BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
FA NO.999 OF 2013 AGAINST CC NO.676 OF 2012
ON THE FILE OF DISTRICT FORUM-I, HYDERABAD
Between:
A.Srinivasa Rao S/o A.Narayana Rao,
Aged about 43 years, Occ: Business,
R/o Plot No.34, Flat No.301,
MNC Homes, Padma Nagar,
Champapet, Hyderabad – 79.
…Appellant/Complainant
And
Bajaj Finance Ltd.,
Construction Equipment Department,
Regional Sales Manager, Biswaranjan Batia,
4th Floor, 6-3-891 and 892, Rajbhavan Road,
Somajiguda, Hyderabad – 82.
…Respondent/Opposite party
Counsel for the Appellant : Sri K.Visweswara Rao
Counsel for the Respondent : Sri Valluri Mohan Srinivas
Coram :
Hon’ble Sri Justice B.N.Rao Nalla … President
and
Sri Patil Vithal Rao … Member
Friday, the Second day of September
Two thousand Sixteen
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
1) This is an appeal filed by the unsuccessful Complainant aggrieved by the orders dated 07.08.2013 of the District Forum-I, Hyderabad made in C.C.No.676 of 2012 dismissing the complaint without costs.
2) For the sake of convenience, the parties are referred to as arrayed in the complaint.
3) The case of the complainant, in brief, is that he obtained loan from the Opposite party by securing the original papers of his L & T Komatsu PC-200 model machine bearing Sl.No.NL 16403. The OP provided the financial assistance of Rs.15,64,164/- to be repaid in monthly instalments, in pursuance of Agreement No.4000CE0076024. The Complainant paid the total instalments in advance in the month of March 2012, on receipt of the said amount, the OP had issued account statement, it discloses that the complainant account is closed and there is no repayment mode nor advance EMI.
4) Though complainant has been regularly pursuing the matter to return the original invoice, Opposite party is avoiding the same on one pretext or the other. The conduct of the OP is not only unethical but also illegal and breach of trust. To a notice dated 14.09.2012 the OP replied stating that the original invoice is not available and they could only find the Photostat copy. This act on the part of the Opposite party amounts to deficiency of service. Hence the complaint praying to direct the OP to return the original invoice or to refund the amount of Rs.15,64,164/- along with interest and damages of Rs.1,50,000/-; to pay compensation of Rs.50,000/- towards mental agony and inconvenience, to pay costs of Rs.10,000/-.
5) Opposite party resisted the claim contending that on 06.10.2010 the Complainant applied for loan facility for the refinance of L & T Komatsu PC-200-6 Product Code/Description No. NL 16403 and the Opposite party provided refinance of Rs.15,64,164/- on executing Hypothecation Agreement dated 12.10.2010 vide loan account No.4000CE00076024 on 18.10.2010 fixing the Emi at Rs.64,900/- per month for a period of 29 months. The re-financing was done on the basis of Valuation Report dated 07.10.2010 submitted by Singam Sreenivasa Reddy, Secunderabad. In case of refinancing, original invoice copy is not at all required and what is required is the Valuation Report from government approved valuer and Photostat copy of the invoice. In case of refinance, on the basis of Valuation Report and photocopy of the invoice, the insurance policy may be issued by the insurance company.
6) On verification of record by the Opposite party, it is found that there is no reference of having taken or receipt of original invoice from the complainant in respect of the machine. Complainant is required to show proof/acknowledgement as regards handing over of the original invoice to the Opposite party. Complainant is a businessman and from the profit and loss account for financial year ending 31st March, 2009, there are gross receipts of Rs.32.11 lakhs and fixed assets of Rs.53.59 lakhs. The vehicle is used for commercial purpose and the machine is not used exclusively for the purpose of earning his livelihood, hence, not a ‘consumer’ as defined under Section 2(1)(d) of the C.P. Act.
7) In case, the original invoice is not traceable at Complainant’s end, he may ask for duplicate copy from the manufacturer or dealer from whom the said machine is purchased. The machine is purchased on 24th July 2008 by one Mr.M.Buchi Reddy and thereafter, it was sold to Complainant, which mean the invoice copy would have traveled from several hands as such, the Complainant cannot take stand that it is with Opposite party. Hence, prayed to dismiss the complaint with costs.
8) During the course of enquiry before the District Forum, in order to prove their case, the Complainant got filed his evidence affidavit and Exs.A1 to A6 while the Opposite party got filed the evidence affidavit of one K.Bharani Kumar, authorized Officer of Opposite party and marked no documents.
9) The District Forum after considering the material available on record, allowed the complaint bearing C.C.No.676/2012 by orders dated 07.08.2013, as stated in paragraph No.1, supra.
10) Unsuccessful complainant before the forum below is the appellant herein. Aggrieved by the above orders, the present appeal is preferred on the ground that the forum below (a) erred in holding that refinance does not require the original invoice while pledging the machinery for loan as a matter of fact, pledge of the vehicle completes only on deposit of original invoice; (b) failed to see without original invoice, valuation report will not be prepared and the alleged valuation report is not filed; having misplaced the original invoice, Respondent is resorting to malpractices; (c) failed to observe that on verification of the docket from the service provider, only photocopy is available which proves that the original is misplaced; (d) failed to see that the Respondent has not passed any acknowledgement while taking original invoice, hence, question of proving does not arise; (e) ought to have blamed the Respondent for not furnishing the terms and conditions instead finding fault with the Appellant. Hence prayed to allow the appeal setting aside the order of forum below.
