D.O.F. 10.02.2010
D.O.O. 30.04.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K. Gopalan : President
Smt. K.P. Preethakumari : Member
Smt. M.D. Jessy : Member
Dated this the 30th day of April, 2012.
C.C.No.61/2010
C.K. Indu,
D/o. T.K. Balan,
Souparnika, : Complainant
Nellonni, P.O. Mattannur,
Kannur.
(Adv. K. Anil Kumar)
The Chairman,
M/s. Tata Motors Finance Ltd.,
S.L.Plaza, Ground Floor, : Opposite Parties
Palarivattom, Cochin,
Ernakulam – 682 025
(Adv. M. Preman)
O R D E R
Smt. K.P. Preethakumari, Member
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay `2,14,315 with 18% interest from 10.12.10 ie date of complaint with cost and to return all the cheques belonging to the complainant.
The case of the complainant is that she has executed an agreement on 28.03.2005 with the opposite party to purchase a Tata Sumo Victa Model Victa Cx and accordingly the complainant has to pay a sum of `6,47,000 including the interest in monthly instalments upto 25.01.2009. The petitioner has paid `4,75,000 in instalments and had surrendered the vehicle with opposite party since she was not in a position to pay further instalments. But the petitioner has received a lawyer notice from opposite party dated 02.02.2008 stating that the vehicle belonging to the petitioner was sold by opposite party on 07.09.07 and `3,21,000 was received as sale consideration and asking the petitioner to pay the balance amount of `43,286. The petitioner had issued a reply stating that the opposite party has received `4,75,000 along with `3,21,000 ie a sum of `1,49,000 in excess from the petitioner and demanding the opposite party to return back the 4 cheque of S.B.T. Punnad and 6 cheques of N.M.G. Chavassery branch kept with the opposite party. The petitioner has again sent another lawyer notice dated 20.08.2009 to return back the excess amount of `1,49,000 and the cheques kept in security with the respondent and as a result the opposite party contacted to settle the matter and sought time. Thereafter the complainant and her mother received notice. The act of opposite party amounts to unfair trade practice. Hence the complaint.
In pursuance to the notice issued by the Forum opposite party appeared and filed their version contending that the complaint is barred by limitation and hence it is not maintainable before the Forum. The vehicle of the complainant was repossessed on 01.12.2006 and the vehicle was sold on 31.08.2007 and the sale price has been adjusted in the account of the complainant on the same day and the complaint was seen filed on 06.02.2010. So the complaint is barred by limitation. The opposite party admits that an agreement was executed on 28.02.2005 with opposite party for purchasing a Tata Sumo vehicle and availed a loan amount of `5,00,000 agreeing to repay the contract value of `6,47,000 in monthly instalments. It is incorrect to say that the complainant had surrendered the vehicle since she was not in a position to pay further instalments. The complainant was a chronic defaulter in repaying and after repeated request also the complainant failed to clear the over due instalments, the opposite party was forced to repossess the vehicle from the complainant as per the specific conditions of the agreement. The opposite party admits that the vehicle was taken possession was sold to a third party for `3,21,000 after complying the formalities and the same has been adjusted to the account of the complainant on 31.08.2007.
As per the mutually agreed terms of the contracts delayed payment of monthly installments would attract interest as overdue charges. The complainant is liable to pay the same along with repossession expense and other charges as per terms. The opposite party is a public limited company and accounted the entire amount paid by the complainant and the sale consideration of the auctioned vehicle. Before the repossession the complainant was defaulted huge amount as monthly instalments and over due charges. As per the terms of the agreement the complainant is liable to pay the balance amount to opposite party if the sale consideration is not sufficient to set off the settlement of account.
It is incorrect to say that complainant has paid `4,75,000 in instalments upto 25.01.2009. As per accounts maintained by opposite party, the complainant is liable to pay `1,86,856.92 being the overdue charges and other expenses. The opposite party is not keeping the cheques of the complainant. The opposite party acted as per mutually agreed terms and conditions of the agreement executed between the complainant. After receiving the notice, the complainant was informed to actual position and to settle the mutually agreed terms of contract. The opposite party has not collected any excess amount from the complainant and the complainant is liable to pay `1,86,856 as on June, 2010. So the complaint is liable to be dismissed.
Upon the rival contentions the following issues have been raised for consideration.
