ADV. RAVISUSHA, MEMBER.
The complainant is professionally a driver. He entered into a hire purchase agreement with Tata Finance Ltd., Kollam on 27..9..2002 for the bailment of a brand new TATA LP 1510 Chassis for the purpose of earning his livelihood by means of self employment. The then Tata Finance Ltd. Company has been subsequently amalgamated with the Tata Motors Ltd., and continuing the business at its Thiruvananthapuram Branch Office, who is the opposite party in this case. The cost of the chassis is Rs.6,29,211/- of which the Hirer paid an advance amount of Rs.29,211/- and for the remaining cost price of Rs.6,00,000/- [Rupees six lakhs only] the Hirer made a Hire Purchase agreement with the opposite party. The Hire Purchase price value is Rs.7,83,001/- inclusive of Rs.1,53,000/- Interest otherwise called Hire Premium Statutory charges. In addition to the Hire Purchase price another service charge of Rs.7,650/- is also payable. Thus the Hirer is liable to pay Rs.7,90,651/- Thus the aggregated Hire Purchase value is Rs.7,90,651/- payable in 35 monthly installments commencing from 27..10..2002. The final installment fallen due on 27..8.2005. As on 25..8..2005, the Hirer made a total payment of Rs.7,83,968/- The Hirer/complainant is legally entitled to get the title of the goods transferred into his name. The non transfer of title and illegal demand of the owner/opposite party tantamount to illegal, deficiency of service, improperly discriminatory and arbitratory which is against the principle of natural justice and hence this complaint.
Opp.party filed version contending that this complaint is bad for non-joinder of necessary and proper party and is liable to be dismissed. This Forum has no jurisdiction to entertain the present complaint against this opp.party. This complaint is not maintainable before this Forum as it lacks jurisdiction over the alleged consumer disputes . This complainant made huge default and hence the total amount due arrived to Rs.9,35,101/-that includes bank charges, collection charges, legal expenses, service tax, tax differences, other expenses including over due charges. The complainant never paid the entire amount. There is penal interest and overdue charges for delayed payments. The hirer never complied the terms of payment. The hirer has no right to change the title of the vehicle in his name. This opp.party never demanded an exorbitant demand. Opp.party demanded the dues including over due charges and penal interest. The complainant signed the agreement only after a thorough reading and knowing the consequences. According to the by-party agreement if the complainant violate the agreement the opp.party has every right to recover the money from the complainant with interest and service charges. The opp.party can change the ownership of the vehicle only after paying the entire amount due to the opp.party. The No Objection Certificate can be issued only after remitting the entire amount. According to the opp.party the total outstanding due is Rs.9,35,101/- Total bank charges is Rs.2,200/- collection charges Rs.12,113/- Legal expenses Rs.13,800/- delayed payment Rs.92,456/- Tax difference Rs.4,500/-. Thus the balance outstanding to the opp.party is Rs.1,16,014/- This complaint is preferred with a sole intention to harass this opp.party. At the time of termination, complainant had insisted for a huge waiver of interest, which this opp.party could not afford. Complainant hgad threatened that he will use all his powers to harass the opp.party. Now this belated complaint proved that the complainant has executed his threat.
Therefore, it is humbly prayed that this Hon’ble Forum may be pleased to dismiss the complaint with cost of this opp.party in the interest of justice and fairness.
The points that would arise for consideration are::
1. Whether there is deficiency in service on the part of the opp.p-arty
2. Reliefs and cost?
For the complainant PW.1 is examined and marked Exts P1 to P24
No oral or documentary evidence for the opp.party
THE POINTS:
Complainant’s case is that he availed a loan of Rs.6,00,000/- from Tata Finance on 27..9..2002 to procure a Tata Chassis to convert it as Bus for transport operation under self employed Scheme. The total installment payable is Rs.78,300/-. The complainant paid Rs.8,37,880/-. Even after receipt of Rs.8,37,880/- the defendant further demanded to remit Rs.1,24,783/- and not terminated the charge over the vehicle. Hence the complainant filed this complaint for getting relief.
Opp.party’s contentions are that complainant is a chronic defaulter of the installments. According to them the defaulted, late and part payments by the complainant have resulted in addition of the delayed payment charges along with remaining balance towards the installments. The opp.party further contended that the complainant is bound by the terms and conditions of the agreement and they have acted as per the terms and conditions of the said agreement. More over the complainant in this case is a hirer and not the owner of the vehicle. Hence the complainant does not come under the purview of definition of complaint under consumer Protection Act.
During the argument stage, the complainant’s counsel produced the copy of Registration Certificate of the vehicle. In Registration certificate it can be seen that the complainant is the registered owner and the financier [opp.party] is having a charge on it. In Hire purchase agreement the vehicle should have been registered in the name of the financiers. In this case the complainant is the registered owner of the vehicle. Then the relation between the complainant and opp.party is that debtor –creditor only and thus this Forum has jurisdiction to adjudicate the case.
Here the opp.party did not produce the Hire Purchase agreement. Without producing any document, the opp.party’s version ie the complainant is a chronic defaulter and violated the terms and condition of the Hire Purchase Agreement does not stand.. In the version opp.party raised another contention that the complaint is bad for non-joinder of necessary parties. The name of the necessary party is not mentioned by the opp.party. Moreover no suit shall be dismissed on the grand of non-joinder of necessary parties.
For proving the case that the complainant has remitted the installments he has produced Ext. P2 series, P3 and P4. These document shows that the complainant has remitted a total amount of Rs.8,37,880/- as against an amount of Rs.7,83,001 ie. That means the complainant has remitted an excess amount of Rs.54,879/-. According to complainant this excess amount can be treated as penal interest for the delayed payment. After receiving Rs.8,37,880/- the opp.party further demanding Rs.1,24,783/- as per Ext..P3.
The complainant’s counsel argued that the opp.party cannot demand penal interest excessive that the permitted rate of interest. For that the complainant’s counsel produced two decisions ie 1 [2010] CPJ III and 1 [2010] CPJ 237. In which it is held that imposing huge additional Finance charges unjustified. Here also the opp.party is demanding huge additional finance charges. Hence the said illegal demand of the opp.party amounts to deficiency of service and unfair trade practice.
On considering the entire evidence we are of the view that after receiving Rs.8,37,880/- from the complainant, further demand made by the opp.party through Ext.P3 notice is unfair trade practice and deficiency in service. The complainant is entitled to get relief.
In the result the complaint is allowed. Opp.party is directed to provide NOC and other documents in respect of the finance provided to the complainant. The opp.party is also directed to pay Rs.5000/- as compensation and Rs.1000/- as cost to the proceedings to the complainant. The order is to be complied with within one month from the date of receipt of the order.
Dated this the 13th day of May, 2012.
I N D E X
List of witnesses for the complainant
PW.1.- Rajendran
List of documents for the complainant
P1. – Repayment Schedule
P2. – series – Payment acknowledgements
P3. – Demand notice
P4. – Copy of DD
