District Consumer Disputes Redressal Forum, Tarn Taran.

C.C. No.               : 38 of 2014

Date of Institution  : 02.07.2014

Date of Decision    : 5.2.2015

Manjit Kaur wife of Darshan Singh, resident of House No. 84, VPO Pandori Gola Tehsil and District Tarn Taran.

                                                                   …Complainant

Versus

1. Harinder Leasing Ltd. Regd. & Admn. Office, 1^st Floor, Near Hotel Kings, G.T. Road Jalandhar,
2. Satnam Singh son of Ajit Singh, Caste Ghumiar resident of village Ratoul Tehsil and District Tarn Taran.

…Opposite Parties

Complaint Under Section 12 and 13 the Consumer Protection Act, 1986.

For the Complainant                 : Sh.G.S. Pannu, Advocate

For the Opposite Party No.1     : Sh. Raj Kumar Kashyap, Advocate

For the Opposite Party No.2.    : Sh. P.S. Tegh, Advocate

Quorum:               Sh. S.K. Goel, President.

Sh. R.D. Sharma, Member.

Order dictated by Sh. S.K.Goel, President

1. Smt. Manjit Kaur, complainant has filed the present complaint under Section 12 and 13 of the Consumer Protection Act (for short ‘the Act’) against Harinder Leasing Ltd. Regd. & Admn. Office, 1^st Floor, Near Hotel Kings, G.T. Road Jalandhar (for short ‘the Opposite Party No. 1’)  and Satnam Singh son of Ajit Singh, Caste Ghumiar resident of village Ratoul Tehsil and District Tarn Taran  (for short ‘the Opposite Party No. 2’)
2. The facts emerging from the present complaint are that the complainant purchased an Auto Rickshaw  from Chand Autos G.T. Road Putli Ghar Amritsar for price of Rs. 1,65,000/-. The complainant made the down payment of Rs. 70,000/- through five installments to Chand Autos.
3. It is alleged that at the time of purchase of said Auto it was financed for Rs. 95,000/- by opposite party No. 1. However the complainant has paid Rs. 95,200/- to the opposite party No. 1 through various receipts. Despite this the opposite party No. 1 with the connivance of opposite party No. 2 have forcibly, illegally and arbitrarily snatched the possession of the said vehicle i.e. Auto Rickshaw bearing registration No. PB46-K-6307 in the area of Tarn Taran District from complainant’s son. It is further alleged that the opposite party No. 1 has no right to seize the said vehicle and has no right to take forcible possession without any reasonable cause or prior notice. It is further alleged that earlier also opposite party No. 1 impounded the said vehicle which was released later on.  At that time the complainant promised the opposite party No. 1 that he would pay the loan amount if any due and the complainant also requested to the opposite party NO. 1 to furnish the full statements of loan account so that the complainant may pay if any balance was due. However instead of furnishing the statement of loan account the opposite party No. 1 illegally and arbitrarily with the connivance of opposite party No. 2 snatched the possession of the said vehicle from the complainant’s son. It is further alleged that the complainant is an aged illiterate lady and at the time of obtaining the said loan the opposite party No. 1 got signed from her on various unexecuted and blank documents. Even earlier the opposite party No. 1 seized the Auto and it was released on obtaining sign on blank and unexecuted documents. It is further pleaded that the complainant issued a notice to opposite party No. 1 on 11.4.2014 for releasing the said Auto Rickshaw and also to provide statement of the loan account. However the opposite party NO. 1 failed to reply the said legal notice. Moreover the opposite party NO. 2 is plying the said Auto Rickshaw unauthorisedly and illegally. Even the complainant requested to opposite parties NO. 1 and 2 to hand over the possession of the said Auto but they refused to accept the request of the complainant. Hence the present complaint is filed directing the opposite parties to hand over the possession of the said Auto Rickshaw and further to furnish the correct loan account statement and further to pay Rs. 50,000/- as compensation and another Rs. 10,000/- and litigation charges.
4. Upon notice the opposite party No. 1 filed written statement taking preliminary objections on the ground of maintainability, non joinder of necessary parties, no territorial jurisdiction, no cause of action, suppressing the material facts, not coming in the form with clean hands and present complaint involves matters of intricacies and therefore it is submitted that it cannot be adjudicated in a summary manner.
5. It is further pleaded that infact the complainant availed of financial facility vide hire purchase agreement dated 14.9.2011 duly executed by the complainant alongwith guarantor. As per agreement, the complainant was legally liable to pay sum of Rs. 1,68,000/- including principal amount of Rs. 1,20,000/- at the rate of 30 equal monthly installments of Rs. 5,600/-each on regular intervals as per schedule ‘B’ as mentioned in the agreement. It is further pleaded that the complainant failed to adhere to the financial norms for repayment of the monthly installments and made fault in the payment of even first installment and afterwards. Even the complainant was apprised of the outstanding balance from time to time. But the complainant failed to deposit the outstanding amount with the opposite party. It is further pleaded that the complainant visited the office of M/s Chand Autos Amritsar at Amritsar in the first week of June 2013 and showed her financial inability to repay the outstanding amount as well as future installments. Due to this the complainant handed over the physical possession of the vehicle to the proprietor of Chand Autos Amritsar in the first week of June 2013. Even the opposite party as well as Chand Autos made their best efforts advising the complainant to deposit the outstanding amount and took back the possession of the vehicle so that her family may not suffer, but all in vain. Thereafter the opposite party informed the complainant as well as guarantor for selling the vehicle vide separate registered post dated 20.6.2013 addressed to