Date of filing: 20.7.2012.

Date of disposal: 21.12.2012.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:

VIJAYAWADA, KRISHNA DISTRICT

Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT

SMT N. TRIPURA SUNDARI, B. COM., B. L., MEMBER.

FRIDAY, THE 21st DAY OF DECEMBER, 2012

C.C.No.126 of 2012

Between:

Chagantipati Srinivasa Rao, S/o Anjaneyulu, Hindu, 40 years, R/o D.No.1-129, Saibaba Temple Road, Ramavarappadu, Vijayawada.

. … Complainant.

AND

1. M/s Cholamandalam Investment & Finance Co., Ltd., Rep., by its Authorized Signatory, Near Buckinghampet Post Office, Vijayawada.

2. M/s Cholamandalam Investment & Finance Company Limited, Rep., by its Authorized Signatory, Dare House, No.2, N.S.C.Bose Road, Parrys, Chennai – 600 001.

. … Opposite Parties.

This complaint coming on before the Forum for final hearing on 07.12.2012, in the presence of Sri K.Kishore Kumar, Counsel for complainant and of Sri G.Rajesh Kumar, Counsel for opposite parties 1 and 2 , and upon perusing the material available on record, this Forum delivers the following:

O R D E R

(Delivered by Hon’ble President Sri A. M. L. Narasimha Rao)

1. This complaint is filed for a direction to the opposite parties 1 and 2 to pay Rs.1,00,000/- towards cost of the vehicle under hypothecation, to pay Rs.50,000/- towards compensation, to pay Rs.49,000/- for illegal operation of the vehicle without canceling registration, to furnish fair auction particulars with details of bidders and to pay costs.

2. The averments of the complaint in brief are as follows:

The complainant had purchased an Auto Rickshaw, a Cargo Goods Vehicle bearing No.AP 16 TB 0987 for his self-employment for a price of Rs.1,47,000/- from the 3rd opposite party dealer. The complainant paid margin money of Rs.37,270/- and the balance amount of Rs.1,13,000/- was financed by the 1st opposite party the branch office of the 2nd opposite party under loan agreement. The complainant paid Rs.4,365/- towards the 1st installment of loan repayment. The complainant had to pay installments on the same basis. The complainant paid 18 installments and later fell due in payment of installments due to adverse situation and non availability of work. The representatives of the 1st opposite party promised to grant time for payment of installments due. The representatives of the 1st opposite party did not turn up for collecting EMIs. Without any notice of default the representatives of the 1st opposite party had seized the complainant’s vehicle AP 16 TB 0987 in the month of February, 2011 without intervention of Court. The 1st opposite party had issued a notice dated 07- 03-2011 to the complainant and to the guarantor and then the complainant approached the 1st opposite party and asked him either to grant time for payment of installments due or to sell the Auto as per the assessment by the licensed surveyor. The value of the vehicle is higher than the amount due. It has insurance coverage. The complainant approached the 1st opposite party several times offering to pay the amount under balance due installments and requested time and he also stated that some known persons are intending to purchase the vehicle. The 1st opposite party did not oblige for the proposal made by the complainant. The complainant received a notice dated 28-06- 2011 from the head office of the 2nd opposite party stating that the vehicle was sold for Rs.40,000/- and there was still a sum of Rs.46,576/- due. The vehicle was in good condition and the market value of the vehicle was more than Rs.1,00,000/-. The 1st opposite party caused loss to the complainant by the alleged sale for low price and thus the 1st opposite party committed act of deficiency. As there is deficiency in service from the opposite parties the complainant filed CC.No.303/2011 in this Forum against opposite parties 1 and 2 and against dealer and RTA. That complaint was disposed ofon 31.5.2012. The complainant was given liberty to file fresh complaint with correct particulars. Now he filed documents. The documents filed by the 1st and 2nd opposite party in the earlier CC are not correct. They have no evidentiary value. Recourse exercise for implementation of the seizure of the vehicle and auction sale are opposed to law and guidelines issued by RBI and rulings of Apex Court. The vehicle was seized on 31.3.2011 and sold on 27.5.2011. The vehicle was not transferred in the name of the purchaser. It is still in the name of the complainant. The vehicle is being used unauthorizedly by the opposite parties. The vehicle is lying without following the procedure under M.V.Act. In case of any negligence committed by the purchaser as the driver the complainant is liable for the consequences as he is still the registered owner of the vehicle according to RTA records. The opposite parties are claiming interest for entire loan period instead of upto 31.3.2011 the date of seizure of the vehicle.

3. The opposite parties 1 and 2 filed their written version generally denying the allegations made in the complaint and further stating as follows:

The complainant earlier filed the complaint before this Forum in CC.303/2011 on the same set of facts as mentioned in the present complaint. This Forum passed an Order in that CC finding that the opposite parties had a right to sell the vehicle that there was no force in seizing the vehicle and that there is no deficiency in service in selling the vehicle. The earlier matter was decided on merits and the complaint was dismissed. The present complaint is a duplicate of the former complaint. The matter in the present complaint has been directly and substantially in issue in the former complaint in CC.No.303/2011 and therefore this complaint is hit by Section 11 of CPC and doctrine of resjudicata and therefore the present complaint is not maintainable.

