BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Monday the 22nd day of September, 2008
C.C.No. 153/06
Between:
M. Nataraju, S/o. Late Narasimhulu,
R/o.H.No.25-113, Sanjeeva Nagar, N
andyal, Kurnool District. … Complainant
Versus
M/s. Shriram Investments Limited,
Represented by its Branch Manager,
Nandyal, Kurnool District. … Opposite party
This complaint is coming on this day for orders in the presence of Sri.A.Rama Subba Reddy, Advocate, for the complainant, and Sri.P.Siva Sudharshan, Advocate, for the opposite party and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Smt. C. Preethi, Lady Member)
C.C.153/06
1. This consumer complaint of the complainant is filed U/S 12 of C.P.Act , 1986 seeking a direction on opposite parties to pay Rs.1,89,104/- with 24% interest p.a. from the date of seizer of vehicle or to pay Rs.60,896/-, Rs.30,000/- towards compensation, Rs.10,000/- towards cost and any other relief or reliefs which the complainant is entitle in the circumstances of the case.
2. The brief facts of the complainants case is that the complainant is the owner of Bajaj Tempo Zeep bearing No.AP21 C 3888 , and the opposite party provides financial assistance to the owners of the motor vehicles. The complainant approached opposite party for financial assistance of Rs.80,000/- and on 13-1-2003 the said amount was given on condition of surety and hypothecating the motor vehicle to the opposite party. The opposite party obtained signatures of complainant and surety on printed forms and issued a cheque for Rs.61,000/- only and in the registration certificate necessary endorsement of hypothecating was endorsed. The complainant agree to repay the said amount within twenty four installments from 5-2-2003. Thereafter, the complainant could not pay the installments because of unfair trade practice of opposite parties in fixing the installments. The opposite parties on 2-8-2003 seized the vehicle of the complainant and gave notice dated 7-9-2003 demanding payment all installments. The complainant paid Rs.10,000/- on 10-9-2003 and wrote a letter on 26-9-2003 assuring payment of remaining amount and requested the opposite party not a sell seized vehicle. On 30-9-2003 the complainant paid Rs.20,000/- and the opposite party acknowledged payment of Rs.30,000/- on 30-9-2003 itself and mentioning arrears Rs.12,040/- . Even though after receipt of Rs.30,000/- the opposite party did not handed over the vehicle to the complainant. On 25-1-2005 the opposite party issued a legal notice demanded the complainant to pay Rs.71,016/- with 18% interest p.a indefault the said matter will be proposed to the arbitrator. Thereafter, the complainant received notices from Sri. M. Sreedhar Rao arbitrator stating the complainant to appear before him. The complainant was astonished to know that his vehicle was sold for Rs.30,000/- by the opposite party though the value of the vehicle was Rs.2,50,000/- during that period. The complainant also came to know from the papers received from Sri. M.Sreedhar Rao the total repayment value was fixed to Rs.1,17,800/- which is payable two years i.e, 24 monthly installments. There is no notice of sale of the vehicle to the complainant and no publication for selling said vehicle nor the value of the vehicle was assessed with the help of technical persons. The alleged appointment of arbitrator is not provided in the agreement and the printed form of agreement provide for appointment of arbitrator by the owner of the vehicle and the opposite party is not the owner of the vehicle, the R.C stands in the name of the complainant . The vehicle is hypothecated to the opposite party and it is not purchased with the financial assistance by the opposite party .Hence, the opposite party cannot be called as an owner. The opposite party misusing the provisions of arbitration Act and trying to obtain award is unfair trade practice . The alleged sale of the vehicle does not bind the complainant, the value given by the opposite party to the insurance company is for Rs.2,50,000/- and after deducting the balance of Rs.60,896/- the opposite party has to pay the remaining balance to the complainant. The above action of opposite party in seizing the vehicle of the complainant made the complainant to resorted to the forum for reliefs.
3. In substantiation of their case the complainant relied on the following documents viz., (1) office copy of legal notice dated 26-9-2003 , (2) certified copy of hire purchase cum guarantee agreement , (3) certified copy of statement of claim filed before arbitrator , (4) certified copy of registered notice dated 25-1-2005 and (5) certified copy of letter dated 4-11-2003 of opposite party to complainant , besides to the sworn affidavit of the complainant in reiteration of his complaint averments and the above documents are marked as Ex.A1 to A5 for its appreciation in this case and replies to the interrogatories exchanged.
4. In pursuance to the notice of this forum as to this case of the complainant the opposite party appeared through their counsel and contested the case by filling written version.
