KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 668/2010
JUDGMENT DATED: 1.10.2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
M/s. Asian Paints Limited,
3/38 A, Opposite Govt. TTI, : APPELLANT
East Nadakkavu, Kannur.
(By Advs. A. Abdul Kharim & Narayan R.)
Vs
K.A. Abootty Haji
Crescent Traders, Sivapuram P.O., : RESPONDENT
Sivapuram (via) Mattannur,
Kannur.
(By Adv. Smt. Veena S. Pramod)
JUDGMENT
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant is the opposite party and respondent is the complainant in CC.21/08 on the file of CDRF, Kannur. The complaint therein was filed alleging deficiency of service on the part of the opposite party in not returning the machinery, viz. Colour World Machine which was taken for effecting repairs. The complainant alleged mental agony and financial loss on account of the failure of the opposite party to return the aforesaid machine to the complainant. Hence the complainant claimed refund of Rs.3,94,864/- being the price of the machine together with compensation of Rs.1,50,000/- and cost.
2. The opposite party entered appearance and filed written version denying the alleged deficiency of service. They contended that the complainant purchased the colour world machine by availing loan of Rs.3,70,000/- from Citi Bank agreeing to repay the amount by monthly instalments and that the opposite party, M/s Asian Paints Limited stood as a 3rd party to the said agreement and the said agreement was entered into between the complainant on the one part and the opposite party and Citi Bank on the other part. It was further contented that the complainant defaulted to make payment of the instalments and thereby the machine was repossessed by the opposite party and that the complainant is not a consumer coming within the ambit of the Consumer Protection Act, 1986. It is also contended that the opposite party entered into re-purchase agreement with the Citi Bank and thereby came into the shoes of the creditor Citi bank. Thus, the opposite party prayed for dismissal of the complaint.
3. Before the Forum below, the complainant was examined as PW1 and Exts.A1 to A5 documents were marked on his side. On the side of the opposite party DW1 was examined and Exts.B1 to B3 documents were marked. On an appreciation of the evidence on record, the Forum below found deficiency of service on the part of the opposite party and thereby passed the impugned order dated:4th October 2010 directing the opposite party to return the colour world machine which was taken from the complainant for repair or to refund a sum of Rs.2,40,000/- and also to pay compensation of Rs.20,000/- with cost of Rs.1000/-. Aggrieved by the said order, the present appeal is preferred.
4. We heard the learned counsel for the appellant/opposite party and the respondent/complainant. The appellant vehemently argued for the position that the appellant/opposite party entered into a repurchase agreement with Citi Bank and thereby the appellant as the financier has the right and authority to proceed against the complainant/borrower for realization of the loan amount due from him. The counsel for the appellant has also relied on section 132 of the Indian Contract Act to support the case of the appellant that the appellant is empowered to proceed against the respondent/ complainant. It was also argued that there was no deficiency of service and that the complainant is not a consumer coming within the ambit of the Consumer Protection Act. Thus, the appellant/opposite party prayed for setting aside the impugned order passed by the Forum below and for dismissal of the complaint in CC.21/08. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below. He argued for the position that the complainant is not a party to B3 repurchase agreement entered into between the opposite party and the Citi bank. He also submitted that as per B1 loan cum hypothecation agreement, the appellant/opposite party had no liability. He further submitted that no notice was given to the respondent/complainant regarding the execution of B2 and B3 agreements. It is vehemently argued that the opposite party took the machine for effecting repairs. He relied on A5 document to support his case that the machine was taken from the possession of the complainant for effecting repairs. On this point, he has also relied on the admission made by DW1, the Senior Sales Officer of the opposite party. Thus, the respondent prayed for dismissal of the present appeal.
5. There is no dispute that the respondent/complainant purchased a colour world machine from the appellant/opposite party, M/s Asian Paints Limited. The complainant has also availed financial assistance from the Citi bank to the tune of Rs.3,70,000/-. Evidencing the said transaction, the complainant entered into a loan cum hypothecation agreement with Citi bank. The appellant/opposite party, M/s Asian Paints Limited is shown as 3rd party in B1 agreement. A perusal of B1 agreement would show that the appellant/opposite party being the 3rd party to the said agreement has no liability regarding repayment of the loan amount. Whether the complainant was a defaulter in making payment of the monthly instalments as per B1 agreement is not a dispute on issue involved in this case.
6. The definite case of the respondent/complainant is that the appellant/opposite party took possession of the colour world machine for rectifying the defect in the said machine. But the said case of the complainant has not been admitted by the opposite party. But the materials available on record would make it abundantly clear that the aforesaid machine was taken possession by the opposite party/M/s Asian Paints Limited for effecting repairs to the said machine. The aforesaid fact that the opposite party took possession of the machine from the complainant is admitted by DW1 in his cross-examination. Ext.A5 letter dated:6.6.2006 would also strengthen the said case of the complainant.
