DOF.27.3.2004 DOO.25.4.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 25th day of April 2011 CC.NO.80/2004 N.P.Saheesh, ‘Shreyas”,Padannakkara, Complainant P.O.Pinarayi, Kannur (Rep.B.P.Saseendran) 1. The Branch Manger, M/s.Shriram Investments Ltd., Near Police Club, Kannur. Opposite parties 2. The Manger, M/s.Shriram Investments Ltd., Sreepuram Building, Cherutty Road, Calicut 32. (Rep. by Adv.P.K.Noushad) O R D E R Sri.K.P.Preethakumari, Member This is a complaint filed under section12 of consumer protection Act for an order directing the opposite parties to exonerate the complainant from paying `3,75,000/- and to return the excess amount of `1,75,000/- with compensation and cost. The case of the complainant is that he is a physically handicapped and he had purchased a stage carriage bus bearing NO.KL.95/1715 for eking his livelihood, as per a hire purchase agreement dt.6.6.02 with the opposite party for an amount of `4, 50,000/- and as per the schedule of repayment he had to make payment of `6, 80,314/- in 48 installments. At the time of purchase the complainant had submitted a valuation statement for `6,25,000/-.1st opposite party agreed that the registration certificate of the vehicle will be supplied to the complainant immediately after making endorsement of hire purchase by RTA, Kannur. But the opposite party has not handed over the RC by saying that the RC book has been misplaced from the 2nd opposite party’s office and it is being under search. So the complainant could not produce the R.C book before RTA meting for the sanctioning of permit for plying in the Anjarakandy-Thalassery-Kanur route and hence the application for permission for route was rejected. More over the complainant could not ply the bus in any route including temporary basis due to non-supply of RC and hence he could not pay first three installments of Hire Purchase to the opposite party. The delay in payment of the installments was caused only due to the failure of opposite party in giving the RC to the complainant. So the complainant surrendered the vehicle to the opposite party during September2002, in order to avoid further liability and terminated the hire purchase. At the time of surrender the opposite party informed the complaint that the vehicle will be sold in auction after informing the complaint and if sale consideration receives is an excess to the amount due, the same will be refunded to the complainant and further informed that the vehicle will not be sold for a value of less than `6, 25,000/-. But later the complainant got information that the opposite party sold the vehicle to a third party without the knowledge of the complaint for `6,25,000/-. So the complainant approached the opposite party to refund the excess amount received. But instead of refund the complainant and his brother received a lawyer notice dt.31.10.03 directing them to pay Rs.3, 75,000/- which was due by the complainant. The complainant issued a reply requesting the opposite party to pay back `1, 75,000/-. The complainant has purchased the bus for `6, 82,000/- and the balance amount was arranged from his friends. The complainant has suffered so much of mental strain and hence he is entitled to get compensation also. The opposite party has shown unfair trade practice and deficiency in service to the complainant by non-delivery of RC book as well as non- refunding the excess amount received by selling the vehicle without the knowledge of the complainant. Hence this complaint. Upon receiving the notice from the Forum opposite parties appeared and filed their version.The opposite parties admit that the complainant has purchased a vehicle bearing No.KL.9/F.1715 by availing a finance amount of `4, 50,000/- from them. But contended that the purchase of the vehicle is for profit making and it comes under commercial transaction and as such the complaint is liable to be dismissed. They further contended that the bus was purchased on the strength of a hire purchase agreement and the dispute is with respect to the violation of contract and hence the complainant ought to have approach a civil court for his grievances if any and hence the Forum has no jurisdiction to try the case and the complaint is liable to be dismissed. They further submits that the hire purchase agreement dt.6.6.02 for an amount of `6,80,314/- and the complainant has to make repayment in 48 installments as per the repayment schedule and immediately after the execution of agreement the opposite party had delivered all papers relating to the complainant. They further denied the averment that the opposite party had collected an amount of `1, 75,000/- excess and default in payment was caused due to non-supply of RC and hence the complainant has lost huge amount etc. According to opposite party as per Hire purchase agreement the complainant was strictly bound to pay the hire charges without any default in every calendar month. But the complainant failed to do so and hence the opposite party repossessed the vehicle and realized the amount as per the terms of the agreement and at the time of repossession the vehicle was not in good condition and the value of vehicle is considerably diminished due to rash and negligent use of the complainant and all these facts and steps of sale had been duly intimated to the complainant by the opposite parties. Due to reduction of the value of the vehicle opposite party had resale the vehicle for lesser amount and after adjusting sale consideration an amount of `3,75,000/- is due to opposite parties by the complainant. So the complaint is liable to be dismissed. Upon the above pleadings the following issues are raised for consideration. 1. Whether the complaint is maintainable? 2. Whether there is any deficiency in service on the part of opposite parties? 3. Whether the complainant is entitled to get any relief? 