BEFORE THE DISTRICT FORUM:KURNOOL

Present: Sri.P.V.Nageswara Rao,M.A.,LL.M., President(FAC)

And

Smt. C.Preethi,  M.A.LL.B., Lady Member

And

Sri. M.Krishna Reddy, M.Sc.,M.Phil., Male Member

Thursday  the 10^th  day of September, 2009

C.C. 128/08

 Between:

E. Padmavathamma, W/o. E.Rama Krishna Goud,

R/o. D.No 4-17, Venkateswara Nagar,  Kurnool-518 004.                           …Complainant

-Vs-

1.  Tata Motor Finance, Represented by its Manager,

Shop NO. 5, B.V.Reddy Complex,  Kallur Road,  Kurnool-518003.

2. Meru Automobiles Private Limited, Represented by its Manager ,

Shop No. 21 & 22, A.P.S.P.Camp Complex, Near Bellary Chourastha,  Kurnool-518003.                        …Opposite Parties

                        This complaint is coming on this day for orders in the presence of Sri.A.Jagadeesh Kumar, Advocate, for the complainant , and Sri.P.Madhusudhan Reddy ,Advocate for opposite parties and upon perusing the material papers on record, the Forum made the following.

ORDER

(As per Sri. P.V.Nageswara Rao,President (FAC)

C.C.128/08

1.     Complaint filed under section 11 of the Consumer Protection Act 1986.

2.     The brief facts of the complaint is as follows:-  The complainant purchased  one Engine  and  Chasis  from  opposite party No. 2  on 26-04-2006 under a loan and contract of hypothecation  bearing No. CVH 965698 with opposite party No. 1 . The engine  was bearing No. 697 TC 55 DTZ  117337 and Chasis No. 359277DTZ 00 5447 . The financial assistance  was provided  by opposite party No. 1 . The opposite party No. 1  was manufacturer  and financier  to Tata Motors  and spares and opposite party No. 2 was carrying  on business by dealing   commercial   transactions  with   opposite party No. 1 .On 28-04-2006 , the opposite party No. 2 issued a sale certificate  in the name  of the complainant  as purchaser. On the same date a certificate of compliance of emission control stating that the chasis  and engine  were certified for road worthiness. The complainant obtained  temporary registration certificate  bearing No. AP-21 XTR   7966 from opposite party No. 1 on 28-04-2006 . The cost of the  engine  with chasis  under the contract was Rs.7,72,575/- . The complainant  contributed  for contribution  as Rs.575/- . The balance amount  had to be paid by the borrower i.e , the complainant  along with interest  as on 05-08-2006 was Rs.9,71,975/-. The opposite party No. 1 issued the  repayment schedule  . The complainant entered into agreement  with opposite party No. 1 for availing  finance for body building of the vehicle. The contract with regard to chasis  and engine on 26-04-2006 was Rs.9,71,975/- and the contract for body building of the vehicle  was Rs.5,11,680/- . On 19-05-2006 , under the contract bearing No. CVH966 133 with regard  to body of the vehicle ,the cost of the assest  worth was Rs. 4,70,000/- and out of which the complainant contributed Rs.2,70,000/- initially and balance  with interest  was up to Rs. 5,11,680/-       .

