J U D G E M E N T
1. The complaint is filed by the complainant against the OPs U/s.12 of Consumer Protection Act, 1986.
2. The complaint in brief is that the complainant purchased Ape Truck bearing No. KA-33/7033 from OP-1 on 29.10.2009. On 23-09-2010, the complainant brought the said vehicle to the showroom of OP-1 for servicing. At that time the OP-1 informed to the complainant that there is problem in the gear box and it has to be replaced. The said vehicle was under warranty and the complainant left the vehicle for repair of gear box in the showroom of OP-1. However the OP-1 did not repair the vehicle and postponed the same by giving one or the other reason. As the vehicle was under warranty the OP-1 should have delivered the vehicle and handed over it to the complainant, but the OP-1 without doing the same delivered the vehicle to the OP-2, without the knowledge of the complainant. The OP-1 has no right whatsoever to hand over the vehicle to OP-2. The complainant to earn his livelihood hiring it and was getting Rs.10,000/- per month from it. As the vehicle is with the OP-1 since 35 months, the complainant suffered loss of Rs.3,50,000/-. The complainant by obtaining loan of Rs.1,85,000/- from OP-2, purchased the said vehicle and in 35 installments of Rs.6,991/-, it has to be repaid beginning from 27.11.2009 to 27.08.2012. The complainant paid 14 installments regularly till the vehicle was kept with OP-1. The OP-2 without any enquiry and notice had sold the vehicle of the complainant. The complainant came to know about it after the receipt of notice dated 02.05.13 from OP-2 that the vehicle was sold for an amount of Rs.30,000/-. Regarding the sale of the vehicle the OP-2 has not issued any notice to the complainant. Due to this the complainant suffered loss and the act of the OP-2 amounts to deficiency in service. Therefore they are liable to pay Rs.2,00,000/- to the complainant. The Vehicle being new one, it should have been sold for Rs.2,00,000/-. OP-1 and 2 colluded together and sold the said vehicle to cause loss to the complainant. The complainant received the notice on 02.05.2013 that he is due Rs.1,90,763/-. For the said notice, the complainant gave reply through his lawyer stating that the vehicle was left with OP-1 and same may be delivered back to him within 15 days and it was not delivered by OP-1. The defect in the vehicle was manufacturing defect. Hence the OP-1 is liable to hand over the said vehicle or replace it with new one. The complainant is in dire need of vehicle to transport the goods for hire. Due to non availability of said vehicle, the complainant suffered total loss of Rs.6,50,000/-. Therefore the complaint seeking reliefs as prayed for.
3. The OP-1 filed the written version stating that, it is true that the complainant purchased the vehicle on 29.10.2009 and he brought it for servicing on 23.9.2009 and after servicing, he took the delivery of the said vehicle immediately on 23.09.2010 itself. It is denied that at that time, the OP-1 informed that there is problem in the gear box and the same is to be replaced. This is a created story by the complainant for the purposes of filing the false complaint. There was no problem in the gear box. The contents of para-3 and 4 of the complaint are false. The complainant has not handled the vehicle properly, so he got it repaired several times from OP-1 and lastly he left the said vehicle with the OP-1 on 07.01.2011 for repair. The complainant never approached the OP-1 for taking delivery of the said vehicle even though he was requested several times. The complainant admitted the said facts in his reply notice issued to the counsel for OP-2 through Mr. V.N. Miskin Advocate, Gulbrga. The contents of Para-6 of the complaint are false and is denied. It is denied that the OP-1 has no right whatsoever over the vehicle to hand over it to OP-2 and has not informed about handing over the same. It is denied that the complainant used the vehicle for hire and earning Rs.10,000/- per month and it was left with OP-1 on 29.10.2009 to 2010 and 29.-09.2013 totally 35 months and he sustained loss of Rs. 3,50,000/-. It is also denied that there is deficiency in service by OP-1 and therefore is liable to pay Rs.3,50,000/- to the complainant. The vehicle was left with OP-1 since 07.01.2011 and OP-1 requested the complainant several times over phone but he had not taken the delivery of the said vehicle. Therefore there is no negligence on the part of the OP-1 as alleged by the complainant. It is specifically denied that the vehicle was left with OP-1 on 29.10.2010. The OP-2 had seized the said vehicle from the custody of OP-1 after following all the procedures. The contents of Para-8 & 9 of the complaint are denied for want of knowledge. The contents of para-10 of the complaint are false. The complainant never approached the OP-1 for taking delivery of the vehicle. The complainant himself is in due towards repair charges to the OP-1 and he has not paid the same. The contents of Para-11 of the complaint are false. It is denied that there was manufacturing defect in the vehicle and OP-1 is liable to hand over the same or replace the vehicle with new one. There is no negligence or deficiency in service on the part of the OP-1. There is no cause of action to file the complaint against the OP-1. Therefore the complaint be dismissed with cost.
