Andhra Pradesh

Nellore

CC/112/2013

Kakani Srinivasulu - Complainant(s)

Versus

1. The Branch Manager, HDFC Bank - Opp.Party(s)

Dama Prabhakar Rao

31 Dec 2015

ORDER

Date of Filing     :15-10-2013

                                                                                                Date of Disposal:31-12-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Thursday, this the  31^st day of  December, 2015

 

PRESENT: Sri M. Subbarayudu Naidu, B.Com.,B.L.,LL.M.,President(FAC) & Member                             

                   Sri N.S. Kumara Swamy, B.Sc.,LL.B., Member.

 

C.C.No.112/2013

 

Kakani Srinivasulu,S/o.Vengaiah,

Hindu, Aged 40 years,

Presently residing at 16/3/936, Bank Colony,

Mutyalapalem, Ammavaripalem Village,

Podalakur Mandal,

Nellore District – 3.                                                                                ..… Complainant 

 

                                                                           Vs.

 

1.	The Branch Manager, HDFC Bank, Beside C.M.A., Trunk Road, Nellore.
2.	Larsen Toubro Komatsu Limited, Represented by it’s Managing Director, 10/1, Lakshmi Narayna Complex, Palace Road, Bangalore-560052.                                                  ..…Opposite parties

                                                              .  

            This complaint coming on 10-12-2015 before us for hearing in the presence of                Sri Dama Prabhakar Rao,  advocate for the complainant and                                                     Sri Arigela Nagendra Sai and Sri I.V. Ramasastry, advocates for the opposite party No.1 and Sri P. Chalapathi Rao and Sri P. Gopinath, and having stood over for consideration till this day and this Forum made the following:

 

ORDER

(ORDER BY Sri N.S. KUMARA SWAMY, MEMBER)

 

            This complaint is filed under Section-12 of Consumer Protection Act, 1986  prays to direct the opposite parties  to pay a total damages and compensation of Rs.10,00,000/- with interest at 12% p.a.  from the date of discharge of the loan till its payment, costs and such other further reliefs.

 

            2.         The brief averments of the complaint are that the complainant purchased Hydraulic Excavator from the 2^nd opposite party under invoice dated 01-01-1998  for a sum of Rs.45,67,886/- which has been hyphothecated under loan account No.2939678 by paying interest  under instalments scheme.  At the time of availing loan, the complainant has deposited original invoice with the 1^st opposite party and the 1^st opposite party issued clearance certificate on 19-06-2013 as the said loan was cleared off.  The complainant further averred that the 1^st opposite party is bound to return all the documents kept with him at the time of availing the loan but  the 1^st opposite party  failed to return the original invoice of the excavator  and assured that  the said invoice was misplaced  and will  handover the same within a short period soonafter  it was traced.

 

            3.         The complainant further stated that with a view to sell the above said vehicle to Sri P.Chandramohan for Rs.20,00,000/-, he took  an advance of Rs.5,00,000/- from him with an assurance that he will handover the vehicle alongwith original invoice within a week on payment of balance of sale consideration.  As the 1^st opposite party fail to  return the original invoice within time, the contract  between them were cancelled and the complainant return the advance amount with interest.  After repeated requests made by the complainant, the opposite party  addressed a letter dated 27-09-2013 to the 2^nd opposite party stating that the original invoice number 910603064, dated 05-02-2007 has been misplaced  and not traceable  and requested to provide duplicate / extra copy of the original invoice but the 2^nd opposite party did not give  any reply till date.

 

4.       On account of misplacement of original invoice, the complainant unable to sell the said vehicle to the 3^rd parties.  The value of the vehicle depends upon the original invoice  and as non-availability of original invoice, the said vehicle became value less and  to be used as a scrap. In view of the negligence and failure of rendering services to the consumer, the opposite parties  are liable to pay the compensation and damages to the complainant as he sustained  heavy loss of Rs.10,000/- per day for not using the said vehicle.  The complainant estimated the damages of Rs.10,00,000/- and hence  the complaint is filed  against the opposite parties for the relief as prayed for  in the complaint.

