Karnataka

Bijapur

CC/10/2014

Smt.Layawwa W/o Late Siddanna Ukkali - Complainant(s)

Versus

The Branch manager, Tata Motors Finance Ltd. - Opp.Party(s)

G.M.Badiger

25 Jan 2017

ORDER

                 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VIJAYAPUR

DATE OF FILING 8^th  DAY OF OCTOBER 2013

CONSUMER COMPLAINT NO:10/2014

 

DATED THIS THE 25^TH   DAY OF JANUARY, 2017

 

01) Sri S.H. Hosalli                            -             President.  

                  B.Com.LLB. (Spl),

 

02) Smt.G.S. Kalyani                         -        Lady Member.

                 B.Com.LLB. (Spl),

 

COMPLAINANT   -	1	Smt. Layowwa, W/o late siddanna Ukkali, Age:29 Yrs, Occ:House Hold,  R/o Gunaki Tq. Dist:Bijapur.
		(By Sri. G.M.Badiger,  Adv)

- V/S -

 

 

OPPOSITE PARTY  -	1	The Branch Manager,      TATA Motors Finance Ltd.,  Sunrays Square, Plot No.219,  CTS, No.213, Sarif Colony,  Khanapur Road, Tilakwadi,  BELGAUM-08.
	2	The Manager, TATA Motors, Finance Ltd., No.128, Trident Tower, 2nd floor, Opp. ING Vysya Bank 10th Cross Malleshwaram, BANGALORE-03.
		(Op-1 & 2 by Sri. Honakeri,  Adv)

O R D E R

 

Speaking through Smt. G.S. Kalyani, Lady Member.

 

 

 

This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as the Act) against the Opposite Parties (in short the “Ops”) directing the Ops to handover the vehicle i.e. TATA LPT 1109/42 EX BS III medium goods vehicle engine No:497TC92KYY860509 chassis number.MAT457010B7K47462 and registration No. KA-28 B-4503 to the complainant in a good condition.  Further direct the Ops neither regularize the loan account nor close it by receiving the entire dues from the complainant.  Further, direct to pay Rs.70,000/- and towards damages and Rs.25,000/- towards mental agony and physical pain of Rs.5,000/- towards litigation cost etc.,

 

 

2)       The brief facts of the case are that:-

         

          It is contended that the complainant husband Siddanna Ukkali was purchased the TATA LPT 1109/42 EX BS III medium goods vehicle in the month of December 2011.  Ops have advanced the loan of Rs.8,26,000/- to the complainant’s husband and remaining amount was paid as down payment by the deceased Siddanna.

 

3)       It is contended that as per the loan agreement executed by the said deceased he was regularly paid installments till January 2013.  In February 2013 Ops high handedly illegally taken the custody of vehicle without any reasonable cause.  After this incident complainant’s husband requested many times to handover the custody of vehicle by receiving balance due loan amount.  But Ops not heed complainant’s request.  This act of Ops caused mental stress due to this, complainant’s husband died on 31/03/2013.

 

4)       It is contended that after the death of her husband complainant is legal heir of deceased Siddanna, so she become consumer of Ops.

 

5)       It is further contended that on 24/06/2013 complainant issued legal notice to Op-1 through counsel, though notice was received by the Ops neither replied nor complied the notice.  Hence this complaint.

 

6)       After receipt of notice from this Hon’ble forum Ops appeared and filed common objections to the complaint as under.

 

7)       Ops contended that complainant is not a consumer as defined U/Sec. 2 (1) (d) of C.P. Act. and she has not availed any loan from the Ops there is no privity of contract with complainant and as such this Hon’ble forum lacks the jurisdiction.  If there was any grievance same called have been lodged through the guarantor who had agreed to indemnify the losses of the financer in case the borrower defaults.

 

8)       It is submitted by Ops that subject vehicle is already sold as such the alleged grievance of complainant which had to be dealt by Civil courts and this Hon’ble Forum lacking jurisdiction to try said allegation. Complainant suppressed true and material facts and as such complaint is deserves to be dismissed.

 

9)       Op submitted that complainant husband taken the loan from Ops and loan matters does not come within the purview of C.P. Act, same is not maintainable.  Complainant husband big defaulter and huge balance installments are still unpaid right to recover was exercised as per terms and conditions of agreement.

 

10)     It is admitted by Op that Op-1 & 2 sanctioned Rs.8,26,000/- for the purchase of TATA LPA commercial vehicle for commercial purpose complainant husband agreed to pay Rs.24,150/- per EMI. In respect of same loan agreement /Hypothecation was executed by the husband of complainant on 23/11/2011 under loan agreement No:5000837133.

