Andhra Pradesh

Chittoor-II at triputi

CC/7/2016

Dudi Sudheer Kumar, S/o. D.Sudhakar - Complainant(s)

Versus

The Managing Director / Authorised Signatory, - Opp.Party(s)

B.Chenchu kumar

03 Feb 2017

ORDER

Filing Date: 27.01.2016

Order Date:03.02.2017

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

FRIDAY THE THIRD DAY OF FEBRUARY, TWO THOUSAND AND SEVENTEEN

 

 

 

C.C.No.07/2016

 

 

Between

 

 

Dudi. Sudheer Kumar,

S/o. D.Sudhakar,

Dudivandla Palli Village and Post,

Devarakonda Panchayat,

Chinnagottigallu Mandal,

Chittoor District.                                                                              … Complainant.

 

 

 

 

 

And

 

 

1.         The Managing Partner / Authorised Signatory,

            S.V.C.Finance,

            D.No.477/B, Mosque Road,

            Tirupati – 517 501.

 

2.         The Manager,

            S.V.C.Finance,

            D.No.477/B, Mosque Road,

            Tirupati – 517 501.                                                              …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 31.01.17 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.B.Chenchu Kumar, counsel for complainant, and Sri.K.Ramesh Babu, counsel for opposite parties, and having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section–12 of C.P.Act 1986, by the complainant against the opposite parties 1 and 2 for the following reliefs 1) directing the opposite parties to delete the name of the opposite parties from the Registration Certificate of complainant’s vehicle No.AP-03-AV-6765 with their own expenses, 2) to direct the opposite parties to pay compensation of Rs.50,000/- to the complainant for causing mental agony, and 3) to pay the costs of the complaint.

 

            2.  The brief averments of the complaint are:-  that the complainant purchased a motor vehicle YAMAHA YZF R15 BSIII model, bearing No.AP-03-AV-6765 under hire purchase agreement with opposite parties on 25.08.2011 and the said loan amount has been paid by the complainant as per the terms of the agreement, at that time the complainant also paid Rs.65,000/- as down payment. The opposite parties 1 and 2 have closed the loan account, as the same was settled and addressed to the Road Transport Authorities, to remove the name of the financier i.e. SVC Finance, Tirupati, from the Registration Certificate of the vehicle.

            3.  That the complainant recently approached opposite parties 1 and 2 for fresh finance. Opposite parties 1 and 2 stated that the previous loan account was closed, but the financier name is not yet removed from the Registration Certificate, and he was asked to pay Rs.5,000/- towards necessary charges to remove the name of SVC Finance from the Registration Certificate, but the complainant refused to pay the same, as he has paid entire amount as per the hire purchase agreement and asked opposite parties 1 and 2 to take necessary steps to enable the complainant for fresh finance. But till today opposite parties name was not removed from the Registration Certificate, which amounts to unfair trade practice and deficiency in service on the part of the opposite parties. Hence the complaint.

            4.  Opposite party No.1 filed written version and the same is adopted by opposite party No.2, contending that the complainant availed loan of Rs.60,000/- from the opposite parties on 25.08.2011 and entered into hire purchase agreement, agreeing to repay the loan amount with interest at 18% p.a. by 25.08.2013 with EMI of Rs.3,400/- commencing from 25.09.2011, but the complainant paid only 14 installments in full and part of 15^th installment of Rs.3,000/-. Thereafter, complainant committed default. On several demands made by the opposite parties, the complainant wrote a letter on 06.02.2013 requesting 2 months time to discharge the debt, otherwise the opposite parties are at liberty to sell the vehicle.

            5.  That the opposite parties sent a sale notice dt:07.03.2013 demanding to pay the outstanding amount of Rs.92,000/-, as per the terms of the hire purchase agreement within 10 days, failing which the motorcycle will be put in sale in the open market and the sale proceeds will be adjusted towards the loan account. After sale of the vehicle to one Saravana Siva, the opposite parties granted loan to Saravana Siva for the self same vehicle on 16.05.2014 and adjusted a sum of Rs.68,000/- to the loan account of complainant on 16.05.2014 and thus the old account was closed, as such outstanding amount is still due by the complainant.

