Andhra Pradesh

Chittoor-II at triputi

CC/37/2013

Sowdepalli Madhava Rao,S/o. S.Kondaiah, - Complainant(s)

Versus

Shriram City Union Finance Ltd.,By its Authorised Signatory, - Opp.Party(s)

G.Ramaiah Pillai

19 Feb 2014

ORDER

Filing Date:10.06.2013

Order Date: 19.02.2014

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

PRESENT: Sri.M.Anand, President (FAC),

        Smt. T.Anitha, Member

 

WEDNESDAY THE NINTEENTH DAY OF FEBRUARY, TWO THOUSAND AND FOURTEEN

 

C.C.No.37/2013

 

Between

 

Sowdepalli Madhava Rao,

S/o. S.Kondaiah,

Permanent resident at

8-18, Sowdepalli,

Mambedu Post,

Vedurukuppam Mandal,

Chittoor District.

 

Presently residing at:

207, Prakasam Road,

Tirupati.                                                                                             … Complainant

 

And

 

Shriram City Union Finance Ltd.,

By its Authorised Signatory,

D.No.138-A, 1^st Floor, T.K.Street,

Opposite Tyagaraja Mandapam,

Tirupati.                                                                                             …  Opposite party.

 

            This complaint coming on before us for final hearing on 12.02.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.G.Ramaiah Pillai, counsel for the complainant and Sri.D.Jayachandra, counsel for the opposite party, and having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERED BY SRI. M.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

 

            This is a complaint filed under Sections-12 and 14 of C.P.Act, against the opposite party for re-delivery of motorcycle bearing No.AP03 AV 4006 and for compensation of Rs.1,00,000/- and for costs of Rs.2,000/-. Hence the complaint.

2. The brief facts of the case that are:-  The complainant availed a loan of Rs.55,000/- from the opposite party and purchased a motorcycle bearing No.AP03 AV 4006 for Rs.66,791/- and also got the vehicle insured with New India Assurance Company, Tirupati. The complainant paid Rs.3,014/- per month towards equal monthly equal installments and paid 7 monthly installments and subsequently became defaulter. It is further stated that on 09.01.2013, the opposite party seized the motorcycle bearing No.AP03 AV 4006 forcibly from the house of the complainant in his absence without giving notice on the ground that he became defaulter in payment of monthly installments for the amount due to the opposite party. On 13.03.2013, the complainant got issued legal notice to the opposite party to release the vehicle and ready to pay the balance amount, which has to be paid on or before 18.11.2013 as per the agreement. On 13.03.2013, the complainant also addressed a letter to RTO, Tirupati, with a request to effect any transfer of the vehicle in the name of the 3^rd party. The complainant further stated that the opposite party got issued notice on 16.04.2013 informing him that the opposite party sold away the vehicle for Rs.32,000/- for non-payment of dues, sale proceeds adjusted to the loan amount and still the complainant has to pay Rs.20,236/-. It is further stated that no pre-sale notice dt:02.02.2013 was served to the complainant, which was issued to his previous address knowing that the complainant is residing at 207, Prakasam Road, Tirupati. After sale, the opposite party again sent a 2^nd notice to the complainant to the present address. The complainant again got issued legal notice to the opposite party on 25.04.2013 and telegram on 22.05.2013, requesting the opposite party to furnish information, a copy of the loan agreement, to enable him to pay the amount left unpaid by him. But no reply is given by the opposite party. It is further stated that the vehicle bearing No. AP03 AV 4066 involved in crime No.33/2012 of Alipiri P.S., on 04.03.2012, police seized the said vehicle and later it was released by the Court with a condition to produce the vehicle whenever required by the Court. The complainant further stated that the opposite party sold away the vehicle motorcycle to a lesser price and that the complainant was put to pecuniary loss besides deprived him for use of the vehicle for conveyances. It is further stated that the complainant has to produce the vehicle before the Court in crime No.33/2012. He prayed the Forum to release the vehicle to him by receiving the balance amount under the loan account and to pay Rs.200/- per day from 01.09.2013 towards charges for his conveyance and to pay Rs.1,00,000/- towards compensation for causing mental agony and Rs.2,000/- towards costs. Hence the complaint.        

