This case is coming for final hearing on 23.12.2014 in the presence of Sri V.Lakshmi Prasad Advocate for the Complainant and of Sri P.V.Narayana Rao Advocate for Opposite Parties and having stood over till this date, the Forum delivered the following:

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on

behalf of the Bench)

1.       The case of the complainant is that he availed financial facility for his livelihood for an amount of Rs.7,00,000/- from opposite parties for the purpose of purchasing Engine and Chassis of a Tripper on some terms and conditions which was reduced into writing as agreement and a reference number was given to the agreement as old agreement No.TSCAKP 0075265 in the year 2006.  With the said amount the complainant got purchased Engine bearing No.697TC56HTZ135672 and Chassis bearing No.373145JTZ747287 of a tripper.  After that the complainant purchased lifts for a sum of Rs.1,00,000/- and 8 cut plates for a sum of Rs.40,000/-and Exide Battery for a sum of Rs.17,500/- from Auto Crate India, the shop which is situated opposite to Ramakrishna Theatre, Visakhapatnam.  The Complainant also purchased 6 tires model JK 39DX for a sum of Rs.1,02,000/- (each tire @ Rs.17,000/-) and thereafter the complainant took the engine and chassis from Sri Jai Veerabhadra Blacksmith works, at Anakapalle and spent Rs.2,50,000/- for body building and Rs.25,000/- for electricity lines and for cabin ceiling, then he registered his vehicle at RTO , Anakapalle and got registration No.AP31Y 4989.  The Complainant stated that the 1^st opposite party handed over the Engine and chassis on 27.10.2006 and kept in garage for four months for the purpose of its body building, paints and for installation of lifts etc.  Without giving any notice to the complainant, the 1^st opposite party’s men high handedly seized the vehicle on 03.02.2010 which was in good condition and that vehicle taken to the yard situated at Anandapuram Village, Visakhapatnam District, then, the complainant paid the full amount of Rs.4,10,000/- by way of cash to the 1^st opposite party at its Anakapalle Branch vide letter dated 11.01.2011 and on the same date the Branch Manager of Anakapalle addressed a letter of requisition for vehicle delivery to the 1^st opposite party.  Upon receiving the said letter the 1^st opposite party issued a delivery letter dated 15.02.2011 at 11.55a.m to the Yard Secretary, Shriram Transport Finance Co. Ltd., Anandapuram, Visakhapatnam directing the said Secretary to deliver the vehicle bearing No.AP31Y4989 to the bearer of the letter Sri G.Jagadeeswara Rao who is the elder brother of the complainant. The said G.Jagadeeswara Rao on the same day handed over the letter along with the identity proof to the yard Secretary of opposite parties at Anandapuram, where the vehicle is situated then, the complainant and his brother were shocked on seeing condition of the vehicle as the some of the parts were removed from the lorry and the vehicle was unfit to move from the place.  The removed parts are:

a. Exide Battery (MD 2000( worth about Rs.20,000/-).

b. Self Motor worth about Rs.30,000/-

c. Battery Main wire worth about Rs.8,000/-

d. Diesel Filter worth about Rs.5,000/-

e. 2 side walls worth about Rs.25,000/-

f. Main Pipe which starts filter to Engine worth about Rs.20,000/-

g. LB’s -2 worth about Rs.4,000/-

h. 4 Watchers worth about Rs.4,000/-.

Thereafter, the same was informed to the 1^st opposite party by the complainant by letter dated 21.02.2011, the opposite parties verified the tool list and requested give one week time to enquire into the matter, since then, so many times, the complainant went to the 1^st opposite party but the officers of the 1^st opposite party postponing the same on one reason or other. 

2.       On 22.12.2012 the complainant along with his brother and friends went to the 1^st opposite party and questioned the attitude of the employees of the opposite parties in delaying the vehicle for the last one year, but the office in charge of 1^st opposite party openly stated that the removed parts are not available with them and asked the complainant to take the vehicle as it is in condition and raised his voice and argued with the complainant.  Hence, as there is no option, the complainant filed this complaint because he borrowed money from private financers and by selling gold of his mother and paid the loan amount with a view to take back his vehicle but due to removal of the important parts from the vehicle by the employees of the opposite parties, the complainant could not move the vehicle from the yard.  Because of the acts of the opposite parties, the complainant suffered financially and mentally and being an unemployed youth the complainant, attempted to earn his livelihood by self-employment by running tripper, but his dreams were frustrated due to the conduct of the opposite parties.  Hence, this complaint to direct the opposite parties;

a)      to deliver the vehicle AP31Y4989 to the complainant with all parts as on the date of seizure.

b)      to pay Rs.15,00,000/- i.e., market value of the vehicle to the complainant in alternate

c)       to pay Rs.4,00,000/- towards compensation besides costs.