 

            5.         The  1^st opposite party filed  counter / written version denying all the averments  made in the complaint except that of specifically  admitted  certain facts.  The 1^st opposite party  is in banking business giving loans  / financial assistance to the prospective customers  such as commercial vehicle loan, commercial equipment loan, health care equipment loans, inventory funding loans, commercial loans,  inventory funding commercial loans, tractor loans, light commercial vehicles etc., The complainant  obtained loan after entering into loan agreement bearing No.2939678, dated 25-01-2007 for purchase of  L & T  Komastu  PC 200 Excavator from the 1^st opposite party as per  assurance given by the complainant.  Subsequently, the complainant approached the 1^st opposite party bank for foreclosure of loan account and the 1^st opposite party  demanded  entire arrears dues  alongwith interest  on delayed payments  towards the closure of the loan as per the terms and conditions of the loan agreement.    Further the opposite party denied the contention of the complainant that  he deposited original invoice of the excavator  and the 1^st opposite party  collected only 2^nd copy of invoice towards proof  of financial assistance extended for purchase of asset.  The complainant  with a view to  get wrongful gain filed this complaint to take revenge against the bank  as the bankers demanded and collected  the entire arrears of loan amount including interest on delayed payments at the time of closure of the loan.  Hence, the question of returning original invoice  or 1^st copy of invoice to the complainant  does not arise and the 1^st opposite party did not give any assurance to return the same.   The 1^st opposite party further contended that  he did not  wrote a letter dated 29-07-2013 to the 2^nd opposite party  requesting that  original invoice No.910603064, dated 05-02-2007 be supplied as the original invoice misplaced and not traceable.

 

            6.         The 1^st opposite party  further contended that  after discharging the loan, the complainant  orally asked the bank to provide one duplicate copy of the invoice  as  he lost main copy of invoice in the transit.  Accordingly,  on the request of  complainant, the 1^st opposite party wrote a letter to the  2^nd opposite party  to issue one copy of invoice for giving the same to the complainant.  Basing on the  said letter, 2^nd opposite party issued a copy of the invoice  to the 1^st opposite party  and the same  was given to the complainant as original one on 10-08-2013 under proper acknowledgement. 

 

            7.         The opposite party further denied the allegation that complainant could not sell the excavator to the 3^rd parties without  original invoice  and he sustained loss of Rs.10,00,000/-.  In fact, the ownership and alienable  rights  of any movable or immovable properties  cannot be denied merely on the ground that they lost original title deed or invoice of the particular property.

 

            8.         The 1^st opposite party contended that the main motive of the complainant  to file this complaint only to take revenge against the bank as the bankers  collected entire arrears of loan amount with penalties  as per the norms of contract agreed  by the both parties and hence no deficiency of service  on the part of  1^st opposite party.  Further submitted that the complainant will not come under the purview of Consumer Protection Act since the asset  L & T Komatsu PC 200 Excavator  (Construction equipment) was used by the complainant for commercial purpose by hiring on rent for a specific period such as hourly  / per day use  which was admitted by the complainant in his complaint.  As such the complainant does not fall under the purview of Consumer.  Moreover the consumer owned  multiple assets  and using for his business.  Hence, the complaint is not maintainable under Consumer Protection Act and the complaint may be dismissed with heavy costs.

 

9.         The 2^nd  opposite party filed  written version  denying all the averments made in the complaint except that off admitted certain facts.

 

10.       This opposite party submitted that the complaint does not  disclose any deficiency of service by the opposite party No.2 towards the complainant and therefore, there is no cause of action for the complaint against  this opposite party  and consequently, no relief whatsoever can be  granted to the complainant  against this opposite party.

 

11.       This opposite party submitted that main grievance of the complainant is that the original invoice of his Hydraulic Excavator issued by this opposite party to the complainant has been misplaced by the opposite party No.1 bank, for  which this opposite party cannot be held answerable or  liable, because the alleged loss or misplacement of the original invoice was admittedly in the hands of the opposite party No.1 bank, with whom, the complainant had deposited the same with an intention to hypothecate his Hydraulic Excavator.  Hence, the very complaint is wholly misconceived  against the opposite party No.2, because it is not even a necessary party to the present complaint and as such, there is a misjoinder of the opposite party No.2.

 

12.       As regards para-4  of the complaint, it is submitted that this opposite party has no contractual or legal obligation to issue duplicate or extra copy of the invoice.  At any rate, this opposite party has provided an extra copy of the invoice as requested by the opposite party No.1 bank and the same was dispatched to the opposite party No.1 bank on  06-08-2013, receipt of  which was duly acknowledged by the representative of the opposite party No.1 bank on 08-07-2013. Hence, the allegation of the complainant that the opposite party No.2 has not chosen to give any reply till date is false  and is made without knowing the exchange of correspondence between the opposite party Nos.1                 and 2.  The complainant  never approached this opposite party seeking a duplicate copy of the invoice  and his grievance, if any, is and  can be against the opposite party No.1 bank only.  This opposite party is not aware of the developments subsequent to providing an extra copy of the invoice to the opposite party No.1 bank.

