ADV. RAVI SUSHA, MEMBER.
Complaint for directing the opp.party to to pay an amount of Rs.3,50,000/- and compensation etc.
The averments in the complaint can be briefly summarized as follows:
The complainant herein had entered a hire purchase agreement with the opp.party vide contract No.QLN 90088/00 in respect of a contract carriage vehicle No.KL-01/C7414 for an amount of Rs.3,57,500/-. At the time of executing the contract the opp.party obtained a signed blank cheque having No.018063 without filing the name and date etc as a security . The opp.party assured the complainant that they will never present the said cheque without the consent of the complainant. As per the agreement No.QLN 90088/00 the complainant had paid Rs.1,93,470/- by way of monthly installments and at the time of agreement the opp.party agreed and assured the complainant to avail insurance policy to the vehicle at the opp.parties costs and expenses. Expenses for availing the insurance policy is also added in the payment particulars. But contrary to assurance given to the complainant the opp.party has not handed over the insurance policy in respect of the vehicle to the complainant. Hence the complainant could not obtained the fitness certificate from the concerned authorities. Since the vehicle is having no fitness certificate though the vehicle is in road worthy condition it could not play and became stationery for a long period and even now. The vehicle became stationery for considerably long period the monthly remittance of the hire purchase amount became due only an amount of the opp.parties callous, negligence and indifferent attitude shown towards the complainant. The contract between the complainant and the opp.party is automatically cancelled since the opp.party is failed to handover the insurance policy. The opp.party is not entitled to claim upon the said cheque. The complainant is not liable to pay any amount to the opp.party as comply with the terms and conditions of the hire purchase argument. The action of the opp.party amounts to deficiency in service since they had unilaterally altered the hire purchase agreement. The actions of the opp.party by altering the conditions of hire purchase grant and also reluctant to handover the insurance policy of the vehicle to the complaint amount to deficiency of service Hence the complaint.
The opp.party filed version contending, interalia, that the complaint is not maintainable either in law or on facts. The relationship of the complainant and the opp.party is governed by the written contract entered in between the complainant and the opp.party dt. 27.9.2004. The complainant is only a party in the agreement. As per the agreement executed between the complainant and the opp.parties. All disputes differences or claims arising out of the agreement are to be settled by the Arbitration in accordance with the provisions of the arbitration and conciliation Act 1996. Hence it is humbly submitted that this Forum has no jurisdiction to entertain this complaint. Complainant availed a loan for an amount of Rs.2,52,000/- from the opp.party company for the purchase of used Ashok Leyland Contract Carriage bearing No.KL 01 C 7414 by executing a lease agreement No.QLN/90298 in favour of M/s. Shriram Transport Finance Co. Ltd., Kollam. The amount of Rs.2,52,000/- along with hire charges and insurance deposit was agreed to be repaid in 36 monthly instalment totaling Rs.4,10,416/-. The first 35 instalment were fixed at the rate of Rs.11,410/- and the last instalment was fixed at the rate of Rs.11,067/-. The instalment begins on 25.10.2004 and ends on 25.9.2007. But the complainant violated the agreement and failed to repay the amount as agreed. No timely payment were given by the complainant. As per the clause in the agreement in the event of any default occurring in the payment of the instalment amount or other charges under the agreement the borrower shall pay to the company additional Financial charges at the rate of 3% compounded monthly for the period commencing from the date of default upto the date of said instalment or other charges is paid. As per the clause in the agreement the opp.party company who retained the owner ship over the vehicle cancelled the agreement and sought to exercise the right of repossession and informed the complainant. At that juncture the complainant approached the opp.party company at Kollam and in order to clear his existing liabilities in the above transaction issued a cheque No.018063 dt. 18.2006 for Rs.3,50,000/- drawn in his account of Paravoor SNVRC Bank. No unfair trade practices and deficiency in services adopted by the opp.party as alleged in the complaint. The complaint has no right to use the vehicle without payment of the entire amount due from him towards monthly instalment and interest thereon for the defaulted payments. The use of vehicle by the complainant without payment of amount due as per the agreement will give him unjust enrichment at the expense of these opp.party. In order to evade from this contractual and legal liabilities that the complainant filed this complaint. The company re charted the agreement as per the request of the complainant and he executed lease agreement No.QLN/90298 dt. 27.9.2004. No signed blank cheque has been entrusted by the complainant to the opp.party. The allegation of non issuance of insurance policy stated in para 4 of the complainant is false and hence denied. The opp.party taken insurance policy to the said vehicle from Oriental Insurance Co. for a period from 15.2.2005 to 14.2.2006 and 1.3.2006 to 28.2.2007 on behalf of the complainant. The complainant is liable to pay Rs.23,533/- towards insurance premium paid by the company on behalf of the complainant. The company on several times approached the complainant to clear the arrears and pay the insurance amount. But he evaded that payment on lame excuses. The allegation in para 4 and 5 of the complaint is a crooked story woven in the mind of the complainant to frame this suit. No inconvenience deficiency in service or unfair trade practice is caused to the complainant by any act of the opp.party. This complaint has been instituted by the complainant frivolously and vexatiously by suppressing the material facts and true state of affairs. The party is subjected much pecuniary loss in prosecuting this case. Hence the opp.party prays to dismiss the complaint with compensatory cost of Rs.5,000/-
Points that would arise for consideration are
1. Whether the complaint is maintainable
2. Whether there is deficiency in service on the part of the opp.party
3. Reliefs and costs.
For the complainant PW.1 and 2 are examined. Ext P1 to P4 are m arked.
Opp.party has not adduced any oral evidence . Ext. D1 and D2 are marked.
