BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.886 OF 2012 AGAINST C.C.NO.11 OF 2012 DISTRICT FORUM, SRIKAKULAM.
Between:
1. The Branch Manager, Shriram Transport
Finance Company Limited,
1st floor, Beside ICICI Bank,
Opp.Arunodaya Hospital, Day and
Night Junction, Srikakulam,
Rep. by its authorized Signatory
P.S.R.Durga Prasad. Appellant/opp.party
A N D
Govinda Dasu Ramesh S/o.Suryanarayana,
Hindu, aged 24 years, J.R.Purma Village,
Ranastalam Mandal,
Srikakulam District. Respondent/
Complainant
Counsel for the Appellant Mr.Vakkanti Narasimha Rao.
Counsel for the Respondent: Mr.S.Srinivasa Rao.
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER.
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
FRIDAY, THE TWENTY FOURTH DAY OF JANUARY,
TWO THOUSAND FOURTEEN
Order (As per Sri T.ASHOK KUMAR Hon’ble MEMBER)
***
This is an appeal preferred by the opposite party against the order in C.C.No.11/2012 dated 18-9-2012 on the file of District Forum, Srikakulam. For convenience sake the parties as arrayed in the complaint are referred to hereunder:
The brief facts of the complaint are as under:
The complainant purchased the vehicle TATA magic AP 30V 8570 from Sriranga Motors for Rs.3,40,000/- which had tie up with opposite party i.e. Shriram Transport Finance Company Limited. The complainant paid Rs.60,000/- cash payment to Sri Ranga Motors and the opposite party provided finance of Rs.2,70,000/- and deducted first instalment of Rs.8,950/- and paid Rs.2,61,000/- to Sri Ranga Motor Transport and obtained 16 blank cheques from the complainant and kept the same with it. The complainant paid instalment of Rs.8,950/- per month to opposite party upto September, 2010 and fell in sick and was unable to pay the monthly instalments for the month of November and informed his inability to pay and the opposite party seized the vehicle without any prior notice in December, 2010 and he immediately approached the opposite party and offered to pay the due instalments but the opposite party did not agree to receive the amount and compelled him to pay the entire amount on spot. Inspite of repeated requests, the opposite party did not heed the request of the complainant and sold the vehicle on higher price and he spent an amount of Rs.1 lakh besides paid instalments of Rs.55,000/- and thus the opposite party is liable to pay Rs.2 lakhs and also compensation of Rs. 1 lakh. The complainant got issued a legal notice on 26-12-2011 demanding to deliver the vehicle and also return the 16 blank cheques and the Recovery manager of the opposite party threatened the complainant with dire consequences and warned him to come to office and settle the matter. Hence the complaint to deliver the vehicle AP 30V 3570 to the complainant together with compensation of Rs. 1 lakh and Rs.10,000/- towards litigation.
The opposite party filed counter resisting the complaint. It contended that the complainant is not a ‘consumer’ as defined under Section 2(d) of the Consumer Protection Act, 1986 as he is the using the vehicle for commercial purpose i.e. running transport business and earning huge profits and running the vehicle by engaging drivers and supervisors and this clearly proves that he is doing ‘commercial transaction’ and the relationship between them is creditor and debtor and does not fall within the scope or ambit of Consumer Protection Act, 1986. As per the terms of the agreement executed by the complainant, if any dispute arises between the complainant and the opposite party, the same has to be referred to sole Arbitrator and settled as per Arbitration and Conciliation Act, 1996. The complainant obtained a loan of Rs.2,70,000/- towards loan amount and Rs.1,20,317/- towards finance charges totaling to Rs.3,90,317/- payable in 45 monthly instalments at the rate of Rs.8,640/- for 1st instalment and the instalment being 10,150/- and from 3rd to 44 instalments at Rs.8,640/- and the last instalment being Rs.8,647/- and denied the other allegations that it provided finance of Rs.2,61,000/- and deducted first instalment of Rs.8,950/- and obtained 16 blank cheques and that he paid instalments upto September, 2010.
The complainant became a defaulter and there are arrears of instalments and that he is not maintaining the vehicle in a road worthy condition and as such it has taken possession of the vehicle as per the terms and conditions of the agreement after due intimation and requested him to pay the arrears but he did not turn up and expressed his inability to clear the arrears inspite of several reminders and as such the opposite party as a last resort repossessed the vehicle and after obtaining fresh RC sold the vehicle to the higher offeror and appropriated the sale proceeds to the account of the complainant. The opposite party denied the other allegations of the complainant that he spent Rs. 1 lakh and therefore it is liable to pay balance amount of Rs. 2 lakhs due to illegal acts and denied that the complainant got issued a legal notice and submitted that there is no deficiency in service and prayed for dismissal of the complaint with costs.
Both sides filed affidavits reiterating their respective contentions. Exs.A1 to A3 and Exs.B1 to B3 were marked on their behalf. Having heard both sides, considering the material on record and written arguments of both sides, the District Forum vide impugned order allowed the complaint directing the opposite party to handover the vehicle within 30 days from the date of order and if the vehicle is not handed over directed the opposite party to pay Rs.75,000/- towards compensation. If the vehicle is handed over by the opposite party, it directed the complainant to pay all the instalments with interest at 12% p.a. within one month from the date of handing over of the vehicle and if the opposite party handed over the vehicle, the complainant is entitled to compensation of Rs.25,000/- and costs of Rs.3,000/-.
