Karnataka

Kolar

CC/68/2013

Sri. Shamanna, - Complainant(s)

Versus

M/s. Prerana Motors (P) Ltd., - Opp.Party(s)

A.S.Aravind Kumar

14 May 2015

ORDER

  Date of Filing:  19.12.2013

  Date of Order : 14.05.2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR

 

Dated   14^th  MAY 2015

 

PRESENT

 

Sri. N.B. KULKARNI, B.Sc., LLB,(Spl.)    …….    PRESIDENT

Sri. R. CHOWDAPPA, B.A., LLB           ……..    MEMBER

 

CC No. 68 / 2013

 

Sri. Shamanna,

S/o. Chikkavenkatarayappa,

‘A’ Ranganathapura Village,

Vijayapura Hobli,

Devanahalli Taluk,

Bangalore Rural District.

 

(By Sriyuth A.S. Arvind Kumar Adv.)                ……. Complainant

 

V/s.

 

 

 1. M/s. Prerana Motors (P) Ltd.,

No. 47, KIADB Indl. Area,

B.B. Road, NH-7,

Chikkaballapur – 562 102.

Rep. by its Regional Manager.

 

(By Sriyuth B. Kumar, Adv.)

 

2. The Manager,

Cholamandalam Investment &

Finance Co. Ltd.,

No.28/1, Kensigton Road,

Opp. Gurudwar,

Near Ulsoor Lake,

Bangalore  - 560 042.

 

(By Sriyuth C.M. Niranjanswamy, Adv.)             …… Opposite Parties

 

ORDER

 

By Sri. N.B. KULKARNI,  PRESIDENT

 

The complainant having submitted complaint under section 12 of the Consumer Protection Act 1986 has sought reliefs of issuance of directions to the Ops to return his vehilce bearing Registration No. KA-43-3076 or in the alternative to reimburse cost of the vehicle in sum of Rs.3,30,000/- with interest at the rate of 24% p.a.    And for further issuance of directions to the Ops to reimburse a sum of Rs.20,000/- as advance paid by him towards repair of the said vehicle and also for issuance of directions to the Ops to pay a sum of Rs.50,000/- for the loss suffered by him, as well, such other reliefs as deemed fit.

 

2. Earlier this complaint was preferred against the OP No.1 only.   However, records reveal that at subsequent advanced stage on 15.11.2014 the OP No.2 came to be arrayed by way of amendment to the complaint.  

 

The facts in brief:

 

3. It is contention of the complainant that, the OP No.1 is the authorized dealer for entire range of TATA vehicles – Sales – Service & Spares.   And that he did purchase from the OP No.1 TATA Ace for sum of Rs.3,30,000/- for which the OP No.2 had financed in sum of Rs.2,70,000/-.   And that the said vehicle came to be registered as noted above.   (vide document No.1)

 

a. Further he to contend that on 28.03.2012 near Safety Glass Factory near Avalahalli this vehicle met with accident and consequently was damaged.   And that on 31.01.2012 he entrusted this vehicle for repairs and replacements to the OP No.1. (vide document No.2) And that he had paid sum of Rs.20,000/- to this OP No.1 as advance amount towards repair for which there is a receipt dated 17.04.2012. (vide document No.3)

 

b. Further it is contended that he was assured by the OP No.1 that after the repair of the vehicle he would be informed to receive the same.    And that even after long time when there could be no communication he approached the OP No.1.   And that the OP No.1 informed that official of the OP No.2 had taken custody of the said vehicle.   And that this was so done without bringing it to his knowledge.   And that on 17.09.2012 he got issued notice (vide document No.4) to the OP No.1 to return the said vehicle within 15 days from the receipt of the same.   And that this notice was served on 21.09.2012.  And that OP No.1 did not reply.   

