DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 18th day of March, 2024.
PRESENT : SRI VINAY MENON .V, PRESIDENT.
: SMT. VIDYA.A., MEMBER.
: SRI. KRISHNANKUTTY N .K, MEMBER.
Date of filing: 23.03.2021.
CC/58/2021
Hakeem, aged 42 years, - Complainant
Abdul Asees, 11/320,
Peeliyod Veedu, Pattanchery,
Palakkad-678 532.
(By Adv.Kamesh.J)
Vs
1. The Manager, -Opposite Parties
Mahindra & Mahindra Financial Services,
Ltd., Thrikkakara PO,
Kakkanad, Kochin.
2. The Branch Manager,
Maheendra & Maheendra Financial Services Ltd.,
T.M.Complex, Chandranagar,
Palakkad.
(OPs 1&2 by Adv. Viju K.Raphel)
3. The Branch Manager,
Grand Hyundai, 2/804.
2nd Mail, Kallekkad,
Ottappalm Road, Palakkad.
(OP3-Ex-parte)
ORDER
BY SMT. VIDYA.A., MEMBER.
1. Pleadings of the complainant in brief
The complainant purchased a ‘Hyundai Santro GL F/L BS IV’ model car from the 3rd opposite party with the financial assistance of the 1st and 2nd opposite parties. As per their loan agreement dated 28.11.2020, the 1st and 2nd opposite parties transferred the loan amount to the 3rd opposite party’s account. At the time of delivery of the vehicle, the 3rd opposite party had given only one key to the complainant. When the complainant asked for the spare key, the 3rd opposite informed him that since the vehicle is under hypothecation with the 1st and 2nd opposite parties, the spare key should be given to them. On enquiry, the 1st and 2nd opposite parties assured to return the key on payment of entire loan amount.
After closing the loan, when the complainant approached the 1st and the 2nd opposite parties for the spare key, they told that the key is with the 3rd opposite party. But the 3rd opposite party had showed him their register mentioning the handing over of spare key to the 1st and 2nd opposite parties at the time of delivery. The complainant took photograph of the register and showed it to the 1st and the 2nd opposite parties. After inspection, they informed him that the spare key is irrecoverable lost from their custody. The irresponsible conduct of the opposite parties in not giving the spare key to the complainant after the closure of the loan amounts to deficiency in service. As per the 3rd opposite party, the only solution is to replace the entire lock system which costs around Rs.32,000/-.
The opposite parties are bound to return the spare key to the complainant or they have to replace the entire lock system at their own cost. The acts of the opposite parties had caused mental agony and financial loss to the complainant. So, he approached the Commission with the following prayers.
1) To direct the opposite parties to replace the locking system of complainant’s vehicle with original quality or in the alternative to pay its cost together with charge for replacing which amounts to Rs.40,000/- with 12% interest and
2) To pay Rs.50,000/- as compensation for the mental agony, financial loss and other inconveniences suffered by the complainant and to pay the cost of the litigation.
2. After admitting the complaint, notices were issued the opposite parties. The 1st and the 2nd opposite parties entered appearance and filed version. The 3rd opposite party appeared and filed a statement.
3. The 1st and the 2nd opposite parties in their version contended that the opposite party company is a nonbanking financial service company functioning under the regulations of the RBI. The opposite parties admit that they agreed to finance the purchase of the Hyundai Santro car by the complainant from the 3rd opposite party and a loan agreement was executed between the complainant and the 1st opposite party.
These opposite parties never collected spare key of the complainant from the 3rd opposite party as alleged by him. The opposite parties denied the entire allegations made by the complainant. The complainant was a chronic defaulter of the loan and when the opposite parties issued notice, the complainant filed a suit as OS.No.294/2015 before the Hon’ble Munsiff Court, Palakkad seeking injunction restraining the opposite parties from taking possession of the hypothecated vehicle. The opposite parties filed counter statement and arbitration proceedings were initiated against the complainant for the loan amount defaulted. An award was passed against the complainant and in the execution proceedings, a settlement was arrived between the parties and full satisfaction of the loan amount was recorded by the Hon’ble District Court, Palakkad. The complainant filed this complaint inorder to take vengeance against the opposite parties.
The Commission lacks jurisdiction to entertain the complaint since both parties have agreed to confer exclusive jurisdiction to Mumbai courts in respect of any matters, claims or disputes arising out of the loan agreement. Further, Section 8 of the Arbitration and Conciliation Act is a bar on the proceedings before any Judicial Authority before which an action is brought in matter that is the subject of arbitration agreement.
There is no cause of action for the complainant to file this complaint and no deficiency in service on the part of the opposite parties. Hence, the complaint has to be dismissed with their cost.
4. The 3rd opposite party filed a statement to the effect that they are authorised dealer of Hyundai car and they have handed over the vehicle on receipt of 100% payment to the customer (complainant) as per the instruction from the financier M/s. Mahindra and Mahiindra Financial Service Ltd. Duplicate key along with other relevant documents were handed over to the financier in the presence of the customer and it was acknowledged by them.
