BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.1110 OF 2010 AGAINST C.C.NO.445 OF 2008 DISTRICT FORUM-I VISAKHAPATNAM
Between:
1. Bajaj Auto Finance Ltd.,
rep. by its Branch Manager
1st Floor, D.No.49-24-62, Near Coastal
Hardware, Sankaramattam Road,
Madhuranagar, Visakhapatnam016
2. The Manager,
1st Floor, D.No.50-10-22/1,
C/o Varun Motors, “Varshad”
Siripuram Junction, Visakhapatnam
Appellants/opposite parties
A N D
Rananna Rajababu S/o Prakasam
aged 45 years, New Block 2/14,
Kailasagiri Police Quarters,
Visalakshinagar, Visakhapatnam-24
Respondent/complainant
Counsel for the Appellants M/s L.V.Vijayshankar & Associates
Counsel for the Respondent Service held sufficient
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
FRIDAY THE THIRD DAY OF AUGUST
TWO THOUSAND TWELVE
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The respondent availed loan for a sum of `55,000/- from the appellant and purchased Bajaj Pulsar bearing number AP 31 AL 3629 and entered into an agreement on10.10.2005 with the appellant company. The loan agreement was executed by the respondent agreeing to repay the entire amount in 36 months in each installment `1,935/-.
2. As per the terms of agreement, the respondent agreed to pay cheque dishonour charges and penal charges in case the cheque issued by the respondent is dishonoured. The cheques issued by the respondent for the installments no.13, 14, 15 were not paid in time. As per the terms of agreement the respondent has to pay penal charges a sum of `2,850/-on account of the dishonour of the cheques for the aforementioned installments. The amount of `464/- paid by the respondent if deducted from the amount of `2,850/- the amount payable by him would be `2,386/- plus the 20th installment amount of `1935/-.
3. The respondent claimed that he paid in advance three installments and the appellant refused to accept the amount. He filed the complaint seeking return of Horn, remote and speaker, lock, registration certificate and clearance certificate.
4. The appellant company resisted the claim admitting the repossession of the vehicle and return of the vehicle without registration certificate and clearance certificate. The appellant expressed its readiness to return the registration certificate and to issue No objection certificate to the respondent provided the respondent has cleared the arrears.
5. The respondent, in support of his claim filed his affidavit and the documents marked as ExA1 to A5. On behalf of the appellant-company, the Branch Recovery Manager has filed his affidavit and the documents Exs.B1 and B2.
6. The District Forum allowed the complaint on the premise that the appellant company merely expressed its readiness to issue No objection certificate for termination of hypothecation agreement and in view of the appellant not returning the Registration Certificate and No Objection Certificate, the appellant company was held liable to pay an amount of `5,000/- towards compensation and `2,000/- towards costs.
7. Aggrieved by the order of the District Forum, the opposite party has filed appeal contending that the District Forum having held no deficiency in service on its part, awarded the amount of `7,000/- against it.
8. The point for consideration is whether the order of the District Forum is vitiated by misappreciation of facts or law?
9. The respondent availed loan a sum of `55,000/- on 10.10.2005 from the appellant company for purchase of Motor Cycle bearing number AP31 AL 3629. The respondent entered into hypothecation agreement with the appellant company on the same day agreeing to repay the amount with interest in 36 Equated Monthly Installments @ `1,935/-. The salient features of the agreement are mentioned herein below:
c. Maintain the product in good and serviceable repair and condition and keep current all licenses, registrations, permissions, approvals, consents and clearances as may by law for the time being in force be required.
e. Indemnify the company against any legal action or suit, loss or claims of third parties, arising out of and/or relating to the use of the product by the Borrower(s)
f. Pay/reimburse the company all expenses for any purpose relating to this agreement or the product covered under this agreement including any isnruance premia on the product and taxes pertaining to the agreement, product or the Sanctioned Loan and enforcing the terms thereof
k. Pay and bear all taxes, rates, duties, charges and other imposts and obligations, existing as well as future, in respect of the product and the transaction hereunder.
10. Admittedly, the respondent failed to pay 13th, 14th and 15th installments in time. Any delay in payment of installment invites the respondent with the liability to pay penal charges. The appellant demanded an amount of Rs.2,836/- towards penal charges from the respondent. The District Forum held the appellant justified to demand for penal charges. In paragraph 5 of the order, it is stated as under:
The Forum after careful examination of the contents and respective written arguments and proof affidavits of both the parties, is of the opinion that whatever may be the reason given by the complainant it was an established fact that the three installments 13,14,15 for which advances cheques were issued were not paid in time as admitted by the complainant himself. The opposite parties are therefore justified in making demand for penalty charges of Rs.2,386/- (Rupees two thousand three hundred and eighty six only) which is after due adjustments. At the same time in regard to the complainant’s plea that he has not received back Horn Remote and Speaker costing around Rs.1,000/- (Rupees one thousand only), the complainant did not substantiate it in the form of cash receipt for the material. Hence the demand for return of these items cannot be taken as granted by the Forum. However, the ‘C’ book and clearance certificate are the vital documents to be released by the opposite parties and they are supposed to return the same subject to clearance of the penalty charges.
11. The learned counsel for the appellant has contended that even after holding the appellant entitled to demand for penal charges and the respondent to able for return of the vehicle subject to his making payment of the amount due, saddled the appellant with liability to pay the amount of `5,000/- towards compensation and `2,000/- towards costs. He has submitted that when there is no deficiency in service on the part of the appellant, it cannot be held liable to pay any amount to the respondent.
12. It is settled law that the complainant would be entitled to compensation when he establishes deficiency in service on the part of the opposite party. Compensation cannot be treated as charity. Award of compensation is dependent on the complainant’s establishment of his claim that there was deficiency in service on the part of the opposite party and the liability of the opposite party in the given circumstances of the case. The District Forum, on one hand held that the respondent is a defaulter and the registration certificate cannot be returned as also no objection certificate cannot be issued to him unless he pays the amount due and on the other hand it held the appellant liable to pay compensation to the respondent for the mental tension he suffered due to the non-returning of the registration certificate by the appellant company.
13. At the first instance, the respondent has to pay the amount due and on receipt of the amount the liability of the appellant to return the documents would arise. It follows that performance of the obligation of the respondent precedes performance of part of the contract by the appellant-company. Unless deficiency in service is found on the part of the appellant, no finding can be recorded as to entitlement of the complainant to the amount under the head “compensation”.
14. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In “Charan Singh vs Healing Touch Hospital and others” 2000SAR (Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider. The Court held “While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge”.
15. The question of compensation would arise on recording the finding in regard to deficiency in service on the part of the service provider. In any view of the matter, award of `5,000/- and `2,000/- towards compensation and costs respectively is unsustainable and liable to be modified.
16. In the result, the appeal is allowed by modifying the order of the District Forum. The award for `5,000/- and `2,000/- is set aside. The opposite party is directed to return the registration certificate and issue no objection certificate to the complainant on receipt of the amount of `2,386/- from the complainant. The parties shall bear their own costs.
MEMBER
MEMBER
Dt.03.08.2012
KMK*
