BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 3 / 2007 TUESDAY THE 28TH DAY DECEMBER 2010. P. Murugan, S/o. Pandurangan, No.4A Vaniyambadi Road, Tirupattur, Vellore District. … Complainant. - Vs – M/s. Shrachi Securities Limited , Rep. its Manger, No.45, Katpadi Main Road, (Near V.S.T. Motors), Thirunagar, Vellore-6. … Opposite party . . . . This petition coming on for final hearing before us on 30.11.2010, in the presence of Thiru. R. Shanthi Booshan, Advocate for the complainant and Thiru. Paul Sudesh, Advocate for the opposite party, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant purchased a Piaggio pick up van (Three wheelers) bearing the Registration No.TN-23-K-7913 from the opposite party. The total value of the pick up van is Rs.97,000/- and the opposite party also provided financial assistance to the complainant in purchasing the aforesaid pick up van. The complainant also agreed to repay the loan amount in 30 equal monthly installments of Rs.3, 980/- together with interest. As per the receipts given by the opposite party the complainant has paid a sum of Rs.63,730/- towards the loan amount. Due to certain avoidable circumstances and embarrassed situation it is very much difficult for the complainant to pay the installments successfully. By inducing the complainant in a skill full manner the executives of the opposite party removed the pick up van from the possession of the complainant on 27.04.2005 the executives people of the opposite party also promised the complainant that they will return the vehicle after inspecting it, till this day the pick-up van has not been returned to the complainant. The opposite party did not serve any notice to the complainant. Therefore deficiency in service of the opposite party on the account of trickful removal of the pick-up van from the possession of the complainant’s possession he was prevented from doing the business and thereby causes heavy loss to the complainant. He came to know that the opposite party is trying to sell the pick-up van by the way of auction. The complainant issued a legal notice dated 20.06.2006 called upon the opposite party to return the vehicle. Even though the opposite party received the notice and not given any reply. Again the opposite party attempt to sell the pick-up van by the way of auction and the same came to the knowledge of the complainant issued another legal notice dated 12.09.2006 called upon the opposite party to return the vehicle. The opposite party received the legal notice and kept silent. Therefore the trickful removal of the pick-up van from the possession of the complainant amounts to deficiency in service of the opposite party. It is prayed that directing the opposite party to return the piaggio pick-up van bearing of Registration No.TN-23-K-7913 with all its fittings and accessories and in the same condition as it was taken from the complainant on 27.04.2005 or in alternative to repay the monthly installments paid by the complainant to the tune of Rs.63,730/- with interest of 24% per annum from the date of purchase of the vehicle and to pay the damages at the rate of Rs.300/- per day to the complainant on the account of the hire charges of the van and also to pay the cost of the complaint to the complainant. 2. The averments in the counter filed by the opposite party is as follows: The opposite party denies and repudiates all such averments in the complaint save such as those which are expressly admitted. The several allegations made in the complaint are all false. This Hon’ble Forum has no Jurisdiction to entertain this complaint and on this short ground itself, this complaint is liable to be dismissed with costs of the opposite party. The various allegations made in the complaint and the reliefs claimed in the complaint will clearly reveal and show that, this Hon’ble Forum has no Jurisdiction to entertain the complaint. The complainant is not a consumer and the dispute is not a consumer dispute. The rights of the parties are governed by the hire purchase agreement. The complainant has entered into an hire purchase agreement with reference to his pick-up van (three wheeler) bearing the Registration No. TN-23K-7913 and agreed to repay the loan amount in 30 equal monthly installments of Rs.3,980/-. The complainant himself admitted that he was in arrear of installments. A telegram informing the arrears payment due of Rs.19,880/- by complainant to the opposite party on 03.05.2006 and also another telegram informing the seizure of vehicle was also issued to the opposite party. The complainant has to exhaust his remedy by the way of approach civil court but not in the Consumer Dispute Redressal Forum. In the above circumstances all the allegations made by the complainant against the opposite party are baseless, whimsical and without any merit. The opposite party is not liable to pay a sum of Rs.63,730/- together with interest at 24% per annum from the date of purchase of the vehicle and the opposite party is not liable to a sum of Rs.50,000/- damages and loss of reputation and good will. The opposite party is not liable to pay sum of Rs.300/- towards hire charges of the van and the opposite party is not liable to pay a sum of Rs.97,000/- price of the pick-up van bearing Registration.No.TN-23-7313 and also not liable to pay cost of complaint thereof complaint filed by the complainant is liable to be dismissed with costs of the opposite party. 