By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to get the balance amount of vehicle which was sold in the auction.
2. Brief of the complaint:- Complainant is the owner of TATA IRIS MAGIC passenger vehicle, he availed loan of Rs.2,75,000/- from the opposite party No.3 and registered the same as Registration No. KL 73 938. Repayment of loan was fixed through monthly installments of Rs.7,810/- each. Now the complainant had paid Rs.1,16,410/- towards loan installments thereafter some installments become due, and as per the request of opposite parties this complainant surrendered the vehicle to opposite party on 27.07.2015. While surrendering the vehicle, this complainant was forced to given two blank cheques, blank signed papers and tax receipt of his property to the opposite party. Thereafter the complainant sold the vehicle in auction without complying the auction formalities complainant alleged that while surrendering the vehicle it has the market value of Rs.2,75,000/-. Now complainant approached before this Forum, alleging deficiency of service that he is entitled to get balance sale amount from opposite parties.
3. On receipt of notice opposite parties appeared and written version filed.
4. Brief of version:- It is admitted that the complainant had entered into a loan cum hypothecation agreement No.XVFPKLP00001025806 with the 2nd opposite party for the purchase of a TATA IRIS bearing registration No. KL 73 938. As per the terms of the agreement the complainant had availed an amount of Rs.2,45,000/- and he had to pay the same with interest totalling to Rs.3,51,450/-. The amount financed with interest was repayable in 45 monthly installments of Rs.7810/- commencing from 01.10.2013. The contention raised that the complainant was regular in payment of E.M.I's is wrong and baseless. The complainant was a chronic defaulter of many monthly installments. As on 01.07.2015 the net monthly installments payable by the complainant is 22 out of which many have been not paid and many paid out of time. As on 28.07.2015 the complainant was liable to pay an amount of Rs.92,036/- towards overdue and Rs.1,79,630/- towards future installment. As the complainant continued the default of installments he voluntarily approached the opposite parties and informed his intention to surrender the vehicle. The officials of the opposite party informed the complainant that the vehicle is not much resale value as the vehicle at the time of surrender is in an average condition. The complainant was not ready to take back the vehicle, thus as per the provisions of the agreement the opposite parties were constrained to determine the agreement by forfeiture and the complainant was given surrender letter and accordingly the complainant surrendered the vehicle to these opposite parties on 29.07.2015 and also gave a sale permission letter to sell the vehicle and adjust the sale price of the vehicle to his vehicle loan account. After surrender of the vehicle the complainant never approached this opposite party. Thereafter this opposite parties done valuation of vehicle through a registered valuer and the vehicle put for auction. No one was ready to take the vehicle and at last the same was sold in public auction on 21.08.2015 for Rs.92,000/- which was adjusted towards the amounts due from the complainant. After the adjustments, an amount of Rs.1,75,027/- is still due from the complainant for realization of which the Opposite parties have initiated Arbitration proceedings. Due information were issued to the complainant intimating them regarding the sale of the vehicle in auction which were also received by the complainant.
5. It is submitted that in view of the provisions for arbitration provided for in the agreement, this complaint itself will not lie and disputes arising out of the agreement if any will have to be resolved by arbitration alone. Further the jurisdiction to resolve any dispute arising out of loan agreement had been mutually and exclusively conferred upon the courts in Chennai by the contracting parties. And as such, this forum has no jurisdiction to entertain any complaint like in the nature of the present one. These opposite parties have not engaged in any unfair trade practice warranting the interference of this forum. The complainant is not entitled for any of the relief claimed in the complaint from these opposite parties. The 2nd Opposite party sanctioned a loan of Rs.2,45,000/- and not Rs.2,75,000/- as alleged by complainant. The complainant never paid Rs.1,16,410/-as alleged, hence denied. The complainant surrendered the vehicle voluntarily at the branch office of the opposite party and the same is on 29.07.2015 and not on 27.07.2015. The surrender of vehicle was through a surrender letter dated 29.07.2015. The complainant himself gave a sale permission letter dated 29.07.2015. Thus the allegations are against actual facts. The present attempt of the complainant is to prevent the legitimate rights of the opposite parties to recover the amount due to them and the same is not maintainable either in law or on facts and circumstances of the case. Hence prayed to dismiss the complaint.
6. Complainant adduced evidence as PW1 and Ext.A1 and A2 documents were marked. Ext.A1 is the Loan Repayment Chart. Ext.A2 series are the Payment Receipts. Opposite party present and examined as OPW1. Ext.B1 to B4 documents were marked. Opposite party's witness is examined as OPW2. OPW1 recalled and further examined on 09.12.2016. Ext.B5 to B7 documents were marked with objection. Ext.B1 is the Surrender letter, Ext.B2 is the No Objection Letter given by the complainant. Ext.B3 is the Inventory of the vehicle surrendered by the complainant. Ext.B4 is the Valuation Report. Ext.B5 is the Retail Invoice. Ext.B6 is the particulars of Auction conduction on 21.08.2015. Ext. B7(1) to B7(3) are the Quotation for purchase of vehicle.
