IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Tuesday the 27th day of May, 2014
Filed on 13.04.2012
Present
- Smt. Elizabeth George (President)
- Sri. Xavier Antony (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.33/2006
between
Complainant:- Opposite Party:-
Sri. Jimmy Joseph The Manager, Ashok Leyand
Kalathiparambil Finance, A Division of IndusInd
Varanadu P.O., Cherthala Bank Ltd., C.S.N. Building
(By Adv. E.D. Zacharias) Oppo. S.D.V.H.S. District Court
Road, Alappuzha
(By Adv. Rajesh.K.)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant has purchased a Tourist Bus bearing Registration No. KL2/K-6510 by the finance advanced by the opposite party. The opposite party has issued D.D. dated 27.1.2005 for Rs. 3,75,000/- and presented it at Vijaya Bank, Cherthala and encashed on 29.1.2005. The complainant has paid more than Rs.1 lakh to the financier. Even though the complainant has paid more than Rs.1 lakh, he is in possession of receipt for Rs.69,515/-. The vehicle was purchased for Rs.5,25,000/- and the total cost of the vehicle is more than Rs.6 lakhs. Due to the financial stringency, the complainant has delayed the installment. As the bus required some maintenance work, after informing the Joint RTO, Cherthala filing G. Form from 30.6.2005, the bus was kept in the yard of the Aswathy Pump, Cherthala. During this period some delay caused in the payments. That on 27.9.2005 at about 7 p.m., the Manager and Asst. Manager of the financier (opposite party) along with four identifiable persons came into the house of the complainant, armed with deadly weapons such as revolver, dagger, axe etc. and shouting filthy words they demanded future and delayed installments and also demanded the R.C. Book and key of the vehicle. They also threatened him and his family to do and thereafter they went away. Subsequently on 29.9.2005 the complainant went to the pump – Yard for looking the vehicle and found that the same was missing. On enquiry it was learned that the vehicle was stolen by the men of the financier (opposite party). The complainant filed a complaint before the Judicial First Class Magistrate Court, Cherthala and it is numbered as Crl. M.P.3974/2005 on 1.10.2005 and the same was forwarded is S.H.O., Cherthala Police Station and a Crime was registered as No.513/05 to for the offence punishable under section 149, 447, 294(b), 342, 452, 379, 506(ii) of IPC. The vehicle which was stolen by the financier (opposite party) is still in their possession. The tyres of the vehicle are new ones, therein DVD, T.V. set and Amplifier installed in the bus. About 60 liters of diesel was in the tank. Moreover there is one stepney, seven fans and tools etc. was in the bus. The registration Certificate, Insurance Certificate, Permit and all the documents in respect of the vehicle were kept inside the bus and such a bus was stolen by the financier (opposite party) and his men. Therefore, all the documents in respect of the vehicle are in the possession of the financier (opposite party). Due to the undue influence of the financier (opposite party), the joint R.T.O., Cherthala issued a notice dated 24.11.2005 and has taken hasty steps to transfer the ownership of the vehicle in favour of the opposite party and same necessitate the filing a Civil suit as O.S. No.17/2006 before the Munsiff’s Court, Cherthala. The vehicle was stolen by the party on or before 29.09.2005. The installment period will be completed on 25.11.2007. The vehicle was stolen by the financier before the completion period. Therefore the opposite party is in possession of the assets is Rs.6,69,515/-. The complainant is entitled to get Rs.3,47,228.32/-. The opposite party is liable to compensate the complainant for the loss and injury caused to him and his family. Hence the complaint is filed seeking following reliefs:-
- To pass an award/order directing the opposite party to pay Rs.3,47,228.32/- to the complainant.
- To pass an award/order directing the opposite party to pay Rs.1,50,000/- towards compensation for mental agony, frustration, inconvenience, disgrace, harassment, loss of business and compensation etc. to the complainant.
- To pass an order directing the opposite party to pay cost of the proceedings.
- To pass an order for just and proper during the course of the proceedings.
- To pass an order direct the opposite party to give cheques No.327562 to 70 (9 cheques) in a/c No.8016 and cheques No.137041 to 50 (10 cheques) in a/c No.SB 8844 drawn on the Vijaya Bank, Cherthala branch to the complainant.