4. Relief and cost. The evidence in this case consists of the oral testimony of PW1, DW1Exts.A1 to A6 and B1 and B2. The case was earlier decided by the forum and later as per the order in Appeal No.1/10 dt.24.6.2010 the Hon’ble State Commission was pleased to remanded back the same for fresh disposal after giving opportunity to both sides to adduce evidence. As a result, the complainant was recalled by opposite arties 1 and 2 and cross examined. The opposite party has produced certain documents which are marked subject to proof as Exts.B3 to B7. Such as valuation certificate dt.20.2.03 by insurance surveyor, valuer, 4 quotation and auction notice dt. 18.6.03. Even though this Exts.B3 to B7 documents is subject to proof the opposite parties have not taken any steps to prove these documents. Issue No.1 The opposite parties contended that the complaint is not maintainable before this Forum because the purchase of the vehicle is purely for profit making and it comes under the purview of commercial transaction and the dispute regarding the said transaction is only a violation of contract. The complainant in the above case is a physically handicapped and he pleaded that the stage carriage bus was purchased for eking his lively hood. The opposite parties have not produced any evidence to disprove the above version of the complainant or produced any document to prove that the complainant has sufficient means for his livelihood. So opposite parties failed to prove the contention that the above bus was purchased for commercial transaction and hence this contention cannot be taken into consideration. The other contention is that the dispute is with respect to violation of a contract. But the complaint is filed with a prayer to exonerate the complainant from paying excess amount and to refund the amount received by the opposite party as sale consideration of the vehicle after adjusting the amount due to them. So it is seen that the complaint is filed not for specific performance of any of the terms of a contract but against deficiency and unfair trade practice alleged to be shown by the opposite parties while performing the terms of contract. The Hon'ble National Commission in Synco Textile Pvt.Ltd. Vs. Economic Transport organization and others, which was reported in 1991(I) CPJ40 NCC held that every transaction of hiring of service may be technically a breach of contract under the general law, will not in any way effect the jurisdiction of the Forums set up under the special law, the Consumer protection Act. Once it is found that there is hiring of service for consideration and that loss has been caused to the complainant on account of neglect and deficiency in rendering the service, the aggrieved consumer is entitled to seek his remedy under the Consumer protection act by approaching the appropriate redressed Forum. Every transaction of hiring of service may amount to contract in the eye of law and any deficiency in rendering service may technically a breach of contract. But merely for that reason the consumer cannot be denied the benefit of protection conferred by the Act. So from the above discussion we are of the opinion that complaint is maintainable before this Forum and the complainant is a consumer and issue No.1 is found in favour of the complainant. Issue No.2 to 4 The further case of the complainant is that the opposite party has not delivered the RC in time and hence the complainant has failed to repay the loan amount, the opposite parties have not intimated the sale after or before auction and had sold the vehicle and not paid the excess amount received etc. In order to prove this the complainant’s brother was examined as PW1 and documents such as power of attorney, photocopy of the registration certificate, photocopy of repayment chart, photocopy of report issued by surveyor, lawyer notice and reply notice etc were produced. The opposite party was also examined as DW1 and documents like Hire Purchase agreement, statement of account, report of the surveyor, quotation and quotation notice etc. were produced. The complainant contended that opposite party has failed to repay the loan amount. Admittedly the opposite party had repossessed the vehicle and sold it while going through the pleading. It is seen that the opposite party has not disputed the period of repossessing the vehicle i.e. during September 2002. But they have informed the complainant only on 31.10.03 that the vehicle was sold and the complainant is bound to pay a balance of `375000 after adjusting the sale consideration after a lapse of more than one year of repossession of the vehicle. The opposite party is duty bound to inform the complainant before and after auction and the details regarding sale. Even though the case is remanded for giving opportunity for producing the documents the opposite party has not produced any relevant documents pertaining to the sale. The opposite party has produced Exts.B3 to B7 documents; they are valuation report, quotation for sale of vehicle and auction notice. But the contention put forwarded by the complainant is that the opposite party has not intimated about the sale and auction and the sale value of the vehicle or any other related details with respect to sale of vehicle except ext.A5 lawyer notice dt.3.10.03. They have not produced any documents to show that the sale was intimated to the complainant before and after sale or even the date of sale. This shows that the opposite parties have not intimated the complainant about the sale. More over the opposite party has not produced any documents such as sale agreement paper publicatin for auction or any other documents to show the actual value of sale and the actual date of sale. So there is deficiency of service on the part of opposite parties in intimating the complainant about sale and actual value of the sale. Yet another contention put forwarded by the complainant is that the opposite party has auctioned the vehicle for an amount of rupees more than `6,25,000 and hence the complainant is entitled to receive the excess amount from the opposite party. But the opposite