KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO: 374/2009 JUDGMENT DATED:24..05..2010. PRESENT SMT. VALSALA SARANGADHARAN : MEMBER SRI. M.V. VISWANATHAN : JUDICIAL MEMBER SRI.S. CHANDRAMOHAN NAIR : MEMBER Manager, Shriram Investments Ltd., No.123, Angappa Naiken Street, Chennai-600 001, R/by its : APPELLANT Power of Attorney Holder- P.T.Venugopalan. (By Adv: Sri.R.Jayakrishnan) Vs. 1. Moidukutty.K, S.O.Kunhabdulla Haji, Koithykandy House, Munderi, Kalpetta.P.O. (By Adv:Sri.Kiran Gopinath) : RESPONDENTS 2. Managing Director, Kerala Transport Development Finance Corporation Ltd., Thiruvananthapuram. 3. R.T.O, Wayanad. JUDGMENT SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER The appellant herein was the 2nd opposite party and the respondents 1 to 3 were the complainant and opposite parties 1 and 3 respectively in CC:135/08 on the file of CDRF, Wayanadu, Kalpetta. The complaint therein was filed alleging deficiency of service on the part of the opposite parties 1 and 2 in recovering excess amount under a loan transaction. The complainant alleged that the 2nd opposite party/Shriram Investments Limited recovered an excess amount of Rs.1,74,332/- from the complainant and so claimed refund of the excess amount with 12% interest. The complainant has also sought for issuance of ‘no objection’ certificate to get the hypothecation endorsement in the registration certificate of the hypothecated vehicle cancelled and also to return the signed blank cheques and stamp papers with compensation of Rs.2,00,000/-. The complainant has also prayed for an alternative relief to direct the 3rd opposite party, Regional Transport Officer, Wayanadu, Kalpetta for canceling the higher purchase endorsement in the registration certificate of the stage carriage bearing registration No:KL-12-B-3784. 2. The opposite parties 1 and 2 entered appearance and filed separate written version. The 1st opposite party/Kerala Transport Development Finance Corporation Limited, Thiruvananthapuram contended that the complainant is not a consumer as defined in the Consumer Protection Act and that the CDRF, Wayanadu has no territorial jurisdiction to try the complaint. It was also contended that agreement was entered into between opposite parties 1 and 2 for a scheme named Small Road Transport Operators Direct Lending Scheme to Transport Operators in Kerala and thereby the 2nd opposite party agreed to select and sponsor borrowers guaranteeing prompt payment of monthly instalments by the borrowers and that the 2nd opposite party Shriram Investments Ltd. undertook payment of dues in the event of default to make payment of instalments by the borrowers. The 1st opposite party was not concerned with the collection of instalments from the complainant. Thus, the 1st opposite party prayed for dismissal of the complaint. 3. The 2nd opposite party has also raised the contention that the complainant is not a consumer as defined in the Consumer Protection Act. The loan of Rs.5,75,000/- was disbursed by the 1st opposite party on the instruction and recommendation of the 2nd opposite party under the SRTO scheme. In addition to that a special charge of Rs.25,000- was also added to the loan amount for the service of the 2nd opposite party. Altogether Rs.6,00,000- was repayable towards the principal amount along with interest and other charge within a period of 60 months. The total agreement value is Rs.8.95,000/-. The last instalment date was 5/8/2007. The allegation that the 2nd opposite party collected excess amount ofRs.1,74,332/- is not correct. The complainant failed to remit the instalments in time and thereby he is liable to pay penal charges. The allegation regarding collection of signed blank stamp papers and signed cheques is also denied by the 2nd opposite party. For the delayed instalments the complainant is liable to pay compensation at the rate of 36% per annum. Thus, the 2nd opposite party prayed for dismissal of the complaint. 4. Before the Forum below, the complainant was examined as PW1 and Exts.A1 to A11 documents were marked on the side of the complainant. From the side of the 1st opposite party Exts.B1 to B3 documents were marked. No other evidence was adduced from the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:30th April 2009 directing the 1st opposite party to issue ‘no objection’ certificate to cancel the loan endorsement in respect of the vehicle No:KL-12-B-3784 and that the 2nd opposite party was directed to pay an amount of Rs.1,74,332/- to the complainant with interest at the rate of 12% per annum from the date of the complaint till payment. The 2nd opposite party is also directed to pay compensation of Rs.10,000/- to the complainant. Aggrieved by the said order the present appeal is filed by the 2nd opposite party, Manager, Shriram Investments Ltd, Chennai. 