BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No: 239/2004 Filed on 08/06/2004

Dated : 31..12..2012

Complainant:

Rajan, S/o Kesavan, Panayaravilakom, Koonthalloor, Chirayinkil, Thiruvananthapuram.

(By Adv. Varkala S.M. Nair)

Opposite parties:

1. The Manager, The Hongkong and Shanghai Banking Corporation Limited, Post Box No. 2244, Vellayambalam, Thiruvananthaapram.

2. The Hongkong and Shanghai Banking Corporation Limited, Card Product Division, Post Bag No. 29128, Worli, Mumbai – 400 025.

(By Adv. T.L. Sree Ram)

This O.P having been heard on 15..12..2012 the Forum on 31..12..2012 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

Case of the complainant is as follows: The complainant approached the 1^st opposite party and demanded a car loan and the 1^st opposite party had agreed to give loan @ 10.5% interest for the loan amount. The 1^st opposite party issued blank form of agreement and got it signed by the complainant. The 1^st opposite party sanctioned a loan amount of Rs. 4,10,000/- and had issued a D.D for the amount of Rs. 5,87,350/- to Moopan Motors for the sale amount of a Toyoto Quallis Car with Reg. No.KL-01/X-2397. The complainant had remittted the 1^st installment of Rs. 9,892/- on the same day and handed over 10 cheques also to the 1^st opposite party. The complainant received a copy of the agreement, he was surprised to note that the interest rate was recorded in the agreement as 16.25% instead of 10.5% as agreed by the 1^st opposite party thereby the 1^st opposite party violated the terms and conditions as agreed. Eventhough the 1^st opposite party cheated the complainant by raising the rate of interest from 10.5% to 16.5% the complainant has remitted the installments periodically till 24/4/2003 and at that date the outstanding amount was recorded by the 1^st opposite party as Rs. 3,34,055/- including interest and principal amount. If the 1^st installment of Rs. 9,892/- has to be deducted the outstanding amount was only Rs. 3,24,163/- on 24/5/2003. Thereafter due to illness the complainant had defaulted 3 installment amount. The 1^st opposite party advised to surrender the vehicle before the 1^st opposite party and as per the advise the vehicle was surrendered on 23/5/2003 by the driver of the complainant Shri. Lalu and receipt of the same was also issued to the complainant after noting all the articles including the kilometers run and was recorded as 39991 KM on 23/05/2003. The 1^st opposite party assured that the vehicle had run below 40000 KM which will fetch a good sale consideration and also agreed to pay back the balance of loan amount and sale amount within 7 days. On enquiry it is revealed that an amount of Rs. 7,500/- is also credited to the complainant's loan account as seizer charges, though the vehicle was surrendered before the 1^st opposite party and issued receipt for the same. The complainant sent a lawyer's notice dated 11/12/2003 to the 1^st opposite party asking the statement of account and balance amount of the sale consideration. Eventhough the 1^st opposite party accepted the same on 12/12/2003, no reply has been received by the complainant so far.

2. Opposite parties filed version contending that the complaint is not maintainable either in law or on facts. The complainant has only approached the opposite party for a car loan facility. A detailed interview was conducted and it was specifically informed to the complainant what exactly is the rate of interest and the manner in which the amount has to be paid. After understanding each and every detail of the transaction, the complainant executed loan agreement. The loan amount requested was Rs. 4,10,000/-. The invoice value of the vehicle is Rs.5,87,350/-. The demand draft is issued for that amount. The D.D charges and other processing charges are also to be claimed from the party. Even according to the complainant the total amount collected from him is only Rs. 1,88,100/-. The loan amount even going by the case of the complainant is Rs. 4,10,000/-. The 1^st EMI was also included in the initial amount collected from the complainant. Thus, it can be seen that the opposite party has done legal and correct acts. The rate of interest was always 16.25% and not 10.5%. In fact there was a very clear understanding between the parties prior to the execution of the agreement and only after fully understanding the terms of the agreement the party has signed the agreement. It is admitted by the complainant that he has defaulted 3 installments. If that is so, the agreement permits the opposite parties to repossess the vehicle. The vehicle was surrendered by the complainant on his own volition. There was no offer to pay balance amount etc., as pleaded by the complainant. In fact, the amount fetched on sale is not sufficient to clear the outstandings in the loan transaction. The vehicle was not having the market value of Rs. 5,15,000/- as claimed by complainant. After the vehicle was sold, the financier has every right to get the R.C transferred. There is no deficiency of service either alleged or pleaded, hence complaint is only to be dismissed.

