IN  THE  CONSUMER  DISPUTES  REDRESSAL  FORUM,  KOLLAM

Dated this the    24^th  day of September 2018

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

       Sri. M.Praveen Kumar,Bsc, LL.B ,Member

   CC.No.177/14

George Mosses                                           :         Complainant

S/o Mossess, residing at 74(9/60)

Lotus,Dhavalakuzhi, Mayyanadu,

Kollam-691303.

[By Adv.Sreeraj.R.Maruthadi]

V/s

1. The Manager                                     :         Opposite parties

         M/s Hinduja Leyland Finance Ltd.

         2^nd Floor,Colours Building

         Kallumthazham Jn

         Kallumthazham P.O, Kollam-691004

2. The Managing Director

         M/s Hinduja Leyland Finance Ltd.

         No.167-169,3rd Floor,Anna Salai

         Saidapet, Chennai-600015

         [By Adv.Renjith C.R & Adv.Sunilkumar.C]

ORDER

E.M.MUHAMMED IBRAHIM , President

          This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows.

1.       The complainant availed financial assistance from the opposite parties to purchase a new autorickshaw which was registered as KL-02-AG-3535.  The said loan amount was repayable within 36 monthly instalments. As per the agreement the complainant is liable to pay  instalment  @ Rs.4740/- up to  20^th instalment and thereafter liable to pay Rs.4440/- and the complainant is expected to repay the loan amount with interest on or before  21.02.14.  It is further alleged that the complainant purchased the autorickshaw by availing the

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loan for the purpose  of earning his livelihood.   However he defaulted some instalments.  Hence the opposite parties illegally repossessed the autorickshaw without complying with any legal formalities.  It was a forceful repossession without giving any notice.  However at the time of  repossessing the vehicle the opposite party assured that on sale of repossessed vehicle set off will be  given for the loan amount outstanding and excess sale price will be refunded to the complainant.  It is further alleged that at the time of repossessing the vehicle the loan amount outstanding was Rs.69000/- and the autorickshaw purchased by the complainant was a brand new one and the resale value of the said vehicle  as per the market rate is Rs.80000/-.  However the opposite parties illegally sold the repossessed autorickshaw  for Rs.10000/-  and  now  claiming  a  huge  amount  from the complainant as arrears of loan.  The above act of the opposite parties is unfair trade practice and deficiency in service.  They acted with ulterior motive to exploit the complainant economically.  By suppressing the actual market rate the opposite parties valued the repossessed autorickshaw  @ Rs.10000/- which is illegal and unfair.  The opposite parties are liable to conduct a fair sale of the repossessed vehicle on the actual market price prevailing considering the fact that it was only less than 2 years old autorickshaw and was only run 25000 km.  The unfair and illegal sale of the repossessed autorickshaw by the opposite parties has caused mental agony apart from  financial loss  to the complainant.  The forceful repossession of the vehicle has deprived of his livelihood and thereby the complainant has sustained heavy loss and harassment and the opposite parties are liable to compensate the complaint for the above loss.  Hence the complaint.

2.       The 1^st opposite party resisted the complaint by filing a detailed written objection of himself and also on behalf of the 2^nd opposite party.  The main contentions in the above written version  are as follows.

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3.       The complaint is not maintainable.  The complainant  has not been properly represented and the same has not been verified in accordance with the provisions of law.  No proper court fee has been paid by the complainant.  The allegations in the complaint would not show that it is a consumer dispute and hence would not fall within the ampite of the provisions of the Consumer Protection Act.

4.       It is further contented that the vehicle hypothecated  by the complainant with the opposite parties is PARINDA  PASSENGER(Three wheelers) and it has no resale value in the market and there was no dealership or service centre for the said vehicle in Kollam.  The complainant and other customers who purchased the above type of vehicle could not run the same properly due to the non availability of spare parts and service centre and for the above reasons the complainant  himself  made  a voluntarily steps to surrender the vehicle before the opposite parties at Kollam.  As an afterthought the complainant filed   the present complaint from the opposite party.   The opposite parties herein submits that the above said vehicle was financed for an amount of Rs.1,59,850/- being the agreement value for a term of 36 months @13%  interest per annum as agreed by the complainant in the Loan Agreement.  The complainant was not regularly paying the instalment as agreed and the total sum of Rs.52049/- was due from him and the complainant was called upon by the opposite parties on several times to make the payment of the dues but the complainant didn’t make the payment by alleging the reason of bad condition of the vehicle and the non-availability of the spare parts.  Thus the complainant approached the office of the opposite party to make necessary arrangements for the surrendering of the vehicle due to the above  reasons.  There is no deficiency in service on the parts of the opposite parties. 