4. The OP-2 filed the written version stating that the claim of the complainant is arbitrary and without any base and filed with ulterior motive to derive unfair financial advantage/gain. The allegations made in the complaint regarding alleged deficiency in service are all false, frivolous, fictitious, vexatious, totally unfounded and unacceptable both in law and on facts. The entire allegations made in the complaint are not specific and true in nature. The complainant had neither assigned nor provided any valid or cogent reason in his complaint for grant of reliefs as prayed for. On the other hand, the complainant is guilty of suppretio vari suggestio falsie and as such the entire complaint is to be dismissed in limine. The contents of para-2 of the complaint that the complainant purchased vehicle No.KA-33/7033 by availing loan from OP-2 is admitted and rest of the contents of the said para are denied for want of knowledge. The contents of para- 3 to 6 of the complaint are denied for want of knowledge as the OP-2 was not privy to discussions between the complainant and the OP-1. The contents of para-7 of the complaint are denied as false and the true fact is that the complainant obtained loan of Rs. 1,85,000/- from OP-2 with interest of 11.2% which is to be Rs.62,160/- and entered into the loan and hypothecation agreement in respect of vehicle bearing No.KA-33/7033 with total agreement value of Rs.2,47,160/- by agreeing and undertaking to repay the same in 36 monthly installments of Rs.6,991/- for the 1st to 35th monthly installments and Rs.2,475/- for 36th installment. But the complainant had not made repayment as per agreement. The contents of para8(9) are denied as false. The OP-2 exercised the rights given under loan agreement and sold the seized vehicle after following due procedures. The contents of para-9(7) and 10 of the complaint are denied as false. The OP-2 issued demand notice for making repayment of due loan amount. The contents of para-11 of the complaint are denied as false. The OP-2 acted only as per the rights given under the loan agreement and exercised the rights, hence there is no any kind of deficiency in service on the part of the OP and the OP-2 is not liable to pay any kind of damages to complainant. The contents of para-12 are denied as false. The complainant is a defaulter of OP-2. Hence the complainant is liable to pay the due loan amount with agreed interest to OP-2 as the litigant cannot avoid payment of due loan amount to financier raising these kinds of false dispute. The contents of para-14 of the complaint are false. There is no cause of action to file the complaint. The contents of para-16 of the complaint are denied as false. This forum has no jurisdiction to try the complaint as the disputes arising out of the loan agreement are to be referred to arbitrator or to be tried by the civil court. The complainant unnecessarily driven this OP-2 before this Forum by filing false and dubious complaint with sole intention to harass this OP-2. The relation between the complaint and the OP-2 is that of a borrower and creditor and hence, the complainant is not the consumer within the provisions of Consumer Protection Act and also the transaction is for commercial purpose and hence this Forum has no jurisdiction to entertain the complaint against the OP-2. Hence the complainant is not a consumer within the meaning of section 2(1) of C.P. Act. Therefore, it is prayed that this aspect of the complaint may kindly be heard and decided as a preliminary issue before proceeding with merits of the complaint. The averments of para-7 of the complaint with regard to number of total installments and repayment from 27.11.2009 to 27.08.2012 and each installments fixed at the rate of Rs.6,991/- per month, it is denied as false. But true fact is that the complainant had obtained the loan of Rs.1,85,000/- from OP-2 with interest of 11.2% which is Rs.62,160/- and the complainant entered into a loan-cum-hypothecation agreement on 27.10.2009 in respect of the vehicle bearing registration No. KA-33/7033 with total agreement value of Rs.2,47,160/- agreeing and undertaking to repay the same in 36 monthly installments of Rs. 6,991/- for the 1st to 35th monthly installment and Rs.2,475/- for 36th last monthly installment. The averments that, the OP-2 sold the vehicle without any enquiry, notice, is totally denied as false and baseless, because before the repossession of said vehicle, the OP-2 issued a notice to complainant to repay due loan installments, if failed to repay, OP-2 will take legal action and after receipt of notice and oral demand made by the OP-2, the complainant voluntary gave a letter in writing on 30.01.2012 to OP-2 stating that he has no objection to take delivery of vehicle from OP-1. The OP-2 seized/repossessed the vehicle from OP-1 and issued a sale notice dated 25.10.2012 to the complainant to settle the loan account. The OP-2 has sold the vehicle with best available market value. The complainant executed the agreement as borrower and the second OP executed the same as guarantor whereby they guaranteed to pay all the amount due under the agreement without any notice and on demand. The complainant had committed default in payment of the monthly installments and therefore by invoking the provisions of the agreement, the OP called for the complainant to settle the outstanding but complainant not turned up to clear the outstanding dues. Hence the OP-2 after following the procedures of sale, sold the vehicle of the complainant for the best available market price of Rs.30,000/- and adjusted the sale proceeds to complainant’s loan account. Even after receiving the same, the complainant has not bothered to settle the outstanding a sum of Rs.1,90,763/-. The complainant has paid only some installments and has not cleared the installments as on due date. Therefore, as per the terms and condition of the loan cum hypothecation agreement by invoking the agreement condition at 6(b) and 7(7.1) the vehicle was seized and sold by the OP-2. This OP-2 denies the contents of complaint, which are not specifically admitted to be true. Hence the complaint be dismissed with cost in the interest of justice.
