Date of Filing: 26/05/2014
Date of Order: 06/03/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. The complainant has filed this complaint U/S 12 of the Consumer Protection Act, 1986 against the opposite parties for (hereinafter referred in short as O.Ps) alleging deficiency in service on the part of O.Ps and prays for direction to the O.Ps to pay a sum of Rs.2,50,000/- as relief/compensation and to pay a sum of Rs.90,000/- which is lost on 5.01.2014.
2. The brief facts of the complaint are that the complainant by availing the loan from the OP.2 bank purchased the Motor bike that is Splendor pro cast block motor bike worth of Rs.63,500/-. The complainant states that he paid Rs.19,000/- through down payment and for remaining amount of Rs.42,500/- availed the loan from O.P bank. It is stated that the said loan amount was agreed to pay in 22 instalments. Further complainant states that as per the saying of the O.P bank and the complainant paid the amounts towards loan by cash amount. The complainant alleges that though he paid complete 22 loan instalments, the O.P bank demanded to repay the another two instalment towards the loan amount. Further complainant states that on 05.01.2014 whose motor bike was stolen without prior notice and information and thereafter complainant lodged the police complaint. Further complainant states that the OP informed the complainant about the said theft that they have seized the bike against the non payment of the arrears of two alleged the instalments. Hence this complaint.
3. Upon issuance of notice O.Ps appeared through its counsel and filed its version. In the version O.Ps admitted that the complainant availed the loan amount of Rs. 42,500/- but contended that it is agreed to pay back the said the loan amount in 24 instalment and not 22 instalments as alleged by the complainant. It is also denied as false that the complainant paid Rs.4,292/- as first tenure. It is also denied as false and incorrect that the complainant kept of Rs.90,000/- and other documents in the said motor bike. It is submitted that complainant agreed to pay to said loan amount in 24 EMI’s and the period of payment commenced from 09.07.2011 to 05.06.2013 and each EMI is of Rs.2,146/- the complainant also executed the loan agreement in his favour and agreed to the terms and conditions of the loan agreement hence contended that whenever the customer failed to repay the loan amount the bank is entitled to take possession of the vehicle immediately. It is also contended the complainant’s ECS got dishonoured due to mismatch of signature and hence O.Ps sent a notice on 16.09.2011 calling upon the complainant to swap the earlier mandates with fresh mandates or provide post dated cheques, but the complainant did not comply the notice request but he paid through cash only after the ECS mandate got dishonoured. Further complainant himself submitted fresh ECS mandates from 5.4.2012 to 05.03.2013 but instalment No.22 dated 05.04.2013 and instalment No. 23 dated 05.05.2013 ECS got dishonoured and the said instalment were not paid by the complainant. Hence the complainant is default in payment of instalments, the cheques bounce and other overdue charges are levied but the complainant once again failed to pay the same and got issued the legal notice and the said notice is also replied by the O.P bank. Thereafter against the non payment of dues the said vehicle was repossessed on 08.01.2014 peacefully and prior notice of repossessing vehicle in question intimation was sent to the police station. At the time repossessing the vehicle inventory was conducted on the vehicle. Further contended that after repossessing the vehicle pre-sale notice dated 09.01.2014 was issued to the complainant and called upon the complainant to pay the outstanding due of Rs.14,768/- on are before 23.01.2014 failing which the bank will proceed with auctioning the vehicle without any further notice. It is contended that after the receipt of Pre-sale notice dated 9.1.2014 complainant instead of paying the outstanding dues and claiming the vehicle and lodged the complaint on 31.1.2014 and the same is not within the knowledge of this O.P. The lodging of the complaint is an afterthought. When the complainant did not come forward to pay the outstanding dues having no other option the O.P Bank sold out the vehicle on 27.01.2014 for a sum of Rs 30,100/- for the highest bid by one Mr Kaleem Pasha. After the sale proceeds adjusted to the loan account a sum of Rs 15,361/- was due and payable to the complainant. On 31.2.2014 O.Ps have issued post sale notice to the complainant bringing him to his knowledge that the vehicle was sold and asked the complainant to contact concerned Manager of the Bank. Hence contended that the complainant having no cause of action filed this complaint and on other grounds prays for dismissal of the complaint.
