Date of filing:15.5.2014
Date of Disposal:21.10.2014
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II::
VIJAYAWADA, KRISHNA DISTRICT.
Present: SMT N. TRIPURA SUNDARI, B. COM., B. L., PRESIDENT (FAC)
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
TUESDAY, THE 21ST DAY OF OCTOBER, 2014.
C.C.No.114 OF 2014
Between :
Velagaleti Naga Mani, W/o Sai Durga Prasad, Hindu, 32 years, House Wife, R/o D.No.52-4-38/1, Vijay Nagar Colony, Gunadala, Vijayawada – 5
. ….. Complainant.
And
The Managing Director, Kusalava Finance Ltd., D.No.40-2-16, Chukkapalli Vari Street, Labbipet, Vijayawada 10.
…....Opposite Party.
This complaint is coming before us for final hearing on 13.10.2014 in the presence of Sri M.Adinarayana Rao, Advocate for the complainant and Sri S.Hanumath Prasad, Advocate for opposite party and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble President (FAC) Smt N. Tripura Sundari)
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
The averments of the complaint are in brief:
1. The complainant take financial assistance of Rs.5,00,000/- from the opposite party on 23.5.2013 hiring Innova vehicle. The loan amount is payable in 36 monthly instalments at the rate of Rs.22,000/- per month. The opposite party sanctioned the said loan amount with simple interest at 1.20ps per month. Subsequently the complainant paid Rs.20,000/- on 27.6.2013 Rs.15,000/- on 16.10.2013 and Rs.19,000 on 10.12.2013 totaling to Rs.54,000/-. Later due to Samaikya Andhra agitation the vehicle of the complainant was not hired by the officers due to which the complainant was unable to pay the monthly EMIs regularly. While the matter stood thus the opposite party got issued a notice dated 5.2.2014 demanding the complainant to pay Rs.1,52,000/- towards pending instalments and Rs.8,000/- towards penal interest. The amount demanded by the opposite party is not correct and the opposite party charged huge interest on outstanding amount though they agreed to charge Rs.1.20ps per month. The complainant paid Rs.20,000/- on 10.1.2014 and Rs.15,000/- on 6.3.2014. The complainant approached the opposite party and requested them that she will clear all the dues within three months but the opposite party refused to the said proposal when the complainant approached the opposite party on 10.4.2014 and requested them to receive Rs.50,000/- and issue receipt. The opposite party refused to receive the said amount and demanded the complainant to clear the entire due amount until then the opposite party is trying to seize the vehicle and the opposite party colluded with third parties to sell the vehicle at minimum cost if the opposite party succeeded in their attempts in sale of the vehicle the complainant sustains huge loss and she is also suffers untold mental agony. The opposite party has no right to seize the vehicle without any prior notice and accordingly they committed deficiency in service. Hence the complainant is constrained to file this complaint against the opposite party praying the Forum to direct the opposite party not to seize the complainant’s vehicle bearing No.AP 28 AR 1827 Innova car without issue any notice or without process of law to issue account copy without any penal interest, to direct the opposite party to refinance to the complainant’s vehicle, to pay Rs.50,000/- towards compensation for deficiency in service to pay Rs.25,000/- towards mental agony and to pay Rs.5,000/- as costs.
