DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

Dated this the 23^rd day of February 2023.

Filed on: 14.09.2020

PRESENT

Shri.D.B.Binu President

Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member

C.C. No.253/2020

COMPLAINANT

Jisha Mol P B, W/o Uthaman, Parakkalethu House, Chittar, Seethathodu, Pathanamthitta District,

(By Adv.K.S.Arundas #35, DD Oceana Mall, Near Taj Gate Way Hotel,
Marine Drive, Ernakulam-682 031)

Vs.

OPPOSITE PARTIES

1. George Muthoot George, Wholetime Director, Muthoot Vehicles and Asset Finance Ltd, 6th and 7th Floor, Mithun Tower, K P Vallon Road, Kadavanthra, Kochi 682020.

2. The Manager, Muthoot Vehicles and Asset Finance Ltd, Aban Towers, Near Private Bus Stand, Pathanamthitta, Kerala.

(O.p2 rep. by Adv.Sabu S., Adv.Leejoy Mathew V., IND LAW Lawyers & Solicitors, 3^rd Floor, Vallamattom Estate, Ravipuram, M.G.Road, Near Shipyar, Ernakulam)

F I N A L O R D E R

D.B. Binu, President.

1. A brief statement of facts of this complaint is as stated below:

The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that in the month of February 2018, the complainant had contacted the second opposite party for enquiring about a vehicle loan for purchasing a Hyundai i20 Car for their personal use. The second opposite party offered a vehicle loan at the interest rate of "8.5%" for 5 years. Since the said offer was prima facie very attractive, the complainant accepted the same and availed a loan of Rs.5,75,000/- and purchased a Hyundai 120 Manga Car worth Rs.6,80,000/- vide loan account No 170140 on 26.02.2018. As mutually agreed, Rs.10,780/- was the monthly instalment. The complainant was very punctual in repaying the said loan till January 2019 apart from two EMI in October and November 2018 which were due to the worst affected flood in Kerala. In February 2019 due to an unfortunate incident that led to the miscarriage of pregnancy, the complainant was bedridden for 3 months. Because of the treatment, she could not remit the earlier said arrear of 2 EMI of the said loan. the second opposite party reached the residence of the complainant on 28.02.2018 with some local goons and threatened the complainant to repay the said amount without considering the fact that she was a bedridden lady, not physically fit to face the threat. No other family members were present at that time in the residence of the complainant and she expressed her inability to pay the amount at that moment since they were victims of the flood and they spent a huge amount of money for her treatment she sought some breathing time to clear the arrears. The second opposite party instructed the complainant to write a request to the first opposite party, requesting an enlargement of time to clear the arrear amount. Since the complainant was not physically fit to stand up or walk and papers were not available in her home to write a request letter, the second opposite party supplied 2 blank papers and instructed her to write a request. Since the complainant could not write the request as her health condition was very weak, the second opposite party informed her that she need the signature in the middle right portion of the paper and he will write a request and will forward the same to his head office. The car of the complainant was parked in the courtyard of her aunt near her residence. On the same day evening when the husband of the complainant reached home, the complainant narrated the entire incident to him. When he checked the car, the same was found missing. He immediately enquired about the car and the aunt informed him that a service centre person came and collected the key and took the car for periodic service as done earlier. Then her husband immediately contacted the service centre and 2nd opposite party enquiring about the car and the second opposite party admitted that he took possession of the car. The said act of the second opposite party is a violation of statutory procedure and an unfair trade practice. When the husband questioned the same with the second opposite party, he informed that the car will be returned if they continue remitting the next EMI and after processing the request for enlargement of time to pay the arrear. Upon believing the words of the second opposite party, the husband of complainant remitted the next instalment amount on 16.04.2019. Even after remitting the arrear EMI, the second opposite party did not return the car saying lame excuses. But in the meantime, the complainant got a registered notice dated 20.04.2019 stating that if the complainant did not remit an amount of 5,75,000 within 7 days, the car will be sold in a public auction. The said notice is a total violation of what the second opposite party had said and promised earlier. Immediately the husband of the complainant contacted the second opposite party, to which the second opposite party told him that the said notice is only a formal notice from their legal department and the same might be a result of the miscommunication between the legal and finance departments. The complainant remitted the EMI may not have reached the legal section. The second opposite party further directed the complainant to remit the next EMI as agreed earlier. On 13.05.2019 the complainant remitted the next EMI. Even after the remittance of the EMI as per the direction, the car was not returned. The complainant had approached the Commission seeking an order directing the opposite parties to pay the price of the car with the amount paid by the complainant after adjusting the principal amount with interest of 8.23% Per Annum till date the date of taking possession, to pay Rs 3,00,000/- towards compensation for mental agony and unfair trade practice and the cost of litigation.