5. The opposite party denies the complaint as not maintainable either in law or on facts but admits that they provided financial assistance of Rs.80,000/- to the complainant . The complainant before taking the loan from opposite party accepted all the conditions of the opposite parties and also executed an agreement in favour of opposite party. As per the said agreement if the complainant failed to repay the installment amount on the due date the opposite party is entitled to repossess the vehicle and dispose the same for realization of the amount under the contract. As the complainant fell due to several installments and also failed to keep up the promise of prompt payment. The opposite party repossessed the vehicle of the complainant as per the agreement. The complainant is a chronic defaulter and no single paisa was paid towards the financial amount. In the terms of hire purchase agreement all disputes arising under the agreement shall be referred to the sole arbitrator and the opposite party filed the Arbitration Application before Sri. M. Sreedhar Rao and the case is now at trial stage . The complainant filed this complaint before the forum only to drag on the matter before the Arbitrator. Hence, this forum is no jurisdiction to entertain this matter and the complainant filed this vexatious complaint in violation of terms of agreement . As the matter is already pending before the Arbitrator on same cause of action , hence , the principle of resubjudice applies . The opposite party sold the vehicle for Rs.30,000/- to Mr. Ghouse-Le-Azam and a payment voucher was issued and adjusted the said amount to the complainants account and after deducting the sale amount from principle and for balance amount the opposite party filed and Arbitration Application. The complainant did not pay Rs.30,000/- as alleged in the complaint and the said amount was paid by the Mr. Ghouse-Le-Azam and the amount was adjusted in complainants ledger account and lastly seeks for the dismissal of complaint with costs.
6. In support of their case the opposite party relied on the following documents viz., (1) office copy of payment voucher dated 20-1-2003 for Rs.69,920/- , (2) office copy of payment voucher dated 20-1-2003 towards insurance office for RS.10,080/- , (3) office copy of receipt dated 3-9-2003 for Rs.10,000/- , (4) office copy of receipt dated 30-9-2003 for Rs.20,000/- , (5) certified copy of extract statement of account M. Nagaraju with opposite party , (6) certified copy of legal notice dted 21-2-2005 , (7) certified copy of letter of complainant dated 26-9-2003 to opposite party , (8) certified copy of legal notice dated 7-9—2003 to complainant , (9) certified copy of letter dated 30-9-2003 to opposite party , (10) letter dated 5-8-2003 to complainant , (11) defence statement filed by complainant before arbitrator , besides to the deposition of R.W 1 and Ex.X1 and X2 and the sworn affidavit of complaint in reiteration of his written version averments and the above documents are marked as EX.B1 to B11 for its appreciation in this case and replies to the interrogatories exchanged.
7. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service ?.
8. The admitted facts of the case are that the complainant had entered into an agreement with the opposite party and availed loan. The complainant alleges that he was sanctioned Rs.69,920/- only towards loan amount but the opposite party submits that the loan amount sanctioned to the complainant was Rs.80,000/- , Rs.69,920/- was paid to the hirer i.e. the complainant Maddala Nataraju on 20-1-2003 vide Ex.B1 and Rs.10,080/- was paid to the insurance on behalf of complainant on 20-1-2003 vide Ex.B2. Hence, from the above it is clear that Rs.80,000/- was sanctioned by the opposite party towards loan amount to the complainant and the said sanctioned loan amount was repayable in 24 monthly installments. Thereafter, the complainant did not repay any installment amounts to the opposite party, hence the opposite party seized the vehicle on 2-8-2003 and issued notice dated 7-9-2003 vide Ex.B8 demanding for repayment of installments immediately. The complainant alleges that he paid Rs.10,000/- on 10-9-2003 and Rs.20,000/- on 30-9-2003 after receipt of Ex.B8 letter of opposite party. In the Ex.B8 notice of opposite party dated 7-9-2003 addressed to complainant, it was made known that it the due installments are not paid within 15 days the sale of seized vehicle will be made after complying due formalities. When the said contends are true there will not be any possibility for holding the sale of seized vehicle before to 22-9-2003 . When such is the case there appears any truth in the alleged sale of seized vehicle by 3-9-2003 as per RW.1i.e., before to the issual of notice in Ex.8 . When the said sale dated 3-9-2003 is highly doubtful on the basis of Ex.B8 there appears any possibility or probability or necessity of M. Ghouse Le Azam (RW.1) to make any payment on his own behalf under Ex.X1 dated 3-9-2003 and X2 dated 30-9-2003. When there is no possibility or probability or necessity to the RW.1 to make said payment in Ex.X1 and X2 , in the absence of any material as to the auction sale itself, the Ex.X1 and X2 necessarily remains as evidence of the fact of payments made by the complainant as alleged . In the said circumstances the Ex.X1 and X2 in the present form with interpolations appear to have been fabricated by the opposite party with the connavance of RW.1 to suit the needs of the case in consistence to their own document i.e, Ex.B8 . In view of contends of Ex.B8, there is more possibility and probability only to the complainant to make the payments on 3-9-2003 and 30-9-2003 vide Ex.X1 and X2 towards the due installments as those amounts were acknowledged vide ExA5 to the credit of the complainants account.
