O R D E R
ADV. RAVI SUSHA, MEMBER.
The complainant purchased a Maruti Omni Van from
Sarathy Auto Cars, Pallimukku, KOllam availing loan from the opp.party by hypothecation. The vehicle was purchased on 13.12.2006 for the purpose of the livelihood of the complainant. The said vehicle Maruti Omini, bearing Register No.KL Z 8649 was availed finance of Rs.1,88,000/- from the opp.party. The cost of the said lvehicle was Rs.2,09,000/- . The term of the loan repayment was 60 instalments which ends on 13.12.2011. Since the complainant was not in position to repay the loan amount, the opp.party advised the complainant to surrender the vehicle and the complainant on 26.52008 surrendered the vehicle before the opp.party The said vehicle was in the custody of the opp.party from 26.5.2008 in good road worthy condition and having market value of Rs.1,75,000/- . After that the complainant was not issued with any notice of communication regarding the subsequent acts to be taken by the opp.party. The opp.party sold the said vehicle to third parties even without issuing a notice for sale to the complainant. Now the complainant got reliable information that the complainant sold the vehicle for a cheaper price of Rs.85,000/- . The act of the opp.party is illegal and utter default and deficiency in service which caused much economical loss and hardships to the complainant coupled with mental agony. The complainant claims Rs.2,00,000/- as compensation for the unfair trade practices of the opp.party and for the agony suffered by the complainant, also prays for cost of this proceedings. Hence the complaint.
Opp.party filed version contending that the complaint is not maintainable before this forum, as it lacks jurisdiction over the alleged dispute. The Hon’ble National Commission has held that “the Hirer in a Hire Purchase Agreement who is holding the vehicle as a ‘Bailee’ does not come under the definition of ‘Consumer’ The complainant had committed default in payment of the instalments and had surrendered the vehicle only to avoid legal proceedings against her. It is false to say that at the time of surrender the vehicle was having a market value of Rs.1,75,00o0/-. In fact the vehicle was in a bad condition and not in road worthy condition as alleged. The complainant was informed about the procedure for sale and all norms to be followed before Sale was complied with by the opp.party. Moreover an advertisement offering sale of the said vehicle was published in Malayala Manorama daily dated 19..6..2008 which is the leading Newspaper in Kerala. The averments to the contrary are false The actual market value was properly and fairly assessed and the person who quoted the highest price of Rs.85,000/- was given the vehicle. Three quotations had been received by the opp.party’s Corporate Office. The vehicle was sold to one Aliyar Aikkaraparambil, Muvattupuzha as he had quotedthe highest price. The opp.party has not committed any unfair trade practice or deficiency in service. There is no reason for any mental agony being caused to the complainant. The opp.party is entitled to realize the balance finance amount, interest etc in terms with the Agreement entered between the complainant and opp.party. Hence prays for dismissal of the complaint.
Points that would arise for consideration are:
1. Whether there is deficiency in service on the part of the opp.parties
2. Reliefs and cost
For the complainant PWs.1 and 2 were examined and marked Exts. P1 to P3
For the opp.party DW.1 was examined and marked Exts D1 to D7
POINTS:
In this case there is no dispute that the complainant purchased the disputed vehicle [Maruthi Omnivan] from Sarathy Auto Cars and the complainant availed finance of Rs.1,88,000/- from the opp.party and the cost of the vehicle was Rs.2,09,000/- and the complainant surrendered the vehicle on 26..5..2008 before the opp.party due to non=payment of loan amount. The main allegation of the complainant is that the sale of the vehicle done lby the opp.party is illegal. According to the complainant the opp.party sold the vehicle for a cheaper price without issuing notice to the complainant. The vehicle surrendered after one and a half year after purchase . Complainant’s contention is that the vehicle had market value after one and a half year was Rs.1,75,000/- . For proving their contention the complainant examined PW.2 Manager Sarathy used car section as an expert witness. He deposed that Omni van with Model 2006 December was having value between Rs. 1,50,000/- to Rs.1,65,000/- on May 2008. According to the complainant the sold price of Rs.85,000/- is so cheap.
Opp.party’s contentions are that as per the valuation report [Ext. D4] prepared by M.M. Joy the condition of the vehicle was very poor and as per Ext. D5 the document prepared one Mr. Aliyar assessed the maximum amount of the vehicle was Rs.85,000/- Complainant opposed Ext. D4 and D5. Then the burden of proof lies on the opp.party to prove the contents of Ext. D4 and D5 by examining the persons who prepared those documents. Without examining those persons mere marking Ext. D4 and D5 is not sufficient to prove that at the auction time the condition of the vehicle was very poor and it valued only Rs.85,000/- . Mere examining DW.1 is not sufficient. Without proving the condition and price of the vehicle at the time of sale, we are constrained to believe the evidence adduced by PW.2. From the evidence of PW.2 the value of the vehicle on May, 2008 amounting between 1,50,000/- to 1,65,000/-.
Exts. P3 shows that the arrears of the complainant was
Rs.1,56,039/- on as on 3..3..3009. Here the opp.party admits that no notice was sent to the complainant before conducting sale of the vehicle. Opp.party contended that an advertisement offering sale of the said vehicle was published in Malayala Manorama daily dated 19..6..2008. That is not the procedure required to be followed by the opp.party. A pre-sale notice is to be sent through registered post to the customer. If the customer does not respond to the pre-sale communication then sale proceedings need to be initiated. As against this before sale no notice is given to the complainant. That means the vehicle was sold without following the procedure allegedly required to be followed. If an opportunity is given to the complainant, when his vehicle is likely to be sold at a particular price and option should be given to him to purchase the vehicle of the said price, then it is a transparent procedure. When a vehicle sold without informing the complainant, in our view, it would be unjust to direct the consumer to pay the balance amount as alleged by the financier to be outstanding. If such a relief is given to the money lender it would be unjust enrichment to the money lender and against equity. In such case complainant is entitled to get relief. Compensation is the relief which can be granted to the complainant. Since the car has already been sold we cannot direct the opp.party to restore the car to the complainant. Here there is no dispute that the complainant had used the car for 1 ½ years, we direct the opp.party to pay an amount of Rs.50,000/- as compensation and Rs.10,000/- as cost to the complainant. The opp.party shall not be entitled to recover any amount from the complainant, on the basis of Ext. D7 status report. If any ante dated cheques are remaining with the opp.party, the same shall be treated as null and void and no action on that basis shall be taken by the opp.party against the complainant.
The opp.party raised another contention that the complainant is not a consumer. When a vehicle is purchased by a person [consumer] by borrowing money from the financier, the consumer is the owner of the vehicle and not the financier unless the ownership is transferred. Here the complainant is the owner of the vehicle. So the complainant is a consumer of the opp.party.
On considering the entire facts we are of the view that there is deficiency in service and unfair trade practice on the part of the opp.party.
In the result, the complaint is allowed in part. The opp.party shall pay Rs.50,000/- as compensation and Rs.1000/- as cost to the complainant. The order shall be complied with by the opp.party within one month after receiving this order
Dated this the 19th day of October, 2012
I n d e x
List of witnesses for the complainant
List of witness for the complainant
PW.1. – Mahesh
PW.2. – Manoj
List of documents for the complainant
P1. – Authorization letter
P2. –Surrender document
P3. –Statement of opp.party
List of witnesses for the opp.party
DW.1. – Subash
List of documents for the opp.party
D1. – Copy of power of attorney
D2. – Letter from opp.party
D3. – Advertisement dated 19..6..2008
D4. – Valuation report
D5. – Quotation
D6. – Sanction Letter
D7. – Status report