            6.  Subsequently, Saravana Siva paid installments at Rs.3,250/- per month for a period of 18 months and thus entire loan amount was closed. At that time, in order to purchase a new vehicle, the said Saravana Siva put the vehicle in question, in exchange for a new vehicle from the showroom and purchased a new vehicle. Inturn the showroom people sold the old vehicle (complainant’s vehicle) to one A.Venkatakrishna of Kamalayyagari palli on 23.12.2015, who is the present holder of the vehicle. In order to transfer the Registration Certificate of the said vehicle in favour of the purchaser, the opposite parties issued “No Due Certificate” in the name of the complainant, only with a view to transfer the vehicle, though the loan amount of complainant is still pending. Taking advantage of the same, complainant is claiming that he has discharged the entire loan and making false allegations against the opposite parties. That the opposite parties got record to show that the complainant committed default in payment of installments. The No Due Certificate was issued by the opposite parties on bona fide belief in view of re-finance out of sale proceeds of the vehicle to the said Saravana Siva and as that sale proceeds were adjusted to this account, the burden is on the complainant to produce the receipts for the payment of all installments, but failed to do the same. There is no deficiency in service on the part of the opposite parties and prays the Forum to dismiss the complaint with costs.

            7.  Complainant filed his chief affidavit as P.W.1 and got marked Ex.A1. For the opposite parties G.Balaji Chowdary filed his chief affidavit as R.W.1 and got marked Exs.B1 to B10. The learned counsel for both parties have filed their respective written arguments and advanced oral arguments as well.

            8.  Now the points for consideration are:-

            (i).  Whether the complainant has paid all the installments, as per the terms of

       the hire purchase agreement dt:25.08.2011 and cleared the loan?    

(ii)  Whether there is deficiency in service on the part of the opposite parties as

       alleged?

(iii)  Whether the complainant is entitled to the reliefs sought for?

(iv)  To what relief?

9.  Point No.(i):-  prima facie the case record shows that there are latches on the part of the complainant and also the opposite parties. Though the complainant is contending that he has discharged the entire loan account, as per the terms of the hire purchase agreement dt:25.08.2011, it is for the complainant to produce the proof that he has discharged the entire loan amount. In this connection, except the Registration Certificate in the name of the complainant, which is marked as Ex.A1, no other documents were filed in support of the case of the complainant. The total cost of the vehicle is also not mentioned. On the date of purchase of the motorcycle Yamaha YZF R15 BSIII model, bearing No.AP-03-AV-6765, the complainant stated that he has made a down payment of Rs.65,000/- and he has obtained a loan from the opposite parties in a sum of Rs.60,000/-. On these contentions, it can be said that the total cost of the vehicle will be Rs.1,25,000/-. As per Ex.B6, the complainant has paid only 2 installments in full and another installment of Rs.3,000/- i.e. part payment. As per the written version and chief affidavit of R.W.1 filed on behalf of opposite parties, the complainant has paid 14 installments in full and 15^th installment in part, that was not reflected in Ex.B6, which is in the name of the complainant.  In view of the said discrepancies Ex.B6 appears to be not a genuine one, that apart two entries in the first page last columns, a sum of Rs.10,000/- and Rs.58,000/- were entered and struck-of. Those entries were made on 06.01.14 and 08.01.14. The reasons were not mentioned for striking-of those entries. At the same page, bottom it was noted account is closed. Even assuming for a moment that the opposite parties have issued No Due Certificate in the name of the complainant is true. No such No Due Certificate is filed in the Forum either by the complainant or by the opposite parties. When the complainant has filed the complaint making certain allegations that he has discharged the total amount due, the opposite parties did not issue No Due Certificate, the burden lies on the complainant to prove that he has discharged the total loan amount. A photocopy of the letter issued by opposite parties addressed to Registering Authority, Chittoor (which is not marked) runs as follows – “we wish to advise you that we have received in full settlement of the hire purchase agreement entered into with us by the above hirer in respect of the vehicle registration No.AP-03-AV-6765, request you to delete our financier name endorsed on the registration certificate of the above vehicle. We have also forwarded to the hirer H.P. Terms form duly completed by us for presentation to you along with the registration certificate”. Under this letter, the Hire Purchase Contract Number was mentioned as MVL 198/11. In fact, Ex.B6 shows that the account number of the complainant is MVL 194/11. So, though the registration number of the vehicle, name of the vehicle and name of the hirer were tallied, the loan account number is not tallied and it is in dispute and varied.

