Karnataka

Bidar

CC/34/2015

Babumiyan S/o Mohmad - Complainant(s)

Versus

SRIRAM TRANSPORT FINANCE COM. LTD - Opp.Party(s)

P M DESHPANDE

07 Mar 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::

 

 

                                                                                                          C.C.No. 34/2015

 

                                                                                          Date of filing: 16/04/2015

 

                                                                                    Date of disposal : 07/03/2017

 

 

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:          Babumiyan, s/o Mohmad,

                                      Age: Major, R/o Jambgi,Tq.Aurad (B),

                                         Dist.Bidar.

 

                                                                                                                                                    

 

 

                                     (By Shri. P.M.Deshpande., Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-             Sri Ram Transport and Finance Limited,

                                          Near Stadium,Bidar.

 

                                     

 

                       

                                      ( By Shri. S.Wilson, Advocate )

 

 

::   J UD G M E N T  : :

 

 

By Shri. Jagannath Prasad Udgata, President.

 

                    The complainant is before this Forum filing a complaint u/s 12 of the C.P. Act, 1986 against the O.P as described hereunder:-  

 

2.           That, he to eke out a living had opted to purchase a  Mahindra Pick up vehicle  bearing no. KA.29/5661 under hypothecation with O.P. and the complainant paid the EMIs totalling Rs. 1,20,700/- to the O.P.  Apart from this the complainant paid insurance premium, taxes and fitness certificate charges etc.  Complainant avers that the in spite of receiving EMI amounts, the O.P. has seized the vehicle without giving prior notice and the vehicle sold in the auction.  Later on the O.P. had issued a letter dt. 29/09/2014 demanding a sum of Rs.90,566 to the complainant.  Due to unlawful seizure of the vehicle, the complainant suffered monitary loss and lost his earning capacity and suffered great mental agony.  Hence the complainant is before this Forum.

3.                     On service of Court’s notice the O.P. has appeared   and filed his written version therein stating that, the allegations made in the complaint   by the complainant are false and wrong both on law and facts, hence denied by the O.P.  The complaint is not maintainable for the non-joinder of the necessary party, which the Shree Birdev Finance Pvt. Ltd.,  which had advanced the loan and used to collect the EMIs.  The complaint is misconceived and filed with the sole intention to harass the O.P.  The contents of para no.1 of the complaint is declaratory, hence needs no specific rebuttal.  The  para no.3 contains the descriptions of the said vehicle bearing reg.no.KA29/5661,, hence the burden of proving the same may be put on the shoulders of the complainant.  The column (e) is the insurance policy details pertaining to year 2012-13, hence not relevant to the current year.  The column (h) i s total paid amount, which is disputed and denied.  The column (j) shows the flow of ownership of the said vehicle  which to be  better answered by the Shree Birdev Finance Co. Ltd., which is not made the party by the complainant.  The contents of the para no.4 are the alleged EMI payments made by the complainant to the Shree Birdev Finance Co. Ltd, which is not being made party to the complaint and the complainant may kindly be put to strict proof of the same.

4.                 The allegation made in  para no.5 of the complaint that, this O.P. unlawfully seized the vehicle by using henchmen and thereafter the O.P. sold/ auctioned the vehicle and did not intimate all the events,  suppressed the true facts is false and denied by the O.P.     The advancing and recovering of the loan amount was taken up by the franchisee of the O.P. i.e. Shree Birdev Finance Co. Ltd. which could have been in better position to rebut the false claim of the complainant, but the complainant has not made party in this complaint which is necessary party for the proper adjudication of the complaint.  The alleged letter demanding Rs.90,566 from the complainant is rightfully issued for the recovery of the loan amount.  The para no.6 does not require any specific answer as the O.P. is not obliged to provide the information as enumerated in columns (a) to (d), but the same can be obtained by requesting for the same at the concerned branch office.  The complainant nowhere mentioned that he had requested the O.P for providing the said information.   

