Punjab

StateCommission

FA/12/545

Smarti Soni - Complainant(s)

Versus

M/s Shri Ram Transport Finance Company Ltd. - Opp.Party(s)

Bikramjit Arora

14 Aug 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.545 of 2012

 

 

                                                          Date of Institution: 03.05.2012      

                                                          Date of Decision : 14.08.2015

 

Sh. Smarti Soni S/o Sh. Kewal Mohan Soni R/o H.No.Gali No.2, Tehsilpura, Amritsar.                                                                                                                                                                                                                                                                                                                                                                 ..Appellant/Complainant

                                               

                                      Versus

 

M/s Shri Ram Transport Finance Company Ltd., having its Branch Office at Opposite Kanayha Market, Ram Talai Amritsar through its Authorized Signatory/Manager/Principal Officer.

 

 

 

                                                          … Respondent/Opposite Party

 

 

First Appeal against order dated 09.04.2012 passed by the District Consumer Disputes Redressal Forum, Sri Amritsar

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant              :         Sh.Bikramjit Arora, Advocate  

          For the respondent          :         Sh. Manish Kumar, Advocate

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondent of this appeal (the opposite party in the complaint), challenging order dated 09.04.2012 of District Consumer Disputes Redressal Forum Amritsar, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant in this appeal.

2.      The complainant Sh.Smarti Soni has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP, on the averments that he along with his father carry on the business of the transport of goods from one place to another to earn their livelihood. OP No.1 is finance company carrying on the business of finance with its branch office at Ladowali Road Jalandhar and also at opposite Kanaya Market Ram Talai Amritsar and conducts its business through its branch office. The complainant purchased truck bearing no.RJ-13-IG-1129 in the year 2008 with the financial assistance of Rs.2,25,000/- from the OP to earn his livelihood. The above truck was financed by OP to one Jasbir Singh, who defaulted in making payment of due installments and consequently said truck was re-possessed by the OP from said Jasbir Singh. Truck was sold by OP to complainant and complainant paid Rs.20,000/- to OP at that time against receipt and this amount was duly adjusted by OP towards account of Jasbir Singh previous owner of said truck. OP obtained signatures of the complainant in various printed forms, stamped papers, letters, agreements, blank papers and also obtained blank signed cheques from the complainant, as security. The complainant used to ply the said truck on the road for earning his livelihood exclusively and for his family and has been regularly making payments of the installments in that regard. The complainant has paid Rs.2,34,100/- against receipt to OP in this regard. The payments were made by complainant and sometime by his father and sometime by driver on behalf of the complainant against receipts to OP without any fault towards the loan amount of the truck. The complainant has paid Rs.2,34,000/- to OP, which was more than the financed amount advanced by OP to the complainant. The OP has not been supplying the statement of account to complainant. OP threatened the complainant to pay a sum of more than Rs.1,80,000/- without any legal right thereto. The complainant requested the officials of the OP not to raise such illegal demand and not to break the law. The officials of OP succeeded in re-possessing it by snatching the said truck and complainant thereby was deprived of earning his livelihood for himself and his family. No show cause notice  was issued to complainant by the OP till now. The complainant has, thus, filed the present complaint against OP directing them to pay Rs.1 lac as compensation to complainant, besides Rs.11,000/- as counsel fee and Rs.5,000/- as litigation expenses. The complainant has also prayed that the OP be directed not to forcibly take away custody of the truck bearing no. RJ-13-IG-1129 from the complainant in any manner.

3.      Upon notice, OP appeared and filed the written reply by raising preliminary objections that complaint is without any cause of action. It was further pleaded that complainant approached OP for financial assistance to purchase the truck bearing no. RJ-13-IG-1129 make Ashok Layland-909, which had been re-possessed by the OP from one Jasbir Singh on account of default in repayment of the loan amount. The complainant offered to pay Rs.2,25,000/- for said truck and needed further financial assistance from the OP, which was approved by the OP, vide loan agreement no.TSLAMRIT0000623 for the amount of Rs.2,25,000/-. The complainant executed Loan cum Hypothecation Agreement on 06.08.2008 and also agreed to pay back the said amount of Rs.2,25,000/- in 35 equal installments along with interest @ 12.43% per annum and installments of the payment of loan amount would commence from 06.08.2008 till 10.06.2011. The total interest amount being Rs.83,903/- and it was payable by the complainant in equitable monthly installments along with principal amount, as per the schedule. The complainant committed lapse in maintaining the financial discipline and the demands raised by OP from the complainant are reflected through notices 10.12.2009, 07.07.2009 and 04.01.2009. As per Clause 1.5 of the terms and conditions of the hypothecation agreement, the complainant was liable to pay installments for the repayment of the loan amount, as per the schedule. As per Clause 5 of the hypothecation agreement, default of the payment of installment or dues payable by the borrower(s) was termed, as default committed by the borrower and as per Clause 6, it is, thus, the right of the OP to repossess the vehicle in the event of default committed by the borrower to pay the loan amounts. The complainant has come to the Forum with clean hands and complainant is still in arrears of Rs.96,981/- , which he is liable to pay to OP. The complaint was also resisted by the OP even on merits on the above-referred grounds. It was pleaded on merits that complainant became irregular in making the payments of the installments to OP. It was denied that complainant paid Rs.2,34,000/- to OP, as pleaded in the complaint.  It was further pleaded that complainant has been using the vehicle for commercial purposes and is not a 'consumer' and OP prayed for dismissal of the present complaint. 