POINTS:
Complainant’s case is that he has entered into an agreement with the opp.party for the purchase of a contract carriage bus for an amount of Rs.3,57,500/- . At the time of executing the agreement the opp.parties had obtained a signed cheque without filing the amount or payees name and also the opp.party agreed and assured that the complainant to avail insurance policy to the vehicle at the opp.parties cost and expenses. But the expenses for availing the insurance policy is also added in the payment particulars. Since the opp.party have not handed over the insurance policy to thje complainant, he could not obtain the fitness certificate from the concerned authorities. Since the vehicle became stationery for a considerably long period, the monthly remittance became due and that is due to the negligence attitude of the opp.parties. Since the opp.party unilaterally altered the agreement, there is deficiency in service on the part of opp.parties. Complainant prays to quash the agreement and also a compensation of Rs.1,00,000/-.
Opp.parties contentions are that the Forum has no jurisdiction to entertain the complaint, because the relationship of the complainant and opp.party is governed by the written contract between the complainant and opp.party the complainant is only a party in the agreement. Moreover as per the agreement all disputes and claims are to be settled by the Arbitrator.
Opp.parties further contentions are that the complainant availed a loan for an amount of Rs.2,52,000/-. The amount of Rs.2,52,000/- along with the charges and insurance deposit was agreed to be repaid in 36 monthly instalment totally Rs.4,10,416/-. But the complainant violated the agreement and failed to repay the amount as agreed. As per the condition in the agreement in the event of any default the borrower shall pay additional charges at the rate of 3% from the date of default. Even after several information the complainant was evading from the payment. No unfair trade practices and deficiency in services adopted by this opp.parties as alleged. The complainant has no right to use the vehicle without payment of the entire amount due from him. The opp.parties further submitted that as per the request of the complainant the opp.party re-charted the agreement of the complainant and executed a lease agreement.
From the side of the complainant PW.1 and PW.2 were examined. Ext.P1 to P4 were marked. Opp.party has not adduced any oral evidence. Ext. D1 and D2 were marked from the side of opp.party through the complainant.
Opp.parties 1st contention is that the complainant is not maintainable. Here there is no dispute that the complainant and the opp.party entered into an agreement for the purchase of a contract carriage bus. According to the opp.party the complainant purchased the vehicle for a commercial purpose. Complainant in the complaint as well as during the examination stated the vehicle purchased with a view to earn a livelihood. Opp.parties further contented that since there is an arb9itration clause in the agreement, all disputes between the complainant and opp.parties are to be settled by the Arbitrator. As per the decisions of SC, the Arbitration clause in the agreement is not a bar to file complainant, before the Consumer For a. Complainant’s case is that he had purchased the vehicle with a view to earn a livelihood by way self employment. Hence the complainant is a consumer and the complaint is maintainable before the Forum. Point found accordingly.
The next point to be decided is whether there any deficiency in service on the part of the opp.parties. There is no dispute that the complainant has remitted only Rs.1,93,470/- out of total agreement amount. Complainant’s case is that he is liable to pay Rs.3,57,500/- as per the agreement. During cross examination PW.1 admitted his signature in Ext. D1 and also admitted that as per his request the company re-charted the agreement. As per Ext. D1 the loan amount is Rs.4,10,417/- so the allegation of unilateral alteration of hire purchase agreement by the opp.party cannot be accepted.
Another contention raised by the complainant is that the opp.party has not handed over the insurance policy and so he could not obtained fitness certificate from the concerned authorities. According to the opp.party they had taken the insurance policy of the vehicle from the Insurance company for a period from 15.2.2005 to 14.2.2006 and 1.3.2006 to 28.2.2008 on behalf of the complainant. There is no condition in the agreement or anywhere that the opp.party has to bear the insurance cost and expenses. Hence the complainant is liable to pay Rs.23,533/- towards insurance premium paid by the opp.party on behalf of the complainant. Opp.parties contention that they have handed over the insurance policy to the complainant and on the basis of that insurance policy the complainant paid tax up to 30.6.2005. On perusal of Ext.P1 it is seen that the complainant has stated that tax in respect of the vehicle has already paid up to quarter ending 30.6.2005 and after that he garaged his vehicle in his house for major repairs on 1.7.2005 and he submitted G - form claiming exemption of tax from 1.7.2005 to 30.9.2005. Without showing the insurance policy to the authorities the complainant cannot paid tax for the vehicle. From Ext.P1, the complainant contention that opp.party had not handed over the policy certificate to the complainant cannot be found correct. The major repair caused to the vehicle is not a deficiency in service on the part of the opp.party. without showing the insurance certificate and connected papers of the vehicle, no police official will release the vehicle as per High Court Order. There is no dispute that the complainant has not remitted the entire dues. Without clearing the entire dues no finance company will issue no objection certificate. On perusal of Ext.P3, P4 and Ext. D1 it can be seen that the complainant has not remitted the instalment amount promptly. PW.2 denied his signature in Ext.D1. The deposition given by PW.2 cannot be relied because on perusing his evidence it can be seen that he has made false deposition before the Forum. Anyway complainant admitted his signature in Ext.D1. On considering the entire evidence before the Forum we find that there is no deficiency in service or unfair trade practice from the part of the opp.party.
In the result the complaint fails and the same is hereby dismissed
Dated this the 30TH day of November, 2010.
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I N D E X
List of witnesses for the complainant
PW.1. - G. Remanaan
PW.2. – Ajayakumar
List of documents for the complainant
P1. – Copy of Writ Petition
P2. - Policy certificate
P3. – Receipts
P4. – Repayment schedule
No Oral evidence adduced by the opp.party
List of documents for the opp.party
D1. – Agreement
D2. – Copy of Award