1. Whether the complaint is barred by limitation?
2. Whether there is any deficiency of service on the part of opposite party?
3. Whether the complainant is entitled to any relief?
4. Relief and cost.
The evidence in the above case consists of the oral testimony of PW1, DW1 and Ext.A1 to A11 and Ext.B1 to B7.
Issue No.1 :
The opposite party in the above case contended that the complaint is barred by limitation and hence the complaint is not maintainable before the Forum. The complainant also filed a petition to condone the delay along with the complaint having I.A.No.193/10. The petition was already heard and petition allowed by condoning the delay and hence issue No.1 is found in favour of the complainant.
Issues No. 2 to 4 :
The further case of the complainant is that she has paid a total amount of `7,96,000 towards hypothecation amount to the opposite party. Out of which `1,49,000 was paid in excess and also some cheque leaves with opposite party. In order to prove her case the complainant was examined as PW1 and produced documents such as Repayment Schedule dated 27.04.2001, lawyer notice dated 02.02.2008, reply notice dated 08.02.2008, lawyer notice dated 20.08.2009, 30.07.2009, cash receipt dated 03.05.2005 for `13,750, receipts for `41,000 dated 28.02.2006, receipt for `15,000 dated 28.06.2006, receipt for `10,000 dated 09.07.2006 and lawyer notice dated 27.07.2011 etc. In order to disprove the case opposite party also examined the Branch Manager and produced documents such as contract details and repayment details dated 03.06.2010, receipt dated 31.08.2007, termination details dated 03.06.2010 and details of rejected receipts and account statement etc.
The opposite parties contended that the complainant had availed `5,00,000 as loan and has to repay `6,47,000 in 47 instalments and Ext.A1 is also substantially the same. But according to complainant she had repaid `4,75,000 in instalments and the opposite party had received `3,21,000 as sale consideration of the vehicle and hence she had paid a total amount of `7,96,000 instead of `6,47,000 and hence she has paid `1,49,000 in excess. The complainant has produced exhibits A8 to A8(3) receipts through which she has paid `41,000 on 28.02.2006, `15,000 on 28.06.2006, `10,000 on 05.07.2006 and `10,000 on 10.07.2006 and the same amount was seen accounted on the same day in Ext.B6 and B7 account statements. No other receipts are produced by the complainant eventhough the complainant contended that she has paid `4,75,000 by way of monthly instalments. The complainant has no case that the opposite party has not provided receipt for the other payments she has made. So if she has paid any amount, definitely there is receipt with the complainants. So the complainant failed to substantiate her case by producing documents to the effect that she has paid `4,75,000 towards the E.M.I. The complainants has no case that the sale consideration of the vehicle is more than `3,21,000. The statement of account produced by the opposite party shows that they have accounted the above said `3,21,000 towards the H.P. account of the complainant. The complainant contended that there are cheque leaves of complainant with opposite party, but opposite party denied. But the complainant has not produced any documents to show that there was cheque leaves with the opposite party. So it is seen that the complainant failed to substantiate the case by producing cogent and convincing evidence. So from the available evidence on record we are unable to find any deficiency on the part of opposite party in accounting the amount. So we are of the opinion that the complainant is liable to be dismissed and order passed accordingly.
In the result the complaint dismissed. No cost.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Repayment schedule dated 27.04.2005.
A2. Lawyer notice dated 02.02.2008.
A3. Reply notice dated 08.02.08.
A4. Lawyer notice dated 20.08.09.
A5. Lawyer notice by OP to complainant dated 30.07.09.
A6. Lawyer notice sent by OP to her mother.
A7. SBT cash receipt.
A8. Receipt dated 28.02.2006.
A8 (1), (2), (3) : receipts
A9. Lawyer notice dated 27.07.2011.
A10.Lawyer notice dated 27.07.2011.
A11. Lawyer notice dated 07.06.2007.
Exhibits for the opposite party
B1. Contract details dated 03.06.2010.
B2. Repayment details dated 03.06.2010.
B3. Receipt dated 31.08.2007.
B4. Termination details dated 03.06.2010.
B5. Details of rejected receipt.
B6. Details of trade summary.
B7. Receipt information.
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
DW1. V.S. Jaison
/forwarded by order/
SENIOR SUPERINTENDENT