3.     However on 21-01-2007 the opposite party No. 1 issued a declaration to confirm  the factum  of finance extended by opposite party No.1 on the un-registered bus in the name of  the complainant mentioning  the two contracts  i.,e CVH 965698 and CVH 966133 . In May 2006 the bus was  moved from  Kurnool to Vijayawada  for the body building over the chasis. . On the recommendations  of opposite party No. 1 and 2 it was given  to “A .P Coach Body Building  works” , Vijayawada  who informed the complainant  and opposite party No. 1  that it would be built within 30 to 40 days  . The vehicle  was insured to ICICI , Lombard General Insurance Company Limited and premium was paid  was Rs. 18,996/-  and complainant  obtained customer  copy  dated 27-04-2006 . The A.P. Coach Body Building  Works , Vijayawada   could not complete the  work within  the given time  and there was delay in delivering the vehicle  to the complainant . Mean while  the opposite party No. 1 requested the  complainant to pay the installments  which were not  paid. As the  bus which would  generate income was not  delivered the same was to informed  to opposite party No. 2 . The area officer  of opposite party No. 1 accepted  the condition  and position of the complainant  and expressed  that it would be paid after the  bus was  delivered , provided the complainant had to pay some penalty  for default  . The complainant  came to know  that the  AP Coach Body Building Works , Vijayawada  , was hit by heavy rain fall and so  there was delay in delivery . The proprietor  of body building  works, Vijayawada  issued a letter for the delay. As per the letter dated 29-10-2006 the reasons  for not delivery  of the vehicle within time . The complainant  received reminders from opposite party No. 1 with regard to default payment  . When the complainant  approached  opposite party No. 1 he informed  that reminders  should be  issued  normally as a formality and assured  that the payment  would be made after delivery . Basing on the                 assurance given by the opposite parties 1 and 2 ,the complainant  entered into  hire contract with APSRTC  to run the bus to Adoni route.  . The complainant remitted  Rs. 30,000/-  to APSRTC , and confirmed  the allotment  of the route permit. The RTC issued the allotment letter . The body building  works at Vijayawada delivered  the vehicle on 27-11-2006 after receiving Rs.60,000/- as enhanced cost of the body building  and Rs.25,000/- towards miscellaneous expenditure along with taxes.  

4.     On 29-11-2006 when the bus was brought , to Kurnool the  opposite party No.1 and 2 came to the house of the complainant  and seized  the vehicle . The complainant rushed to opposite party No. 1 and 2 and requested  to give  back the bus but opposite party No. 2 denied  . The complainant  was asked to pay the installment amount with interest. The interest  rate and penalty was against the rules. The complainant was ready  to pay the installments  as on the day i.e, 29-11-2006 .She was ready  to pay the installments  within reasonable time . The complainant got issued  a legal  notice    through her counsel  to opposite parties 1 and 2 . The opposite parties  No. 1 and 2 had not accepted the payment  made by the complainant. On 20-06-2006 the bus  was set to be  sold out for a meager amount. The complainant  after came to know the same filed a civil suit before the Senior Civil  Jduge’s Court , Kurnool  , that the opposite parties  be restrained from the said bus . In  their counter in the said suit O.S.No.302/07 , the opposite parties  mentioned  that the vehicle  was already sold out .It was not mentioned by whom it was  purchased  and what price it was sold  away. Thus there was deficiency of service  and negligence  on the part of the  opposite parties  1 and 2 .

5.     The complainant claimed  Rs.3 ,98,987/- along with interest  and Rs.30,000/-  towards mental agony  , Rs.70,000/- towards  deficiency of service  totalling Rs.  4,98,987/- with costs.

6.     The brief facts of the  written version  of opposite party No. 1. The complaint was  not maintainable as barred  by limitation . The transaction between  the complainant  and the opposite party No. 1 was commercial transaction  and vehicle was purchased for commercial purpose . Therefore the complaint was not maintainable and complainant was not a consumer . The entire allegations  of complaint were denied. The complainant and the complaint did not come under  consumer under the provisions .  Of Section 2(d) of C.P.Act . The complainant  relied upon  vehicle cum hypothecation  agreement which  was in between “ borrower”  and “lender” .Thus it was  for commercial transaction and hence the  complainant was not a consumer  under Section 2 (d) of C.P.Act . Under hire purchase  transaction  the financier  need not  render service  within the  meaning  of C.P.Act.

