By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act to get an Order directing the opposite parties to re-chart the payment schedule on receipt of the due amount.
2. Brief of the complaint:- The Complainant is the RC owner of the Autorikshaw bearing No. KL 73 3002, he plied this vehicle to earn his livelihood by way of self employment and the complainant availed a loan from 1st opposite party in the month of February 2014 through the agent 2nd opposite party. At the time of availing the finance facility opposite party has obtained original RC and other documents of the vehicle for the purpose of endorsing the loan in the RC book. The opposite party No.1 also obtained 3 blank signed cheque of the complainant and his guarantor along with blank signed papers and stamp papers of the complainant and his guarantor. Opposite party No.1 promised the complainant that the EMI fixed repayment chart will be issued to the complainant within one month and he was orally instructed to remit Rs.3,000/- per month. Then complainant approached the 2nd opposite party to remit the installment, the 2nd opposite party has demanded monthly installments at the rate of Rs.4,665/- per month. The complainant is being a chronic heart patient as he could not pull over such exorbitant amount as monthly installments he has approached the opposite parties either to re-chart the loan or to foreclose the loan in adherence to the existing marketing principles. But the opposite party have not cared the request and compelled to continue the loan repayment at the rate of Rs.4,665/- per month.
3. The complainant again alleged that he was very punctual in repayment but 2nd opposite party was not punctual in entering the payment in the pass book stating one or other reasons. Then the complainant continued the repayment till August 2015. But opposite party No.1 has sent their men to seize the vehicle in the 1st week of October 2015. On enquiry he came to know that the monthly installment that he had paid towards the installment of June and August of 2014 and February, April, June, July and August of 2015 is not accounted properly. Then the complainant lodged a complaint before the Sulthan Bathery police, now the opposite parties are threatening the complainant that they will seize the vehicle and on 19.11.2015 they tried to seize the vehicle from the custody of the complainant. Hence filed this complaint.
4. On receipt of notice opposite parties appeared and version filed denying all the allegations in the complaint. They admitted that complainant availed finance from them, since the complainant is a chronic defaulter he violated the terms and condition of the loan agreement number L3WCAL02912734 which was executed and signed by the complainant with his own will and consent. They further submitted that Honourable Supreme Court itself had laid down a law “ a defaulter cannot be termed as a consumer as defined under the Consumer Protection Act” as such a defaulter cannot maintain a complaint alleging deficiency of service on the financier. Hence this complaint is not maintainable before this Forum. Further the Opposite party No.1 submitted that, the complainant approached the Opposite party No.1 company and requested to extend financial assistance for purchase of a three wheeler (Bajaj PASSENGER CARRIER/RE 445 COMPACT DIESEL TWIN HL) considering the said request and complainant agreeing to all terms and conditions of loan scheme, the Opposite party No.1 agreed to extend financial facility to the tune of Rs.1,95,930/-(including financial charges of Rs.68,930/- for 42 months). Later as per the mutual understanding of all the terms and condition of the said loan scheme, a loan Agreement No.L3WCAL02912734 was executed on 03.02.2014 by the complainant in favour of the Opposite party No.1 Company. The monthly installment to be paid as per loan scheme/agreement per month is Rs.4,665/- payable every 10th of respective months starting from 10.03.2014. The contract period is for 42 months i.e. (form 10.03.2014 to 10.08.2017). Hence this complainant is liable to remit 42 loan installments to the said loan account. The Opposite party No.1 further states and submits that, at the time of execution of the Loan Agreement the Complainant has gone through all the terms and condition of the Loan Agreement and then only the Complainant has signed and executed the Loan Agreement. The Opposite party No.1 also states that, the Complainant has opted/chosen repayment of loan EMI by way of cash. I is clearly understood by the petitioner that, prompt repayment of loan Installments in time without any delay or default i.e. on or before 10th of respective month is the core essence of the loan agreement. It is also submitted by the Opposite party No.1 that, copies of all loan documents and papers executed and signed by the Complainant were immediately handed over to the complainant. The subject vehicle is a security to the said loan and is duly hypothecated to the Opposite party till closure of the loan.
5. But the complainant defaulted the EMI and violated the terms and conditions of the agreement. Now the matter is referred to the Arbitrator even after repeated requests and notice from the Arbitrator this complainant not responded or not tried to regularize his EMI and this complainant remained ex-parte to the Arbitration proceedings and there is an interim order from the Arbitrator to take the possession of the vehicle and this complainant failed to handover the possession of the vehicle to the opposite party as per the order and approached this Forum alleging deficiency of service from the part of opposite parties and this complainant itself is deficient from the terms and conditions of the agreement by not making payment of the installments and the complainant itself deserved to be dismissed.
