Date of filing:12.2.2014.
Date of disposal:7.1.2015.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:
VIJAYAWADA, KRISHNA DISTRICT
Present: SMT N. TRIPURA SUNDARI, B. COM., B. L., PRESIDENT (FAC)
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
WEDNESDAY, THE 7TH DAY OF JANUARY, 2015.
C.C.No.44 of 2014
Between:
Moparthy Tulasi Rama Krishna, S/o Satyanarayana, Hindu, 32 years, Business, R/o Door No.14-113, Near Ramalayam, Venglayapalem, Guntur Rural, Guntur Distirct.
.… Complainant.
AND
Indus Ind Bank Ltd., Rep., by its Branch Manager, Consumer Finance Division, Door No.40-1-44, 2nd Floor, Corporate Centre, M.G.Road, Labbipet, Vijayawada – 10.
.… Opposite Party.
This complaint coming on before the Forum for final hearing on 29.12.2014, in the presence of Sri K.Seshagiri Rao, Advocate for complainant and Sri B.N.R.P.Bhargava, Advocate for opposite party and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble President (FAC) Smt N. Tripura Sundari)
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
The averments of the complaint are in brief:
1. The complainant availed financial assistance of Rs.19,92,000/- from the opposite party on 17.1.2012 for purchase of Ashok Leyland 12 tyre goods carriage to eke out his livelihood. The complainant spent about Rs.4,00,000/- to his own money for body building of the aforesaid 12 tyre lorry. The complainant has to pay the aforesaid loan amount to the opposite party in 45 monthly instalments at the rate of Rs.57,800/- commencing from 21.3.2012 to 21.11.2015. Accordingly the complainant paid 12 EMIs regularly. Subsequently due to increase in oil price and bad market conditions the complainant failed to pay 3 EMIs to the opposite party. Therefore, the opposite party seized the vehicle of the complainant by engaging goondas and anti social elements without any prior intimation on 13.6.2013. Thereafter the opposite party sent a pre sale notice dated 26.9.2013 to the complainant and wherein it was mentioned that his vehicle was seized on 19.7.2013 instead of 13.6.2013. Immediately the complainant approached the opposite party and requested them to reschedule the loan account but there was no proper response from the opposite party. The opposite party with a malafide intention to get wrongful gain by themselves seized the vehicle and trying to sell the same below market rate and failed to consider the request of the complainant relating to reschedule of loan. Under the said circumstances the complainant got issued legal notices demanding the opposite party to release his vehicle and reschedule the loan account. On receipt of the said notices also the opposite party making efforts to alienate the vehicle, which amounts to clear deficiency in service on their part. Hence the complainant is constrained to file this complaint against the opposite party praying the Forum to direct the opposite party to pay the value of the vehicle i.e., Rs.18,00,000/- to pay Rs.1,00,000/- towards loss in not running the vehicle, to pay Rs.95,000/- towards compensation and to pay costs.
