BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD

F.A.No. 993  OF 2013 AGAINST C.C.NO.1114 OF 2010 DISTRICT CONSUMER FORUM-II, HYDERABAD

Between

Ch.Krishna S/o Ch.Lakshmaiah

Aged about 42 years, Occ: Self-Employee

H.No.24-385, Chandragiri Nagar

Quthbullapur, R.R.Dist.

                                                                                Appellant/Complainant

AND

1. Shriram Transport Finance Co.Ltd.,

Beside Lane of Gayatri Hotel,

Himayatnagar, Hyderabad

Rep. by its Regional Manager

2. Shriram Transport Finance Co.Ltd.,

Kijatpally Branch, OppL BJP Office

Kukatpally, Hyderabad

Rep. by tis Branch Manager

                                                                                Respondents/opposite parties

Counsel for the Appellant                  Sri  K.Visweswara Rao

Counsel for the Respondents             Sri Praveen Kumar  Challa

QUORUM              :

HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT

&

SRI PATIL VITHAL RAO, MEMBER

FRIDAY THE SECOND DAY DAY OF FEBRUARY

TWO THOUSAND EIGHTEEN

Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)

***

          This is an appeal filed by the complainant  aggrieved by the orders   of District Consumer Forum-II, Hyderabad,  dated 14.08.2013 made in CC No.1114 of 2010   in dismissing the complaint.  

2.                 For the sake of convenience, the parties are referred to as arrayed in the complaint.

 3.                The case of the complainants, in brief, is that, the Complainant approached the opposite party no.2 with an intention to avail financial assistance for  purchase of vehicle of water tanker and the opposite party no.2 after completing its formalities has sanctioned loan of Rs.1,80,000/- which is to be repaid together with interest in 33 monthly installments @ Rs.7827/- for the first 32 instalments and Rs.7836/- for the last installments i.e., 33^rd instalment, totally amounting to Rs.2,58,300/-.   The complainant has to pay  a total sum   of Rs.2,58,300/- in 33 months as against the availed loan of Rs.1,80,000/-.   But the opposite parties collected sum of Rs.2,92,528/-  as against the repayment schedule.   When the complainant questioned the said collection the opposite parties informed that they have collected the amount towards vehicle insurance.  But the excess collection of amount was Rs.34,228/- whereas they have contributed only a sum of Rs.20,000/- towards the vehicle insurance and thus there is an excess payment of Rs.14,228/-.  The opposite parties without closing the account informed the complainant that still an amount of Rs.168,894.70 was due towards loan amount.  Further, the opposite parties informed that the complainant has availed another loan of Rs.50,000/- and as such the complainant has defaulted in payment of the said installments.  Though the complainant has not availed any other loan besides the loan of Rs.1,80,000/- the question of availing another loan does not arise.  Hence, he filed the complaint praying to direct the opposite parties to restrain them from seizing the vehicle bearing No.AP16V 7679; to refund the excess amount of Rs.14,228/- with interest @ 18% per annum; to pay Rs.30,000/- towards earnings obstruction; to pay Rs.30,000/- towards compensation and costs of Rs.5,000/-. 

4.                          The opposite parties resisted the case and contended that the complainant  was irregular in paying the installments as a result the opposite parties seized the vehicle on 05.05.2010 consequent to which the complainant has paid Rs.25,000/- towards part payment of the arrears and got the vehicle released.  The opposite parties have also paid vehicle insurance on two occasions and the same is within the knowledge of the complainant.  The complainant so far has paid Rs.1,79,900/- only as on date against 33 installments amount of Rs.2,58,300/-.  Further, the complainant has also availed bill discounting facility.  The bill discount will be provided by the opposite parties to its customers/borrowers to encash the bills before the payment margin period for which the opposite parties will deduct some amount from the said bills and pay the remaining bills amount.  Later, the opposite parties will collect the amounts from the transporters who issued the bills in favour of the borrowers/customers and if the said transporters fail to pay the discounted bills amount in time the borrower is liable to pay the penal charges together with discounted bill amounts.  In the said process the complainant has availed the bill discount on 28.01.2010 of Rs.35,100/- issued by Sri Sai Praneeth, Water Suppliers and the opposite parties have paid Rs.33,300/- on 27.01.2010 after deducting the bill discount charges and the complainant has acknowledged the said amount under payment voucher dated 27.091.2010.  Therefore, the complainant is still due an amount of Rs.99,519/-.  Hence, the opposite parties prayed for dismissal of the complaint. 

5.                          In proof of his case, the complainant has filed his evidence affidavit and got Exs.A1 to A26 marked.    On behalf of the opposite parties, the Assistant Credit Manager   has filed his evidence affidavit and got Exs.B1 to B9 marked.

6.                 The District Forum after considering the material available on record, dismissed the complaint   bearing CC No.1114 of 2010   by orders dated 14.08.2013. 

