the basis of the above pleadings the following points that arise for our consideration are:-

1. Whether the complainant proves that there is deficiency in service on the part of the OP as alleged in the Complaint?
2. Whether the complainant is entitled for any relief as sought for?
3. What order?

11.         Heard the arguments of counsel and perused the records.

    12.          Our findings on the above points are as under:

          Point No.1:-         In the Negative,

          Point No.2:-         In the Negative,

          Point No.3:-         As per the final order for following.

-: R E A S O N S :-

          13.    POINT NO.1 AND 2 :- As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence, documents and arguments.

          14.    On perusal of the pleadings, evidence coupled with the documents of respective points on record, it is case of the complainant alleging deficiency in service in not giving opportunity to pay loan amount and ceasing the vehicle. There is no dispute that the complainant has availed a loan for the purchase of the vehicle bearing No.KA-29/A-2777 in the year 2011. There is also no dispute that the vehicle was hypothecated and was seized by the OP and the said hypothecated agreement is produced by the OP with respect to EX-R1.

          15.    To prove the case of the complainant, the PW1 has reiterated the Complaint averment in his examination of Chief and in support of his case, he has produced the document pertains to the repayment Schedule and the same is marked as EX P3 and the loan agreement produced by the OP is marked as EX R1. Further, it is also admitted that the loan agreement was entered between the complainant and the OP. EX R1 clearly reveals that a loan agreement was entered between the parties on 31^st December 2010 and the amount of Rs.7,90,000/-. PW-1 further averred and deposed that the OP had seized the vehicle when it was parked near Gaddanakeri Cross forcibly on 06.11.2012. PW-1 has not produced any documents to show that the vehicle was seized when it was parked near Gaddinakeri Cross. When he fails to produce documents or show any witness showing that the vehicle was seized forcibly believing his version with respect to forcible seizing of vehicle is not justifiable one. Looking to the documents filed by both the parties, it appears that the vehicle in question was purchased by the complainant after obtaining financial assistance from the OP. One loan cum Hypothecation Agreement was executed between the complainant and the OP on 31.12.2010 and it is also established that the complainant had defaulted in making payment of regular installments. Therefore, the OP is entitled to reposes and sale the vehicle.

          16.   It is admitted case of the parties that complainant had obtained loan of Rs.7,90,000/- from the OP which was to repayable in monthly installments of Rs.24,735 for the period of 48 months. It is also admitted by the complainant that he could not make payment of monthly installments due to his family problems. RW-1 has further averred and deposed that the complainant has given a letter stating that he I unable to pay the monthly installment and he needs of 15 days time to pay the due amount. If the amount is not paid within 15 days then the OP can seize the vehicle and take action against him. The said letter is marked as EX R3. Therefore, on perusal of the EX R3, which is the letter given by the complainant which has been produced by the OP. Therefore, it can be produced that the complainant himself has given liberty that he can seize the vehicle if the amount is not paid within 15 days. But, to disprove the said contents in EX R3, the complainant has not produced any other cogent and corroborative evidence except putting suggestion to that they have not needed to the request of the complainant for payment of due installments and the said suggestions have been categorically denied by the OP. Further, the complainant averred and deposed that he requested to the OP to return back his vehicle on payment of due installment amount, but the OP did not responded to him in proper and was also not ready to receive installment loan due amount. But, to substantiate the said willingness to pay the installment loan amount when there is no cogent documents have been produced by the said complainant, the question of considering that the complainant was ready to pay the installment is not believable.

          17.    It is also not disputed that OP obtained the possession of the vehicle from the complainant. As per the Terms of Loan cum Hypothecation Agreement, OP in the event of default on the part of the complainant was entitled to recover the complainant entire dues to the loan and take the possession of vehicle and in the light of aforesaid terms and condition, OP has not committed any deficiency in taking possession of vehicle on a chance of default in payment of installment and overdue amount. Apparently, this finding is contrary to the Terms and Conditions of loan-cum-hypothecated agreement. The OP was perfectly within its lights to ask for the whole of the due amount on the default of payment of installments and the OP was within its rights to recover possession of the vehicle on default in payment of installments and to sell the vehicle.

          18.    Further during the course of arguments, the counsel for the complainant has relied on the citation reported in National Consumer Disputes Redressal Commission, New Delhi (Sriram Transport Finance Company Ltd., V/s Bapu Appa Suryawanshi and another). The important points are as hereunder:

    “Consumer Protection Act, 1986 – Section 15, 17, 19 and 21 – Hire Purchase Agreement – Repossession of vehicle due to non-payment of installments by complainant – complainant has to show that he has paid installments up to date – Record goes to show that he did not deposit amount as per agreement – complainant had waddled out of commitment – Although complainant was a defaulter, yet, other proceedings were not done in accordance with law – Order passed by State Commission modified.”  

For the above case are not applicable to the case in hand. Therefore, the contention which has been taken by the complainant is vague and therefore the said allegations set up by the complainant are not justifiable one.

The other documents produced by the complainant i.e. EX P1 to P3. The Loan cum Hypothecation Agreement and complainant letter already discussed supra. Hence, in the light of above observation, the complainant failed to prove the deficiency in service on the part of the OP. Hence, in the light of above observation we constrained to hold Point No.1 in the Negative. 

19.        POINT NO.2: On the contrary as per the oral evidence coupled with documentary evidence, the complainant has failed to prove the deficiency in service and unfair trade of practice on the part of the OP and the said fact has been clearly discloses in EX R1 and R3. The Loan cum Hypothecation Agreement and complainant letter already discussed supra. Hence, in the light of above observation, the complainant failed to prove the deficiency in service on the part of the OP. Hence, in the light of above observation we constrained to hold Point No.2 in the Negative.

          20.    POINT NO.3 :-    In view of the above discussion and finding we proceed to pass the following;

:: ORDER ::

1. The complaint filed by the complainant is hereby dismissed.
2. No order as to cost.

    3) Send a copy of this Order to both parties free of cost.  

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 28^th day of November, 2016)