Karnataka

Chitradurga

CC/43/2014

Shri. A.S.Nagaraj S/o. Shivamurthappa - Complainant(s)

Versus

The Manager, Choramandalam Investment and Finance Co.Ltd., - Opp.Party(s)

Shri.B.R.Sangameshwara

28 Mar 2015

ORDER

COMPLAINT FILED ON : 13/06/2014

     DISPOSED ON: 28/03/2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

CC. NO. 43/2014 DATED:28th March 2015

 

PRESENT :-     SRI.V.H.RAMACHANDRA PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY                MEMBER

                                B.Com., LL.B.,(Spl.)

                SMT.G.E.SOWBHAGYALAKSHMI     MEMBER

                                B.A., LL.B.,

 

COMPLAINANT	Sri. A.S. Nagaraja, S/o Shivamurthappa, R/oWard No.15, Konana Kindi, Hosadurga Town, Chitradurga District.   Sri. (Rep by Sri. B.R. Sangameshwara,  Advocate)
OPPOSITE PARTY	The Manager, M/s       Cholamandalam Investment and Finance Company Limited, "Dare House" No.2 NSC Bose Road, Parrys, Channai-600001.   (Rep by Sri. G.K. Mallikarjuna Swamy  Advocate)

 

SMT.G.E. SOWBHAGYALAKSHMI, MEMBER.

ORDER

 

 

 

 

 

 

The above said complainant has been filed by the complainant U/s 12 of C.P. Act 1986 for the relief to direct the Opposite party (here in called Op) to grant the compensation of Rs. 5 lakhs to wards loss of earning and Rs. 5 lakhs mental agony and inconvenience and cost.

Brief facts of the case is that:

        2. The complainant has purchased vehicle Bearing Chassis No:MB1AWJFC2CRAF7687, Engine No.:CAHZ103501 on 09/03/2010 through invoice No.ECVSR9068-1112-237. To purchase this vehicle the complainant asked Uday who is working in Sundaram Ashok Leyland at Shimoga. He has brought some papers to the house of complainant and obtained signatures on the printed formats and collected post dated cheques at Hosadurga and brought the vehicle from Shimoga to Hosadurga and handed over the same. The complainant has purchased the vehicle for his earnings and it is only the source of income to eke out livelihood. The complainant is having aged mother, father, wife and young children. By doing hard labour the complainant is struggling hard to pay  the installments and for his survival.

        3. The complainant paying installments. The opponent has collected post dated cheques for the installment payment. The Opponent has presented the cheques and collected the  installments from the Bank account. The complainant has also paid installments by cash for which still he is not received all the receipts from the opponent.

        4. The complainant hospitalized in the month of November 2013 at Narayana Hrudayalaya at Bangalore for medical treatment as inpatient for heart problem increase of the Irota, Arthrities and Hemi parities stone at that time with an ulterior motive the Opponent has seized the vehicle from the driver without any written intimation and the Opponent has taken delivery to sell the vehicle for a megre amount by colluding with the purchaser. The employees  of the Opponent are roughs and they want to make money out of illegal means. There was no necessity for the Opponent to sell the vehicle for the recovery of loan amount. without intimation the Opponent has sold the vehicle for megre sum by colluding with the purchaser. The officials of Opponent regularly having touch with the complainant for repayment after sale the employees of Opponent have informed that the sale proceeds was adjusted and there is no due from the complainant in respect of above vehicle. Believing the same the complainant come to the conclusion that happened is happened and don’t want to file a case against the opponent before the Consumer Redressal Forum for the recovery of his vehicle because of his ill-health. The complainant has received telephone from the purchaser that if the complainant ready to pay Rs. 1,00,000/- extra on the purchase price amount he will ready to deliver the same to the complainant.

        5. The complainant is very surprise to receive Opponents legal notice which discloses that the vehicle was sold for Rs. 5,25,000/- before sale the opponent has not obtained the valuation certificate from the R.T.O. Now the notice showing that the complainant is in due of Rs. 3,29,599/- . The complainant has issued a legal notice by bringing the fact that, the vehicle was worth more than Rs. 10-00 lakhs, it was run about 30,000/- kilometers only as such it was in good condition and if it is sold in a public action it would have fetch Rs. 10-00 lakhs, but the Opponent acted to his whims and fancy and caused loss to the complainant. The complainant has caused loss of Rs. 4,75,000/- and also caused mental agony to the complainant for which the opponent is liable to pay Rs. 5,00,000/- as damages to complainant.  

        6. The complainant has suffered financial loss and mental agony which was caused by the acts of opponent. Complainant has issued legal notice to the Op through his counsel on 09/04/2014 the same was served and the Op has send reply notice dated 17/04/2014 now the vehicle is with the Op.