5. We heard learned counsel for the appellant/2nd opposite party and the 1st respondent/complainant. There was no representation for the respondents 2 and 3 (opposite parties 1 and 3). The counsel for the appellant/2nd opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the Forum below failed to consider the more important issue regarding the status of the complainant. It was submitted that the 2nd opposite party vehemently contended in the version that the complainant is not a consumer as the impugned transaction was for commercial purpose; But the Forum below failed to consider the aforesaid contention regarding the maintainability of the complaint in CC:135/08. It is further submitted that the Forum below has not considered the documentary evidence available on record in its correct perspective and that the calculation made by the Forum below is palpably wrong and the same cannot be accepted. Thus, the appellants/2nd opposite party prayed for setting aside the impugned order passed by the Forum below directing the 2nd opposite party to refund Rs.1,74,332/- as excess amount collected by the 2nd opposite party with a further direction to pay compensation of Rs.10,000/- to the complainant. On the other hand, the counsel for the 1st respondent/complainant supported the impugned order passed by the Forum below. He relied on A4 repayment schedule issued by the 2nd opposite party and submitted that the loan amount was only Rs.5,75,000/- and that the complainant is liable to repay a total of Rs.7,93,449/- by 5/7/09 and that the complainant has repaid Rs.8,90,681/- and that an excess amount of Rs.1,74,332/- has been collected by the 2nd opposite party/appellant from the complainant. Thus, the 1st respondent/complainant prayed for dismissal of the present appeal preferred by the 2nd opposite party in CC:No:135/08. 6. The points that arise for consideration are:- 1. Whether the complainant in CC:135/08 (1st respondent herein) can be considered as a consumer as defined under Sec.2(1)d of the Consumer Protection Act, 1986? 2. Whether the complainant in CC:135/08 on the file of CDRF, Wayanadu, Kalpetta has succeeded in establishing his case that he has repaid the entire loan amount with interest and other charges due to the 2nd opposite party and that 2nd opposite party Shriram Investments Ltd has collected excess amount of Rs.1,74,332/- from the complainant? 3. Is there any sustainable ground to interfere with the impugned order dated:30/4/09 passed by CDRF, Wayanadu in CC:135/08? 7. For the sake of convenience, the parties to this appeal will be referred to according to their rank and status before the Forum below in CC:135/08. 8. Point No:1 There is no dispute that the complainant availed vehicle loan from the 1st opposite party/Kerala Transport Development Finance Corporation Ltd through the 2nd opposite party Shriram Investments Ltd. The actual loan amount availed by the complainant was for Rs.5,75,000/-. The complainant was recommended for the said loan by the 2nd opposite party. Admittedly there was an agreement entered into between the opposite parties 1 and 2 for the purpose of rendering financial assistance for the purpose of purchasing vehicles by Small Road Transport Operators. The aforesaid scheme was named as Small Road Transport Operators (SRTO) direct lending scheme to transport operators in Kerala. For implementing the said scheme the opposite parties 1 and 2 entered into an agreement. Ext.B3 is copy of the said agreement entered into between the opposite parties 1 and 2. As per B3 agreement the 2nd opposite party was given the authority to select and recommend transport operators for availing loan from the 1st opposite party, Kerala Transport Development Finance Corporation Ltd. (KTDFC). It is also to be noted that as per B3 agreement the 2nd opposite party had undertaken the liability to repay the loan amount to the 1st opposite party, in the event of default to pay the instalments by the operators (borrowers). It can also be seen that the collection of the loan instalments and other dues was entrusted with the 2nd opposite party. The 1st opposite party in their written version has categorically contended that the 2nd opposite party/Shriram Investments Ltd (SIL) was responsible for collection of the loan instalments from the operators (borrowers). The complainant has admitted the fact that he remitted the instalments with the 2nd opposite party. Ext.A10 and A11 series of receipts would also make it clear that the payments were effected with the 2nd opposite party/SIL and receipts were also issued by the 2nd opposite party. Thus, the complainant availed the vehicle loan from the 1st opposite party through the 2nd opposite party. An agreement was also executed by the complainant to that effect. Unfortunately, the complainant and the opposite parties 1 and 2 failed to produce the aforesaid agreement entered into between the complainant and the opposite parties with respect to the loan availed by the complainant. 9. There can be no doubt about the fact that the complainant availed the loan for purchase of stage carriage bearing registration No:KL-12-B-3784. In fact the former owner of the said stage carriage namely Hamsa A.P had availed the loan from the opposite parties for purchasing the aforesaid vehicle bearing registration No:KL-12-B-3784. Ext.A4 repayment schedule produced from the side of the complainant would show that the vehicle loan was availed by A.P.Hamsa for a total of Rs.5,75,000/- agreeing to repay the same from 5th October 2002 with the last instalment on 5/7/2007. Ext.A9 copy of the certificate of registration with respect to the stage carriage No:KL-12-B-3784 would also make it clear that the said vehicle was purchased by Hamsa A.P and he was the original registered owner of the vehicle and that the said vehicle had hypothecation with the KTDFC, Thiruvananthapuram. Ext.A9 photocopy of the certificate of registration of the said vehicle would also make it clear that in September 2003 the aforesaid stage carriage was transferred into the name of the complainant K.Moidutty by retaining the HPA with KTDFC, Thiruvananthapuram. Thus, it can be seen that the complainant got the aforesaid vehicle with the liability to repay the vehicle loan which was availed by the former owner Hamsa A.P. Ext.A10 sale agreement dated:1/8/2003 entered into between the original registered owner A.P.Hamsa and the complainant, K.Moidutty would also make it clear that the bus bearing registration No:KL-12-B-3784 was purchased by the complainant from the original registered owner A.P.Hamsa agreeing to repay the amount outstanding to the 2nd opposite party/Shriram Investments Ltd. Thus, it can be seen that during September 2003 the complainant entered into an agreement with the opposite parties 1 and 2 to retain the original vehicle loan availed by the former owner A.P.Hamsa. As far as the loan amount due from the complainant to the opposite parties 1 and 2 is concerned, fresh loan agreement was executed in September 2003. 10. The admitted documents would establish the fact that the complainant herein availed loan of Rs.5,75,000/- from the opposite parties 1 and 2 for the purchase of the bus bearing registration No:KL-12-B-3784. Thus, the loan was availed by the complainant for commercial purpose. Admittedly the aforesaid bus No:KL-12-B-3784 purchased for plying the same as a stage carriage. It can very safely be held that the loan was availed for commercial purpose. 11. The definition of consumer as defined under Sec.2(1)(d) would make it clear that “the goods purchased or service availed for commercial purpose would not come within the purview of the definition of consumer. That the person availed the service of the opposite parties 1 and 2 for availing the loan of Rs.5,75,000/- for the purpose of purchasing the bus for commercial purpose will be outside the purview of the Consumer Protection Act, 1986”. But, the Forum below has not considered this aspect as to whether the complainant in CC:135/08 is a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act. 12. The complainant as PW1 has deposed that he is plying the stage carriage for his livelihood. But, PW1 has no case that he availed the service of the opposite parties exclusively for the purpose of earning his livelihood by means of self employment. PW1 has also deposed that he has employed 4 employees for plying this stage carriage. It is also admitted by PW1 that another bus bearing Registration No.KLRB 4226 is also under his ownership. It would show that the complainant has been doing motor transport business by operating stage carriages. The aforesaid testimony of PW1 would make it clear that he has not been plying the stage carriage KL 12 83784 exclusively for the purpose of earning his livelihood by means of self employment. Another important aspect to be noted at this juncture is the averments in the complaint filed in CC:135/08. A perusal of the averments in the said complaint would not give any indication that the complainant availed loan for the purpose of purchasing bus No:KL-12-B-3784 for earning his livelihood by means of self employment. There is no whisper in the complaint about the service availed for earning livelihood by means of self employment. So, the evidence of PW1 that he is plying the stage carriage for earning his livelihood can be treated as evidence without any pleadings. It can safely be concluded that the complainant is not a consumer as defined in Sec.2(1)(d) of the Consumer Protection Act, 1986. The Forum below has gone wrong due its failure to consider this important issue regarding the maintainability of the complaint in CC:135/08, especially when such a contention was taken by opposite parties 1 and 2 in their written version. Hence, this commission have no hesitation to hold that the complaint in CC:135/08 is not maintainable. Complainant is not a consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986. This point is answered accordingly. 13. Point Nos:2 and 3:- Forum below relied on A4 repayment schedule and came to the conclusion that as per A4 repayment schedule the complainant had to repay only Rs.7,93,448/- by 5/7/2007. But, the Forum below omitted to consider the case of the 2nd opposite party that A4 repayment schedule was not issued by them. There is nothing on record to accept the genuineness and correctness of A4 repayment schedule. It is further to be noted that A4 repayment schedule was not issued to the complainant. But, it was issued in the name of A.P.Hamsa. The 2nd opposite party has categorically challenged the correctness of A4 repayment schedule. PW1 was also cross examined with respect to the genuineness of A4 repayment schedule. So, the Forum below cannot be justified in relying on A4 repayment schedule. 