KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 693/10
JUDGMENT DATED: 23.9.2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANTS
1. The Manager
Shriram Transport Finance Co. Ltd.,
Sreepatham Building,
Cherutty oad, Calicut.
2. The Managing Director/ Manager
Shriram Transport Finance Co. Ltd.,
123, Angappa Naicken Street,
Chennai – 600 001
(Rep. by Adv. Sri.B. Jayasankar)
Vs
RESPONDENT
Mathai T.V.
Tharappattumulayil House,
Chulliyode Post, Sulthan Bathery,
Wayanad, Kerala.
(Rep. by Adv. Sri. Ashraf A., amicus curiae)
JUDGMENT
SHRI. M.V. VISWANATHAN :JUDICIAL MEMBER
Appellants are the opposite parties and respondent is the complainant in CC No. 91/10 on the file of CDRF, Wayanad, Kalpetta. The complaint was filed alleging deficiency in service on the part of the opposite parties in calculating the actual balance amount due to the opposite parties under the loan agreement dated 5.6.06. It was also alleged that the opposite parties demanded a sum of Rs.7,20,000/- by way of balance amount due under the said loan agreement.
2. The opposite parties entered appearance before the Forum below filed written version and denied the deficiency in service. They contended that the complainant is not a consumer under the Consumer Protection Act as the loan was availed for commercial purpose. It was further contended that the complainant was a defaulter in making the monthly installments under the loan agreement and that he is also liable to pay over due charges for the delayed payment of the monthly installments. Thus, the opposite parties prayed for dismissal of the complaint.
3. Before the Forum below, the complainant was examined as PW1 and Exts. A1 and A2 series of documents were also marked on the side of the complainant. No oral evidence was adduced by the opposite parties. Exts. B1 to B4 documents were produced and marked on the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 23.9.10. Allowing the complaint in part and thereby directing the opposite parties to issue loan clearness certificate to the complainant on payment of Rs. 4,19,282/-. Aggrieved the said order, the present appeal is filed the opposite parties therein.
4. When this appeal was taken up for hearing there was no representation for the respondent/complainant. So, this State Commission was pleased to appoint Adv. Mr. Ashraf A. as the amicus curiae. We heard the learned counsel for the appellants/ opposite parties and the learned amicus curiae Adv. Ashraf A.
5. The counsel for the appellants submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the complainant is not a consumer as defined under section 2 (1) (d) of the Consumer Protection Act, 1986; but the Forum below failed to consider the aforesaid contention taken by the opposite parties in their written version. He also relied on B1 agreement entered into between the complainant and the opposite parties for availing the vehicle loan Rs. 6,50,000/- and further submitted that the complainant (loanee) was bound to repay the loan amount with interest amounting to Rs.9,19,750/- in 60 monthly installments ranging from 5.7.06 to 5.6.2011. He further submitted that the complainant remitted only 26 installments and the said payments were also delayed. Thus, the appellants challenged the correctness of the calculation made by the Forum below in holding the balance amount at Rs. 4,19,282/-. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below and dismissing the complaint in CC No. 91/2010. On the other hand, the learned Amicus curiae supported the impugned order passed by the Forum below. He much relied on A2 series receipts which were issued by the opposite party Shriram Transport Finance Company Ltd for payment of the monthly installments by the complainant. Thus, he prayed for dismissal of the present appeal.
6. A perusal of the written version filed by the opposite parties in
CC No. 91/2010 would make it clear that they had taken a definite contention that the complainant is not a consumer coming within the ambit of the Consumer Protection Act, 1986 as the loan was availed for commercial purpose. It is to be noted that the complainant has no case that he availed the vehicle loan from opposite parties for earning his livelihood. The complainant as PW1 was also silent about that aspect. A perusal of the testimony of PW1 would show that the complainant never disputed the case of the opposite parties that loan was availed for commercial purpose. Unfortunately, the Forum below did not consider the aforesaid issue regarding the maintainability of the complaint in CCNo. 91/2010. A perusal of B1 loan cum hypothecation agreement would show that the complainant as loanee availed a loan of Rs. 6,50,000/- for purchase of a lorry. The fact that the loan was availed for purchase of a lorry and that the complainant has been using the said vehicle would indicate that the complainant availed the said loan from opposite parties for commercial purpose. Any how, the Forum below was bound to consider the aforesaid issue as to whether the complainant is a consumer as defined under section 2 (1) (d) of the Consumer Protection Act. So, this is a fit case to be remitted back to the Forum below to consider the aforesaid issue regarding maintainability of the complaint in CC No. 91/2010.
7. There is no dispute that the complainant (loanee) availed the loan amount of Rs. 6,50,000/-. As per B1 agreement he agreed to pay an amount of Rs. 2,69,750/- by way of interest. It was also agreed that the total amount of Rs.9,19,750/- will be repaid in 60 monthly installments at the rate of 15,330/- for the first 59 installments and the last installment at Rs. 15,280/- The last installment is to be paid by 5.6.2011. The repayment schedule would show that the aforesaid 60 monthly installments are to be paid by 5th of every month.
8. Ext. A2 series are the receipts issued in the name of the complainant for payment of the monthly installments. A perusal Ext. A2 series of receipts would make it clear that the complainant was a chronic defaulter in remitting the monthly installment within the stipulated time. It could be seen that the complainant used to pay the monthly installments on 22nd or 29th of every month instead of remitting on 5th of that months. As per B1 agreement the complainant was bound to pay over due charges @ 36% per annum (3% per month). A perusal of the impugned order passed by the Forum below especially; the calculation of the amount as shown in paragraph 10 of the impugned order, would make it more clear that the Forum below failed to calculate the over due charges/ penal interest for delayed payment of installments. So, the calculation of the balance amount made by the Forum below is palpably wrong. The Forum below cannot be justified in arriving at the conclusion that the opposite parties are only entitled to get a sum of Rs. 4,19,282/- by way of balance amount due under the loan account. So, this State Commission has no hesitation in setting aside the impugned order passed by the Forum below. This is a fit case for remand to the Forum below for considering the entire aspects of the case as observed in this order.
In the result, the appeal is allowed. The impugned order dated: 23.9.2010 of CDRF, Wayanad, Kalpetta in CC No. 91/10 is set aside and matter is remanded to the Forum below for fresh consideration and disposal of the same on merits. The parties to this appeal are directed to appear before the Forum below on 28.10.11. They will bear their respective cost in these proceedings.
M.V. VISWANATHAN :JUDICIAL MEMBER
M.K. ABDULLA SONA : MEMBER
DA