Feeling aggrieved by the said order, the opposite party preferred this appeal contending that the District Forum without considering the material irregularities committed by the complainant and also without considering Ex.B3 letter dated 17-12-2011, the District Forum wrongly allowed the complaint. Ex.B2 clearly establish that the opposite party obtained fresh RC from the concerned RTA authorities and sold the vehicle and also all the transactions are within the knowledge of the complainant as he himself admitted the sale and requested it to settle his loan amount amicably. The District Forum wrongly came to a conclusion that it repossessed the vehicle in December, 2010 without considering the telegram, Ex.B1, which establish that the vehicle was repossessed by it on 09-2-2011 which is not disproved by the complainant by any evidence and relied on the decision reported in III (2012) CPJ 4 (SC) and submitted that the complainant is not a ‘consumer’ as defined under Section 2(1)(d)(i) and (ii) of Consumer Protection Act, 1986 and prayed to allow the appeal.
Heard both counsel and the counsel for the appellant also filed written arguments.
Now the point for consideration is whether the order of the District Forum is vitiated either in law or on facts?
The facts not in dispute are that the complainant purchased the vehicle TATA magic AP 30V 8570 from Sriranga Motors for Rs.3,40,000/-. According to the complainant the amount financed by the opposite party was Rs.2,70,000/- after retaining the first instalment of Rs.8,950/-, the opposite party paid Rs.2,61,000/- to Sri Ranga Motors Transport and the said amount was payable in 36 monthly instalments @ Rs.8950/- per month. The complainant also contended that 16 blank cheques were taken from him by the opposite party whereas the opposite party while admitting that it financed the amount contended that an amount of Rs.2,70,000/- towards loan and Rs.1,20,317/- towards finance charges totaling to Rs.3,90,317/- payable in 45 monthly instalments at the rate of Rs.8,640/- for 1st instalment and the instalment being 10,150/- and from 3rd to 44 instalments at Rs.8,640/- and the last instalment being Rs.8,647/- and denied receipt of blank cheques as contended by the complainant.
It is the case of the complainant that he was regular in payment of instalments upto September, 2010 and as he fell sick, he could not pay the instalment for November, and it was so informed to the opposite party but without prior notice, the vehicle was repossessed in the month of December, 2010. The complainant marked only two receipts, Ex.A1 for Rs.15,000/- on 28-9-2010 and Ex.A2 for Rs.6000/- on 02-8-2010 even assuming that Rs.8,950/- was deducted towards first instalment from the finance amount, the total amount paid by the complainant comes to Rs.29,950/- and thus no evidence is filed by the complainant that he paid Rs.55,000/- towards instalments. According to the complainant the vehicle was seized in the month of December, 2010 whereas Ex.B1, telegram shows that it was seized on 09-2-2011 at 7.30 a.m. therefore, we are satisfied to hold that the vehicle was seized on 09-2-2011 as the complainant was a defaulter. The complainant did not prove with any convincing evidence that he spent Rs.1 lakh on the said vehicle. Since the dispute was not referred to Arbitrator in view of the decision reported in (2012) 2 SCC 506 in NATIONAL SEEDS CORPORATION LTD., v. M.S.MADHUSUDHAN REDDY, the complaint is maintainable before the Consumer Forum.
The learned counsel for the opposite party relied on the decision reported in Suryapal Singh v. Sidda Vinayak Motors and another reported in III (2012) CPJ 4 SC wherein it is held that under 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 a bailee/trustee, therefore, taking possession of the vehicle on the ground of non payment of instalment has always been upheld to be a legal right of the financier.
In the instant case either of the parties did not choose to file the loan agreement, statement of account, the price at which the vehicle was auctioned, inventory quotations etc., but the opposite party marked Ex.B3 letter dated 17-12-2011 addressed to it by the complainant and the contents of the said document disclose that due to personal problems, the complainant could not pay instalments regularly and therefore, the opposite party took the vehicle into its custody and sold the same and accounted the sale proceeds to the complainant’s loan account and the Executives of the opposite party requested to settle the agreement by paying the loss amount of Rs.2,15,000/- but he is not in a position to pay the said amount due to financial problems and thus he requested to settle his account amicably for Rs.1,40,000/- agreeing to pay the same within three months. Even though the said aspects were pleaded in the written version and deposed in the affidavit by marking the said document, the complainant did not choose to controvert the same nor disputed his signature in Ex.B3. In view of the contents of the said letter, there is no substance in the contention of the complainant that there is deficiency in service on the part of the opposite party. In such circumstances, the order of the District Forum in directing the opposite party to deliver the said vehicle or pay Rs.75,000/- is unsustainable and liable to be set aside.
In the result the appeal is allowed and the order of the District Forum is set aside and consequently the complaint is dismissed. There shall be no order as to costs.
MEMBER.
Jm MEMBER.
Dt.24-1-2014.
