D.O.F. 30.01.2008 D.O.O. 04.10.2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri. K.Gopalan : President Smt. K.P.Preethakumari : Member Smt. M.D.Jessy : Member Dated this the 4th day of October, 2010 C.C.No.21/2008 K.A. Abootty Haji, Crescent Traders, Sivapuram, P.O. Sivapuram, : Complainant (Via) Mattannur (Rep. by Adv.K.P. Girija) M/s. Asian Paints Ltd, : Opposite party 3/358 A, Opp. Govt. T.T.I., East Nadakkavu, (Rep. by Adv. P.P. Sandeepkumar) O R D E R Sri. K. Gopalan, President This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to return the colour world machine together with a sum of Rs.1,50,000/- as compensation or else to refund the amount already paid by complainant a sum of Rs. 3,94,864/- together with Rs.1,50,000/- as compensation along with cost of this proceedings. Brief facts of the case of the complainant is as follows : Complainant, who is running an establishment called Crescent Traders as a means of livelihood had purchased a computer colour mixing unit, the cost of which is Rs.3,70,000/-. Advance amount Rs.50,000/- was paid and agreed to pay the balance amount Rs.3,20,000/- by installments. Altogether he has paid an amount of Rs.2,44,864/- afterwards. But when the machine shown trouble while running it was informed to company and on 06.06.2006 as directed by them the machine was sent to Company in the lorry (No: KL.11.Y.9107) arranged by they themselves. It was sent on the promise of the opposite party that it will be returned after repair. But the same has not been returned even after 17 months, as a result of which Complainant suffered too much troubles and financial loss since he could not do the work. He could finish even the work already entrusted to him by which he has sustained a loss of Rs.1,50,000/-. He has sent a lawyer notice on 15.11.2007 calling upon to refund Rs.2,44,864/- . Company opposite party sent a preliminary reply on 05.12.2007 and detailed reply on 17.12.2007. Opposite party sent reply raising false contention and stated that machine was taken away due to default in payment of installments. Opposite party is liable for the entire loss suffered by the complainant. Hence this complaint. Pursuant to the notices opposite party entered appearance and filed version contending in brief as follows : The complaint is false, frivolous, vexatious, baseless and not maintainable. The contractual nexus with the complaint arose out of the agreement dated July 11th, 2003. The said machine was installed at the premises of the complainant. It was financed by the CITI Bank and the opposite party. Complaint was bound to repay the loan amount in sixty monthly installments (EMI) of Rs.6,300/-, Rs.7,350/-, Rs.8,400/-, Rs.9,450/- per month respectively during the first, second, third, fourth and fifth year of loan to CITI Bank. The complainant had defaulted in payment of the above installments. The total balance amount as per the ledger account is Rs.1,81,126/-. Since the complainant had defaulted for a period of more than 6 months opposite party was constrained to repurchase the loan from CITI Bank. Accordingly a repurchase agreement was executed between CITI Bank and the opposite party by virtue of which all the rights, titles, interest in respect of the said machinery and the loan stand assigned and shall incur the benefits of this answering opposite party. In terms of the said agreement the opposite party is entitled to retrieve the machinery installed at the premises of the complainant. In view of the continuing defaults on the part of the complainant. The opposite party exercised its rights that he had subrogated to it by virtue of the agreement. The complainant handed over the peaceful possession of the machinery to the opposite party on 06.06.2007. Complainant after a lapse of 17 long months now came up with concocted version. The total value of the colour world machine is Rs.3,70,000/-. Complainant made an initial down payment of Rs.50,000/-. It is denied that Complainant paid a total sum of Rs.2,44,864/- towards the price. Complainant defaulted in payment of its due for a consecutive period of more than 6 months and hence repurchased the loan. All those facts elucidated in the reply notice dated 17.12.2007. It is denied that the machinery had been sent to opposite party in the vehicle on the assurance to return after repair. The machine was withdrawn as fall out of repurchase of the complainant’s loan. Complainant is not entitled to claim any relief. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether the complainant is maintainable? 2. Whether there is any deficiency on the part of the opposite party? 