        7. The cause of action arose for the complaint on 09/04/2014 when the notice was issued to the Opponent. The loan papers are executed at native place of the complainant and the goods was delivered at the same place. Hence this Forum has got jurisdiction to entertain the complaint and prayed for allowed the complaint with cost.

        8. On the service of notice, Op has appeared through his counsel and filed his version denying all the allegation made in the complaint. Complainant knowing fully well that the Op has not taken possession of lorry forcibly and without information.

        9. Op has taken contention that the dispute before this Hon'ble Forum is not maintainable in view of the fact that there is one Arbitration clause and one 'Jurisdiction' Clause in the Agreement executed between the complainant and op Company in which the complainant has specifically agreed that the disputes if any between the parties be referred to the sole Arbitrator for adjudication through Arbitration.

        10. It is false to say that the complainant has paid all the EMI installments and other required charges etc up to date. It is false to say that our company had seized the vehicle without notice knowledge and unlawful methods used by  opponent. In fact, the complainant was highly irregular in payment of the loan installments in spite of several reminders by Op. Consequently the Op was constrained to take peaceful custody of the said vehicle on 04/12/2013 with the complainant's knowledge and acceptance and after exercise of due procedures and formalities. It is also false that without the notice. the Op have taken custody of the vehicle. Op has taken further contention that Op has followed all due formalities have been followed by the Op while  taking repossession of the vehicle. Before repossession of the vehicle. Op has issued a notice dated 01/07/2013 calling upon the complainant to repay the outstanding due till date. But the complainant willfully failed to respond to the said notice. After repossession of the vehicle our company has issued pre sale notice dated 04/12/2013 calling upon the complainant to pay the termination value. But the complainant willfully failed to respond to the said notice. The Complainant himself is responsible for the default in paying the loan installments, repossession of the vehicle and Op cannot be held responsible for the willful fault of the complainant.

        11. Op has further stated that the payments made by the complainant are subject matter of record. Further, Op has not acted in any manner as alleged. The complainant has signed the loan agreement as principal borrower agreeing and accepting the terms and conditions contained therein, and hence, is not liable to compensate in any manner.

        12. It is stated that, the complainant approached Op requesting to extend the financial assistance to purchase AL ECOMET 12121 bearing Registration No:KA-16-B-5329. Accordingly, Op sanctioned Rs. 9,01,000/- and a loan agreement No.XVFPSHM00000712016 dated 29/02/2012 was entered into between the parties.

        13. As per the terms and conditions of the agreement, the complainant agreed to repay the said financed amount in 47 equated monthly installments along with interest commencing from 01/04/2012 to 01/02/2016. It was the  duty of the complainant to honor the terms and conditions of the loan agreement. Having accepted the terms and conditions, the complainant defaulted in paying the monthly installments to Op. The complainant became a defaulter and also the payment of installments became irregular. In-spite of several demands the complainant did not come forward to pay the outstanding due amount.

        14. It is stated that before repossession of the vehicle Op has issued final call letter on 01/07/2013 to the complainant and called upon the complainant to pay the outstanding due till date within seven days of the receipt of the notice but complainant not adhered to the same. After repossession of the vehicle on 04/12/2013 Op has issued notice to the complainant and called upon the complainant to pay the termination value within 7 days, failing which the Op would be constrained to take steps to sell the vehicle and adjust the sale proceeds against the amount due from the complainant. The complainant is fully aware of these facts and is a guilty of suppresio veri and suggestion falsl'. His case is based on falsehood.

        15. It is stated that at no point of time the  Op committed deficiency in service. After repossession of the vehicle valuation report has been obtained from the duly authorized valuator on 23/12/2013. Thereafter the said vehicle has put in auction on 16/01/2014 and said vehicle has been auctioned for Rs. 5,25,000/- which was the highest quote received in the auction. Hence looking at all the angle, the complainant has not made out any ground to prove the deficiency in service by the Op.  All the allegations which are not expressly traversed herein above are denied as false and it shall not be presumed that the Op has admitted the same. That in view of aforesaid contentions there is no deficiency of service rendered by to the complainant. Therefore, the complaint filed by the complainant needs to be dismissed as not maintainable in the eye of law. In view of the above the complainant is not entitled to any of the reliefs as prayed in  the complaint and prayed for dismissal of the complaint with costs.

        16. Complainant himself examined as Pw-1 by filing affidavit evidence and filed documents, the same was got marked as Ex A-1 to A-7.

        17. On behalf Of Op one Santhosh S/o Jayappa GPA holder  and legal coordinator of Op Company. Examined as Dw-1 by filing affidavit evidence and filed documents, same was got marked as Ex B-1 to B-7.  

