BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI Dated this the 20th day of October, 2008
Present: SRI.LAIJU RAMAKRISHNAN PRESIDENT SMT.SHEELA JACOB MEMBER SMT.BINDU SOMAN MEMBER
C.C No.232/2006 Between Complainant : Siji Benny, Thattakathu House, Gothuruthu P.O, Ernakulam. And Opposite Parties : 1. The Manager, S.M.L Motors & Finance Limited, Toll Junction, Pukkattupady Road, Edappally, Cochin - 682 024. 2. The Manager, S.M.L Motors & Finance Limited, NH 49, A.M Road, Adimali, Idukki District. (By Adv:V.C.Sebastian)
O R D E R SRI.LAIJU RAMAKRISHNAN(PRESIDENT) The complaint is filed against the unfair trade practice of opposite party and for getting back the security cheque leaves, after surrendering the vehicle, which were deposited at the time of purchasing an autorikshaw under hypothecation agreement.
The father of the complainant named Sri.S.K.Krishnankutty purchased one 'Ape' autorikshaw from the 2nd opposite party, during the 2nd week of April, 2005 and paid an amount of Rs.10,000/- as advance, balance Rs.15,000/- was paid on 26.04.2005 during the delivery of the vehicle. The vehicle was registered as KL-06-C-7090 in the name of the complainant. The balance cost was financed by the Ist and 2nd opposite parties, under a hypothecation agreement. 5 blank cheque leaves of the complainant was given to the opposite parties at the time of hypothecation. The vehicle had mechanical troubles and often repaired inside the service centre of the opposite parties at Adimali. However, the complainant managed to pay the first installment on 4.06.2005 which is Rs.4,186/-. The complainant's father was hospitalised and so she was not able to remit the balance amount. So she consulted with the opposite parties and returned the vehicle during October 2005 to the 2nd opposite party along with R.C Book, Insurance Cover Certificate, signed sale note and other documents connected to the vehicle. The 2nd opposite party destroyed the Hypothecation agreement in the presence of the complainant and assured them to give back the cheque leaves within a week, which is under the safe custody of the Ist opposite party. The complainant's father expired during this period and in the above situation, the complainant could not go or collect the cheque leaves from the opposite parties. The complainant and her family shifted to Gothuruthu where her husband is engaged as a Mason for livelihood. During August 2006, the husband of the complainant received an auction notice from the counsel of the opposite parties dated 10.08.2006. The complainant contacted the Ist opposite party and it was informed that was only a routine procedure and nothing to worry. The complainant asked for the cheque leaves, the Ist opposite party agreed to return them after the proposed auction, along with the balance amount to the complainant. However the complainant and her husband received a show cause notice under Section 138 of the Negotiable Instrument Act from the opposite party's counsel dated 27.09.2006, in which an amount is written as Rs.48,660/- dated 9.09.2006. On receipt of the same, the complainant personally went to the 2nd opposite party and they informed that was due to a mistake from the Ist opposite party and they collected a copy of the notice and assured there is nothing to worry. The complainant have invested a total of Rs.35,000/-for the auto including remittance of insurance premium, expenses for registration etc. The vehicle was returned to the opposite parties in October 2005. Apart from that she spent an amount of Rs.5,000/- as charges for the repairing of the vehicle. Now without returning the blank signed cheques which was filed as a security, a claim of Rs.48,660/- is made against the complainant by falsifying the records. The complaint is filed for unfair trade practice and for getting back the cheque leaves and such other reliefs.
2. The opposite parties filed written version stating that it is only a civil dispute. The complainant availed vehicle loan from the opposite party by executing an agreement and the said loan was became due, so the complainant is not acted upon the agreement. There is no consumer relationship between the complainant and the opposite party. The complaint is filed by the deliberate act of the complainant to avoid from the payment of the loan. The complainant paid only Rs.25,000/- at the time of purchasing the vehicle. No blank cheque was received from the complainant at the time of hypothecation agreement. The cheque was given by the complainant to the opposite party after writing the said installments and interest, in order to collect the amount through bank by the opposite party if any dues come in the future. The opposite party is not liable for any mechanical trouble caused to the vehicle because of improper use of the vehicle. It is certified and proved that there is no manufacturing defect in the vehicle at the time of delivery. The complainant has used the vehicle for 5 months. She was not able to pay back the loan installments of the vehicle and so the vehicle was returned to the opposite party. But she is liable for the hire purchase loan of the vehicle because 5 installments were due at the time of giving back the vehicle. If a vehicle is returned to the company, the company will make necessary arrangement for selling the vehicle in auction and the amount will be remitted in the loan account, if there is any amount is in balance that will be returned to the complainant. If the amount received from the auction sale of the vehicle is not sufficient for closing the entire loan, the loanee should pay the balance amount to the company and must close the loan. All these informations were told to the complainant at the time of repurchasing the vehicle. An excess amount of Rs.18,000/- is needed for closing the entire loan account of the complainant after auction sale of the vehicle. The complainant is legally owe to pay the same to the opposite party. The opposite party never told to the complainant that the cheque leaves or the documents will be returned without closing the loan. It is true that the opposite party sent legal notice to the complainant, but the complainant never approached the opposite party after receiving the same. He never paid Rs.35,000/- at the time of purchase of the vehicle. The opposite party is not liable for the expenses for RTO work and repair of the vehicle. The complaint is filed only for avoiding the payment of the hire purchase loan and the opposite party is not liable for any compensation to the complainant. The opposite party is ready to give back the 5 cheque leaves received from the complainant if the entire loan account is closed. So the petition is liable to be dismissed.