           

13.       As regards para-5 of the complaint, it is submitted that the main grievance of the complainant is that due to non-availability of the original invoice, he could not sell his Hydraulic  Excavator and has allegedly suffered damages.  However, as already stated, there is no dereliction of duty, negligence or failure on the part of  this opposite party in rendering services to the consumers and hence, it is not and cannot be made liable to pay any damages or compensation to the complainant, much less, the sum of Rs.10,00,000/-  as purportedly estimated by the complainant.  It is mischievous on the part of the complainant to state  that both the opposite parties are liable to pay the said damages and compensation.

 

14.       As regards para-6, it is submitted that the complainant is not a consumer of the opposite party No.2 in so far as  the present complaint is concerned.  The complainant has no cause of action against this opposite party  for the present complaint.  Hence, the complaint is not maintainable against  opposite party No.2 at all and it is liable to be dismissed at the threshold  itself.

 

15.       The opposite party No.2 submits  and reiterates that it has no role to play in the alleged deficiency of service as committed by the opposite party No.1 in misplacing the original invoice of the Hydraulic Excavator of the complainant hypothecated with the opposite party No.1 bank and hence this opposite party is not at all liable to the complainant to pay any damages or compensation.  The complainant is not entitled to any relief against this opposite party, much less, the  relief of damages of Rs.10,00,000/- with interest at the rate of 12% p.a.  Hence, this complaint may be dismissed against this  opposite party No.2.

16.       The points for consideration would be:

1.  Whether there is deficiency in service on the part of  opposite parties? If so, whether the complainant is entitled for the relief as prayed for?
2. To what result?

 

            17.       In order to substantiate  the complainant averments, complainant filed evidence on affidavit  as P.W.1 and marked Exs.A1 to A3.  On the other hand,   the opposite parties filed chief affidavits as R.W.1 and R.W.2  and marked Exs.B1 to  B11.  Written arguments of 1^st opposite party is filed.  Heard on both sides.

 

18.       POINT No.1: The present claim  arises out of the alleged failure of the                         1^st  opposite party to return the original invoice relating to  the purchase of Hydraulic Excavator from the 2^nd opposite party  and deposited with the  1^st opposite party while availing loan from the bank.  According to the complainant, the original invoice was deposited  alongwith  other documents  with the 1^st opposite party.  So far as the                       2^nd opposite party is concern with the sale of the excavator and delivery of the vehicle its business is over.  It is responsible for any mechanical defect within the period of warranty.  The 2^nd opposite party is not in any way responsible for the loss of original invoice.  However, as revealed from the record at the request of the 1^st opposite party, 2^nd opposite party furnished a duplicate copy of the  invoice, which was sent to 1^st opposite party and the same  was acknowledged by the complainant.  Therefore, there is no deficiency of service on the part of 2^nd opposite party.  Hence, the present complaint against the 2^nd opposite party is not maintainable and the same deserves to be dismissed as  against 2^nd opposite party. 

 

19.       Coming to the alleged deficiency in service on the part of 1^st opposite party is concerned, it is no doubt admitting about the complainant availing loan with the bank and submitting the invoice  alongwith other loan documents.  According to the 1^st opposite party, the complainant has not deposited the original invoice but the 2^nd    copy of invoice towards  financial assistance extended for purchase of the asset.  As revealed from the records, dated 29-07-2013 addressed by the 1^st opposite party to the 2^nd opposite party, it is clear  that  the original invoice which was submitted alongwith own documents by  the complainant was lost in transit and is not  traceable  and hence  the 1^st opposite party requested the 2^nd opposite party to provide a duplicate  /  extra copy of the original invoice and requested 2^nd opposite party to directly  send the same to the complainant.  It is also clear from the material on record, the 2^nd opposite party sent a copy of the invoice to 1^st opposite party, who inturn deliver the same to the complainant as early as on                10-08-2013.  Thus, it is very much clear that a copy of the invoice  whether a duplicate or otherwise was received  by the complainant as early as 10-08-2013.  The application for loan alongwith material papers are submitted from the branch level to regional level and from there to central level of the banks for verification and sanction of the loan. It may be that during the transit of original invoice  was lost and was not traceable.  The opposite party took timely action in the matter and addressed to 2^nd opposite party to provide a duplicate copy of the original invoice which in fact was received by the complainant.  The complainant  appears to be to take  advantage of loss of the original invoice  at the office of 1^st opposite party.  If really, the  original was very much necessary, the complainant could have approached  and obtained  certificate of declaration form from the 1^st opposite party about the deposit of invoice  alongwith loan application and about the loss of the same  in transit.  Such a certificate / declaration  would have served the need of   having  original invoice.  The complainant for the purpose of black mailing the 1^st opposite party,  who have recovered the loan  amounts  with default interest from him appears to be  using the  loss of original invoice  as a weapon to  wreak vengeance  against  the 1^st opposite party. In the instant case, the complainant has  not produced any documentary proof  with regard to  his entering into  an agreement with Chandramohan about receipt of advance and  return of the advance.  The affidavit of P.Chandramohan is not forthcoming to establish   about such an agreement  having come into force.  The complainant appears to have delivered  evil idea  of enriching  himself  at the cost of                 1^st opposite party. There is no bar  in using the vehicle day to day without invoice.  The claim  that the  complainant  sustained loss of Rs.10,000/- per day on that  ground,  the claim of the complainant for damages of Rs.10,00,000/- is  exaggerated and it is only a creation  of the  complainant to make unlawful gain.  The 1^st opposite party  by setting right the fault committed by it is not returning the original invoice and by arranging the copy of invoice  has discharged its functions and therefore it cannot be said that there was  deficiency of service on the part of 1^st opposite party.

