Karnataka

Kolar

CC/10/2016

Sri.K.S.Parusurama - Complainant(s)

Versus

Shriram Transport Finance Company Limited, - Opp.Party(s)

Sri.B.V.Anand

07 Oct 2016

ORDER

Date of Filing: 19/03/2016

Date of Order: 07/10/2016

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 07^TH DAY OF OCTOBER 2016

PRESENT

SRI. R. CHOWDAPPA, B.A., LLB…..    MEMBER (In-charge President)

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 10 OF 2016

Sri. K.S.Parusurama,

S/o. K.S. Sathyappa,

Aged About 33 Years,

# 78, Municipal Layout,

Chikkaballapura Town,

Chikkaballapura District.

 

(Rep. by Sriyuth. B.V.Anand, Advocate)                            ….  Complainant.

 

- V/s -

1) Shriram Transport Finance

Company Limited, Branch Office

At: #19-4-12, Araveti Ramaiah

Arcade, Upstairs, Gooty Road,

Anantapur, Andhra Pradesh.

(Rep. by Sriyuth. C.M. Niranjana Swamy, Advocate)

 

2) The Regional Transport

Officer, Chikkaballapura,

Chitravathi, NH-7,

Honnenahalli, Chikkaballapura.

(In-Person)                                                  …. Opposite Parties.

-: ORDER:-

BY SMT. A.C. LALITHA, LADY MEMBER

01.   The complainant having submitted the complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 has sought, relief against these Ops, for enquire and quash the endorsement issued by the OP No.2 dated: 17.02.2016, for issuance of directions to OP No.1 to release the seized vehicle bearing No. AP-26-X-2886 and to cancel the illegal sale done by OP No.1 and also issuance of directions to OP No.1 to pay a sum of Rs.1,00,000/- towards damages and any other reliefs as this Forum deems fit.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, on 15.12.2012 he had availed loan of Rs.8,20,000/- (Eight Lakh Twenty Thousand) from the OP No.1 for the vehicle Ashoka Leyland (HGV) bearing No.AP-26-X-2886, for his livelihood. 

 

(b)    Further it is contended that, the EMI for his loan was a sum of Rs.24,441/- and he had repaid EMIs regularly to the OP No.1.  And that up to the date of filing of the present complaint he had paid more than Rs.5,00,000/-.

 

(c)    Further it is contended that, the OP-1 had seized the said vehicle on 30.08.2014 near Jamakandi.  And that, the request of him, for the said loan statement and request for clearance of loan amount also was of no use.  And that, the same came to be sold in an auction without any notice nor given any paper publication by violating the principles of natural justice.

 

(d)    And OP No.2 had issued notice to him with regard to transfer of ownership to the auction purchaser.  He had filed objections to it.  So contending, the complainant has come up with this complaint on hand to seek the above set-out reliefs.

 

(e)    Along with the complaint the complainant has submitted below mentioned documents:-

(i) Receipts pertaining to payment of EMIs by the complainant towards loan

(ii) Endorsement issued by the OP No.1 for seizure of the vehicle.

 (iii) Notice issued by the OP No.2.

 

03.   In response to the notices issued by this Forum served on Ops and OP No.1 has put in its appearance through its said learned counsel and has submitted written version.  And OP No.2 has put in its appearance through its authorized representative Sri. Putta Siddanaika and has submitted written version.

 

04.   In the version OP No.1 contends that, the complainant was not a Consumer as defined under the Act, mainly because this complainant availed loan from Op No.1 on 12.01.2013 at Ananthapuram, Andhra Pradesh state for the vehicle AL TUSKER SUPER bearing registration No. AP-26-X-2886 was for running vehicle commercial purpose.  Hence this Forum lacks jurisdiction.

 

(a)    And that, the complainant had availed loan of Rs.8,38,051/- to purchase the vehicle vide Registration No. AP-26-X-2886.  By denying averments in the complaint, it admits EMI for the said loan was Rs.24,441/-.  It specifically contends that, as the entire transaction was taken place at Ananthapuram, Andhra Pradesh State.  Hence this Forum lacks territorial jurisdiction. 

 

(b)    There is a denial of deficiency of service as contended and as the complainant was guilty of committing default in payment of installments, the said vehicle was repossessed on 30.08.2014, for which no need of giving pre-notice according to the dictum laid down by the Hon’ble High Court of Karnataka.  And that as the complainant did not respond they were constrained to sell the said vehicle on auction.