Complainant has filed affidavit and has been examined as PW1, marked Exts. P1 to P6 also. Opposite parties had no evidence.

3. The issues for consideration are:

1. Whether any amount is due to the complainant?

2. Whether there has been any deficiency in service on the part of opposite parties?

3. Reliefs and costs?

4. Points (i) to (iii): There is no dispute with regard to the availing of loan by the complainant from the opposite parties. It is also admitted that the loan amount sanctioned is Rs. 4,10,000/- and a DD for Rs. 5,87,350/-, which is the invoice amount, was issued to the complainant. The allegation of the complainant is that, instead of 10.5% interest as agreed by the opposite parties at the time of availing of loan, the opposite parties had levied 16.25% as against the agreement. It is the case of the complainant that, the complainant came to know about the interest rate only when he received the filled-up agreement. But as per Ext. P1, the interest has been mentioned as 16.25% and even after that, the complainant has remitted the installments without raising any objections. Hence the pleading of the complaint with regard to high interest rate will not stand. As per Ext. P3, opposite party has demanded the complainant to pay Rs. 3,48,673/- towards outstanding amount wherein repossession charge of Rs. 7,000/- has also been included. But the complainant pleads that he had surrendered the vehicle and hence the act of opposite parties in deducting Rs. 7,000/- towards repossession charge is illegal. The complainant has not produced any record to show that the vehicle was surrendered by him before the opposite parties. Though PW1 deposes that he has records to substantiate the same, it has not been produced.

5. From 14/01/2002 till 24/04/2003 complainant has been remitting the installments @ Rs. 9,892/- per month. Accordingly complainant has mde a total payment of Rs. 1,58,272/- and Rs. 1,68,100/- which comes to a total amount of Rs. 3,26,372/-. The vehicle has been sold by the opposite parties. Opposite parties have not furnished any records to show for how much amount the vehicle has been disposed. Anyhow, it is evident that the vehicle has been sold and the complainant has not been paid any amount by the opposite parties after the sale of the vehicle. Opposite parties have not filed any affidavit in support of their pleadings nor has produced any documents.

6. Considering the above facts and circumstances, this Forum finds that the complainant could use the vehicle hardly for 2 years. Considering the life of the vehicle as in this case which we fix it as 10 years out of which complainant could use only for 2 years . Complainant had made payment of Rs. 3,26,372/-. For a 2 year old Qualis vehicle which had run only 39991km we fix the price of the vehicle at Rs. 4,00,000/-. Deducting the amount paid by the complainant, complainant is found entitled for the difference in amount of Rs. 73,628/- which for the sake of calculation is rounded to Rs. 73,700/- (Rs. 4,00,000/- - Rs. 3,26,372/-).

In the result, complaint is allowed. Opposite parties are directed to refund Rs. 73,700/- with 9% interest from the date of complaint ie., 8/6/2004 till realisation along with a cost of Rs. 4,000/-. Since interest has been ordered, there is no separate order as to compensation.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 31^st day of December, 2012.

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S.K. SREELA, MEMBER.

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G. SIVAPRASAD,

PRESIDENT.

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ad. BEENA KUMARI.A., MEMBER.

C.C.No: 239/2004

APPENDIX

I. Complainant's documents:

P1 : Copy of letter dated 24/01/2002 issued to Mr. K. Rajan by HSBC Ltd.

P2 : " blank letter with the signature of the complainant.

P3 : " letter dated 23/05/2003 issued to the complainant by the HSBC

P4 : " Advocate notice dated 11/12/2003 issued to the Manager, HSBC Ltd., Vellayambalam, Thiruvananthapuram – 695 010.

P5 : Acknowledgement card

P6 : Copy of inventory of items in repossessed car dated 22/05/2003 issued by HSBC.

II. Complainant's witness:

PW1 : Rajan

III. Opposite parties' documents : N I L

IV. Opposite parties' witness : N I L

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PRESIDENT