 

20.       The present complaint is full of  exhaugarations  and  unfounded claim which cannot be considered at any rate.  Therefore, this Forum holds that there is no deficiency in service on the part of the Opposite parties.  The point is answered accordingly.

21.       POINT No.2:  In the result, the complaint is dismissed, but without costs.

           Typed to the dictation to the Stenographer, corrected and pronounced by us in the open  Forum, this the  31^st day of  December, 2015.

 

 

             Sd/-                                                                                                    Sd/-

           MEMBER                                                                               PRESIDENT(F.A.C.)

                                                APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -

28-11-2014

Sri Kakani Srinivasulu, S/o.Vengaiah, Mutyalapalem, Nellore-3 (Affidavit in lieu of Chief Examination filed).

 

Witnesses Examined for the opposite parties

 

R.W.1  -	04-03-2015	Sri Sai Kumar Varaganti, S/o.Nagendra Prasad, Working as Assistant Legal Manager of HDFC Bank Limited, Nellore  (Chief Affidavit filed).
R.W.2  -	13-04-2015	Sri Sai Kumar Varaganti, S/o.Nagendra Prasad, Working as Assistant Legal Manager of HDFC Bank Limited, Nellore  (Additional Chief Affidavit filed).
R.W.3  -	21-10-2014	Sri A.S. Arun, S/o.A. Sreedharamurthy, Manager in Larsen Toubro Komatsu Limited, Bangalore-560052, Presently residing at Vijayawada (Proof Affidavit filed).

 

                             EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	05-02-2007	Photocopy of  Invoice No.910603064 in favour of complainant.
Ex.A2  -	02-08-2013	Photocopy of  Statement  from 25-01-2007 to 02-08-2013 in favour of complainant issued by  HDFC  Bank                (pages 1 to 6).
Ex.A3  -	29-07-2013	Photocopy of letter from  1st opposite party to the H.S.Ravi, Bangalore-560052.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1  -	01-10-2013	Power of Attorney executed by opposite party No.2.
Ex.B2 -	29-07-2013	Photocopy of letter from  1st opposite party to the H.S.Ravi, Bangalore-560052.
Ex.B3  -	03-08-2013	Photocopy of  Indemnity Bond  between  complainant and opposite party No.2.
Ex.B4  -		Photocopy of internet mails from   Krishna Vankayala
Ex.B5  -	-	Copy of Fresh Certificate of Incorporation Consequent upon Change of Name issued by  Government of India, Ministry of Corporate Affairs, Mumbai.
Ex.B6  -		Attested copy of   statement from 2Attested copy of   statement from 25-01-2007 to 03-03-2015 in favour of  complainant issued by the opposite party No.1 (pages             1 to 5)
Ex.B7  -		Photocopy of  invoice  in favour of complainant issued by the opposite party.
Ex.B8  -	29-07-2013	Photocopy of  letter  from opposite party No.1 to the opposite party  No.2.
Ex.B9  -	05-02-2007	Photocopy of Invoice No.910603064 in favour of  complainant issued by the opposite party No.2.
Ex.B10  -	-	Attested copy of Commercial Vehicles Division C.B. in favour of complainant issued by the opposite party No.1.
Ex.B11  -	23-09-2009	Attested copy of invoice No.910901609 in favour of complainant issued by the  opposite party No.2.

 

 

                                                                                                              

                                                                                                                         Id/-

                                                                                                         PRESIDENT(F.A.C.)

 

Copies to:

 

1.	Sri Dama Prabhakar Rao,  Advocate, S.V.S. Complex,  Nellore-3.
2.	Sri Arigela Nagendra Sai and Sri I.V. Ramasastry, Advocate, 1st floor,                            Arigela Plaza, Magunta Layout, Near Railway Under Bridge, Nellore-524 003.
3.	Sri P. Chalapati Rao and Sri P. Gopinath, Advocates, Karnala Street, Nellore-1.

 

Date when free copy was issued: