BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BELLARY

C.C.No.164 of 2013

Present :-  

  (1)   Shri. R.Bandachar,

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

                                                                                            (in-charge)

  (2) Smt Mary Havila,

                                          B.A.                       ……        Member

DATED THIS THE 05th DAY OF FEBRUARY 2015  

//ORDER//

Per Shri R Bandachar    

          The complainant filed the complaint against the respondents U/Sec-12 of the Consumer Protection Act 1986.   

               2.  The brief facts of the case are that the complainant is the owner of mini lorry of 407 with capacity of 3 ½ tons which was financed by the respondent no.2 and 3 on 22-03-2007 and insured the same with the respondent no.1’s insurance company by paying the premium through the respondent no.2 and 3 which was collected from the complainant.  The respondent no.2 is the only sole person to insure the vehicle of the complainant with the insurance company.  The life tax of the vehicle was also paid by the complainant.   The complainant discharged all the installment amounts regularly towards hypothecation loan.   The complainant availed second hypothecation loan in the year 2008 from the respondent no.2.  The second hypothecation was not recorded in the Registration Certificate.  Only on the first hypothecation the transaction continued.  In July 2011 third hypothecation was sanctioned by the respondent no.2 after clearing installments with overdue interest of second hypothecation.  The respondent no.1 has given legal notice to the complainant in the month of May-2013 which is received by the complainant on 06-06-2013.    The complainant replied to the said notice.  In spite of clearing of all dues, the respondent no.2 has not returned the blank cheques given by the complainant.  On 15-03-2012 at 1.30 am when the complainant while going from Bellary to Byadigi near Gadiganur Police Station one lorry hit on the back side of the complainant’s vehicle as such the vehicle of the complainant tilted and fell down without stopping.  Due to the said accident the complainant suffered minor injuries and became handicapped and spent Rs.1,00,000/- towards medical expenses.   The officials of the respondent no.2 and 3 have come and taken away the vehicle of the complainant without informing when they have sold it and what was the price and to what extent the amount was adjusted to his loan account.  The respondent no.2 and 3 have not taken written consent from the complainant before selling the vehicle.  The respondent no.1 has not taken steps to repair the vehicle as the policy was in force as on the date of the accident.   The act of the respondents amounts to deficiency in service.  Therefore, the complaint.   

                3.   The respondent no.1 filed the written version stating that the complaint is not maintainable either in law or on facts.  All the allegations made in the complaint, except those which are expressly admitted, are denied. The complainant has no cause of action to file the complaint as he was not the registered owner as on the date of the complaint. The complainant has insured lorry bearing Regn.No.KA-28/4127 vide policy bearing No.10003/31/12/098484 valid from 28-06-2011 to 27-06-2012 and the policy issued is subject to the terms and conditions and with provisions of the M V Act which are binding on both parties.  The complainant who was driving the said vehicle on 15-03-2012 was not holding a valid and effective Driving License to drive the said vehicle and thereby violated the terms and conditions of the policy more particularly at Driver’s clause.  The said vehicle does not have any valid permit to ply on public road. Without giving any intimation and complying with mandatory requirements the claim of the complainant is untenable.  There is no deficiency in service on the part of the respondent no.1.  Therefore, the complaint be dismissed.     

        4.   The respondent no.2 and 3 filed the written version stating that the all the allegations made in the complaint are all false, frivolous and vexatious.  The relief sought for by the complainant for recovery of amount with interest and such relief must be relegated before the civil court and not the Consumer Forum as the complaint is involved with complicated question of law and facts and it requires voluminous evidence.  The complainant has borrowed a loan from the respondent no.2 and 3’s financial institution to purchase 2007 model TATA 407 goods vehicle bearing Regn.No.KA-28/4127 by executing loan cum hypothecation agreement in favour of the respondent no.2.  In view of the availment of loan from the respondent no.2’s financial institution, the complainant is a borrower and the loan availed by the complainant is a commercial one.  Therefore, the borrower is not a consumer within the meaning of Sec-2(1)(d) of the C P Act.   The allegations made in para-1 to 31 of the complaint are denied.  As per the terms of the agreement, the complainant is liable to pay delayed payment charges.  The complainant subsequently cannot raise his voice contrary to the agreement which is voluntarily executed by him.  On 08-3-2011 the complainant borrowed loan of Rs.1,20,000/-  and agreed for  interest  @ 17.43% totally Rs.1,72,309/- to be paid to the respondent no.2.  The complainant has agreed and undertaken to pay delayed payment charges @ 3% per month as liquidated damages.  The complainant has not bothered to reply to the notices dated: 12-11-2011 and 15-01-2012.  Therefore, having no option the respondent no.2 reposed the vehicle with due intimation to the complainant and sold the same to one Mr. Kariyappa Y on 24-12-2013 for Rs.85,000/-.  After appropriation of sale amount to the account of the complainant, the due amount payable by the complainant is Rs.1,09,600/-.  The respondent no.2 has issued arbitration notice to the complainant on 29-05-2013. After receipt of the said notice, the complainant filed the complaint.   There is no deficiency in service on the part of the respondent no.2 and 3.  The complainant is not entitled for any reliefs.  Therefore, the complaint be dismissed against the respondent no.2 and 3.   

          5.  The complainant to prove his case, as his evidence, filed his affidavit, which is marked as P.W.1 and got marked 16 documents as Ex.P.1 to Ex.P.16. The respondents to prove their case, filed two affidavits, which are marked as R.W.1 and R.w.2 and got marked 11 documents as Ex.R.1 to Ex.R.11. 

