BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah , B.Com B.L., President
And
Sri. M.Krishna Reddy , M.Sc., M.Phil., Male Member
Friday the 01st day of October , 2010
C.C.No 144/09
Between:
P.Vijaya Bhaskar, S/o. P.Ambaiah,
H.No.1-17-75, Gareeb Nagar, Atmakur, Kurnool District-518 422.
…..Complainant
-Vs-
1. AXIS Bank Ltd., Rep.by its Branch Manager,
D.No.40/581, S.V.Complex, Kurnool-518 004.
2. AXIS Bank Ltd., Rep.by its Manager,
D.No.6-3-879/B, Greenlands, Begumpet, Hyderbad-500 016.
3. Shri Ram Transport Finance Co., Ltd., Rep.by its Branch Manager,
D.No.4/620, Gandhi Road, Proddatur, Kadapa District-516 360.
4. Shri Ram Transport Finance Co., Ltd., Rep.by its Branch Manager,
Branch-2, Near Raj Talkies , Nandyal-518514,Kurnool District.
……Opposite PartieS
This complaint is coming on this day for orders in the presence of Sri. M. Azmathulla , Advocate, for complainant, and opposite party No.1 is called absent set ex-parte and Sri. P. Siva Sudharshan , Advocate for opposite parties 2, 3 and 4 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. T.Sundara Ramaiah, President)
C.C. No. 144/09
1. This complaint is filed under section 11 & 12 of C. P. Act, 1986 praying to direct the OPs
(a) to release the lorry bearing registration No. AP-21-W-2519 of
the complainant from their illegal custody in a good condition (or)
In alternative direct the Ops to pay Rs.9,18,000/- to the complainant as it was collected towards installments.
(b) to direct the opposite parties to pay Rs.80,000/- towards compensation for causing mental agony and hardship.
(c) to award interest @ 24% p.a
(d) to grant costs of the complaint.
(e) to grant such other reliefs as the Hon’ble Forum may deem fit and proper in the in the circumstances of the case.
2. The case of the complainant in brief is as follows:- The complainant purchased the lorry bearing registration No. AP-21-W-2519 by availing financial assistance from OP.No.2 under loan hypothecation agreement. The complainant is the driver and he is running the said lorry for his livelihood. The Ops 3 and 4 acted as a collection agents of Ops 1 and 2. The complainant availed loan of Rs.9,75,000/- from Op.No.2. As per the terms and conditions of the agreement the loan amount is repayable in 60 monthly equal installments at Rs.21,894/- each from January 2005. The complainant paid all the installments without any default and obtained receipts. Surprisingly on 05-10-2008 the OP 3 and 4 employed powerful persons and forcibly seized the complainants lorry at Bellary Chowrasta in Kurnool town. No prior notice was given to the complainant. On 17-12-2008 OP.No.3 issued a demand notice to the complainant asking to clear the arrears. The Ops seized the lorry of the complainant forcibly and illegally without prior intimation. Hence the complaint.
3. OP.No.1 remained set ex-parte. OP.No.3 filed written version and it is adopted by Ops 2 and 4. It is stated in the written version of OP.No.3 that the complaint is not maintainable. The complainant is running the transport business and he is having number of vehicles. It is admitted that the complainant availed loan of Rs.9,75,000/- . It is denied that Ops 3 and 4 forcibly seized the vehicle of the complainant on 05-10-2008. The complainant executed a tri-partiate loan agreement on 30-10-2004 through OP.No.3. The loan amount is repayable in 55 monthly installments at Rs.21,894/- each. As per the terms of agreement OP.No.3 was given authority to collect the installments. The complainant paid Rs.8,80,324/- only and committed default in payment of the balance of installments. OP.No.3 sent a letter to the complainant calling for payment of the arrears. As the complainant committed default in payment of the installments , OP.No.3 on 08-12-2008 repossessed the vehicle from the complainant and intimated the same to the complainant and the guarantor. As per the terms and conditions of the agreement OP.No.3 sold the vehicle to the third party in open auction on 30-04-2009 for Rs.5,40,000/- .The said amount was credited to the account of the complainant. Still an amount of Rs.1,74,256/- is due by the complainant . After the sale of the vehicle OP.No.3 sent a legal notice dated 19-08-2009 to the complainant calling him to pay the balance amount. The complainant and guarantor received the said notice and file the present complaint to avoid payment of the short fall amount. The complainant suppressed the facts and filed false complaint. The forum has no jurisdiction to entertain the complaint. The complaint is liable to be dismissed.
4. On behalf of the complainant Ex.A1 to A4 are marked and the sworn affidavit of the complainant is filed. On behalf of the opposite party Ex.B1to B5 are marked and the sworn affidavit of OP.No.3 is filed.
5. Both parties filed written arguments.
6. The points that arise for consideration are
(i) whether the complainant is a consumer ?
(i) whether there is deficiency of service on the part of the OPs ?
(ii) whether the complainant is entitled to the relief as prayed for?
(iii) To what relief?
7. Points No.1 & 2 :- Admittedly the complainant availed loan of Rs.9,75,000/- form OP.No.2 and purchased the lorry bearing No. AP-21-W-2519. The said amount along with interest was repayable in 55 monthly installments at Rs.21,894/- each. Admittedly the complainant hypothicated the said vehicle with OP.No.2 . There is a tri-partiate agreement between the complainant and the Ops. Admittedly the Ops 3 and 4 who are authorized to collect the installments from the complainant seized the vehicle of the complainant and sold the same in open auction.
