BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    18^th DAY OF FEBRUARY 2020

Complainant/s: -                           

Sri.Shivanna.V

S/o Sri.Venkataswamappa

Aged about 32 years

R/at Rotary Water

Tank Road, Kottanur

Dinne, J.P.Nagar,

8^th Phase,

Bengaluru-78.

By Adv.

Sri.S.M.Rajashekharaiah

V/s

Opposite party/s:-    

1. Concorde Motors (India) Ltd., 9/8, Diary Circle,

Hosur Road, Opp.Christ College, Bengaluru-29.

Rep. by its Director

By Adv.

Sri.Rishabha Raj Thakur

2. Mahindra & Mahindra Financial Services Ltd.,

Shubhasri Plaza,

#200F, 3^rd Block,

Jayanagar,

Bengaluru-11.

Rep. by its Director  

By Adv.Sri.S.H.Prashanth

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s.12 of Consumer Protection Act 1986, seeking direction against the Opposite Party no.1 & 2 (herein after called as OPs) to take back the car by a valid transfer and refund the entire paid amount of Rs.1,31,796/- along with interest at 18% p.a.,; to pay compensation of Rs.3 lakhs towards deficiency of service; to pay cost and to award such other reliefs.

2. The brief facts of the complaint are as under:

The Complainant submits that, he booked a Tata make Indica-DLS car with OP.1 on 23.08.08 by paying the booking amount of Rs.10,000/-. At the time of booking, OP.1 assured to arrange for providing loan facility from some financial institution for the balance payment and took his signature on many doted forms. OP.1 delivered the said car on 15.09.08 bearing temporary registration no….1525 which was valid till 08.11.08 on payment of Rs.1,21,796/- as down payment charges. Thereafter, the Complainant constantly asking OP.1 about the sanction of loan and permanent RC, but OP.1 dragged the issue on one or the other pretext telling that the loan approval is under process and hence temporary RC is being issued. When temporary RC was about to end on 08.11.08, OP.1 issued another temporary RC bearing no…..1982 which was valid till 10.12.08 and told that the loan was still not approved. When the second temporary RC was also come to an end, the Complainant stopped the running of the car by the act of OP.1. Though made several requests, OP.1 did not answer about the sanction of loan and did not issued RC book. Being aggrieved by the act of OP.1, the Complainant demanded to issue RC book or to return the paid amount. Then the Complainant was getting threat calls from OP.1 demanding for payment of loan amount. He never received any notice or intimation from OP.1 regarding the said car loan. Suddenly on 28.05.09 he lost his car when he parked near J.P.Nagar. Hence, he lodged a police complaint before J.P.Nagar police station. On 23.07.09, the police have called the Complainant stating that OP.2 has seized his car for non-payment of loan. The Complainant submits that, neither he was informed about the sanction of loan to his car nor they issued any notice for seizure of his car. But, the OP.2 put the Complainant under threat to pay the balance amount or to forget his car as they have collected all the signed forms of the Complainant from OP.1. The Complainant further submits that, he is a lay man, with a ray of hope to lead his lively hood invested his hard earned money of Rs.1,31,796/- for the purchase of the said car with OP.1. On the other hand OP.1 had kept the Complainant in complete darkness about his financier and denied from running his car by withholding delivering of his car RC book. OP.2 knowing fully well that they are the financier to the Complainant’s car, it is their duty to inform their hirers regarding the details of loan sanctioned, instalments due and payable by a written communications. Even before repossession another written notice must be sent to the hirers. Finance companies are restrained from stopping the running vehicles on the roads and forcibly pulling out the driver and take possession of the vehicle against all provisions of law. The Complainant was made to give police complaint for having lost his car and after informed by the police, the Complainant came to know about the OP.2’s illegal seizure. The act of OP.1 & 2 is clear case of deficiency of service unfair trade practice and resulted to suffer heavy financial loss, mental agony and trauma. Hence this complaint.

