By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act alleging deficiency of service against the opposite parties that they are trying to seize the vehicle even though complainant had already paid major portion of the loan amount and continuing the same.
2. Brief of the complaint:- The complainant for the personal use of him and his family proposed to purchase an auto rickshaw for which he approached the vehicle dealer at KVR Motors, Kalpetta. On ordering the purchase of the same dealer office offered to arrange finance facility. On dealers arrangements the agent of 2nd opposite party came to the house of the complainant at Arapetta and got signatures of the complainant and a guarantor in a set of loan papers including loan agreement and guarantee agreement in the year 2013. While sign those papers which were seen as blank form with dotted lines. More over as demanded the complainant has given 10 blank signed cheques of complainant as a security to the finance company of opposite parties. On executing the same opposite parties sanctioned loan as vide proposal No.L3WCAL02319957 and as per the terms of loan repayment agreement that the complainant has to repay the loan amount and interest with 42 monthly installment for the preceding months at the rate of Rs.4,518/-. As per the terms of agreement the complainant has to complete the repayment as per chart only, And the complainant got an amount of Rs.1,23,000/- as loan amount and purchased the vehicle and registered as private auto rickshaw before the registering authority bearing No. KL 12 H 7342. Complainant further submitted that as agreed the complainant is managed to repay the loan monthly installments timely and already paid an amount of Rs.90,360/- in 20 monthly installments till today towards the loan installment amount with some nominal delay, The complainant is a bus driver by avocation and earning his and family livelihood by his occupation alone. But due to the non renewal of permit of bus due to the technical reasons there was no employment for few months and some unexpected illness of family members put the complainant in difficulty in financial situation by which the complainant could not pay last 5 months defaults. But immediately the opposite parties' agents made an attempt to seize the said vehicle without accepting the complainant's request or demands for time, later opposite parties made demands to remit huge amount as additional finance charges and other charges in the said loan for the nominal delay. The opposite parties also threatening by directly, otherwise and send notices to the Complainant and guarantor that the vehicle will be seized and sold to realize the balance amounts. The complainant is still ready to making defaulted payments towards the loan installments also. The complainant submitted that even though he contacted and approached opposite party's office, agent's many occasion to verify the true accounts to make a full and final settlement but opposite parties office was not ready to accept the complainant's demand or request by saying that it can be possible only after the full payment of their demanded amount and closure of loan. This complainant made several attempts to settle the matter and close the entire loan account with them but the opposite parties have made claim of an exorbitant amounts towards additional finance and incidental charges amounts. The complainant is ready to repay the entire repayment amount within the stipulated time. The opposite parties have not even issued 6 months receipts which were send though the bank account of the staff of K.V.R motors. The complainant has remitted the majority portion of the loan repayable amount hence the opposite parties have no right to seize the vehicle. The complainant is producing the available documents along with this and that may be taken as the part of this complaint.
3. It is also submitted that while the said situations last one month many occasions the opposite parties threats and lastly made attempt to seize the vehicle and at last on 20.11.2015 the opposite parties people attempted to take the same forcefully with their- men but due to the timely intervention of the complainant and his men they left the place but made threatening to take away the same with sufficient force etc. Hence a threat full situation also existing about the seizure of the vehicle the complainant could not ply the vehicle and the complainant is apprehending the seizure also. More over now the complainant made some false accident case alleged to have happened at Calicut in collusion with police to take the vehicle to their reach Against which the complainant already has given a complaint to police chief Wayanad to enquire the matter and resort legal actions. The complainant already repaid major portion of the loan amount and continuing the same also. Being the said situations the intervention of the forum is necessary to redress the grievances of the complainant due to the deficiency in service and unfair trade practice by the opposite parties in the said loan transactions. Hence this complaint is filed.