the complainant as well as guarantor. Even then the complainant failed to deposit the outstanding amount. Ultimately the opposite party was left with no other alternative but to sell vehicle for recovering the outstanding as well as future installments. Under these circumstances, the vehicle in question was sold to Chand Autos Amritsar for sum of Rs. 30,000/-  on 12.2.2014 and sale proceeds were credited in the account of complainant vide receipt No. 35958 dated 12.2.2014. Even after adjusting the sale proceeds the complainant still owes a sum of Rs. 64,800/- towards outstanding installment in addition to late payment charges and other handling expenses to be paid by the complainant. However the opposite party had denied that they alongwith opposite party No. 2 had forcibly and arbitrarily snatched the said vehicle. They have also denied that the complainant has paid Rs. 95,200/- through various installments. They have also denied that the opposite party has failed to furnish the details of the outstanding amount due to the complainant. Moreover it is reiterated that there is an outstanding amount of Rs. 64,800/- towards the complainant as per statement of account. They have denied the other pleas of the complainant and finally prayed for dismissal of the complaint with costs.
6. Separate written version has also been filed by the opposite party No. 2 taking preliminary objections on the ground of maintainability, concealing the material facts from this Forum, cause of action, non joinder of necessary parties and maintainability. On Merits, it is pleaded that the vehicle in question was lying with Chand Autos Amritsar authorized dealer for sale and purchase of old Three Wheelers and replying opposite party approached Chand Autos and it was informed by the said Chand Autos that the said vehicle was repossessed by them and now it was for sale. Accordingly the sale consideration was settled at Rs. 72,000/- which was paid by the replying opposite party in cash against receipt dated 25.3.2014. Then the opposite party No. 1 and Chand Auto handed over the documents and possession of the vehicle to the replying opposite party and now the opposite party is owner of the said Three wheeler. They have denied the other allegations and pleas of the complainant and finally prayed for dismissal of the complaint.  
7. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1, alongwith documents i.e. receipts Ex. C.2, C.3, C.5 to C. 15, legal notice Ex. C.4,  temporary certificate of registration Ex. C.16, insurance policy Ex. C.17, Receipt Ex. C.18 and closed the evidence.  
8. To rebut the case of the complainant, the Opposite Party No. 1 tendered into evidence affidavit of Amarjit Singh Ex. OP1/1,  affidavit of Pardeep Kumar Ex. OP1/2 alongwith documents Ex. OP1/3 to OP1/11 and closed the evidence.
9. We have heard the Ld. Counsel for the parties and have also gone through the record.
10. The first controversy is relating to the price of the Auto Rickshaw. The complainant has alleged that Auto Rickshaw was purchased for Rs. 1,65,000/- and the complainant made the down payment of Rs. 70,000/- and Rs. 95,000/- was financed from opposite party No. 1. On the other hand, the opposite party No. 1 has alleged that the complainant executed hire purchase agreement for principal amount of Rs. 1,20,000/- and the amount including interest was payable Rs. 1,68,000/- in 30 equal monthly installments of Rs. 5,600/- and complainant failed to adhere to the financial norms. In order to prove that price of the vehicle was Rs. 1,65,000/- the complainant failed to place on record any bill/ invoice. Therefore the matter qua price of the vehicle in question as well as whether the loan of Rs. 95,000/- or Rs. 1,20,000/- was taken, are matters to be decided by leading evidence by both the parties and these controversies cannot be disposed of in summarily manner.  
11. Secondly, the complainant has contended that the complainant has paid the entire price of the loan i.e. Rs. 95,200/- against Rs.95,000/-. However the opposite party No. 1 contended that Rs.64.800/- is still due alongwith other charges. Again, this controversy can be proved by presenting proper record before the Forum and these allegations cannot be disposed of summarily.  
12. Thirdly, the complainant has alleged that the Auto Rickshaw was impounded and seized by the opposite party No. 1 forcibly and without any cause or prior notice.  On the other, the contention of the opposite party No.1 is that the complainant herself handed over the physical possession of the vehicle in question as she was unable to make the payment of installments. Moreover, the vehicle was allegedl to be sold after giving notice to the complainant as well as to the guarantor. These controversies are again of complicated in nature and moreover there is nothing on the record to show that this Forum is in a position to dispose of the same in summarily manner. Therefore, we are of the opinion that these matters are required to be proved by adducing evidence.
13. Fourthly, the main controversy pertains to the hire purchase agreement dated 14.9.2011. Perusal of the same shows that in schedule ‘B’ the payable amount was shown as Rs. 1,68,000/- to be paid in 30 equal installments of Rs. 5,600/-. This agreement also bears the signatures of the complainant and the guarantor. However the complainant has alleged that she is an illiterate lady and opposite party No. 1 got her signature on the bank documents and contents of the documents/ agreement were not disclosed by the opposite party. Impliedly the complainant has challenged the correctness of hire purchase agreement, which is the basic document to determine the liability of complainant. To prove whether the hire purchase agreement is result of misrepresentation / fraud or whether the execution of the document is not genuine, again is a matter to be decided by leading evidence.  
14. Following observations were made by the Supreme Court of India in “SYNCO Industries Vs State Bank of Bikaner & Jaipur & Ors.” 2002(2) Supreme Court cases 1.