5.       It is further contended that the claim of the complainant that he had defaulted only a few instalments is incorrect and as per the account statement of

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the opposite parties the date of contract is 01.04.2011 and in the seventh month of  2011  itself the complainant defaulted the instalment and in the year 2013 there was no payment on the part of the complainant due to the bad condition of the vehicle.  As per the complainant the vehicle became a burden for him due to the reasons stated by him before the opposite parties.    After surrendering of the  vehicle the opposite parties made all necessary arrangements for getting the vehicle sold under the online auction conducted by the various banks and other finance companies and thus the vehicle was re-sold at Rs.10,000/- and these auctions are according to the procedures and policies prescribed by   the company  officials.    No unfair  trade  practice  has  been  committed  by  the opposite   parties  in the re-sale of the vehicle.   At the  time   of   selling of the vehicle by online procedure, there cannot  be any internal or external  influence by any of the opposite parties.  It cannot be said that the opposite parties should

sell the vehicle with its actual market price.  That can be said only after seeing the wear and tear of the vehicle, availability of the spare parts in the market for the vehicle and after all the availability of the service  centres etc.  The complainant was well aware of the terms  and  conditions stipulated in the loan agreement with regard to  the default and dues and with  regard to the surrendering of the vehicle.  After fulfilling of the conditions mentioned in the loan agreement that the complainant has signed papers with  regard to the surrendering of the vehicle.

6.       It is further contended that there is no cause of action to file the complaint and the relief’s sought  for in the complaint are totally unfounded and no proper court fee had been remitted by the complainant and there is no unfair trade practice  or deficiency of service.  All the procedures for surrendering of the vehicle and post sale surrendering if any amount is due then that should be paid by the complainant himself etc. were instructed to the complainant by the opposite parties and other office staff and agent of the opposite party.  Without

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hearing all these things the complainant himself voluntarily surrendered the vehicle and after one and a half year he came with the complaint  with unclean hands.

7.       In view of the above pleadings the  points that arise for consideration are:-

1. Whether there is any deficiency in service or  unfair trade practice on the side of the opposite parties?
2. Whether the complainant is entitled to get an order declaring the market price of the autorickshaw bearing Reg.No. KL-02-AG-3535 as Rs.80000/- as resale value?
3. Whether the complainant is entitled to get an order directing the opposite parties to refund Rs.11000/- along with  interest as claimed in the complaint?
4. Whether the complainant is entitled to get compensation if so what would be the quantum of compensation to be awarded?
5. Reliefs and costs.

8.       Evidence on the side of the complainant consists of the oral evidence of  PW1 and  Ex.P1 and P2 documents. Evidence on the side of the opposite parties consists of the oral evidence of DW1  and Ext.D1 document.

9.       The learner counsel for the complainant  has filed a notes of  argument.  However the learner counsel for the opposite parties has neither turned up and advanced any argument nor filed any notes of  argument,  though sufficient opportunity was granted for the same.

Point No.1 to 4

10.     For avoiding repetition of discussion of materials these 4 points are considered together.  Admittedly the complainant has availed vehicle loan of Rs.115000/- from the opposite party for the  purchase of autorickshaw and by utilising the above amount the complainant had purchased one  autorickshaw by

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name  PARINDA  PASSENGER(Three wheeler) and hypothecated the vehicle to the opposite parties by agreeing to repay the loan amount by  equal monthly instalments.  Ext.P1 is the tax invoice by which the complainant had purchased KUMAR PARINDA GLX-PASSENGER  autorickshaw  by paying Rs.152000/-.  Ext.P2 is the registration details of the vehicle which would indicate that the said vehicle was registered in the name of the complainant with effect from 18.03.2014  and it was hypothecated to 2^nd opposite party.

11.     The specific case of  the complainant in his complaint is  that  he  has  availed  a  loan  of   Rs.115000/-  from   the   opposite   parties   by   agreeing to repay  Rs.165850/- altogether in 36 monthly instalments including interest and out of which Rs.4740/- per month has to be paid  up to 20^th instalment and thereafter  the complainant  has to pay Rs.4440/- per month for the remaining 16 instalments and the instalment period will end on 21.02.14.  The opposite parties has not disputed nor denied the above statistics.  However the opposite parties would content in paragraph 7 of the written version that  the said vehicle was financed for an amount of Rs.159850/- by agreeing to repay the same with interest @ 13% per annum.  However the opposite parties have not produced neither the original agreement nor the copy of agreement wherein the principal amount, rate of interest and amount of monthly instalments etc are stipulated.  The non production of the agreement by the opposite parties would go against them by virtue of presumption under Section 114(g) of the Indian Evidence Act.  It is pertinent to point out that DW1 who is the Power of Attorney holder of the 1^st opposite party has filed detailed chief affidavit, but he has seen omitted to state regarding the amount  lend as loan to the complainant to purchase the autorickshaw involved in this case.  DW1 has also not  seen stated anything regarding the loan agreement nor regarding  rate of interest agreed between parties.

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12.     According to PW1 the autorickshaw was purchased as per P1 tax invoice wherein the net value of the vehicle is shown as Rs. 1,52,000/- only.  There is no chance of lending more amount than  the value of the vehicle as loan by any finance company.  Usually finance company or bank lending  loan used to lend loan up to 75 or 80%  of the value of the vehicle and the person who availing the loan is expected to bear the remaining amount to purchase the vehicle.  In the circumstance the case advanced by the complainant that the opposite party has lend a loan  of Rs.115000/- by hypothecating the autorickshaw purchased by the complainant and also complainant agreed to repay the amount of Rs.165850/- in 36 monthly instalment is believable and acceptable.

13.     It is an admitted case that the complainant was not regularly paying the instalments as agreed and the total amount due from the complainant as on the date of repossession of  the vehicle was Rs.52,049/-.  According to PW1on 21/02/13 the opposite parties have seized the vehicle from his possession forcefully  and illegally due to his default in payment of the balance amount due by assuring that they will sell the autorickshaw and the sale proceeds  will be given set off to the outstanding loan and the excess amount will be refunded to the complainant.  However they have sold the vehicle for a paltry sum of Rs.10,000/- and thereafter  demanding balance amount  and interest which is not legal and proper.  According to PW1 he purchased the vehicle by spending Rs.1,52,000/- as per Ext.A1 invoice and the vehicle was used only for a period less than 2 years  and played  only for  25000 kms and it would have been fetched Rs.80000/- for such vehicle as per the market rate. But the opposite parties have sold the vehicle for a paltry sum  of Rs.10000/- without giving notice to him.  The complainant would allege foul play in selling the vehicle without giving intimation regarding the sale of the vehicle.

14.     It is true that the  above allegations of the complainant has been denied and disputed by the opposite parties.  According to DW1 the opposite parties

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have not seized the vehicle forcefully.  But the complainant when defaulted payment of instalments informed opposite parties regarding the bad condition of the vehicle and non availability of spare parts for the autorickshaw  by name  PARINDA  PASSENGER and according to the opposite parties  the vehicle was having no resale value in the market since there is no dealership or service centre in Kollam  District and on that reason the complainant himself voluntarily surrendered the vehicle to the  opposite parties.  But when these questions were put to PW1 he denied the above allegations. 

15.     As the complainant is having a very specific case that the vehicle was seized illegally from his possession and sold by the opposite parties behind his back the opposite parties are expected to prove that the repossession and subsequent sale of the vehicle was legal and proper. But they failed. It is a common practice that when the vehicle is seized or surrendered estimated value is being prepared.  But according to DW, estimated value will be prepared only if the vehicle are being seized and if it is surrendered no estimated value of the vehicle has to be prepared.  Even if the contention of  the opposite parties  that  the  vehicle  has been surrendered by the complainant the 1^st opposite party company is expected to prepare the estimated value of the said vehicle.  But in this case no such estimated value has been prepared.  In the circumstance it is clear that no reliable materials are available to ascertain the exact value  of the  PARINDA  PASSENGER autorickshaw which came in the possession of the opposite parties.  However the date of purchase of the vehicle as per Ext.P1 is 18.03.2011.  The vehicle came in the possession of the opposite party on 21.02.13.  In short the vehicle has been used by the complainant for less than 2 years and has only run  25000 km.  It is also brought out in evidence that the complainant has purchased a brand new autorickshaw for Rs.152000/-.  According to DW1 the dealership of the vehicle was closed and no spare parts are available at Kollam and hence the autorickshaw would not fetch the market

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rate of the second hand vehicle considering the depreciation of 2 years.  However there is absolutely no evidence before court to show that dealership of the vehicle  was closed and no spare parts are available at Kollam district.  Even if the company has stopped the production of the autorickshaw and stopped the dealership there is chance of getting spare parts at least for 5 more years from the date of stopping the production of the vehicle.  In the circumstance the version of DW1 that as the production has been stopped and spare parts  are not available, the vehicle fetched only Rs.10000/- is not believable and acceptable at all.

