BEFORE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 1241 OF 2013 AGAINST C.C.NO.414 OF 2011 DISTRICT CONSUMER FORUM HYDERABAD-I
Between
E.Ram Reddy S/o E.Karra Reddy
Aged about 72 years, Occ: Agriculture
R/o Peroor Village, Devarakadra (Mandal)
Mahabubnagar District
Appellants/complainant
A N D
- Tata Capital Limited
-
OppL Times of India, Road NO.3
Auto Plaza, Banjara Hills
-
Rep. by its Manager
- M/s Tata Capital Limited
Regd Off: One Forbes, Dr.V.G.Gandhi Marg
Fort Bombay-400001
Rep. by its Managing Director
Respondent/opposite parties
Counsel for the Appellants M/s V.Gourisankara Rao
Counsel for the Respondent M/s Lotus Law Associates
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
FRIDAY THE TWENTY FOURTH DAY OF MARCH
TWO THOUSAND SEVENTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
The unsuccessful complainant is the appellant.
2. The brief facts as set out in the complaint are that the complainant purchased a TATA Hydraulic Excavator for Rs.43,00,441/- by availing finance of Rs.34 lakhs from the opposite party no.1. While so the complainant paid 24 instalments to a tune of Rs.28,73,373/- except the last 11 instalments he could not pay due to financial problems. Due to non-payment of instalments, the opposite parties seized the vehicle and terminated the agreement on 30.04.2010. In total the complainant had due of Rs.17,36,806.33 payable to the opposite parties. The opposite party no.1 had agreed to release the vehicle if the complainant paid an amount of RS.16 lakhs by way of settlement. The complainant in order to pay the dues intend to sell the excavator to the third party for an amount of Rs.25 lakhs and to that effect the third party and the complainant entered into agreement. As per the agreement the third party had paid Rs.6 lakhs to the complainant as an advance and for the balance amount he approached IndusInd Bank ltd and the Bank had agreed to sanction loan of Rs.19 lakhs. The Bank accepted to release an amount of RS.16 lakhs directly to the opposite party no.1 and the remaining amount of Rs.3 lakhs to the complainant would be release after receiving the original invoice and NOC from the opposite party no.1. While so the Bank released the amount of RS.16 lakhs to the opposite party no.1 and the opposite partyno.1 had undertaken to handover the papers to IndusInd Bank within 15 working days. On 27.07.2010 the opposite party no.1 addressed letter to M/s Sree Traders Rajahmundry to release the excavator to the third party. The matter stood thus, the opposite party o.1 did not handover the papers to the opposite partyno.1 to the IndusInd Bank as such the Bank requested the opposite partyuno.1 to arrange for refund of RS.16,28,900/- and accordingly the opposite party no.1 refunded the said amount. The opposite party no.1 insisted the complainant to hand over the excavator to it. The complainant approached the third party and explained the difficulty and convinced him to return the excavator. Accordingly the complainant on 03.09.2010 surrendered the excavator to the opposite party no.1. The third party spent Rs.2,78,000/- towards repairs of the excavator. The third party issued legal notice dated 18.10.2010 to the complainant and the opposite partyno.1 demanding to pay the amounts with interest and damages. The failure of the opposite party no.1 in not handing over of original invoice and NOC to IndusInd Bank not only amounts to deficiency of service but also unfair trade practice. Hence the complainant.