10.  As already stated supra, the complainant did not file any scrap of paper to prove that he has paid all the installments and discharged the loan account in full. That apart some latches as mentioned below were found on the part of the complainant 1) the complainant did not mention in his complaint, as to how much amount he availed from the opposite parties as vehicle loan, 2) cost of the vehicle was not mentioned, 3) number of installments not mentioned, 4) in how many installments /  EMIs he has to repay the loan amount was also not mentioned, 5) how many installments / EMIs were paid by the complainant not mentioned, 6) when the loan installments were cleared and when his account is closed, totally how much amount he has paid was not mentioned, 7) date of last payment and installment was also not mentioned, and each installment and payment dates were not mentioned. In the evidence affidavit, the complainant stated that 1) he entered into a hire purchase agreement with the opposite parties on 25.08.2011, 2) total cost of the vehicle is Rs.1,25,000/-, 3) he made Rs.65,000/- as down payment on the same day i.e. on 25.08.2011, no receipt is filed, 4) the opposite parties granted loan of Rs.60,000/-, 5) it is to be repaid in 24 equal monthly installments at Rs.3,400/- p.m. commencing from 25.09.2011 to 25.08.2013, 6) the loan account number was also not mentioned, 7) that he has paid total installments regularly, but even a single receipt is not filed in any of the installment said to have been paid by the complainant, 8) that opposite parties have closed the account and issued No Due Certificate, and also issued letter to the complainant addressing to RTA, to remove the name of the opposite parties in the Registration Certificate, but he did not file the said No Due Certificate and letter addressed to RTA. As already stated supra, photocopy of letter addressed to RTA, Chittoor, is available in record, but it was not marked on the part of either of the parties. The subject of the said letter is “Termination of Hypothecation- Reg.”. Registration Certificate in the name of the complainant alone is filed and got marked as Ex.A1. The complainant did not mention for what purpose, he has approached for fresh finance. In view of the above latches, the complainant version is also appears to be vague and not full fledged.

11.  Under the above circumstances, we are of the opinion that though complainant failed to establish his case on his own footing, it is established by virtue of the admissions made by the opposite parties, it is observed that complainant’s case is proved and total amount was paid and his loan account was closed. Accordingly this point is answered.     

12. Point No.(ii):-  before answering other aspects, the following are the admitted facts, 1) loan agreement dt:25.08.2011 was not in dispute, 2) availing of loan of Rs.60,000/- not in dispute, 3) repayable installments 24 in number at the rate of Rs.3,400/- p.m. commencing from 25.09.2011 to 25.08.2013 is also not in dispute, 4) Admittedly, complainant paid 14 installments in full and 15^th installment in part, which comes to Rs.50,600/- if calculated. Opposite parties contended that the complainant committed default thereafter, 5) the complainant wrote a letter dt:06.02.2013 requesting the opposite parties to give 2 months time to discharge the debt, 6) in the written version, it was not mentioned when the vehicle was seized. Apart from the above, the opposite parties further contended that they have sanctioned loan to Saravana Siva to purchase the vehicle in question under hire purchase agreement Ex.B9 dt:10.05.2014, but Ex.B9 did not disclose as to what amount the hire purchase agreement was entered into by Saravana Siva with the opposite parties. When the complainant committed default, the opposite parties are at liberty to seize the vehicle and take-up sale proceedings according to law. But admittedly, the opposite parties sanctioned loan to one Saravana Siva to purchase the vehicle of the complainant bearing No.AP-03-AV-6765, it itself shows the vehicle was sold to Saravana Siva, but the Saravana Siva did not purchase the vehicle in the alleged auction said to have been conducted by the opposite parties. That too the opposite parties themselves have sanctioned loan to Saravana Siva for purchasing the said vehicle. The latches on the part of the opposite parties are that they have not mentioned the date on which the vehicle was seized, that they have not given any sale notice to the complainant, that they have not mentioned the date on which the auction was conducted, they have not mentioned the place of auction, time of auction, and the name of the bidders participated in the auction. Similarly, they have not mentioned for what amount the auction was knocked-down and who stood as highest bidder in the said auction. Ex.B5 dt:07.03.2013 is said to be the sale notice issued by the opposite parties and its contents appears to be crucial. Ex.B5 shows that outstanding balance is Rs.92,000/- under hire purchase loan account No.MVL-194/11. It is mentioned in Ex.B5 that “please note that if you fail to pay the above said sum of Rs.92,000/- within 10 days from the date of receipt of this notice, we will put the motorcycle for sale in the open marked and adjust the sale proceeds so received to your H.P.Loan account. It itself speaks that Ex.B5 is a pre sale notice. The statement of account under Ex.B6 issued by the opposite parties for MVL 194/11 in the name of the complainant shows that the complainant has paid 14 installments in full i.e. Rs.3,400/- for 14 installments Rs.47,600 + Rs.3,000/- as part of 15^th installment, which comes to Rs.50,600/-. The loan obtained by the complainant is only Rs.60,000/-. If the loan amount totally paid at Rs.3,400/- p.m. in 24 installments, it comes to Rs.81,600/-, but the amount paid is Rs.50,600/-, admittedly from September 2011 to 9^th March 2013. Then the balance is Rs.81,600 – Rs.50,600 = Rs.31,000/- as on 09.03.2013. The sale notice Ex.B5 shows that outstanding amount is Rs.92,000/-, how this amount could arrive at, as the date of Ex.B5 is 07.03.2013. When the last payment is made on 09.03.2013, how the sale notice under Ex.B5 issued on 07.03.2013 i.e. 2 days before the last payment. It shows suspicion on the transactions made by the opposite parties and the procedure adopted by the opposite parties for the sale of the motorcycle bearing No.AP-03-AV-6765.