                 6.  The written arguments are filed by the complainant as well as by the respondents.    

1. The points that arise for our consideration are;

    

    

    

2. Whether the complainant has proved deficiency in

    

                       service on the part of the respondents towards him?

    

    

               2.  Whether the complainant is entitled for the reliefs    

                    prayed for in the complaint?                                     

    

3. What order?

    

                   8.     The findings on the above points are as under.

               Point No.1:    In the negative.         

               Point No.2:    In the negative.   

               Point No.3:    As per final order.

// REASONS //

Point No.1:- 

                 9.   There is no dispute that the respondent no.2 and 3 are the financiers to the vehicle of the complainant and the respondent no.1 is the insurer of the said vehicle.    There is also no dispute that the policy was in force as on the date of the accident.     

               10. It is the case of the complainant that on 15-03-2012 at 1.30 am when he was while going from Bellary to Byadigi, near Gadiganur Police Station, one lorry hit on the back side of the complainant’s vehicle as such the vehicle of the complainant tilted and fell down and due to the said accident the complainant suffered minor injuries and became handicapped and spent Rs.1,00,000/- towards medical expenses.   It is the further case of the complainant that even though he had paid entire installments, the officials of the respondent no.2 and 3 have come and taken away the vehicle of the complainant without informing him when they have sold it and what was the price and to what extent the amount was adjusted to his loan account and they have not taken written consent from the complainant before selling the vehicle to others and the respondent no.1 has not taken steps to repair the vehicle as the policy was in force as on the date of the accident. 

            11.  The respondent no.1 contended that the policy issued is subject to the terms and conditions and with provisions of the M V Act  and the complainant who was driving the said vehicle as on 15-03-2012 was not holding a valid and effective Driving License to drive it and thereby willfully violated the terms and conditions of the policy and  the said vehicle does not have any valid permit to ply on public road.  Further the respondent no.1 contended that without giving any intimation and complying with mandatory requirements the claim of the complainant is untenable and therefore, there is no deficiency in service on the part of the respondent no.1. 

            12.   The respondent no.2 and 3 contended that the complainant has borrowed loan on  08-3-2011 and agreed interest to be paid to the respondent no.2 on loan amount of Rs.1,20,000/-,  interest @ 17.43% p.a. Rs.52,309/-, totally Rs.1,72,309/- and the complainant has agreed and undertaken to pay delayed payment charges @ 3% per month as liquidated damages. Further it is contended that the complainant has not bothered to reply to the notices dated: 12-11-2011 and 15-01-2012 as such having no option  the respondent no.2 reposed the vehicle with due intimation to the complainant and sold the same to one               Mr. Kariyappa Y on 24-12-2013 for Rs.85,000/- and after appropriation of sale amount to the account of the complainant, the due amount payable by the complainant is Rs.1,09,600/-. Therefore, the respondent no.2 has issued arbitration notice to the complainant on 29-05-2013. After receipt of the said notice, the complainant filed the complaint as such there is no deficiency in service on the part of the respondent no.2 and 3.     

                 13.   On the basis of the rival contentions raised by both parties, we have gone through the documents produced by both parties.  First of all the complainant has not produced any documents to show that he had paid entire installments due to the respondent no.2 and 3. Further the complainant has also not produced the receipts to show that he had paid the installments regularly.   As per Ex.P.15 the respondent no.2 and 3 have sent a letter to the complainant and informed him that to remit the arrears due Rs.37,932/- along with delayed payment charges and on failure to pay the same they would be forced to take appropriate action against him.  The said Ex.P.15 is dated: 15/01/2012.  It is means the said Ex.P.15 is issued to the complainant before selling the vehicle to others. Further the complainant has also not informed the alleged accident in writing immediately to the respondent no.1’s insurance company as he is the insured to the vehicle involved in the alleged accident.   The said condition is found on Ex.P.1 which is produced by the complainant himself.  Therefore, the complainant has violated the terms and conditions of the policy, as rightly contended by the respondent no.1.   In this regard, the counsel for the respondent no.1 relied on unreported decision of Hon’ble National Consumer Disputes Redressal Commission rendered in Revision Petition No.3864/2012 and 2982/2012. 

            14.  In support of their contention that the complaint is not maintainable between borrower and financier, the financier’s prior notice need not be issued to seize the vehicle if there is any default in payment of loan amount, vehicle can be repossessed and sold in case of default in repayment of loan amount and under hire purchase agreement – dispute relating to account between the parties – not a consumer dispute and not adjudicable by the Forum, the respondent no.2 and 3 relied on the decisions reported in 1995 (3) CPR 93, I (1993) CPR 392, 2013(2) CPR 448 (NC), II (2005)CPJ 491, I (2008) CPJ 121 (NC), 2012(1) CPR 295, 2013(1) CPR 558 (NC), 2012(1) CPR 197 (NC), 2012(3) CPR 89, 2013(1) CPR 351 (NC) and 2013(1) CPR 151 (NC) and the said decisions are applicable the facts of this case. 

            15.  Considering all the aspects discussed above, the complainant has failed to prove deficiency in service on the part of the respondents.  Accordingly, we answer this point in the negative.   

Point No.2:-

            16.    As the complainant has failed to prove deficiency in service on the part of the respondents, he is not entitled for any reliefs as prayed for.   Accordingly, this point is answered in the negative.

Point No.3: -

17. In view of the discussions made under Point No.1 and 2, we pass the following; 

//ORDER//

The complaint filed by the complainant is dismissed. 

 No order as to costs. 

Inform the parties accordingly.