4. The complainant filed his affidavit as deposition of P.W.1 and he marked Exs.A.1 to Ex.A.18. The opposite parties filed the affidavit of the Assistant Manager Legal of the opposite parties as deposition of D.W.1. No documents are marked on behalf of the opposite parties.

5. Heard arguments advanced by the learned counsel for both the parties.

6. The points for determination are:

1. Whether this complaint is hit by the principles of resjudicata and if the complainant is not maintainable?

2. Whether there is deficiency in service on the part of the opposite parties?

3. Whether the complainant is entitled to the reliefs as prayed for?

POINT No.1:-

7. The complainant filed CC 303/2011 in respect of the loan taken from the opposite parties 1 and 2 for purchase of a cargo van namely Ape Pickup Van. The opposite parties 1 and 2 had seized the vehicle and sold the vehicle on the ground that the complainant who borrowed the amount, did not pay the instalments regularly and there was default in payment of instalments. In that connection CC 303.2011 was filed seeking reliefs which include a direction to the opposite parties to pay Rs.1,00,000/- towards cost of the vehicle, Rs.50,000/- towards compensation, Rs.1,00,000/- towards legal Costs and also for a direction to furnish fair auction particulars, not to transfer the vehicle to third parties. That case in CC.303.2011 was decided on 31.5.2012. The complaint was dismissed without costs. However in paragraph 16 of the order this Forum made the following observation.

“We hereby clarify that this Forum is not expressing any opinion as to the correctness and otherwise of the amounts mentioned by the 1st opposite party in its notice or the correctness of the balance amount claimed by the 1st opposite party. As already observed we are unable to decide it in the absence of the details and the terms and conditions of the agreement. As regards the amounts payable, neither party placed requisite material before this forum. We cannot readily accept the figures noted by the opposite party in Ex.A.6. Termination charges and additional finance charges are differently noted in Ex.B.2 and Ex.A.6. It is not known if the opposite parties 1 and 2 could collect such charges as per the agreement. We cannot make an incomplete statement. So we leave that question unanswered. We further feel it appropriate to give liberty to the complainant to move this Forum again if he could come with full and correct details as regards the amount actually due to the 1st and 2nd opposite parties”. The complainant filed the copy of that order and it is marked as Ex.A.15. So it cannot be said that the present complaint is totally not maintainable though the same reliefs as claimed in the earlier complaint and the points which were already decided in the earlier complaint cannot be re-agitated.

POINT No.2:-

8. As observed on Point No.1 the issue already decided cannot be reopened. It was decided by this Forum in CC.303/2011 that there was no deficiency in service as regard seizure of the vehicle, when there was no force in seizing the vehicle and in sale of the vehicle hypothecated with the opposite parties 1 and 2. It is also observed in the previous CC that merely because registration was not done the sale cannot be doubted. However it was observed in paragraph 16 that this Forum could not decide the correctness and otherwise of the amounts paid and the balance amount payable in the absence of details. The complainant was given liberty to move this Forum again if he could come forward with full and correct details as regards the amount actually due to the opposite parties 1 and 2. Now he files this complaint again for the cost of the vehicle and compensation for not moving the vehicle. The cost of the vehicle was cannot allowed as it was already covered in the earlier CC. The compensation of Rs.50,000/- is claimed for causing inconvenience and mental agony and sum of Rs.49,000/- is claimed for illegal operation of the vehicle without transferring the ownership to the purchaser. It is only on these aspects we have to see if there is deficiency in service.

9. The vehicle was sold on 25.7.2011 to some third party. From that day onwards the complainant had ceased to be the owner of the vehicle. If the vehicle was actually in use it amounts to running that vehicle in the name of the complainant without getting the vehicle transferred. The fact that the vehicle is not transferred is disclosed by a copy of vehicle registration search obtained from web site of Transport Department, Government of Andhra Pradesh on 17.7.2012 under Ex.A.17 and the show cause notice Ex.A.18 issued by the RTA Vijayawada on 11.9.2012. In Ex.A.17 the complainant is shown as owner of the vehicle AP 16 TV 0987. In the notice issued by RTA, Vijayawada under Ex.A.18 the complainant was asked to show cause why action under Section 55 of M.V. Act should not be taken as the owner has no interest to run the vehicle. It was also mentioned in Ex.A.18 that the tax was lastly paid upto 30.6.2011 and the permit and FC of the vehicle was valid upto to 27.3.2011. When the vehicle was not in use, the purchaser or atleast financier who sold the vehicle must have informed the RTA for cancellation of registration. In spite of complainant filing these documents the opposite party do not come forward to say if the vehicle was actually used by the purchaser or if RTA Department was addressed for transfer of the vehicle or cancellation of registration. The apprehension in the mind of the complainant has basis in view of Ex.A.17 and Ex.A.18. If that vehicle is running on the road and if an accident had taken place, the registered owner of the vehicle will be liable to the persons sustaining injuries due to accident or suffering damage due to accident. There cannot be any insurance to such liability. We could also infer that insurance was not taken for the vehicle since the registration is still in the name of the complainant and evidently he did not get the vehicle insured after seizure by the opposite parties.