2. The version of the opposite party is in brief:
The opposite party denied all the allegations of the complaint and submitted that the complainant approached the opposite party seeking finance to purchase the vehicle AP 28 AR 1827 from its registered owner Venkataramana Raju. Upon agreeing to the terms and conditions of this opposite party the complainant and her guarantors executed all the necessary documents including hypothecation agreement. The opposite party paid a sum of Rs.5,00,000/- to D.Venkataramana Raju on 23.5.2013 on behalf of the complainant. In terms of the agreement the complainant along with Rebba Prasad, Venkata Chandra Sekhar, and Velagaleti Sai Durga Prasad signed on the hypothecation agreement in favour of the opposite party. In terms of the said agreement from 23.5.2013 onwards the complainant has to pay a sum of Rs.22,000/- per month on the respective due dates for total period of 36 months. The complainant failed to fulfill the terms of contract and committed default in payment of monthly instalments. In terms of the agreement the opposite party is entitled to seize the vehicle to enable this opposite party to recover the dues and that complainant had no right to oppose unless the complainant fulfill all her obligations under the agreement. The complainant has paid Rs.20,000/-, Rs.12,000/-, Rs.14,000/-, Rs.15,000/- on 27.6.2013, 17.10.2013, 11.12.2013 and 7.3.2014 respectively totaling to Rs.61,000/- but not the amount as claimed by the complainant. The opposite party is entitled to interest on delayed payments if committing defaults in payment of monthly instalments. The opposite party served a notice to the complainant to pay dues along with interest for delayed payment. Inspite of the said notice to complainant did not fulfill the same. As such the opposite party intends to exercise their rights in terms of contract i.e., by seizing the vehicle to recover the dues. There is no deficiency in service on the part of the opposite party and prayed to dismiss the complaint with costs.
3. On behalf of the complainant Ex.A.1 to Ex.A.7 are marked and on behalf of the opposite party Sri K.Koteswara Rao, General Manager of the opposite party gave his affidavit and no document is marked.
4. Heard and perused.
5. Now the points that arise for consideration in this complaint are;
1. Whether there is any deficiency in service on the part of the opposite party towards the complainant in trying to seize the vehicle of her though she intends to pay the dues?
2. If so is she entitled for any relief?
3. To what relief the complainant is entitled?
POINTS 1 AND 2:-
6. On perusing the documents on hand, the complainant stated that she obtained finance assistance of Rs.5,00,000/- from the opposite party on 23.5.2013 hiring Innova vehicle. Ex.A.1 certificate of registration shows the complainant owned that vehicle on hypothecation from opposite party. The loan amount has to be payable in 36 monthly instalments at the rate of Rs.22,000/- per month with 1.20ps interest per month. Ex.A.2 evidences the same. The complainant paid Rs.20,000/- on 27.6.2013, Rs.15,000/- on 16.10.2013 and Rs.19,000/- on 10.12.2013 under Ex.A.3 to Ex.A.5 respectively. While the complainant unable to pay the due instalments due to Samaikya Andhra agitation, as the car was not hired, the opposite party issued a legal notice Ex.A.6 dated 5.2.2014 demanding the complainant to pay Rs.1,52,000/- towards pending instalments and Rs.8,000/- towards penal interest. The complainant paid Rs.20,000/- on 10.1.2014. But there is no proof to say that she paid Rs.20,000/-, she paid Rs.15,000/- on 6.3.2014 under Ex.A.7. The complainant approached the opposite party on 10.4.2014 and requested to receive Rs.50,000/- and to issue receipt, but the opposite party refused to take the said amount and demanded to clear the entire loan amount. But there is no documentary evidence to show that the complainant approached the opposite party on 10.4.2014 and requested to receive Rs.50,000/- as part payment. The complainant stated that the opposite party is trying to seize the vehicle and the opposite party colluded with third party to sell the vehicle at minimum cost. If the opposite party seize the vehicle and sells it to third party she will sustain huge loss and the opposite party has no right to seize the vehicle without any prior notice. She filed a petition before the Forum praying the Forum to pass an ex-parte interim order directing the respondent not to seize her vehicle Innova car without issue any notice or through process of law till disposal of the complaint. Notice was issued to respondent in the said I.A.108/2014 and the respondent appeared and filed their counter and account extract copy. On 23.6.2014 the petitioner/complainant counsel stated that the petitioner would pay Rs.1,00,000/- to the respondent. The matter is posted to 2.7.2014 but the petitioner did not pay the said amount to the respondent and the Forum gave a conditional order if the petitioner fail to pay proposed amount, the respondent may take action in terms of agreement and posted the matter to 9.7.2014. As the payment was not made by the petitioner on 9.7.2014, the Forum dismissed the petition at 4.55pm on 9.7.2014. Meanwhile the complainant filed another petition I.A.No.139/2014 on 10.7.2014 praying the Forum to restore the I.A.108/2014, and she is ready to pay Rs.50,000/- towards part payment. Notice was issued to respondent and on 15.7.2014 heard both sides and passed an order stating that the Forum has no power to restore the dismissal I.A.108/2014 hence the petition is dismissed.