2. Notice

Notices were issued from the Commission to the opposite parties. The opposite parties received the notice but did not file their versions. Consequently, the opposite parties are set ex-parte.

3) Evidence

The complainant had filed a Proof affidavit and 2 documents that were marked as Exhibits-A-1 and A-2.

Exhibit A-1. Office copy of legal notice dated 23.07.2019

Exhibit A-2. Original reply notice issued by the opposite parties dated 20.09.2019.

4) The main points to be analysed in this case are as follows:

(i) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?

(ii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?

(iii) Costs of the proceedings if any?

5) The issues mentioned above are considered together and are answered as follows:

In the present case in hand, the complaint was filed under Section 35 of the Consumer Protection Act, 2019. As per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced a copy of the legal notice dated 23.07.2019 and the original reply notice issued by the opposite parties dated 20.09.2019. (Exhibit A-1 and A-2).

The counsel for the complainant submitted that no notices were served on the complainant to repay the above-said arrears of 2 instalments or informing her about the consequences of not paying the same. The complainant issued a legal notice dated 23.07.2019 (Exhibit A-1) to the opposite parties demanding to return the car of the complainant within 7 days from the date of receipt of this notice. The complainant expressed her willingness to remit the pending EMI if any. Instead of returning the car by accepting arrear EMI, they issued a reply notice after a period of three months stating that the car was sold in a public auction for a cheaper amount of Rs.5,17,000/-on 27.05.2019. Also, they stated in the notice that 14% is the interest instead of 8.23%, that informed prior to availing of the loan (Exhibit A-2). The said act of the opposite party is a violation of statutory procedure and unfair trade practice. The act of the opposite parties caused much financial loss and stress to the complainant.

It would be quite appropriate to quote here the relevant part of the reply lawyer notice sent by the opposite parties to the complainant. (Exhibit A-2)

“3. It is true as admitted by your client that she had committed default in repaying the loan amount. The reason stated in your notice is not known to my client and hence she may be put to strict proof of the same. The allegation that 2nd among my client along with local goondas threatened your client on 28-02-2018 is totally false and denied. No such incident has occurred. It is only after two days of execution of the agreement that it shows that your client has either mislead you or you have not gone through the brief alleged to be given by your client.

4. When 2^nd among my client demanded you to pay the arrears, your client voluntarily surrendered the vehicle on 29-03-2019 and permitted my client to sell the same for realizing the loan amount. A letter to that effect was also given on the date of surrender. The allegation that 2nd among my client demanded your client to put her signature on a blank paper, is also false and misleading. If the allegations are true and genuine, then your client will certainly move appropriate authority for taking criminal action against my clients. But no such procedures have been initiated by your client, which shows that the allegations are fabricated. After surrendering the vehicle my client issued a registered notice dated 20-04-2019 to your client demanding the balance amount. Though your client accepted the notice, not replied.

5. Further allegations in your notice that the vehicle was taken away from the courtyard of your client's aunty's residence by my client, is also false and hence denied. Your client has made all these allegations with a malafide intention to protract the dispute and thereby avoid repayment of the loan amount. There is no unfair trade practice on my client's part as alleged. The allegation that my client informed your client that the car will be returned if your client remitted the EMI, is absolutely false. My client demanded the entire balance amount and not the defaulted EMI, as evident from my client's notice received by your client.

6. Since your client has not paid the balance amount even after written demand, my client sold the vehicle at public auction on 27-05-2019 for Rs. 5,17,000/-. Even after the sale, an amount of Rs. 83,932/- is still due from your client as on 20-09-2019”.

Hence you may kindly instruct your client to clear the balance amount within seven days from the date of receipt of this notice, failing which I have specific instructions to proceed against your client as well as against the guarantors in the agreement in accordance with the terms and conditions contained in the agreement.”

The Honourable Supreme Court of India in Sgs India Ltd. vs Dolphin International Ltd. on 6 October 2021 (Civil Appellate Jurisdiction Civil Appeal No. 5759 of 2009) held that:

“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. ………….” 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. 5, held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under: - “28. In our opinion, the approach of the Consumer Fora is in complete disregard the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”