5.            The contents of the para no.7 of the complaint the complainant is put into trouble, inconvenience and he has lost all his earning capacity due to unlawful seizure of vehicle, sustained heavy losses, mental, physical monitary etc. to the extent of 2,00,000/- including compensatory costs damages etc. and the O.P. is liable to reimbursement and payable to the complainant is false and wrong as specifically denied by the O.P.  The complainant has got no cause of action to invoke the provisions of the Consumer Protection Act.  The   complainant , O.P.  and his  franchise Shree Birdev Fiannce Co. Ltd. are bound and governed by the Hypothecation agreement and hence the complainant does not fall in the definition of ‘ Consumer’ and nothing has been proved by way of documentary evidences to attribute alleged unfair trade practice and deficiency of service on the part of the O.P. The complainant has availed the loan from the O.P. through it’s franchisee Shri Birdev Finance Pvt. Ltd. for purchasing the commercial vehicle and plying it for making profits, hence the complainant does n ot qualify as a ‘ Consumer’ as per the Consumer Protection Act, and hence, the complaint is liable to be dismissed with heavy costs.

6.          Both sides, have filed their evidence affidavits along with documents, written arguments reiterating their respective stands, so also documents listed at the end of this order, distinctly.

 

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

 

 

1. Does the O.P. prove that, the case is bad by non-joinder of necessary party?

 

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

 

3. Does the O.P. prove that, the complainant is not a Consumer?

 

 

 

4. What order ?

 

 

 

 

 

 

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

 

1. In the negative.
2. In the affirmative.
3. In the negative.

               4. As per the final order, for the following:

 

 

                                          :: REASONS::

 

9.  Point No.1:-  From the narrations of the O.P. in the versions, evidence affidavits and arguments it is evident that, the O.P. is playing a game of Jekyll and Hyde.  In one word, the O.P. demands that, M/s Birdev Finance not being made a party, the case is bad by non-joinder, in the  other words, the O.P. claim that, M/s Birdev Finance is it’s franchisee and the loan has been advanced by the O.P.  Even documents filed by the O.P. prove that, it has been instrumental to coordinate with Transport authorities for transferring the ownership of the vehicle etc.  So, by it’s own admission, the O.P. makes itself liable vicariously for the actions of it’s franchisee.  Hence we answer the point in the negative.

 

10.  Point No.2:-   As the matter stands, both sides happen to be in agreement that, the complainant had availed a loan from the O.P. thorugh franchisee of the later, to purchase a motor vehicle to eke out a living.  Though, the O.P. claims that, the complainant was  using the vehicle for commercial purpose by engaging a driver, no effective proof has been ever produced by the O.P.  In the absence of such proof we are inclined to believe  the deleberations of the complainant to be falling in the explanation  of the section  2(1) (d) of the C.P.Act, 1986.

 

11.                  Coming to the fact of the seizure of the vehicle by the O.P. by itself or it’s franchisee, it’s an approbation itself, which the party cannot reprobate later, basing on the legal maxim “Qui approbaate, nemo reprobate”.  The vehicle has been seized and sold in  auction to some unknown third party by the high handed actions ofthe O.P.    Such kindof action by the financiers has been deprecated by the Hon’ble Apex Court in the Judgment:-

 

1. 2001 (1) S.C.C. 481

ICICI Bank V/s Prakash Kaur.

 

2.   2012 (1) S.C.C. 1.

Citicorp Maruthi Fi. Ltd. V/s Vijayalaxmi.

 

and the same has been followed by the Hon’ble National Commission in the later Judgment reported in 2014 (4) CPR 724 (NC)

M/s Sundaram Fi. Ltd. V/s Sh.Atul Kumar, which reads as follows:-

 

“ Musclemen cannot be allowed to interfere with peace of society and vehicle cannot be possessed without intervention of Court”.

 

We are in respectful agreement with the ratios stated down above, having it’s binding effect under article 141 of the Constitution of India and hence answer the point no.2 accordingly.