13. According to complainant, he paid total hire purchase agreement installments to opposite parties regularly, as specified in the agreement, but no scrap of paper is filed in proof of payment of any of the installments alleged to have been paid by him. However, the opposite parties admitted that the complainant has paid 14 installments in full and 15^th installment in part, for which no proof is filed, since it is admitted fact, it needs no proof. Though the opposite parties contended in their written version in para.5 and in para.2 of evidence affidavit that the complainant made 14 installments in full and 15^th installment in part. Ex.B6 discloses only 3 installments were made as per the entries therein, which shows that opposite parties are not disclosing the facts and they are suppressing the facts. What prevented the opposite parties to made entries in Ex.B6?. It further appears that opposite parties are not in the habit of entering the payments in Ex.B6 properly for the reasons best known to them.

14.  In Ex.B1 proposal form either loan amount required or offer is mentioned. In Ex.B3 hire purchase agreement also amount is not mentioned i.e. loan amount required by the complainant or the loan amount offered by the opposite parties, amount released or agreed to be released were not mentioned. From page.3, colomn.2 of Ex.B3 except the name of the complainant (Sudheer Kumar) and his Guarantor (Sai Manoj Kumar) all other columns were left blank. The case of the complainant as well as the case of the opposite parties are appears to be inconsistent, and none of the parties have approached the Forum with clean hands. If the complainant pays the entire loan amount, why he has executed letter under Ex.B4 dt:06.02.2013 addressing the opposite parties stating that due to some problems he could not pay the installments due and that he has handover his vehicle to opposite parties SVC Finance, that he will pay the amount due within 2 months, in case of his failure to pay the amount due, he has no objection to sell the vehicle by the opposite parties. This letter is not disputed by the complainant. Thus the complainant’s stand in his complaint is contrary to the letter under Ex.B4.