 

11)     It is further submitted by Op that complainant husband continued to default in payment of installments it amounts to breach of agreement.  Accordingly Op issued notices to calling him to pay outstanding dues but complainant husband not respond.  Hence, Op constrained to invoke arbitration clause and take the custody of vehicle following due process of law on 14/02/ 2013.  Thereafter sale notice was also sent to complainant’s husband on 15/02/2013 calling upon them to pay overdue amount, failing which vehicle would be sold to recover the dues. Complainant’s husband not approached to Ops even after possession of vehicle neither challenged arbitration award, it become inevitable for Ops to auction the vehicle in the market on 27/02/2014.  Accordingly said vehicle was sold to one Shri. Asif for Rs.7,00,000/- said sale consideration amount has been adjusted to loan dues, still the Op is entitled to get Rs.91.291/- from borrower or guarantor though sufficient time had been given to the complainants husband not paid over due loan amount himself breach the terms of contract and claiming compensation from (Op) other party clearly violate the provisions of Sec. 73 of Indian Contract Act, the Hon’ble S.C. (2010) 4 Sec. 107 had clearly held that “No compensation is payable in case of loss occasion due to the fault of the complainant”  Wherefore, the Op prays for dismissal of complaint with costs.

 

12)     Complainant filed affidavit in lieu of evidence and produced 8 documents same are marked as Ex. C-1 to 8.  Ops advocate filed affidavit in support of their case and produced 7 documents same are marked as Ex. Op-1 to 7 documents same are marked as Ex. Op-1 to 7 respectively. Both side advocate filed memo to the effect that contents of complainant supporting affidavit of complainant evidence and objections of Op and supporting affidavit filed by Ops be treated as written argument.  Heard the arguments on both side.  After perusal of documents produce by both parties the following points that rise for our consideration in deciding the case are:-

 

 

1)Whether the complainant is a Consumer?

2)Whether the Ops have rendered the deficiency of service to the complainant?

3)Whether the complainant is entitled for the reliefs as is sought for?

 4) What order?

 

13)     Answer to the above points.

 1) In Affirmative.

           2) In Negative.

           3) Negative.

           4) As per Final order.

 

 

REASONS

 

14)    Point No.1:-  Ops contended that complainant is not a consumer and she is not a party to the loan agreement.  Ops draw our attention towards Sec. 2 (1) (d) of C.P. Act 1986, it is well established principle of law that a person who buys any goods for a consideration is a consumer it also includes any user of such goods other than the person who buys such goods where such user is made with the original buyers approval is also consumer. So here in this case complainant is consumer within the perview of C.P. Act, she is user beneficiers of such of deceased husband.  Hence, we answer to the point No.1 in affirmative.

 

15)    Point No:2:- It is admitted fact that deceased husband of complainant purchased the TATA LPT 1109/42 EX BS III Ops have advanced loan of Rs.8,26,000/- to evidence the same Op produced loan application form i.e. Ex Op-1 loan guarantee application form is produced i.e. Ex. Op-2 loan hypothecation/Guarantor agreement is produce Ex. Op-3. The complainant husband agreed to pay the said amount in 46 equated monthly installments (EMI) @ Rs.24,150/- for EMI.  Accordingly complainant husband executed loan cum hypothecation agreement after reading the terms and conditions stipulated therein. Complainant husband continued to default in payment of installments which amounts to breach of terms and conditions of loan agreement.  The Ops had issued notices to the complainants husband to pay outstanding dues to evidence they said facts Ops produced document i.e. Ex. Op-6 dtd:15/02/2013.  After this Ops recovered the vehicle after following procedure.   After arbitration proceedings also followed. Before the arbitrator complainants husband not appeared.  Hence, arbitration award was also passed and sale of vehicle was made by the Ops.  Ops followed all the procedure as per the terms and conditions laid down in the loan/hypothecation agreement, this act of Op is legal and this act was also known to the complainants husband.  Now the present complaint come and filed complaint for hand over the vehicle.  Complainant’s husband was died on 31/03/2013 during his life time i.e. on 15/02/2013 vehicle was taken from complainant’s possession same was sold on 27/02/2014.  Now the possession of vehicle is not with Op.

 

           We going through the pleadings and as well as documents.  It is clear that there is no deficiency in service by the Ops, complainants husband himself violated the terms and conditions and he never made attempt to get back his vehicle, though sufficient opportunity was given by the Ops. This complaint is in-fractuvious, hence, we are of the opinion that, complainant utterly failed to prove her case. Hence we answer to the point No.2 in negative.  

 

16) Point No.3:-  Once the deficiency in service is not proved the question how much compensation complainant entitled is does not arise.  Hence we answer to the above point No.3 in negative.

 

 

 

17)    Point No.4:-  In the result, the complaint of the complainant is dismissed.  Hence, we proceed to pass the following order.

 

 

O R D E R

 

1)The complaint of the complainant dismissed.  No order as to costs.  

2)Free copy of this order shall be sent to the parties.

 

 (This order is dictated to the Stenographer, directly on Computer, edited, corrected  and  then  pronounced in the open forum on this 25^th day of January 2017).

 

 

 

Sri. S. H. Hosalli  President.

Smt. G. S. Kalyani     Lady Member.