BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No. 350 OF 2008 AGAINST C.C.NO.165 OF 2006 DISTRICT CONSUMER FORUM SANGAREDDY AT MEDAK DISTRICT
Between:
T.Padmavathi W/o Venkateshwar Rao
Aged about 37 years, occ; Business
Prop. Padma Automobile Financiers
24-25-75, Durga Puram, Vijayawada-3
Appellant/opposite party no.1
A N D
1. Bazaru Venkatesham Goud
S/o Durga Goud, aged about 37 years
Occ: Driver-cum-owner of Tractor
bearing No.APB2070 R/o H.No.2-114,
Ghanapur Village, Toopran Mandal
Medak Dist.
Respondent/complainant
2. Kareemulla Mechanic (Finance Broker)
Opp. Bharath Petrol Bunk, Toopran (Vill.& Mandal)
Medak District A.P.-502 334
Respondent/opposite party no.2
Counsel for the Appellant Sri V.Gourisankara Rao
Counsel for the Respondent No.1 Sri Y.V.Narasimhulu
Counsel for the Respondent No.2 Sri N.Srinivas Rao
OF 2009 AGAINST C.C.NO.165 OF 2006
Between:
Pathan Kareemulla Khan
Mechanic, Opp. Bharath Petrol Bunk,
Toopran (Vill.& Mandal)
Medak District A.P.-502 334
Appellant/opposite party no.2
A N D
1. Bazaru Venkatesham Goud
S/o Durga Goud, aged about 37 years
Occ: Driver-cum-owner of Tractor
bearing No.APB2070 R/o H.No.2-114,
Ghanapur Village, Toopran Mandal
Medak Dist.
Respondent/complainant
2. T.Padmavathi W/o Venkateshwar Rao
Aged about 37 years, occ; Business
Prop. Padma Automobile Financiers
24-25-75, Durga Puram, Vijayawada
Respondent/opposite party no.1
Counsel for the Appellant Sri N.Janaiah
Counsel for the Respondent Sri Y.V.Narasimhulu
Counsel for the respondent no.2 Sri N.Srinivas Rao
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
FRIDAY THE TWENTY SIXTH DAY OF NOVEMBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. Both the appeals arise out of identical circumstances and against the same order. As such we propose to dispose of the appeals by a common order.
2. The factual matrix of the case as represented by the complainant is that the complainant purchased tractor and trailer by obtaining loan of `52,200/- from the opposite party no.1 through the opposite party no.2 with interest at 15% to be paid in 24 monthly instalments. The opposite party no.2 issued cheque bearing NO.263057 dated 20.7.2003 for `51,700/-. The opposite parties issued receipts for `58,100/- only instead of `74,500/- which the complainant has paid towards purchase of tractor and trailer and when the complainant asked for the same, the opposite parties stated that remaining amount of `16,400/- was for tractor insurance, road tax and late fee. The opposite parties have not paid any road tax or insurance. The opposite parties on completion of loan amount asked the complainant to take the hire purchase cancellation letters by paying `9725/-.
3. The complainant paid `9725/- to the opposite parties but they instead of issuing HP cancellation letters demanded further amount. On 2.10.2005 the opposite parties took away the vehicle of the complainant in his absence without giving any prior notice to him. The complainant approached the opposite parties for release of his vehicle but the opposite parties demanded further payment of `40,000/- for release of the vehicle. The complainant after payment of `40,000/- plus `6,000/- which was further demanded by the opposite parties took the vehicle from the opposite parties. The vehicle was not in a good condition. The complainant has to pay total amount of `98,100/- instead of `67,860/- towards loan amount. The opposite parties also did not issue any HP Cancellation letter to the complainant.
4. The opposite party no.1 resisted the case contending that the complaint is not maintainable as there is no relationship of consumer and service provider between the complainant and the opposite party no.1. The complainant purchased a tractor and trally bearing No.AP23B 2070 and 2071 by obtaining loan from the opposite party no.1 for `66,300/- on 19.7.2003 with interest @ 15% per annum. The opposite party no.1 issued a cheque for `66,300/- on 19.7.2003 and the complainant encashed it by crediting the same into his account SB/AC/NO.2766. The complainant has agreed to pay the loan amount in 20 monthly installments @ `4100/- per month together with interest @ 15% per annum. The total amount to be paid by the complainant is `82,875/-. In case of default or delay in payment of installments the complainant is liable to pay the penal interest on the loan amount. The complainant paid only 13 monthly installments and he had committed default from1 4th month installment onwards. As the complainant failed to pay the installments, this opposite party was constrained to seize the vehicle. After seizure of the vehicle the complainant approached the opposite party no.1 and requested to settle the mater amicably and release the vehicle. On request of the complainant, the opposite party no.1 calculated the outstanding statement of account. The complainant has paid `40,000/- through D.D. on 5.1.2006 and still the complainant was due an amount of `4466/-. Since the complainant paid major part of due amount, the opposite party released the vehicle and handed over to the complainant. The complainant has agreed to pay the balance amount within a week and obtain the clearance certificate from the opposite party no.1 but the complainant didn’t come forwards to pay the amounts. Hence, prayed for dismissal of the complaint.