3. Whether the complainant is entitled for the relief as prayed for? 4. Relief and cost. The evidence consists of the oral testimony of PW1, DW1, Ext.A1 to A5 and Ext.B1. Ext.B2 and B3 marked on the side of the opposite party with objection. Issue 1 : Admittedly the complainant is running the establishment Messrs Crescent Traders carrying the business of sale of paints. It is also admitted that complainant had purchased colour world machine for a total value of Rs.3,70,000/- and the Complainant made an initial down payment of Rs.50,000/- agreeing on to pay balance by monthly installment opposite party further admitted that the said machinery which enables the dealer to tint the base paint and make various shades as indicated in the colour palette of the opposite party had been installed at the premise of complainant. Opposite party contended that the complaint is not maintainable. But he has not pinpointed the reason why it is not maintainable. He contented that the subject matter of this dispute emanates out of an agreement. Every transaction of sale there is a contract thus the existence of agreement doe not taken into account to say that complaint is not maintainable since there is an agreement. The central point that has been taken as subject matter of discussion is whether there is any deficiency in service or not on the part of the opposite party? Of course agreement is useful in the way of finding the truth. Hence the question agreement does not prevent to entertain the complaint. Complainant from the very outset pleaded that he is running the establishment M/s. Crescent Traders exclusively for the purpose of earning his livelihood by means of self-employment. Explanation to Section (2)(d) makes it clear that commercial purpose does not include use by a person of goods brought and used by him for the purpose of earning his livelihood by means of self employment. It is also an admitted fact that the said machinery which enables the dealer to tint the base paint and make various shades as indicated in the colour palette of the opposite party had been installed at the premises of the complainant, for a total value of Rs.3,70,000/- and complainant made an initial down payment of Rs.50,000/- agreeing to pay the balance by monthly installment. Thus it makes clear that neither the question of jurisdiction nor the question of consideration stands on the way to entertain the complaint. Hence the complaint filed as it is, no doubt is maintainable. Hence issue No:1 is answered in favour of complainant. Issue 2 to 4 : As it is evident above complainant had purchased colour world machine for a total sum of Rs.3,70,000/-. It is an admitted fact that complainant made an initial down payment of Rs.50,000/- agreeing to pay the balance by monthly installment. The case of the complainant is that he has altogether paid an amount of Rs.2,44,864/-. The machine became faulty and on informing opposite party arranged to take away the vehicle and sent the same for repair. But the same has not been returned. Opposite party contented that the machine was installed at the premises of the complainant. It was financed by CITI Bank and opposite party complainant defaulted in payment of the installments. The total balance of amount as per ledger account is Rs.1,81,126/-. Since he had defaulted for a period of more than 6 months opposite party was constrained to purchase the loan from CITI Bank. Accordingly a repurchase agreement was executed between CITI Bank and the opposite party. In terms of agreement opposite party is entitled to relieve the machinery. Ext.A2 reply opposite party has stated that the colour world machine was being taken by the company for non-payment of colour world dues and the complainant willingly handed over the machine to opposite party. Opposite party contented that they are the lawful owner of the said machinery and is entitled to take possession of the same in the event of repurchase of the loan. It is quite evident that the total value of the colour world machine is Rs.3,70,000/- opposite party has already admitted that complainant has made an initial payment of Rs.50,000/-. But has not stated anywhere the actual amount paid by the complaint towards the installment. But at the same time the amount of Rs.2,44,864/- claimed to be paid by the complainant has been denied by the opposite party and contented that complainant defaulted the payment of its due for a consecutive period of more than 6 months. It can be seen that the amount of installment in the last year is the highest amount i.e., Rs.9,450/-. If that be so the total amount without default interest comes to Rs.9450X6 = 56,700/-. Even if it is taken for granted default interest and other extra payment the complainants contention of payment of Rs.2,44,864/- need not be disbelieved on the ground on non-payment of loan amount for 6 months. How does opposite party calculates Rs.1,81,126/- as balance to be paid by the complainant has not been explained except telling that the complainant defaulted in payment of its due for a consecutive period of more than 6 months. Opposite party has the case that the machinery was taken back due to the reason of default of payment. Hence opposite party has the obligation to give correct details of payment. Opposite party is legally bound to explain what is the actual amount due by the complainant that forced him to take over the machine and repossess it with a legal shift of ownership. Complainant has produced Ext.A4 which shows a total payment of Rs.2,44,864/- as alleged by complainant. Opposite party has not challenged