 

4. Thus, the complainant has come up with this complaint on hand to seek about set out reliefs. 

 

5. The OP No.1 has put in written version on 31.01.2014 resisting claim of the complainant in toto.    Interlia it is contended that as per principles in Laxmi Engineering Works vs. PSG Industries Institute (1995 II CPJ I (SC) as the said vehicle was goods vehicle and hence for commercial purpose otherthan self employment hence this complainant is bound to be excluded from the purview of the Act.   And that the dispute cannot be stated as Consumer Dispute.     Further, it is contended that the complaint is bad for non-joinder of necessary party being M/s. Cholamandalam Investment & Finance Co. Ltd.   And that no relief under section 14 of the Act can be granted, hence under section 26 of the Act this complaint is liable for dismissal.     Further it is contended that this Forum lacks jurisdiction in as much as the complainant has raised issues involving questions of facts and law which warrant recording of evidence and hence it shall be appropriate to be tried by Civil Court only.

 

a. It is also contended that on receiving of the said accident met vehicle for repairs on 31.03.2012 due investigation was done and cost of repair estimate came to Rs.95,707/- and that this document is vide Annexure – A.    And that on 17.04.2012the complainant had made payment of Rs.20,000/- as advance and that repair was completed by 30.04.2012.   And that the complainant was requested to take delivery of the vehicle by making payment of due balance.     And that inspite of requests repeated the complainant did not turn up to take delivery of the vehicle.  

 

b.  Further it is contended that M/s. Cholomandalam Investment Co. Ltd., being the financier (OP No.2 arrayed later) approached to take possession of the said vehicle as the loan was outstanding and that on 05.09.2012 the said financier had taken possession of the said vehicle (vide Annexure – B).    And that on 31.08.2012 this financier had executed indemnity bond and also authorization letter (vide Annexure C & D) and that the notice dated 17.09.2012 was replied (copy vide Annexure – E).  So contending dismissal of the complaint has been sought.  

 

6. The OP No.2 who was brought on record on 15.11.2014 as noted above has put in written version on 17.01.2015 resisting claim of the complainant.    It is specifically contended that it had made demand on 11.10.2011 for the outstanding dues, whereas the complainant did not respond.   And that it is within its legal limits as financier in not giving prior notice and it need not approach the Court when there is a default.     And that on 22.08.2012 it had issued notice warning the complainant of the intended seizure of the said vehicle lying with the OP No.1 for to be sold on “as is where is” basis.  And that such notices issued to the complainant and guarantor were returned with endorsement ‘addresse left, not known’.  And that on 31.08.2012 the vehicle was sold.   And that inspite of it as it had incurred loss, an arbitration case vide No. 523/2012 came  to be instituted and on 02.08.2013 award for sum of Rs.1,08,273/- came to be passed.    

 

a.  And that the present complaint is contrary to the terms of the loan cum hypothecation agreement.   And that there could be no deficiency in service.   So contending dismissal of the complaint under section 26 of the Act with compensatory costs of Rs.25,000/-. 

 

7. Both the parties have put in their affidavit evidence.    They have also submitted written arguments. 

 

a. On 16.04.2015 the Learned Counsel appearing for the complainant has submitted two receipts dated 29.10.2010 & 12.11.2010 as issued by the OP No.1 and 15 receipts as issued by the OP No.2 in respect of payment of EMI of Rs.8,400/-.   Further he has submitted two photographs to reveal that the said vehicle was so met with accident. 

 

b. On 06.05.2015 the Learned Cousel appearing for the OP No.1 has submitted xerox copies tax invoice and two receipts.

 

c. On 11.05.2015 the Learned Counsel appearing for the OP No.2 has submitted the following ten documents.

1. Notarized copy Hypothecation Agreement.

2. Legal Notice dated 17.09.2012.

3. Reply Notice dated 22.09.2012.

4. Notice dated 22.08.2012.

5. Xerox copies of postal covers.

6. Xerox copy of indemnity bond.

7. Xerox copy of authorisation letter.

8. Xerox copy of E-mail reports.

9. Xerox copy of quotations.

10. Xerox copy of sale acceptance letter dated 31.08.2012.

 

d.  The Learned Counsel appearing for the OP No.2 has submitted further written arguments with xerox copies of 14 citiations.

 

e. On 11.05.2015 heard the oral arguments as advanced by the Learned Counsel appearing for both sides.  