        18. Both the parties have filed written arguments and oral arguments also heard.

Now the Points arise for our consideration for the decision of the complaint is that:-

Point No.1:- Whether the complainant proves that the complainant  purchased the vehicle bearing Reg No: KA-16-B-5329 and its chassis No:MB1AWJFC2CRAF7687, engine No:CAHZ103501 on 09/03/2010 through invoice No.: ECVSR 9068-1112-237 for the finance assistance by the Op for his earnings to eke out his livelihood  and complainant had executed the loan agreement to the Op and paying installments to Op regularly and he has suffering from heart problem and taking treatment at Bangalore at that time Op has illgally seized the vehicle and sold the vehicle lowest price without giving any Notice to the complainant?.

Point No.2:- Whether the complainant proofs that his vehicle was worth more than 10 lakhs, it was run about 30,000 Kilometers only as such it was in good condition. and Op fail to sell the vehicle public auction. Op has not giving any opportunity  to the complainant to deposit the over due amount and due to the  act of the Op complainant has loss Rs. 4,75,000/- and suffer mental agony  and thereby Op has committed deficiency in service and unfair trade practice and entitle for the reliefs as prayed in the complaint?.

Point No.3:- What order?

        19. Our findings on the above points are as below.

        Point No.1:- Partly affirmative.

        Point No.2:-Partly affirmative.

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

                                ::Reasons::

       20. Point Nos. 1 and 2:- We like to discuses the Point No.1 and 2 simultaneously for the sake of convenience and the complainant has purchased the vehicle bearing Reg No. KA-16-B-5329, and it's  Chassis No.MBIAWJFC2CRAF7687, engine NO.CAHZ103501. On 9/3/2010 through invoice No.ECVSR9068-1112-237 for the financial  assistance by the Op. It is not in dispute that the complainant had borrowed the loan from Op and executed the loan agreement. It is not in dispute that Op has sanction the loan for sum of Rs. 9,01,000/- to the complainant for the purchase of the above said vehicle and Op has given 47 equated monthly installments along with interest  to repay the loan to the complainant. It is not in dispute that the complainant has taken  treatment at Bangalore in the month of November-2013 at Narayna Hrudayalaya for Heart problem. It is not in dispute that the Op has seized the vehicle from the driver and the Op had sell the vehicle for the recovery of loan amount. It is in dispute that the Op has seized the complainant vehicle with out any written intimation. It is only      in dispute that the Op has sold the above said vehicle for a megre amount by colluding with the purchaser. It is only in dispute that the complainant paid all EMI installments and other required charges etc regularly to the Op. It is only in dispute that the complainant vehicle was worth more than Rs. 10=00 lakhs ( Ten Lakhs). It was run about 30,000/- kilometers only, as such it was in good condition and if it is sold in a public auction it would have fetch Rs. 10 lakhs but the Op acted to his whims fancy and caused loss of Rs. 4,75,000/- to the complainant. It is only in dispute that there is one "Arbitration clause one "Jurisdiction" clause in the agreement executed between the parties. It  is on ly in dispute that due to the act of the Op complainant suffered mental agony thereby Op has committed deficiency of service.

21. It is the case of the complainant is that the complainant has purchased the vehicle bearing No: Chassiss No:MB1AWJFC2CRAF7687, Engine No:CAHZ103501 on 09/03/2010 through Invoice No.ECVSR 9068-1112 -237 for  the financial assistance by the Op. To purchase the above vehicle the complainant asked Mr. Uday who is working is sundaram Ashok  Layland at Shivamoga he has brought same papers to the house of complainant and obtained signatures on the printed formats and collected post dated cheques at Hosadurga and brought the vehicle from Shivmoga to Hosadurga. The complainant purchased the vehicle for his earnings to eke out his livelihood. By doing hard labour the complainant is struggling hard to pay the installments and for his survival. The complainant paying installments regularly and the complainant Hospitalized in the month of November 2013 at Narayana Hrudayalaya at Bangalore for medical treatment for Heart problem at that time with an ulterior motive the Op has seized the vehicle from the driver without any written intimation and without intimation the Op has sold the vehicle for a megre amount by colluding with the purchaser. Complainant further stated that Op was sold the vehicle for sum of Rs. 5,25,000/- Only before sale the Op has not obtained the valuation certificate from R.T.O Now the notice showing that the complainant is in due of Rs. 3,29,599/. The complainant issued legal notice by bringing the fact that the vehicle was worth more than Rs. 10 lakhs it was run about 30,000/- kilometers only, as such it was in good condition and if it is sold in a public auction it would have fetch Rs. 10 lakhs but the Op acted to his whims and fancy and caused loss to the complainant. The complainant has caused  loss of Rs. 4,75,000/- and also caused mental agony for which the Op is liable to pay Rs. 5,00,000/- as damages to the complainant. Op has without issuing any Notice seized the complainant's vehicle and sold the same and there by Op has committed deficiency in service. And Op has not followed the rules and regulations framed by the RBI and prayed for allow the complaint with cost.