14. The complainant has also produced A5 statement of accounts. It is to be noted that the complainant has not accepted the correctness of A5 statement of accounts. The complainant has vehemently challenged the correctness of the entries in A5 statement of accounts. But, the Forum below relied on A5 statement of accounts for the purpose of arriving at a conclusion that the 2nd opposite party has collected Rs.8,90,681/- from the complainant. It is true that in A5 calculation statement it is shown the amount collected as Rs.8,90,681/-. But at the same time in A5 statement of accounts the total amount due from the complainant is shown as Rs.9,44,183/- and a balance of Rs.53,502/- is the outstanding balance due from the complainant and ultimate total balance is shown as Rs.60,710/- It is to be noted that if A5 calculation statement is accepted by the Forum below then the entire entries in A5 statement of accounts are to be accepted or specific reason or ground must be shown to reject or discard any particular entry. But no such method or procedure is adopted by the Forum below. On the other hand, the Forum below relied on A5 statement of accounts for the purpose of taking the amount collected by the 2nd opposite party from the complainant; But A5 is rejected as far as the total amount due to the 2nd opposite party from the complainant is concerned. The aforesaid practice followed by the Forum below cannot be appreciated or entertained. 15. The Forum below has also relied on B1 loan status and report as on 29/12/2008 said to have been issued by the 1st opposite party (KTDFC) with respect to the loan transaction in the name of the complainant, Moidutty.K. But there is nothing on record to show that B1 loan status report was issued by the 1st opposite party. No signature or other endorsement is seen on B1 document. More over, B1 document cannot be considered as a complete document. In B1 only 29 instalments are shown. Admittedly the total instalments due under the loan transaction were 60 instalments. This would show that the B1 is only part of a report. It is a settled position that part of a document cannot be relied on. B1 loan status report itself would show that the loan period was 60 months and the loan amount as Rs.5,75,000/- with interest at the rate of 15% per annum and moratorium interest at R.14,375/-. It is true that in B1 the schedule amount is shown as Rs.5,89,375/- but there is nothing on record to show that schedule amount of Rs.5,89,375/- means that the complainant/loanee need only pay the principal amount with interest amounting to Rs.5,89,375/-. If that be so, the interest for the said loan amount for a period of 5 years would be the nominal interest of Rs.14,375/-. It is to be noted that interest at the rate of 15% on Rs.5,75,000/- would come to Rs.86,250/- for one year. That simple calculation would make it clear that the complainant was liable to pay more than Rs.14,375/- by way of interest on the loan amount of Rs.5,75,000/- for the loan period of 60 months. Thus, in all respects the Forum below has gone wrong by relying on B1 loan status report for coming to the conclusion that the total amount payable by the complainant was only Rs.5,89,375/-. 16. The complainant has got a case that he paid an excess amount of Rs.1,74,332/- towards the loan amount. But the complainant could not establish the alleged case of payment of excess amount of Rs.1,74,332/-. Ext.A11 series of receipts would not show that the complainant paid excess amount of Rs.1,74,332/-. It is also to be noted that all the receipts in Ext.A11 series are not the receipts for payment of amount by the complainant. It can be seen that some of the receipts were issued to the former loanee, Hamsa.A.P. So, the A11 series of receipts cannot be accepted as such in coming to the conclusion that the amounts covered by A11 series of receipts were paid by the complainant. Moreover, A10 sale agreement entered into between the complainant and the original registered owner , A.P.Hamsa would give an indication that as on 5/8/2003 a sum of Rs.7,93,449/- was due to the 2nd opposite party/Shriram Investments under the loan transaction. A10 sale agreement would also show that the original loanee, A.P.Hamsa had committed default in repaying the loan amount and that the said A.P.Hamsa had agreed to clear the outstanding dues as on the date of A10 sale agreement. But, there is nothing on record to show that subsequently the original loanee, A.P.Hamsa had cleared the outstanding amount due to the 2nd opposite party. Thus, the complainant has not succeeded in establishing his case that he paid excess amount ofRs.1,74,332/- to the 2nd opposite party. The Forum below cannot be justified in directing the 2nd opposite party/appellant to refund the so called excess amount of Rs.1,74,332/- to the complainant with interest at the rate of12% per annum from the date of the complaint till payment. The aforesaid order passed by the Forum below is liable to be deleted. Hence we do so. 17. There can be no doubt about the fact that the complainant committed default in repaying the loan amount. The payment of the instalments by the complainant as per A11 series of receipts would make it crystal clear that the complainant was a defaulter in making payment towards the monthly instalments. It is come out in evidence that the complainant caused delay in making the payment towards the instalments. It is also an admitted fact that the 2nd opposite party can very well levy penal interest on the over due instalments. Thus, it is established in this case that the complainant was a chronic defaulter and his own lapse or omission created the entire problem or dispute with the opposite parties 1 and 2. Thus, defaulter cannot be permitted to demand compensation on the ground of deficiency of service. In fact, the complainant himself was negligent in repaying the loan amount. He caused delay in repaying the loan amount within the stipulated time. But, the Forum below has not considered the liability of the defaulter to pay penal interest on the overdue instalments, The Forum below was least concerned about the liability of the complainant to pay penal interest or other penal charges for the delay in making payment of the loan instalments. It can be concluded that the complainant himself invited the problems by committing default in paying loan instalments. In such a situation, it is too much on the part of the complainant to claim compensation on the ground of deficiency of service on the part of the opposite parties. Thus, the Forum below cannot be justified in awarding compensation of Rs.10,000/- to the complainant and making the 2nd opposite party liable to pay the said compensation amount of Rs.10,000/-. The aforesaid finding and conclusion are liable to be set aside. Hence we do so. 18. The complainant has got a case that he paid security deposit of Rs.50,000/- and the maturity value of the security amount would come to Rs.70,000/-. But there is nothing on record to show that the complainant Mr.Moidutty deposited the security deposit of Rs.50,000/- with the 1st opposite party or the 2nd opposite party. The complainant much relied on A4 repayment schedule which is said to have been issued to A.P.Hamsa. In A4 repayment schedule the maturity value of the security deposit is shown as zero; but at the bottom the maturity value of security deposit is shown as Rs.70,000/-. At any rate the aforesaid entries in A4 repayment schedule cannot be accepted to hold that the complainant, K.Moidutty had effected security deposit of Rs.50,000/- with the 2nd opposite party or the 1st opposite party. If such an amount was deposited as security deposit, there would have been necessary document, with the complainant for payment of the said security deposit. In the absence of any such document the aforesaid case of the complainant cannot be accepted. 19. The complainant has also got a case that he himself paid the insurance amount and the 2nd opposite party has made entries in the statement of accounts (A5 statement of accounts) regarding payment of the insurance premium by the 2nd opposite party. But the complainant has not adduced any acceptable evidence before the Forum below. The nature of the contentions of the complainant and the 2nd opposite party would show that dispute between the complainant and the 2nd opposite party is with respect to accounting. So, the complainant ought to have filed a Civil Suit for settlement of accounts. Any how, the Forum below cannot be justified in fastening liability on the 2nd opposite party based on the available evidence on record. 20. The appellant/2nd opposite party has admitted the fact that the loan account with the complainant was closed as on 30/6/2007 and that the appellant has written off the balance amount of Rs.53,502/- due from the complainant. If that be so, the opposite parties 1 and 2 are bound to issue ‘No objection’ certificate for getting the hire purchase endorsement in the certificate of registration of the vehicle No:KL-12-B-3784 Cancelled. The Forum below has rightly directed the 1st opposite party to issue ‘No objection’ certificate to get the HP endorsement cancelled. So, the aforesaid order passed by the Forum below is to be upheld. Hence we do so. These points are answered accordingly. In the result the present appeal filed by the 2nd opposite party in CC:135/08 on the file of CDRF, Wayanadu, Kalpetta is allowed and thereby the impugned order passed by the Forum below against the 2nd opposite party therein is set aside. But, the order passed by the Forum below in CC:135/08 against the 1st opposite party (2nd respondent in the appeal) is confirmed. The parties to this appeal are directed to suffer their respective costs through out. It is made clear that this judgment is passed without prejudice to the right of 1st respondent/complainant to move Civil Court to get the loan account settled. M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER S. CHANDRAMOHAN NAIR: MEMBER VL. |