 

(c)    The complainant had not repaid installments regularly as per Art.7 of loan agreement.  And that such loan amount and payments and dues were mentioned below:-

(i) Loan amount                                         ::        Rs.8,38,051/-

(ii) Interest amount @ 10.95% for

51 months                                                 ::        Rs.4,12,145/-

(iii) Overdue installments including

Additional financial charges                     ::        Rs.1,00,495/-

(iv) Legal Expenses                                    ::        Rs.5,000/-

(v) Total dues as on 30.08.2014               ::        Rs.1,14,626/-

 

(d)    Further it is contended that, the complainant had also agreed to pay delayed payment charges at the rate of 3% per month.  As such, total due amount payable by him as on 30.08.2014 was Rs.1,14,626/-.  And also contends that, this complaint is barred by limitation since they have been already seized and sold the vehicle.

 

(e)    The said vehicle was sold on 18.09.2015 for a sum of Rs.4,04,790/- and after crediting the same to the loan amount, the complainant is still due for a sum of Rs.5,40,349/- including overdue compensation of Rs.1,00,495/- and other incidental expenses of Rs.41,256/-.  Since the same is pending before Arbitrator at Ananthapuram vide Arbitration No.365/2016, by intend to escape from liability the complainant had come up with this false complaint.

(f)     Further it contends that, OP-2 is not a necessary party to this case.  And as the complete transaction was taken place at Ananthapuram and vehicle registered at RTO, Ananthapuram, this Forum has no territorial jurisdiction to try the suit.  And that under these circumstances there could be no deficiency in service.  And that the complaint is liable to be dismissed with compensatory costs of Rs.25,000/- has been sought.

 

05.   OP No.2 through its representative has submitted written version as there was no comments to the averments of the complaint.  And with regard to Para-7 of the complaint it says that, the OP-1 had filed an application on 20.11.2015 in Form-36 for issuance of fresh registration certificate in respect of vehicle bearing No.AP-26-X-2886 (HGV) in favour of OP No.1.  Hence OP No.2 had issued a notice on 18.01.2016 in Form-37 Under Section 51(5) of Motor Vehicle Act, 1988 to the complainant.  And the complainant had opposed for it through a letter dated: 25.01.2016 and not surrendered the original registration certificate.

 

06.   The very complainant has submitted his affidavit evidence by way of examination-in-chief and got himself examined as PW-1 and Exhibits-P.1 to P.24 came to be marked and received in evidence.

 

07.   On behalf of the OP-1 Sri.C.Nagaraju, the Power of Attorney Holder has put in his affidavit evidence by was of examination-in-chief.

 

08.   On 27.07.2016 the learned counsel appearing for the complainant has submitted written arguments.

 

09.   On 27.07.2016 the learned counsel appearing for OP No.1 has submitted written arguments along with below mentioned citation:-

(i)     II (2016) CPJ 5 (NC)

 

10.   On 16.08.2016 the learned counsel appearing for OP No.1 has submitted Memo with below mentioned documents:-

(i)    True copy of Arbitration claim petition No.365/2016

(ii)   True copies of Loan-cum-hypothecation agreement dt: 12.01.2013.

(iii)  True copy of Loan Account.

 

11.   On 29.09.2016 the learned counsel appearing for complainant has submitted Memo with below mentioned document:-

(i)       Certificate of Registration

 

12.   Heard the oral arguments as advanced by the learned counsel appearing for complainant as well as OP No.1.

 

13.   As there is IA No.1 has been submitted as contemplated Under Section 13(3B) of Consumer Protection Act, 1986 for seeking stay as not to transfer the said vehicle.  As per the proceedings noted in the order-sheet dated: 04.04.2016 order has been passed on IA No.1 as to maintain ‘status quo’ till further orders.

 

14.   Therefore the points that do arise for our consideration in this case are:-

(A) Whether the complaint is barred by limitation?

(B) Whether this Forum has territorial jurisdiction to entertain the complaint?

(C) Whether the complainant was/is a Consumer as envisaged Under Section 2(1)(d) of the Consumer Protection Act, 1986?

(D) If so, in the presence of Hire Purchase Agreement the Ops could be held as guilty of deficiency in service?

(E) If so, to what relief the complainant is entitled to?

(F) What order?

15.   Findings of this District Forum on the above stated points are:-

POINT (A):-  In the Negative

POINT (B):-  In the Affirmative.

POINT (C):-  In the Affirmative.

POINT (D):-  In the Affirmative.

POINT (E):-  The complainant is held entitled to recover a sum of Rs.5,25,000/- together with interest @ 9% per annum from 19.03.2016 being the date of the complaint till realization exclusively from OP No.1.

POINT (F):-  As per the final order

for the following:-

 

REASONS

POINT (A):-

16.   OP No.1 contends that, the cause of action for the complaint is false, it is barred by law of limitation, since the said vehicle was already seized and sold out on 18.09.2015, hence the present complaint is barred by law of limitation. 