3.  The opposite party filed written version admitting that the complainant availed loan of Rs.55,000/- for purchase of ‘Bajaj Pulser’ under an agreement and promised to repay the same in monthly installments at Rs.3,014/-  each and paid 7 installments to a sum of Rs.21,100/- and thereafter committed default for the remaining 17 installments. The opposite party alleged that the complainant committed breach of terms of the agreement and that he seized the vehicle on 09.01.2013 in the presence of the complainant and he executed seizure and consent letters on that day and denied that the vehicle was seized without the knowledge of the complainant. It is further alleged that even after seizure of the vehicle, the complainant could not come forward to clear the loan due to the opposite party and that opposite party got issued pre-sale notice to the complainant on 02.02.2013 to the address furnished by the complainant at the time of execution of loan documents. It is further alleged that on 05.03.2013, the opposite party sold away the vehicle and issued notice to the complainant informing the sale consideration, requesting the complainant to pay the balance amount of Rs.20.236/- and the same was served on the complainant on 19.04.2013. It is further alleged that the complainant never informed the opposite party about the seizure of the vehicle by police, Alipiri P.S. and the same was released subsequently, except by notice dt:25.04.2013, which was issued at a belated stage. It is further alleged that the complainant is liable to pay Rs.20,236/- as on 16.04.2013 with future interest and costs. It is further alleged that the opposite party never received any blank cheques or blank documents from the complainant and there is no deficiency on the part of the opposite party at any point of time and so saying the opposite party prayed to dismiss the complaint with costs. 

4.  On behalf of the complainant P.W.1 examined and Exs.A1 to A15 marked. On behalf of the opposite party R.W.1 examined and Exs.B1 to B7 marked. Heard, arguments of both sides.

5.  The points that arise for consideration are:-

(i).       Whether the opposite party is entitled to seize the motorcycle forcibly

from the premises of the complainant, as contended by the complainant?

(ii).      Whether there is any deficiency of service on the part of the opposite

party?

(iii).    Whether the complainant is entitled for the relief, as prayed for?

(iv).     To what relief?

Points (i) to (iii):-

6.    Admittedly, the complainant availed loan of Rs.55,000/- from the opposite party and purchased motorcycle and agreed to pay the entire loan amount with interest in 24 equal monthly installments at the rate of Rs.3,014/- per month and accordingly entered into an agreement Ex.B2 with the opposite party. It is further admitted fact that after purchase of the motorcycle, the complainant paid installments for a period of 7 months to a sum of Rs.21,100/- and thereafter became defaulter and failed to pay the balance amount to the opposite party. It is therefore, there is no dispute between the complainant and opposite party till the complainant became defaulter in payment of equal monthly installments.

7.  One P.Babu, Manager of the opposite party, filed affidavit on evidence as R.W.1. R.W.1 stated that the complainant has to pay 17 monthly installments and as the complainant failed to pay the said amount, the opposite party approached the complainant several times and demanded him to pay the balance amount due to the opposite party but the complainant could not respond and could not pay the balance amount agreed upon and thereby committed breach of terms of agreement and therefore the opposite party got every right to seize the vehicle as per the terms of the agreement and accordingly the opposite party seized the vehicle on 09.01.2013 in the presence of the complainant and the complainant also executed seizure and consent letters i.e. Exs.B3 and B4 respectively. It is further stated that even after the seizure of the vehicle, the complainant could not come forward to clear the loan amount due under the agreement and therefore the opposite party got issued pre-sale notice Ex.B6 to the complainant on 02.02.2013 and the same was returned with false endorsement and thereafter the opposite party sold away the vehicle on 05.03.2013 and informed to the complainant on 16.04.2013 under Ex.A11 and adjusted the sale proceeds to the loan amount due and also informed to the complainant to pay the balance amount of Rs.20,236/- even after adjusting the sale proceeds.

