Karnataka

Bidar

CC/25/2016

Nagendrappa S/o Shankarrao - Complainant(s)

Versus

Shriram Transport Finance Co.Ltd. - Opp.Party(s)

Smt. Padma M

17 Jun 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                 C.C.No. 25/2016

 

                                                                                                  Date of filing : 11/05/2016

 

                                                                                              Date of disposal : 17/06/2017

 

P R E S E N T:-                    (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                       (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

                                               

COMPLAINANT/S:      Nagendrappa, S/o Shankarrao,

                                    Age  38 years, Occ: Business,

                                        R/o Badiger Galli, Chincholli,

                                    Dist. Kalburgi.

 

             

              

 

 

                                    (By Smt. Padma M.,Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-          1.  Shriram Transport Finance Company Ltd.,

                                             Administrative Office, 101-105, 1^st Floor,           

                                          B Wing, Shiv Chambers, Sector-11,

                                          C.B.D. Belpur, Navi Mumbai-400614.

                                             By it’s Administrative Officer.

 

                                        2.  Shriram Transport Finance Company Ltd.,

                                             Regional Office, Mukambika Complex, 3^rd Floor,

                                             No.4, Lady Desika Road, Mylapore,

                                          Chennai-600004.

                                           By it’s Reginal Officer.

 

                                     3.  Shriram Transport Company Ltd,

                                             Branch Office Near Nehru Stadium Bidar.

                                             By it’s Branch Manager.

 

                                      ( By Shri. S.Wilson, Advocate )

 

                                       

                                      

 

 

                                               

::   J UD G M E N T  : :

 

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

                    This   complaint  filed by the above said complainant U/s.12 of the C.P.Act., 1986, against the O.Ps alleging  deficiency in service .

 

2.           Brief facts of the case of the complainant are that:

 

 

              The complainant is owner of vehicle bearing                              Reg.No. KA 35-5682, Force Toofan (Crusier).  The complainant was in need of financial assistance and approached to the O.P.No.3.  Accordingly O.P.no.3 has sanctioned the loan on the vehicle of the complainant on 24/05/2014 for Rs. 2,50,000/-.  As per the loan agreement the complainant has to repay Rs. 10,384/- per month at 33 instalments.   The complainant had repaid total Rs.1,39,850/- and the complainant has to repay for Rs. 1,10,150/- with interest.  The complainant further avers that, due  to financial crises he has not paid the remaining amount to the O.P.No.3 within stipulated period and  only 6 instalments remained repayable.  The complainant paid last instalment on 04/10/2015, thereafter he has not paid any instalments.  The O.P.No.3 seized the vehicle in the month of January 2015.  The O.P. No.3 has not issued the notice prior to the seizer of the vehicle, the O.P.No.3 acted illegally against the right and interest of the complainant.    Further  the complainant had approached to know the total balance which the complainant has to pay, but the O.P.No.3 has not given any proper response and even not given the statement of accounts of the complainant.  The O.P.No.3 has sold the vehicle of the complainant to the 3^rd party.  The O.P.No.3 without giving any information has sold the vehicle illegally.    The O.P.No.1 is the corporate office, O.P.No.2 is Administrative office of the O.P.No.3 and the O.P.No.3 is  carrying the business for advancing the loan and collecting the amount from the   customer.  Therefore the entire loan transaction pertaining the vehicle of the complainant is carried at Bidar only.  Hence, the O.P.No.3 deceived the  complainant and given deficient service to the complainant and not maintained proper account of the complainant .  The O.P.No.3 obtained more than 100 signatures of the complainant over the blank papers and acted negligently and illegally.  The vehicle of the complainant was manufactured in the year 2005, and it was in good condition.   The complainant for his livelihood and maintenance of  his family  was plying the vehicle  and he used to earn 1,000/- by excluding diesel and Driver Charges.   Due to seizure of the vehicle the complainant caused loss for Rs.1,00,000/- and suffered mental agonise.  Hence, the complainant has approached this Forum for compensation for Rs.5,00,000/-.   

