KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NOS.96/12 & 190/12
COMMONJUDGMENT DATED:23.05.2013
PRESENT:
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
SMT.A. RADHA : MEMBER
APPEAL NO.96/12
1. The Branch Manager,
Tata Motors Finance Ltd.,
Opposite Ramanas Oil Mill,
South Bazar, Kannur-670 002.
: APPELLANTS
2. M/s Tata Motors Finance Ltd.,
3rd floor, Kasi Arcade,
No.116, Thyagaraja Road,
T.Nagar, Chennai-600 017.
(By Adv:Sri.N.U.Namboothiri)
Vs.
P.Moideen Haji,
S/o Mammad Haji,
T.P.Beevi House, Mill Road, : RESPONDENT
Valapattanam, Kannur-670 010.
(By Adv: M/s K.P.Jayaraj & B.A.Krishnakumar)
APPEAL NO.190/12
P. Moideen Haji
S/o Mammad Haji,
T.P.Beevi House, Mill Road, : APPELLANT
Valapattanam, Kannur-670 010.
(By Adv: M/s K.P.Jayaraj & B.A.Krishnakumar)
Vs.
1. The Branch Manager,
Tata Motors Finance Ltd.,
Opposite Ramanas Oil Mill,
South Bazar, Kannur-670 002.
: RESPONDENTS
2. M/s Tata Motors Finance Ltd.,
3rd floor, Kasi Arcade,
No.116, Thyagaraja Road,
T.Nagar, Chennai-600 017.
COMMON JUDGMENT
SHRI.K. CHANDRADAS NADAR : JUDICIAL MEMBER
In these appeals the complainant and opposite parties 1 and 2 have respectively challenged the order of the CDRF, Kannur in CC.388/01. The complainant had purchased a Tata Indica Diesel Car by availing a loan of Rs.2 lakhs from the opposite parties. As per the repayment schedule furnished the complainant had to pay Rs.2,41,801/- in 23 instalments starting from 5.3.99. It is alleged by the complainant that in order to secure repayment opposite parties had obtained various documents. They were also entitled to seize the vehicle in case of default in repayment. Due to financial stringency the complainant failed to pay the instalment for December 2000. Therefore the opposite parties forcibly took away the vehicle on 12.01.2001 without informing the complainant. On 13.01.2001 the opposite parties sent telegram to the complainant asking him to pay the balance amount due and that they had seized the vehicle. On 15.1.2001 the complainant approached the opposite parties and offered the balance amount but they refused to accept the same. Again the complainant approached them and paid the entire balance amount together with one rupee being the option money and terminated the hire purchase agreement. So from 16.1.2001 onwards the complainant became the owner of the vehicle. After seizing the vehicle the opposite parties used the vehicle for a pleasure trip and the vehicle met with a major accident. The opposite parties had received an amount of Rs.74,000/- from the Oriental Insurance Company. The complainant had instituted OS No.124/01 before the Sub Court, Thalassery for mandatory injunction and the Suit was referred for arbitration at the request of the opposite parties. At the time of seizing the vehicle there was a car stereo valued at Rs.25,000/- fixed in the car. After the seizure the complainant had incurred expenses in hiring taxi for his needs like transporting the children to the school. The opposite parties had agreed to return the vehicle after payment of Rs.26,307/- before the Civil Court. But since no amount is due to the opposite parties and the car was totally damaged, the complainant does not require the car. The complainant had paid in all Rs.3,68,801/-. So, the opposite parties are bound to pay the value of the car which is Rs.3,65,000/- and Rs.20,000/- towards mental agony suffered by the complainant due to the illegal seizure. They are also bound to pay the value of the stereo.
2. The opposite parties contended before the Forum that as per the agreement dated:5.3.1999 only the Courts at Mumbai have jurisdiction. Further as per clause 25 of the hire purchase agreement the complainant had agreed to refer all disputes to an arbitrator. So, the complaint is not maintainable before the Forum. The opposite parties admitted that vehicle loan of Rs.2 lakhs was granted to the complainant based on a hire purchase agreement. The opposite parties were constrained to invoke the right of repossession due to chronic default and breach of terms in the hire purchase agreement. On 15.12.1999 and 10.1.2000, they had issued notice demanding payment. The allegation to the contrary is not correct. As per the agreement the complainant is bound to pay fixed amount per month. The amounts were not paid on due dates. Hence the amounts bear 30% over due charges and the defaulted period is calculated on the basis of day by day from the date of default till payment is made for particular month. The complainant remitted only the instalments due and refused to pay over due charges claimed in accordance with law. It is incorrect to say that the relationship of hirer and owner was terminated. Even after crediting the amounts paid by the complainant as on the date of filing version, a sum of Rs.34,968/- was due from the complainant. Since the complainant refused to pay the said amount, the opposite parties could not cancel the hire purchase endorsement made in the registration certificate. As real owner of the vehicle the opposite parties had to garrage the vehicle for safe custody. While so driving it met with an accident. It is incorrect to say that the vehicle was used for other purposes. After repair the insurance claim was settled and opposite parties had to spend additional amount of Rs.6,970/- towards the repair. The opposite parties are also incurring Rs.40/- per day towards parking charge. All the payments made by the complainant were credited to his account. It is incorrect to say that the opposite parties protracted redelivery of the vehicle. The opposite parties are not liable to pay compensation to the complainant. There was no deficiency in service on the part of the opposite parties. Hence the complaint was liable to be dismissed.
3. Once the CDRF, Kannur dismissed the complaint and the order of dismissal was challenged before this Commission. The matter was remanded by this Commission for fresh disposal. Thereupon the complainant gave evidence as PW1 and Exts.A1 to A11 were marked on the side of the complainant. One witness was examined on the side of the opposite parties and Exts.B1 to B6 were marked on their side.