8.  The learned counsel for the complainant contended that without giving notice or information about the repossession of the vehicle and without following the procedure prescribed for repossession, the opposite party repossessed the vehicle by force from the possession of the complainant in his absence by manipulating Exs.B3 and B4 and sold the vehicle without giving prior notice. The opposite party marked Exs.B3 and B4 stating that the complainant himself executed Exs.B3 and B4 and that there is no force in repossessing the vehicle from the premises of the complainant. Except Exs.B1 to B7, no document is filed by the opposite party to show that seizure notice Ex.B5 said to have been issued by the opposite party was served to the complainant. Further the affidavit of R.W.1 is completely silent about the issuance of Ex.B5 to the complainant on 02.02.2013. Further in paragraph.19 of the affidavit on evidence of R.W.1, it is categorically stated that after seizure of the vehicle pre-notice i.e. Ex.B6 was issued on 02.02.2013 to the complainant and the same was returned. R.W.1 also could not file the returned cover to state that he got issued Ex.B6 and the same was returned.

9.  The learned counsel for the complainant contended that Exs.B3 and B4 i.e. seizure and consent letters respectively said to have been executed by the complainant were manipulated by the opposite party to strengthen his version and the signature therein are obtained at the time of execution of loan agreement and Ex.B4 consent letter is un-filled printed letter and if the complainant had really signed on 09.01.2013, certainly the blanks therein would have been filled-up then and there. Verified Ex.B4 consent letter, which shows that the blanks therein were not filled-up and signature of the complainant was obtained without fill up the blanks. Had the opposite party really obtained Ex.B4 at the premises of the complainant before repossessing the vehicle, the blanks therein should have been filled-up by the opposite party then and there and would not have been kept blank. It is therefore, Ex.B4 clearly indicates that the opposite party never visited the house of the complainant and the agents of the opposite party went to the house of complainant and high-handedly repossessed the vehicle in the absence of the complainant as he contended.

10.  The learned counsel for the complainant further contended that no statement of account is filed by the opposite party to show the balance amount to be paid by the complainant from the date of default or as on the date of repossession of the vehicle and without filing the statement of account the opposite party adjusted the sale proceeds of Rs.32,000/-. It is true, it is the burden of the opposite party to furnish the details of the account of the complainant and the balance amount to be paid to the opposite party and without filing the statement of account, it creates a doubt as to how the sale proceeds of the vehicle has been adjusted to the account of the complainant and as to how the opposite party again demanded the complainant to pay Rs.20.236/- towards balance amount apart from the sale proceeds. Atleast the opposite party should have been filed the statement of account before the Forum along with written version or affidavit on evidence to show the bona fides  of the opposite party. In the absence of such statement of account of the complainant, it is unsafe to believe the version of the opposite party that the complainant has to pay Rs.20,236/- to the opposite party under Ex.B2 sale agreement.

11.  The learned counsel for the complainant contended that the complainant purchased the vehicle by obtaining loan from the opposite party and he also paid        7 installments with interest and that he is only the absolute owner of the vehicle and he is in possession of the vehicle since the date of purchase and the opposite party never be in possession of the vehicle to repossess forcibly from the possession of the complainant and that the act of the opposite party is high-handed act and that there is deficiency of service on the part of the opposite party and that the complainant is entitled for the reliefs as prayed for.