9. The Ex.A1/B7 is the reply letter of complainant dated 26-9-2003 to the legal notice of the opposite parties dated 7-9-2003 (Ex.B8) . Where in the complainant request the opposite party to grant 15 days time for payment of total installments, the said Ex.A1/B7 was not replied by the opposite party. Hence, what appears is that the opposite party even though received letter vide Ex.A1/B7 dated 26-9-2003 did not choose to reply or to inform the complainant that his vehicle was already sold on 3-9-2003 auction to Ghouse-Le_Azam. If that contention is true the opposite party would definitely replied to Ex..A1/B7 letter to the complainant stating his seized vehicle was sold in auction on 3-9-2003 itself. More so, there is no averments in the written version as to the date on which the auction was held, how many bidders have participated and on what date they have issued any paper publication to conduct open auction. The RW.1 in his evidence stated that auction was held on 3-9-2003, except in the evidence of RW.1 no where the opposite party stated on which date the auction was held . Hence, from the above what remains clear is that no auction was held on 3-9-2003 and plea of auction taken by opposite party is only to suit the needs of the case. When the sale of seized vehicle of the complainant in auction is not proved by opposite party by placing any relevant cogent material it cannot be said that the complainants vehicle was sold in auction. Hence, the plea of opposite party that the complainants seized vehicle was sold in auction is rejected as untenable and cannot be acted upon.
10. The counsel for complainant strongly contended that in the Ex.A3 claim statement filed before the Arbitrator at para 6 , it was mentioned that cause of action aroused for the opposite parties to approach an Arbitrator on 30-9-2003 when the vehicle was sold. When the complainants vehicle was sold to the highest bidder in an open auction on 30-9-2003 then what is the necessity for the opposite party to receive the part of auction amount of Rs.10,000/- on 3-9-2003 itself vide Ex.X1/B3 dated 3-9-2003. This query was not property answered by the opposite parties side. Hence from the above it is clear that the opposite parties utterly failed to prove that auction to the complainants vehicle was held on 30-9-2003.
11. As this forum cannot sit on the judgment of Arbitrator, the documents appreciated there in, Ex.A2 certified copy hire purchase cum guarantee agreement, Ex.A3 certified copy of statement of claim filed before arbitrator, Ex.A4 certified copy of registered notice dated 25-1-2005, Ex.A5 certified copy of letter dated 4-11-2003 of opposite party to complainant, Ex.B5 certified copy of extract statement of account of M. Nagaraju, Ex.B6 certified copy of legal notice dated 21-2-2005 of complainant to opposite party, Ex.B9 certified copy of letter dated 30-9-2003 to opposite party, Ex.B11 defence statement filed by complainant before the arbitrator, are not taken for any further appreciation in this matter.
12. The Ex.B10 is the letter dated 11-8-2003 of complainant to opposite party where in the complainant seeks time of 10 days for payment of loan amount.
13. The other contention of opposite party is that for recovery of balance amount from the complainant, the opposite party referred the matter to Arbitrator as there is clause in the agreement entered by opposite party and complainant. The opposite party alleges that when the matter is pending before the arbitrator , the complainant cannot resort to the forum for relief and relied on the decision of National Commission between S.Balwant Singh Vs. Kanpur Development Authority, reported in, III 2007 CPJ Pg 425, . Where in, it was held that no complaint against the Order of the Arbitrator can be filed before a Consumer Forum. But in this present case on hand the complainant approached Consumer Forum not on the order of the Arbitrator. Hence, the cited decision has no relevancy to this case.
14. On the other hand the complainant submitted that he can approach a Consumer Forum and relied on the decision of Supreme Court between Fair Air Engineers Private Limited and another Vs. NK.Modi, reported in, 1996 ( R) Supreme Court cases Pg.383, where in, it was held that provisions of Consumer Protection Act are in addition to and not in derogation of any other law including Arbitration Act. The other decision relied by complainant is that of National Commission between Shridevi Hospital and Shridevi Diagnostic and Research Centre and another Vs.P.Subbaih, reported in ,(1) 2007 CPJ Pg.303, where in it was held that Consumer Protection Act is an additional remedy. Relying on the supra stated decisions, it is clear that the provisions of Consumer Protection Act are to be constrained widely to give effect to the object and purpose of the Act. The Act intends to secure in expensive and expeditious consumer service. Section 3 envisages that the provisions of the Act are in addition to and are not in derogation to any other Law in force, therefore, it would be appropriate that the forums created under the Act are at liberty to proceed with the matter in accordance with the provisions of the Act. Nonetheless the Consumer Protection Act provides an additional remedy. Hence, this complaint of the complainant can be decided by this District Forum.