7. The opposite party denied the allegations of the complainant and admitted that the payments made by her except the payment of Rs.20,000/- on 14.1.2014 as alleged by the complainant. The opposite party submitted that complainant availed the hypothecation loan of Rs.5,00,000/- from the opposite party to purchase the vehicle from its registered owner one Venkata Ramana Raju, agreeing to the terms and conditions of the opposite party she and her guarantor executed all the necessary documents including hypothecation agreement. The opposite party paid Rs.5,00,000/- to the owner of the car on behalf of the complainant on 23.5.2013, and she has to pay the said amount in 36 monthly instalments, at the rate of Rs.22,000/- per month. But she made part payments of Rs.20,000/-, Rs.12,000/- and Rs.14,000/- and Rs.15,000/- on 27.6.2013, 17.10.2013, 11.12.2013 and 7.3.2014 respectively total Rs.64,000/- and she was defaulted in paying the amount regularly. The opposite party is entitled for interest on delayed payments. The opposite party served a legal notice on 5.2.2014 to pay the due amount but the complainant did not fulfill the same. As such the opposite party intends to exercise their rights in terms of contract i.e., by seizing the vehicle to recover the dues.
8. On thorough examination of Ex.A.2 the complainant has to pay Rs.22,000/- on 23.6.2013 but she paid Rs.20,000/- on 27.6.2013; she did not pay instalments of 23.7.2013, 23.8.2013, and 23.9.2013 and she paid only Rs.15,000/- on 16.10.2013 she did not pay the instalment on 23.11.2013 and she paid part payment of Rs.19,000/- on 10.12.2013, she failed to pay the instalments of 23.1.2013 and 23.2.2013 with due instalments and paid only Rs.15,000/- on 6.3.2014. She has to pay Rs.1,76,000/- upto 23.3.2014, but she paid only Rs.69,000/- as per Ex.A.3 to Ex.A.5 and Ex.A.7. After filing the I.A. for interim order in this Forum the Forum granted so much time from 23.5.2014 to 9.7.2014 to pay Rs.1,00,000/- as promised by the petitioner. But the petitioner did not utilize the time as granted by the Forum and failed to pay the same. As the petitioner failed to pay the same amount the Forum dismissed the I.A.108/2014 as per conditional order given on 2.7.2014.
9. Hence as per the above facts and circumstances we hold that there is no deficiency in service on the part of opposite party towards the complainant and the complainant is not entitled for any relief as prayed by her as she was defaulted in paying the instalments.
10. The opposite party relied the citations held in
1. 2010(2) CPR 140 (NC) Financer can repossess the vehicle if the agreement permits the financer to take possession of the financed vehicle.
2. 2010(4) C(R 132 (NC) repossession of vehicle by financier with prior notice is not illegal.
In view of above facts and the citations filed by the opposite party the complaint deserves to be dismissed.
POINT NO.3:-
11. In the result, the complaint is dismissed without costs.
Typewritten by Stenographer, corrected by me and pronounced by us in the open Forum, this the 21st day of October, 2014.
PRESIDENT(FAC) MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant: For the opposite parties:-
None. D.W.1 K.Koteswara Rao
General Manager of the
opposite party
(by affidavit)
DOCUMENTS MARKED
On behalf of the Complainant:-
Ex.A.1 . . Photocopy of certificate of registration.
Ex.A.2 . . Photocopy of instalment schedule.
Ex.A.3 27.06.2013 Photocopy of receipt for Rs.20,000/- issued by the opposite party.
Ex.A.4 16.10.2013 Photocopy of receipt for Rs.15,000/- issued by the opposite party.
Ex.A.5 10.12.2013 Photocopy of receipt for Rs.19,000/- issued by the opposite party.
Ex.A.6 05.02.2014 Notice issued by the opposite party to the complainant..
Ex.A.7 06.03.2014 Photocopy of receipt for Rs.15,000/- issued by the opposite party.
For the opposite parties:-
Nil.
PRESIDENT(FAC)