8. It is the contention of the Ops that the complainant is running transport business and that he is having number of vehicle and that the complainant is not a consumer as defined under Sec. 2 (1) (d) of the Act. It is stated by the complainant in his sworn affidavit that he is a driver of the lorry and he purchased it for the purpose of his livelihood. The Ops did not place any documentary evidence to show that the complainant is having number of vehicle and he is doing transport business. It is submitted by the learned counsel appearing for the Ops that Ops seized the vehicle of the complainant committed default in payment of installments and the sale of the said vehicle by the financier does not amounts to service as defined in Sec. 2 (1) (O) of the Act. In support of his contention he relied on a decision reported in III (2006) CPJ 247 (NC) where in the National Consumer Disputes Redressal Commission held that Under hire- purchase transaction , financier not renders service within the meaning of C.P. Act and the complainant is not a consumer. In the present case also the Ops proceeded against the hypothecated vehicle of the complainant as per the terms and conditions of the hypothecated agreement entered into between the complainant and the Ops. The complainant did not place any satisfactory evidence to show that Ops 3 and 4 employed power full persons and forcibly seized the vehicle with muzzle power. Except the affidavit evidence of the complainant there is no independent evidence. The complainant did not choose to file the affidavits of the driver or the cleaner of the vehicle to show that his vehicle was seized by employing power full persons . In the light of the observations made by the National Commission in the above cited decision we have no hesitation to hold that the complainant is not a consumer within the meaning of Sec. 2 (1) (d) of the Act.
9. It is the case of the complainant that OP.No.3 and 4 seized the vehicle forcibly on 05-10-2008 . The Ops no where in the written version admitted that the vehicle was seized on 05-10-2008. According to the Ops the vehicle was repossessed on 08-12-2008 for non payment of the installments dues by the complainant . The Ops filed Ex.B1 letter dated 04-11-2008 issued to the complainant and the guarantor under the hypothecation agreement. Under Ex.B1 OP.No.3 demanded the complainant and the guarantor under agreement to pay the installments otherwise the approximate action would be taken. As seen from the contents of Ex.B1 it is very clear the OP.No.3 issued notice to the complainant before seizing the vehicle on 08-12-2008. According to the Op.No.3 the vehicle was seized on 08-12-2008 and before the sale of the said vehicle the complainant was issued notice Ex.A2 dated 17-12-2008 . Admittedly the complainant received Ex.A2 notice got issued by Ops. In the said notice it is mentioned that the vehicle would be sold if the amount due by the complainant is not paid within a week. Admittedly no reply was given by the complainant. Had OP.No.3 and 4 seized the vehicle employing power full persons the complainant would have given a reply stating that the vehicle was seized forcibly by Ops 3 and 4 by employing power full persons . Therefore the contention of the complainant that the vehicle was seized illegally by Ops 3 and 4 without issuing prior notice can not be accepted. The learned counsel appearing for the complainant relied a decision reported in (2009) CJ 463 (A.P) in support of his contention . In the said case the financier seized the vehicle without prior notice and sold the same without intimating to the complainant. The facts of the present case are entirely different from the facts of the case cited above.
10. Admittedly the OP.No.3 got issued Ex.B3 notice to the complainant and the guarantor under the hypothecation agreement. Ex.B3 is dated 19-08-2009. The said notice was issued after sale of the vehicle by the Ops. The present complaint is filed on 21-08-2009. The complainant kept quite till the Ops got issued Ex.B3 demand notice. If there is truth in the contention of the complainant that the his vehicle was seized forcibly by employing power full persons on 05-10-2008 it is not known as to why the complainant kept quite till he received the legal notice Ex.B3 dated 19-08-2009. The contention of the complainant that Ops 3 and 4 forcibly seized the vehicle by employing power full persons on 05-10-2008 is not believable. Admittedly no complaint was lodged by the complainant against the Ops 3 and 4 for the alleged seizure of the vehicle on 05-10-2008. As seen from the evidence it is very clear that the complainant committed default in payment of the installments and that the Ops repossessed the vehicle after giving prior notice to the complainant . The Ops also issued notice before selling the vehicle Ex.A2 calling the complainant to clear the arrears dues . As the complainant did not respond for the said demand of the Ops ,the Ops sold the hypothecated vehicle and realized the dues. There is nothing on record to show that the Ops acted illegally in seizing and selling hypothecated vehicle . There is no deficiency of service on the part of the Ops. The complaint is not entitled to the relief as prayed for.
11. Point No.4: In the result the complaint is dismissed. In the circumstances no costs.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 01st day of October, 2010.
Sd/- Sd/-
MALE MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties : Nil
List of exhibits marked for the complainant:-
Ex.A1 A bunch of receipts paid by the complainant.
Ex.A2. Letter dt. 17-12-2008 issued by OP-3.
Ex.A3. Photo copy of Registration certificate of the complainant’s vehicle.
Ex.A4. Photo copy of Insurance certificate of the complainant’s vehicle.
List of exhibits marked for the opposite parties:
Ex.B1. Photo copy of letter of the complainant dt. 04-11-2008.
Ex.B2. Extract of Statement of Account of the complainant
Ex.B3. Photo copy of legal notice dt. 19-08-2009.
Ex.B4. Postal acknowledgements (2) .
Ex.B5. Valuation report of the vehicle dt.18-02-2009.
Sd/- Sd/-
MALE MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
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