the entries in Ext.A4. Opposite party has not produced any payment of account. DW1, the Senior Sales Officer of opposite party in his cross examination deposed that “loan XpI-bpsS down paymentpT Bbn IT-]\n saj-n\-dn-bp-sS ap-gp-h³ Xp-I-bpT kzo-I-cn-¨-Xn-\p- ti-j-amWv sajn\dn ]cmXn¡mc\v \ÂIn-b-Xv. sajn-\-dn- sU-en-h-dn- sN-¿p-T-t]mÄ hne C\-¯n Hcp-ss]-k-bpT IT-]-\n¡v In«m³ _m²-y-X-bp-m-bn-cp-¶n-Ô. He has also deposed in cross examination that “bmsXmcp kT-J-y-bp-T -In-«m-\n-Ãm¯ Ah-Ø-bn tem¬ R§Ä do-]Àt¨-kvsN-s¿-p¶ Bh-i-y-T- D-m-bn-cp-¶n-à F¶p ]d-ªm icn-bm-Wv” To a particular question DW1 answered that “ 244864 cq] tem¬ kT-J-y-bn -A-S¨p F¶p-]-d-ªm At±-lT sImSp-¯n-«p-v”. These evidence of DW1 itself proves that the complainant has paid Rs.2,44,864/- towards the loan amount. It has come in evidence that loan was arranged from CITI Bank. The evidence of DW1 made it clear that opposite party has received entire amount before delivering the machinery to complainant. In other words opposite party delivered the machinery to complainant only after receiving the full amount. It is an important point to be discussed whether the machinery was taken away by the opposite party on the reason of non-payment of installment by the complainant and upon the right accrued up on the opposite party by the repurchase of loan from CITI Bank. The case of the complainant is that the machine was sent to opposite party for repair. The same was transported on 06.06.2006 in vehicle arranged by the opposite party. DW1 in his cross examination admitted that “IT-]\n Ab¨ hml-\-¯n-emWv sajn-\dn sImp-t]m-b-Xv. KL.11.V.9107 Lorry Number. CXv Ext.A5  ]d-bp¶ temdn-bm-Wv. Ext.A5 sâ AÊ temdn ss{UhÀ IT-]-\nsb tFÂ]n-¨n-«p-v. Ext.A5 shows that the machine was sent for repair. The evidence of DW1 proves that the original of Ext.A5 was given to opposite party by the driver. If that be so opposite party received the machine for the purpose of repairing. There is no iota of evidence to show that at any point of time the opposite party has informed the complainant that his vehicle was intend to take back as a result of default of payment of installments ever before the legal notice. It is also pertinent to note that opposite party has not produced any piece of paper to show that any communication has been sent to complainant with respect to the default and resultant repurchase. Opposite party has not adduced evidence to prove to the effect that opposite party is entitled to repurchase the loan without the knowledge and consent of complainant. It is an admitted fact that there are 60 installments to be paid. The care of the opposite party is that complainant is in default of payment of more than 6 installments. That means almost 56 installments have been paid. In such a case if opposite party attempt to make the property as his own utilizing a favourable opportunity can only be consider as an unfair trade practice. Complainant who has paid a huge amount totally thrown out from his property by secretly repurchasing the loan from the bank, is unjustifiable and denial of natural justice. We have no hesitation to hold that opposite party has committed an offence of unfair trade practice and is liable to return the machinery repairing it free from default. Taking into account the very nature of the business it can be well assumed that complainant might have suffered financial loss, though not proved. Hence complainant is entitled to get the repaired machine back as well as entitled for compensation and cost. Thus opposite party is liable to pay an amount of Rs.20,000/- as compensation and a sum of Rs.1000/- as cost of these proceedings. The available evidence made it clear that complainant paid Rs.2,44,864/- towards the installment. In case opposite party failed to return back the machine repairing free of default opposite party has to refund an amount of Rs.2,40,000/- out of it. Thus issue Nos 2 to 4 are also found in favour of complainant and order passed accordingly. In the result, complaint is allowed directing the opposite party to return the colour world machine that has been taken from complainant repairing it defect free or else to refund an amount Rs.2,40,000/- (Rupees Two Lakh Forty Thousand only) and also to pay an amount of Rs.20,000/- (Rupees Twenty Thousand only) as compensation together with a sum of Rs.1000/- (Rupees One Thousand only)as cost of this proceedings within one month from the date of receipt of this order failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1& A2. Reply notice sent by opposite party. A3. Copy of the lawyer notice sent to opposite party. A4. Loan remittance details of complainant. A5. Copy of the letter dated 06.06.2006 said to opposite party. Exhibits for the opposite parties B1. Copy of Loan cum Hypothecation agreement. B2. Copy of the loan purchase agreement. B3. Copy of the purchase of defaulted loan under the Dealer Financing Colour World Machines Programme Agreement. Witness examined for the complainant PW1. Complainant Witness examined for opposite party DW1. Shinu Varghese /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