4. In order to substantiate the case of the parties and both the parties have filed their affidavit evidence and also heard the arguments.
5. On the basis of the pleadings of the parties, the following points will arise for our considerations are:-
(A) Whether the complainant has proved
deficiency in service on the part of the
O.Ps?
(B) Whether the complainant is entitled to
the relief prayed for in the complaint?
(C) What order?
6. Our answers to the above points are:-
POINT (A) & (B): In the Negative.
POINT (C): As per the final order
for the following:
REASONS
POINT No. (A) & (B):-
7. On perusing the pleading of the parties and the material evidence placed on record it is not in dispute that the complainant purchased the Splendor pro cast block motor bike worth of Rs.63,500/- by paying down payment of Rs.19,000/- and remaining amount of Rs.42,500/- by availing the loan from O.P bank. The sole allegation of the complainant is that though he has paid complete 22 instalments towards the loan amount but the O.Ps demanding another 2 instalments. Further alleged that when the complainant parked the vehicle without his notice the said vehicle was stolen and thereafter he lodged the complaint and later it was intimated to complainant that the O.Ps seized the said vehicle without his knowledge and hence complainant alleged deficiency in service on the part of the O.Ps.
8. Per contra O.Ps contended that the total EMI’s fixed for discharging of loan is 24 EMI’s and not 22 EMI’s. Further contended that the complainant is default in paying the outstanding due towards loan amount. Further as per the terms and conditions of hypothecation and loan agreement. The lodging of the police complaint is an afterthought. Inspite of pre sale notice the complainant did not bother to clear the outstanding loan amount and they have auctioned the said motor bike and the sale proceeds adjusted to the loan account.
9. The complainant deposed in his evidence on 5.1.2014 when he went to Naranyana Hrudyalaya hospital and parked his motor bike along with Rs.90,000/- cash kept in bike he could not find his bike. It is worth to note that it is not possible to believe that the complainant kept Rs.90,000/- in said motor bike without any clinching evidence. Furthermore on perusing the copy of complaint date 30-1-2014 it discloses that after 25 days gap of time complainant lodged the police compliant regarding the theft and hence we have no hesitation to infer that the complaint is after thought as rightly contended by the O.P. the complainant also not explained satisfactorily why there is a long delay. Furthermore on the perusing the bank statements of accounts on Annexure-E at ink page no 23, for the period from 28-6-2011 to 8-07-2014 it discloses that during the year 2011 on 10-10-2011 and on other occasions, the O.P bank collected cheque bounce charges from the complainant but the complainant did not say anything in his evidence. Further O.Ps also replied the legal notice issued by the complainant as per Annexure G. Further on perusing Annexure H filed along with version, it discloses that on 8-1-2014 pre possession notice is given to police and also as per Annexure-K post repossession notice to police. On perusal of Annexure L dated 9-1-2014 it discloses the pre sale notice given to the complainant and on perusing Annexure-M at ink page No.36 intimated the complainant regarding foreclosure of the amount. All these facts in the documents clearly reveals that the complainant himself did not bother the clear the outstanding due to the bank and hence the bank as per the terms and condition of the loan agreement sold out the motor bike in auction. Further on perusal of post sale notice as per Annexure R discloses that O.P performed it duty without any deficiency. In the light of above discussion we reach to the conclusion that the complainant failed to prove deficiency in service on the O.P bank and thereby he is not entitled for the relief sought in the complaint. Accordingly, we answered these points in the negative.
POINT (C):
10. On the basis of findings given while answering the Points (A) & (B) and in the result, we proceed to pass the following:-
ORDER
- The complaints are hereby dismissed. No order as to cost.
02. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 6th Day of March 2017)
MEMBER MEMBER PRESIDENT
