By. Sri. Ananthakrishnan. P. S, President:
This is a complaint filed under section 12 of the Consumer Protection Act 1986.
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2. The complainant’s case in brief is as follows:- The Complainant had purchased 2006 model Eicher tipper bearing Reg. No.KL-17-D-3650 for Rs.4,75,000/- in the month of 2015 and for this purpose, he availed a loan of Rs.2,57,500/- from the company of Opposite parties with a condition to repay the loan amount within 30 months. But, the complainant was able to remit only 5 installments. Therefore, the Complainant surrendered the vehicle to opposite parties on their demand to sell it in public auction in order to adjust the amount towards the loan. When Opposite Parties took possession of the vehicle, they under took that they will give the balance amount to the Complainant after deducting the loan amount from the amount received in auction. Even then, the opposite parties have not informed about the sale and not given back the balance amount. Instead, they sent a notice to the complainant on 20.02.2017 demanding a huge amount. When the Complainant contacted them, they apologized and told that they sent the notice mistakenly. But, thereafter the opposite parties sent another notice demanding Rs.1,31,691/- as the due up to 30.06.2017. Even though, the Complainant enquired about it, Opposite Parties kept mum. So, there is deficiency in service on the Opposite Parties. Now, the Complainant wants to get the documents of the auction sale of his vehicle from the Opposite Parties. He
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also wants to get the balance amount after deducting the depreciation and the loan amount from Rs.4,75,000/-, the purchase price of the vehicle. He has also sought Rs.25,000/- as compensation for mental and financial loss and Rs.10,000/- as cost. Hence he filed this complaint.
3. The opposite parties filed version contenting as follows:-
This court has no jurisdiction to entertain this complaint because the transaction is based on a commercial loan agreement between a debtor and a creditor. They admitted that the complainant had availed the loan as stated in the complaint. He defaulted the payment of the instalments wilfully. The complainant was aware of the consequences of the non payment of the instalments. The opposite parties are legally entitled to proceed against the complainant to recover the amount by auctioning the vehicle. They admitted that the complainant surrendered the vehicle when he realized that he cannot repay the instalment amount. There is no deficiency in service on the part of the opposite parties. The complainant wants to prolong the payment due and filed this complainant to escape from the liability. The vehicle of the Complainant is very old one and not having high value. At the time of surrendering the vehicle,
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Complainant has given a letter to the company agreeing to sell the vehicle in public auction and to recover the balance amount if any from him. He requested some time to pay the balance amount. But, after surrendering the vehicle, the complainant never contacted the opposite parties. The Opposite Parties sent registered letter to the Complainant and guarantor Unni regarding the auction. The complainant received notice on 22.02.2017 and the guarantor received notice on 27.02.2017. But both of them kept silent till this complaint. The Opposite Parties conducted the auction after publishing in pradeepam daily on 14.03.2017. The Opposite Parties complied all the formalities before the sale. Therefore the Opposite Parties are not bound to compensate the complainant as requested. Hence this complainant is to be dismissed with compensatory cost.
4. On the above contentions, the points raised for consideration are:-
1. Whether there is any deficiency in service on the part of
Opposite Parties. If so, whether the Complainant is entitled to get
anything as claimed?
2. Reliefs and Cost.
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5. The evidence in this case consists of oral testimonies of PW1, OPW1, OPW2 and Ext. A1, A2, Ext.B1 to B8 and Ext.X1 series. Heard both sides.
6. Point No.1:- The case of the Complainant is that he surrendered his vehicle bearing Registration No. KL-17-D-3650 when he defaulted the payment of the instalment of the loan taken from the Opposite Parties and that even then, the Opposite Parties have not informed him about the auction sale and not given back the balance amount as agreed. It is an admitted fact that the complainant availed a loan of Rs.2,57,500/- from the opposite parties and he was unable to pay the instalment amount. Ext.B1 is the copy of the agreement executed between complainant and opposite parties during the loan transaction. It is also an admitted fact that the complainant surrendered the possession of vehicle to the opposite parties. His grievance is that even then, the Opposite Parties have not informed him about the auction sale and they have not given the balance amount to him as agreed. On the other hand, the case of the opposite parties is that they have auctioned the vehicle after complying all the formalities and since, the vehicle is an old one, they have obtained only Rs.1,88,000/-. According to them, the complainant was aware that the vehicle is very old one and at the time of surrendering the vehicle, he was ready to pay the balance amount if any. They
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contended that after surrendering the vehicle, the Complainant never contacted the Opposite Parties.
