Karnataka

Kolar

CC/17/2017

Sri.D.Narayanappa - Complainant(s)

Versus

The Manager, Bajaj Auto Finance Limited - Opp.Party(s)

10 Oct 2017

ORDER

Date of Filing: 09/02/2017

Date of Order: 10/10/2017

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 10^th DAY OF OCTOBER 2017

PRESENT

SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 17 OF 2017

Sri. D.Narayanappa,

S/o. Dalappa,

Aged About 57 Years,

R/at. Vidhyanagar,

Nagendra Kumar Layout,

Gowribidanur Town,

Chikkaballapura District.                          ….  COMPLAINANT.

(In-person)

 

- V/s -

1) The Manager,

Bajaj Auto Finance Limited,

1^st Floor, No.47,

15^th Cross Road, 3^rd Phase,

Sarakki Industrial Layout,

Bangalore-560 078.

(Rep. by Sriyuth. Suman.K & Somashekhar.R, Advocates)

 

2) The Proprietor,

M/s. N.S. Auto Care,

M.T.C. Colony,

B.H.Road, Gowribidanur-561208.

 

(Exparte)                                                …. OPPOSITE PARTIES.

 

-: ORDERS:-

BY SMT. A.C. LALITHA, LADY MEMBER

01.   The complainant having submitted the complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 has sought relief against these opposite parties, for issuance of directions to Ops to release his vehicle Bajaj Pulsar 150 bearing No. KA-40 L-3783 and issuance of clearance certificate or issuance of new vehicle Bajaj Pulsar 150.  And sought for a sum of Rs.25,000/- as compensation and a sum of Rs.20,000/- towards loss and mental agony he suffered and any other reliefs as this Forum deems fit.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, on 21.11.2009 he had purchased bike Bajaj Pulsar 150 from OP No.2 for a sum of Rs.59,378/-.  The total price of the vehicle including road tax, insurance, registration and other charges comes to Rs.68,900/-.

 

(b)    Further it is contended that, he had paid a sum of Rs.28,780/- as advance down payment on 02.09.2009 and further a sum of Rs.3,850/- was paid on 26.11.2009, totally he had paid Rs.32,630/- which was received by the 1^st OP. 

 

(c)    Further it is contended that, he had availed a loan of Rs.36,270/- from OP No.1 bearing No. L2WBAN00285372 on 27.11.2011.  While securing loan OP No.2 finance company has assured that, he should pay a monthly EMI of Rs.2,205/- for 18 months as installments.  As per the said assurance he had paid monthly EMI of Rs.2,205/- totally Rs.39,690/- without default.  After completion of 18 months OP No.2 refused to issue NOC without any reasons.

 

(d)    Further it is contended that, on 16.06.2012, when the vehicle was parked at his house without prior notice OP No.2 seized the vehicle.  Later on he approached OP No.2 to release the vehicle, but OP No.2 demanded further payment to release the vehicle.  Hence on 18.07.2012 he had issued legal notice which was duly served on OP No.2.  OP No.2 admitted over phone and promised to release the vehicle, but they are not keep up his words.  So contending, the complainant has come up with this complaint on hand seeking the above set-out reliefs. 

 

(e)    Along with the complaint the complainant has submitted below mentioned documents and also filed I.A. No.1 for condonation of delay:-

(i)       Invoice dated: 21.11.2009

(ii)      Receipt dated: 02.09.2009

(iii)    Receipt dated: 26.11.2009

(iv)     Copy of the certificate of registration

(v)      Copy of the Bank statement for having paid EMI for 18 months

(vi)     Copy of the Legal Notice Dated: 19.07.2012 issued by the OP

(vii)    Copy of the legal notice dated: 18.07.2012.

(viii) Copy of the acknowledgment for having served the notice through RPAD.

 

03.   In response to the notice issued by this Forum served on Ops and OP No.1 has put in its appearance through its said learned counsel and has submitted written version.  As per the proceedings noted in the order sheet OP No.2 placed exparte.

