BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30th day of March, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.138/2008

Between

Complainant : Jaimol Shaji,

Pullanthanal House

Pandippara P.O.

Thankamony,

Udumbanchola Taluk

(By Adv: Shiji Joseph)

And

Opposite Parties : 1. Mahindra and Mahindra Financial

Service Ltd.,

Regional Office, 4th floor Noel House,

Thrikkakara P.O.

Padumughal[Represented by Regional

Manager]

2. Branch Manager,

Mahindra and Mahindra Financial Service Ltd., friends Buildings,

Puliyanmala Road, Kattappana

Pin:685 507

(Both by Adv: Saji Augustine)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Complainant purchased a new Maruthi 800 car with the financial assistance of the opposite parties, for that an agreement was created between the complainant and the opposite parties on 12/05/2006. The loan amount was Rs.1,74,000/- and the repayment was in 60 equal monthly installments of Rs.3,945 each. Due to financial difficulties, the complainant was not able to repay the loan in time. So the complaint requested the opposite party to take back the vehicle even though he paid Rs.60,000/- initially including tax, insurance, registration etc. Adv. Tomy Palathara went to the 2^nd opposite parties office and surrendered the vehicle on 8/02/07. Along with the vehicle the complainant returned RC, I.C, fitness certificate, permitt and Insurance of the vehicle. The opposite party agreed to give back all the documents issued to them at the time of availing the loan. All the cheque leaves issued by the complainant except one blank cheque, were returned to the complainant at that time. The opposite party told that the blank cheque was sent for collection and hence it would be returned later. Complainant believed the words of the opposite party and gave possession of the vehicle. On 27/07/07 the opposite party issued a Notice for the sale of vehicle and in that Rs.91,286/- was demanded as the balance due payable by the complainant. On 7/11/07 also same demand was repeated by the opposite parties. On 10/03/2008 the opposite party issued a lawyer Notice for Rs.90,000/-. Then the complainant revealed that the opposite party dishonestly with held the cheque No.8560 when the complainant surrendered the vehicle. The complainant never issued a cheque for Rs.90,000/- to the opposite party. When the vehicle was surrendered, the opposite parties are stopped from claiming any further amount. Complainant paid Rs.60,000/- initially for the vehicle. Demand of excess amount is the deficiency in service of opposite party and thus this petition is filed.

2. As per written version of the opposite party, the complainant availed a loan of Rs.1,74,000/- under hire purchase agreement and the period of repayment was in 60 months. The complainant was very irregular in paying the installments. So the vehicle was surrendered to the opposite party. The vehicle was sold in auction sale for Rs.1,10,000/- on 20/07/2007. An amount of Rs.90,000/- was due to the opposite party after the sale of the vehicle. The sale of the vehicle was duly informed to the complainant. The opposite party demanded for the amount and thus the complainant issued a cheque for Rs.90,000/-. The cheque, when produced before the bank for collection, it was dishonoured for lack of fund. Again lawyers Notice was issued to the complainant. But the amount was not paid and so a petition was filed before the JFCM, Aluwa. The case is pending before that Court. The opposite never collected any blank cheque from any person, at any point of transaction. This petition is filed with ulterior motive to ooze out from criminal liability and hence the petition is liable to be dismissed.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P9 marked on the side of the complainant and the oral testimony of DW1 and Ext.R1 to R4 marked on the side of the opposite parties.

