::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.86/2016.
Date of filing: 03.10.2016.
Date of disposal: 19.04.2018.
P R E S E N T:-
(1) Shri. Jagannath Prasad Udgata, B.A., LL.B.,
President
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: 1. Shivkumar S/o Marutirao Bamande,
Age: Major, Occ: Self Employee,
R/o Ladgeri, Tq & Dist: Bidar.
(By Sri. P.M.Deshpande, Adv.)
VERSUS
OPPONENT/S: 1) The Manager,
Shri RamTransort Finance Co.Ltd.
8-10-135/1A, Shree Veerbhadreshvar Chambers,
Near Nehru Stadium, Bidar-585401.
(By.Sri.S.Wilson., Adv.)
:: J UD G M E N T ::
By Shri. Jagannath Prasad Udgata, President.
The complainant has approached this forum by filing a complaint u/s 12 of the Consumer Protection Act 1986. The complaint averments are as follows:-
2. That, for self employment purpose, he had purchased a Tata Magic P motor vehicle bearing No.KA-38-5418 and he had availed financial assistance from the opponent. (Amount not specified nor copy of loan agreement submitted).
3. That, the O.P. has taken away the vehicle during April 2015 (no date specified) when the vehicle was parked near the residence of the complainant. Later, the O.P. has stolen important spare parts and other major structures from the vehicle and then had sent a presale letter to the complainant (undated) which the later received during the first week of June 2016.
4. That, much before the presale notice, the complainant had got issued legal notice on 06.04.2016 and 30.04.2016 and the reply sent by the O.P. was unconstitutional, unfair minded and suppressed the material fact.
5. That, the O.P. has taken away the vehicle unnoticingly, unwarranted, unlawfully by using musclemen in April 2015 despite E.M.I.S. of three installments paid by the complainant and such action has caused heavy losses, monetary, mental, physical and financial tensions day today and he has lost earning capacity of livelihood and maintenance. The complainant is living stressfully in starvation due to loss of earning capacity. The letters sent by the Respondent have been more burdensome. The said letter is fit to be quashed as the Respondent has taken out major parts from the Vehicle and the concerned vehicle might have been sold and the respondent might have earned lots of profits, causing huge losses to the complainant.
6. The complainant calculates his compensatory costs at a sum of Rs.2,00,000/- and has filed the case for relief in the said sum with interest.
7. The O.P. on receipt of notice has appeared through counsel and has filed detail written versions, in which the entire allegations of the complainant have been denied as false.
8. It is further denied that, the complainant himself was plying the vehicle in question for self employment. However, the vehicle particulars has been admitted by the opponent. The taking away of the vehicle by using musclemen is denied, so also the stealing of spare parts. It is claimed that, the complainant himself had handed over the vehicle voluntarily and the same was parked at Tagare parking yard. The issuance of the presale notice though is committed rest of the allegations have been denied.
9. Further elaborating the true facts leading to the fiasco, it is avered by the O.P. that, the complainant being a chronic defaulter of loan repayment, while the former was contemplating to take recourse of seizure of the vehicle, the later came forward to surrender the same, drove it up to the parking yard to accomplish such surrender.
10. The complainant being a borrower, wherein one Shivaji S/o Ramshetty was the guarantor is not a consumer u/s 2(1)(d) of the Consumer Protection Act, 1986 not entitled to maintain the present complaint. The loan having been sanctioned for a commercial vehicle to commercial user the present case is an antithesis to the provisions of the Consumer Protection Act, 1986. It is further avered that, the loan agreement containing an Arbitration clause, this forum is not competent to try this complaint. On the aforesaid grounds the O.P. seeks dismissal of the complaint with costs. The O.P. has submitted the surrender letter as Annexure-R3. The complainant has never challenged it.
11. Both sides have filed their respective evidence affidavits, filed documents enumerated at the end of this order and have argued the case, basing on which, giving our anxious considerations, we fix the following points for considerations.
- Does the complainant prove that, there has been a deficiency of service or unfair trade practice in the part of the O.P.?
- Does the O.P. prove that, this forum has no jurisdiction to try this case?
- What orders?
12. Our answers to points are as following:-
- In the negative.
- In the negative.
- As per the final orders owing to the following:-
:: REASONS ::
13. Point (a): The complaint is ridiculous perse, owing to the fact that, the complainant has never bothered to file the copy of the loan agreement or any proof of E.M.I. payment. Only copies of some one sided correspondences have been filed which never proves the bona fides of the complainants’ contentions. The alleged theft of spare parts and structural parts are never proven. No police complaint was ever filed by the complainant against the act of theft or removal of the vehicle from any proximate place of his residence,. Per contra, the O.P. has filed document of surrender of the vehicle as Annexur-R3 which has not been challenged by the complainant or any evidence led to the contrary. Hence, we are constrained to hold that, the vehicle was surrendered out of the volitions of the complainant on default of loan payment and the complainant has failed to prove deficiency of service or unethical trade practice and we answer the point accordingly.
14. Point (b). The claim of the opponent that, since an arbitration clause is embodied in the loan agreement, this forum lacks the jurisdiction to try this case is fallacious perse. Section 3 of the Consumer Protection Act, 1986, envisages the fact that, the jurisdiction of a District Forum under the act is not in derogation of any other law for the time being in force and in addition to it and hence we answer the point in negative and proceed to pass the following:-
ORDER.
- Surrendering the vehicle on failure of loan repayment, the complainant is dismissed as not due;
- A cost of Rs.5,000/- (five thousand) is imposed on the complainant payable to the O.P. for filing a frivolous complaint u/s 26 of the Act;
- Four weeks time granted to comply this order.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 19th day of April 2018).
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Annexure. A- Office copy of legal notice date: 06.04.2016.
- Annexure. B– Postal receipt.
- Annexure. C– Reply legal notice.
- Annexure.D—Office copy of legal notice (partly legible)
date: 30.04.2016. - Annexure. E– Office copy of legal notice date: 30.04.2016.
- Annexure. F- Coy of Insurance policy.
- Annexure. G- Partly legible copy of Driving Licence.
- Annexure. H- Copy of R.C. Book.
- Annexure. J- Copy f Aadhar Card.
- Annexure. K- Before sale notice date: 16.08.2016 in original.
Document produced by the Opponents.
- Annexure.R.1- Copy of loan cum hypothecation agreement.
- Annexure.R.2- Copy of receipt of M/s Tagare Parking Yard.
- Annexure.R.3- Copy of surrender letter of complainant.
Witness examined.
Complainant.
- P.W.1- Sri Shivkumar S/o Marutirao Bamade (complainant).
Opponent No.1
- R.W.1- Sri. Kisan Rao S/o Narayan Yuadav, Assistant Credit Manager of O.P.
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