 

04.   OP No.1 contends that, to frame preliminary issues with regard to the maintainability of the present complaint.  And submits that, the complainant had filed civil suit vide O.S. No.338/2012 before Additional Civil Judge at Gowribidanur alleging the same dispute as in the present complaint.  The said O.S. No.338/2012 was dismissed vide Order dated: 10.09.2013 with a direction referred the matter to arbitration.  An award was pronounced on 10.02.2015 by the arbitrator.  Instead of appearing before arbitrator the complainant filed complaint C.C. No.441/2014 urban, the same was dismissed vide order dated: 06.01.2016 for lack of jurisdiction. 

 

05.   Further it is contends that, the vehicle retail invoice No.02813194 dated: 21.11.2009 is for Rs.59,378/- which is the ex-show room price of the vehicle.  Considering the on road price of the vehicle i.e., Rs.68,022/- (i.e., Rs.59,378/- ex-show room price + Rs.1,342/- towards insurance charges + Rs.7,302/- towards registration charges) and also considering the credentials of the complainant OP No.1 extended financial assistance of Rs.52,920/- (which includes financial charges of Rs.10,920/- @ 12.99% p.a.).

 

06.   OP No.1 specifically denied as, never received an amount of Rs.28,780/- towards down payment on 02.09.2009 nor received an amount of Rs.3,850/- from the complainant as alleged in complaint.

 

07.   OP No.1 submits that as per the terms and conditions of the loan agreement/scheme the complainant remitted Rs.2,205/- towards one advance EMI and supposed to remit remaining amount of Rs.50,715/- in 23 equal monthly installments, hence it is denied that, the tenure of the loan 18 months as alleged in the complaint.

 

08.   OP No.1 submits that, on 09.11.2011 the complainant was in outstanding arrears of Rs.10,470/-.  Even after repeated request and reminder the complainant has failed to make dues and thus issued demand notice dated: 09.11.2011. 

 

09.   OP No.1 submits that, the tenure of loan account of complainant expired on 12.12.2011 and as on 11.06.2012 the loan account of the complainant was in default of Rs.11,025/- towards EMI arrears.  Rs.6,750/-  towards other over dues, accumulated due to non-remittance of monthly EMI on its due dates.  On request of complainant OP No.1 permitted to surrender the vehicle on 18.06.2012 under protest for which the OP No.1 has collected proper acknowledgment from the complainant. 

 

10.   OP No.1 submits that recalled entire loan vide loan recall notice dated: 22.06.2012 and OP No.1 informed the complainant to pay the outstanding amount of Rs.17,775/- and take back the vehicle in question.  Even after receipt of said loan recall notice dated: 22.06.2012, the complainant has not taken any steps for closure of the loan account.  OP No.1 has issued pre-sale notice dated: 10.07.2012.  The complainant instead of payment sent a reply dated: 18.07.2012 and OP No.1 replied dated: 03.08.2012 stating that, if complainant is ready to pay arrears of Rs.16,650/- OP No.1 is ready to give 50% waiver in other overdue charges. 

 

11.   OP No.1 further submits that, after sale of the vehicle OP No.1 has incurred deficit of Rs.23,907/- to the said loan account and same informed to the complainant demand leter dated: 13.04.2016.  As per the Arbitrator Award dated: 25.11.2016 and the same was dispatched to complainant on 13.01.2017.  Thus it is crystal clear that all the possible measures with due intimation given to the complainant to settle the dispute.  Hence there is no negligence, deficient in service on the part of OP No.1 and thus prayed for dismissal of the complaint, costs has been sought. 

 

12.   OP No.1 has submitted below mentioned documents:-

1. Additional Civil Judge at Gowribidanur Order
2. DCDRF at Bangalore Urban Order
3. Arbitral Award with postal proof
4. Invoice
5. Loan Agreement cum schedule
6. Application cum agreement
7. Demand Notice
8. Statement of Account
9. Ack Letter
10. Loan Recall Notice with postal proof
11. Presale with postal proof
12. Complainant Reply
13. OP 1 reply
14. Presale with postal proof
15. Valuation
16. 2-Quotation
17. Demand Notice before initiating legal action along with postal proof
18. Arbitral award along with postal proof.