7. On considering the complaint, version,documents and evidences, the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties?
2. Relief and Cost.
8. Point No.1:- Complainant alleged that he had availed loan facility from the opposite party to the tune of Rs.2,75,000/- and repaid Rs.1,16,410/- till 27.07.2015. Due to financial stringency he could not pay the installments on time and surrendered the vehicle and has given consent to sell the vehicle in public auction. Opposite party admitted the loan transactions and surrender of the vehicle by the complainant. But repayment of Rs.1,16,410/- was denied by the opposite party. But both parties failed to produce the account statement subject to this loan account. As per complainant's document Ext.A2 series he had paid Rs.1,02,870/- to the opposite party.
9. Opposite party opposed the case through Ext.B1 to B4 documents, that the complainant as his own will surrendered the vehicle on 29.07.2015 and has been given his consent to sell the vehicle and adjust the proceed against his loan dues. Opposite party also produced No Objection Letter given by the complainant to that effect. Through Ext.B4 document opposite party proved that they had taken valuation Report before sale. In Ext.B4 Valuator assessed the Market price of the vehicle as Rs.1,10,000/- on 31.07.2015. Opposite part produced Ext.B6 and B7 particulars of auction and Quotation for purchase of vehicle in dispute. As per opposite party thereafter with due notices to the complainant these opposite parties initiated Auction Proceedings against the vehicle and the same was sold in public auction on 21.08.2015 for Rs.92,000/- which was adjusted towards the amounts due from the complainant. After the adjustments, an amount of Rs.1,75,027/- is still due from the complainant for realization of which the opposite parties have initiated Arbitration Proceedings.
10. On going through the evidences and records we opine that this complainant drove the vehicle nearly two years. Opposite party sold the vehicle for the higher bid amount of Rs.92,000/-. The sale was conducted in accordance with law. But perusal of Ext.A4, it appears that valuer assessed Rs.1,10,000/- as the prevailing market value to this vehicle during 2015. But opposite party sold the vehicle a lesser amount. Loan account was still not closed, both parties not produced the account statement to get a clear picture of balance due. Admittedly complainant is a defaulter of loan account we are not intending interfere in the matter. In this case opposite party sold the vehicle for Rs.92,000/-. In our view complainant is entitled to get balance amount as assessed by the valuator. Point No.1 is found accordingly.
11. Point No.2:- Since the Point No.1 is found against the opposite parties, complainant is entitled to get compensation and cost of the proceedings. Point No.2 is decided accordingly.
In the result, the complaint is partly allowed and the opposite parties are directed to pay the balance amount of Rs.18,000/- (Rs.1,10,000 – Rs.92,000/- =Rs.18,000/-) (Rupees Eighteen Thousand) to the complainant . Opposite parties are directed to appropriate this amount to the existing loan dues since complainant is a defaulter. This Order must be complied by the opposite parties within 30 days from the date of receipt of this Order. No Order as to cost and compensation.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 1st day of February 2017.
Date of Filing:15.04.2016.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
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PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Ullas George. Complainant.
Witness for the Opposite Parties:-
OPW1. Rajeev Kumar. Legal Manager, Cholamandalam Finance.
OPW2. Krishna Kumar. Surveyor, General Insurance.
Exhibits for the complainant:
A1. Loan Repayment Chart.
A2(1). Receipt. Dt:22.04.2014.
A2(2). Receipt. Dt:06.12.2013.
A2(3). Receipt. Dt:23.02.2014.
A2(4). Receipt. Dt:01.10.2013.
A2(5). Receipt. Dt:17.03.2014.
A2(6). Receipt. Dt:31.05.2014.
A2(7). Receipt. Dt:17.01.2015.
A2(8). Receipt. Dt:27.06.2014.
A2(9). Receipt. Dt:10.06.2014.
A2(10). Receipt. Dt:01.07.2014.
A2(11). Receipt. Dt:03.09.2014.
A2(12). Receipt. Dt:30.04.2015.
Exhibits for the opposite parties:-
B1. Copy of Surrender Letter. Dt:29.07.2015.
B2. Copy of No Objection Letter given by the complainant. Dt:29.07.2015.
B3. Copy of Inventory of the vehicle surrendered by the complainant.
B4. Copy of Valuation Report. Dt:31.07.2015.
B5. Copy of Retail Invoice. Dt:24.08.2013.
B6. Participant of Yard Auction conducted on 21.08.2015.
B7(1). Quotation. Dt:16.08.2015.
B7(2). Quotation. Dt:18.08.2015.
B7(3). Quotation. Dt:20.08.2015.
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PRESIDENT, CDRF, WAYANAD.
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