 

(a)    This contention of OP No.1 is very surprise to us, because the said vehicle was seized and sold out on 18.09.2015 admittedly, and the very complainant was received a letter from Op No.2 on 10.02.2016 in the sense the said issue has come to the knowledge of the complainant on 10.02.2016 and filed objections to it also, with this it is clear that, the said issue is still in motion and cause of action is arised at the time of receiving the letter from OP No.2 only i.e., on 10.02.2016.  Hence no doubt, the complainant has approached this Forum within time and the complaint is not barred by law of limitation.  Hence we are of the definite opinion that, on receipt of the notice dated: 18.01.2016 issued by OP-2 dated: 10.02.2016, the complaint came to be registered on 19.03.2016 is within time.  So the contention of OP No.1 with regard to limitation point is untenable.

 

POINT (B):-

17.   As the principles enunciated in the citation relied by the learned counsel appearing for OP No.1 with regard to territorial jurisdiction is in-applicable to the case on hand and the documents submitted by the learned counsel appearing for the complainant do apply to the present facts of the case, such as, in the certificate of registration of the said vehicle it clearly shows that, the address of the complainant is “No.78, Municipal Layout, Chikkaballapur Town and District” and the very vehicle is registered at Chikkaballapura RTO which is very much within the territorial jurisdiction of this Forum.  What else would require to consider that, this Forum has territorial jurisdiction to entertain the complaint?  So, we are of the definite opinion that, this Forum has territorial jurisdiction to entertain the complaint on hand.

 

Point (C):-

18.   The learned counsel appearing for the OP No.1 maintained that, the said vehicle purchased for transport business being for commercial purpose as per the said provisions of Section 2(1)(d) of the Act and the complainant was/is never a Consumer.  As against the said submissions the learned counsel appearing for the complainant maintained that, such purchasing of the said vehicle was for self-employment and even instances like hiring others instead of keeping the vehicle idle or plying the same as public carrier by himself and at times to allow cleaner to drive the vehicle, would have the effect of treating him as Consumer only, as per the provisions of the said Act.

 

19.   No doubt, the contentions taken by OP No.1 are in-applicable to the case on hand and the treatise as relied by the learned counsel appearing for the complainant do apply to the present facts of the case.  Hence we have no hesitation to hold that, the present complainant was/is Consumer within the meaning of Provisions of the said Act.  Besides we are mindful about the plea maintained by the complainant which is to the effect that, by using the said vehicle he was earning for his day-to-day life.  This would mean rather emphatically that, the complainant was using the vehicle in question for his self-employment.  So we reaffirm that, the complainant was/is a Consumer as per the said provisions of the Act.

 

POINTS (D) & (E):-

20.   To avoid repetition in reasoning and as these points do warrant common course of discussion the same are taken up for consideration at a time.

 

(a)    Undoubtedly purchase of the said vehicle was under Hire Purchase Agreement and as the OP No.1 financer being real owner of the said vehicle had every right and authority in law to repossess the said vehicle and even to sell the same in auction to realize the balance.  But even in the presence of Hire Purchase Agreement and the contended dues being there, if the vehicle came to be repossessed forcibly and without any reasonable cause and such vehicle was to be sold at throw away price, the same would be illegal and hence the OP No.1 since is guilty of the same is accountable for deficiency in service.

 

(b)    True when the purchase is through Hire Purchase Agreement in case of default in payment of installment necessarily the creditors have dominating right being owners of such vehicles to repossess and to sell the same, but the same shall have to be subject to following certain legal procedures.  And one of such legal procedure is to ascertain what exactly was the out-standing due just prior to repossession of the vehicle from the person to whom financial help has been extended and secondly to put him on guard by issuing pre-seizure and pre-sale notices, so that, principles of natural justice would have met in case of such a person were to come forward either to discharge the dues or to agitate the very claim of financier with regard to the contended outstanding dues, if according to him arrival of out-standing dues was erroneous. What has happened in this case is, the OP No.1 was guilty of deficiency in service by taking illegal steps of seizer of the said vehicle and the contended attempt is done without issuing pre-seizure and pre-sale notice, the same would amount to deficiency in service.  So now we proceed to assign our reasons for arriving at such conclusion. 

 

(c)    As per the final payment of loan installment receipt bearing No. CHLLK 1408230005, dated: 23.08.2014, the complainant paid a sum of Rs.30,000/- towards the said vehicle loan installment (reliance on Exhibit-P.22).

 

(d)    Exhibit-P.23 would indicate that, as on 30.08.2014, OP No.1 had seized the said vehicle.  In Para-15 of the written version of the OP No.1 it is specifically contended that, “OP No.1 being a financier entitle to take repossess of the vehicle without further notice in case of default of payment of monthly installments.  The complainant not paid the monthly installment regularly”.