15.  Coming to another aspect of the opposite parties case, in para.2 of evidence affidavit of R.W.1 in last lines, it is mentioned that “After sale of the vehicle to one Saravana Siva, the opposite parties granted loan to him for the self same vehicle on 16.05.2014 and adjusted a sum of Rs.68,000/- to the account of complainant on 16.05.2014 and thus the old account was closed. As such there is still outstanding due by the complainant”. If this version is to be accepted, question of outstanding amount does not arise because admittedly the complainant has paid Rs.50,600/- and a sum of Rs.68,000/- had been adjusted to the account of the complainant on 16.05.2014 and the account is closed. In this statement the following are to be answered by the opposite parties 1) what is the sale price of the complainant vehicle bearing No.AP-03-AV-6765, 2) the loan that was granted to Saravana Siva is only Rs.45,000/-, how that amount of Rs.68,000/- was adjusted to the loan account of the complainant, 3) here another question is that whether the complainant’s vehicle bearing No.AP-03-AV-6765 was sold for a sum of Rs.68,000/- that is for half of its cost or whether the vehicle was sold for Rs.23,000/-. However, if the loan is granted to Saravana Siva in a sum of Rs.45,000/-, how the opposite parties could pay Rs.68,000/- to the account of the complainant. The opposite parties for the reasons best known to them failed to disclose the sale price of the vehicle, apart from the failure on the part of the opposite parties to disclose the date of auction, place of auction, bidders participated in the alleged auction and bid amount to which the vehicle was sold etc. A presumption can be safely drawn that the opposite parties did not conduct the sale / auction as alleged in respect of the complainant’s vehicle. It is also further prima facie appears that the opposite parties have introduced Saravana Siva only for the purpose of this case and they themselves have sanctioned loan of Rs.45,000/- in favour of Saravana Siva without disclosing the auction price of the vehicle. Thus, at every movement there is deficiency apparent on record on the part of the opposite parties. The procedure that was followed by the opposite parties in respect of seizure of the vehicle and conducting auction without sale notice to the complainant and without giving an opportunity to complainant to participate in the auction etc. certainly amounts to not only deficiency in service but also unfair trade practice on the part of the opposite parties. Since the opposite parties themselves admitted clearly in their written version and affidavit that complainant’s account was closed, the complainant need not to pay any amount because admittedly the complainant paid 14 installments in full and 15^th installment in part comes to Rs.50,600/-. The amount that was admittedly adjusted to the complainant’s account is Rs.68,000/- total comes to Rs.1,18,600/-. Thus the total amount due is cleared-of, as the cost of the vehicle is Rs.1,25,000/-. The loan sanctioned by the opposite parties is only Rs.60,000/- in favour of the complainant. So, if the total 24 installments were paid by the complainant that comes to a total sum of Rs.81,600/-. In view of the above admissions a sum of Rs.1,18,600/- was deemed to have been paid by the complainant and his loan account is not in existence. Therefore, the claim of the complainant appears to be proper. Under the above circumstances, we are of the opinion that the complainant has made out a case that there is deficiency in service on the part of the opposite parties. Accordingly, this point is answered.

16.  Point No.(iii):-  in view of our discussions on points 1 and 2, we are of the opinion that the complainant is entitled to No Due Certificate from the opposite parties and also entitled to compensation for causing mental agony due to the acts of the opposite parties, and complaint therefore is to be allowed accordingly.

17. Point No.(iv):- in view of our discussions on points 1 to 3, the complainant’s claim is proved by the admissions of the opposite parties, that the complainant is entitled to the No Due Certificate and also for compensation for suffering mental agony, deficiency in service and unfair trade practice and improper procedure adopted for the alleged auction by the opposite parties and accordingly complaint is to be allowed.

In the result, complaint is allowed directing the opposite parties 1 and 2 to issue No Due Certificate in favour of the complainant Dudi Sudheer Kumar and the opposite parties 1 and 2 are directed to pay compensation of Rs.25,000/- (Rupees twenty five thousand only) to the complainant for causing mental agony and harassment to the complainant and the opposite parties also directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the litigation. The opposite parties further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, failing which the compensation amount of Rs.25,000/- shall carry interest at 9% p.a. from the date of order, till realization.

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 3^rd day of February, 2017.

 

       Sd/-                                                                                                                      Sd/-                          

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1:  D. Sudheer Kumar (Chief Affidavit filed).                      

 

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1:  G. Balaji Chowdary (Chief Affidavit filed).     

 

             EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s            

 

Exhibits (Ex.A)	Description of Documents
	Registration Certificate of Complainant. Registration No.AP03AV6765.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Loan Application.
	Promissory Note for Rs.60,000/-. Dt: 25.08.2011.
	Hire Purchase Agreement. Dt: 25.08.2011.
	Under taking letter issued by Complainant. Dt: 06.02.2013.
	Office copy of Sale Notice. Dt: 07.03.2013.
	Statement of Account of Complainant. Dt: 25.08.2011.
	Loan Application of Saravan Siva for refinancing the Vehical.
	Promissory Note executed by Saravan Siva for Rs. 45,000/-.
	Hire Purchase Agreement.
	Statement of Account of Saravana Siva. Dt: 16.05.2014.

 

    

       

                                                                                                                                     Sd/-  

                                                                                                                                President

                                     // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

           Dist. Consumer Forum-II, Tirupati.

   

     

         

Copies to:-     1.  The complainant.

                        2.  The opposite parties.