 

          8. Therefore, the points that do arise for our consideration in this case are:

 

(i)      Whether the Complainant could be termed as a ‘Consumer’?

 

(ii)     Whether the dispute on hand could be termed exclusively

           as Consumer Dispute only?

 

 (iii)   What Order ?

 

9.       Our findings to the above points are:

 

(i)      In the affirmative

 

(ii)     In the Negative

 

(iii)     As per final order

 

REASONS

 

10.     Point Nos. (i) & (ii) – As these points do deserve common course of discussion and to avoid repetition in reasonings, they are taken for consideration at a time. 

 

          a. It is a fact that the complainant made hire purchase of the said vehicle on being financed by the OP No.2 in sum of Rs.2,70,000/- on 23.11.2010.   It is also a fact that of the sixteen EMIs of Rs.8,400/- each as on the date of the said accident fifteen EMIs have been paid to the OP No.2.   It is also a fact that on 28.03.2012 the said vehicle was met with an accident.    It is also a fact that on 31.03.2012 the OP No.1 was entrusted with the said vehicle for effecting due repairs.   It is also a fact that the complainat on 17.04.2012 had paid sum of Rs.20,000/-.   It is also indisputable development that by executing contended indemnity bond in favour of the OP No.1, OP No.2 took custody and sold away the said vehicle on 31.08.2012.

 

          b. What is to be noted with all emphasis at this juncture is the plea of the OP No.1 in its written version.    It has contended that on 30.04.2012 the due repairs were effected and inspite of requested repeated the complainant did not turn up.    As against this, case of the complainant is that there could be no intimation of the repair work being completed of the said vehicle, whereas, the OP No.1 had surprisingly made over the said vehicle to the OP No.2, the financier.  

 

          c. Therefore, when this is the background it is needless to say that the OP No.1 was service provider and consequently the complainant was the ‘consumer’ to receive the said service.   However, in para.II D the OP No.1 has rather oversteped to contend that as per the said principles in Laxmi Engineering Works vs. PSG Industries Institute (1995 II CPJ I (SC)) the complainant since made hire purchase of the said goods vehicle he would never be consumer within the meaning of section 2(1)(d) of the Act.   Perhaps this plea ought to have been raised by the OP No.2 and at any rate the OP No.1 has no locus standi to press into service this plea.   For, the complainant had entrusted the said accident met vehicle for due repairs to this OP No.1 who had only a particular lien as a bailee to retain the said vehicle to recover the balance charges of repair i.e. of the estimated cost of sum of Rs.95,707/-, a sum of Rs.20,000/- was paid in advance whereas the dues were only in sum of Rs.75,707/-.

 

          d. But, the OP No.1 has gone far advance in handing over the said vehicle to the financier OP No.2.   For this the OP No.1 is to place reliance on the contended indemnity bond executed by the OP No.2 to it on 31.08.2012.    And at this juncture it is worth to note that e-stamp of Rs.100/- was purchased by this OP No.1 on 22.08.2012 and was signed by the Authorised Signatory of the OP No.2 at Bangalore much earlier on 24.08.2012.

 

          e. This act on the part of OP No.1 has resulted in much complications, for, there shall be questions to be addressed how and in what manner and on what dates this OP No.1 had brought to the knowledge of the complainant that the said accident met vehicle was repaired and was road worthy by 30.04.2012 as contended.    For this elaborate inquiry and recording of evidence is necessary and on this count this Forum lacks jurisdiction.    Besides, the legality of said indemnity bond and legal competence of the OP No.1 in accepting the said bond being a bailee with particular lien as noted above, and hence being accountable to the complainant, as to how and why deprived him of the very said vehicle, are to be gone into.    This also requires detailed inquiry and hence recording of evidence for which this Forum lacks jurisdiction.  

 

          f. Furthermore, there is imparative need to know why on 22.08.2012 the said e-stamp was purchased and why this indemnity bond dated 31.08.2012 was executed on behalf of the OP No.2 at Bangalore much earlier on 24.08.2012?.   It is needless to say that again this is a matter of probe to be made in detail which warrants adducing of evidence on either side, so, this Forum lacks jurisdiction which is restricted to conduct summary inquiry only.  