 

(e)    When so, what would be the amount of Rs.30,000/- received by the complainant on 23.08.2014, whereas the receipt towards loan installment was issued by this OP No.1 only.  And also Exhibits-P.1 to P.22 are the receipts pertaining to payments made by the complainant towards installments.  It clearly discloses that, the complainant is in regular payment of dues and not a defaulter.  Besides what is the ground to seize the vehicle within 07 days of the installment payment without giving any prior notice?

 

(f)     Therefore the contended sale of the said vehicle without giving an opportunity for the complainant was legally entitled to, so that he could have made legitimate representations to the OP No.1 as to how and why the vehicle in question was not at all to be sold by the OP No.1.  This is glaring and inexcusable error on the part of the OP No.1 which has resulted in deficiency in service.  As such, OP No.1 is guilty of violating the principles of natural justice in not communicating the complainant with letter of seizure as well pre-sale letter and sale of the vehicle conducted on the part of the OP No.1 was nothing but illegal and hence there was total deficiency of service on the part of the OP No.1.

 

(g)    The reliefs claimed is to quash the endorsement issued by the OP No.2 dated: 17.02.2016, and cancel the sale done and return the said vehicle.  It is undisputable that, it has already been sold out.  In such event we cannot even think of granting of the relief though the complainant has been worst hit on account of wrongful conduct of Op No.1.  Had the vehicle been in the custody of the OP No.1 then there could have been occasion for us to consider the claim of the complainant for returning of the said vehicle.

 

(h)    With regard to OP No.2 as it is only a formal party and there is no any direct nexus between the complainant and OP No.2.  So, we consider OP No.2 is only a formal party and consequently the “status quo” order passed by this Forum on 04.04.2016 on I.A. No.1 is set aside in the interest of justice as the case is decided on merits and liability is only on the part of OP No.1.

 

(i)     So we are of the opinion that, whatever the sums the complainant has paid so far to the OP No.1 shall have to be refunded.  Admittedly the Exhibit.P.1 to P.22 the receipts of payments disclosed he had paid in a total sum of Rs.3,88,700/- and he pleaded that, some receipts are with OP No.1 and in the cross-examination he says that, he had paid Rs.20,000/- to Sri. Balaram, Field Officer of Op No.1, on for which, he had not given receipt.  So according to complainant he paid altogether in total sum of Rs.5,00,000/- (reliance on Para-3 of complaint).

 

(j)     Further we are also of the definite opinion that, the complainant is entitled to compensation for the deficiency in service he has suffered we quantify the sum as in a sum of Rs.25,000/-.  As such, the complainant is entitled to recover the total sum of Rs.5,25,000/- together with interest at the rate of 9% per annum from 19.03.2016 being the date of the complaint till realization exclusively from OP No.1. 

 

POINT (F):

15.   We proceed to pass the following:-

ORDER

01.   For foregoing reasons the complaint stands Allowed with costs of Rs.3,000/- against OP No.1 only as hereunder and stands Dismissed with no costs as against OP No.2 being a formal party.

 

(a)    The complainant is held entitled to recover a sum of Rs.5,25,000/- together with interest at the rate of 9% per annum from 19.03.2016 being the date of the complaint till realization exclusively from OP No.1.

 

(b)    We grant time of one month to the OP No.1 to comply the order from the date of receipt of this order.

 

02.   Send a copy of this order to both parties free of cost

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 07^th DAY OF OCTOBER 2016)

 

 

 

 

LADY MEMBER                                    MEMBER(In-charge of President)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ANNEXURES

LIST OF PROSECUTION WITNESSES EXAMINED ON BEHALF OF COMPLAINANT:-

 

1) PW.1  ::            Sri. Parashuram.

LIST OF DOCUMENTS EXHIBITED ON BEHALF OF COMPLAINANT:-

 

Exhibits P.1 to P.22:- Copies of 21 receipts.

Exhibit P.23:-              Copy of parking receipt dated: 30.08.2014

Exhibit P.24:-             Copy of endorsement dated: 11.02.2016 issued by RTO

 Chikkaballapura.

 

LIST OF PROSECUTION WITNESSES EXAMINED ON BEHALF OF OPs:-

-  Nil –

 

 

LIST OF DOCUMENTS EXHIBITED ON BEHALF OF OPS:-

 

- NIL –

 

LIST OF INTERIM APPLICATIONS SUBMITTED BY BOTH PARTIES:-

 

IA.1 :   Under Section 13(3B) the Consumer Protection Act

IA.2 :   Under Sec. 151 of CPC

 

 

 

 

 

 

LADY MEMBER                                 MEMBER(In-charge of President)