2. The version of the opposite party is as follows:-
The complaint is not maintainable, since the complainant is not a consumer as defined in the Consumer Protection Act. The complaint is purely an abuse process of law, being one of the train of cases filed by the complainant against the opposite party. The complainant resorted to a series of cases against the opposite party Bank soon after the vehicle was seized by the opposite party bank. The seizure of the vehicle was made after many repeated reminders to the complainant who defied all the demands from the opposite party bank for overdue payments. The complainant despite being informed by the opposite party bank for theft and other offences. The criminal complaints filed by the complainant on opposite party bank’s officers were unsustainable and hence were subsequently dismissed. The loan agreement executed between the parties had arbitration clause and both the parties were at freedom to refer to the matter to the arbitrator. The complainant abstained from payment after the initial 5 months and thus the opposite party bank in the income from his account stopped putting the loan account in turning it as a non performing asset for the next many months. The complainant took all efforts after default of 4 months and later after the seizure of the vehicle to prevent the opposite party to realize the NPA from the sale proceeds of the vehicle. On 17.4.2007 RC was transferred in the name of the opposite party bank by the RTO and the vehicle was resold on 27.6.2007 after a gap of almost two years. The criminal case filed by the complainant were also found baseless and thus dismissed. The vehicle was abandoned by the complainant which it was recovered by the opposite party bank and it was in poor running condition. The vehicle was sold for a sum of Rs.2,25,000/- on 27.6.2007. The opposite party incurred huge loss in this loan account and an arbitration proceedings was initiated whereby an award was passed on the claim petition by the opposite party bank. The complaint is filed with the motive of preventing the opposite party bank from realizing the loan arrears from the complainant.
3. The complainant was examined as PW1 and documents produced were marked as Exts.A1 to A7. The supervisor of the opposite party was examined as RW1 and documents produced were marked as Exts.B1 to B10. Ext.A1 is the repayment schedule for the contract, A2 series (1) are the first schedule allotted to the complainant, A2 series (2) are the 2nd schedule of the repayment by the complainant, A3 series are the receipts, A4 is the policy copy of the vehicle, A5 is the witness schedule filed before the Judicial First Class Magistrate’s Court, Cherthala in CMP No.3974/05, A6 is the copy of the plaint before the Munisiff’s Court, Cherthala and A7 is the G Form filed by the complainant. Ext.B1 is the copy of the special power of attorney, B2 is the letter from the opposite party to the complainant, B3 is the copy of the Form.37, B4 is the copy of the order of High Court of Kerala dated 26.5.2006, B5 is the order of High Court of Kerala dated 27.2.2007, B6 is the copy of the complaint before the Joint RTO., Cherthala, B7 is the copy of the Certificate of Registration and B8 is the Statement of a/c of IndusInd Bank, Cherthala, B9 is the certified copy of award of the Arbitrator and B10 is the copy of the valuation report of the Surveyor.
3. The points came up for consideration are:-
- Whether the complaint is maintainable?
- Whether there is any deficiency in service on the part of the opposite party?
- Whether the complainant is entitled to get relief and cost?
4. Point No.1:- The allegation of the complainant is that he is a driver by occupation. He purchased the vehicle for the purpose of earning his livelihood by means of self-employment. Moreover he has no other job or income and he is completely depending upon the income derived by driving. As per the decision cited in 2012 CPJ page 159 Hon’ble National Commission laid down “if the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment such purchaser of goods is yet a consumer”. In view of the above decision, the Forum finds that the complainant is a consumer. The point No.1 answered accordingly.