2. The opposite party denied all the allegations of the complaint and submitted that the complainant is having number of vehicles other than this vehicle and he is maintaining transport services on many vehicles which contradicts his statements by the complainant that he is ekeing his livelihood on this vehicle only is false. As per the repayment schedule the complainant has to pay the loan instalments to the bank. But the complainant never paid the instalments regularly as prescribed in the schedule and he had paid the instalments at his convenience without following the repayment schedule. As the complainant failed to pay the monthly instalments the opposite party several times demanded and directed to pay the monthly istalments as agreed. The loan account filed by the complainant establishes the irregularity of payment since the date of payment of the first instalment. On several times the opposite party issued over due reminders even after the complainant did not turned up and choose to repay the amounts. As the complainant is not responded for over due reminder notices the opposite party has taken the possession of the vehicle on 12.6.2013 and issue seizure intimation to the complainant by way of telegram. After receipt of the said telegram he has approached the opposite party and represented that he will get release the vehicle in 15 days from the opposite party after clearing all the dues till date along with incidental charges as instructed by the opposite party. Even at this juncture the complainant failed to release the vehicle and he requested for further time for adjustment of amount and repayment of the dues to regularize the account. Even after that the complainant is not showing any interest to take back his vehicle. The opposite party posted repossession status in statement of account on 19.7.2013. After serving seizure intimation also the opposite party issued three reminder letters to the complainant calling upon him to regularize his loan account and finally on 1.10.2013 the opposite party issued pre sale notice to the complainant. On receipt of the pre sale notice the complainant issued a legal notice with all false and baseless allegation which are not valid and maintainable under law. As the complainant requested the opposite party once again the opposite party has provided ample time to the complainant for regularizing his loan account. But inspite of that the complainant did not turned up to regularize or settle his loan account. After seizure of above said vehicle the complainant illegally used the vehicle registered number i.e, AP 07 TC 2979 to the another vehicle which is same as above vehicle with the some other finance company i.e., India Bulls. India Bulls made enquiries about the financed vehicle and came to know that this complaint is used their financed vehicle with the number plate of seized vehicle and intimated the same to the opposite party. On intimation this opposite party intimated the same to concerned RTA and as well as police about this issue and submitted the toll pass receipt to show the complainant utilizing the seized vehicle number after seizure date i.e., 19.7.2014. The registering authority after considering the same they issued fresh RC to this opposite party on 5.2.2014. The complainant intentionally suppressed all the original facts and filed Writ Petition No.4648/2014 before the Hon’ble High Court of A.P. and it is pending. The complainant in parallel filed this complaint without mentioning the true facts. Therefore the complainant do not approach two authorities on the same cause of action for different reliefs. If there is any dispute and differences between the parties shall be referred to arbitration. Without approaching and following the terms and conditions mentioned in the agreement the complainant approached the Hon’ble High Court as well as this forum. The complainant is not a consumer as it is a commercial transaction. Hence there is no deficiency in service on the part of the opposite party towards the complainant and prayed to dismiss the complaint with costs.
3. On behalf of the complainant he gave his affidavit and got marked Ex.A.1 to Ex.A.10. On behalf of the opposite party Sri Amarnadh legal executive and GPA holder of opposite party gave his affidavit and got marked Ex.B.1 to Ex.B.11.
4. Heard and perused.
5. Now the points that arise for consideration in this complaint are:
1. Whether the complainant is a consumer or not?
2. If so is there any deficiency in service on the part of the opposite party towards the complainant in seizing the vehicle of him without intimation?
3. If so is the complainant entitled for any relief?
4. To what relief the complainant is entitled?
POINTS 1 TO 3:-
6. On perusing the material on hand the complainant availed financial assistance of Rs.19,92,000/- from the opposite party under Ex.B.4 loan agreement dated 17.1.2012 for purchase of Ashok Leyland 12 tyre goods carriage and he has to pay the said loan amount to the opposite parties in 45 monthly instalments at the rate of Rs.57,800/- commencing from 21.3.2012 to 21.11.2015 and the said vehicle was registered under Ex.A.1 registration No.AP 07 TC 2979. As per Ex.B.11 the complainant was defaulted in payment of monthly instalments and he issued several cheques to the opposite parties for monthly instalments and the cheques were bounced on several times. As the complainant was defaulted in payment of instalments, the opposite party seized the vehicle and intimated the same to the complainant on 13.6.2013. The opposite party also issued three reminder letters dated 5.11.2012, 6.12.2012, 4.2.2013, 5.6.2013, 7.7.2013, 17.7.2013 and 4.9.2013 and the opposite party also issued pre sale notice on 1.10.2013 customer notice on 28.11.2013, bank reply on 7.12.2013, customer notice on 2.1.2014 to the complainant and submission letter to RTA on 29.1.2014 under Ex.B.6. After seizure of the vehicle the complainant illegally used the vehicle registration No.AP 07 TC 2979 to the another vehicle which is same as above vehicle with the some other finance company i.e., India Bulls. India Bulls made enquiries about the financed vehicle and came to know that the complainant used the financed vehicle with the number plate of seized vehicle and intimated the same to the opposite party. It is evidenced under Ex.B.10 issued by A.P. Transport Authority vehicle registration search that the complainant had another goods carriage Ashok Leyland registration No. AP 07 TB 9495 with the financial assistance of India Bulls Financial Service Limited. The opposite party says that as he own two goods carrier heavy vehicles he is not a consumer under the Consumer Protection Act. The opposite party stated that the matter was referred to arbitrator under No.JB/ACP No.2570/14 and he is not entitled for any relief as he prayed.