7.                  Aggrieved by the said decision, the complainant  preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective.   The District Forum erred in not considering Ex.A26 holding that there is no supportive receipt for the payment of Rs.46,354/- whereas the opposite parties have not issued any separate receipt for the payment made on 01.04.2009.  Since the payment was credited into the account maintained by the opposite parties, the District Forum ought to have considered Ex.A26 which itself is a proof for the payment made by the complainant and ought to have directed for the refund of the amount.  Ex.B3 is a subsequent document which is not filed along with the counter and the same is a manipulated document.  When the District Forum rightly observed that Exs.B8 and B9 are not considerable documents which are personal guarantee letter and demand promissory note, the District Forum ought to have held that Ex.B3 is also not considerable as the same is invented for the purpose of creating a defence by unauthorizedly transferring the amounts to Exs.B6 and B7.     Hence, the  appeal praying to allow the appeal and set aside the order of the District Forum by granting the reliefs as prayed for in the complaint.

8.                 Counsel for both parties present and were heard.   Written arguments of the opposite parties were filed.      

9.                The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner?  To what relief ?

10.               It is an admitted fact that the complainant had availed loan of Rs.1,80,000/- from the opposite parties and he agreed to re-pay the same in 33 installments @ Rs.7,827/- per month and the total amount payable by him comes to Rs.2,58,300/-.   The main allegation of the complainant is that he paid excess payment of Rs.,4,228/- towards the loan amount as per repayment schedule but the opposite parties still demanding to pay an amount of Rs.99,519/- towards due amount.  To prove the case of the complainant filed Ex.A26 which is a crucial document i.e., statement of account of the loan amount.  As per Ex.A26 the complainant in all paid Rs. 2,68,614/- excluding bill discount charges of Rs.34,304/- which were paid towards discounted bill payments.  The total 32 installments and for the last 33^rd amounts at the rate of Rs.7827/- comes to Rs.2,58,300/- and as per Ex.A26 the complainant paid an amount of Rs. 2,68,614/- out of which the opposite parties stated to have been paid an amount of Rs.21,119/- towards vehicle insurance and if that amount is deducted it comes to Rs.2,47,495/- .  As per the repayment schedule the complainant has to pay the total amount of Rs.2,58,300/- and as per the statement of accounts the complainant has paid an amount of Rs.2,47,495/- leaving the balance of Rs.10,805/-.  Though the complainant has filed payment receipts Exs.A1 to A23 but in that receipts Exs.A13 to A21 are not pertaining to the loan transaction of vehicle purchase they pertain to bill discount charges.   But the opposite parties denied the very issuance of statement of accounts, Ex.A26 contending  that the complainant has created a false statement of accounts in order to derive wrongful gain.     The opposite parties filed Ex.B4 which is a copy of the statement of accounts and according to which the complainant was due an amount of Rs.99,519/-.  The opposite parties have not filed the original of the said statement of accounts.  The complainant also denied the execution of Exs.B8 and B9 and the District Forum opined that  non-production of original of Exs.B8 and B9 are fatal to opposite party’s case. 

11.               This Commission having  considered the aforesaid  order and having  thoroughly  considered the material on record  came to the conclusion that there are  several  complicated questions  that would  arise  for consideration before a finding can be recorded  on  the question of  creating a false statement of accounts.    On the one hand there is an allegation  that the statement of accounts in which the entry regarding payment of Rs.46,354/-  is also disputed by the District Forum stating that there is no proof that the complainant has paid the said amount.      There are yet other circumstances that the complainant denied the very execution of Exs.B8 and B9.    These exercises are not possible to be undertaken  in the summary proceedings  under the Consumer Protection Act.    

12.                         In “OrientaL Insurance Company Ltd vs Munimahesh Patel” IV (2006) CPJ 1 , the insurance company disputed the genuineness of the documents and the Hon’ble Supreme Court held that where the matter involves adjudication of issues involving disputed factual questions, Consumer Forum cannot adjudicate the matter and the complainant was entitled to seek relief in court of competent jurisdiction.  It is held by the Apex Court in paras No.9 to 13 as under:

“9.      The Commission noted that the specific stand of the appellant was that there was mis-declaration in the proposal form and the false claim that the respondent's wife was a teacher which as now appears is not the correct position. It also accepted that she was really not a teacher.

10.     Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.

11.     The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.

12.     The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.

13.     Above being the position, the Commission was not justified to deal with the matter in the manner as was done. In our view, the directions of the State Commission were more appropriate keeping in line with the nature of dispute. Accordingly, the appeal is allowed but with no order as to costs”.

13.               The National Commission in ‘Transport Corporation Employees Provident Fund Trust vs Orissa small Industries and another ‘ III(2007) CPJ 316(NC) and ‘Omprakash vs Allahabad Bank’III(2206)CPJ 418, held that the matter involving adjudication of disputed questions of facts has to be tried by competent court. Thus, we are inclined to give opportunity to the complainant to approach competent court for adjudication of the matter.  In the circumstances discussed supra, we answer the point  accordingly. 

In the result, the appeal is allowed setting aside the order of the District Forum    and the complaint is relegated to any competent Civil Court for redressal if complainant so chooses and in such a situation he is entitled for exclusion of the period spent between filing of the claim till disposal of the Appeal U/s. 14 of the Indian Limitation Act, 1963 for the purposes of limitation in the light of the decision of the Honble Supreme Court of India in Trai Foods Ltd Vs. National Insurance Company Ltd and another reported in (2004) 13 SCC 656. No costs    

                                                                                PRESIDENT           MEMBER

                                                                                             02.02.2018