7. To prove the case of the Complainant, he has given evidence as PW1. To disprove the case of the Complainant, Opposite Parties have examined OPW1 and OPW2. As I already stated, it is an admitted fact that the complainant defaulted the payment and he surrendered the vehicle for auction sale. The only grievance of the complainant is that he has not obtained any information with regard to the auction sale and he has not received any balance amount as agreed. On the other hand, the case of Opposite Parties is that they sold the vehicle in public auction for a meagre amount and thus the Complainant is liable to remit the balance amount. According to them, to get the balance amount, they sent notice to complainant as well as guarantor. Ext.A1 is the copy of the Notice. Ext.A2 is the statement of balance amount sent by Opposite Parties to the Complainant. Ext.B2 to B8 and Ext.X1 series are the documents related to the auction sale. One Kumban Haris has auctioned the vehicle of the Complainant. Ext. B3 is the copy of the details of the vehicle of the Complainant which is sold to Kumban Haris. Ext.B4 is the certificate showing the details of vehicles put in auction on that day.
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It contains the registration number of each vehicles, lot number, reserve price, sold amount, bidder ID and bidder name. Ext. B5 is the Registration Form. Ext. B6 is the customer catalogue which contains full details of the vehicles which were put in auction. Ext. B7 is the list of bidders. Ext. B8 is Equipment Valuation Report of the vehicle of the Complainant. Ext.X1 series contained a copy of Pradeepam daily dated 14.03.2017. It shows that the opposite parties published a notice of auction of vehicles including the vehicle of the complainant. Even though, the complainant contented that he has no knowledge about the auction after he surrendered the vehicle, Ext.A1 would go to show that he has received a notice from Opposite Parties directing him to pay the balance amount. The opposite parties noted in Ext.A1 that if the complainant failed to pay the amount, they will put the vehicle in auction. The specific case of Opposite Parties is that they have sent notice of auction to the complainant and complainant received the notice. Ext.X1 series contained an acknowledgment which shows that the complainant received the notice. PW1 has no case at the time of examination that the signature seen in the acknowledgment is not his signature, even though, he denied his signature in his vakakath. The Complainant has no case that Opposite Parties have not sold the vehicle in public auction. He has no case that the
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auction conducted by Opposite Parties is not proper. He has no case that the Opposite Parties auctioned the vehicle for a meagre amount purposefully to harass the Complainant. He has no case that Opposite Parties are not in good terms with him. His case is that the Opposite Parties never informed him about the auction and they have not given the balance amount as agreed. It is evident that the Complainant had never expected a huge amount in auction, because, before surrendering the vehicle, he has given a letter to opposite parties in which he agreed to remit the balance amount if any after adjusting the auction amount towards his loan transaction. That means, he had knowledge about his liability to pay amount towards the loan transaction even if the auction amount is adjusted. This letter is contained in Ext.X1 series. The Complainant has not denied the contents in this letter and not disputed the signature seen in this letter. So, here there are no materials to show that there is deficiency in service on Opposite parties.
8. Let us assume for the sake of argument that there is deficiency in service on the part of Opposite Parties. Even then, the prayers of the Complainant cannot be allowed. One of the prayers of the complainant is to get the documents
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pertaining to the auction sale. Since the complainant has filed Interlocutory Application to get those documents and the Opposite parties produced those documents, the prayer of the complainant need not be considered. The second prayer of the complainant is that he is entitled to get the balance amount after deducting the depreciation from Rs.4,75,000/- for which he purchased the vehicle. But he has not produced any documents to show the amount for which he purchased the vehicle. So, the questions whether he is entitle to get compensation and cost need not be considered. So on all aspects, it is evident that there is no deficiency in service on the part of opposite parties. Therefore the complainant is not entitled to get any relief.
9. Point No.2:- Since I found Point No.1 against the complainant, the complainant is not entitled to get the relief as prayed for.
In the result, the complaint is dismissed, but without cost.
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Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 24th day of January 2020.
Date of Filing: 11.08.2017.
PRESIDENT :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Jineesh. K. S. Driver.
Witness for the Opposite Parties:-
OPW1. Sunil Kumar. Credit Manager, Shriram Finance Co Ltd,
Sulthan Bathery.
OPW2. Domini Joseph. Sales Manager.
Exhibits for the complainant:
A1. Copy of Letter. Dt:20.02.2017.
A2. Copy of Statement of Account.
X1(Series). Documents related to the auction sale (12 Pages).
Exhibits for the opposite parties:-
B1. Copy of Loan Cum Hypothecation Agreement.
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B2. Authorization Letter. Dt:02.11.2019.
B3. Copy of Letter. Dt:11.11.2019.
B4. Event Certificate.
B5. Copy of Registration Form. Dt:25.02.2017.
B6. Catalogue of Shriram Automall India Private Limited.
B7. Copy of the list of total bidders.
B8. Equipment Valuation Report.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
SENIOR SUPERINTENDENT,
CDRF, WAYANAD.