5. From the pleadings of both parties, the following points arise for consideration.
1) Whether the contractual terms regarding confining of territorial jurisdiction of courts to Mumbai, bars jurisdiction of this Commission?
2) Whether Arbitration clause bars jurisdiction of this Commission?
3) Whether opposite parties 1, 2 or 3 are in possession of the complainant’s car’s spare key?
4) Whether there is any deficiency in service on the part of the opposite parties 1, 2 and 3?
5) Reliefs and costs if any.
6. The evidence of the complainant comprised of proof affidavit and Exts. A1 to A3. Marking of Ext.A3 document is objected to on the ground that it is not an authenticated document. Complainant was examined as PW1.
The 1st and the 2nd opposite parties filed proof affidavit and Exts.B1 to B3 were marked in evidence from their part. As per the order in IA.No.347/23, the complainant was allowed to cross examine the opposite parties. The Legal Manager of the 1st and the 2nd opposite parties was examined as DW1.
The General Manager, Grand Hyundai (OP3) is examined as CW1 as the 3rd opposite party is ex-parte and the General Manager is a summoned witness. Ext.X1 marked through confrontation. Marking of Ext.X1 was subject to objection. Evidence closed and heard the parties.
7. Points 1&2
As per the version of opposite parties 1&2, this Commission lacks jurisdiction to entertain the complaint since both parties had agreed to confer exclusive jurisdiction to Mumbai courts inrespect of any matter, claims or disputes arising out of the loan agreement. They further contended that as per the arbitration clause in the agreement, any dispute/claim arising out of it shall be settled in accordance with the provisions of the Arbitration and conciliation Act and shall be referred to the sole arbitrator to be appointed as per the agreement clause.
8. This complaint is filed seeking relief for alleged deficiency in service on the part of the opposite parties and not a claim/dispute arising out of the loan agreement. As per Consumer Protection Act, the complainant is a ‘Consumer’ of the opposite parties. The complainant resides in Palakkad, the opposite parties have branch office in Palakkad and the cause of action also has arisen in Palakkad. Hence, this Commission has jurisdiction to entertain this complaint. As per Section 100 of the C.P.Act, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Hence, this Commission has jurisdiction to entertain the complaint. Point Nos.1&2 are decided accordingly.
9. Point No.3
The 3rd opposite party had filed a statement to the effect that the duplicate key along with other documents as per the delivery order issued by Mahindra Finance have handed over to the representative of Mahindra Finance in the presence of the customer. But the 1st and the 2nd opposite parties in their version denied this and stated that they never collected the spare key.
10. Ext.A3 is the print out copy of the photo of the Register which is in the custody of the 3rd opposite party. Marking of Ext.A3 is objected to by the counsel for 1st and the 2nd opposite parties on the ground that it is not an authenticated document as it does not contain the seal or signature of the authorised signatory of the company. As per PW1’s deposition, Ext.A3 document shows that the key is handed over to the 1st and the 2nd opposite parties. But the 1st and the 2nd opposite party denied this.
As per DW1’s (Legal Manager OP1 & OP2) deposition, “Ext.A3 shown to witness അതിൽ താഴെ Received എന്ന് എഴുതിയിരിക്കുന്നതിൽ P.Prem എന്നെഴുതിയിട്ടുണ്ട്. ബാക്കി വ്യക്തമല്ല. അങ്ങനെയൊരു വ്യക്തി ഞങളുടെ സ്ഥാപനത്തിൽ ജോലി ചെയ്തിട്ടില്ല”. So, he had denied the receipt at spare key by their company.
11. The General Manager of Grand Hyundai (OP3) was examined as CW1. During the chief examination by the complainant, he deposed that (Page:2 line:13) “Delivery order ഞങ്ങളും, OP1ഉം തമ്മിലുള്ള internal communication ആണെന്ന് പറഞ്ഞാൽ ശരിയാണ്. പരാതിയെ സംബന്ധിച്ചുള്ള Delivery order Mahindra ഞങ്ങൾക്ക് തരുന്നതാണ്. ആ D.O കൈയിലുണ്ടോയെന്ന് check ചെയ്യണം എന്തായാലും ഉണ്ടാകും. Trace out ചെയ്യണം.
Ext.X1-ൽ please sent the followings to our local office immediately എന്ന് പറഞ്ഞിരിക്കുന്ന request ഞങ്ങൾക് തന്നിട്ടുള്ളത്. അത് പ്രകാരമുള്ളത് hand over ചെയ്തിട്ടുണ്ട്. അതിൽ 3-ആയി പറഞ്ഞിരിക്കുന്ന duplicate key of the asset description എന്ന സംഗതി Mahindra Finance-ൽ handover ചെയ്തിട്ടുണ്ട്”.
Marking of Ext.X1 is objected to by the counsel for the 1st and the 2nd opposite parties on the ground that it is a photocopy and not connected with the case.