7.     The complainant  availed a commercial loan for purchase  of Tata vehicle for commercial purpose  and hence the loan  was sanctioned to the complainant . Thus , the complainant  entered  agreement for hypothecation  cum gurantee cum  loan agreement  with Tata Finance Limited . On entering  into   agreement for hypothecation on 26-04-2005 the loan of  Rs. 7,72,000/- under loan account CVH 965698 was sanctioned  and Rs.575/- was paid by the complainant and the complainant had to pay principal  along with financial  charges  of Rs.1,11,150/- and insurance provisions of Rs.30,000/-  total contract value of Rs. 9,71,975 /-  has to be repaid  in 45 monthly equal installments at Rs.28,750/- per month  each and the 44^th  installments  of was Rs.15,800/-   and the last  and 45^th installment  of Rs. 15,450/- .Thus the loan was availed for body building under A/c.No. CVH 966133 on 19-05-2006 with installments  payment from 02-07-2006.    Inview of the agreement , the complainant  had to pay the installments  within stipulated dates .The said vehicle bearing No. AP 21 XTR 7966/2 was using  for transport purpose. Some installments  were paid and later the complainant was irregular  in payment of the loan amount  and became defaulter and acted contrary to the terms and conditions  of hypothecation agreement . The opposite parties  finally issued  a notice demanding  the payment under the A/c.No. CVH 965698 . Inspite of it there was no response . Hence the opposite party  proceeded  for  recovery of the amount and repossessed  the vehicle  on 21-11-2006 as per terms and conditions  of the agreement for hypothecation  cum agreement cum loan agreement executed  infavour of opposite party No. 1 . The complainant did not  take any steps  to clear of the amount . The complainant was aware of repossession  of the vehicle  by opposite party No. 1. The borrower had to repay the installments  to the financier . Thus the  opposite party was not liable to pay any compensation  as claimed by the complainant and the complaint may be dismissed  with costs.

8.     The opposite party No. 2 filed written version  that the complainant was barred by limitation  and complainant was not a consumer because it was purchased  for commercial  transaction  and allegations  made in the  complaint were baseless  and false. The complainant approached  opposite party No. 1  for sanction  of commercial loan . The complainant approached  the opposite party No. 2 on 24-04-2006 and 26-04-2006 . He received Rs. 7,72,574,57  from opposite party No. 1 towards the vehicle  cost and as per invoice No. Meru-AU-0607-00118  dated  28-04-2006 and sale certificate  issued by complainant towards the  new chasis  and engine bearing No.359277DTZ 005477 and Engine No. 697TC55DTZ117337 of TATA DIESEL VEHICLE MODEL LPO 1510/55697 COWL. The other allegations  of the complainant were denied .There was no deficiency of service on the  part of opposite party No. 2 . Hence the complaint  may be dismissed with costs.

9.     On the basis of the above pleadings the points for consideration are

(i)     Whether there is any negligence or deficiency of service on the part of  the opposite parties  .

(ii)    Whether the complainant is entitled to the relief as prayed for?

(iii)  To what relief ?.

10.    On behalf of the complainant Ex.A1 to A12 were marked . No documents were marked on behalf of the opposite parties .

