BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL

Present: Sri.Y.Reddappa Reddy, M.A., L.L.M., President,

And

Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Friday the 8^th day of May, 2015

C.C.No.36/2013

Between:

M.Mohammed Ibrahim,

S/o M.Mohammed Sait,

H.No.25/450-1B-156-A,

Y.S.Nagar, Nandyal-518 501,

Kurnool  District.                                                         …Complainant

                                                        -Vs-

1. The Manager,

    Prani Auto Plaza Private Limited,

    Tata Motors Show Room,

    D.No.2-174, Ponnapuram,

    Beside SPY Petrol Bunk,

    Kurnool Kadapa High Way,

    Nandyal, Kurnool District-518 501.

2. The Manager,

    M/s Tata Motor Finance,

    BV Reddy Plaza,

    D.No.418-B, Beside Srinivasa Complex,

    Kallur Road, Kurnool-518 002.

3. The Managing Director,

    M/s Tata Motor Finance,

    Cyber Tech House,

    1^st Floor, Plot No.B-63-65,

    Road No.21 and 34

    JB Sawant Marg Wagle Estate Thane,

    Mumbai-400 604.                                            …OPPOSITE PARTIES

This complaint is coming on this day for orders in the presence of Sri.P.Siva Sudarshan, Advocate for complainant and opposite party No.1 called absent and set exparte and Sri.Eskala Srinivasulu, Advocate for opposite parties 2 and 3 and upon perusing the material papers on record, the Forum made the following.             

ORDER

(As per Smt. S.Nazeerunnisa, Lady Member)

  C.C. No.36/2013

1.      This complaint is filed under section 12 of Consumer Protection Act, 1986 praying:-

1. To direct the opposite party No.1 to refund the Rs.50,000/- with interest collected by opposite party No.1 towards down payment cost of the vehicle from the complainant.

2. To direct the opposite parties 2 and 3 return the posted dated cheques to the complainant.

3. To direct the opposite parties 1 to 3 to pay a sum of Rs.2,00,000/- towards levely hood loss to the complainant.

4. To direct the opposite parties to refund the amount of Rs.14,398/- collected from complainant towards insurance.

5. To grant a sum of Rs.50,000/- towards mental agony.

And

6. To grant any other relief as the Honourable Forum deems fit and proper in the circumstances of the case.

2.    The case of the complaint in brief runs as follows:- The opposite party No.1 is the dealer of TATA Motors and opposite parties 2 and 3 is the Finance Company.  The complainant purchased Maxi Cab TATA Venture 6+1 Capacity for the vehicle value of Rs.5,24,200/- from opposite party No.1.  On 31.12.2011 the father of complainant paid Rs.40,000/- and on 09.01.2012 paid Rs.10,000/- towards down payment to opposite party No.1.  Opposite parties 2 and 3 arranged Financial Assistance to complainant for purchase of Maxi Cab and collected post dated cheques from the complainant and paid the vehicle amount to opposite party No.2.  The opposite party No.1 insured the vehicle with National Insurance Company as 7 seats capacity vehicle.  But the opposite party handed over the TATA VENTURE GX 8STR BSIII, Lunar Silver Maxi Cab to the complainant.  At the time of Registration, the RTO Authorities stated that it is 8 in seats capacity and collected excess amount tax from the complainant and registered the vehicle bearing No.AP21 TX 0998, RTO, Nandyal.  The complainant informed to all the opposite parties that instead of supply 7 seat capacity vehicle, opposite party No.1 negligently supplied 8 seat capacity vehicle.  The complainant purchased the vehicle for his livelihood but due to negligent attitude of opposite party No.1.  The complainant sustained huge financial loss and opposite parties 2 and 3 staff forcibly seized the vehicle without any notice to the complainant and sold it to some other person.  There is deficiency of service on the part of opposite parties and caused mental agony to complainant and they are liable to pay compensation to the complainant. Hence the complaint.

3.      Opposite party No.1 called absent and set exparte.

          Opposite parties 2 and 3 filed written version stating that the complaint is not maintainable.  There is no cause of action to file this complainant against the opposite parties.  It is submitted that the complainant himself approached the opposite parties to availed financial assistance for purchase a vehicle and these opposite parties explained the terms and conditions of loan agreement to the complainant.  On 31.01.2012 the complainant and one Mr.Shaik Mohammed Salar entered into a loan cum hypothecation cum guarantee agreement bearing No.5000897973 with the opposite parties and purchased a vehicle model bearing No.VENTURE-EX bearing Registration No.AP21 TX 0998.  The said vehicle was financed by these opposite parties and an amount of Rs.5,55,000/- is disbursed and charged interest of Rs.2,35,320/- on the loan amount.  The complainant agreed the same.  The said loan was to be repaid along with interest by way of installment of Rs.17,170/- and 47 EMIs of Rs.16,450/- each on the 2^nd day of every  month, failing of which he has to pay additional interest on the installment  amount under Clause 9 (j) of the loan agreement.  The complainant had been irregular and defaulter in repayments of EMIs on stipulated due dated and not paid  single EMI on 02.09.2012 the outstanding due amount of Rs.1,15,870/-. Despite of repeated requests and reminders the complainant failed to regularize his loan account hence these opposite parties was constrained to terminate the said loan agreement and had issued a pre-repossession cum demand notice dated 05.06.2012.  As the complainant avoided to repay the dues, these opposite parties sent a presale notice dated 29.09.2012.  There was no response from the complainant.  Therefore the vehicle duly valued and sold for Rs.2,70,000/- on 30.10.2012. These opposite parties sustained a total net loss of Rs.3,66,487.25Ps.  As per the terms of loan agreement executed by the complainant and these opposite parties are well within its rights to take repossession of the vehicle and sell it for realization of its legitimate dues.  These opposite parties are no way connected for delivery of 8 seater vehicle, the sale transaction happen between the complainant and opposite party No.1.  There is no deficiency of service on the part of opposite parties 2 and 3.  The complaint is liable to be dismissed.

4.      On behalf of the complainant Ex.A1 to Ex.A7 are marked and sworn affidavit of the complainant is filed.  On behalf of the opposite parties Ex.B1 to Ex.B3 are marked and sworn affidavit of the opposite parties 2 and 3 are filed.

5.      Both sides filed Written Argument.

6.      Now the points that arise for consideration are:

1. Whether there is deficiency of service on the part of opposite parties?

2. Whether the complainant is entitled for the reliefs as prayed for?

3. To what relief?

7.     POINTS i and ii:  It is a case of the complainant that he approached opposite party No.1 for purchase of Maxi Cab TATA Venture 6+1 capacity for the value of Rs.5,24,200/-.  On 31.12.2011, the father of the complainant paid Rs.40,000/- and Rs.10,000/- on 09.01.2012 towards down payment to opposite party No.1.  The photo copies of receipts for the above said amount are marked as Ex.A4 and Ex.A5 dated 31.12.2011 and 09.01.2012.  The opposite party No.1 insured the vehicle with National Insurance Company as 7 seating capacity TATA Venture-GX.  The photo copy of policy bearing No.551000/31/11/6300010018 with its date of commencement from 04.02.2012 to 03.02.2013 is marked as Ex.A2.  The opposite parties 2 and 3 provided financial assistance for purchase of said vehicle.  But the opposite party No.1 handed over the TATA Venture-GX 8STR BSIII, Lunar Silver Maxi Cab to the complainant.  The photo copy of invoice is marked as Ex.A3 dated 09.02.2012.  At the time of Registration the RTO Authorities stated that it is a 8 seating capacity and collected excess tax amount from the complainant and Registered it.  Ex.A1 is the photo copy of Registration Certificate bearing No.AP21 TX 0998. RTO, Nandyal.  The complainant purchased the said vehicle for the purpose of livelihood but due to the negligent attitude of opposite party No.1 it could not plied on the road and sustained huge monetory loss and his mother admitted in hospital for treatment and spent 2 lakhs for treatment.  The complainant informed the same to opposite parties.  Ex.A6 is the photo copy of Temporary Registration Certificate.  But the opposite parties 2 and 3 forcible seized the vehicle with their muscle power.