3. The point for consideration is whether there was any deficiency in service from the part of the opposite parties, and if so, for what relief the complainant is entitled to ? 4. The evidence consists of the oral testimony of PW1 and Exts.P1 & P2 marked on the side of the complainant and the oral testimony of DW1 and Exts.R1 to R8 on the side of the opposite parties.
5. The POINT :- The father of the petitioner purchased an autorikshaw from the 2nd opposite party on 26.04.2005 and paid Rs.25,000/- at that time. The complainant availed a loan of Rs.1,12,500/- from the opposite party by Hire Purchase Agreement. The total cost of the vehicle was Rs.1,24,975/-. The repayment was in 36 monthly installments. The vehicle was in mechanical trouble and her father was in hospital. The complainant repaid only one installment Rs.4,186/-and surrendered the vehicle with RC book and all other papers in October 2005. The opposite party agreed to sale the vehicle in auction and the amount could be adjusted to the loan, also agreed to return the cheque leaves which were given as security. But the Ist opposite party sent a lawyer notice on 10.08.2006 for the repayment of 14 installments which is Ext.R1. After that a statutory notice under Section 138 of the Negotiable Instrument Act was issued to the complainant and her husband on 27.09.2006 for Rs.48,660/- by using the cheque leaves given by the complainant. Complainant was examined as PW1. She deposed that the loan was in due for 5 installments, her father was hospitalized and so she surrendered the vehicle. At the time of surrendering, the opposite party assured that the loan amount would be closed from the amount getting from the sale of vehicle, and the balance would be returned to her. The vehicle was repaired several times in 2nd opposite party's workshop. She has paid Rs.25,000/- at the time of purchasing the vehicle, Rs.4,186/- as one installment, and Rs.3,500/- as registration fee. After receiving the lawyer notice, complainant approached the opposite party. But they convinced the complainant that no auction would be taken and the notice was only a formal one. No intimation was given to the complainant about the sale of the vehicle. The complainant's father was hospitalised for three months due to serious illness and after he expired. So the complainant was shifted to her husband's house Gothuruthu, Ernakulam. So she was not able to collect the cheque leaves from the opposite party. But the opposite party assured that the cheque leaves and the balance amount would be send in post after the auction sale of the vehicle. The complainant invested Rs.35,000/- for the vehicle and spent Rs.5,000/- for the repair of the vehicle. The 2nd opposite party was examined as DW1. As per DW1, the value of the vehicle is Rs.1,24,975/-. Ext.R1 is the valuation report of the vehicle produced by the 2nd opposite party. Ext.R2(b) is the application of the loan for the vehicle for Rs.1,12,500/-. Ext.R5 is the copy of the letter written by the complainant to the 2nd opposite party stating that the vehicle loan is having 8 installments due, so the vehicle is surrendering to the opposite party. The 2nd opposite party sold out the vehicle in auction on 3.10.2006 for Rs.97,000/-. Ext.R6 is the agreement for the same. Ext.R7 is the loan agreement in which only one installment is paid by the petitioner. As per the 2nd opposite party, the value of the vehicle is Rs.1,24,975/-, and the complainant paid Rs.25,000/- to the opposite party. The maintenance is caused only because of the negligent use of the complainant and the company is not liable. At the time of surrendering the vehicle the complainant was due of 5 installments, then it was corrected as 8 installments. The complainant has to pay a balance of Rs.18,000/- to the opposite party. The vehicle was surrendered only on 13.02.2006. The service charge is received as Rs.13,575/-. The details were put in Notice Board at Kochi office. But nobody responded. Then one party approached them on 3.10.2006 for Rs.97,000/-. Three cheques were got from the complainant. No intimation was given to the complainant about the sale of the vehicle. But the amount was paid in loan amount of the complainant. It is admitted by the opposite party that the vehicle is surrendered before the opposite party. Opposite party has sold out for Rs.97,000/-. There is no dispute for the same. The complainant was also admitted that they paid only one installment. The only dispute is regarding the balance amount. The complainant paid Rs.25,000/- at the time of purchase of the vehicle which is admitted by the opposite party also. As per DW1, when cross examined, he deposed that the service charge is Rs.13,575/-. But as per Ext.R8 the loan account, it written that the service charge including RTO charges is Rs.4,800/- only. The balance is with them. The vehicle was sold out only on 3.10.2006. As per PW1 the complainant, the vehicle was surrendered on October 2005, and as per DW1 