Date of filing : 24-12-2009
Date of order : 03-02-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
C.C. 278/2009
Dated this, the 3rd day of February 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
Basheer.P.M,
Mujeed Manzil, Rahmath Nagar, } Complainant
Po.Shribagilu, Kasaragod.
(Adv.A.B.Nair, Kasaragod)
1. The Manager, } Opposite parties
T.V.S. Finance & Service Ltd,
Near Complex, IInd Floor,
Mavoor Road, Kozhikode.
(Adv. P.Nandakumar, Thalassery)
2. The Manager,
T.V.S. Finance & Service Ltd,
Shop No.48, Singapore Shopping Complex,
Opp. IBP Petrol Pump, Nullippady, Kasaragod.
(Ex-parte)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
Complainant availed a loan from opposite party No.1 through opposite party No.2 to purchase the motorcycle TVS Victor GLX. The price of the vehicle was `38,940/- and the loan amount was `24,000/-. The balance `15,000/- remitted by the complainant at the time of purchase. The Equated Monthly Instalment fixed was `1,513/-. Complainant also issued 35 signed blank cheque leaves drawn on post office branch in Kasaragod HPO. As per the conditions the opposite party should have remitted the Insurance Premium but they did not remit the premium for the year 2009. Hence there was a dispute and the complainant did not remit the EMI’s for the period Oct 2009. Thereafter without issuing any notice and without initiating any legal proceedings and without any order of any court of law seized the vehicle by using goons on 6-11-2009. At the time of repossession the motorcycle was in good running condition and its market value was more than `30,000/-. Complainant lost `38,000/- due to the illegal seizure of the vehicle. Hence the complaint.
2. In response to the notices issued by registered post opposite party No.2 remained absent through they received the notice. Hence opposite party No.2 had to be set exparte. Opposite party No.1 filed version.
3. According to opposite party No.1 the loan amount and the amount remitted by the complainant as stated in the complaint is not correct. Opposite party No.1 is liable to pay the insurance premium only if the borrower pays the amount regularly without any default. Complainant was a regular defaulter in paying EMI’s. The complainant paid only `22,634/- towards the loan till 10-05-2009. As per the terms and conditions of the agreement in case of any default in payment of the instalments, company is entitled to repossess the vehicle. The agreement shall terminate only on repayment or upon termination of the agreement by the company. The complainant was never asked to pay 35000/- to return the vehicle. Since there is naked violation of the hypothecation agreement, the complainant is not entitled for any relief claimed in the complainant and therefore the complaint is liable to be dismissed.
4. Complainant filed proof affidavit reiterating what is stated in the complaint. Exts A1 to A9 marked. On behalf of opposite party No.1 counter affidavit filed by Hari, Manager of TVS Finance Service Ltd repeating that is stated in the version. Exts B1 to B5 marked. Both sides heard. Documents perused.
5. Ext.A1 is the Xerox copy of the vehicle service invoice dated 14-2-2007. As per which a TVS Victor GLX motor cycle is sold to complainant. The total value is shown as 38940/-. Ext.A2 is the copy of the Savings Bank Pass Book of Kasaragod Post Office maintained by the complainant. The particulars of transaction shows that the complainant was maintaining sufficient amount `1,513/- every month to honor the cheques present for collection till 14-5-09. Ext.A3 to A6 are the copy of receipts issued by opposite party No.1 to complainant evidencing the receipt of monthly EMI’s. Exts A7 to A9 are the copies of statutory legal notices issued U/s 138 of NI Act against the complainant due to the dishonor of cheques for the reason funds insufficient.
6. According to complainant the sale price of the motorcycle was `38,940/- which is supported by Ext.A1. But it is seen in Ext.A1 that a sum of `4,500/- is seen deducted as RMP offer. It shows that complainant purchased the bike under a scheme facilitated by RMP. But according to complainant the finance amount was `24,000/- and he remitted `15000/- towards the balance of the purchase price. No document is produced to show that he remitted `15000/- in advance. Therefore we are unable to accept this contention. According to opposite party No.1 the finance amount is `40,000/- and not `24,000/- as stated by the complainant. Exts B1, B2 and B4, B5 documents also show that the amount financed is ``40,000/-.