7. On perusing the above documents we came to an opinion that the complainant having two heavy vehicles under two financial assistance from (1) India Bulls and (2) from the opposite party informing in this complaint that he is eking his livelihood from the vehicle No.AP 07 TC 2979 which is subject vehicle is not true. As per the Consumer Protection Act he is not a consumer as he owns two vehicles and doing transport business. As per the Consumer Protection Act, Section 2 (d)(i) consumer means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration 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 payment, 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 purposes;
(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 purposes of earning his livelihood by means of self-employment;)
Moreover the above matter is referred to arbitrator and numbered under Ex.B.1 this Forum has no jurisdiction to entertain the matter as ruled out by the Hon’ble Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in between the Manager, Ashok Leyland Finance Ltd., Appellant OPPOSITE PARTY and V.C. Muninarayana Chetty Res. Comp. under Ex.B.2
8. Therefore the complainant is not a consumer and the question of deficiency in service on the part of the opposite parties does not arise. As the complainant is not a consumer there is no need to discuss further. Hence the complainant is not entitled for any relief as he prayed.
9. The opposite party relied on a decision of National Consumer Disputes Redressal Commission in Revision Petition No.3678 of 2013 between Maya Engineering Works through Authorized Representative Mahendra Singh Adil Vs. ICICI Bank Ltd., New Delhi.
This decision applicable to the present case on hand.
POINT No.4:-
10. In the result, the complaint is dismissed without costs.
Dictated to the Stenographer K.Sivaram Prasad, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 7th day of January, 2015.
PRESIDENT(FAC) MEMBER
Appendix of evidence
Witnesses examined
For the complainant: For the opposite pary:
P.W.1 M.Tulasi Rama Krishna D.W.1 Amarnadh
Complainant, Legal Executive
(by affidavit) of the opposite party
(by affidavit)
Documents marked
On behalf of the complainant:
Ex.A.1 29.03.2012 Photocopy of Certificate of Registration.
Ex.A.2 24.05.2013 Photocopy of Inspection Report.
Ex.A.3 13.05.2013 Copy of Telegram.
Ex.A.4 26.09.2013 Pre sale notice.
Ex.A.5 28.11.2013 letter from the complainant to the opposite party and the Registering Authority, O/o Dy. Transport Commissioners
Office, Guntur.
Ex.A.6 . . Copy of Postal track report along with postal receipt.
Ex.A.7 02.01.2014 Photocopy of letter from the complainant to the opposite party and the Registering Authority, O/o Dy. Transport
Commissioners Office, Guntur.
Ex.A.8 . . Postal acknowledgement.
Ex.A.9 . . Photocopy of payment schedule.
Ex.A.10 . . Photocopy of statement of account.
On behalf of the opposite party:
Ex.B.1 17.03.2014 True copies of letter from the opposite party to the complainant along with Notice issued by Sole Arbitrator
and Claim Statement.
Ex.B.2 24.01.2011 True copy of Oral Order of A.P. State Consumer “Disputes Redressal Commission, Hyderabad.
Ex.B.3 20.10.2009 Photocopy of Order of Hon’ble Supreme Court.
Ex.B.4 17.01.2012 True copy of loan Agreement.
Ex.B.5 . . True copy of statement of account.
Ex.B.6 . . True copies of bunch of documents.
Ex.B.7 . . True copies of bunch of documents.
Ex.B.8 24.02.2014 Copy of Show cause notice before admission, issued by the High Court along with copy of affidavit.
Ex.B.9 29.03.2012 Photocopy of Certificate of Registration.
Ex.B.10 . . Copy of online vehicle registration search.
Ex.B.11 . . Copy of statement of account.
PRESIDENT(FAC)