4.      The complainant tendered in evidence, the affidavit of the complainant Sh. Smarti Soni Ex.CW-1/A along with copies of the documents Ex.C-1 to Ex.C-26. As against it, OP tendered in evidence affidavit of Vikas Kumar, Branch Manager , Shri Ram Transport Company Limited Ex.R-1 along with copies of the documents Ex.R-2 to Ex.R-8. On conclusion of evidence and arguments, the District Forum, Amritsar dismissed the complaint of the complainant by virtue of order dated 09.04.2012. Dissatisfied with the order of the District Forum Amrtisar dated 09.04.2012, the complainant now appellant has preferred this appeal against the same.  

5.      We have heard learned counsel for the parties and have also examined the record of the case. The affidavit of the complainant Smarti Soni is Ex.CW-1/A in support of his averments on the record. Ex.C-1 is receipt for Rs.8000/- dated 31.08.2009 in favour of OP. The complainant relied upon receipts Ex.C-2 to Ex.C-26 on the record to contend that the act of OP in resorting to forcibly repossession of the vehicle is totally unauthorized and illegal. The OP relied upon affidavit of Vikas Kumar son of  Sh. Mahesh Kumar, Branch Manager Shri Ram Transport Finance Company Limited Ex.R-1 on the record. He reiterated the averments, as pleaded in the written reply on oath by OP in this case. Ex.R-2 is Agreement of Hypothecation and this agreement was executed between the parties and there is no dispute about this document. Ex.R-3 is Equitable Monthly Installment Schedule. Ex.R-4 is the notice sent to the complainant by OP that OP has financed the said vehicle on Hire Purchase /Loan to complainant for which addressee no.2 and 3 stood, as guarantor. This notice was for default in payment of installments of the vehicle, it stipulates that failure to deposit the said installments within 7 days, would make the company to initiate legal proceedings against the complainant. Ex.R-7 is another notice sent to complainant by OP and Ex.R-8 is another legal notice. Ex.R-9 and Ex.R-10 are the postal receipts on the record.

6.      From evaluation of the above-referred evidence on the record, it is axiomatic that complainant purchased truck bearing no. RJ-13-IG-1129 by taking the amount of Rs.2,25,000/- from OP, vide Loan- cum-Hypothecation Agreement Ex.R-2. The amount was payable in 35 equal monthly installments along with interest @ 12.43% commencing from 06.08.2008 to 10.06.2011 along with interest amounting to Rs.83,903/- , as per schedule Ex.R-3. Since complainant has not paid the installments, hence, OP served notice on the complainant in this regard vide Ex.R-4. Postal receipts Ex.R-5 and Ex.R-6. Ex.R-7 and Ex.R-8 are other notices. Ex.R-9 and Ex.R-10 are postal receipts. Vide Clause 5 of the Loan-cum-Hypothecation Agreement, it is mandatory for the complainant to pay the installments, as per schedule regularly, failing which it would be considered as default committed by the borrower and financer would be entitled to repossess the vehicle in the event of the fault committed by the borrower under Clause 6 of the Hypothecation Agreement Ex.R-2.  The complainant failed to rebut the case of the OP that amount of Rs. 96,981/- is still due from the complainant to OP. We find that the fault lies on the part of the complainant, as he violated the terms and conditions of the Loan-cum-Hypothecation Agreement Ex.R-2 by not making the payment of the loan. The loan amount on due dates by complainant is still due to OP of the loan amount, therefore, OP is within their right to take legal action against the complainant. We find no material infirmity in the findings of the District Forum to the effect that there is nothing on the record that OP ever tried to repossess the vehicle forcibly or had repossessed it in that capacity. The counsel for the complainant now appellant could not point out any illegality in the order of the District Forum Amritsar calling for any interference therein in this appeal.

7.      As a corollary of our above discussion, we affirm the order of the District Forum dated 09.04.2012 under challenge in this case by dismissing the appeal of the appellant and resultantly the complaint of the complainant is ordered to be dismissed.

8.      The appellant had deposited the amount of Rs.60,000/- with this Commission on 31.05.2012 in compliance of the order dated 09.05.2012. This amount be remitted to the respondent of the appeal being the OP in the complaint along with interest accrued thereon, if any, by the registry to the respondent/opposite party by way of a crossed cheque/demand draft after the expiry of 45 days.

9.      Arguments in this appeal were heard on 10.08.2015 and the order was reserved. Now the order be communicated to the parties

9.      The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

August 14 ,  2015.                                                         

(ravi)