 

          g. Coming to the dispute between complainant and the OP No.2, it is worth to note that the Learned Counsel appearing for OP No.2 has placed reliance on II-1993 (1) CPR 392, II (2005) CPJ  491 and 1995 (3) CPR 93 by contending that the said vehicle being goods vehicle shall not be the consumer under section 2(1)(d) of the Act and the dispute being of accounts this Forum has no jurisdiction.   It is worth to note that to the knowledge of the OP No.2 the complainant made hire purchase of the said vehicle to run the same to carry goods on hire basis, which is nothing but self employment.   For, the copy of the FIR dated 29.03.2012 is to disclose that the informant Nayaz Pasha has stated that on said day said vehicle was met with an accident which was owned and driven by the present complainant.   Hence, the said principle noted in the first citation is inappliable.

 

          h. With regard to the contention that the litigation between OP No.2 and the complainant is that of accountability in accounts for the borrowed money, it is to be observed that as on the date of the accident the complainant was liable to pay 16 EMIs of which he had paid 15 EMIs and the last one was paid on 30.03.2012 i.e. two days after the accident.    Therefore, for all legal purposes the complainant has remained as a consumer vide said provisions.

 

 

i. Over and above the OP No.2 is to contend that there is arbitration award in Arbitration Case No. 523/2012 for claim of Rs.1,08,273/- that was passed on 02.08.2013 against the present complainant.   The complainant is bound to face this aspect if he desires to agitate claim against the OP No.2.   In this context the complainant is to contend before us that there could be no notice to him of the proceedings.    We are only to express at this juncture that the complainant is bound to seek suitable legal remedy and hence this and other complications involved in this case make us to reaffirm that this Forum lacks jurisdiction and it is up to the complainant to seek the remedy before competent Civil Court.

 

          j. The said Learned Counsel appearing for the OP No.2 by placing reliance on III 1992 (1) CPR 482, 1995(3) CPR 293, I (2008) CPJ 121 (NC), 2004 (2) CPR 584, 2006 CTJ 209 (SC) (CP) 209, 2012(4) CPR 75 (NC), 2012 (3) CPR 89, Appeal No. 120/10, dated 12.01.2011 of the Hon’ble Karnataka State Commission, II (2005) CPJ 491, 2011(3) CPR 113 (NC) & Order dated 02.03.2013 in C.C. 81/2012 passed by then Learned Predecessor of this Forum contended that the OP No.2 being the financier has legal right to seize the vehicle even without prior notice to the complainant.     The principles upholding such rights cannot be disputed.   However, here is a case where under the disputed document the legality of which is challenged the OP No.2 has taken vehicle from the custody of OP No.1.   As noted above e-stamp for indemnity bond was purchased by the OP No.1 on 22.08.2012 and was signed by the authorized signatory of the OP No.2 on 24.08.2012, whereas the said document purportingly is dated as on 31.08.2012.    And this has been accepted and acted upon by the OP No.1.   The complainant before us facing set back because of this questioned document has come forward to seek relief.    Needless to say the doubtful circustances surrounding this document, and even otherwise legal competence of the OP No.1 as a particular bailee for the complainant, to accept the said bond that resulted in handing over of the said vehicle do warrant detailed probe and hence evidence.    We are mindful that under the Act our jurisdiction is limited to summary inquiry, whereas the said complications involved in this case on facts and law force us to direct the complainant to approach the appropriate Civil Court to seek the remedy in his own better interest. 

 

Hence, affirmative finding on point (i) & negative finding on point (ii).

 

11.     Point No. (iii) –  In the result, we proceed to pass the following order:

 

ORDER

 

1. The complaint is dismissed with a direction for both the parties to bear their own costs, with a further direction to the complainant to seek remedies before appropriate Civil Court.

 

 

2. Send free copy of this order to both the parties.

 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, the 14^th May 2015).

 

 

 

 

           MEMBER                                         PRESIDENT