3. OP.1 & 2 did appear and filed separate version denying the contents of the complaint. OP.1 in its version submits that, initially the Complainant approached Tata Motors to avail loan facility. But Tata Motors rejected his loan application, hence he approached OP.2. OP.2 after scrutinizing his papers, temporarily approved to sanction the loan. Hence, the Complainant requested the OP.1 to deliver the said car on 15.09.08 as it was an auspicious day. OP.1 with customer satisfaction in mind, got the confirmation from OP.2 and did a temporary registration for the said car and delivered it to the Complainant. Temporary registration was done for the car as is a regular practice and procedure. Thereafter the Complainant was not ready to pay the 2 advance EMI to the financier/OP.2 though the same was mandatory. Although the OP.2 went out of their way to postpone the EMI date to Jan 2009 as the Complainant expressed inability to prepay the EMIs. Immediately the Complainant refused to honour the two advance EMIs as required under the loan agreement. Due to this delay, the registration formalities could not be completed and hence the temporary registration had to be renewed for the Complainant. However the Complainant was adamant that he would not pay the compounding fee. After the loan amount was released by OP.2, OP.1 called on the Complainant to come to their showroom to complete the registration formalities. However, the Complainant never obliged and on one occasion the Complainant came to the showroom without the vehicle and refused to sign the Form 20 for registration. Subsequently the OP.1 advised and prevailed upon the Complainant to bring his vehicle for registration. When the vehicle was brought by the Complainant for registration it was in a very bad condition and the vehicle had a lot of dents and scratches on it. As the vehicle was to be registered, the Complainant was asked to bring back the vehicle after washing and polishing it otherwise the RTO officials would refuse to register it as a new vehicle on account of the dents and scratches. The OP.1 had advised the Complainant to bring the vehicle on the very next day for registration, but the Complainant failed to do so. Thereafter, OP.2 informed the OP.1 that the vehicle was seized due to default of the terms and conditions of the loan agreement. Non-compliance of loan agreements and reluctance to come for the registration has resulted in the present state of affairs and OP.1 cannot be held responsible for the same. The loan documents and repossession are totally handled by OP.2 and OP.1 has no role to play in the same. Hence on these grounds and other grounds OP.1 prays for dismissal of the complaint.

3a. OP.2 in its version submits that, the Complainant is not a consumer as defined under CP Act as the Complainant has availed the said vehicle/car under a loan agreement. OP.2 further submits that, after looking in to the Complainant’s credibility and the security being offered got sanctioned the loan and for which the loan agreement was entered in to between the Complainant and OP.2, thereby abiding by the terms and conditions of the loan agreement as provided in the same. Towards purchasing the said vehicle, the Complainant availed the loan of Rs.3,22,380/- payable in EMI of Rs.8,955/-. It is pursuant to the said receipt of the loan, the Complainant failed to adhere to the financial discipline of the repayment monthly installments towards the loan availed. He never made the payments on the agreed dates and there was continuous inordinate delay in paying the EMI. Hence, he has become chronic defaulter in not making the payments. Despite several reminders he has failed and neglected to perform his part of the obligation and pay the EMI, hence he has not come up with clean hands as he suppressed the material facts. In order to deprive the OP.2 of their legitimate dues, the Complainant has come up with this false and cooked up story. The OP.2 has exercised the terms as was enunciated in the terms of the agreement in seizing the vehicle and it is nothing but an enforcement of the terms of the agreement and as such there cannot be any sort of allegations against a party seeking for enforcement of the agreement. When the knowledge of the terms and conditions of the said loan came to known, there was no communication required to know about the loan details. Hence, OP.2 submits that he has not committed any act so as to constitute deficiency of service nor amounting to unfair trade practice. Hence prays to dismiss the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. OP.1 & 2 filed respective affidavit evidences. OP.2 produced the documents amongst them 4 were marked.  Both filed written arguments. Further to substantiate his case, the Complainant filed interrogatories to both OP.1 & 2, to which both OPs filed their reply. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the Complainant proves the deficiency of service on the part of OPs, if so, entitled for the relief sought for?

2. What order?

        6. Our answer to the above points are as under:

Point No.1:- In the negative

Point No.2:- As per final order

REASONS

7. This forum by its order dtd.22.04.14 ordered to return the complaint filed by the Complainant holding that this forum has no any territorial jurisdiction. As against the same, the Complainant preferred an appeal before the Hon'ble State Commission in appeal no.938/14 which was came to allow by order dtd.04.09.18 holding that this forum has got jurisdiction to dispose the matter. In the light of the observations made by the Hon'ble State Commission in the said appeal, this case proceeded further.

8. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OPs. The role of the OP.1 by way of filing its version has addressed limited grievances stating that, it is no way concerned with the loan availed by the Complainant from OP.2, but it would only wait for the loan confirmation/rejection from the financier before proceeding in assisting the Complainant through registration formalities. Further submits that, the temporary registration had to be renewed and the formal registration could not be completed on the account of the negligence and non-cooperation of the Complainant. The Complainant’s non-compliance of the loan agreements and reluctance to come for the registration has resulted in the present state of affairs and OP.1 cannot be held responsible for the same. The loan documents and repossession are totally handled by OP.2. Hence OP.1 has no role to play in the same.

9. The main contention of the OP.2 is in respect of availment of the loan by the Complainant as per loan agreement/Doc.17. The relief i.e. sought for by the Complainant is to direct the OP.1 & 2 to take back the said car by a valid transfer and refund the entire amount of Rs.1,31,796/- with interest and compensation of Rs.3 lakhs.

10. For seeking the said relief, it is the contention of the Complainant that, he has purchased the said car from OP.1, the OP.1 made the Complainant to believe that they will provide finance from some financial institutions for the balance payment and took blank signatures of the Complainant on many doted forms. Further contended that, the said car was delivered to him on 15.09.08 on payment of Rs.1,21,796/- as down payment to OP.1 along with necessary registration number.  Thereafter, the Complainant was constantly asking the OP.1 about the sanction of loan to his said car and permanent registration certificate. But the OP.1 used to drag the issue on one or the other pretext telling that his loan approval is under process, hence temporary registration certificate is being issued.

11. The Complainant further contended that, on 28.05.09 he had taken his car to change the engine oil and had parked near J.P.Nagar, Bengaluru. When he returned, his car was missing. Hence, given police complaint before J.P.Nagar police station which was registered under Crime no.290/09. That on 23.07.09, J.P.Nagar police have called the Complainant stating that his car was seized by the OP.2 for non-payment of the loan which act of the OP.2 is unethical and unlawful. Further the Complainant was kept in dark about the financier and was prevented from plying his car by not providing RC book.

12. To falsify the contention raised by the Complainant, OP.2 has specifically stated that, the Complainant has availed the loan and become defaulter in making periodical installments. The Complainant is one of the customers who approached the OP.2 in the year 2008 for financial assistance and by making a necessary application for the purchase of the said car. After explaining the terms and conditions, the loan was sanctioned. In this context, the Complainant agreed to the terms and conditions of the loan and voluntarily entered in to the agreement on 14.12.08, further the loan agreement is a printed document and blank pages. The Complainant availed a loan of Rs.2,52,000/- and had to pay an EMI of Rs.8,955/-, the agreement value was a sum of Rs.3,22,380/-. The Complainant was a chronic defaulter, many number of reminders sent by the OP.2, even as on the date of the complaint, the Complainant was liable to pay the OP.2 a sum of Rs.2,87,219/-. On commission of breach of the said agreement, the OP.2, in terms of the agreement, has taken custody of the said vehicle and invoked the arbitration clause of the agreement.  

13. OP.2 has specifically made out the grounds for dismissal of the complaint on the following grounds;

1. Availing of Loan:

1. The Complainant has alleged in para 8 of the complaint that he was not informed about sanction of loan to his car by the OP.2.  This is completely false and misleading. The Complainant is a customer who approached the OP.2 in 2008 for financial assistance by making necessary application to purchase a Tata Indica-DLS and after explaining the terms and conditions of the loan, the facility was sanctioned.  
2. A proposal was issued on 13.10.08 which was counter signed by the Complainant, co-borrower and the guarantor, which will demonstrate the Complainant was aware of the loan.
3. Further the loan agreement dtd.14.12.08 executed between the parties is a 14 page printed document, which is signed by the Complainant and the guarantor and the co-borrower has affixed his thumb impression. If the case of the Complainant is that they were not aware of the loan being sanctioned by the OP.2 then they will have to explain to this forum, how their signatures came on these documents.
4. The Complainant voluntarily entered in to the agreement and it was within the knowledge of the Complainant, further the terms and conditions of the loan agreement were even explained in the regional language.
5. The Complainant produced affidavit to the OP.2 with their own signature and this fact is suppressed by the Complainant in complaint.
6. In fact the Complainant issued cheques to the OP.2 and three cheques dtd.15.01.09, 17.01.09 and 17.03.09 were dishonored, on dishonored the bank endorsement would have got it to the knowledge of the Complainant about his loan and default.
7. From the above it is clear that the loan agreement was entered in to by the Complainant and it was well within the knowledge of the Complainant that he is signing for the loan agreement.

