This C.D coming on before us for final hearing, on 15-10-2007 the complainant appeared in person and in the presence of Sri. D.Madhu, Advocate for the opposite party ;on perusing the material papers on record; upon hearing arguments, and having stood over for consideration, this Forum passed the following:-
ORDER
(Per Sri.K.V.Kaladhar, Member )
1. This complaint is filed under section 12(1) (a) of the Consumer Protection Act, 1986 with the following averments;
2. The brief facts of the complaint are that the complainant owner of Ashok Leyland Bus bearing Registration No.AP24U 4949 and being induced by the representations of the opposite party, requested the opposite party to advance a sum of Rs.3,00,000/-, was given by opposite party to the complainant. This loan amount has to be repaid in 12 monthly installments @ Rs.26,950/- which is including of interest. That the complainant paid total
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installments amount along with the interest by 21-08-2006. Soon after receipt of the entire installments the opposite party ought to have returned the contract termination papers and ought to have issue no objection certificate to her enabling the complainant to get the release of hypothecation and relevant documents for canceling the hypothecation endorsement. But the opposite party has not supplied those documents.
3. The complainant being the self employee was plying the bus to the APSRTC under the Hire Agreement. The complainant is earning the hire charges and thereby the complainant making the payment of installments. The agreement with APSRTC was completed on 23-05-2006. Because of non-supply of the necessary documents by opposite party the complainant surrendered the vehicle to the concerned RTA and that the concerned RTA put the vehicle in a stoppage condition with effect from 19-5-2006. When the complainant paid entire installments the cost of the bus is ranging at Rs.6,00,000/- and when the bus constrained to put in stoppage condition because of the non supply of the documents the bus has fetch a great depreciation and now it is costing only Rs.4,00,000/-. Hence the complainant sustained huge loss of Rs.2,00,000/-.
4. The complainant alone is unable to maintain the bus, the complainant given a special power of attorney to one Mr.Bolli Bikshapathi for maintenance of the bus. The said Bolli Bikshapathi is no way concerned with the owner ship of the bus he filed O.S.No.127 of 2006 on the file of Senior Civil Judge, Khammam. The complainant is one of the defendant and opposite party as defendant No.3 in that suit. The opposite party with an intention to cause great inconvenience to the complainant and colluded with said Bolli Bikshapathi has directly deposited all the documents before the Hon’ble Senior Civil Judge Court at Khammam in O.S.No.127/2006 vide Memo dated 27-12-06.
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5. That the opposite party intentionally kept the documents for a period of 4 months with them for causing inconvenience to the complainant and it amounts to unfair trade practice. The complainant addressed a letter dated 9-3-2007 to the opposite party to supply all the relevant documents but having received the notice the opposite party did not respond. Hence this complaint to direct the opposite party.
- To return the documents such as the contract termination papers including the NOC for canceling the Hypothecation Endorsement immediately to the complainant.
- To reimburse a sum of Rs.2,00,000/- towards the loss due to depreciation of the bus occurred due to non supply of the said documents.
- To pay a sum of Rs.1,00,000/- towards compensation for mental agony, hardship and serious inconvenience.
- To pay a cost of Rs.20,000/- and pass such and further orders under the circumstances of the case.
6. The complainant filed her verified affidavit along with the complaint. The complainant filed the following documents.
(1) xerox copy of certificate registration issued by transport department infavour of complainant with regard to the bus No.AP 24U 4949 date of registration, dated11-5-01. (ii) A letter addressed to the complainant by opposite party, dated 17-6-05 regarding the payment particulars by complainant to the opposite party (iii) Hire purchase contract between the complainant and opposite party dated 30-6-05 with terms and conditions. (iv) xerox copy of letter addressed to the RTA, Khammam by the complainant, dated 19-5-06 (v) Courier receipt No.63749, dated 19-5-06 (vi)xerox copy of memo filed by the opposite party in the court of Senior Civil Judge at Khammam in O.S.No.127/06, dated 27-12-06 (vii) Statement of transactions of the complainant from the period from 1-4-05 to 27-2-07.(viii) Letter addressed to the opposite party by the complainant ,dated
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9-3-07 with courier receipt of D.T.D.C. dated 10-3-07acknowledgement by opposite party dated 10-3-07. (ix) xerox copy of special power of attorney in favour of (i) Bolli Bikshapathi by the complainant, dated 6-10-05 (x) Letter addressed to the SI, Khammam II town by the complainant, dated 23-5-06 (xi) xerox copy of courier receipts.
