By: Smt. R.K.Madanavally, Member
Brief Facts
The complainant was the R.C. Owner of the vehicle bearing No. KL-7-BB-6785. On 7.4.2010, he had availed a loan which will come around Rs.475000/- including interest for a total period of 42 months. He had purchased the above vehicle from one Mr. Dilshad.
After paying some installments, the vehicle met with an accident and he could not ply the vehicle and so defaulted the installments. Mean while the RC was transferred in the name of the complainant and the same was taken by the opposite party No.1. The complainant requested the same to opposite party No.1 and they were not ready to return the RC. After repeated requests, the opposite party rescheduled the loan amount ie Rs.4,75000/- during the period of 2011. It was scheduled for a period of 36 monthly installments.
Thereafter, in 2012 March, the 1st opposite party illegally re-possessed the vehicle without any notice. After that, a notice was received by the complainant from opposite party No.1 directing him to pay an amount of Rs.267773/-. The complainant estimates the value of the vehicle at Rs.500000/-. According to the complainant, after the March 2012, the opposite party had taken the income from the vehicle. The documents, blank cheque leaves, blank signed agreement executed and produced before the opposite party No.1 at the time of availing the loan were not returned to the complainant so far. All the acts of the opposite parties amounts to deficiency in service and hence caused this complaint.
The opposite parties appeared and filed version. The contesting opposite party ie the opposite party No.1 denied the averements in the complaint. The availing of the loan was admitted but the accident sustained to the vehicle, the regular payments of the installments, the illegal re – possession of the vehicle, the value of the vehicle and the production of blank cheque leaves and blank signed agreement etc. were totally denied by the opposite party No.1.
According to opposite party No.1, the complainant was a chronic defaulter and a huge amount was due to them from the complainant. As on 30-10-2012, an amount of Rs.2,67,773/- was due to opposite party. Now the opposite party No.1 is the owner of the vehicle and they can very well exercise their loan over their property. The complainant had suppressed the material facts and no deficiency was committed by the opposite party No.1.
Now the issues arises for our consideration here in are;
(1) Whether the opposite parties are deficient in their service
(2) If so relief and cost.
Point No.1
The complainant was examined as Pw1 and Ext. A1 to A4 series were marked on the side of the complainant. Ext. A1 is the photo copy of the RC bearing Reg. No.KL-7 BB-6785. Ext. A2 is the photo copy of the cheque No.673736. Ext. A3 is the photo copies of the four cheques of the complainant and Ext. A4 (series) are the receipts issued by the opposite party No.1 infavour of the complainant which are 12 in numbers. The documents of opposite party No.1 are marked as Ext. B1 to B5. Ext. B1 is the Arbitration Award against the complainant, Ext. B2 and B3 are the postal receipts and acknowledgment card respectively Ext B4 is the certified copy of the order in OP 94/13, Dist. Court, Manjeri and Ext. B5 is the copy of the execution petition filed before District Court, Manjeri.
The complainant is praying for directing the opposite party to give back the vehicle to him and restrain the opposite party from creating concocted documents. According to opposite party, the complainant was a Chronic defaulter and as on 30/10/12 an amount of Rs.267773/- was due towards them. Now the execution proceedings are pending in Dist. Court Manjeri where in the auction proceedings are going on As per Ext. A4 series, an amount of Rs. 233851/- was paid by the complainant towards the loan. According to the opposite party No.1, the loan amount was Rs.475000/-. The finance charges including the interest agreed by both parties to the agreement were 2,06625/-. So the total agreement value was Rs.6,81,625/- repayable within 36 monthly installments.
The loan cum hypothetication agreement was not produced by either parties. A detailed account statement was also not produced. On perusal of the Ext. B1 to B5 documents , it is admittedly true that the auction proceeding of the property belonged to the complainant is being processed. So also it is submitted that the vehicle was sold. No single piece of evidence was adduced by opposite party No.1 to prove the sale except the oral submission. No document is produced to show that opposite party No.1 had intimated the sale proceedings to the complainant either orally or in writing. So without giving the proper notice to the complainant, the sales proceedings were conducted. It is a deficiency in service on the part of the opposite party. The prayer of the complainant cannot be granted since the vehicle is sold and execution proceedings were pending. So we feel that it is better to direct the 1st opposite party to pay the amount paid by the complainant . Since the value of the vehicle is not shown we pressumed that Rs.500000/- will come as the market value of the vehicle other wise the opposite party ought not had given Rs.475000/- as the loan amount. Hence we answered the 1st point accordingly.
Point No.2
In view of the above discussion we direct the opposite parties.
(1) To pay Rs.233851/- which was remitted by the complainant towards the loan as per Ext. A4 (series)
(2) The opposite party No.2 shall return the entire documents including the signed cheques to the complainant. They shall not misuse the documents directly or indirectly.
(3) The opposite parties shall further pay Rs.10,000/- as compensation and a cost of Rs.5000/- to the complainant. This order shall be complied with in one month from the date of receipt of the copy of this order, failing which opposite party No.1 shall pay with 9% interest upon the above amount from the date of pronouncement of this order till realization.
Dated this 20th day of April, 2016
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : PW1
PW1 : Complainant, Ashraf
Documents marked on the side of the complainant : Ext.A1to A4
Ext.A1 : Photo copy of RC bearing vehicle No. KL7- BB- 6785
Ext.A2 : Photo copy of Cheque bearing No.673736
Ext A3 : Photo copies of 4 cheques belongs to the complainant.
Ext A4(s) : Receipts issued by opposite party.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B
Ext.B1 : Arbitration award against the complainant.
Ext.B2 : Postal receipts and acknowledgment card
Ext.B3 : Certified copy of the case No. OP 94/13 in District Court Manjeri.
Ext.B4 : Auction proceedings
Ext.B5 :
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