        22. In support of his case complainant himself examined as Pw-1 by filing affidavit Evidence in which reiterate the contents of the complaint and filed 7 documents like copy of the legal notice dated 09/04/2014 reply notice issued by the Op dated 17/04/2014, 17, EMI installments amount paid receipts 17 in number, Zerox copy of the R.C. Receipt issued by the Annapoorna healthy Foods dated 18/10/2013 for sum of Rs. 250/- only Receipt issued by the Narayana Hruddyalaya Dental Clinic dated 06/11/2013 for sum of Rs. 200/- only. Bill cum Receipt dated 17/10/2013 for sum of Rs. 2,933/- N.H. Narayana Hrudayalaya Dental Clinic Bill cum Receipt dated 15/10/2013 issued by the N.H. Narayana Institute Cardiac Sciences, for sum of Rs. 1,448/-, 2,903/- . Rs.688/-, Rs. 120/- and Rs. 9,300/- respectively the said documents got marked as Ex A-1 to A-7.

 23. On perusal of Ex A-3 payment receipts issued by the Op shows the complainant paid 17 EMI installments from 13/04/2012 to 30/09/2013 total sum of Rs. 4,37,870/- to the Op. On perusal of Ex A-4 to A-7 Medical Bills issued by the Annapoorna Health foods and Narayana Hrudayalaya, Dental Clinic and N.H. Narayna Hrudayalaya, Institute of Cardiae Sciences and N.H. Mazumdar shaw Medical Center, Bangalore dated  18/10/2013, 06/11/2013 07/11/2013, 15/10/2013, 15/10/2013, 17/10/2013, 06/11/2013, 06/11/2013,06/11/2013 respectively and paid sum of Rs. 250/-, Rs. 200/- Rs. 1,100/- Rs.1,448/-, Rs. 9,300/- Rs. 2,933/- Rs. 2,903/- Rs. 668/- Rs.120/-  respectively Ex A-4 to A-7  shows that complainant taken treatment at Bangalore in the month of October and November 2013 and he suffered some heart problem and dental problem, Ex A-6 and A-7 shows that the complainant suffering from heart disease it is not in dispute and its shows complainant taken treatment as an out patient. Zerox copy of the R.C. shows that the complainant is the R.C. owner of the Vehicle bearing No KA-16-B-5329 and the vehicle model is 2012 model date of Registration 15/03/2012, Ex A-1 legal notice issued by the complainant through his Advocate dated 09/04/2014 to Op. Ex A-2 reply notice dated 17/04/2014 issued by the Op to the complainant counsel. On perusal of Ex A-1 complainant has not disclose that how much loan amount paid by him  to Op and he has not stated that how much amount will be payable to Op. On perusal of Ex A-2 replay notice Op has not stated that the  complainant has paid sum amount towards the loan Op has also not disclosed that how much amount received from complainant towards the loan and how much  amount will be balance towards the loan payable by the complainant.

        24. On the other hand Op examined one Sri. Santhosh S/o  Jayappa, GPA holder and legal Co-ordination of Op Company, Branch office, at Davanagere examined as Dw-1 by filing affidavit evidence in which reiterate the contents of version and filed documents, the same was got marked as Ex B-1 to B-7, Ex B-1 copy of the loan application form and loan agreement dated 29/02/2012, Ex B-2 original copy of motor vehicle valuation report dated 23/12/2013, Ex B-3 Office copy of the account statement from 22/02/2012 to 02/12/2013 with respect to loan taken by the complainant Nagaraja A.S. Ex B-4 corbone copy of pre sale letter dated 04/12/2013 issued by the Op to customer. Ex B-5 postal acknowledgement, Ex B-6 Final call letter issued by the Op to complainant date 01/07/2013 Ex B-7 postal acknowledgement. On perusal of Ex B-5 and Ex B-7 postal acknowledgements. It's show the signature and name who received the notice or letter. On verifying the above said documents i.e. Ex B-5 and Ex B-7 it shows the disputed signature is found on the postal acknowledgement, which document was got marked as Ex B-5. The complainant has stated strongly that. Op has not given any notice or letter to sale his vehicle,       Ex B-4 pre sale notice, Ex B-5 is the postal acknowledgement of Ex B-4 notice Complainant advocate argued that the complainant taken treatment for heart problem at Bangalore in the month of November 2013 at Narayana Hrudayalaya at that time Op has seized the vehicle. Op has not giving any written intimation to the complainant without written information Op has seized the vehicle from the driver and without giving any written information Op has sold the vehicle for recovery of the loan there was no necessity for the Op to sell the vehicle for the recover of loan amount without intimation. The Op has sold the vehicle for megre sum by colluding with the purchaser counsel for the complainant further argued that the signature in the Ex B-5 postal acknowledgement  is disputed signature signature in the Ex B-7 postal acknowledgement admitted signature of the complainant. We can compare the admitted and disputed signature of the complainant in the Ex B-5 and Ex B-7 postal acknowledgements. Signature in the Ex B-5 postal acknowledgement it is not the signature of the complainant. It is clearly shows that presale notice issued by the Op is not duly served to complainant. Signature in the Ex B-7 postal acknowledgement is admitted signature of the complainant. On perusal of the signature of the complainant in the complaint, Vakalath affidavit evidence filed by of the complainant and admitted signature of the complainant in the Ex B-7 is one and the same. We are compare the signature in the Ex B-5 postal acknowledgement is not tally the signature of the complainant, it is deferent and it is not tally the signature made by the complainant in the complaint, affidavit and Vakalath and Ex B-1 loan agreement executed by the complainant in fevour of Op in this case. It is clearly shows that without giving any written intimation Op has sold the complainant vehicle lowest price and also it is clearly shows Op has not followed rule and regulations formed by the RBI.