12.  So saying, the learned counsel for the complainant relied upon a decision reported in II (2010) CPJ 159 Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram  - - Kottak Mahindra Bank Ltd – Appellant  Vs. Michael – Respondent, it was held in paragraph.9 

“There can be no doubt the fact that the complainant purchased the vehicle in his name with the financial assistance rendered by the opposite party................. The said vehicle was registered in the name of the complainant and that the complainant was in absolute possession and enjoyment of the vehicle from the very inception of purchase of the vehicle. Prior to the forcible possession of the vehicle by the opposite party, the vehicle was in the absolute possession and enjoyment of the complainant. If that be so, the case of the opposite party that they repossessed the vehicle will not be having any meaning or basis. The opposite party was never in possession of the vehicle at any point of time. Then there is no question of repossession of the vehicle. Only if one had the possession of the vehicle then only the same can be repossessed. Therefore, the contention of the opposite party that he had authority to repossess the vehicle is un-sustainable and the same is rejected.”

 

            13.  The facts in the said decision and facts in this case are similar and that the said decision is applicable to this case. In the said decision, the Hon’ble Kerala State Consumer Disputes Redressal Commission held that the complainant therein purchased the vehicle by availing loan from the opposite party and got registered the vehicle in his name and since the date of purchase, the complainant is the absolute owner of the vehicle and he is in possession of the vehicle and that the vehicle could not be repossessed by the opposite party saying that the opposite party had the right to repossess the vehicle under the agreement. In the instant case also the complainant availed loan from the opposite party and purchased the vehicle and got registered in his name and he is in possession and enjoyment of the vehicle as absolute owner and that the opposite party should not have repossessed the vehicle by force on the pretext that the complainant failed to pay the balance amount due to the opposite party. No balance sheet or statement of account is filed in respect of the account of the complainant. If really, the complainant is due to the opposite party, he has to take further steps to recover the balance loan amount by approaching Civil Court on the basis of Ex.B2 loan-cum-hypothecation agreement. Instead of doing so, the opposite party repossessed the vehicle by force in the absence of the complainant without following the procedure.

            14.  The learned counsel for the complainant contended that the vehicle of the complainant was involved in crime No.33/2012 of Alipiri P.S. under Section-448, 427 and 34 IPC and police seized the said vehicle and produced before the IV ADM Court, Tirupati, and thereafter the said vehicle was released and handed-over to the complainant with a condition to produce the vehicle whenever Court requires and that the complainant has to produce the vehicle before the Court and the same was also informed to the opposite party. The opposite party denied the version of the complainant. The complainant produced Ex.A6 photocopy of FIR in crime No.33/2012 and it is found that the vehicle bearing No.AP03 AM 4006 was involved in the said crime but not the vehicle repossessed by the opposite party. P.W.1 filed Ex.A8 photocopy of official memo issued by the IV Additional Court, Tirupati, in which the vehicle number is mentioned as AP03 AU 4006. In Ex.A6 FIR the vehicle number is mentioned as AP03 AM 4006. In the complaint the vehicle number is mentioned as AP03 AV 4006. All the three documents shows three different vehicle numbers. No registration certificate is filed by both the parties in respect of the vehicle repossessed by the opposite party. When Ex.A6 photocopy of FIR clearly shows the vehicle number as AP03 AM 4006, it could not be said that the vehicle of the complainant was involved in crime No.33/2012 of Alipiri P.S. It is therefore, Ex.A6 could not be taken into consideration.

            15.  The opposite party filed Ex.B7 after sale notice dt:16.04.2013 to show that the opposite party sold away the vehicle chassis No.96851 for Rs.32,000/- and credited the said amount to the loan account of the complainant and even still the complainant is liable to pay Rs.20,236/- subject to interest levy and other charges, Once the vehicle repossessed forcibly from the possession of the complainant and sold away without the consent and knowledge of the complainant and without statement of account, it is un-understandable as to how the opposite party claiming Rs.20,236/- apart from sale proceeds. The complainant contended that the opposite party sold away the vehicle for lower price. No document is filed by the opposite party to show that the cost of the vehicle sold was only Rs.32,000/- as on the date of sale. Further, the name of the purchaser to whom the opposite party sold the vehicle is not mentioned either in Ex.B7 after sale proceed or in the written version. So once the opposite party repossessed the vehicle by force and sold, the opposite party is not entitled to demand the complainant to pay Rs.20,236/-. It is therefore, there is deficiency in service on the part of the opposite party. Further deprived of the right of the complainant in using the vehicle for his day today conveyance and thereby caused mental agony to the complainant and that the complainant is entitled for compensation and costs.