3.       On the other hand, the 1^st opposite party filed its counter and the 2^nd opposite party adopted the same.  The opposite parties pleaded that the complaint is not maintainable and is liable to be dismissed in limini, as admitted by the complainant, the same is filed beyond the period of limitation and hence, the same is time barred.  The Opposite parties stated that the complainant is not a consumer as defined under Section-2(d) of Consumer Protection Act and the Forum is not having jurisdiction to entertain the complaint, because the complainant is using his vehicle for commercial purpose i.e., for running transport business and thereby earning huge profits and running his vehicle for engaging drivers and supervisors which clearly proves that he is doing commercial transactions for earning profits by doing transport business.  Hence, the complaint is liable to be rejected on this ground alone. The complainant purchased the vehicle for transport business and it is purely for the purpose of commercial purpose.  The relationship between the complainant and the opposite parties is a creditor and debtor, hence not fall within the scope of Consumer Protection Act.  As per the agreement executed by the complainant, if any dispute arises between both the parties, the same shall be referred to the sole arbitrator and the matter should be delivered as per the Arbitration & Conciliation Act 1996.  The Complainant caused huge financial loss not only to these opposite parties but also the public as this opposite party granting loans to the customers who are in need finance towards purchasing commercial motor vehicles by mobilizing funds from the public.  The allegations made by the complainant regarding availing of loan of Rs.7,00,000/- and purchase of items like lifts, cut plates, Exide Batteries, six tires all are denied by these opposite parties. The complainant kept silent for all these months and years and now with an intention to get wrongful gain from the opposite parties, he filed the complaint by creating false stories.

4.       The opposite parties stated that the complainant approached for vehicle finance for tripper bearing No.AP31Y4989 of 2006 model and obtained finance of Rs.8,33,000/- and the total agreement value which includes interest is Rs.10,24,926/- repayable in 45 installments, but the complainant was a chronic defaulter, hence the vehicle was repossessed as per the terms and conditions and tool list was supplied to the driver of the vehicle even the complainant was given delivery letter, he deliberately did not take the vehicle to avoid yard rent in order to damage the reputation of opposite parties.  The Complainant is bound to pay the yard rent since 16.02.2011 which is estimated to Rs.500/- per day and the complainant can take the vehicle by paying the yard rent.  The complainant failed to prove the deficiency of service on the part of the opposite parties, hence, the opposite parties prays the Forum to grant damages of Rs.3,00,000/- and compensation of Rs.10,00,000/- and Rs.25,000/- towards expenses from the complainant and also direct the complainant to pay the entire arrears of installments as per the agreement terms and conditions.  As there is arbitration clause in the agreement, the complainant has to approach to the arbitrator for resolving any dispute, hence the complaint is to be dismissed.

5.       At the time of enquiry, the complainant filed his evidence affidavit along with documents which are marked as exhibits A1 to A5.  On the other hand, the opposite parties filed their counter, evidence affidavit and written arguments.  No documents were marked on behalf of the opposite parties.  Both the parties filed their written arguments and the counsel of the opposite parties represented no oral arguments, hence treated it heard.  There is no representation by the complainant event after imposing costs by the Forum, hence treated it heard for the complainant’s counsel. 

6.       In view of the respective contentions, the point that would arise for determination is:-

Whether there is any deficiency in service on the part of the opposite parties, if so can the complainant entitle for the reliefs prayed for?

7.       As per Exhibit A1 i.e., Letter of Requisition for vehicle delivery dated 11.01.2011 issued by the opposite parties wherein the collected amount is shown as Rs.4,10,000/-and at the end of the page there is a note “vehicles seized and settled” and the collected amount details along with receipt number, date and amount is also mentioned there, the amount in total collected by them is Rs.4,10,000/-.  Ex.A2 is the delivery letter dated 15.02.2011 by the opposite parties regarding the vehicle No.AP31Y4989 wherein it mentioned that “deliver above mentioned vehicle to the bearer of this letter and take signature from the receiver in tool list”.  Ex.A3 is the letter issued by the complainant to the opposite parties on 18.02.2011 wherein the complainant mentioned that because of default in payment of vehicle loan, the opposite parties seized the vehicle on 03.02.2010 and after that total settlement made by the complainant, the opposite parties issued delivery order on 15.02.2011 and the complainant when he visited the yard to take his vehicle then, he came to know that some of the items of the vehicle were missed and there itself the complainant requested regarding the missing items and fixing charges to the opposite parties and that sale letter i.e., Ex.A3 was acknowledged by one R.Sreenivas on 18.02.2011 with a stamp of opposite parties as Authorised Signatory.  Ex.A4 is the letter issued by the complainant to the opposite parties dated 21.02.20111 regarding the missing some items of the vehicle and also fixing charges and the same was acknowledged on 21.02.2011 by the opposite parties. Ex.A5 is the Market Value of the vehicle bearing AP31Y 4989 given by Sri Jai Veerabhadra Blacksmith Works wherein they mentioned the present value of that vehicle is Rs.15,00,000/- or more.  No date was mentioned in that Ex.A5. 