7. According to opposite parties complainant ought to have remitted the amount financed i.e. `40,000/-with interest in 35 EMI’s (Equated Monthly Instalments). But the complainant remitted instalments up to 10-05-2009 and the total remittance was `22,634/-. According to complainant he stopped payment in Oct 2009 due to the dispute regarding the payment of insurance premium. But no documents is produced to show that he remitted EMI’s up to Oct.2009 in due course. Where on Ext.A2 pass book shows that the payment stopped in May 2009 itself.
8. Therefore it is clear that the complainant was not prompt or regular in paying the monthly instalments and the allegation regarding the dispute of non-payment of insurance premium is only a lame excuse put forwarded to justify the non-payment of monthly instalments.
9. Another important part to be noted here is the discrepancy in the sale price shown in sale invoice of the vehicle produced by both parties. Ext.A1 is the Photostat copy of the sales invoice dated 14-2-2007 issued from Naman’s Motors to complainant. There the purchase value of the vehicle is shown as `39,113/-. But Ext.B3 is the original sales invoice produced by opposite parties in which the price of the vehicle is shown as `43,440/-. On a close comparison of Exts A1 & B3 it is seen that some additions are made in Ext.A1. Further in the complaint also complainant has no case that he purchased the motorcycle under any scheme facilitated by RMP. Hence no reliance can be placed on Ext.A1. Therefore we hold that the price of the vehicle is `43,440/- as evidenced in Ext.B3.
10. The specific case of the complainant is that his motorcycle has been re-possessed by the opposite parties using goons. Eventhough complainant has not produced any documents such as copy of the complainant lodged before the police or before criminal court or copy of FIR etc to substantiate the said case, we accept it because the said allegation has not denied by opposite parties in their version. Their silence in this regard amounts to admission and therefore it is clear that 1st opposite party seized the vehicle from the lawful custody of the complainant illegally. The said act amounts to deficiency in service. Therefore opposite party is liable to compensate the complainant for the loss & hardships suffered by him.
11. The 1st opposite party has no case that the motorcycle repossessed by them from the complainant is sold to any third party. Therefore it can be presumed that they are still in possession of the vehicle. Therefore the complainant is entitled to get back the motorcycle which is seized by the goons of opposite parties on 6-11-2009.
12. Therefore the complaint is allowed and opposite parties directed to return the motorcycle (TVS Victor GLX) bearing Reg. No. KL-14/G 2504 to the complainant in the same condition when it was repossessed and on receipt of the vehicle complainant shall pay the remaining instalments. Opposite parties are further directed to reschedule the remaining instalments after deducting `22,634/-. But without adding any additional finance charges or overdue interest. The fresh schedule of chart shall come into force with effect from the date of return of the motorcycle to the complainant.
In case of inability to return the motorcycle then opposite parties shall refund `22,634/- to the complainant that he remitted to the opposite parties. There is no order as to costs. Time for compliance is limited to 30 days from the date of receipt of copy of the order.
Sd/- Sd/-
MEMBER PRESIDENT
Exts.
A1.14-02-07 copy of vehicle sales invoice.
A2. Copy of pass book A/c. 333277.
A3.9-5-08 copy of receipt
A4. 19-05-08 copy of receipt.
A5. 28-06-07 copy of receipt
A6. 25-01-08 copy of receipt.
A7. 1-09-08 copy of letter.
A8.5-11- 09 copy of letter.
A9. 30-11-09 copy of letter.
B1. Photocopy of Statement of Account-KE 27009457
B2.Application of Basheer.P.A.
B3.Vehicles Sales Invoice. 16-2-2007.
B4. Loan Cum Hypothecation Agreement.
Sd/- Sd/-
MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
