By. Sri. Jose. V. Thannikode, President:-
The complaint is filed under section 12 of the Consumer Protection Act against the opposite party to get balance price of the vehicle which was repossessed and sold in auction by the opposite parties and to get cost and compensation for the deficiency of service by the opposite party.
2. Brief of the complaint:- The complainant took a loan of Rs.90,000/- from the opposite party in the year 2010 and made an agreement between them on condition to repay the loan amount with interest in 36 installments of Rs.3,295/- each. The complainant without any delay repaid the 19 installments in time and the balance is unpaid due to his difficulty and due to the mechanical defect of the vehicle. Then on 07.02.2012 the opposite party repossessed the vehicle from a company service centre at Padinjarathara and it sold out and at the time of repossession the opposite party agreed to refund the balance amount after deducting the due amount. But even after one year the opposite party has not return the money and not return the cheques and paper to the complainant, but send a Notice stating that complainant should remit Rs.61,614/- to opposite party as arrears of installment after deducting the sale price of the vehicle. The complainant further says that as on the market price of the vehicle on that season would come around Rs.1,49,000/- after deducting the due amount of Rs.62,605/- the balance amount would be Rs.86,305/- and it is entitled by the complainant from the opposite party.
3. Complainant further submitted that the opposite party has not informed him about the auction, and what was the sale price and the procedure also not intimated and only issued a notice demanding to pay Rs.61,614/- to the opposite party and filed an arbitration case against the complainant and made much difficulties to the complainant. He further says that it is a clear case of deficiency of service and unfair trade practice from the side of opposite party and prayed before the Forum to pass an Order directing the opposite party to return back Rs.86,305/- and to pay Rs.50,000/- as compensation for the mental agony and to pay Rs.10,000/- as cost of the proceedings.
4. On receipt of complaint, Notice were served to opposite party and opposite party filed version stating that the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine. The only intention of the petitioner is to mislead this forum by suppressing the real facts and to knock out some illegal gains from the opposite party. The hypothecated agreement is executed between Mahindra & Mahindra financial services Ltd, a Company registered under the Indian Companies Act and the complainant. The complainant has not impleaded the company as a party array in the above dispute. Hence the complaint is bad for non joinder of necessary parties and on this ground alone the complaint has to be dismissed. The vehicle involved in the case was purchased only for commercial purpose and hence the Petitioner is not a Consumer and the claim raised is not a consumer dispute. Hence this Honorable forum has no jurisdiction to entertain this complaint. There is a loan agreement executed between the petitioner and the first opposite party. The said agreement specifically stipulates the parties for approaching an Arbitrator in case of any dispute arise between them. Since there is a specific arbitration clause in the agreement the jurisdiction of this Honorable forum is ousted. The complainant has not averred that the respondent has violated any of the terms of loan agreement. On that ground also the complaint is not maintainable.
5. It is true that the complainant has purchased a Mahindra vehicle in the year 2010 and it was hypothecated with the Mahindra and Mahindra financial services Ltd on 14.05.2010 and availed a Finance of Rs.90,000/. As per the terms of the loan agreement, the amount is to be repaid 36 equitable monthly installment of Rs.3,295/-, which is payable on the 16th day of every month. If the amount is not paid in time it attracts additional finance charges for the delayed period of payment and cheque return charges in case of dishonor of the cheques. Four cheques issued by the complainant was dishonored and Rs.2,000/- was collected on that count. Moreover Rs.17,750/- was collected as parking charges of the vehicle. The averment that the value of vehicle is Rs.1,86,000/- is not correct, the asset value is only Rs.1,71,500/-. It is true that the complainant has paid 19 installments on the due date itself but the averment that thereafter he defaulted the payment as he could not ply the vehicle due to its mechanical defect and there is no other source of income are not true. The allegations raised in para 4,5 and 6 of the complaint are baseless and denied by this opposite party. The allegation that the vehicle was entrusted by the complainant for service in its authorized service centre at Padinharathara and it was taken away by the opposite party without his permission and later informed that after the sale of the vehicle the balance amount would be adjusted towards the finance and the remaining balance amount will be paid to the Complainant and even after the lapse of 1 year neither the amount was paid nor the documents of the complainant and his mother including 6 signed blank cheques, signed blank stamp papers and more than 10 blank papers are absolute falsehood. The complainant has orally informed that it is not a viable line of business and he is not in a position to repay the finance amount as agreed and expressed his intention to surrender the vehicle. Accordingly on 27.09.2012 the company received possession of the vehicle in accordance with the hypothecation agreement. After taking possession of the vehicle further opportunity was given to him to make payment of the amounts due. But the complainant was not interested to clear the loan amount. Hence after informing the complainant the vehicle was disposed of on 17.02.2012 in its 'as is where is condition' in public auction for the best price available. The vehicle was disposed of in public auction for an amount of Rs 25,000/- and it was adjusted towards the balance finance amount. Even after adjusting the amount there was a balance of Rs 61,614/- as on 01-03-2013. Hence the company was forced to invoke the arbitration clause as stipulated in the agreement. Inspite of repeated notices sent by the Arbitrator neither the complainant nor his mother had appeared before the arbitrator to substantiate their present claim. Therefore an ex-parte award was passed and recovery proceedings are being initiated by the company. Under these circumstances with an intention to stall the recovery proceedings an imaginary claim is put forward and filed this complaint. The allegation raised in para 6 of the complaint that the total value of the vehicle is Rs.1,86,000/- and after deducting the depreciation value of 2 years the amount will come to Rs.1,49,000/ and after deducting the total amount of Rs.62,605/ paid towards the loan amount including interest of Rs.1,18,620/-the complainant is entitled to get the balance amount of Rs.86,305 /- is also an imaginary claim to foist a false complaint. The Company has promptly informed about the intended date of auction and the value received in the auction. There is no deficiency of service on the part of this Opposite party or the company. The complainant is not entitled to get any of the claims raised in the complaint. There is still a balance of Rs.61,614/- as on 30.06.2013. This opposite party has not caused any mental harassment to the complainant or his mother. The legal action was initiated against them as they are the parties of the hypothecation agreement. The company had no other option to recover the balance amount payable by them. This is only an experimental litigation on the basis of an imaginary claim. The opposite party is unnecessarily dragged into this litigation and therefore he is entitled to get compensatory cost. Hence prayed to dismiss the complaint.