11) The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief ?
12) It is not in dispute that the Appellant obtained financial assistance from the Respondent Company vide loan account No.4000CE00076024 by pledging the vehicle. The Respondent would contend that they are not in receipt of original invoice, which is disputed by the Appellant.
13) To prove his contention, the Appellant got marked Ex.A1 to A6 documents. Ex.A1 is the copy of invoice which is in dispute; Ex.A2 is the loan statement of account of the Appellant for the period from 08.09.2010 to 08.09.2012; Ex.A3 is the copy of notice got issued by the Appellant; Ex.A4 are the original postal receipts of Ex.A3 notice; Ex.A5 are the original postal acknowledgements and Ex.A6 is the reply given by the Respondent to Ex.A3 notice.
14) A reading of the Ex.A6 reply shows as below:
“….We admit that your client has availed loan of Rs.15,64,164/- vide LAN 400 CE 00076024 from us for purchase of vehicle L & T Komatsu PC 200 Model 24-07-2008 Sl.No.NL 16403 bearing Invoice No.910801725 (hereinafter referred to as ‘said vehicle’) the said vehicle is also ‘Hypothecated to Bajaj Finance Ltd’.
After closure of loan by your client, we have called for original docket from our service provider, containing all loan papers of your client, however, the Original Invoice Copy of Invoice bearing No.910801725 is not available in the said docket. We could only find the Xerox copy of the Invoice…….”
In the written version filed before the forum below, the Respondent stated as follows:
“…….Complainant had approached on 6th October, 2010 and applied for Loan facility for the reference of L & T Komat’su PC -200-6 Product Code – Description No. :- NL 16403 (hereinafter referred to as ‘commercial machinery’) of Rs.15,50,000/- and accordingly, availed re-finance of Rs.15,64,164/- and executed Facility Cum Hypothecation Agreement dated 12th October, 2010 with Opposite party vide the Loan proposal No.4000CE00076024 on 18/10/2010. The equated monthly instalment (EMI) to be paid per month is Rs.64,900/- and the contract period is of 29 months.
Opposite party states that the re-financing was done basis Valuation Report dated 7th October, 2010 submitted by Singam Sreenivasa Reddy, Secunderabad. It is also submitted that in case of refinancing Original Invoice copy is not at all required what is required is that valuation Report from Govt. Approved Valuer and Xerox copy of the said Invoice. It is submitted, in case of refinance, basis Valuation Report & Xerox copy of the Invoice, insurance policy my be issued by the Insurance Company.
The Opposite Party has verified it’s record, there is no reference of having taken/OR received original Invoice from the Complainant in respect of the said commercial machinery. ………….
Opposite party states that the Complainant is Businessman, from the Profit & Loss Account for FY ending on 31st March, 2009, it appears that the Complainant has having, Gross Receipts of Rs.32.11 Lakhs & Fixed Assets of Rs.53.69 Lakhs. It is submitted that the Commercial machine is used for commercial purpose,……….”
To show its bonafides, the Respondent failed to file the said documents i.e., hypothecation agreement and also the Valuation Report. The tone and tenor of the reply and the written version would go to show that the Respondent intentionally failed to file the said documents. Had the Respondent chose to file the documents, the Appellant would have rebutted something which was beneficial to him. Nothing prevented the Respondent from filing the said documents. Non-filing of the Valuation Report and Hypothecation Agreement would draw an inference that to cover-up its laches, it withheld the material facts.
15) On one hand the Respondent would contend that it requires no documents for refinance. The averments made in the written version goes to show that it had the copies of annual returns of the Appellant as also the copy of Invoice. Had these documents been filed, this Commission would have an opportunity to peruse. The forum below missed these vital aspects and concluded that the Appellant failed to file the terms and conditions of the agreement. It had fastened liability on the Appellant for not producing the terms and conditions instead of the Respondent while returning the verdict against the Appellant. Without which, it would be difficult and improper to arrive at just and proper conclusion, hence the orders of the forum below are passed without proper adjudication of the case on hand. At any rate, dismissal of the complaint, for the reasons stated supra, cannot hold good and the appeal is liable to be allowed. Nothing contained in this order shall be taken as opinion expressed by us in this case. Accordingly, the matter is remanded back to the forum below for fresh disposal in accordance with law after giving opportunity to both sides.
16) In the above facts and circumstances, the order of the District Forum is set aside and the point framed for consideration in paragraph No.11, supra, is answered accordingly.
17) In the result, the appeal is allowed and the order of the District Forum dated 07.08.2013 in C.C.No.676/2012 is set aside and the matter is remanded back to lower forum. However, the District Forum is directed to dispose of the case on merits and in accordance with law after giving opportunity to both sides, as expeditiously as possible. In the circumstances, no costs.
PRESIDENT MEMBER
Dt. 02.09.2016