 

 

 

 

 

3.             After receipt of the Court’s notice the O.P.No.1, 2 &  3 have  appeared before this Forum by engaging common counsel and filed their written version therein stating that,  the contents and allegations made in the complaint filed by the complainant are false and wrong both on law and facts, hence denied by the O.P.  The complaint is misconceived and filed with the sole intention of harassing the O.Ps.  The O.Ps admitted the contents of para no.1 of the complaint regarding the approach of the complainant for loan purpose and accordingly the O.P.no.3 had sanctioned the loan to the complainant for Rs.2,50,000/-.  But, it is false alleged that, the complainant has to pay Rs.10,384/- per month as instalment.   The complainant in fact has to pay the loan amount in 33 equated monthly instalments the 1^st EMI being Rs. 13,829, then 31 monthly EMIs for Rs.10,735/- each and the last EMI of Rs. 10,730/-.  It is true that, the complainant has availed loan of                    Rs. 2,50,000/- but, it is absolutely false to contend that, he has paid Rs.1,39,850/- and now he has to pay Rs. 1,10,150/- and interest.   The contents of para 2 ofthe complaint are false and denied.  It is false to contend that, the complainant was in financial crises and hence he could not pay the EMIs, factually the complainant was earning sufficient to pay the monthly EMIs.  Further it is falsely alleged by the complainant that, he paid las instalment on 04/10/2015, he in fact lastly made a deficit payment of Rs. 20,000/- on 21/09/2015.  The complainant has falsely alleged that, the O.P.No.3 has seized the vehicle in the month of January and has not given any seizing letter to him and acted illegally against the right and interest of the complainant, hence denied.  In fact the O.P.No.3 had given ample opportunity (s) to repay the loan amount. Further the complainant himself after the receipt of seizing notices and reminders had given a letter dt. 25/12/2015 giving the possession of the vehicle and only as the last resort, the O.P.no.3 took the possession of the vehicle and kept it in the yard.  The contentions of para no.3 and 4 of the complaint are false hence denied.  The allegation of the complaint  that, the O.P.No.3 deceived the complainant and gave deficient service by not maintaining proper account of his vehicle is false and hence denied.    

 

 

4.             Further O.Ps avered that, the complainant had executed a loan cum hypothecation agreement in favour of O.P. financial institution at

Bidar branch on 24/05/2014.  In view of availing of loan from O.P. financial institution, the complainant is a BORROWER of O.P.  Therefore  the BORROWER is not a consumer within the meaning of section 2(1) (d) of the Consumer Protection Act.  Hence, complaint filed by the complainant against O.P. financial institution is not at all maintainable before the Forum.  The complainant also has borrowed the loan from the O.P. to purchase the said vehicle for the purpose of his transportation business.  The loan availed by the complainant is a commercial vehicle loan and the complainant is commercial user of the vehicle.  Therefore complainant is not a consumer within the meaning of Section 2 (1) (d) of the C.P.Act. hence the case is not maintainable before the Forum.  The essence of the loan agreement executed by the complainant is prompt, punctual and regular payment of monthly loan instalments.  The complainant did n ot honour his commitment and not paid the monthly instalments as per the loan repayment schedule.  He has become a defaulter.  The O.Ps have issued notice to the complainant and his guarantor and both have neglected to clear the dues and to settle the account of O.P. even after acknowledging the notice.  Even after committing default by the complainant he has made false and reckless allegations against the O.P. financial institution.  The complainant is bound to put strict proof of the allegations made.   According to clause 15 of the loan cum hypothecation agreement, the complainant has agreed and undertaken to get resolve all his disputes, claims or difference opinions in respect of vehicle loan transaction if any through a process of Arbitration.  Therefore, in view of existence of Arbitration agreement, instead of approaching Arbitral Tribunal, the complainant has directly approached the Forum.  Hence, the complaint before the Forum is not maintainable and the complaint may be dismissed with costs.

 

 

 

5.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

1. Whether or not, this Forum has the jurisdiction to try this case?

 

2. Does the complainant prove that, there has been a deficiency of service in the part of the Opponents?

 

3. What order ?

 

 

6.           Our answers to the points stated above are as follows:-

 

               1.  In the affirmative

               2.  In the negative in part.

                4. As per final orders due to the following:-

 

 

 

:: REASONS ::

 

7. Point No.1:-     The O.P. Finance company adopting it’s standard way of objections is vociferous to quote that, the relationship of the complainant vis-a-vis to the O.P. is that of a borrower, precluding himself to approach this Forum as a consumer.  Further, the O.Ps claim that, the agreement between the parties in Cl.15 being inclusive of an arbitration arrangement, the complainant is barred to approach this Forum.

 

8.                   We are in total disagreement with th is sort of canvassment of the O.Ps.  Section 2(1) (o) of the C.P.Act, 1986 interalia in the definition of service, includes “finance”.  In normal legal parlance and as per the Contract Act, it is expected from both sides to adhere to the terms of contract in entirety.  Any breach of the same, would give rise to a legal dispute to be adjudicated by a legal  Forum vested with power to adjudicate the dispute and this Forum having so vested is no where precluded to  intervene  in a dispute between the lender and borrower, the later being automatically a consumer of the formers’ services of financing.

