BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 15th February 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.6/2013
(Admitted on 05.01.2013)
Mr. K Vishwanth Shetty,
S/o Mundappa Shetty,
Manikanta Nivas,
Tilary Road,
Mulihithlu, Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Sri PPB)
VERSUS
The Manager,
Shriram Transport,
Finance Co. Ltd.,
Paradign Plaza 1st Floor,
A.B. Shetty Circle,
Mangalore 575001.
….....OPPOSITE PARTY
(Advocate for the Opposite Party: Sri KPR)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 by the complainant against opposite party alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims he entered into hire purchase agreement on 16.03.2000 in respect of goods vehicle No.KA.19.5293. In 2005 the complainant paid full amount due to opposite party and HP agreement entered in registration certificate was cancelled on 3.3.2005 by R.T.O. The complainant did not taken any loan from opposite party. Even though the opposite party is not entitled to get anything from complainant between 1.04.2006 to 30.06.2007 and the opposite party collected Rs.2,67,400/ which amounts to deficiency in service. The complainant came to know about excess collection about which he collected about extract from District Court, Mangalore in 2012. Hence seeks Order for refund.
II. Opposite party in the written version claims complainant in respect of borrowing made from opposite party by entering into hypothecation agreement in respect of vehicle No.KA-19-5293. Because of the breach of the terms of the agreement arbitration proceedings held before Arbitrator Mr. V Paul Das in Arbitration Case No.122 of 2011 resulting in award dated 01.06.2011 with future interest at 18% per annum to opposite party execution case No.79/2012 against complainant is pending before the District Judge Mangalore. Despite this complaint came up and is not maintainable. Hence seeks dismissal of the complaint.
2. In support of the above complaint the complainant Mr. Vishwanath Shetty filed affidavit evidence as CW1 and not replied to the interrogatories served on him and produced documents got marked at Ex.C1 to C6 as detailed in the annexure here below. On behalf of the opposite party Mr. Vasudeva (RW1) Officer and G P A holder of the Opposite party Company, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R10 as detailed in the annexure here below.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of arguments. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows:
Point No. (i): Partly Affirmative
Point No. (ii): Negative
Point No. (iii): As per the final order
REASONS
IV. POINTS No. (i): The complainant the borrower the opposite party the person who advanced the amount to complainant under hypothecation agreement in respect of the vehicle lorry with No.KA.19.5293. Hence there is relationship of consumer and service provider between the parties. The complainant mentions the opposite party collected excess of amount from complainant subsequent to the payment of entire loan amount and cancellation of the hypothecation agreement of endorsement of RC of the vehicle No.KA.19.5293. Ex.C5 is the copy of the RC of the said vehicle there is an endorsement of the ARTO Mangalore of cancellation on HPA date 11/3/2005. However opposite party claims there is subsequent advancement to complaint in 2006 to complainant which is disputed by complainant. Hence there is live dispute between parties as contemplated under section 2 (1)(e) of the C P Act. Hence we answer point No.1 in the affirmative.
POINTS NO (ii): In this case the complainant filed affidavit evidence. Even though interrogatories served on complainant but reply of the same were not furnished. Hence on the crucial aspects by opposite party there is no explanation by complainant as to alleged hypothecation agreement entered in 2006 by complainant with opposite party. Ex.C6 CC of Order issued in execution No.79/2012 between District Judge, D K, and Mangalore. Ex.C2 rules form.35 date 3.3.2005 signed by opposite party as per which the hypothecation agreement entered into in respect of the vehicle KA.19.5293 terminated and the registered authority as also endorsement of cancellation of the entry of the vehicle. Ex.C3 a statement showing the collections made from complainant by opposite party between 1.4.2006 to 30.06.2007 amounting Rs.2,67,400/. On the other hand opposite party produced Ex.R1 the application given by complainant to opposite party a commercial vehicle loan and it is dated 16.1.2006. In this application the details of the vehicles on which finance needed shown as KA.19.5293 and the amount required mentioned as Rs.2,65,000/. Ex.R3 is the CC of the order in 122/2011 case passed against complainant and Mr. Sudheer Shetty as which awarded was passed for Rs.1,29,125/ with the interest at 18% per annum against complainant and Sudheer Shetty. Opposite party also produced Ex.R4 the loan hypothecation agreement entered into between opposite party and complainant and Sudheer Shetty and this is dated 4th February 2006. It is in respect of the very same vehicle KA.19.5293. Hence the claim of complainant that he was not given any amount during the relevant period to opposite party is not at all correct. But now the case it is noted this arbitration awarded in execution before the Competent Court in respect of the present claim made by the complainant against opposite party in respect of the very same said matter is parallel proceedings is not at all maintainable. Hence we are of the view that there is no aspect which can be ejected by the complainant before us. Hence we answer point No.2 in the negative.
POINTS No. (iii): Wherefore the following order
ORDER
The Complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 6 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 15th February 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Vishwanath Shetty
Documents marked on behalf of the Complainant:
Ex.C1: Office copy of Regd. Notice along with receipt
Ex.C2: Form No.35 Agreement of Hire purchase
Ex.C3: Letter addressed to complainant by opposite party
Ex.C4: Reply of the opposite party dated 7.12.2012
Ex.C5: B Register Extract of R.C
Ex.C6: CC of the order sheet in Execution Case No.79/2012
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Mr. Vasudeva, Officer and G P A holder of the Opposite party Company
Documents marked on behalf of the Opposite Parties:
Ex.R1: Application for commercial vehicle loan dated 16.01.2006
Ex.R2: Coloured photographs of tanker
Ex.R3: 01.06.2011: copy of Arbitration Award in Arbitration Case No.122 of 2001
Ex.R4: 04.02.2006: True copy of the loan cum hypothecation agreement
Ex.R5: 30.11.2010: Loan account extract
Ex.R6: 18.04.2012: Copy of Execution Petition 79/2012
Ex.R7: 07.12.2012: Copy of the reply notice
Ex.R8: 08.12.2012: Postal Acknowledgement
Ex.R9: 21.02.2007: Notarised copy of G.P.A
Ex.R10: 21.02.2007: Letters of Authorisation.
Dated: 15.02.2017 PRESIDENT