          It is the case of opposite parties 2 and 3 that on 31.10.2012 the complainant and one Mr.Shaik Mohammed Salar guarantor entered into a loan cum hypothecation cum guarantee agreement bearing No.5000897973 with the opposite parties and availed financial assistances for an amount of Rs.5,55,000/- with interest of Rs.2,35,320/- on loan amount.  The complainant agreed that the loan amount will be repaid by way of installments of Rs.17,170/- and 47 EMIs of Rs.16,450/- each on 2^nd day of every month but he was not paid single EMI and committed default in repayment of amount.  Ex.B1 is the photo copy of loan agreement.  These opposite parties issued notice to the complainant and guarantor dated 05.06.2012 and informed to repay the installments amounts due at Rs.66,520/- computed up to 04.06.2012.  Ex.B3 is the photo copy of notice dated 05.06.2012.  As the complainant did not respond for the said notice, thus opposite parties issued pre-sale notice to the complainant on 29.09.2012 and sold it to some other person for a sum of Rs.2,70,000/- on 30.10.2012.  Ex.B2 is the photo copy of receipt of sale amount dated 30.10.2012 is marked as Ex.B3.  These opposite parties acted under the terms of clause 18 (a) of the loan agreement executed by the complainant and these opposite parties (Ex.B1).  There was no response from the complainant hence the vehicle duly valued and sold for Rs.2,70,000/- on 30.10.2012  and these opposite parties sustained a totally net loss of Rs.3,66,487.25 Ps. There is no deficiency of service on the part of opposite parties 2 and 3.

8.      The learned counsel appearing for the complainant contended that opposite party No.1 delivered 8 seating capacity instead of 7 seating capacity.  The complainant could not plied the vehicle and got huge monetory loss and opposite parties 2 and 3 forcible seized the said vehicle on 31.03.2012 with muscle power.  To support his version he cited a decision of State Commission, Delhi in CC No.29/1998 Shri Anil Bhalla -Vs- Standard Chartered Bank, New Delhi.  In the cited case the Finance Company had taken repossession by force without given any notice to the respondent.  But in the present case on hand the opposite parties 2 and 3 had given notice for repayment of due amount and also given pre-sale notice to the complainant.  As the complainant not responded to the said notices hence the opposite parties sold the said vehicle to some other person.  But the opposite parties 2 and 3 sold it for very low price.  As per the above decision they have to depreciate the value of the said vehicle up to 5% of market value or price of the said vehicle but they sold it for Rs.2,70,000/- is very low price.  Opposite party No.1 is responsible for the consequences which were occurred due to delivery of 8 seating capacity vehicle instead of 7 seating capacity.  Due to the negligent attitude of opposite party No.1. The complainant incurred monetory loss by paying registration fee and insurance amount for the said vehicle. We persued all the material available on record we hold the opinion that there is deficiency of service on the part of opposite party No.1 and caused mental agony to the complainant.  The complainant is entitled for an amount of Rs.10,000/- towards registration charges and for Rs.14,398/- towards insurance amount and further entitled for compensation of Rs.10,000/-  towards mental agony.  The complaint against opposite parties 2 and 3 is dismissed.

9.      In the result the complaint is partly allowed directing the opposite party No.1 to pay an assured amount of Rs.10,000/- towards registration charges and Rs.14,398/- towards insurance amount and compensation of Rs.10,000/- towards mental agony and Rs.2,000/- as costs of the case.  Time for complainant is one month from the date of receipt of this order.  The complaint against opposite parties 2 and 3 is dismissed.

          Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 8^th day of May, 2015.

        Sd/-                                                                        Sd/-

LADY MEMBER                                                          PRESIDENT

   APPENDIX OF EVIDENCE

       Witnesses Examined

For the complainant: Nil                        For the opposite parties: Nil

List of exhibits marked for the complainant:-

Ex.A1         Photo copy of vehicle Registration Certificate dated 24.02.2012.

Ex.A2         Photo copy of Policy bearing No.551000/31/116300010018 issued by National Insurance Company Limited.

Ex.A3         Photo copy of Invoice particulars of the Prani Auto Plaza dated 09.02.2012.         

Ex.A4         Photo copy of Receipt issued by the opposite party No.1 for Rs.10,000/- dated 31.12.2011.

Ex.A5         Photo copy of Receipt issued by the opposite party No.1 for Rs.40,000/- dated 09.01.2012.

Ex.A6         Photo copy of Temporary Registration Certificate (Form C.R. Tem).

Ex.A7         Photo copy of Discharge Summary dated 17.09.2012 issued by Yashoda Hospital, Hyderabad.

List of exhibits marked for the opposite parties:-

Ex.B1         Photo copy of Loan Agreement

Ex.B2         Photo copy of Account Statement

Ex.B3         Photo copy of Legal Notice dated 05.06.2012.                                                                      

        Sd/-                                                                          Sd/-

LADY MEMBER                                                             PRESIDENT

    // Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties:

Copy was made ready on                :

Copy was dispatched on                 :