4. On receipt of notice opposite parties appeared and filed version. In the version opposite parties stated that on the request of complainant this opposite parties extended financial assistance for purchase of one PASSENGER CARRIER DIESEL 445. On agreeing to the entire loan terms and conditions a loan agreement was executed by the complainant in favor of the opposite parties based on which the opposite parties extended financial assistance of Rs.1,89,756/- (which includes financial charges of Rs.66,756/-). The loan was extended for 42 months tenure with an EMI] of Rs.4,518/ -. The subject vehicle was secured to loan and is hypothecated to opposite parties Company. As per the agreed terms and conditions of loan agreement the complainant has agreed for prompt repayment of loan installment on or before 10th of respective month is the core essence of the loan. The complainant grossly failed to abide by the terms and conditions of the loan and as on August 14 the complainant was in default of Rs.9,036/- towards installment overdues, Rs.1,672/- towards other overdues along with Rs.1,17,468/- towards 26 future installments but even on repeated requests & reminders by Opposite parties the complainant not taken any efforts to regularize the loan account. constrained by the said attitude of the complainant the Opposite parties has recalled entire loan vide loan recall notice dated 11.08.2014 and Opposite parties informed the complainant to pay the net outstanding amount of Rs.1,28,176/- even so the complainant not taken any steps for closure of the loan account. As per the right vested on opposite party company vide clause 27 of Annexure A (Loan Agreement cun schedule) the opposite parties referred the present dispute before sole arbitrator on 08.10.2014 and notice of appearance on 29.10.2015 was effected to both the parties for appearance on 20.01.2016. As the matter in dispute is fully sub-judice before the sole Arbitrator hence this Hon'ble Forum does not have jurisdiction to try this present complaint and may be dismissed as not maintainable under the provision of Consumer Protection Act 1986 and refer the present dispute before the sole Arbitrator. The Opposite parties wish to state that even though as per agreed terms and conditions of the loan agreement the Opposite parties have every right to take back the possession of the vehicle in case of default in repayment of monthly installment and it is very crystal clear from the above mentioned facts supported by the annexures that the Opposite parties has never exercised this right and till date the Opposite parties are using only legal means and requested the complainant to surrender the subject vehicle due to gross default in repayment of monthly installments thus it is totally denied by the Opposite parties that the Opposite parties have made an attempt to seize the vehicle from the complainant as alleged by the complainant and same is subject to strict proof on records. It is further totally denied by the Opposite parties that the Opposite parties has filed some false accident case against the complainant at Calicut as alleged by the complainant and same is subject to strict proof on records. Opposite parties wish to state that the Complainant has no any cause of action for filing this case as there is no any deficiency of service or unfair trade practice from the part of the Opposite parties at any point or time. The Complainant itself is deficient from the agreed terms and condition of the loan agreement by not making payment of loan installments and is in default, hence the Complaint itself is deserve to be dismissed on this mere ground itself as defaulter cannot be termed as a consumer and should not he entertained.
5. Complainant adduced evidence as PW1 and Ext.A1 to A4 documents were marked. Opposite parties are examined as OPW1 and Ext.B1 to B5 documents were marked. Ext.A1 is the Copy of Registration Certificate. Ext.A2 is the copy of Insurance policy schedule. Ext.A3(1) to A3(12) are the Receipts. Ext.A4(1) is the copy of complaint given by the complainant to the District Police Chief. Ext.A4(2) is the Receipt dated 28.11.2015. Ext.B1 is the Copy of Auto Loan Agreement. Ext.B2 is the copy of Application cum Agreement. Ext.B3 is the copy of Loan Recall Notice dated 11.08.2014. Ext.B4 is the copy of Notice for Appearance. Ext.B5 is the Account Statement.
6. On perusal of complaint, version, affidavit 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.
7. Point No.1:- Admittedly the complainant availed a loan from the opposite parties, 42 monthly instalments were fixed for repayments. Monthly instalment were fixed as Rs.4,518/-. The complainant alleged that he altogether paid Rs.90,360/- in 20 monthly installments till the date of complaint. But some installments were paid with nominal delay. He is plying this vehicle for his livelihood. But due to some reasons and unexpected illness of the family members he could not pay the last 5 months installments. But immediately opposite parties tried to seize the vehicle. More over opposite parties made some false accident case alleged have happened at Calicut in collusion with the police to take the vehicle to their reach against which the complainant has already given police complaint to Police Chief Wayanad and filed this complaint alleging deficiency of service against opposite parties. The complainant executed loan agreement with the opposite party on 2013 and the repayment period were fixed till 10.10.2016 that within the repayment period this opposite parties tried to seize the vehicle. Monthly installments were collected by KVR Motors Kalpetta on the capacity of an agent ie within the jurisdiction of the Forum. Now complainant is ready with the due installments but opposite parties have made claim for exorbitant amount towards claim and incidental charges, also this complainant is ready to repay entire due amount within the stipulated time. More over opposite parties not issued six months payment receipt which were sent through the bank account of the staff of opposite parties. Complainant has remitted the majority portion of loan amount hence this opposite party is not entitled to seize the vehicle, to prove this allegation complainant produced Ext.A3(1) to A3(12) (Payment Receipts) documents.