 

12. Point no.3 :-  Notwithstanding the objections of the O.P., we fix our gaze to the definitions laid down in section 2 (1) (o) of the C.P. Act, 1986, where in the  term finance is included.  Therefore, we answer the point  in the negative.

13.              Coming to determine the compensation to be awarded in favour of the complainant, a figure of Rs.2,00,000/- is being claimed by the complainant without any basis or justification.  The same cannot be granted at the whims and fancies of the complainant.  Per contra, the O.P. in spite of illegally seizing the vehicle without any prior notice has sold the vehicle in auction, resorting to unethical trade practice and causing deficiency of service and hence appropriate relief has to be granted to the complainant and hence we proceed to pass the following.

 

: :   ORDER : :

                      The complaint is allowed in part.

 

1.  The O.P. would be precluded to collect any amount in the grab of default dues from the complainant.
2.    The O.P. has to pay a compensation of Rs. 10,000/- towards the inconveniences caused to the complainant together with a sum of Rs.5,000/- towards litigation expenses.
3.  Four weeks time granted to comply the direction at clause  (b)‘  above.

 

 

 

 

 

   ( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 7^th  day of March-2017 )

 

 

 

Sri. Shankrappa H.                                          Sri. Jagannath Prasad                 

        Member                                                                  President

 

 

 

Documents filed by the complainant.

 

1. Ex.P.1- Instalment receipt,dt.19/02/2012
2. Ex.P.2- Instalment receipt,,dt.19/09/2012
3. Ex.P.3- Instalment receipt,dt.17/04/2012
4. Ex.P.4- Instalment receipt,dt.13/03/2012
5. Ex.P.5- Instalment receipt,dt.18/08/2011
6. Ex.P.6- Instalment receipt,dt.14/06/2011
7. Ex.P.7-  Instalment receipt,dt.24/09/2011
8. Ex.P.8-  Instalment receipt,dt.05/12/2011
9. Ex.P.9- Instalment receipt,dt.12/06/2012
10. Ex.P.10- Instalment receipt,dt.13/07/2012
11. Ex.P.11- Instalment receipt,dt.14/03/2013
12.  Ex.P.12- Arbitration notice, dt.29/09/2014.
13. Ex.P.13- Copy of Insurance policy.
14. Ex.P.14- Certificate of fitness.
15. Ex.P.15- Registration certificate.
16. Ex.P.16- Driving Licence of Mohd Babu Miya.

 

Documents filed by the O.P.

1. Ex.R.1- Copy of Power of Attorney.
2. Ex.R.2- Original loan cum hypothecation agreement.
3. Ex.R.3-Original ‘B’Registrar Extrct.
4. Ex.R.4- copy of mail, dt. 23/03/2011  and Xerox copy of  cheque.
5. Ex.R5-Copy of ‘B’Register Extract.
6. Ex.R.6- Letter addressed to Shriram Finance,dt.20/04/2013.
7. Ex.R.7- Notice from Shriram Transport Finance Co.Ltd.,dt.24/07/2013.
8. Ex.R8-Final notice, from Shriram Transport Finance,dt.07-09-2013.
9. Ex.R9-Copy of Form no.36,dt.09/12/2013.
10. Ex.R10- Copy of Form no.37.
11. Ex.R.11- Endorsement of RTO
12. Ex.R.12-Delivery receipt.
13. Ex.R.13-Receipt of Transport Department,dt.21/04/2016.
14. Ex.R.14- Letter addressed to Deputy Transport Commissioner, Kalaburgi,dt.21/04/2016.
15.  Ex.R.15-Vehicle Sale notice,dt.20/02/2014
16. Ex.R16- Postal  acknowledgement card.
17. Ex.R.17-Unserved postal envelop.
18. Ex.R.18- Postal  acknowledgement card
19. Ex.R.19, R.20 & R.21- Postal receipts.
20. Ex.R.22- Statement of account.

 

 

 

Sri. Shankrappa H.,                                          Sri. Jagannath Prasad,                 

        Member                                                                     President.

 

mv.