8.       The Complainant’s version is that he availed loan from opposite parties and the opposite parties seized the vehicle and after that he paid the amount which ever amount is due and opposite parties also issued delivery letter after receiving the request letter, then, the complainant approached opposite parties to take that delivery, then he came to know that some items are missing.  Then, he informed the opposite parties and also visited several times, but there is no positive response from the opposite parties.  Ex.A1 to Ex.A4 clearly establish this plea of the complainant.

9.       The main plea of the opposite parties is that, the complainant is not a consumer as he used the vehicle for commercial purpose, but not for his livelihood.  But in our view using a tripper by the complainant for his livelihood being an unemployed and more over if the complainant used the vehicle for commercial purpose, he has to register the nature of business, but in Ex.A1, the letter issued by the opposite parties clearly shows that they seized the vehicle of Mr.G.Dhanunjay, hence in our view, the complainant is running the vehicle for his livelihood only, hence he comes under the definition of Consumer Protection Act.  Moreover, the opposite parties have to substantiate this plea of Commercial purpose by filing any documentary evidence, but they failed to do so. 

10.     The other plea of the opposite parties is that the Forum has no jurisdiction as there is an arbitration clause in the agreement, as per Section-3 of the Consumer Protection Act, “the provisions of this Act, shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.  Hence, the Forum can entertain the complaint.

11.     The opposite parties pleaded that the complainant obtained loan for an amount of Rs.8,33,000/- with interest , Rs.10,24,927/- repayable in 45 installments, but the opposite parties have not come forward to file any documentary evidence to show the details of loan and the due amount of loan by the complainant to know that the complainant is in still default.  More over, the opposite parties also not substantiate its plea regarding the yard rent is Rs.500/- per day and that too, the opposite parties in its counter para-20 agreed that the complainant gave a delivery letter, but did not take the vehicle to avoid huge rent, but in our view, nobody will lost their vehicle because of rent.  Moreover, in Ex.A2 i.e., Delivery Letter issued by the opposite parties, there was no mention about the rental charges of yard is Rs.500/- per day.  Hence, we are of the view that the opposite parties have to mention in that Ex.A2 regarding the yard’s rent should pay by the complainant at the time of delivery, but simply they wrote that “deliver the mentioned vehicle to the bearer of this letter and take signature from the receiver in tool list”.  Thus, the opposite parties failed to strengthen its plea.

12.     When the complainant approached the opposite parties with delivery letter, he came to know that some parts are missing, then immediately on 18.02.2011 he issued a letter to the opposite parties regarding missing parts and again he issued another letter on 21.02.2011 to opposite parties, but even after acknowledging those letters, there is no positive response or no denial was made by the opposite parties which clearly shows the deficiency in service on the part of the opposite parties. 

13.     The complainant in his Ex.A5, he mentioned that the value of the vehicle is more than Rs.15,00,000/-, but it is not a valid document to assess  the true value, hence, the complainant can entitle his vehicle back with all parts.  The claim regarding the compensation by the complainant is on higher side, there is no doubt that the complainant suffered mentally and financially because of not having his vehicle.  Hence, to compensate it allowing Rs.30,000/- towards compensation is just and proper. 

14.     The opposite parties’ another plea regarding the limitation aspect that the delivery letter given by the opposite parties is on 15.02.2011 and the complainant filed this complaint on 04.02.2013 and the same was registered on 10.06.2013, hence there is no question of limitation and the complaint is not barred by time and within time only.

15.     Accordingly, this point is answered holding that both the opposite parties are liable to deliver the vehicle bearing NO.AP31Y 4989 to the complainant within three months with running condition and with all parts as on the date of seizure besides compensation of Rs.30,000/- .

16.     In the result, the complaint is allowed directing both the opposite parties to deliver the vehicle bearing No.AP31Y 4989 to the complainant with running condition and with all parts as on the date of seizure, within three months from the date of order to the complainant, failing which to pay Rs.50/- per day till the date of handing over the vehicle to the complainant.  The opposite parties are further directed to pay Rs.30,000/- towards compensation besides costs of Rs.2,000/-.

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 6^th day of January, 2015.

    Sd/-                                                                        Sd/-

Member                                                                 President (FAC)

                                                                   District Consumer Forum-I 

                                                                             Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:

                   NIL

    Sd/-                                                                       Sd/-

Member                                                                  President (FAC)

                                                                   District Consumer Forum-I

                                                                             Visakhapatnam

//VSSKL//