DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Consumer Complaint No: 131/2014
Date of Institution : 01.07.2014
Date of Decision : 02.03.2015
In the matter of:
Sukhdarshan Kumar son of Kishan Chand resident of House No. B MV390, Ward No. 8, Barnala.
…Complainant
Versus
1. Cholamandlam Investment and Finance Company Limited through its Branch Manager KB Complex, 2nd Floor, Handiaya Bazar, Barnala.
2. Baljinder Sharma authorized Agent Cholamandlam Investment and Finance Co. Ltd., Sub Office KB Complex, 2nd Floor, Handiaya Bazar, Barnala.
3. Jaswinder Singh authorized agent of Cholamandlam Investment and Finance Company Limited c/o Branch authorized Agent KB Complex 2nd Floor, Handiaya Bazar, Barnala,
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Before:-
1. Shri Sukhpal Singh Gill : President.
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
For the complainant : Sh. D.S. Simmak Advocate
For opposite parties : Sh. Anuj Mohan Advocate
ORDER: BY SH. SUKHPAL SINGH GILL, PRESIDENT:
Sukhdarshan Kumar complainant (hereinafter referred as to CC for short) has preferred the present complaint against the Opposite Parties (herein referred as to OPs for short), on the ground that, CC is an illiterate and unemployed person. Further, in order to meet both ends and to feed his family members purchased a Truck No. PB-19-H-8467 by raising a loan amount of Rs. 5,25,000/- from the OP-1.
It is submitted that, loan was agreed to be returned in 35 installments, which were fixed by calculating future interest. The loan was agreed to be returned up to 1.8.2016 vide loan agreement dated 31.8.2013. It is further submitted that, the signatures of the CC were obtained on blank papers by OP-2 and cheque was issued by OP-1 on 26.9.2013.
It is further submitted that, OP-2 obtained the signatures of the CC on various printed papers without disclosing their contents and later on prepared a loan agreement. CC after obtaining the loan, purchased Truck Tata LPT 2515 bearing Registration No. PB-19-H-8467. CC remained paying installments of loan and paid 1st installment of Rs. 19,300/- vide receipt dated 24.10.2013, Rs. 15,000/- vide receipt dated 31.12.2013, Rs. 5,000/- vide receipt dated 31.12.2013, Rs. 20,000/- vide receipt dated 31.1.2014, Rs. 20,000/- vide receipt dated 10.3.2014, Rs. 25,000/- vide receipt dated 22.4.2014 and in total paid Rs. 1,29,300/- vide different receipts at Barnala, which were issued by OP-3. Further, at the time of agreement OP-1 taken various blank cheques bearing the signatures of the CC, which the OPs can misuse.
It is further submitted that, thereafter, the OPs have given threats to the CC to deposit a sum of Rs. 1,20,000/- otherwise the possession of the truck shall be taken with the help of gundas. Even on 21.4.2014, OPs have taken the possession of the truck forcibly from the CC and only on depositing Rs. 50,000/- by the CC, they released the truck.
Thus, alleging deficiency in service on the part of the OPs, CC has sought the following reliefs against the OPs.-
1) OPs be directed to not to take forcible possession of the truck of the CC and got deposit the remaining installments of loan alongwith interest as per bank rates.
2) OPs be further directed to pay Rs. 50,000/- as compensation and Rs. 10,000/- as litigation expenses.
Complaint of the CC is signed and verified. The complaint is also supported by an affidavit of the CC.
2. In reply, OPs have opposed the complaint of the CC by taking legal objections on the ground that, CC has no cause of action and locus standi to file the present complaint. Further, CC had purchased the truck for commercial purpose, so the complaint is liable to be dismissed. Further, at the time of obtaining the loan CC had entered into an agreement with OP-1 in which it is clearly mentioned that, courts at Chennai have jurisdiction over any matter arising out of the agreement. Further, the complaint does not fall within the definition of a consumer dispute under the Consumer Protection Act. The financier does not render any service within the meaning of Consumer Protection Act, so CC is not a consumer of the OPs.
On merits, it is submitted that, CC had obtained a loan of Rs. 5,25,000/- from the OP-1 on 31.8.2013 for purchasing TATA 2515 Bulker vide loan agreement No. XVFPBRA00001033260 and agreed to pay the loan in 35 installments up to 1.8.2016 and each installment is of Rs. 19,262/-. The date for first installment is 1.10.2013 and last installment is 1.8.2016. It is denied if the signatures of the CC were obtained on blank papers by OP-2. CC only after understanding the terms and conditions of the agreement and admitted to be correct signed the same. CC was not regular in payment of installments. He never paid the installments as per terms and conditions of the agreement and some of the cheques issued by the CC for his installments have been bounced due to insufficient funds and unnecessary charges have been imposed by the bank on the OPs. It is denied that, OP-1 took blank cheques bearing the signatures of the CC from him and misused the same.
It is further submitted that, against the loan of Rs. 5,25,000/- only Rs. 1,29,300/- were paid by the CC and he is a defaulter. He was asked to deposit the balance amount, otherwise truck would be confiscated, but he did not deposit the amount. Further, at the time of advancement of loan the truck was hypothecated in the name of finance company and as per the terms they could sold the vehicle after getting the same from the possession of the CC.
It is further submitted that, the truck was taken in possession after giving proper information to the CC with the help of police as per the terms and conditions of the agreement. Thereafter, CC entered into a memorandum of undertaking with the OP-1 and paid Rs. 50,000/- and assured that, he will regularly pay the installments, only then on 24.4.2014 the vehicle was released to the CC through his authorized person namely Chanu.