        25. On the other hand the G.K.M advocate is argued that the complainant executed the loan agreement in favour of the Op and borrowed loan of Rs. 9,01,000/- and given 47 equated monthly installment. complainant defaulted in paying the monthly installments to the Op. The complainant became a defaulter and also the payment of Installments became irregular. In-spite of several demands the complainant did not come forward to pay the outstanding due amount. Counsel for the Op further argued that before repossession of the vehicle Op has issued final call letter on 01/07/2013 to the complainant and called upon the complainant to pay the outstanding due with in seven days of the receipt of the Notice but complainant not bother to the same. After repossession of the vehicle on 04/12/2013 the Op has issued notice to the complainant and called upon the complainant to pay the termination value with in 7 days, failing which Op would be constrained to take steps to sell the vehicle and adjust the sale proceeds against the amount due from the complainant. The complainant is fully aware of these facts there is no deficiency in service and the complaint is not maintainable. As per the Ex B-1 terms and conditions of the loan agreement there is a Arbitration and Jurisdiction clause in the agreement the dispute if any between the parties be referred to the sole arbitrator for adjudication through Arbitration and the complainant is not the consumer and he has not entitle any reliefs as prayed in the complaint and prayed for dismissal of the complaint with cost and relied as decision reported in Hon'ble High Court Of Karnataka in 2012 (4)KCCRSN.242.

 

     2012(4)KCCR SN 242

 

     Karnataka High Court

 

     EWAC Alloys limited Mumbai and others V/s Union of India and others.

 

1. Consumer protection Act 1986- Section 2(1)(d) Consumer-Should be an individual purchasing goods for his personal use-Reseller or purchaser of goods for any commercial purpose is not  a consumer for purposes of Act.

 

        26. Xerox copy of the order in  C.C. No. 25/2014, dated 03/09/2014 of this Forum. And also produce the Zerox copy of the order in CC. No.25/2014 of this Forum. On perusal of the decision and order in  CC. No: 25/2014 of this forum. As per the above said decision and order. If the complainant has purchased the vehicle for the commercial purpose is not a consumer for the purposes of Act. In this case complainant purchased the vehicle for his earning and to eke out his livelihood therefore the above said decision and order is not helpful to the case of the Op. The above said decision is not aptly applicable to the case of Op.

27. On the other hand the advocate for the complainant relied on the decisions as follows.       

2010(2) CPR 280 (NC)

 

     M/s Magma Financial Corporation V/s Pandit Iswar Dev Thakur

 

     Consumer Protection Act, 1986-Sections 12 and 17 Deficiency in Service vehicle availing finance from petitioner under purchase agreement-Post dated cheques insurance purchases to wards repayment of loan were issued Repossession of vehicle by petitioner was rightly held to be deficiency in service when petitioner did not have any case that cheque was not honored-Arbitration cause in agreement would not e a bar in exercise of Jurisdiction by consumer Fora-Since consumer complaint had been filed in 2004 and proceedings before sole arbitrator were initiated by petitioner on 10/01/2006 and arbitrator gave his award on 08/11/2006 award will not render complaint in fructuous-No reason to interfered with order allowing complainants claim.

 

III (2010) CPJ 384 (NC)

 

     Magma Fin crop Limited (Formerly Magma Leasing Finance Limited) V/s Ashok Kumar Gupta.