 

9.         Next, section 3 of the C.P. Act,1986, mandating that, the provisions are in addition and not in derogation of any other act for the time being in force, an extraneous jurisdiction is conferred upon this Forum to adjudicate the case, not  withstanding the clause of arbitration.  Hence, we discard the rhetoric of the O.P. and rule that, this Forum is not precluded to try this case and answer the point in affirmative.

 

10. Point No.2:-   In the instant case, both sides are deliberately resorting to utter untruthfulness and trying to run with hares and hunt with the hounds.  For example, the complainant states that, he was required to pay 33 E.M.Is @ Rs. 10,384/- p.m. starting from next month of 24/05/2014 ( The date of agreement).  The complainant further claims to have paid a sum of Rs. 1,39,850/-, keeping balance repayable by a sum of Rs. 1,10,150/- and interest.  Further he claims to have paid last instalment on 04/10/2015.  It is further claimed, the 3^rd O.P. has seized the vehicle in the month of January-2015 without any notice. The payments figure and the dues figure quoted by the complainant is an antithesis of the document produced by himself.   Vide Ex.P.6, the total dues is reflected as Rs. 300443.39 ps.  The complainant has never made a whisper about it.

 

11.              Vis-a – vis to  the averments of the complainant, the O.Ps in para-3 of the versions claim that, the complainant had made the last delayed payment of Rs. 20,000/- on 21/09/2015 only.  This claim, when put across Ex.P.6, issued by the O.Ps themselves appears to be a blatant lie, since a receipt of Rs.18,683.00 is reflected as later as 05/03/2016.  So, we are in quandary.  Do we have to blindly believe the averments of the parties in their respective pleadings or the documentary evidences produced by them?  Further, the summary at the end of Ex.P.6 does not match with the earlier figures of the accounts statement and hence we are constrained to hold that, both sides are lying to justify themselves putting wools on the eyes of this Forum.

 

12.                  Next, to deal with the allegations of the complainant that, the vehicle was seized without prior notice, we fix our gaze at Ex.R.4.  This is a document of dt. 25/12/2015, vide which, the complainant has surrendered the pledged vehicle to the custody of the financier, with an undertaking to retrieve the same within a week, clearing all back dues, least the later would be empowered to deal with the matter as per law.  Basing on t his declaration, it appears, the O.Ps vide Ex.R.6 have issued presale notice of the vehicle on 20/01/2016.  However, there is no document available about the final sale of the vehicle.  The complainant never counters it, but concedes that, the vehicle was sold in auction.  Now, but the question remains, how the O.P. did receive an amount of Rs. 18,683-00 as on 05/03/2016?  Would it not tantamount to unfair and unethical trade practice as defined under the Act?  Thence, we hold that, there has been in reality a deficiency of service in the part of the O.Ps but quantified and conceded by the complainant in subtle form and answer the point accordingly. 

13. Point No.3:-   Now, as brought out by the complainant the vehicle has been sold in auction by the O.Ps, though it is not clear, whether the ownership has been changed in the R.T.O. records, in view of the Ex.P.1,    ( R.C. book), produced by the complainant and no rival claim made by the O.Ps.  We cannot put a third party, the purchaser to inconveniences at the coaxing of the feuding parties herein.  But, we cannot be oblivious of the fact of bungling of accounts of either side and thereby proceed to pass the following:-

 

 

:: ORDER ::

 

              Complaint is allowed in part.

 

   

1.  The O.Ps for their unsavoury acts of unethical and restrictive trade practices, would be precluded from collecting any extra amount(s) from the complainant.  

 

2. There would be no order as to cost (s) or otherwise from either of the parties;

 

 

3. Penalty imposed on 16/08/2016 to be collected from the   

complainant.

 

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 17^th  day of  June-2017 )

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                            

 

 

 

Documents produced by the complainant

1. Ex.P.1-  Registration Certificate.
2. Ex.P.2-  Certificate of fitness.
3. Ex.P.3- Pollution under control certificate.
4. Ex.P.4-Permit in respect of a contract carriage.
5. Ex.P.5-Certificate cum policy schedule.
6. Ex.P.6-Copy of statement of account.
7. Ex.P.7-Copy of loan receipt.

 

Documents produced by the Opponent/s

1. Ex.R.1-Copy of power of Attorney.
2. Ex.R.2-Loan cum hypothecation agreement.
3. Ex.R.3-Final reminder notice.
4. Ex.R.4-Copy of letter addressed to Sriram Transport Finance Co. By complainant.
5. Ex.R.5-Tagare parking yard particulars copy.
6. Ex.R.6- Copy of vehicle for sale by Sriram Transport Finance Co.

 

 

 

 

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                  President.

 

 

mv.