6. The complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A5 is marked and opposite party also filed proof affidavit and he is examined as OPW1 and Exts.B1 and B2 are marked. Ext.A1 is the payment chart which shows the payment schedule. Ext.A2 is the Bank account statement of complainant, which shows the repayment of 19 installments. Ext.A3 is the I.A Order in A.S No.928 of Arbitrator dated 14.05.2010 in which it is directed that the claimant and/ or its men, agents or any other authorized person claiming under it, shall reposses the vehicle bearing No. KL 12 F 3903 (Vehicle Make Mahindra Gio BS-II). Which is the subject matter of the Loan Agreement No.1185514 dated 14.05.2010. After repossessing the vehicle, the claimant is directed to keep the said vehicle in its safe custody and also value the vehicle through a competent valuer and submit the Valuation Report to this Tribunal. In the Process of repossessing the vehicle, the claimant, if deemed by it to be necessary, shall seek assistance of the Competent Police Authorities, as per the guidelines of the Reserve Bank of India. Ext.A4 is the Post sale notice in consumer No.1185514 in which the opposite party has demanded Rs.61,614/- as balance arrears of the dues after deducting the auction sale price of Rs.25,000/-. Ext.A5 is the R. C. Particulars, which shows the Hypothecation Endorsement in the R.C of the complainant.
7. On perusal of complaint, version, deposition and documents the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite party?
2. Relief and Cost.
8. Point No.1:- Anyway the transaction and repayment is admitted by both parties, now the question remain is the balance arrear amount of Rs.56,015/- (1,18,620-62,605) is due as on the repossession of the vehicle. In the Order of the Arbitrator, it is specifically stated that "After repossession of the vehicle the claimant is directed to keep the said vehicle in its safe custody and also value the vehicle through a competent valuer and submit the valuation report to this tribunal. But the opposite party has not valued the vehicle and no report is seen produced before the tribunal and also not intimated any procedure before the auction to the complainant but only send a post sale notice. If the opposite party could have valued the vehicle as per the order of the Arbitrator and if the auction is intimated to the complainant before auction it would not been the result of the sales value. Hence the Forum of the opinion that even though there is a direction from the Arbitrator and in a common sense without valuing the vehicle and without giving prior notice to the complainant or without a public notice, conducting an auction and sale in a lowest price of the vehicle and demanding an amount of Rs.61,614/- is a clear case of deficiency of service and unfair trade practice from the side of opposite party. Hence the Point No.1 is found accordingly.
9. Point No.2:- Since the Point No.1 is found against the opposite party the opposite party is liable to pay cost and compensation and the complainant is entitled for the same.
In the result the complaint is partly allowed and the opposite party is directed to pay Rs.20,000/- (Rupees Twenty Thousand) only as compensation and Rs.5,000/- (Rupees Five Thousand) only as cost of the proceedings to the complainant and opposite party is also directed not to take any action pursuant to the said agreement with the document which is collected by the opposite party from the complainant including cheques. The opposite party is directed to comply the order within one month from the date of receipt of this Order. Thereafter the complainant is entitled for an interest at the rate of 20% for whole amount.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 26th day of March 2015.
Date of Filing:13.08.2013. PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Anoop. Complainant.
Witness for the Opposite Party:-
OPW1. Devanand. Manager, Mahindra Finance, Sulthan Bathery.
Exhibits for the complainant:
A1. Payment Chart.
A2. Bank Account Statement.
A3. Certified copy of Interim Order.
A4. Post Sale Notice. dt:01.03.2013.
A5. Copy of Registration Certificate Particulars.
Exhibits for the opposite party:-
B1. Loan Agreement.
B2. Copy of Statement of Accounts of complainant.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