It is further submitted that, thereafter CC has failed to make further installment, rather cheque bearing No. 973150 deposited by the CC with the OP had also been dishonoured due to insufficient funds.
Thus alleging no deficiency in service on its part, OPs have also prayed for the dismissal of the complaint.
The version of OPs is signed and verified.
3. CC in support of his claim, has tendered into evidence his own affidavit Ex.C-1, affidavit of Channo Ram Ex.C-2, copy of loan agreement Ex.C-3, copy of aadhaar card Ex.C-4, copy of voter card Ex.C-5, copy of RC Ex.C-6, copy of receipts Ex.C-7 to Ex.C-13, copy of letter dated 21.4.2014 Ex.C-14, copy of receipt dated 30.9.2014 Ex.C-15, copy of receipt dated 30.10.2014 Ex.C-16 and closed his evidence.
4. On the other hand, in order to rebut the evidence of the CC, OPs have tendered into evidence affidavit of Vikash Verma Ex.OP-1, copy of loan agreement Ex.OP-2, copy of statement of account Ex.OP-3, copy of authorization letter Ex.OP-4, copy of intimation to police Ex.OP-5, copy of intimation to police Ex.OP-6, copy of inventory list Ex.OP-7, copy of bill dated 19.4.2014 Ex.OP-8, copy of memorandum of understanding Ex.OP-9, copy of seizure report Ex.OP-10, copy of presale letter dated 21.4.2014 Ex.OP-11, copy of letter dated 22.4.2014 Ex.OP-12, copy of release letter Ex.OP-13 and closed their evidence.
5. We have minutely perused the entire complaint, version filed by the OPs and evidence of both the parties and also heard both the counsel for parties at length.
6. It is an admitted fact that, the CC had purchased the TATA 2515 Bulker after obtaining the loan of Rs. 5,25,000/- from the OP-1. It is also admitted that, CC agreed to return back the loan in 35 installments up to 1.8.2016 and each installment is of Rs. 19,262/-. It is also not in dispute that, the first installment was to be paid on 1.10.2013 and last installment is to be paid on 1.8.2016. In this way, taking the loan from the OPs by the CC is not denied by him.
The main objection of the OPs is that, as the financier does not render any service within the meaning of the Consumer Protection Act, so the complainant is not a “consumer”. To prove this objection the Advocate for the OPs also cited a case of Hon'ble National Commission, New Delhi titled Ram Deshlahara Versus Magma Leasing Ltd. Reported in 2006 (3) Consumer Law Today-330, in which it is held that.-
“Consumer Protection Act, 1986, Sections 2(1)(o) and 2(1)(d)-Services-Consumer-Hire purchase transaction -Held that the financier does not render any service within the meaning of the 1986 Act and petitioner is thus not consumer.
(ii) Consumer Protection Act, 1986, Section 2(1)(g)- Loan-Hire purchase transaction-Petitioner did not pay the arrears of installments despite service of demand notice by respondent-finance company- Vehicle seized by respondent-No deficiency in service.”
The Advocate for the complainant has not produced any citation or document to rebut this main objection of the OPs.
Further, the OPs have relied upon another judgment of the Hon'ble Supreme Court titled Suryapal Singh Versus Siddha V Inayak Motors and Anr reported in III (2012) CPJ-4 (SC), in which it is held that.-
“Under the Hire Purchase agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as bailee/trustee, therefore, taking possession of the vehicle on the ground of non payment of installment has always been upheld to be a legal right of the financier.”
The Advocate for the complainant has also failed to produce any citation or document to rebut this citation of our Hon'ble Apex Court of India.
During the arguments the Advocate for the OPs has produced a statement of account of the CC dated 14.2.2015 from 14.2.2000 to 14.2.2015, in which it is clearly mentioned that, the amount overdue against the complainant on 14.2.2015 is Rs. 1,28,554/- and other overdue amount on 14.2.2015 is Rs. 45,420/- and in this way a total amount of Rs. 1,73,974/- is overdue against the complainant, which he has failed to pay to the OPs. CC has failed to produce any document to rebut this statement of account of the OPs, which amounts to admission of the CC regarding this amount.
Further, we have perused Ex.OP-9, which is Memorandum of Understanding between the CC and the OPs. In this document Ex.OP-9, CC clearly agrees to pay all future installments without any delay or default and on due dates. He further agrees in this document to surrender the vehicle to the OPs in the event of dishonouring the cheque alongwith original RC and OPs shall be entitled to repossess and sell the vehicle and also entitle to initiate legal proceedings for recovery of dues without any notice. But the CC has not complied the terms and conditions of this document Ex.OP-9 and did not pay the installments on time. Even his cheques bearing No. 973150 and 937137 also stands dishonoured after the execution of this memorandum of understanding, which fact is proved from the statement of account dated 14.2.2015. In this way, there is no deficiency in service on the part of the OPs, rather all the fault is on the part of the CC.
In view of the aforementioned facts, circumstances and citations relied upon by the OPs, we do not find any merit in the present complaint. Accordingly, the same is dismissed. However, there is no order as to costs or compensation. Copy of this order be supplied to the parties free of cost. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
2nd Day of March 2015
(Sukhpal Singh Gill)
President.
I do agree.
(Karnail Singh)
Member.
Vandna Sidhu
(Member)