5. The POINT :- Complainant is filed for cancelling the hike amount demanded by the opposite party for the dues in a vehicle loan of the complainant. Complainant was examined as PW1. PW1 entered into an agreement with the opposite party, finance company for the financial assistance of a new Maruthi car for Rs.1,74,000/-. The monthly installment was Rs.3,945/- for 60 months. Ext.P1 is the repayment schedule. The complainant was not able to pay the instalments and hence the vehicle was surrendered to the opposite party. An initial payment of Rs.60,000/- including the amount for tax, insurance, registration etc., were paid by the complainant. The complainant with help of his advocate , the vehicle was surrendered to the opposite party, along with R.C, I.C, fitness certificate, permit and insurance. On that day itself, all the documents given to the opposite party except one blank cheque leaf, were returned to the complainant. The opposite party told to the complainant that the blank cheque was sent for collection and hence it would be returned later. Ext.P4 is the letter issued for surrendering the same and Ext.P6 series is the cheque leaves returned from the opposite party. After that, the opposite party demanded an amount of Rs.91,286/- by a notice which is Ext.P7. One witness was examind as PW2, who is the advocate who prepared Ext.P4. As per PW2, the vehicle was surrendered because it was told that the amount of the vehicle would be realised in the liability of the loan. At the time of returning the Ext.P6(series) cheque leaves, the opposite party told that three cheque leaves were given for collection and they would be returned later. The Manager of the 2^nd opposite party was examined as DW1. As per DW1, the loan amount and the surrendering of the vehicle were admitted, Ext.R4 is the loan agreement. But at the time of surrendering the vehicle 7 cheque leaves were returned to the complainant. Total there were 8 number of cheque leaves, one was already passed through their account. The vehicle was sold out for Rs.1,10,000/-. But after that, there is a balance due of Rs.91,286/- Notice was issued for that which is Ext.R1. On receipt of the same notice, the complainant issued a cheque for Rs.90,000/- to the opposite party which is cheque No.8560 dated 14.01.2008. The said cheque was when presented before the bank it was returned due to "insufficient funds". So criminal case u/s 138 of the Negotiable Instrument Act was filed before the JFCM Court, Aluwai against the complainant as CC.2035/2008. Copy of the complaint is Ext.R8. In order to escape from the said liability, this complaint is filed.

As per PW1, the entire liability was closed when the vehicle was surrendered. All the cheque leaves except one which is cheque No.8560 were given back to the complainant. The surrendering was done with the help of PW2 advocate. Ext.P6(series) cheque leaves produced before the Forum, which were returned from the opposite paty are 5 in numbers. As per PW1, 10 number of cheque leaves were given as security at the time of granting loan. But there is no explanation for the other 4 number of cheque leaves. As per PW2, the advocate who prepared of P4 document, for surrendering the vehicle, the value of the vehicle would be accounted in the liability of the loan, no full satisfaction certificate issued by the opposite party at the time of surrendering the vehicle. PW2 deposed that, at the time of surrendering the vehicle, the opposite party assured that 3 cheque leaves were given for collection and they would be returned later. Ext.P6(sereis) cheque leaves were returned at the same time. But there is no explanation for the balance 2 number of cheque leaves. The complainant herself came to the office of the PW2 and signed on P4 document. As per DW1, 8 cheque leaves were issued at the time of purchase of the vehicle and out of that 7 number were returned at the time of surrendering the vehicle and one was already passed through the account. On perusing the evidence, there is entire contradiction in the evidence of PW1 and PW2. We think that some material facts are hiding by the witness. It may be true that three number of cheque leaves were not given back by the opposite party at the time of surrendering the vehicle. But the advocate who prepared the ExtP4 did not mention about the number of the cheque leaves, which were not returend. The vehicle was using by the complainant for 1 year. But PW1is not aware of any facts of this case when she was cross examined by the learned counsel for the opposite party. As per the opposite party the statutary lawyer notice for NI Act was issued on 10.03.2008 and a criminal case was filed on 30.04.2008. This petition is filed before this Forum on 22.08.2008 for escaping from the liability in the criminal case. As per DW1, the complainant paid only one installment in the loan and used the vehicle as taxi for 1 year. The vehicle was surrendered and all the liabilities were closed. So we think that the version of PW1 is not believable on considering the evidence and the petitioner failed to prove his case.

Hence the petition dismissed and no cost is ordered against the petitioner.

Pronounced in the Open Forum on this the 30th day of March, 2009.

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT.SHEELA JACOB(MEMBER)

Sd/-

SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Jaimol Shaji

PW2 - Joseph Mathew

On the side of Opposite Parties :

DW1 - Anoop N.C.

Exhibits:

On the side of Complainant:

Ext.P1 - Copy of C.C repayment schedule dated 25/07/2006

Ext.P2 - Cash Receipt dated 22/12/2006 for Rs.6,000/-

Ext.P3 - Copy of RC book

Ext.P4 - Copy of letter issued for surrendering the vehicle.

Ext.P5 - Copy of Vehicle Inventory Report

Ext.P6(series) - cheque leaves returned from the opposite party(5nos).

Ext.P7 - Lawyer Notice dated 7/11/2007.

Ext.P8 - Lawyer Notice dated 10/03/2008 addressed to the complainant.

Ext.P9 - Reply Notice dated 18/04/2008

On the side of Opposite Parties :

Ext.R1 - Copy of Sale Notice

Ext.R2 - Copy of receipt dated 25/07/2007 for Rs.1,10,000/-

Ext.R3 - Copy of the complaint filed before the JFCM, Aluwa.

Ext.R4 - Copy of loan agreement