BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 14/2007 Dated: 30..12..2009 Complainant:
V. Pramod, 3 G Enterprises, Karakkamandapam, Nemom – P.O., Thiruvananthapuram.
(By Adv. A. Sarada Devi) Opposite parties:
The Director, ICICI Bank Towers, Bandrajkurla Complex, Mumbai – 400 051. The Authorised Signatory, Kamala Towers, ICICI Bank, Ganapathi Coil Road, Vazhuthacaud, Thiruvananthapuram.
(By Adv. Koliacode K. Rajeev)
This O.P having been heard on 05..11..2009, the Forum on 30..12..2009 delivered the following:
ORDER SMT. S.K.SREELA, MEMBER:
The brief facts of the case are as follows: For the use of business purpose, the complainant borrowed an amount of Rs. 5 lakhs from the 2nd opposite party and purchased a lorry bearing No. KL-01 AB 7624. The loan repayment period was 36 installments and out of 36 installments the complainant remitted 34 installments promptly and the last two installments payable in June and July 2006 were held in arrears due to financial crises since the business was dull during the said period. On 26/10/2006 at 9 AM the 2nd opposite party without giving any notice to the complainant engaged their gundas and took forcible possession of the lorry which was kept in the business premises of the complainant. On the same day on 26/10/2006 at 1.30 PM the complainant obtained a registered legal notice dated 13/10/2006 from the lawyer of the opposite parties to pay the balance amount of Rs.31,664/- with notice charge of Rs.300/- and cheque bounce charges within 5 days from the date of notice. On receiving the notice, complainant approached the opposite party on the same day itself for settling the accounts. But without allowing the complainant to remit the loan amount, they issued a notice on 29/10/2006 that they have taken complainant's vehicle into custody. But only on 30/10/2006 the opposite party settled the accounts to Rs.60,432/-. The situation prompted the complainant to bow his head and accept the conditions dictated by the 2nd opposite party and thereby the complainant remitted Rs.60,432/- as demanded by the 2nd opposite party on 30/10/2006 due to their coercive bargaining capacity and the 2nd opposite party issued a letter to their yard owner to return the lorry. On taking delivery of the vehicle on 30/10/2006, it was found that the new six tyres and six tyre disks put in by the complainant were exchanged by six worn out tyres and tyre disks, the articles kept in the lorry are stolen and the original records of the vehicle were lost and locks of the lorry were broken and the front portion of the lorry was hit and damaged and thus caused damages to the lorry and as such complainant incurred a loss of Rs.1,77,994/-, that a business loss of Rs.25,000/- was also sustained to the complainant since the lorry could not be plied for 5 days and an excess amount of Rs.28,768/- was levied from the complainant on 30/10/2006 unauthorisedly. The opposite parties' undue influence and exercise of coercive bargaining power amounts to deficiency in rendering service to the complainant and their unwarranted act caused damages and hardship to the complainant, and therefore the opposite parties are liable to compensate the complainant. Hence this complaint has been filed for compensation. 2. The opposite parties have filed their version contending as follows: The complainant approached the opposite parties for the purchase of a commercial vehicle and accordingly as per the hypothecation agreement No. LVTVM00001388259, the opposite party facilitated and financed him an amount of Rs.5,53,000/. Complainant defaulted the loan amount. Then the opposite party gave various letters and intimations to the complainant to regularise the dues but the complainant paid no heed at all. The opposite party having no other way, took the possession of the vehicle. After the repossession of the vehicle the complainant remitted the entire amount as per the statement of account and maintained in the opposite parties office and at that time the complainant never challenged the amount which he remitted. It is submitted that the opposite party is a limited company having branches all over the world and the company cannot claim more money than stipulated in the hypothecation agreement. At the time of the repossession of the vehicle an inventory was prepared by the Godown keeper and one copy was sent to the customer. At the time of releasing the vehicle from the godown, the customer physically verified the vehicle and at that time the complainant never raised any complaint regarding the allegations mentioned in the complaint. The opposite party has no practice of removing the spare parts or other accessories kept in the vehicle, because the opposite party have a very good reputation. The opposite party is doing banking business and they have no need for selling second hand spare parts. As the prayers of the complainant are concerned, this Forum has no jurisdiction to entertain the matter. Hence prays for dismissal of the complaint.
3. The complainant's Power of Attorney Holder has filed affidavit and marked Exs. P1 to P14. Opposite parties had no evidence. 4. The issues that would arise for consideration are: Whether the complaint is maintainable before this Forum? Whether there is any deficiency in service on the part of the opposite parties? Whether the complainant is entitled for any of the reliefs claimed?
5. Points (i) to (iii): The main allegation of the complaint is that the opposite parties took forcible possession of the lorry of the complainant and after making the payment as demanded by the 2nd opposite party the lorry was returned but on taking delivery of the vehicle on 30/10/2006, it was found that new six tyres and six tyre disks put by the complainant were exchanged by six worn out tyres and tyre disks, the articles kept in the lorry were stolen etc and a business loss of Rs.25,000/- was also sustained as he could not ply the same for 5 days. The complainant has not furnished any evidence to corroborate the said claim. Ext. P5 is the letter issued by opposite parties to the Yard owner to hand over the vehicle in dispute to the complainant. But there is no document or record to prove that the complainant has taken delivery of the vehicle under protest as the items as alleged in the complaint have been lost/exchanged. The complainant has miserably failed to establish the said contention with corroborate evidence. 6. Admittedly, the 3 G Enterprises is a business Organisation conducting business in plumping materials, sanitary items, cement, hardwares, paints, tiles, Iron and steel. The complainant has further admitted that he has purchased the lorry for business purpose. Hence there is no doubt that this is a pure commercial transaction. The complainant does not have a case that it is the only source of earning his livelihood. As per Section 2 (d)(ii) "Consumer" means any person who - 'hires or avails of any services for a consideation which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person but does not include a person who avails of such services for any commercial purpose; Explanation: for the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment; The purchase of the lorry was for commercial purpose and there is thus a direct and close nexus between the transaction and the business of the complainant. Such being the position we have no hesitation to conclude that the complaint is not maintainable before this Forum as the complainant cannot be regarded as a 'consumer' as defined in the Consumer Protection Act.
7. From the above discussion we hereby dismiss the complaint. In the result, the complaint is dismissed. No order as to costs. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 30th day of December, 2009.
S.K. SREELA MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
C.C.No.14/2007
APPENDIX
I. Complainant's witness : NIL II. Complainant's documents: P1 : Photocopy of Power of Attorney P2 : " registered letter dated 13/10/2006 to complainant. P3 : " letter dated 29/10/2006 addressed to complainant by opposite parties. P4 : " payment receipt issued by opposite parties. P5 : " letter issued by opposite parties. P6 : " notice dted 2/11/2006 to opposite parties P7 : " acknowledgment card to opposite parties. P8 : " list of articles lost and valued produced by complainant. P9 : " certificate of registration produced by complainant P10 : " payment schedule dated 24/12/2004 issued by opposite parties. P11 : " payment schedule dated 24/12/2004 issued by opposite parties. P12 : " Insurance certificte produced by complainant P13 : " Original retail invoice No.6071 dated 12/5/2006 P14 : Original retail invoice No.5865 dated 29/4/2006 P15 : Original retail invoice No.5493 dated 8/4/2006
Opposite parties' witness : NIL
IV. Opposite parties' documents : NIL
PRESIDENT
| 
