(Smt. D. Nirmala, President (FAC))
1. This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to not seize the vehicle TATA AC bearing No.AP 22 X 7804, model 2010 and receive the due installments of Rs.92,004/- without penalty with two installments and receive the future installments regularly from November, 2012 to January, 2014 and to pay Rs.30,000/- towards compensation for adopting unfair trade practice and deficiency of service, Rs.20,000/- towards costs of the complaint.
2. The brief facts of the complaint are that the complainant purchased the TATA AC GOODS CARRIAGE LMV bearing No.AP22 X 7804, model 2010 for his livelihood. The cost of the vehicle is Rs.2,95,000/-. The complainant paid down payment Rs.45,000/- and remaining Rs.2,50,000/- the complainant obtained finance from OP.No.1 in the month of June, 2010. Accordingly the complainant and the OPs.1 & 2 entered into agreement vide No.XVFPMBB000000478050. The terms of the agreement that the total loan amount including document charges should be paid in 44 monthly installments @ Rs.7,667/- per month. The installments commence in the month of June, 2010 and end in the month of January, 2014. The OPs received eight cheques of SBH, Mahabubnagar Branch from the complainant. The complainant further submitted that he has paid monthly installments regularly as per the terms and conditions of the agreement and that the OPs issued receipts. That the complainant met with accident and he could not pay the August, 2011 & September, 2011 installments. The complainant approached in the month of October for payment of installments the OPs i.e., Subramanyam received amount of Rs.25,000/- for three months installments amount but he did not give receipt and the OPs received Rs.10,000/- for vehicle insurance and personal insurance but till today not paid the insurance amount and not handed over the insurance bonds to the complainant and the complainant asked the receipt and insurance bonds. But the OPs are postponed the same on one pretext or the other. Finally when the complainant approached the OPs for receipt of Rs.25,000/- installment amount and insurance bond the OPs instead of giving the receipt and bond the OPs demanded entire future installment along with penalty, otherwise they seize the vehicle. The complainant further stated that he requested many times to the OPs that he is ready to pay due installments without penalty but not entire future installments. But the OPs refused and they demanded the entire future installments. It is against law. On 15-10-2010 rushed the house of complainant and created nuisance and they are tried to seize the vehicle unlawfully without any notice. Such acts on part of the OPs amount to unfair trade practice and deficiency of service. Hence the present complaint filed for the above said relief.
3. The OPs filed the counter denying the allegations made against these OPs and stated that the complainant availed loan facility of Rs.2,50,000/- from OPs to purchase the vehicle bearing No.AP22 X 7804 vide loan agreement bearing No.XVFPMBB000000478050 after executing all relevant documents. The vehicle mentioned above was hypothecated with the OPs and fixed the installments. These OPs further stated that the complainant has issued 8 cheques to the OPs which is incorrect. It is also incorrect that the complainant is regular in making payment of monthly installments. These OPs further submitted the complainant met with an accident, due to this he defaulted in repayment of the loan amount and he paid Rs.25,000/- to Mr. Subramanyam towards installments but he has not issued the receipt for the same is incorrect. The complainant never opted these OPs to visit the branch office about repayments of the EMIs. These OPs further stated that they never deployed their agents to visit the house of the complainant to seize the vehicle. It is further submitted that the present complaint deserves to be dismissed on solitary ground that claim made by the complainant arises out of commercial transaction between the parties. That the complainant herein has purchased the vehicle for commercial purpose. So the complainant cannot be construed consumer falling within definition under Sec.2(1)(d) and the Hon’ble Forum have no jurisdiction to entertain the present complaint as the loan agreement contains arbitration clause No.29 which says that all disputes have to be settled by referring to Arbitration only. Therefore the present complaint is liable to be dismissed with exemplary costs.
4. During enquiry, the complainant in support of his claim filed his affidavit evidence and got marked Exs.A-1 to A-11. On the other hand, the opposite parties in support of their contentions filed their affidavit evidence and got marked Exs.B-1 to B-4.