1. Consumer Protection Act 1986 Sections 2 (1)(g), 14(1)(d) 21(b) Banking and financial Institutions-Hire purchase agreement-Default in paying installments Forcible and illegal repossession of vehicle-Forum directed petitioner to pay sum of Rs. 6,21,636 along with costs of Rs. 500-Award upheld by State Commission-Hence,  revision-Contention, notice was sufficient to repossess vehicle _Not accepted-As per decision of Citicorp Maruti Finance Limited V. S. Vijayalakxmi, III (2007) CPJ 161, Banks and financial agencies should resort to procedure recognized by law to take possession of vehicle where borrower may have committed default in payment instead of taking report to arm tacties-Full legal requirements of Reserve Bank of India guidelines not complied with-No final chance or opportunity given to petitioner in agreement for repayment of loan-interference required-Directed to comply order of State Commission.
2. Consumer protection Act 1986 Section 3 Jurisdiction-Hire-purchase agreement-Contention, when arbitrator has passed an award, Consumer For a debarred from passing any further award choice either to go in for arbitration or respondent/complainant not participated in arbitration proceedings-Award of arbitrator not binding to him.

Result : Revision Petition dismissed.

 

I (2010) CPJ 155 (NC)

 

        Magma Fin corp Limited V/s Vijay Kumar.

     Consumer protection Act, 1986 Sections 2(1) (g) (d) Banking and Financial Services-Vehicle financed-Repossessed forcibly due to irregularities in repayment of loan-Vehicle auctioned-Complaint allowed by Forum-Order Vehicle repossessed with help of musclemen, Which is not legal-Practice of forcible repossession of vehicle deprecated by Apex Court in ICICI Bank V. Prakash Kour and Ors., III (2007) SLT 1=138(2007) DLT 248 (SC)=I (2007) DLT (Crl), 865(Sc) Ratio of case applicable to case under consideration-Orders of lower For a upheld.

Result: R.P. dismissed.

 

     IV(2010) CPJ 421

 

     Magma Fin corp limited and Anr., V/s Samarendra Roy.

     Consumer Protection Act, 1986 Sections 2(1)(g) , 14(1)(d), 15- Banking and financial Institutions services Hire purchase agreement Motor vehicle loan-Default in payment forceful repossession of vehicle vehicle sold to third party District Forum allowed  complaint-Directed to return the vehicle-Hence Appeal-Forcible repossession of vehicles by Op by exercising their right under hire purchase agreement without taking recourse to law constitutes deficiency in service-Car sold without intimation to borrower after seizure by Op-Op directed to pay complainant the amount which he paid with interest order of For a Below modified.

 

AIR 2004 CALCUTTA 46

 

     Ashok Kumar Singh V/s State of West Bengal and others.

     Constitution of India, Art, 300-A Motor vehicles Act (59 of 1988) S. 2(30) Hypothecated vehicle-Default by hirer in paying installments-Financier  cannot take forcible possession of vehicle with help of muscle men-Hire purchase agreement-It is loan transaction vehicle registered in name of hirer-He is owner within meaning of S. 2(30) of M.V. Act-Hirer lodging complaint with police-They must take necessary steps to recover vehicle.

 

     AIR 2012 Supreme Court  509

 

     Citicorp Maruti Finance Limited V/s Vijalaxmi.

     Hire purchase Act (26 of 1972) S. 21 Consumer protection Act (68 if 1986) S. 2 (1) (g) Hire purchase agreement Recovery of due amount Finance company, took possession of car taken under hire purchase agreement and sold it to cover its outstanding dues Recovery process should be effected in accordance with due process of law and not with use of force-Although till such time as ownership is not transferred to purchaser hirer normally continues to be owner of goods but that does not entitle him on strength of agreement to take back possession of vehicle by use of force-Such acts are in violation of RBI guidelines-Hence recovery by financial corporation was against process of law and RBI guidelines and hence order of Consumer Forum directing financial corporation to compensate purchaser, proper.

 

I (2002) CPJ 33 (NC)

 

Ravilaldeviprasad Jaiswal V/s Arun Mangilal Rathod and anothers.

     Consumer Protection Act, 1986-Section 2(1)(g)-Deficiency in service loan-Complainant got his taxi financed and made payment of installments to respondent No.2 through respondent No.1 payment not made by respondent No.1 to respondent No.2 who repossessed the taxi District Forum Directed respondent No.1 to pay Rs. 2,15,000/- with interest @ 20% p.a. and Rs. 15,000/- as unfair trade practice and Rs. 40,000/- as compensation besides Rs. 1,000/- as cost-State Commission upheld the order-Hence revision-Whether it is a fit case for revision? (No)

 

Supreme Court and National Commission Consumer Law Digest.

 

     Arbitration clause-Mere existence of an arbitration clause should not come in the way of an aggrieved party from seeking legitimate relief under the Act which is a special piece of legislation to protect the interests of the consumers not withstanding the other laws in force. Udaipur Cement Works V/s Punjab Water Supply and Sewerage Board 1999 (1) CPJ 67 : 19999(1) CLT (NC) 602.