7. The complainant also filed her evidence affidavit and also filed written arguments.
8. The opposite party filed the following counter: The complainant has filed this complaint with all false and baseless allegations to cause wrongful loss to this opposite party. The complaint is not maintainable either at law or on facts. The present complaint against this opposite party is itself an abuse of process of the court and the same is not maintainable. This opposite party submits that admittedly the complainant has taken the vehicle on hire purchase for commercial purposes and therefore cannot be a “consumer” as defined under the Provisions of the Act. As per clause 15 of the Hire Purchase Agreement, any dispute/difference arising out this loan agreement have to be decided by the arbitrator, as such the complainant claiming compensation against this opposite party is not maintainable. This complaint is not maintainable because there is no consumer relationship between the complainant and the opposite party. As the complainant is a hirer and opposite party is an owner. The complaint lacks merits and liable to be dismissed. The complainant has filed the present complaint to circumvent the Law and the orders passed by the Hon’ble Senior Civil Judge, Khammam. A suit regarding the ownership of vehicle is pending at the Hon’ble Senior Civil Judge at Khammam vide O.S.No.127/2006 filed by one Bolli Bixapathi. Hence this complaint is subjudice. The opposite party has admittedly deposited all the documents before the Hon’ble Court in which she is also one of the defendant. The complainant being party to those proceedings
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ought to have sought permission from the Hon’ble court to return the documents to her, if she is otherwise eligible for the same by producing relevant material before the Hon’ble Senior Civil Judge at Khammam.
9. The opposite party submit the fact that the Hon’ble Senior Civil Judge, Khammam has granted interim injunction in favour of the plaintiff therein and against the complainant and this opposite party from interfering with his peaceful enjoyment of the bus bearing No.AP 24 U 4949. This opposite party reliably learnt that the same is also confirmed in favour of the plaintiff and the vehicle is still in continuous possession and peaceful enjoyment of plaintiff there in. When the possession of the vehicle is with a third party, to whom the complainant has sold the vehicle, filing of the present complaint for compensation and deficiency of service is only to harass this opposite party and to cause wrongful loss to the opposite party.
10. The other allegations of the complaint, the complainant has put to strict proof of the same.
11. Hence the Hon’ble Forum may be pleased to dismiss the complaint with exemplorary costs as the same is devoid of merits.
12. The opposite party filed certified copy of order in I.A.No.422/06 in O.S.No.127/06 on the file of Senior Civil Judge at Khammam dated 30-11-06.
13. The point for consideration whether the complainant is entitled as prayed for?
14. The following are the admitted facts.
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15. The opposite party advance a sum of Rs.3,00,000/- under the hire purchase scheme to the complainant for the Ashok Leyland Bus bearing Regn.No. AP 24U 4949 and the said loan amount has to be paid in 12 monthly installments commencing from 10-7-05 and the last installment payable on 10-6-2006.
16. The complainant paid the entire installments on 21-08-2006.
17. That one Bolli Bikshapathi filed a case O.S.No.127/06 on the file of Senior Civil Judge, Khammam against the complainant here in and opposite party also.
18. That the Hon’ble Senior Civil Judge, granted injunction infavour of Bolli Bikshapathi against the complaint vide I.A.No.422/06 in O.S.No.127/06 on 30-11-06.
19. It is the main contention of the complainant that she had paid the entire installments on 21-08-2006 but the opposite party did not return the contract termination papers and no objection certificate. Because of this the complaint sustained huge loss of Rs.2,00,000/-.
20. For which the contention of the opposite party is that one Bolli Bikshapathi filed a case in Senior Civil Judge at Khammam vide O.S.No.127/06 and the said Bikshapathi obtained injunction orders. The opposite party deposited all the documents pertaining to the contract before the Hon’ble court. To prove his contention the complaint filed certified copy of order in I.A.No.422/06 in O.S.No.127/06 on the file of Senior Civil Judge at Khammam, dated 30-11-06. The complainant also filed xerox copy of memo filed by the opposite party in the court of senior civil judge at Khammam in which it is mentioned that he filed entire documents such as contract termination papers and no objection certificate etc.
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21. Admittedly the complainant had given special power of attorney to the one Bikshapathi to run the above said bus. Taking advantage of that special power of attorney Bolli Bikshapathi filed a suit for declaration of the title over bus before the Hon’ble Senior Civil Judge at Khammam and obtained injunction orders.
22. Hence, we are of the opinion that when a case is pending before the Senior Civil Judge at Khammam in O.S.No.127/06 the present complaint is not maintainable. Hence the complaint is liable to be dismissed. Accordingly this C.C. is dismissed. The point is answered accordingly against the complainant.
9. In the result the C.C. is dismissed. No costs.
Dictated to Stenographer transcribed by her, Corrected and pronounced by us, in this Forum on this 24th day of October, 2007.
President Member Member
District Consumers Forum, Khammam
APPENDIX OF EVIDENCE
WITNESS EXAMINED FOR
Complainant Opposite parties
Nil Nil
DOCUMENTS MARKED FOR
Complainant
Nil Opposite parties
Nil
President Member Member District Consumers Forum, Khammam