8. Opposite party adduced evidences as OPW1, Ext.B1 to B5 documents were marked. Opposite party argued that as per the mutual understanding of the terms and conditions of the Loan Scheme, a Loan Agreement No.L3WCAL02319957 was executed by the complainant in favour of the opposite party company. The monthly installments fixed as per Agreement is Rs,4,518/- payable every 10th of respective months starting from 10.05.2013. The contract period is for 42 months (from 10.05.2013 to 10.10.2016). The loan was extended for 42 months tenure with an EMI of Rs.4,518/-. The subject vehicle was secured to loan and is hypothecated to opposite parties Company. As per the agreed terms and conditions of loan agreement the complainant has agreed for prompt repayment of loan instalment on or before 10th of respective month is the core essence of the loan. The opposite parties further submits that, at the time of execution of the Loan Agreement the Complainant has gone through all the terms and condition of the Loan Agreement and then only the Complainant has signed and executed the Loan Agreement hence it is totally denied by the opposite parties that the complainant has signed on blank form with dotted lines as alleged by the complainant and same is subject to strict proof on records. The opposite parties also states that, the Complainant has opted/chosen repayment of loan EMI by way of cash. It is clearly understood by the petitioner that, prompt repayment of loan installments in time without any delay or default i.e. on or before 10th of respective month is the core essence of the loan agreement. It is also submitted by the opposite parties that, the copies of all loan documents and papers executed and signed by the Complainant were immediately handed over to the complainant. The subject vehicle is a security to the said loan and is duly hypothecated to the opposite parties still closure of the loan. The complainant grossly failed to abide by the terms and conditions of the loan and as on August 14 the complainant was in default of Rs.9,036/- towards installment over dues, Rs.1,672/- towards other over dues along with Rs.1,17,468/- towards 26 future installments but even on repeated requests & reminders by opposite parties the complainant have not taken any efforts to regularize the loan account, constrained by the said attitude of the complainant the opposite parties has recalled entire loan vide loan recall notice dated 11.08.2014 and opposite parties informed the complainant to pay the net outstanding amount of Rs.1,28,176/- even so the complainant not taken any steps for closure of the loan account. As per the right vested on opposite parties company vide clause 27 of loan agreement cum schedule the opposite parties referred the present dispute before sole arbitrator on 08.10.2014. Subsequently complainant filed this complaint.
9. On going through the evidences and records we are of the view that admittedly the complainant paid some installments with nominal delay, subsequently he defaulted in repayment of installments. Subsequently opposite parties initiated Arbitration proceedings to recover the due amount, thereafter the complainant approached before this Forum. As per Ext.B1 Loan Agreement the disputed vehicle was secured to loan and is hypothecated to opposite parties, hence they are entitled to seize the vehicle on default, also as per law they are entitled to collect Additional Finance Charge and incidental charge since the complainant is a defaulter. When complainant defaulted payment as per chart he is not entitled to get repayment mode as per chart. Hence we cannot attribute any kind of deficiency of service from the part of opposite parties. Point No.1 is found accordingly.
10. Point No.2:- Since the Point No.1 is found in favour of opposite parties, the complainant is not entitled to get any relief as prayed. Point No.2 is decided accordingly.
In the result, the complaint is dismissed. No Order as to cost.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 21st day of November 2016.
Date of Filing: 30.11.2015.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Smijesh. Complainant.
Witness for the Opposite Parties:-
OPW1. Babu Thomas. Legal Officer, Bajaj Finance, Kozhikode.
Exhibits for the complainant:
A1. Copy of Registration Certificate.
A2. Copy of Certificate of Insurance cum Policy Schedule.
A3(1) to A3(12). Receipts.
A4(1). Copy of Complaint. Dt:28.11.2015.
A4(2). Receipt of complaint. Dt:28.11.2015.
Exhibits for the opposite parties:-
B1. Copy of Auto Loan Agreement.
B2. Copy of Application cum Agreement.
B3. Copy of Loan Recall Notice. Dt:11.08.2014.
B4. Copy of Notice for Appearance. Dt:29.10.2015.
B5. Account Statement.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