5. The opposite party no.2 has contended that he is not a finance broker. On request of the complainant, the opposite party no.2 had given hand loan of `51,700/- to the complainant through cheque and the complainant promised to repay the amount within one month therefrom. The opposite party no.2 had not paid the loan amount on behalf of the opposite party no.1.The opposite party no.2 has no concern with the loan amount taken by the complainant from the opposite party no.1.
6. The complainant has filed his affidavit and the documents marked as ExA1 to A35. The opposite parties no.1 and 2 had filed their affidavits but no documents.
7. The District Forum has allowed the complaint awarding an amount of the amounts of `97,990/- towards the expenses incurred by the complainant, `5,000/- towards compensation and `1,000/- towards costs.
8. Aggrieved by the order of the District Forum, the opposite party no.1 has preferred appeal contending that the relationship between the opposite party no.1 and the complainant is the debtor and creditor and it has no concern with the transactions between the complainant and the opposite party no.2. It was contended that the loan amount paid to the complainant is `66,300/- repayable in 24 monthly installments @ `4,100/-. The complainant paid only 13 installments and committed default from 14th installment. Further, it was contended that on payment of `40,000/- and upon assurance to pay the balance amount of `4,466/-, the opposite party no.1 had released the vehicle and that no FIR was lodged by the complainant against the opposite party no.1 nor the complainant had served the notice on the opposite party no.1.
9. The complainant has filed written arguments.
10. The point for consideration is whether the impugned order suffers from misappreciation of fact or law?
11. The complainant had entered into hire purchase agreement with the opposite party no.1 on 19-07-2003 where under an amount of `63,000/- financed together with the service charges of `16,575/- , a total amount of `82,875/- was agreed to be repaid in 18 installments, `4,975/- in the first installment and the balance 17 installments @ `4,100/- per month. The appellant disputed its relationship with the complainant as the service provider and contended that it is only a debtor. It is no longer res integra and a settled law that the hirer of a vehicle is consumer within the meaning of the Section 2(1)(d) of the Consumer Protection Act.
12. The opposite party no.2 has issued receipts acknowledging the receipt of the installment amounts from the opposite party no.1.The receipts dated 27-09-2003,30-10-2003,20-12-2003,19-03-2004,25-03-2004,8-06-2004, 16-08-2004,5-11-2004, and 7-01-2005 contains the signature of the opposite party no.2. The opposite party no.1 has not denied the signature of the opposite party no.2 in the receipts and the collection of the installment amount from the complainant by the opposite party no.2 on behalf of the opposite party no.1. Under what authority the opposite party no.2 could collect the installment amount due to the opposite party no.1 is not explained by the opposite parties. If there is no express agreement between the opposite parties, it is manifest impliedly as the opposite party no.1 has consciously permitted the opposite party no.2 to collect the installments from the complainant. The receipts establish the plea of the complainant that the opposite party no.2 is the agent of the opposite party no.1.