5. The complainant to prove his case, as his evidence, filed his affidavit, which is marked as PW-1 and got marked 9 documents as Exh.P-1 to P-9. The OPs as their evidence, filed their affidavits, which are marked as RW-1 and 2 and got marked 17 documents as Exh.R-1 to R-17.
6. Heard arguments.
7. The points that arise for our consideration are;
1) Whether the complainant has proved deficiency in service on the part of the OPs against him?
2) Whether the complainant is entitled for the reliefs prayed for?
3) What order?
8. The findings on the above points are as under;
1) In the negative.
2) In the negative
3) As per final order for the following;
:: REASONS ::
9. Point No.1 :
The OPs admitting the purchase of Ape truck bearing No.KA-33/7033 from the OP-1 by obtaining finance from OP-2, justified the repossession of the vehicle by the OP-2 stating that, the complainant obtained loan of Rs.1,85,000/- from the OP-2 which is repayable with interest at 11.2% per annum and entered into loan-cum-hypothecation agreement for total value of Rs.2,47,160/- by agreeing and undertaking to repay the said loan amount in 36 monthly installments of Rs.6991/- each for 1st to 35th installment and Rs.2,475/- for 36th installment, but the complainant had not repaid the said installments as per agreement and therefore, the OP No.2 exercised rights given under the loan agreement and after issuing demand notice for making repayment of due loan amount, repossessed the said vehicle and after issuing the sale notice dated 25.10.2012, sold the vehicle for best available market value and therefore there is no negligence or deficiency in service on the part of the OPs.
10. Perused the material evidence placed before us by both sides. The loan-cum-hypothecation agreement produced by the OPs is marked as Exh.R-1. As per the repayment schedule attached to the said agreement, the complainant was liable to pay monthly installment of Rs.6,991/- beginning from 5.12.2009 and ending on 5.11.2012. There is no dispute from the complainant with regard to the loan-cum-hypothecation agreement and the repayment schedule produced by the OPs. As per the complainant himself and as per Exh.P-7 which is the copy of the passbook issued to the complainant, he made repayment of the loan amount at the rate Rs.7,000/- per month for 14 months only and thereafter he never made any payment. For the said repayment, the OP No.2 had issued 13 receipts as per Exh.P-9. For not making further repayment as per the repayment schedule, the reason given by the complainant is that, on 23.9.2010, he brought the vehicle in question to the showroom of OP-1 for servicing and at that time, the OP No.1 informed that, there was problem with gear box in the said vehicle and therefore, the complainant left the vehicle there for repair of the gear box and the OP-1 bound to repair the said vehicle as the vehicle was under warranty, free of cost and hand over it to the complainant, instead, he handed over the vehicle to the OP-2, who sold it for Rs.30,000/-. However, the complainant has not produced any evidence to show that, he kept the vehicle with the OP-1 for repair purpose on 23.9.2010 and the OP-1 never repaired and handed over the vehicle to him. As per the OP-1, after servicing, the complainant took delivery of the vehicle immediately on 23.9.2010 itself and there was no problem in gear box, as alleged by the complainant and the complainant created the story for filing the complaint and as the complainant had not handled the vehicle properly, he left the vehicle for repair on 7.1.2011 and thereafter never turned up to take delivery of the said vehicle even though requested several times, which fact was admitted by the complainant in the notice issued on his behalf by his counsel Mr. V.N. Miskin, Advocate, Gulbarga, which is marked as Exh.R-17.
11. As the complainant never paid the installments due to the OP-2 as agreed under loan-cum-hypothecation agreement, the OP-2 has got every right to repossess the vehicle and to sell it for the recovery of the amount due to them from the complainant. Before repossession and sale of the vehicle, the OP-2 had given notices which are as per Exh.R-3, which was served on the complainant as per Exh.R-5 postal acknowledgement and Exh.R-7 which was served on the complainant as per Exh.R-11 copy of the postal acknowledgement. The complainant has not produced any material to show that the vehicle purchased by him was having inherent manufacturing defect. On the basis of the complainant’s version that the said vehicle is having manufacturing defect, we cannot come to the said conclusion and cannot order for replacement of the vehicle or to pay the amount paid by the complainant for the said vehicle.
12. Considering all the above aspects, we come to the conclusion that, there is no deficiency in service on the part of the OPs. Accordingly this point is answered in the negative.
13. Point No.2 :
As the complainant has failed to prove his case and deficiency in service on the part of the OPs, he is not entitled for any reliefs prayed for in the complaint. Accordingly this point is answered in the Negative.
14. Point No.3 :-
As per order below;
ORDER
The complaint filed by the complainant is dismissed.
There is no order as to cost.
Intimate the parties accordingly.
(Dictated to the Stenographer, transcribed by him, corrected by me and then pronounced in the open Court on this the 15th day of March 2014)