5. Point No.2:- It is an admitted fact that the complainant had purchased a tourist bus by the finance advanced by the opposite party. The amount advanced by the opposite party is Rs.3, 75,000/-. As per Ext.A3 series complainant had repaid Rs.69,515/-. According to the complainant the vehicle was stolen by the opposite party on 28.9.2005. But the opposite party vehemently argued that they have taken the vehicle as per repossession clause in the agreement. In order to substantiate this contention, they have produced Ext.B2 notice dated 3.9.2005 issued to the complainant. While cross examining the complainant, he also admitted that he has received Ext.B2 notice. The complainant has no case that after receiving the Ext.B2 notice, he has remitted any amount to the opposite party. So the allegation of the complainant that the vehicle was taken by the opposite party without any notice is not sustainable. As per the decision of the Hon’ble Apex Court in Sooryapal Singh Vs. Sidha Vinayaka Motors and another III 2012 CPJ 4 (SC) “under the hire purchaser agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retained the vehicle only as a bailee/trustee, therefore taking possession of vehicle on the ground of nonpayment installment as always been upheld to be a legal right to the financier.” In the instant case, there is nothing to hold that the action of the opposite party initiating the proceedings for taking over the possession of the vehicle is improper and illegal. The next allegation is that the opposite party sold the vehicle without intimating the complainant. On verifying the Ext.A4 we can see that the insurance declared value of the vehicle is Rs.5 lakhs for the period expires on 25.12.2005. While cross examining the complainant, he also admitted that he came to know the price of the vehicle as Rs.5 lakhs. The vehicle was repossessed by the opposite party in September, 2005. Ext.B10 is the valuation report of the Surveyor dated 1.4.2006. In the report he specifically stated that he inspected the vehicle with the intention to fix the value of the vehicle and it was done at the request of Indus Ind Bank, Alappuzha. So it is clear that Ext.B10 is prepared by the Surveyor at the interest of the opposite party. The opposite party sold the vehicle as per the value assessed by the Surveyor. But according to the complainant, the vehicle was sold without intimating the complainant. There is no evidence produced by the opposite party to prove that they intimated the complainant when the vehicle was sold, and to whom the vehicle was sold and also for what price it was sold. If the complainant would have been present at the time of sale or else the complainant would have sold the vehicle with the consent of the opposite party and settle the amount due. The opposite party have not produced any documents with respect to the sale or furnished any details as to the sale. In the circumstances we find that there is deficiency of service on the part of the opposite party, and for that complainant is to be compensated. Complainant is entitled to get compensation for the mental agony, hardship, financial loss caused due to the act of the opposite party. During the pendency of this proceedings, the opposite party has obtained an exparte arbitration award. The award is produced and marked as Ext.B9. On going through the award, it is seen that the opposite party (the claimant therein) did not disclose in the claim statement, the amount repaid by the complainant and also the amount received through the sale of the vehicle. The award is passed in tune with the claim statement. However, this Forum has no jurisdiction to interfere with the merits of arbitration award. The finding of this Forum is strictly confined to the defect and deficiency in service from the part of the opposite party. This Forum finds that the non issuance of the notice of sale to the complainant is an irregularity in the conduct of sale. It is for the opposite party to prove that the sale was conducted, complying with all the legal formalities. In the circumstance, the aforesaid lapse from the part of the opposite party amounts to deficiency in service.
In the result, the complaint is allowed partly and the complainant is entitled to get compensation of Rs.25,000/- (Rupees twenty five thousand only) from the opposite party for the mental agony and financial loss caused to the complainant by the act of the opposite party while they done the sale of the vehicle. The order shall be complied by the opposite parties within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and
Pronounced in open Forum on this the 27th day of May, 2014.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Jimmy Joseph (Witness)
Ext.A1 - Repayment schedule for the contract
Ext.A2 series (1) - First schedule allotted to the complainant - Certificate cum policy
Ext.A2series (2) - 2nd schedule of the repayment by the complainant
Ext.A3 series - Receipts
Ext.A4 - Insurance policy copy of the vehicle
Ext.A5 - Witness schedule filed before the Judicial First Class Magistrate’s
Court, Cherthala in CMP No.3974/05
Ext.A6 - Copy of the plaint before the Munisiff’s Court, Cherthala
Ext.A7 - G Form filed by the complainant
Evidence of the opposite party:-
RW1 - P.R. Anilkumar (Witness)
Ext.B1 - Copy of the special power of attorney
Ext.B2 - Letter from the opposite party to the complainant
Ext.B3 - Copy of the Form.37
Ext.B4 - Copy of the order of High Court of Kerala dated 26.5.2006
Ext.B5 - Order of High Court of Kerala dated 27.2.2007
Ext.B6 - Copy of the complaint before the Joint RTO., Cherthala
Ext.B7 - Copy of the Certificate of Registration
Ext.B8 - Statement of a/c of IndusInd Bank, Cherthala
Ext.B9 - Certified copy of award of the Arbitrator
Ext.B10 - Copy of the valuation report of the Surveyor
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- pr/-
Compared by:-