Therefore this apprehension is real one and not an imaginary. It is the duty of the opposite parties to see that on sale of the vehicle it is transferred in the name of the purchaser. The purchaser may or may not run the vehicle but the duty to report the RTA subsists on the opposite parties. Then we feel that the failure to give such information to RTA is deficiency on the part of the opposite parties.

10. As regard the amount still claimed by the opposite parties the complainant is again silent. He made one statement in paragraph 25 of the complaint that the opposite parties are now claiming interest for the entire loan period upto 31-2-2011 i.e., date of seizure of the vehicle. He has not furnished the details of the demand made by the opposite parties subsequent to disposal of CC.303/2011. The copy of hypothecation agreement is not produced by the opposite parties. So again we are not in a position to speak anything as regards the actual amount due to the opposite parties. We cannot make assessment without all the particulars. Therefore we are unable to decide as regard the amount actually due by the complainant to the opposite parties even after sale of the vehicle. In view of the above discussion we find that there is deficiency in service on the part of the opposite parties in not getting the vehicle registered in the name of the purchaser and getting the registration transferred from his name after sale of the vehicle to the 3rd opposite party.

POINT No.3:-

11. In view of the answer on Point No.2 we feel that some compensation may be allowed to the complainant for the agony he must have suffered in not knowing what had happened to the registration of the vehicle in his name and not knowing if the vehicle is still run on the roads while the vehicle continues to be in his name in the records of RTA. We also feel it is necessary to direct the opposite parties to furnish a detailed statement of account to the complainant giving all particulars of the amount due, the amount realized by sale of the vehicle and subsequent interest if any added and ultimate claim of the opposite parties. We feel that a sum of Rs.25,000/- may be awarded towards compensation. The opposite parties may be directed to get the registration of the vehicle AP 16 TB 0987 transferred in the name of purchaser or get it cancelled.

12. In the result, this complaint is allowed in part and the opposite parties 1 and 2 are directed to pay a sum of Rs.25,000/- (Twenty five thousand rupees only) towards compensation to the complainant and to pay Rs.1,000/- (One thousand rupees only) towards costs. The opposite parties 1 and 2 are directed to get the registration of the vehicle AP 16 TB 0987 transferred in the name of the purchaser of the vehicle or to get it cancelled. The opposite parties 1 and 2 are further directed to deliver a detailed statement of account showing the amount due from the complainant the amount realized by the opposite parties by sale of the vehicle and the rate of interest charged and the amount of interest. The opposite parties shall comply with the above orders within one month from the date of receiving copy of this Order failing which the compensation amount shall carry interest @ 9% per annum from 21.1.2013. The complaint for the rest of the reliefs is dismissed.

Dictated to the Stenographer K.Sivaram Prasad, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 21st day of December, 2012.

                                              PRESIDENT                                                                                        MEMBER

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the complainant:                                                                       For the opposite parties:-

P.W.1 Ch.Srinivasa Rao,                                                             D.W.1 A.Ramanjaneyulu,

(by affidavit)                                                                                  Assistant Manager Legal

                                                                                                      OPs.1 and 2 (by affidavit)

DOCUMENTS MARKED

On behalf of the complainant:

Ex.A.1 27.03.2009 Photocopy of Tax Invoice for Rs.1,42,000/- issued by Ramcor, Vijayawada.

Ex.A.2 . . Photocopy of receipt issued by Ramcor, Vijayawada.

Ex.A.3 . . Photocopy of receipt issued by Ramcor, Vijayawada.

Ex.A.4 28.03.2009 Copy of certificate of registration of the concerned vehicle.

Ex.A.5 . . A set of photocopies of receipts issued by the 1st opposite party in the name of the complainant

Ex.A.6 07-03-2011 Notice issued by the 1st opposite party

Ex.A.7 31-03-2011 Copy of Inventory list of seized vehicle

Ex.A.8 31-03-2011 Copy of Inventory of items.

Ex.A.9 . . Coy of Pres Sale letter.

Ex.A.10 02.04.2011 Photocopy of letter from the L.C.M. Surveyors to the 1st opposite party along with photocopy of Valuation certificate. .

Ex.A.11 14.04.2011 Photocopy of letter from the 2nd opposite party to the complainant.

Ex.A.12 28.06.2011 Notice issued by the opposite parties to the complainant.

Ex.A.13 28.07.2011 Office copy of the legal notice issued by the complainant.

Ex.A.14 03.08.2011 Photocopy of Letter issued by Deputy Transport Commissioner, Vijayawada to the complainant.

Ex.A.15 31.05.2012 Photocopy of Order in CC.303 of 2011 District Consumer Forum, Vijayawada.

Ex.A.16 . . Photocopies of Warranty Manual, Free service coupons,Bunch of Retail invoice.

Ex.A.17 . . Photocopy of Vehicle Registration Search.

Ex.A.18 11.09.2012 Show cause notice issued by RTA, Vijayawada to thecomplainant.

For the opposite parties:

NIL.

PRESIDENT