13.   The very complainant has submitted his affidavit evidence and OP No.1 filed memo dated: 07.08.2017 stating that, to consider the written version as its affidavit evidence.

 

14.   Heard arguments of complainant and OP No.1 arguments considered as heard due to not addressing the arguments even after several opportunities.

 

15.   Therefore the points that do arise for consideration in the above case are:-

(A)  Whether the complaint is barred by limitation?

(B) Whether this Forum has jurisdiction to entertain the complaint?

(C)  If so, Whether Ops could be held as guilty of deficiency in service?

(D)  If so, to what relief the complainant is entitled to?

(E)  What order?

 

16.   Findings of this District Forum on the above stated points are:-

POINT (A):   In the Negative

 

POINT (B):   In the Affirmative

 

POINT (C):   In the Negative

 

POINT (D):   Does not survive for consideration

POINT (E):   As per final order for

                                the following:-

 

REASONS

POINT (A):-

 

17.   The complainant had filed interim application seeking for condonation of delay of filing the present complaint.  Since the complainant admits that, he had filed Civil Suit in O.S. No.338/2012 and then filed C.C. No.441/2014 at Bangalore District Consumer Forum due to lack of proper knowledge the said C.C. No.441/2014 disposed on 06.01.2016 for lack of jurisdiction.  So we are of the opinion that, the said issue is still in motion hence the complaint is not barred by law of limitation.  Thus the findings and I.A No.1 allowed delay condoned.  So, the limitation point is untenable.

 

POINT (B):-

18.   OP No.1 raised a point with regard to maintainability of complaint by relying on the order dated: 10.03.2013 in O.S. No.338/2012.

 

19.   It is admitted fact that, the complainant had availed a loan from OP No.1 and purchased the said vehicle.  So there was/is a contract between them.  So once the complainant availed loan from OP No.1 obviously he will be Consumer to OP No.1.  So we are of the opinion that, this Forum has jurisdiction to entertain the complaint on hand.

 

POINT (C) & (D):-

20.   To avoid repetition in reasonings and as these points do deserve common course of discussion the same are taken up for consideration at a time.

(a)    The learned counsel appearing for OP No.1 placed reliance on documents which reveals that, Annexure-D, Tax Invoice dated: 21.11.2009 total on-road price of the said vehicle is Rs.68,022/-.  And according to Annexure-E & G Loan agreement the total installments are 24 months, monthly EMI is of Rs.2,205/- and availed loan of Rs.52,920/- vide No.L2WBAN00285372.

 

(b)    As per Annexure-G the demand notice dated: 09.11.2011 clears that caused to complainant with regard to settle the dues.  Annexure-J re-call notice dated: 22.06.2012, Pre-sale notice dated: 10.07.2012, Annexure-K was also caused to complainant by OP No.1.  Arbitral Award Copy dated: 10.02.2015 clearly reveals that, there was/is no fault of Ops with regard to this dispute on hand.  Hence to avoid repetition of facts and circumstances we bound on the order of Arbitration dated: 10.02.2015.  Moreover the complainant had not submitted any documentary evidence to support his plea.  Hence the oral submission of complainant cannot be tenable.

 

(c)    So based on the documents submitted by OP No.1 Annexure-A to R we are of the definite opinion that, there was/is no deficiency in service on the part of Ops.

 

POINT (E)

21.   Hence we proceed to pass the following:-

10.10.2017:-

COMPLAINANT/BY SRI.

OPPOSITE PARTIES/BY SRI.

ORDER

01.   For forgoing reasons the complaint stands dismissed with a direction to both parties to bear their own costs.

 

02.   Send a copy of this order to both parties free of costs.

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 10^th DAY OF OCTOBER 2017)

 

 

LADY MEMBER                                PRESIDENT