6. Complainant filed proof affidavit and examined as PW1 and Ext.A1 to A4 documents were marked. As per the Order in IA.79/2016 the documents produced were marked as Ext.X1 series. Opposite party No.1's witness is examined as OPW1 and Ext.B1 to B10 documents were marked.
7. On considering the complaint, version, documents and evidences the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties?
2. Relief and Cost.
8. Point No.1:- Admittedly opposite party No.1 financially assisted the complainant to purchase his three wheeler and executed Agreement thereon. But complainant defaulted the monthly installments due to the latches of opposite party No.2 subsequently filed this complaint on 20.11.2015. Then as per the statement of account produced by opposite parties as on 26.12.2015 an amount of Rs.51,315/- is overdue and Rs.17,220/- as overdue charges being payable by the complainant to the opposite parties along with future installments of Rs.93,300/-. Thereafter opposite party sent loan recall notice to complainant on 11.08.2014 (Ext.B4) demanding him to make a payment of Rs.1,78,600/- and to close the loan account. But complainant not responded then through Ext.B5 notice (As per clause 27 of loan Agreement) referred the matter to the Arbitration on 19.03.2015. Then the Arbitration Tribunal passed interim order on 20.03.2015 ie Ext.B7 and as per the Interim order Tribunal directed the complainant to handover the possession of the vehicle to the opposite party No.1.
9. Inspite of repeated notices this complainant not appeared before the Arbitration Tribunal and remained ex-parte and during the pendency of this case Arbitration Tribunal passed an interim order but final Order is not seen produced by the opposite party No.1. If that be so the subject vehicle is subject to hypothecation and insecurity to the said loan as per the agreement clause 25(h) of Ext.B1.
10. On going through the entire evidences and records we opine that complainant was not prompt in payment of installments and violated the terms and conditions of the Agreement. But he argued relying on the paper news and copy of FIR (Ext.X1) that it is opposite party No.2, the agent of the opposite party No.1 who cheated this complainant after receiving the monthly installments from him, he had not remitted the same to opposite party No.1 and it is not due to the latches of the complainant loan became due. Admittedly opposite party No.2 is the agent of the opposite party No.1 and the master is liable to compensate the loss sustained to the negligent act of his agent.
11. On perusal of Ext.X1 copy of FIR it is noted that opposite party No.2 has collected Rs.10,000/- from the complainant towards loan installments, but he has not remitted this to complainant's loan account. If that be so the complainant failed to clear the loan installments by paying balance overdue amount. If opposite parties were not ready to accept the defaulted installments this complainant can very well deposit it before this Forum, instead the complainant filed this complaint before this Forum alleging deficiency of service on the part of opposite parties.
12. On an overall evaluation of the entire evidences and records, we are of the opinion that even if the complainant is a defaulter, that default occurred due to the latches of opposite party No.1's agent and not due to the willful act of this complainant, hence the complainant is entitled to get re-chart payment schedule and get proper payment chart. Point No.1 is found accordingly.
13. Point No.2:- Since the Point No.1 is found in favour of complainant, he is entitled to get re-chart payment schedule and get proper payment chart. Point No.2 is decided accordingly.
In the result, the complaint is partly allowed and the opposite party No.1 is directed to re-chart payment schedule and issue proper payment chart to the complainant on receipt of the due amount as per the agreement. Opposite party No.2 is directed to pay Rs.15,000/- (Rupees Fifteen Thousand) as compensation to the complainant within 30 days from the date of receipt of this Order. No Order as to costs.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 5th day of September 2016.
Date of Filing:20.11.2015.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
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PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Anil Prakash. Complainant.
PW2. Muhammed. C. A. Sub Inspector of Police, Sulthan Bathery Station.
Witness for the Opposite Parties:-
OPW1. Babu. Senior Legal Officer, Bajaj Finance, West Hill,
Calicut.
Exhibits for the complainant:
A1. Copy of Registration Certificate.
A2. Payment Chart.
A3. Copy of Statement of Account.
A4(1). Receipt. Dt:03.11.2015.
A4(2). Copy of police Complaint. Dt:30.10.2015.
X1(Series). Documents produced by Sub Inspector of Police, Sulthan Bathery Station (2 Nos).
Exhibits for the opposite parties:-
B1. Copy of Auto Loan Agreement.
B2. Copy of Loan Application Form.
B3. Copy of Account Statement.
B4. Copy of Notice. Dt:11.08.2014.
B5. Copy of Letter. Dt:19.03.2015.
B6. Copy of Interim Application before Arbitrator. Dt:19.03.2015.
B7. Copy of Interim Order. Dt:20.03.2015.
B8. Copy of Notice for Appearance. Dt:20.03.2015.
B9. Copy of Notice for Hearing. Dt:10.05.2015.
B10. Copy of Notice for Hearing. Dt:23.07.2015.
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PRESIDENT, CDRF, WAYANAD.
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