11.    Point No. 1 & 2:  The complainant purchased  one Tata Engine bearing No. 697 TC 55DTZ 117337 and chasis No. 359277 DTZ 005447  on 26-04-2006 under loan  sanctioned by opposite party No. 1 by way of hypothecation  cum gurantee cum loan agreement  under contract  CVH No.965698 dated 26-04-2006 . The vehicle  was sold by opposite party No. 2 by way  of sales invoice dated 28-04-2006 under Ex.A1 for Rs.7,72,575/- . The opposite party No. 2 issued sales certificate  also to the complainant  under Ex.A2. The Ex.A3 was the initial  certificate  of road worthiness  issued by opposite party No. 1 under form 22 to the complainant . Ex.A4 was certificate  of compliance  for emission  control issued by opposite party No. 1 . The complainant filed  Ex.A5 a temporary certificate of registration  with registration No. AP 21 X TR 7966 issued by opposite party No. 2 .           Under contract No. CVH 965698 dated 26-04-2006 the total recoverable amount for the  engine and chasis was Rs.9,71,400/- payable in 45 installments commenced from 02-07-2006 i.e, Rs.25,400/- for first installment and Rs.21,500/- from 2^nd to 45^th installment . The contract No. CVH 965698 was Ex.A6 dated 05-08-2006. Out of the total amount of the vehicle show in Ex.A1 ,the contribution  of the complainant  was Rs.575/-  and the balance of Rs.7,72,000/-  was sanctioned by the financier i.e, opposite party No. 1 . It was mentioned in detail in Ex.A6. It was also  mentioned  in E.xA6 that the total  repayable  amount and total sum payable was Rs. 9,71,975/- under second schedule . It included  the interest of Rs.1,54,400/- .The repayment  schedule  with dates and amount was also mentioned  under Ex.A6. ExA7 was the  contract No. CVH 966133 for body building  of the vehicle for  a total  sum payable  was Rs.5,11,680/- and out of which the borrowers  contribute  was Rs.2,70,000/- and the loan sanctioned was Rs.2,00,000/- and repayable in  44 installments commenced from 21-07-2006 i,e Rs.5,180/- in the first installment  and Rs.5,500/-  from 2^nd installment  to 44^th  installments  . It was also  noted in repayment  schedule  in Ex.A7 . Ex.A8 was certificate  issued by opposite party No. 1 that it had  financed  the amount of Rs.11,36,370/-  and the finance clearance certificates could be issued only after the amount was paid towards full and final settlement paid towards full and final settlement  on or before  28-02-2007 ,under two contracts CVH – 965698 and CVH -966133 . Ex.A9 was the goods carrying (other than 3 wheeler ) public carriers package policy bearing No. 052000 /31/07/01/00000 735 commenced  form 27-04-2007  to 26-04-2008 in the name of the complainant issued  by United India Insurance Company Limited , Hyderabad . The complainant filed E.xA10 a notice issued by opposite party No. 1 Ex.A12 was the letter  issued by  AP Coach Body Building Works , Vijayawada that they have  not completed the body building  work to the bus due to heavy rain fall and cost of the body building was enhanced for about Rs.55,,000/- to Rs.60,000/-  approximately. After  purchase complainant sent the engine and chasis  for body building  as bus to AP coach Body Building works, Vijaywada. Before  receiving the bus  from body building works ,Vijayawawada  ,the complainant  entered into a hire agreement  with APSRTC  on 27-03-2006  to run the bus  from Adoni to Ingaldhahal . The letter issued by APSRTC  was Ex.A11. Inview of Ex.A11 and A12 the complainant  purchased the engine  and chasis for body building  as bus and run the bus for commercial  purpose . On seeing any angle  there was no deficiency of service and negligence on the part of the opposite party No. 1 and 2. The complainant was in default in payment of installments to opposite party No.1 . There was no proper reason for default of installments . Even though the body building works  had not completed  the work and delivered the bus to the complainant , it was the duty of the complainant to pay installments  regularly to opposite party No.1 . The complainant  was not certain to whom the  bus was sold away by opposite party No. 1 and more over she filed a  Civil Suit  in O.S.No. 302/07  before Senior Civil Judge Court , Kurnool and pending for disposal. During the pendency  of the suit the present complaint was filed. Therefore the present complaint was not maintainable  . More over the complainant was not a consumer because he purchased  the vehicle for running under commercial  purpose. Thus there are no merits in the complaint  and there is no deficiency  of service and negligence on opposite parties 1 and 2 .

1. In the result the complaint is dismissed without costs.

Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 10^th day of September, 2009.

        Sd/-                          Sd/-                          Sd/-

LADY MEMBER              PRESIDENT FAC)       MALE MEMBER

APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant :  Nil           For the opposite parties :

List of exhibits marked for the complainant:-

List  of exhibits marked for the opposite parties:   Nil

          Sd/-                           Sd/-                                  Sd/- 

LADY MEMBER               PRESIDENT (FAC)               MALE MEMBER           

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties       

Copy was made ready on                :

Copy was dispatched on          :