5. The points for determination now are:-
(i) Whether the complainant is a consumer under Sec.2(1)(d) of C.P. Act?
(ii) Whether the present complaint comes within Jurisdiction or not?
(iii) Whether there is any deficiency on the part of the opposite parties
in rendering service to the complainant as alleged?
(iv) Whether the complainant is entitled to the reliefs sought for by him?
(v) To what effect?
6. The undisputed facts of the case are that the complainant availed loan from the OPs to purchase TATA AC GOODS CARRIAGE LMV bearing No.AP22 X 7804, model 2010 and both OPs and complainant entered into the agreement vide No.XVFPMBB000000478050.
7. Point Nos.1 and 2:- Basing on Exs.B-3 copy of R.C. of the vehicle in question, the learned standing counsel for the OPs contended that the vehicle is meant for commercial purpose and therefore the complainant cannot be construed as a consumer falling within the definition of Sec.2(1)(d) of the C.P. Act, as such the complaint is not maintainable. But we are unable to agree with said contention for the reason that the vehicle purchased by the complainant for eking out his livelihood. Therefore it cannot be said that the complaint is not maintainable on the ground that the complainant cannot be construed as a consumer within the definition of Sec.2(1)(d) of the C.P. Act, 1986. Hence we find that there is no force in the contention of the learned standing counsel for the OPs. Therefore we are of the view that the present complaint falls within the definition under Sec.2(1)(d) of C.P. Act, 1986.
Basing on Ex.B-4 the learned standing counsel for the OPs contended that Clause 29 of the said agreement this Forum has no jurisdiction to entertain the present compliant. But we are unable to agree with the contention raised by the learned standing counsel for the OPs., in view of Sec.3 of C.P. Act, 1986. Mere existence of Arbitration clause in the document would not oust jurisdiction of consumer Fora as observed by the Hon’ble Supreme Court in a case reported in (1996) 6 SCC 385 (M/s Fair Air Engineering Works Pvt. Ltd., Vs. N.K. Modi). Therefore we find that there is no force in the contention of the learned standing counsel for OPs. Hence we are of the view that the present complaint is having jurisdiction to entertain before this Forum.
During the course of arguments both the counsels have filed a joint memo stating that the complainant and opposite parties were compromised and settled the dispute amicably long back. In that settlement the complainant has accepted to pay Rs.1,80,000/- to opposite parties. The OPs also agree for the same full and final settlement. Out of full and final settlement the complainant has paid Rs.1,50,000/- on 10-3-2013 and put pending the balance amount of Rs.30,000/- and assured it will be paid within one month to the opposite parties.
The counsel for the OPs argued that the settlement occurred more than one year also and the complainant has to pay Rs.30,000/- with interest till realization and requested the Forum a reasonable interest may be awarded over the due mount of Rs.30,000/-.
The counsel for complainant submitted that the complainant could not pay balance amount due to financial problems and requested the Forum to direct the OPs., for accepting balance amount without interest.
In view of the filing joint memo we need not to discuss the point Nos.3 & 4.
Basing on the submission made by the counsel for the parties as per their joint memo, we are of the view that the complaint is allowed in part and directing both the OPs not to seize the vehicle TATA GOODS CARRIAGE LMV Bearing No.AP22 X 7804, model 2010, on payment of settled due amount of Rs.30,000/- by the complainant with 9% simple interest from the date of settlement i.e., on 10-3-2013 till realization. Both parties are directed to comply the present order within one month from the date of present order.
IN THE RESULT:- The complaint is allowed in part against the OPs., as under:-
- The OPs.1 & 2 are directed not to seize the vehicle TATA GOODS CARRIAGE LMV Bearing No.AP22 X 7804, model 2010, on payment of settled due amount of Rs.30,000/- by the complainant with 9% simple interest from the date of settlement i.e., on 10-3-2013 till realization.
- Both parties are directed to comply the present order within one month from the date of present order.
- There shall be no order as to costs.