 

        28. On perusal of the decisions  the above said decision are aptly applicable to the case of the complainant. On Perusal of the entire case papers documents and evidence Ex B-1 schedule of loan argument clearly shows that the date of agreement 29/02/2012, loan amount Rs. 9,01,000/- TENUR (in month) 47 installments Ist installment date Ist April 2012 lost installment date Ist February-2016, Ex B-2 motor vehicle valuation report date 23/12/2013 it is clearly shows that the vehicle is in good condition. It shows the market value on date of inspection Rs. 6,80,000/- and its also discloses that this market value assessment are given for the financial purpose and not for insurer's IDV Ex B-2 report show in the note. "If the vehicle is with records the market value may be Rs. 7,25,000/-."  As per for Ex B-1 loan application form shows total cost of vehicle is Rs. 10,60,000/- mentioned in the page 2 of the application form. Registration and insurance (value of the vehicle is Rs. 10,60,000/- so it's show the value of the vehicle is Rs. 10,60,000/- in the year 2012. Op seized the vehicle in the month of December and sold 2013. As per Ex B-2 reports show the vehicle is the market value may be Rs. 7,25,000/- Op has sold the vehicle for sum of  Rs. 5,25,000/-. It is clearly shows that the Op has sold the vehicle for megre amount (lowest amount) by colluding with the purchaser. Complainant contention is that  the vehicle was in good condition before sale Op has not obtain the valuation certificate from R.T.O. If it is sold in the public auction it would have fetch Rs. 10,00,000/- (ten lakhs) but the Op acted to his whims and fancy and caused  loss of Rs. 4,75,000/- to the complainant and also  caused mental agony Op has not followed the Guidelines issued by the RBI to recover the loan amount Op has seized the complainant's vehicle and sell the same with out issuing any notice. It is opposed to the law and deficiency of service committed by the Op towards complainant and Op is Op has liable to pay the compensation of Rs. 5 lakhs to the complainant.

        29. On perusal of the Ex B-6 final call letter dated 01/07/2013 call upon the complainant to repay the outstanding due amount. On perusal of  Ex A-3 payment receipt No.4 dated 30/09/2013 of sum of Rs. 25,500/- Receipt No.6 dated 23/09/2013 sum of Rs. 25,500/-. Receipt No.7 dated 30/09/2013 sum of Rs. 25,500/- and SBM Hosadurga Branch, challan receipt dated 30/09/2013 sum of Rs. 25,500/- paid by the complainant after received the Ex B-6 final call letter. Complainant has paid more than one lakhs to the Op. Op has seized the vehicle on 04/12/2013 as per Ex B-4. As per Ex-A-4 to A-7 shows the complainant suffering from ill health i.e. heart problem and Dental problem he was taken treatment at Narayana Hrudayalaya at Bangalore in the month of October and November-2013. Therefore.  complainant has not paid the EMI in the  above said months. Op has not followed the RBI guidelines and fails to comply with the guidelines issued by Apex Court. On perusal of the citation reported on AIR-2012 SC page No.509. The Hon'ble Supreme Court has given guidelines to the financial agencies to follow up the guiding principals in seizing and selling the vehicles. As per the above said decision OP has fail to comply the same thereby Op has committed deficiency in service towards the complainant.

30. On perusal of the Ex A-3 and Ex B-3 Ex A-3 complainant paid 17 installments to Op Ex B-3 office copy of the account statement from 22/02/2012 to 02/12/2013 with respect of complainant loan account. As per the Ex B-3 complainant paid 13 installments the same is tallied Ex A-3 payment Receipts issued by the Op employees. Some of the receipts S.B.M, Hosadurga Bank challans. EMI amount is not entered in the Ex B-3 but. Op has not denied the Ex A-3 receipts and its amount. As per Ex A-3 complainant paid Rs. 4,37,870/- Ex B-3 shows complainant paid the loan amount of Rs. 3,39,280/- there is one lakh amount is  deference. On perusal of entire case records and documents and evidence. It is clearly shows that Op has committed deficiency in service. Op is liable to pay the compensation.

Complainant payable to the Op as under.

Sl No.	Particulars	Amount Rs.
01	Complainant taken vehicle loan from Ops and executed agreement on 29/02/2012  for Sum of Rs.	9,01,000=00
02	Complainant purchased by the vehicle and Registered on 15/03/2012 Ist EMI Start from 01/04/2012 Interest from Ist March 2012 to 28/01/2014 i.e. from the date of sale at the rate 7.92% has for Ex B-1 i.e. 8% total interest is Rs.	1,38,184=00
03	Processing and service charges	2,253=00
04	Documents Charges	1,000=00
05	Repayment mode charges	2,000=00
06	Total complainant payable to Op Rs.	10,44,437=00

 

Ops received the amount form complainant as under.