3. The opposite parties resisted the case contending that the complainant is not a consumer and the complaint is not maintainable. The complainant purchased the excavator for commercial purpose. The opposite parties submitted that the complainant purchased the excavator by availing finance form the opposite party no.1. Due to non-payment of EMIS, the opposite parties seized the excavator as per the terms of loan agreement and terminated the same. As per the statement prepared by the opposite party no.1 as on 10.05.2010 an amount of Rs.17,36,806/- was due and payable by the complainant. The opposite party no.1 has out of good gesture has offered to settle the dues for RS.16,00,000/- by selling away the asset to the prospective buyers in as is where condition. The complainant had requested the opposite partyno.1 to issue settlement letter to Indusind Bank in respect of the loan account and accordingly it had issued settlement letter but unfortunately the loan sanctioned by the Indusind Bank is recalled as per their obligations and internal policies. The opposite parties have nothing to do with the third party buyer availing the loan from Indusind Bank. It is the understanding between the complainant and the third party buyer. The complainant was a chronic defaulter failed to pay the installmens and clear of his loan dues to the opposite party no.1. It is not true to suggest that the opposite party no.1 has admitted that the original invoice has lost. It is the complainant who has failed to repay the loan amounts to the opposite party no.1. Lastly, it is the complainant through a third party who had approached the bank, instead of clearing the loan dues by himself. Therefore prayed for dismissal of the complaint.
4. The complainant has filed his affidavit and the documents, ExA1 to A19. On behalf of the neither affidavit nor documents have been filed.
5. The District Forum dismissed the complaint on the ground that the opposite parties have nothing to do with the third party transaction and the third party who is not a party to the present proceedings.
6. Feeling aggrieved with the said order the unsuccessful complainant filed this appeal on several grounds and mainly contended that the said vehicle referred to in the complaint by availing finance from the OP that the transaction dealt with the third party is borne out by the record and that District Forum did not appreciate her case in correct perception and that it ought to have held that she is entitled for reliefs sought for in the complaint.
7. The counsel for the complainant has filed written arguments
8. The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9. It is not disputed before us that the complainant had raised a loan of Rs.34 lakhs to purchase the Excavator. It is also not in dispute that when the complainant is not in a position to pay back the balance instalments the opposite party no.1 seized the vehicle. As per Hire Purchase Agreement the financier was authorized to repossess the vehicle in case of default in repayment of loan instalments. Supreme Court of India in Managing Director Orix Auto Finance (India) Limited case has held that the financier can repossess the vehicle if the agreement permits the financier to take possession of financed vehicle. After perusal of the documents filed relating to the loan advanced and the correspondences made and in the absence of anything contrary coming from the side of the complainant, we have no hesitation to hold that opposite parties 1 and 2 have acted fairly as per the terms and conditions of the agreement of the hire purchase scheme. The Honble National Commission in Sheela Kumari vs Tata Engineering & Locomotive Company & others, 2007 NCJ 570, wherein it has been held that when a vehicle is repossessed for default of payment of instalments in breach of terms of hire purchase agreement, such repossession cannot be construed as deficiency in service.
10. In the instant case, the complainant was due an amount of Rs.17,36,806.33 to the opposite party no.1 and after negotiations the opposite partyno.1 had agreed to release the excavator if the complainant pays Rs.16 lakhs by way of settlement. As the complainant was in financial trouble he intend to sell the vehicle to third party and adjust the amount to the opposite party no.1. The third party approached the IndusInd Bank for the loan to purchase the excavator from the complainant. The complainant had requested the opposite party no.1 to issue settlement letter to IndusInd Bank in respect of the loan account of the complainant and accordingly it issued the letter. Unfortunately the loan sanctioned by the IndusInd Bank was recalled as per their obligations and internal policies. The complainant stated that due to failure in returning the Original Invoice and NOC, the IndusInd Bank recalled the loan. It appears that the complainant used the vehicle for nearly about two years and had committed default in making payment. If the complainant did not pay the instalments the opposite party no.1 seized the vehicle. The opposite parties have nothing to do with the third party transaction, they only eased the complainant for selling of the vehicle to the third party. If the complainant failed in the third party transaction it is his burden to resolve the same with the third party but the opposite parties are no way responsible. It is the third party who approached the IndusInd Bank for loan to purchase the excavator and the opposite party no.1 is no way responsible. Viewed from any angle the appeal is devoid of any substance and liable to be dismissed.
In the result the appeal is dismissed confirming the order of the District Forum. There shall be no order as to costs.
PRESIDENT MEMBER
Dated: 24.03.2017