2. Belated police complaint.

1. The Complainant has given a false story that the vehicle went missing on 28.05.09 and then he gave a police complaint.
2. From the inventory dtd.25.04.09 of the shed where the vehicle was kept i.e. Periplus Services, the vehicle was received by them in to their shed on the said date. Which would mean that the custody of the vehicle was taken in April and not in May 2009.
3. The Complainant had complete knowledge that the OP had taken custody of the vehicle in April but files the false police complaint only in May 2009. No explanation is given for the same.

3. Repossession of the vehicle.

It is submitted that the repossession of the vehicle was done in terms of the agreement clause 12 which deals with consequence of default and with the knowledge of the Complainant. Courts have held that repossession of vehicle for non-payment of due was legal.

4. Notices and reminders

As the Complainant was a chronic defaulter, the OP.2 issued several notices/Doc.15 and reminders and even after initiation of the arbitration process, the arbitrator also issued notices to the Complainant. Even after being completely aware of the loan, the default of the loan, the Complainant chose not to comply by his legal obligation of repaying the loan amount. The Complainant has alleged that he was not served with any notice regarding non-payment of loan, which is completely false and baseless.

5. Exorbitant damages claimed and are baseless

Taking advantage of the beneficial legislation such as the CP Act where the court fee is not high, the Complainant has claimed damages of Rs.3 lakhs. There is no basis of arriving at the said amount, in any case, it is the Complainant who is liable to pay the OP further sum of money towards complete satisfaction of loan amount. The complaint is filed is a lame attempt to deny the OP their rightful money due under the loan agreement. The Complainant hopes that if this complaint is filed the OP will not press for the balance amount due. The Complainant has approached this forum with such ulterior motives.

14. We placed reliance on the said contention taken by the OP.2 with reference to the loan agreement/Doc.17. We found that, the contention taken by the OP.2 is acceptable since the Complainant, co-borrower and guarantor as well as the authorized signatory of the render who is OP.2 subscribed their signature, Co-borrower affixed LTM knowing the contents of the terms and conditions incorporated under the said loan agreement. When the loan agreement made known to the Complainant, co-borrower as well as guarantor, cannot deny the terms and conditions incorporated under the loan agreement. Any evidence let in by the Complainant contrary to the loan agreement is of no avail, since the Complainant has not brought the vehicle for registration and did not pay the EMIs. Though made three instalments through cheques were dishonored which can be seen on going through Ex-B2 to B4. Further the inventory report/Ex-B1 of the said vehicle goes to show that it was badly damaged without having permanent registration. Under such circumstances, the very act of the Complainant is as against the terms and conditions of the loan agreement. When such being the fact, we do not find deficiency of service on the part of OP.1 & 2. Hence, the complaint filed by the Complainant is liable to be dismissed devoid of any merits. Accordingly we answered point No.1 in the negative.

          15. Point No.2: In the result, we passed the following:          

  O R D E R

The complaint filed by the Complainant is dismissed devoid of any merits. Looking to the circumstances of the case we direct both parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 18^th day of February 2020)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.01.12.09, 26.02.19

Sri.Shivanna, the Complainant

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OPs dated.16.12.09, 06.01.10, 23.05.19

Sri.R.Shivaji, Head-Admn., & Facilities, authorized signatory of OP.1

Sri.Narendra Kumar, Legal-Executive of OP.2

Smt.Gayathri Devi.R.L. Manager Legal Defense of OP.2   

Copies of Documents produced by OP.2

            MEMBER                                           PRESIDENT