15. To sum up, the above discussions, the opposite party miserablely failed to prove that seized vehicle of the complainant was sold in an open auction, there is nothing on record to show that when the auction was conducted and nothing mentioned in the written version averments of opposite party that on which date the auction was held, whether any publicity was given for said auction or not. In the absence of any supporting cogent material to substantiate that auction was held, it cannot be said that the complainants vehicle was sold in open auction. If any auction was held the opposite party should follow rules of auction records to be prepared with bidders names and bids , final bid made, the opposite party should have these records in their possession. Failure to produce such record without any explanation would be an adverse inference.
16. When the auction itself was not proved by the opposite party and as it was already held that the complainants vehicle was not sold in an open auction by opposite party. The decisions relied by the complainant and opposite party reported in 2007 (II) CPJ 269 (NC) III 2006 CPJ 250 (NC), III 2006 CPJ 251 (NC), III 2006 CPJ 247 (NC),I 2006 CPJ 614 (Rajasthan) , II 2007 CPJ 92 (NC), IV 2006 CPJ 309 (West Bengal) ,II 2005 CPJ 491 (Gujarat), 2008(1) CPJ 441 (NC) , 2007 (II) CPJ 269 (N) , 2007 (II) CPJ 25 (SC) , 2006 (5) SCC 727 , 2007 (III) CPJ 161(NC), 2007 (1) CPJ Pg.303, 1966 AIR Pg.1178, 2006, (1) CPJ Pg.46, 2007 (1) CPJ Pg.200, 2003 (1) ALT Pg.22 (NC), 2003 (1) Pg.596, (Kerala SCDRC) , 2005 (2) CPJ 327, 2005 Supreme Court 618 , 1995 CPJ 524 Tamilnadu , 1995 CPJ 58 NC , II 2007 CPJ 325 (NC), II 2007 CPJ 41 (SC) , II 2007 CPJ 45 (SC) has little relevancy for its appreciation in this case. Hence, the complainant is perfectly remaining entitled for the reliefs sought as it is proved supra that there is deficiency of service on part of opposite party in not releasing the vehicle to the complainant.
17. In the result, the complainant is directed to pay immediately to opposite party Rs.69,896/- and there the opposite party to return to the complainant the seized vehicle bearing No.AP 21 C 3888. The opposite party shall also pay to the complainant an amount of Rs.10,000/- as compensation and Rs.5,000/- as costs. In default the opposite party shall pay the amount of Rs. 1,89,104/- with interest at 12% from the date of default till realization along with compensation and costs awarded. Time for compliance of the above award is one month from the date of receipt of this order.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 22nd September, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :
RW.1 Deposition of RW.1 dated 15- 5-2007 (Ghouse-Le-Azam)
List of exhibits marked for the complainant:-
Ex.A1. Office copy of legal notice, dated 26-9-2003.
Ex.A2. Certified copy of Hire Purchase – Cum Guarantee Agreement.
Ex.A3. Certified copy of statement of claim filed before arbitrator.
Ex.A4. Certified copy of registered notice, dated 25-1-2005.
Ex.A5. Certified copy of letter, dated 4-11-2003 of opposite party
to complainant .
List of exhibits marked for the opposite parties:
Ex.B1. Office copy of payment voucher dated 20-1-2003 envisaging payment of Rs.69,920/-.
Ex.B2. payment voucher, dated 20-1-2003 paid to insurance office Rs.10,080/- for complainant.
Ex.B3. Office copy of receipt, dated 3-9-2003 as to receipt of Rs.10,000/-.
Ex.B4. Office copy of receipt, dated 30-9-2003 for receipt of Rs.20,000/-.
Ex.B5. Certified copy of extract statement of acknowledgement of
M. Nataraju with opposite party.
Ex.B6. Certified copy of legal notice, dated 21-2-2005 issued for complainant to the opposite party.
Ex.B7. Certified copy of letter of complainant, dated 26-9-2003 addressed to opposite party .
Ex.B8. Certified copy of legal notice ,dated 7-9-2003 addressed to complainant.
Ex.B9. Certified copy of letter, dated 30-9-2003 addressed to OP.
Ex.B10. Letter, dated 5-8-2003 from complainant in response to its letter.
Ex.B11. Defense statement filed by complainant.
Ex.X1. Receipt , dated 3-9-2003 for Rs.10,000/-.
Ex.X2. Receipt, dated 30-9-2003 for Rs.20,000/-.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
