ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not paying the amount after confiscating the vehicle for which loan was sanctioned by the OP and for payment of Rs.10,25,300/- being the value of the vehicle after deducting the amount payable towards the loan to the OP and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant purchased lorry bearing Reg. No.KA 50/A 7949 from OP by hypothecating the same and agreeing to pay principal and interest in 48 EMIs at Rs.65,715/- each after paying Rs.1,30,650/- as down payment.  He started paying the installments from 18.03.2019 and as on 20.02.2020 he paid Rs.9,87,580/- including the down payment of Rs.1,30,650/-.  Due to pandemic covid 19 situation, as there was nationwide lock down he could not put the vehicle into use and earn income out of that and that he fell ill due to which he suffered heavy financial loss and could not make or pay the monthly installments to the OPs. The ID value of the vehicle as per the insurance is Rs.27,00,000/-.  He also got the vehicle valued with surveyor /loss assessor S.V.Aravind who assessed the value of the vehicle as on 21.01.2021 that it worth Rs.24,50,000/-.  He is a consumer and OP is a service provider. Inspite of repeated request, OP did not provide time to pay the amount whereas, it seized the vehicle from his hands without giving prior notice and intimation.  OP also failed to pay the balance of amount after deducting the amount which he has paid and which was due after selling the vehicle.  Hence he had to issue a legal notice demanding refund of Rs.10,25,300/- being the amount realized after adjusting the amount paid by him and amount due to the OP.  He is facing much hardship and very difficult to live as he has no income of his own and he had to borrow loan from his friends and well wishers for his day to day living and hence prayed to allow the complaint.

3.      Upon the service of notice, OP appeared before the Commission and filed its version contending that the complaint is not maintainable either in law or on facts and that after the complainant obtaining loan to purchase the said lorry hypothecated the same and did not pay the EMIs regularly and violated the terms and conditions of the loan agreement. Further only ten installments were paid whereas remaining amount was not at all paid.  The total agreed value was Rs.30,22,392/-.  At the time of signing the agreement, the complainant has gone through the contents of the same and afterwards only has affixed signature. Inspite of repeated demands, requests by issuing notice in writing for payment of the amount, complainant did not pay the same.  The vehicle has been secured under hypothecation and as per the various judgements of the Supreme Court, OP is the owner of the vehicle and complainant is in position of the vehicle as a bailee.  

4.      Even after taking position of the vehicle the said vehicle is lying the yard.  When OP approached the complainant for the due payment of the amount and to get the vehicle to his position complainant has not paid the installments.  It has denied the valuation made by the complainant at Rs.24,50,000/- on 21.01.2021 and further disputed that the ID value of the vehicle is Rs.27,00,000/- and that the complainant is entitled for Rs.10,25,300/- being the difference of amount after adjusting the loan due amount and the amount paid by the complainant.

5.      Complainant himself has admitted that he has become a defaulter and if he pays the amount due along with other charges it is ready to hand over the vehicle.  With malafide intention, complainant has filed the complaint to make unlawful gains and further even after repossessing of the vehicle, he has not come forward to pay the loan amount.  Until the option to purchase is exercised by the hirer upon payment of all amounts agreed upon between the hirer and the financier, the financier can continuous to be owner of the goods being the subject of hire purchase. Till such time, the hirer remains a trustee and /or bailee of the goods covered by the hire purchase agreement and the financier can exercise the option of taking repossession of the vehicle under the agreement and proceed to recover the amount due. Whereas, the hirer can exercise the option to purchase by paying the amount. There is no cause of action for the complainant and there is no deficiency in service as they have issued notice prior to taking possession intimating the amount due by the complainant and hence prayed the commission to dismiss the complaint.

6.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT NO.1 AND 2:                In the Negative

                                        For the following.

REASONS

8.     POINT No.1 AND 2:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant purchased the said vehicle by obtaining loan from OPs and hypothecated the same with OP, as admitted by OP, complainant has paid only 10 installments, whereas, complainant claims that he has paid 15 installments and further a down payment of Rs1,30,650/- in all according to the complainant has paid Rs.9,85,580/-, whereas according to the OP complainant ought to have paid 48 EMIs of Rs.65,715/- in order to clear the liability in respect of the loan obtained towards purchase of the said lorry.

          9. We have perused the documents produced by the respective parties. Complainant himself has admitted that he has not paid the installments and in fact he was in financial distress due to the lock down during covid 19 situation and his financial condition was very bad.  Though the same can be accepted he could have paid some amount to OP when the notices were issued to the complainant by OPPOSITE PARTY, demanding the payment of the installments due as on the date of the said notices.  He could have paid some amount and pleaded for extension of the period of repayment.

        10.   Under the hypothecation agreement, OP has every right to take back the possession of the vehicle under the hire purchase agreement, when there is a default by the complainant or the borrower.  But the said right is to be exercised after giving due notice of repossession to the borrower. In this case by issuing notices dated 14.10.2020, 02.12.2020 and 25.02.2021, OP has taken due steps to inform the complainant regarding the due to be paid and demanding the same to be paid, failing which to proceed to take possession of the same.

        11.   It is specifically mentioned by the OP that after taking repossession of the vehicle, the same is still lying in the yard and the complainant can pay the balance of amount and take back the vehicle. In view of this, as there is no pleading in the complaint regarding deficiency in service and as there is no proof of the same, we are of the opinion that the complainant has failed to prove the Point No.1 and hence we answer the same and Point NO.2 in the negative and in the result complainant is not entitled for any of the reliefs claimed and pass the following;

ORDER

1. Complaint is Dismissed. No cost.
2. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 19^TH DAY OF MAY 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Inventory with vehicle

Ex P2: Image photos

Ex. P3: valuation report

Ex P4: Photographs of the vehicle

Ex P5: Account statement issued by the financial

Es P6: Receipt for having paid the amount

Ex P7: Certificate issued by the Hinduja Finance Ltd.,

Ex P8: Legal notice issued by my advocate to OPPOSITE PARTY

Ex P9: Postal acknowledgements

Ex P10: Copy of the RC

Ex P11: Copy of the insurance

Ex P12: Account statement

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

• NIL -

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                 MEMBER                       PRESIDENT

HAV*