13. The hire purchase agreement shows that an amount of `66,300/- was paid to the complainant through cheque bearing number012539 dated 19-07-2003. The savings bank account ledger placed on record pertaining to the account number 2766 complainant and issued by Sharadamba Mahila Co-operative Urban Bank Ltd shows that the complainant deposited the cheque with the Bank on 19-07-2003 and encashed the amount of `66,300/- by getting credited the amount to his account. The complainant’s contention is that the opposite party no.2 as the agent of the opposite party no.1 collected an amount of `66,300/- from him at Vijayawada and issued cheque for `51,700/- keeping with him the balance loan amount. The contention of the opposite party no.1 is that it has no concern with the transactions between the opposite party no.2 and the complainant. The complainant has stated that the amount of `16,400/- paid by him is not accounted for, by the opposite party no.1 when he pointed out the omission of the opposite party no.1 of the amount of `4,100/- paid by him. The complainant claims to have paid an amount of `98,100/-on the premise that the loan amount is `52,200/- whereas the opposite party no.1 has submitted that the complainant has paid the amount in the following manner:
Loan amount sanctioned on 19-07-2003 `66,300=00
Flat interest @15% p.a. `16,575=00
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Total `82,875=00
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Amount paid in installments till 19-03-2005 `58,100=00
Balance due ` 24, 775=00
Late payment charges ` 4,100=00
Total ` 28,875=00
Interest from 19-03-2005 to 2-10-2005 ` 3,715=00
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Total `32,590=00
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Seizure expenses ` 8,700=00
Interest from 2-10-2005 to 5-01-2006 ` 2,560=00
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Total ` 43,850=00
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Amount paid on 5-01-2006 ` 40,000=00
Balance ` 3,850=00
Interest from 5-01-2006 to 5-09-2006 ` 616=00
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Balance due as on 5-09-2006 ` 4,466=00
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14. The amount of `98,100/- said to have been paid by the complainant is admitted by the opposite party no.1 as the above mentioned particulars mentioned in the counter of the opposite party no.1 would show the payment of the amount. The question that arises for consideration is as to what is the amount due to be collected by the opposite party no.1. The loan amount as claimed by the complainant to be `52,200/- cannot be accepted as the complainant has received the cheque for `66,300/- and encahsed the cheque for the same amount on the date of issue of cheque. The complainant paying the amount to the opposite party no.2 and the opposite party no.2 making payment through cheque of `52,100/- and retaining the balance amount cannot be treated as the chain of transaction in continuation of the loan transaction. If the complainant does not the draw the amount covered under the cheque issued by the opposite party no.1 and the opposite party no.2 had withdrawn any amount out of the amount, the situation would have been different. As the complainant had drawn the amount on the date of the cheque issued by the opposite party no.1 there can be no quarrel about the quantum of loan amount.
15. A perusal of the receipts would show the dates of payment of installments by the complainant which are shown below:
Receipt number Date Amount
1. 80 27-09-2003 `5,000=00
2. 80 30-10-2003 `4,100=00
3. 85 20-12-2003 `5,000=00
4. 94 19-03-2004 `5,000=00
5. 95 25-03-2004 `5,000=00
6. 08 08-06-2004 `10000=00
7. 22 16-08-2004 `10000=00
8. 35 05-11-2004 `8,000=00
9. 49 07-01-2005 `3,0000=00
10. through bank 19-12-2005 `2,000=00
11. through bank 31-12-2005 `38,000=00
16. The particulars of the payment of the installement does not show any default on the part of the complainant except for the months of January,February,2004 which was not taken in to consideration of the opposite party no.1. The complainant had paid the amount.
17. The power of the opposite party no.1 to reposes the vehicle flows from the terms and conditions of the hire purchase agreement. The opposite party no.1 can repossess the vehicle only on default committed by the complainant in payment of the installment and after giving reasonable time to pay the defaulted amount the opposite party no.1 can exercise its power to reposes the vehicle. The opposite party no.1 had charged excessive amount and arbitrarily charged the late payment charges without specifying the clause under which it has charged the amount and the amount liable to be collected under the head ‘late payment charges’. Another fact that contributes to the negligence of the opposite party no.1 is the collection of the amount of `8,700/- towards the seizure charges which is neither substantiated nor supported by any evidence. If a lorry is taken from Medak to Vijayawada it does not require fuel more than of `2,000/- and a driver is paid an amount of `1,000/-, the total amount would not be more than `3,000/-. The opposite party no.1 has not substantiated how it could collect an amount of `8,700/- towards seizure charges and still claim an amount of `4,466=00 towards dues from the complainant.
18. The opposite party no.1 arbitrarily charged excess amount of `51,000/- towards seizure charges. It is pertinent to note the deficiency in service on the part of the opposite party no.1 in charging interest over interest as also charging interest twice. For instance interest is charged on 5.1.2005 twice. Taking into consideration of the facts and attending circumstances, we are inclined to allow the appeal and restricting the amount awarded to `15,000/-.
19. In the result the appeal is allowed modifying the order of the District Forum. The opposite party no.1 directed to pay an amount of `15,000/- to the complainant. The complaint against the opposite parytno.2 is dismissed. No costs.
MEMBER
MEMBER
Dt.26.11.2010
KMK*