“It is obvious that very detailed evidence would have to be led both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is an appropriate claim for a Civil Court to decide and obviously was not filed before a Civil Court to start with because, before the Consumer Forum, any figure in damages can be claimed without having to pay the court fees. This is that sense is an abuse of the process of the Consumer Forum.”  

15      In the case of “R.D. Papers Ltd. Vs New India Assurance Co. Ltd. & Ors.” 1(2004) CPJ 101(N.C) it was observed:-

“After going through the complaint and the written version, it appears to us that the complaint raised complicated questions of facts, which cannot be decided by us in our summary jurisdiction. It may be though the amount in this case is in few lakhs and when we are receiving complaints involving crores of rupees, but then enormous evidence would be required in the present case especially in respect of allegation of forgery made by the complainant and denied by Insurance Company.”

16      Seeing into ibid judgments of the Hon’ble Supreme Court of India it is evident that in this case there are disputed question of facts as mentioned above which are required to be proved by leading evidence by both the parties. Therefore it would be desirable that this case is not to be dealt with by this Forum and could be relegated to the Civil Court.

17      In view of the above discussion, the present complaint is dismissed accordingly. However the complainant is at liberty to approach the Civil Court as per law. Parties are left to bearing their own costs.  Copy of order be supplied to the parties free of costs as per rules.  File be consigned to record room.

Announced in open Forum                                                    Sd/-

Dated: 5.2.2015                                                                 President

                                                                                 Sd/-

   Member