Sl NO.	Particulars	Amount/Rs
01	Complainant paid EMI total 17 installments	4,37,870=00
02	Complainant vehicle valued as per Ex B-2, dated 23/12/2013, issued by the Shivakumar S.K. Surveyor and loss assessor for sum of Rs.	7,25,000=00
03	Total Amount	11,62,870=00

 

31. Complainant's vehicle valued Rs. 7,25,000/- as per Ex B-2 the said documents is filed by the Op. Op has  taken the valuation report from his surveyor and the above said report shows that complainant vehicle is in  good condition and valued Rs. 7,25,000/- but the Op has sold the vehicle for sum of Rs. 5,25,000/- as per the contention of the Op. It is clearly shows that Op has sold the complainant vehicle less amount and OP acted to his whims and fancy and caused loss of Rs. 2,00,000/- to the complainant.  It is clearly shows that Op has committed deficiency in service and unfair trade practice. Therefore we have come to the conclusion that Op is liable to  pay compensation to the complainant as under.

 

Sl NO.	Particulars	Amount/Rs
01	Ops received total amount Rs.	11,62,870=00
02	Complainant payable to the Ops loan amount Less  Rs. (-)	10,44,437=00
03	Balance Rs.	1,18,433=00

 Complainant is entitle for sum of Rs. 1,18,433/. along with interest at the rate of 8%  p.a.

32. In view of the above discussion and under the circumstance of the case Op has committed deficiency in service towards the complainant due  to the act of the Op complainant suffered mentally and financially the complainant is entitle for compensation of sum of Rs. 1,18,433/- along  with 8% interest from the date of complaint till the date of payment and further  Op is liable to pay the sum of Rs. 10,000/- towards mental agony and Rs. 5,000/- towards the cost of this proceedings. Accordingly we answer the point No.1 and 2 is held as partly affirmative.

        Point No.3:- As discussed on the above points and for the reasons stated there in we pass the following.

 

ORDER

        It is ordered that the complaint filed by the complainant U/s 12 of CP Act 1986 is hereby partly allowed.

        It is ordered that Op is directed to pay sum of Rs. 1,18,433/- to the complainant  with 8% interest per annum from the date of complaint till the date of payment with in 2 months from this order.

        It is further order that Op is directed to pay sum of Rs. 10,000/- towards mental agony and Rs. 5,000/- towards cost of this proceedings to the complainant.

        It is further order that Op is directed to give N,O.C (No due certificate) to the complainant  with respect to the complainant vehicle loan.

        Accordingly complaint is partly allowed.

(This order is made with the consent of President and Member after the correction of the draft on 28/03/2015 and it is pronounced in the open Court after our signatures.)   

 

MEMBER                   MEMBER                      PRESIDENT

 

Annexures:

 

Complainant by filing  affidavit evidence taken as Pw-1 Witness examined on behalf of complainant:

                                                -Nil-

On behalf of Op G.P.A. Holder and by filing  affidavit evidence taken as Dw-1.

Witnesses examined on behalf of Opponent:

-Nil-

Documents marked on behalf of complainant:

01	Ex-A-1:-	Legal Notice, dated 09/04/2014
02	Ex-A-2:-	Reply notice, dated 17/04/2014
03	Ex-A-3:-	Loan payment receipts, total in 17 Nos.
04	Ex-A-4:-	Receipt issued by the Annapoorna Health Foods dated 18/10/2013.
05	Ex-A-5:-	Receipts two in nos. 06/11/13 and 07/11/2013 issued by the Narayana Hrudayalaya Dental Clinic, Bangalore dated 15/10/2013
06	Ex-A-6:-	Bill com receipts issued by the N.H. Narayana Institute of Cardiac Science, Bangalore
07	Ex-A-7:-	Bill cum Receipt, N.H. Narayana Institute of Cardiac Science, dated 17/10/2013.

Documents marked on behalf of Opponent:

01	Ex-B-1:-	New vehicle application form, loan agreement
02	Ex-B-2:-	Motor vehicle Valuation report, dated 23/12/2013, issued by Shivakumar, Surveyor.
03	Ex-B-3:-	Accounts statement from 22/2/2012 to 02/12/2013. With respect to the complainant loan.
04	Ex-B-4:-	Pre sale letter to the customer, dated 04/12/2013, and postal receipt
05	Ex B-5	Postal acknowledgement.
06	Ex-B-6:-	Final call letter to the customer, dated 01/07/2013. and postal receipt.
07	Ex B-7:-	Postal acknowledgement.

 

 

MEMBER                   MEMBER                      PRESIDENT

Kms.