            16.  In view of the above reasons, we are of the opinion that the complainant categorically established his case and that the complainant is entitled for the relief as prayed for.

            17.  Hence, points 1 to 3 are answered in favour of the complainant.

            18. Point No.(iv):-  In the result, the complaint is allowed and the opposite party is directed to redeliver the vehicle bearing No.AP03 AV 4006 to the complainant as it is not transferred in favour of 3^rd party so far, after receiving the balance amount under the loan account and to pay Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony and Rs.2,000/- (Rupees two thousand only) towards costs of the proceedings. The order shall be complied within one month from the date of order. If the opposite party failed to comply the order, the complainant is entitled to interest at 9% on Rs.10,000/- from the date of order, till the date of realization.               

            Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 19^th day of February, 2014.

 

       Sd/-                                                                                                                      Sd/-  

Lady Member                                                                                               President (FAC)

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

PW-1: S.Madhava Rao (Evidence Affidavit filed.).

RW-1: P.Babu (Affidavit filed.).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date	Description of Documents
Ex.A1		Photo Copy of  Aadhar card in favour of  the Complainant showing the permanent address.
2	18.11.2011	Tax invoice for Rs.66,791/- issued by Shriram Enterprises for purchasing the motor cycle.
3	18.11.2011	Sale certificate issued by Shriram Enterprises in favour of  the Complainant.
4	18.11.2011	Temporary certificate for registration of the vehicle as AP03-TWTR-2726.
5.	21.11.2011	Insurance cover note for the vehicle from 21.11.2011 to 20.11.2012 by the New India Assurance Company, Tirupati.
6	04.02.2012	Copy of FIR in Crime No.33/2012 of Alipiri Police Station.
7	15.02.2012 & 31.03.2012	Two receipts towards payment of installments at Rs.3,014/- & Rs.6,600/-.
8	07.03.2012	Copy of memo to S.I. of Police, Alipiri by IV ADM for release of the vehicle to the custody of the Complainant.
9	13.03.2012	Office copy of  Legal Notice to the Opposite Party stating that he is ready to pay the dues and the vehicle involved in the crime No.33/2012 etc,.
10	13.03.2012	Copy of letter addressed to the RTO, Tirupati.
11.	16.04.2013	Notice to the Complainant by the Opposite Party after sale.
12	25.04.2013	Office copy of  2nd Legal Notice to the Opposite Party marking copy to RTO, Tirupati and Alipiri Police for favour of information.
13	22.05.2013	Copy for Telegram with Telegram charges Rs.100/-.
14	21.05.2013	Reply notice under Regd. Post on 23.05.2013 by putting anti-date as 21.05.2013.
15		Photo Copy of  message issued by the Opposite Party on 4/3 & 4/4/2013 for payment of installments at Rs.3,014/-.

 

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Date	Description of Documents
Ex.B1		Application.
2	23.11.2011	Loan-cum-Hypothecation agreement along with schedule.
3	09.01.2013	Seizure Letter executed by the Complainant.
4	09.01.2013	Consent letter executed by the Complainant.
5	02.01.2013	Office copy of  Seizure notice issued to the Complainant.
6	02.02.2013	Office copy of  Re-Sale notice issued to the Complainant.
7	16.04.2013	Office copy of  after sale notice issued to the Complainant.

 

 

 

                                                                                                                                                                                                              Sd/-       

President (FAC)

// TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

              Dist. Consumer Forum-II, Tirupati.

           

 

Copies to:-     1. The Complainant.

                        2. The opposite party.