4. As per the impugned order the Forum held that there was deficiency in service on the part of the opposite parties in as much as they had failed to return the vehicle after receiving the entire money due under the hire purchase agreement. Accordingly the Forum directed the opposite parties to refund Rs.2,50,000/- as value of the seized vehicle with interest and pay compensation of Rs.15,000/- and cost of Rs.2000/-. Since the entire reliefs sought were not granted, the complainant has preferred Appeal.96/12. The opposite parties have challenged the conclusions of the Forum in Appeal.190/12.
5. The questions that arise for decision in this appeal are firstly whether the Forum rightly invoked its jurisdiction and secondly whether the conclusion of the Forum that there is deficiency in service on the part of the opposite parties can be sustained. In view of the appeal by the complainant, question also arises whether any modification is required in the reliefs granted.
6. Admittedly the complainant had availed a loan of Rs.2 lakhs from the opposite parties for purchasing a Tata Indica Diesel Car based on Ext.A1 hire purchase agreement. The opposite parties repossessed the vehicle as per the hire purchase agreement alleging chronic default in repayment of instalments as per the hire purchase agreement. It is the case of the complainant that thereupon he paid the entire amount due under the hire purchase agreement and terminated the hirer-owner relationship. But the opposite parties failed to return the car after cancelling the hire purchase endorsement and they used the car for pleasure trip and it met with a major accident. So, the complainant has alleged deficiency in service in as much as the opposite parties had failed to return the vehicle even after hire purchase agreement was terminated resulting in damage to the car. The said allegations are denied. Before considering these aspects, it may be mentioned that the Forum invoked jurisdiction rejecting all the three contentions raised by the opposite parties. The first contention was that as per the hire purchase agreement only a Court in Mumbai has jurisdiction. The Forum rightly rejected this contention in as much as deficiency in service on the part of the opposite parties was clearly alleged and deficiency in service is a question that has to be adjudicated in terms of the Consumer Protection Act.
7. The 2nd contention based on clause 25 of the hire purchase agreement was also rejected by the Forum holding that a dispute as to deficiency in service need not be referred for arbitration. It is quite obvious that only disputes arising out of the hire purchase agreement need be referred for arbitration. Here deficiency in service alleged is outside the purview of the agreement to refer for arbitration and the conclusion of the Forum is only to be sustained. The 3rd contention was that in view of the admitted case that the complainant had instituted OS No.124/01 before the Sub Court, Thalassery, the jurisdiction of the Forum is ousted but deficiency of service alleged is not a matter to be adjudicated by the Civil Court and it appears that the reliefs sought from the Civil Court were entirely different. Therefore the Forum rightly held that filing of OS.124/01 is not a bar to invoke its jurisdiction.
8. Coming to the merit of the claim it appears from Ext.A1 that the invoice value of the car purchased on 5.3.99 was Rs.3,06,397/-. In order to purchase this car loan of Rs.2 lakhs was availed based on hire purchase agreement. Default of one instalment in December 2000 is admitted. According to the opposite parties the complainant was a chronic defaulter, but it is an admitted case that the opposite parties repossessed the vehicle and while in their possession the vehicle met with a major accident. Deficiency in service is alleged in as much as despite repayment of the entire amount as per the hire purchase agreement, the vehicle was not returned after cancelling the hire purchase endorsement. In order to show that the complainant had repaid the entire amount due under the hire purchase agreement Ext.B6 which is styled as contract details is relied on. At the last page of Ext.B6, it is mentioned that an amount of Rs.2,42,801/- was received till date together with Re.1/-. Re.1/- is the token amount for transferring the ownership. It is based on Ext.B6 contention is raised that the entire amount due under hire purchase agreement was repaid. In the version the contention is that still an amount of Rs.34,968/-is due from the complainant. But that Ext.B6 is correct and the contention in the version is erroneous is evident from the deposition of DW1, the Branch Manager of the opposite parties. He deposed that the complainant had to repay Rs.2,42,801/-. This was the amount the complainant had to remit without default. DW1 categorically admitted that the complainant had remitted in the opposite party company in all Rs.3,62,801/-. The excess amount was obviously remitted towards the default interest and other penal charges. Thus, the deposition of DW1 belies the contention that the entire amount due towards the opposite parties was not remitted by the complainant. This contention was obviously taken to wriggle out of the situation caused by the accident that happened to the vehicle after the entire amount was paid. Thus the evidence as a whole supports the conclusion of the Forum that there was deficiency in service on the part of the opposite parties.
9. The complainant approached this Commission because the relief for refund of the entire amount paid was not granted. It is obvious that the amount paid by him was towards and pursuant to the hire purchase agreement which he was bound to make. So, there is no question of allowing refund of the amount paid in repayment of the loan. He was entitled to possession of the car once the entire amount was repaid. But the car met with a major accident causing loss to him. It was obviously a lapse on the part of the opposite parties not to return the vehicle once the entire amount towards the loan was received by them. Because of this the complainant is entitled to the value of the car. As mentioned earlier, the invoice value of the car was Rs.3,06,397/- when it was purchased in March 1999. The accident happened after about 1 ½ years. It was in that context the Forum reduced the value of the car to Rs.2,50,000/- taking into account the depreciation in the value of the car. There is no error on the part of the Forum in awarding this much amount as the value of the car. The other reliefs granted are also proper. Under the above circumstances we find no reason to interfere with the order of the CDRF, Kannur in CC.388/01 dated:31.8.2011. Accordingly both the appeals are dismissed. Parties are directed to bear their respective costs in these appeals.
K. CHANDRADAS NADAR : JUDICIAL MEMBER
A. RADHA : MEMBER
VL.