the vehicle was surrendered only on 13.02.2006. Even if we believe the version of the opposite party, the vehicle was sold out only after 8 months. It is admitted by the opposite party that they were keeping the vehicle in their custody for the long time. If the vehicle was sold out earlier the sale amount also should have increased. It is seen from Ext.R8, the sale agreement that the opposite party has given loan for the vehicle again when it is sold out, only Rs.15,000/- was paid by the party. The balance 82,000/- was given as loan from the opposite party. It is clear that the opposite party is engaged in the business of buying and selling old as well as new vehicle and also running a private finance. It means that the opposite party is again making interest money from the resale of the vehicle. It may be because of that, in order to get such a customer the opposite party was keeping the vehicle with them. It is absolutely unfair trade practice from the part of opposite party. The poor complainant was waiting for the balance money after the sale of the vehicle. The opposite party delivered that there is an amount of Rs.18,000/- is due by the complainant again after the sale of the vehicle. But the opposite parties never informed the matter to the complainant any time. They only sent lawyer notice for an amount of Rs.48,660/-. There is no account for that amount. No intimation was given to the complainant about the sale of the vehicle till the date of the complaint. It is admitted by the opposite party by their written version in the last line of 5th page that they are keeping 5 cheque leaves of the complainant and they are ready to give back the same if the entire loan is closed. It is admitted by the opposite party that the value of the vehicle is Rs.1,24,975/-. The complainant availed loan for Rs.1,12,500/-. The balance is Rs.12,475/-. The complainant paid Rs.25,000/- at the time of purchase and the balance is Rs.12,525/-. The service charge is only Rs.4,800/-. So there is a balance of Rs.7,725/- till remains with the opposite party. The complainant paid Rs.4,186/- as first installment. So the entire amount paid by the complainant is Rs.11,911/-. There is an amount of Rs.97,000/- as the resale price of the vehicle. So the entire loan account paid by the complainant is Rs.1,08,911/-. The entire loan amount is only Rs.1,12,500/-. The complainant paid Rs.1,08,911/-. So the balance due is only Rs.3,589/-. But the opposite party is claiming Rs.48,660/-as per lawyer notice and when he was in the box the entire due is Rs.18,000/-. Both are not tallying and not proper. The loan is for 36 months, the interest calculated is for 36 months. But the complainant surrendered the vehicle within 6 months. Anyway it was sold out on 3.10.2006. That means the loan is closed between 18 months. So that the complainant must get the benefit interest for the balance 18 months. And the delay in the sale of the vehicle also caused loss the the complainant. So the balance Rs.3,589/- cannot be counted as a due amount. The poor complainant bought an autorikshaw for their livelihood by means of hire purchase agreement, a hike interest is imposed against her from the opposite party's finance company is not proper, so we think it is fit to give back the cheque leaves of the complainant and guarantors which is given to the opposite party and also a compensation of Rs.5,000/- for the inconvenience caused to the complainant.
Hence the petition allowed. The opposite parties are directed to give back the cheque leaves of the complainant and sureties which were given at the time of availing loan from the opposite party. The opposite parties are also directed to give a compensation of Rs.5,000/- to the complainant for the inconvenience caused to them and also Rs.2,000/- for the cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest from the date of default. Pronounced in the Open Forum on this the 20th day of October, 2008 Sd/- SRI.LAIJU RAMAKRISHNAN(PRESIDENT) Sd/- SMT.SHEELA JACOB(MEMBER) Sd/- SMT.BINDU SOMAN(MEMBER) APPENDIX Depositions On the side of Complainant : PW1 - Siji Benny On the side of Opposite Parties : DW1 - C.M.Benny Exhibits On the side of Complainant : Ext.P1 - Photocopy of Lawyer Notice dated 10.08.2006 issued by the advocate of the Ist Opposite party Ext.P2 - Lawyer Notice dated 27.09.2006 issued by the advocate of the Ist Opposite party On the side of Opposite parties : Ext.R1 - True copy of Vehicle Valuation Report dated 26.04.2005 Ext.R2(a) - True copy of Details of Borrower in respect of Siji Benny Ext.R2(b) - True copy of Application for Vehicle Loan Ext.R3 - True copy of Vehicle Loan-cum-Hypothecation Agreement Ext.R4 - True copy of Joint and Several Guarantee Agreement Ext.R5 - True copy of Complainant's letter dated 13.02.2006 addressed to the 2nd opposite party Ext.R6 - True copy of Vehicle Sale Deed Ext.R7 - True copy of Statement of Loan Account Ext.R8 - True copy of Statement of Loan Account - Branch Office |