3. Now the points for consideration are: a) Whether the complainant is not a “consumer” as defined under Consumer Protection Act, 1986?. b) Whether there is any deficiency in service on the part of the opposite party? b) Whether the complainant is entitled to the reliefs asked for?. 4. Ex.A1 to Ex.A23 were marked on the side of the complainant and Ex.B1 was marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite parties have been filed. No oral evidence let in by either side. 5. POINT NO. (a) & (b) It is admitted facts of the parties that the complainant purchased a Piaggio pick up van (Three Wheelers) bearing the Registration No.TN-23-K-7913 from the opposite party for Rs.97,000/- under an hire purchase agreement and agreed to repay the loan amount in 30 equal monthly intalments of Rs.3980/- together with interest and the opposite party also provided financial assistance to the complainant in purchasing the above said pick up van. 6. The complainant contended that as per the receipts Ex.A1 to Ex.A16 given by the opposite party, the complainant has paid a sum of Rs.63,730/- towards the loan amount. Due to certain avoidable circumstances and it is very much difficult for the complainant to pay the installments successfully. The opposite party removed the pick up van from the possession of the complainant on 27.4.05, and thereafter the complainant came to know the opposite party is trying to sell the pick-up van by the way of auction. The complainant issued legal notice Ex.A19, dt. 20.6.06 called upon the opposite party to return the vehicle. Even though the opposite party received the legal notice and kept silent. Therefore the trickful removal of the pick-up van from the possession of the complainant amounts to deficiency in service on the part of the opposite party. 7. The opposite party contended that the complainant has entered into an hire purchase agreement with reference to his pickup van bearing the registration No.TN-23-7913 and agreed to repay the loan amount in 30 equal monthly instalments of Rs.3980/-. The complainant himself admitted that he was in arrear of instalments. A telegram informing the arrears payment due of Rs.19880/- by complainant to the opposite party on 3.5.06 and also another telegram informing the seizure of vehicle was also issued to the opposite party. The complainant is not a consumer, since the rights of the parties are governed by the hire purchase agreement. Therefore the complainant has to exhaust his remedy by the way of approach civil court but not in the Consumer Disputes Redressal Forum. In this connection the learned counsel for the opposite party relying upon the following Judgements of the State Consumer Disputes Redressal Commission, Chennai & Chhattisgarh and National Consumer Disputes Redressal Commission, New Delhi. 1. 2004 (2) CPR 584 K.A. Murugesan Versus Jaurilal Bafna & Anr Where the Hon’ble State Consumer Disputes Redressal Commission, Chennai is held that : Consumer Protection Act, 1986 – Sections 12 and 17 – Deficiency in service under hire purchase agreement – Complaint – Vehicle purchased under hire-purchase agreement by complainant repossessed by opposite party on alleged default in payment of loan instalments – By virtue of terms hire purchase agreement, vehicle was resold in auction by opposite party after issuing notice to complainant to clear the arrears – No basis for complainant to say there was deficiency in service – Proper remedy would have been approach civil court. 2. IV (2004) CPJ 332 Harish Kurre Versus Ashok Leyland Finance Co. Field Officer Samir Dixit & Ors Where the Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission, Raipur is held that : (i) Consumer Protection Act, 1986 – Section 2(1)(g) – Financial Services – hire purchase agreement – Vehicle purchased by C.P.No.3 from financier, sold to complainant – Due instalments not paid – Vehicle repossessed by financier (ii) Hire Purchase Agreement – Owner entitled to repossess vehicle in case of default in payment of due instalments, by hirer. 