BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 19th May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.282/2013
(Admitted on 28.10.2013)
Mr. Rajesh,
S/o Chandu Kanchana,
Aged 31 years,
Resident of Swetha Nivaa,
H.No.5/70, Kulai Village,
Chitrapura Mangalore 574169.
….. COMPLAINANT
(Advocate for the Complainant: In person)
VERSUS
1. The Authorised Officer,
M/s Sri Ram Transport,
Finance Company Ltd,
Branch Officer, Near AB Shetty Circle,
Above Kochin Bakery R.T.O,
Mangalore 1.
2. The Authorised Officer,
M/s Sri Ram Transport Finance Ltd,
Registered Office at-123,
Angappa Naicken Street,
Chennai 1.
….............OPPOSITE PARTIES
(Advocate for the Opposite Parties No.1 & No.2: Sri KPR)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claim he purchased second hand heavy goods vehicle TATA Tipper from Mr. Shek Abdulla owner resident of Udupi which was hypothecated with opposite party No.1 and the said hypothecated agreement was continued by opposite party No.1 and the existing loan was Rs.7,00,000 the complainant was repaying the loan dues on time without making any default. For about one year repaid the loan instalment but due to the ill health of complainant could not pay one month instalment on time and immediately opposite party No.1 seized the vehicle without giving any prior notice to complainant. In spite of request to give all the detail of the loan documents and receipt for payment of instalment to opposite party No.1 on several occasions including last visit on 20.12.2012 opposite party No.1 refused to give a statement. A legal notice was addressed to opposite party No.1 on 1.4.13 and was replied on 15.04.2013 and are requested to furnish the details of the loan statement which was not furnished by opposite parties alleging deficiency in service seeks the reliefs of Rs.50,000 as compensation on account of loss suffered by the complainant and also another sum of Rs.5,000 towards expenditure and cost of the proceedings from opposite parties.
2. Opposite parties filed version contending the vehicle purchased by complainant a TATA Tipper lorry by availing loan from opposite party is a heavy goods vehicle and is a commercial vehicle used for commercial purposes. The complaint filed before this Forum is not maintainable under the provisions of the C P Act. The complainant after borrowing loan under hypothecation agreement committed breach of the terms of the said agreement as per the clause of the agreement opposite party has taken steps to enforce the security provided under the agreement. The allegation of opposite party not providing the copy of the loan documents, receipt for the payment, account statement are false. All the information were furnished by opposite party No.2. The notice dated 01.04.2013 in respect of dishonour of cheque issued by complainant and because the complainant had not paid the amount covered by the cheque inspite of the demand notice has initiated necessary proceedings under section 138 of N I Act. The complainant being a defaulter under a hypothecation agreement is not entitled to raise the above dispute. Hence seeks dismissal of the complaint.
3. In support of the above complaint Mr. Rajesh filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C6 as detailed in the annexure here below. On behalf of the opposite parties Mr. Vasudeva (RW1) Officer of M/s Shriram Transport Finance Co Ltd, also filed affidavit evidence and produced documents got marked at Ex.R1 to R3 as detailed in the annexure here below.
4. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
Complainant not addressed oral arguments nor filed notes of arguments. Opposite party filed notes of argument. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the party. Our findings on the points are as under are as follows
Point No. (i): Affirmative
Point No. (ii): Negative
Point No. (iii): As per the final order.
REASONS
5. POINTS No. (i): Ex.C1 is the RC of the heavy goods vehicle KA 20 A8992 which was original standing in the name of a Mr. H Hassan Ahmed with hypothecated agreement and document in favour of opposite party Sriram Transport Finance company ltd and subsequent it was transferred to the name of the complainant with the loan cum agreement of the hypothecation it effected from 25.4.2009. Thus there is relationship of consumer and service provider between the parties. It is not the case of opposite party that complainant using the vehicle for commercial purpose other than his livelihood hence the claim of opposite party that this Forum has no territorial jurisdiction is rejected.
6. As to the dispute Ex.C5 copy of the letter written by complainant to opposite party dated 15.4.13 seeking particular of loan statement payment details and the details of the seizure of the vehicle by opposite party. It is not the case of opposite parties to furnish detail of the document. There is dispute between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer
Point No.1 in the affirmative.
- Ex.C3 is a notice issued on behalf of opposite party to complainant in respect of the bouncing of a cheque issued by complainant to opposite party towards outstanding balance of Rs.5,40,000/- in respect pertaining to the agreement entered between the parties in respect of Vehicle KA 20A 8992 calming complainant to make payment. Ex.C4 is the reply notice got issued by complainant to opposite party.
8. Ex.R1 is copy of the loan cum hypothecation agreement between complainant and opposite party one Mr. Ashraf as guarantor it is dated 25.4.2009 and at Ex.R1 there is Schedule III Equated Monthly Instalment Schedule mentioned the value of the hypothecation loan amount sanctioned at Rs.7,85,000 and total amount payable at Rs.12,26,798. Ex.R3 is the details of the agreement with settlement amount dated 01.08.2011. It mentioned the sale at Rs.7,85,000 and out of the settlement/deu amount of Rs.13,33,528, Collected 7,41,056 and balance of Rs.5,92,472 shown as due from complainant. Thus it is clear that the transaction between parties as per the hypothecation agreement between complainant and opposite party in respect of the vehicle on loan borrowed. As per hypothecation agreement in respect of the vehicle in question thus at no stretch of imagination it can be stated that there is any deficiency in service and complainant failed to pay amount due from him to opposite party. Hence we answer point No.2 in the negative.
9. POINTS No. (iii): Wherefore the following
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 19th May 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Rajesh
Documents marked on behalf of the Complainant:
Ex.C1: Registration Certificate original
Ex.C2: Taxation card original
Ex.C3: Legal Notice dated 01.04.2013
Ex.C4: Reply notice dated 15.04.2013
Ex.C5: Letter to OP dated 15.04.2013
Ex.C6: Acknowledgment
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Vasudeva, Officer of M/s Shriram Transport Finance Co Ltd,
Documents marked on behalf of the Opposite Parties:
Ex.R1: 25.04.2009: True copy of the Loan agreement
Ex.R2: : Copy of the B Extract
Ex.R3: 01.08.2012: Account extract
Dated: 19.05.2017: PRESIDENT