party contended that the vehicle was not in a good condition and the value of the vehicle is considerably reduced, the opposite party had to re-sale the vehicle for less amount and after adjusting the sale consideration an amount of `3, 75,000 is due to opposite party. But they have mentioned in any where what is the sale value of the vehicle or produced any documents to show the sale price or the date of sale. To show the date of sale and sale price the opposite party has produced a photocopy of quotation notice, but that document is not proved beyond doubt. The complainant contended that he had surrendered the vehicle during September 2002. While going through the pleading it can be seen that the opposite party has not disputed the period of repossessing the vehicle by them i.e. during September 2002. But they had informed the complainant only on31.10.03 that the vehicle was sold and the complainant is bound to pay a balance of `3, 75,000 after adjusting the sale consideration i.e. after a lapse of more than one year of repossession of the vehicle. The opposite party is duty bound to inform complainant about the sale and other details regarding consideration. But even now they have not mentioned any where the amount of sale price they have received and the date of sale. So there is no evidence before us to show the value of the vehicle at the time of taking loan and that at the time of sale. But the complainant has produced Ext.A4 report dt.3.6.02 and as per this report the value of the vehicle is shown as `6, 25,000, the report was not proved by the complainant. But it is a fact that the opposite party has sanctioned a loan of `4,50,000 and as per the Hire purchase agreement the complainant has to repay `6,80,314 in 48 instalments and as per the Ex.B1 H.P. agreement the lessee let on lease the motor vehicle being NO.KL-9F.1715. It is a fact that no lesser will accept an equipment having lesser value of the lease amount. So we can come to the conclusion that at the time of letting out, the vehicle has a value of more than `4, 50,000. The opposite party produced Ext.B3 survey report and as per this report the valuation of the vehicle is 2, 50,000. But the Ext.B3 document is not proved by the opposite party. Moreover as per the other document the date of inspection of the vehicle is on 20.2.03 i.e. After 6 months from the repossession of the vehicle. The opposite party has not produced any documents show that the inspection was conducted after issuing notice to the complainant. So the valuation shown in the document cannot be considered as a genuine one. The burden to disprove the contention of the complainant that the opposite party has received morethan `6,25,000 as sale price of the vehicle is with the opposite party and they failed to substantiate their contention that they have received less than `2,50,000 as sale value. Since the vehicle is repossessed after 6months and complainant contended that he has not used the vehicle. The opposite party has not produced any documents to disprove the contention. In such a circumstances the vehicle will not cause much depreciation within 6 months. So we assess the sale value of the vehicle as `4, 50,000. The complainant deposed that hn In«n-bXv am#168;n-em-Wv. Fsâ ssIh-iT 6 amkT sh¨n-cp-¶p. On perusal of Ext.A2 it is seen that the R.C was transferred in the name of complainant on 24.4.02. So along with the above deposition with Ext.A2 it can be ascertained that the complainant had repossessed the vehicle during 2002 March. The opposite party contended that the complainant had kept the vehicle in his possession for 6 months. so the averment of the complainant that the vehicle was in possession of opposite party from 2002 September onwards can be believed. From Ext. B1 it is seen that the complainant has to repay from 6.8.02 onwards since the opposite party has repossessed the vehicle during September the complainant is only bound to pay 2 months EMI with defaulted interest and balance of the loan amount of `4,50,000 . Even though sufficient opportunities are provided to the parties for adducing evidence no genuine attempts were made by both parties for adducing evidence. So from the available evidence on record we calculate the amount to be repaid by the complainant as follows: Two months defaulted EMI 26196 Default interest for the above amount 1746.4 Balance amount of the principal 431250 Preclosure charge (1%) 4500 ------------ 463692.4 So it is found that the complainant is liable to pay total amount of `4,63,692/- to the opposite party. After deducting the purchase price of `4, 50,000 the complainant is liable to pay 13692 towards the opposite party. But from the above discussion it is found that there is deficiency of service on the part of opposite party and hence opposite party is liable to compensate the complainant by way of adjusting the above said amount of `13692 in the account of the complainant as compensation and cost and to close the account of the complainant and order passed accordingly. In the result, the complaint is allowed partly directing the opposite parties to adjust `13692 (Rupees Thirteen Thousand six hundred and Ninety two only) towards the account of the complainant as compensation and cost and to close the account of the complainant within 30 days from the date of receipt of this order otherwise the complainant can execute the order as per the provisions of consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Power of Attorney A2.Copy of the registration certificate A3.Copy of the repayment chart A4.copy of the letter issued by V.P.Nivinchandran insurance surveyor A5.Copy of the notice sent by OP dt.31.10.03 A6.Copy of the reply notice sent to OP Exhibits for the opposite parties B1.Agreement executed complainant and OP B2.Statement of accounts Witness examined for the complainant PW1.N.P.Sajeesh Witness examined for the opposite parties DW1.Mathew Abraham /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