7. The appellant/opposite party has admitted the fact that at present they are in possession of the colour world machine which is the subject machine. The aforesaid machine is covered by B1 loan cum hypothecation agreement. DW1 is categorically admitted that the said machine was taken from the shop of the complainant by the opposite party and that the said machine was removed by taking the same in a lorry bearing registration No.KL-11-Y-9107. It is to be noted that the opposite party has no case that the complainant surrendered the said machine on account of the default in making payment of the instalments due under B1 agreement. The opposite party has also no case that they took forcible possession of the said machine from the complainant. In such a situation, it can very safely be concluded that the opposite party got possession of the machine under the pretext of effecting repairs to the same. Admittedly, the opposite party, M/s Asian Paints Limited is not prepared to return the said machine after effecting repairs. Thus, the aforesaid lapse or failure on the part of the opposite party in effecting repairs would amount to deficiency of service. The Forum below is perfectly justified in holding that there was deficiency of service on the part of the opposite party/M/s Asian Paints Limited.
8. The appellant/opposite party much relied on B2 and B3 agreements and argued for the position that the appellant/opposite party is having authority to proceed against the complainant/borrower and to retain the said machine in the possession of the appellant/opposite party. It is pertinent to note that the complainant is not a party to B2 and B3 agreements. No intimation or information is given to the complainant about the execution of B2 and B3 agreements. It is true that in the reply notice, the opposite party has referred about the repurchase agreement entered into between itself and Citi bank. If that be the position, the Citi bank has to be made a party to the present proceedings. The opposite party has not taken a contention that Citi bank is a necessary party to the proceedings. More over, even if the appellant/opposite party is empowered to proceed against the complainant then the appellant has to approach a competent Civil Court. At any rate, the opposite party cannot approach this Consumer Forum for recovery of the loan amount; if any due to the opposite party or to the financier/Citi bank.
9. The CDRF, Kannur was competent to entertain the complaint in CC.21/08. The appellant/opposite party has taken the contention that the complainant is not a consumer under the Consumer Protection Act as he purchased the machine for commercial purpose. It is to be noted that the complainant has categorically averred that he purchased the colour world machine from the opposite party with the financial assistance of Citi bank for earning his livelihood. The aforesaid case of the complainant has not been controverted by the opposite party by adducing contra evidence. Thus, the Forum below can be justified in finding that the complainant is a consumer coming within the ambit of the Consumer Protection Act, 1986.
10. The Forum below has directed the appellant/opposite party to return the colour world machine which was taken from the complainant for effecting repairs. It is further directed that the opposite party has to return the said machine after repairing the same and making the same defect free. In the alternative it is directed to refund a sum of Rs.2,40,000/- to the complainant being the amount paid by the complainant towards the price of the said machine. The aforesaid order passed by the Forum below for returning the machine after effecting repairs and in the event of failure to return the machine to refund a sum of Rs.2,40,000/- can be treated as just and reasonable order. This commission is pleased to uphold the same.
11. The respondent/complainant claimed compensation of Rs.1,50,000/- for the mental agony and financial loss suffered by him. But there is no acceptable evidence to substantiate the said claim for Rs.1,50,000/-. The Forum below has rightly disallowed the said claim for Rs.1,50,000/-. On the other hand, the Forum below awarded a compensation of Rs.20,000/- with cost of Rs.1,000/-. It is to be noted that the complainant has committed default in making payment. It is only because of the aforesaid default committed by the complainant, the repurchase agreement was entered into between the opposite party and the Citi bank. The facts and circumstances of the case would show that the complainant had also contributed for taking an adamant stand by the opposite party. So, the compensation of Rs.20,0000/- ordered by the Forum below is to be treated as exorbitant. Considering the facts and circumstances of the case, this commission is of the view that a sum of Rs.5000/- is sufficient enough to compensate the inconvenience caused to the complainant. So, the compensation of Rs.20,000/- awarded by the Forum below is reduced to Rs.5000/-. The Forum below has rightly ordered cost of Rs.1000/- and the same is upheld. Thus, the impugned order dated:4.10.2010 passed by the CDRF, Kannur in CC.21/08 is modified accordingly.
In the result the appeal is allowed in part. Impugned order passed by the Forum below is modified and thereby the compensation of Rs.20,000/- awarded by the Forum below is reduced to Rs.5000/-. In all other respects the order passed by the Forum below is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