3. III (2006) CPJ 247 (NC) Ram Deshlahara Versus Magma Leasing Ltd Where the Hon’ble National Consumer Disputes Redressal Commission, New Delhi is held that : (i) Consumer Protection Act, 1986 – Sections 2 (1) (g) and 21(b) – Banking and Financial Services – Loan for vehicle purchase – Repayable in 30 monthly instalments with interest – Complainant defaulted in repayment. (ii) Consumer Protection Act, 1986 – Sections 2(1) (d) and 2(1)9o) – Service – Under hire purchase transaction, financier nor renders service within meaning of Consumer Protection Act – Complainant not consumer. 8. In the above said 1st ruling the Hon’ble State Consumer Disputes Redressal Commission, Chennai is held that by virtue of terms hire purchase agreement, vehicle was resold the auction by the opposite party after issuing notice to complainant to clear the arrears, no basis for complainant to say there was deficiency in service, proper remedy of the complainant would have been to approach civil court and seek no appropriate relief. In the above said 2nd ruling the Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission, Raipur is held that a simple transaction of sale and purchase between two persons does not involved the element of “service” as defined in the Consumer Protection Act, 1986, resultantly there cannot be deficiency in service. Hence such case are not justifiable before the Fora constituted under Act. In the above said third ruling, National Consumer Disputes Redressal Commission, New Delhi is held that under hire purchase transaction, financier not renders service within meaning of Consumer Protection Act 1986 and the complainant is not consumer. 9. In the present case, the complainant is entered into hire purchase agreement with his Piaggio pick up van bearing registration No.TN-23-K-7913 and agreed to repay the loan amount in 30 equal monthly installments of Rs.3980/-. The complainant himself admitted that he was in arrear of installments, so the opposite party sent a telegram Ex.B1 informing the arrear payment of due of Rs.19880/- by the complainant to the opposite party on 3.5.06 and also informing the complainant that come forward to settle account on or before 9.5.06 failing which the opposite party will be forced to sell for the bill price and the opposite party will proceed legally to recover any short fall. Therefore it is clear that, under hire purchase transaction, financier does not renders service within meaning of Consumer Protection Act and the complainant is not a consumer. The ruling cited by the learned counsel for the opposite party is squarely applicable to the facts and circumstance of this case. 10. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A23 and Ex.B1 we have come to the conclusion that the complainant is not a “consumer” as defined under Consumer Protection Act 1986, and this complaint filed by the complainant is not maintainable before this Forum. We have also come to the conclusion, that the complainant has not clearly proved the deficiency in service, on the part of the opposite party. Hence we answer this point (a) & (b) as against the complainant herein. 11. POINT NO; (c) : In view of our findings on point No.(a) & (b) since we have come to the conclusion that the complainant is not a “consumer” as defined under Consumer Protection Act 1986, and this complaint filed by the complainant is not maintainable before this Forum, and we have also come to the conclusion that the complainant is not at all entitled to any relief asked by him in this complaint. Hence, we answer this point (c) also as against the complainant herein. 12. In the result, this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 28th day of December 2010. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 13.9.04 - X-copy of Loan sanction letter and repayment scheme given by the HDFC Bank. Ex.A2- 28.9.04 - X-copy of Receipt. Ex.A3- 29.10.04 - X-copy of Receipt. Ex.A4- 30.11.04 - X-copy of Receipt. Ex.A5- 6.01.05 - X-copy of Receipt. Ex.A6- 4.2.05 - X-copy of Receipt Ex.A7- 15.3.05 - X-copy of Receipt Ex.A8- 27.5.05 - X-copy of Receipt. Ex.A9- 28.6.05 - X-copy of Receipt Ex.A10- 28.7.05 - X-copy of Receipt. Ex.A11- 27.8.05 - X-copy of Receipt Ex.A12- 26.9.05 - X-copy of Receipt Ex.A13- 9.11.05 - X-copy of Receipt Ex.A14- 21.12.05 - X-copy of Receipt Ex.A15- 3.1.06 - X-copy of Receipt Ex.A16- 28.2.06 - X-copy of Receipt Ex.A17- -- - X-copy of Registration attested copy of certificate of the Pick-up Van. Ex.A18- 7.9.04 - X-copy of Motor Vehicle Insurance Policy. Ex.A19- 20.6.06 - X-copy of legal notice. Ex.A20- 12.9.06 - X-copy of legal notice. Ex.A21- -- - Ack. Card. Ex.A22- -- - Photo. Ex.A23- 27.4.06 - X-copy of inventory of items in vehicle. Opposite party’s Exhibits: Ex.B1- 3.5.06 - X-copy of telegram. MEMBER-I MEMBER-II PRESIDENT.
| [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | |