BEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986), MEDAK AT SANGAREDDY
Present: Sri P.V.Subrahmanayma, B.A.,B.L., PRESIDENT
Sri Mekala Narsimha Reddy, M.A.,LL.B.,
P.G.D.C.P.L. Male Member
Smt Meena Ramanathan, B.Com., Lady Member
Tuesday, the 9th day of March, 2010
CC.No. 20 of 2009
Between:
Sri. D. Shiva Kumar S/o Sangappa,
Aged 45 years, Occ: Business,
R/o 126-245/A, Vivek Nagar,
Kukatpally, Hyderabad. ….. Complainant
And
1. A.P.S.R.T.C. Rep: by its
Regional Manager,
Medak region, At : Sangareddy.
2. A.P.S.R.T.C. Rep by its
Depot Monager,
Narayankhed Depot, Medak dist.
3. A.P.S.R.T.C. Rep by its
Managing Director / Vice chairman,
Musheerabad, Hyderabad.
....Opposite parties
This case came up for final hearing before us on 29.01.2010 in the presence Sri. Ch. Bhoopathi, advocate for complainant and Ms. Sailaja, advocate for opposite party Nos. 1 to 3, upon hearing the arguments of both sides, on perusing the record and having stood over for consideration till this day, this forum delivered the following
(After perusal of the order of the Hon’ble President I have written separate order)
DISSENT ORDER
(Per Smt. Meena Ramanathan, Lady Member)
This complaint is filed Under Section 12 of Consumer Protection Act, 1986 to direct the opposite parties to pay Rs.85,000/- towards arrear amounts due as per agreement dated. 20.01.2007, to award Rs.1,00,000/- as compensation and Rs.5,000/- as legal expenses.
The averments in the complaint in brief are as follows:
1. The complainant is owner of bus bearing NO. AP 28 Y 0961. It was hire to the APSRTC, Sangareddy zone. On 20.11.2007 opposite party No. 1 on behalf of the opposite party No. 3 has entered into in hire agreement with the complainant. The complainant has accepted the proposal of the opposite parties and hired his bus to the corporation of opposite party No. 1 and handed over the bus of the complainant to opposite party No. 2 for public transport. The bus has been running on the notified routes. The said agreement is valid for a period for four years from 20.11.2007 to 19.11.2011. As per the terms and condition of the hire agreement the complainant as follow each and every condition and opposite party No. 2 has paid Rs.11.82 paise per kilometer on operated kilometers as per the agreement. Later the opposite parties paid increased rate of .19 paise per kilometer. The said payments have been made by opposite party NO. 2 are instruction by opposite party No. 1 on every fortnight to the complainant within 10 days after completion of the fortnight. But recently the said rates was increased by Rs. 62 paise per kilometer from the month of July, 2008. Since then opposite party No. 1 has not been paying the arrears of Rs.45,000/- approximately and increased arrears amounts of Rs.40,000/- to the complainant. Opposite parties No. 1 and 2 liable to pay to the arrears and increased rates of dues totaling Rs. 85,000/- to the complainant as on due date 13.11.2008. On the said date HDFC Bank who is the financier of the complainant has seized the bus from the possession of opposite party No. 3 i.e. M.G. Bus station, Hyderabad without prior intimation either to the complainant or to the opposite parties. When the complainant orally demanded several times opposite parties No. 1 and 2 have been making excuses and with an intention to evade payment by saying that there was a due of the diesel amount when other expenses etc. In fact diesel amounts and other expenses if any shall be paid by the complainant as per the agreement. The opposite parties are not responsible to pay diesel expenses, mechanical expenses, driver’s salary etc. Had the opposite parties paid the said amounts to the complainant in time he would have paid installments to the financiers regularly. But due to gross negligence on the part of the opposite parties the complainant could not pay three installments @ Rs. 24,000/ - per month to the financier and due to the above reason the bus was seized by the financier from the custody of opposite party No. 1. The complainant is contemplating to initiate legal steps against his financier who sold the bus in open market for cheaper rate and caused heavy loss and hardship. Even though the complainant always follow the rules and conditions for hire agreement, the opposite parties have violated the terms and conditions of the agreement and created un-necessary problems and caused heavy loss to the complainant therefore are liable to pay arrears amount of Rs.85,000/- and compensation of Rs. 1,00,000/- . Because of the seized of the vehicle the complainant was put to mental agony and financial problems which is approximately Rs.2,00,000/- till date. The opposite parties have not taken any steps to get bus back the from the financier nor paid the amount due to the complainant, hence the complaint.
2. The complaint is resisted by the opposite party by filing the following version, the opposite party No. 1 which is adopted by the opposite parties No. 2 and 3 under separate memos. The contents of the version of opposite party No. 1 in brief are as follows:
The complainant hired his bus to the opposite parties by engaging driver and it is being plied on specified rates. He has been using the bus for commercial purpose by hiring his bus and taking hire charges. He has not paid any amount to the opposite parties towards hire charges or any other charges. There is no payment of any amount / consideration by the complainant. As such the complainant is not a consumer within the meaning of the Consumer Protection Act and hence the complaint is not maintainable and is therefore liable to be dismissed in inlimine, as this forum has no jurisdiction to try the case. The opposite parties admit the condition of hire agreement payment of Rs.11.82 paise per kilometer and increased rate of .19 paise per kilometer and rate .61 paise kilometer etc., but denies that he has not paid arrears of Rs. 45,000/- and increased arrears of Rs. 40,000/- total Rs. 85,000/- as on due date 13.11.2008. The complainant has withdrawn the bus without intimation to the opposite party. The opposite parties agreed to the enhanced hire rate at 19 paise from 15.02.2008 due to increased rates of HSD Oil and again the rate was enhanced to further 61 paise with effect from 05.06.2008. The opposite party No. 2 calculated the arrears and the arrears amount of Rs.30,403/- is found payable and after deducting income tax 2.267 points the net amount payable to the complainant was arrived at Rs.29,714/- and the same was sent to audit and after pre audit the amount payable is only Rs.29,714/- but not Rs.85,000/- as stated in the complaint. The allegations that they are oral demands from the complainant for payment of dues and opposite parties made excuses with an intention to avoid payments etc are all denied. It is also denied that due to gross negligence of opposite party Nos. 1 and 2 the complainant is put to heavy loss and hard ship. The fortnight amounts paid to the complainant would be around Rs. 54,000/-. The arrears on enhanced diesel rates is only Rs.29,714/- which is less than fortnight payments. The opposite parties are not concerned nor are they responsible for non payment of installments by the complainant to his financier. Opposite party No. 1 made available to the complainant the hire charges for the month of November 2009 vide cheque No. 128603, dated. 20.12.2008 for Rs.50,839/-. But the complainant despite many reminders failed to collected the amounts for reasons known to him. There is no negligence on the part of the opposite parties. The Opposite parties never violated or deviated from the conditions of the agreement. The default of the complainant to his financier is nothing to do with the hire agreement as it is beyond the purview of the agreement. On the other hand the complainant un-authorizedly stopped the vehicle without any intimation from 15.11.2008 onwards due to which the opposite party No. 1 was put to loss for abrupt stoppage of plying of the bus by the complainant, for which the complainant is liable to pay penalty of Rs. 500/- per day till the closure of the contract. The complainant is due to the opposite party Rs.71,000/- towards penalty from 15.11.2008 to 06.04.2009 and the same is recoverable from him. Clause II (i) of the agreement is: “ It is agreed that in case of any dispute or disagreement between the owner and the officers of the corporation with regard to the interpretation of the terms and conditions of this agreement, penalties or fines, amounts due, the decision of the Regional Manager of the Corporation is final”. The complainant violated the terms of the agreement and knocked doors of this forum with unclean hands for un-lawful gain. The opposite party No. 1 is contemplating to proceed against the complainant for recovery of the penalty amount of Rs.71,000/-. However cheque No. 456435 for Rs.29,714/- dated 11.05.2009 is prepared for payment to the complainant towards enhance diesel rates and complainant collect the cheque. They are no merit in the complaint and hence the complaint is liable to be dismissed.
3. Evidence affidavits of both parties are filed in order to prove the respective pleadings. Exs. A1 to A6 are marked on behalf of the complainant. No documents are marked on behalf of the opposite parties. Written arguments of complainant filed advocate for opposite parties filed a memo to treat the evidence affidavit of opposite parties and written arguments on their behalf. Oral arguments on both sides heard.
The point for consideration is whether the complainant is entitled to the amounts claimed in the complaint towards arrears of hire charges of the bus, compensation and costs as prayed in the complaint?
Point:
In careful perusal of the records, versions of both the parties, documents we have observed that it is an admitted fact that the complainant had an agreement with the opposite parties.
As per the contention of the complainant the increased amount as per hire charges was not paid within the stipulated period. Then the complainant on 13.02.2009 issued a legal notice to the opposite party who failed to respond. That is deficiency of service on the part of the opposite party. The violation of the terms and conditions of the hire agreement date 21.11.2008 is also deficiency of service.
After filing the he case that opposite party issued Rs.29,714/- which is only part of the amount due to the complainant. Remaining amount should be reimbursed to the complainant as per the agreement.
The opposite parties contention that the complainant is not a consumer dispute is not maintainable. Relying on the judgment of the Hon’ble Supreme Court-2008 CCTJ 1050 Supreme Court Sujith Kumar Bennerjee vs Remeshwaran & others. The opposite party is deficient in providing the service. Hence the complainant is held to be a consumer and the opposite party is service provider. Therefore the complainant is held to be maintainable in this forum.
In the result the complaint is allowed, directing the opposite parties to pay remaining amount of Rs.24,000/- by the complainant, the cost of Rs.1,000/- and compensation amounting to Rs. 2,000/-. The order shall be complied within one month from the date of receipt of the order.
Typed to dictation, corrected and pronounced by us in the open forum this 9th day of March, 2010.
*** Sd/- Sd/-
PRESIDENT MALE MEMBER LADY MEMBER
Copy to
1) The Complainant Copy delivered to the Complainant/
2) The Opposite parties Opposite parties On _________
3) spare copy Dis.No. /2010, dt.