16.     It is further  to be pointed out that though the complainant would claim that there is foul play in the sale of the vehicle repossessed by the opposite parties. However the opposite parties have not adduced any documentary evidence to show that they have duly sold the vehicle by complying with the principles of natural justice.  If the repossessed vehicle is intended to be sold in public auction that fact should be intimated to the defaulter in writing.  Date of auction should be fixed and published in news paper and also should be intimated  that fact to the complainant in writing so as to give an opportunity to  the complainant to  appear and participated in auction and to see that the vehicle was sold for a reasonable price.  If the notice of the auction has been intimated to the defaulter he will get an opportunity to arrange intending buyers to participate in the auction and in such event there must be competition in the auction and substantially good price will be offered in the auction.  However the opposite parties have no case on that they have fixed the date of auction and published the same in the newspaper nor intimated the date of auction to the defaulter /complainant so as to participate in the auction.  According to DW1,  E-auction was conducted and even according to DW1 no written notice of auction was given to the complainant.  In the circumstance it is clear that the auction was conducted without intimating the fact to the complainant/ defaulter

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and therefore the case of the complainant that the opposite parties have committed foul play in the sale of the repossessed vehicle and the alleged sale is not legal and proper and the vehicle would have fetched more price is believable  and acceptable. It is true that there is no materials before this  Forum to ascertain the exact price for which  the vehicle was sold in  auction. However in view of the facts and circumstance discussed above and also on the basis of the age and depreciation of the vehicle we are of the view that  the vehicle would have fetched for Rs.80000/-  as on the date of conducting auction as claimed   by  the  complainant.   Therefore  we  are  inclined  to  hold  that  the complainant is entitled to get back the balance amount after giving set off to the amount due from  the opposite parties towards the balance  instalment and its interest.  It is further to be pointed out that even if any lesser amount is received during the illegal sale of the vehicle  without due  notice to the  owner/defaulter of the vehicle, the opposite parties are not expected to realise any more amount from the defaulter.  When the vehicle is repossessed without notice and sold and disposed off without giving due notice to the defaulter the entire liability of the complainant is exhausted and the opposite parties are not expected the claim any more amount from the complainant/defaulter towards the loan transactions. In the circumstance there is clear deficiency in service on the part of the opposite parties.

17.     The complainant would further alleged that as the opposite parties have illegally seized and sold the vehicle for a paltry sum he has  sustained  heavy monitory loss and also mental agony and he seeks compensation for the same.  As it is clear that the repossession and sale of the  repossessed autorickshaw belongs to the complainant  is not legal and proper,  there is clear unfair trade practice on the part of the opposite parties and there is every chance of financial loss, mental agony and sufferings to the complainant as claimed by him.  Hence  he is entitled to get compensation for the same.  Considering the fact and

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circumstance of the  case we are of the view that Rs.10000/- will be reasonable and sufficient  compensation of Rs.5000/- will be adequate costs of the complainant.  Points answered accordingly.

Points No.5

     In the result the complaint stands allowed in the following  terms.

1.  Resale value of the autorickshaw bearing No.KL 02 AG 3535 repossessed from the complainant has been declared as Rs.80000/-
2. The opposite parties are directed to refund Rs.11000/- after adjusting the above sale proceeds of Rs.80000/- towards the amount of Rs.69000/- due from the complainant in the loan transaction.
3. The opposite parties are also directed to pay Rs.10000/- as compensation and Rs.5000/- as costs of the  proceedings to the complainant within 45 days from today failing which the complainant is entitled to realise the said amount of Rs.11000+10000 with interest @ 12% per annum from the date of complaint till realisation along with costs Rs.5000/- from the opposite parties No.1and 2 jointly and severally and from  their assets. under Section 25 and also entitled to proceed against them under Section 27 of the Consumer Protection Act.

Dictated to the  Confidential Assistant  Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  24^th   day of  September  2018.

E.M.Muhammed Ibrahim:Sd/-

M.Praveen Kumar: Sd/-

Forwarded/by Order

SENIOR SUPERINTENDENT

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INDEX

Witnesses Examined for the Complainant:-

PW1                     :         George Mossess

Documents marked for the  complainant

Ext.P1                  :         Tax Invoice

Ext.P2                  :         Copy of  registration details

Witness examined for the opposite party:-

DW1                    :         Shajimon.S.S

Documents marked for the opposite party

Ext.D1                 :         Special Power of Attorney

E.M.Muhammed Ibrahim:Sd/-

                                                                                     M.Praveen Kumar:Sd/-

                                                                                   Forwarded/by Order

                                                                                  SENIOR SUPERINTENDENT