12. Complainant filed an application as IA No.191/23 to direct the 3rd opposite party to produce the Register showing the handing over of spare key to the 1st and the 2nd opposite parties. But the 3rd opposite party failed to produce the document.
The Commission has put a court question to the witness (CW1) during examination “key handover Register നിങ്ങളുടെ Records-ൽ എത്ര നാൾ സൂക്ഷിച്ചു വയ്ക്കണം ?
4-5 years from the date of key handover അതായത് ആ record-ൽ enter ചെയ്ത അവസാനത്തെ key handover date-ൽ നിന്നും 5 കൊല്ലം ഞങ്ങൾ maintain ചെയ്യണം. അത് shelf-ൽ സൂക്ഷിച്ചു വയ്ക്കണം. 5 കൊല്ലം കഴിയുമ്പോൾ shelf-ൽ നിന്ന് record room-ലേക്ക് മറ്റും”.
But the 3rd opposite party failed to produce the key hand over register to show that the key was handed over to the 1st and the 2nd opposite parties. So they failed to prove that the key was handed over to the 1st and the 2nd opposite parties.
13. Ext.X1 (objection) marked with is the specimen copy of the delivery order. Eventhough it does not relate to the complainant’s vehicle, it can be referred to find out the general conditions applicable at the time of disbursing the loan amount. The specimen copy is dated 24.09.2021 and the complainant’s loan agreement is dated 28.11.2012.
The format which is used in the year 2021 mentions the duplicate key in the items to be send to their office. So, there is every possibility in including the spare key for the loan disbursed in the year 2012. As per DW1’s deposition, the delivery order pertaining to this vehicle is in their custody and they are ready to produce it before the court. He had stated that “പരാതിക്കാരന്റെ പ്രശ്നം spare key ആയിരുന്നു. ഞങ്ങൾ അത് വാങ്ങിച്ചു വയ്ക്കാറില്ല”). In order to prove their contention, they could have very well produced the delivery order before this Commission. But they failed to produce it and prove that they do not have the practice of collecting the spare key at the time of disbursing the loan account. So, the 2nd opposite party also failed to prove that they are not having the custody of spare key.
14. From the available evidence, it is not possible to find out which opposite party is in custody of the spare key. Both opposite parties 1 and 2 and 3rd opposite party have failed to prove that the key is not in their custody. Hence, it appears that the key is irrecoverably lost from their custody.
15. Points 4&5
So, from the discussion in point No.3, there is deficiency in service on the part of the opposite parties in not giving the spare key to the complainant.
During Re-examination of CW1, (GM, Hyundai), he deposed that "ഈ കേസിലെ missing, smart key ആണ്. Entire lock system change ചെയ്യേണ്ടിവരും. അതിന് ഉദ്ദേശം 45,000/- രൂപ ചിലവ് വരും".
So, the opposite parties are jointly and severally liable to pay this amount to the complainant. Further, the acts of the opposite parties had caused mental agony and financial loss to the complainant and they are bound to compensate him for that.
In the result, the complaint is allowed.
1) The 3rd opposite party is directed to change the locking system of the complainant’s vehicle with original quality to the satisfaction of the complainant or in the alternative to pay Rs.45,000/- towards its cost and fixing charge.
2) The 1st and the 2nd opposite parties are directed to pay Rs.30,000/- as compensation for the deficiency in service and for the mental agony and financial loss suffered by the complainant and Rs.15,000/- towards cost of litigation.
The above amounts are to be paid within 45 days of receipt of this order, failing which the opposite parties are liable to give Rs.500/-as solatium per month or part thereof till the date of payment.
Pronounced in open court on this the 18th day of March, 2024.
Sd/-
VINAY MENON .V,
PRESIDENT.
Sd/-
VIDYA.A., MEMBER,
MEMBER.
APPENDIX
Documents marked from the side of the complainant:
Ext.A1: Copy of the certificate of Registration of the car for hypothecation.
Ext.A2: Copy of the certificate of Registration of the car after hypothecation.
Ext.A3: Photo of the register maintained by the 3rd opposite party taken by the complainant.
Exhibits marked on the side of the opposite party :
Ext.B1: The certified copy of the power of attorney issued to the Territory Legal Manager of M/s.Mahindra & Mahindra Financial Services Ltd.
Ext.B2: Copy of the award dated 28.01.2015 in Arbitration Proceedings REF No.11K-NPA-ARB-AS/KE/AN6992/KN1538/AGG No.2334868 of 2023.
Ext.B3: The copy of the petition filed before the Hon’ble Principal District Court, Palakkad for lifting attachment over the immovable property filed by the complainant.
Witness examined on the side of the complainant:-
PW1: Hakkim (complainant)
Witness examined on the side of the opposite party: -
DW1:- Sajith (Legal Manager, Mahindra Finance)
Court witness:-
CW1: Manikandan (The General Manager of Grand Hyundai)
Ext.X1: Specimen copy of the delivery order of the car.
Cost : 15,000/-
NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure)Regulations, 2020 failing which they will be weeded out.
