Telangana

Mahbubnagar

CC/10/132

R.Sailu - Complainant(s)

Versus

The Manager - Opp.Party(s)

V RAMANAIAH

07 Jul 2011

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

                                                                                   Thursday, the 7^th day of July, 2011 

 

                                                      Present:- Sri P. Sridhara Rao, B.Sc., LL.B., President

                                                                       Sri A. Veerupakshi, B.A., LL.B., Member        

          Smt.D.Nirmala, B.Com., LL.B.,Member

                                                                                            C.C.NO. 132  Of   2010

 

Between:-

R. Sailu S/o R. Balaiah, aged 35 years, Occ: Agriculture, R/o H.No.2-104/1, Lingampet village, Jadcherla Mandal, Mahabubnagar District.

                                                   … Complainant

 

And

The Manager, Shriram Transport Finance Company Limited, Door No.1-5-41, New Town, Mahabubnagar.

                                                                                                                                                    … Opposite Party

 

 

 This C.C. coming on before us for final hearing on 1-7-2011 in the presence of Sri V. Ramaiah, Advocate, Mahabubnagar on behalf of the complainant and Sri C. Rajeev Kumar, Advocate, Mahabubnagar for the opposite party and the matter having stood over for consideration till this day, this Forum made the following:   

 

O R D E R

 (Sri P. Sridhara Rao, President)

 

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to return the Mahindra Tractor with Engine No.RDG00027 and Chasis No.RDG00027 with Registration No.AP22-W-4821 in favour of the complainant and receive the loan amount in installments and to award damages to the tune of Rs.1,00,000/-, Rs.30,000/- towards deficiency of service and for adopting unfair trade practice, Rs.20,000/- towards compensation for causing mental agony and Rs.5,000/- towards costs of the complaint.   

 

2. The averments of the complaint in brief are that:- The complainant purchased Mahindra Tractor bearing Registration No.AP22-W-4821 worth Rs.4,16,000/- by making down payment of Rs.1,16,000/- besides a sum of Rs.3,00,000/- towards the loan provided by the opposite party.  In the process of providing the loan of Rs.3,00,000/- the opposite party fixed up 35 installments @ Rs.10,000/- per month for repayment of the hire purchase amount commencing from 6-11-2007.  In the process of making repayment the complainant altogether paid a sum of Rs.2,82,237/- to the opposite party under proper receipts. But when the complainant approached the opposite party to know about the details of the loan and the payments, he came to know that some more loans have been recorded in his loan account though he did not take any loan during the period of loan payments.  While the matter stood thus, the opposite party in the meanwhile illegally seized his Tractor on 17-8-2010 when it was parked in front of his house without any prior intimation and notice of any sort.   After seizure of the vehicle the opposite party issued specimen notice dated 22-8-2010 to him and the guarantor for full settlement. The opposite party besides seizure of the vehicle retained the blank cheques obtained from him illegally.  Even to the legal notice dated 3-9-2010 got issued by him to the opposite party demanding for settlement of his account and get free the vehicle from his hands the opposite party not complied the same and not even given any reply thereon. Such acts on the part of the opposite party amount to deficiency of service.  Thus the present complaint is filed for the aforesaid relief.

 

3. On the other hand, the opposite party filed counter denying the averments of the complaint and stated that the complainant availed the services of the opposite party for commercial purposes and therefore the complainant is not a consumer within the provisions of C.P. Act and thus the complaint is not maintainable and liable to be dismissed.  It is further stated that there is no truth in the case of the complainant that the loan amount of Rs.3,00,000/- is liable to be paid in 35 equated monthly installments but it is payable in 46 installments @ 9,980/- and one installment of Rs.9,520/- and the payment schedule started from 25-8-2007 but not from 6-11-2007.  It is further stated that there is also no truth in the case of the complainant that this opposite party illegally seized the Tractor from his possession on 17-8-2010 and in fact the complainant himself voluntarily surrendered the Tractor to this opposite party on 17-8-2010 by stating that he is unable to pay the installments in future and thus the question of illegal and arbitrary seizure by this opposite party does not arise at all, and that this opposite party has not received any notice from the complainant before filing of the complaint otherwise this opposite party would have suitably replied it. It is further stated that the complainant having received the notice dated 22-8-2010 calling upon him for full settlement and having availed sufficient opportunity did not come forward to comply the notice.  It is also further stated that the complainant is having a total due of Rs.2,81,267/- under 3 loan accounts to this opposite party, and that this opposite party was always ready and willing to receive the installment dues upto date and hand over the Tractor to the complainant, but the complainant himself is at fault and to cover up his own fault he filed the present complaint. Thus the complaint is liable to be dismissed with costs.      

 

4. Thereupon the complainant in support of his claim filed his affidavit evidence and got marked Exs.A-1 to A-7.  On the other hand, the opposite party filed his affidavit evidence and got marked Exs.B-1 to B-17.  

 

5.  The points for determination now are: 

 

1.  Whether the complainant comes under the definition of a consumer within the meaning of Sec.2(1)(d) of C.P. Act and the present complaint filed by him is maintainable? If so,
2.  Whether is there any deficiency of service and unfair trade practice on the part of the opposite party as alleged?

(iii)  Whether the complainant is entitled for the relief sought for by him? 

      (iv)  To what effect? 

 

6. Point No.1:- The first and foremost contention of the learned counsel for the opposite party is that as the complainant availed the services of the opposite party for commercial purpose the complainant is not a consumer within the meaning of the provisions of C.P. Act and therefore the complaint is not at all maintainable and is liable to be dismissed. It is the contention of the learned counsel for the complainant that the complainant is a consumer, as such he filed the present complaint alleging deficiency against the opposite party.  So the question that has to be seen now is whether the complainant comes under the definition of consumer as denied U/Sec.2(1)(d) of C.P. Act. A careful perusal of the pleadings in the complaint and the affidavit evidence of the complainant goes to show that the simple plea of the complainant is that he is a consumer of the opposite party.  But there is no whisper either in the complaint or in his affidavit evidence that he purchased the Tractor in question with the loan provided by the opposite party to eak out his livelihood by means of self employment.  So when it is the contention of the opposite party that the complainant is not at all a consumer within the meaning of Sec.2(1)(d) of C.P. Act and when the complainant is silent to satisfy this Forum on the said aspect except taking a simple plea that he is a consumer of the opposite party, it is for this Forum to gather the same from the other oral and documentary evidence placed on record by both sides. Ex.A-4 is the original certificate of registration of the vehicle produced by himself, while Ex.B-16 is the copy of the certificate cum policy schedule of the vehicle and Ex.B-17 is the copy of certificate of registration to the original of Ex.A-4 produced by the opposite party.  A perusal of the recitals of Ex.A-4/B-17 and B-16 clearly establishes the contention of the opposite party that the complainant purchased the Tractor with the loan provided by the opposite party for commercial purpose.  Because as per Ex.A-4/B-17 the class of vehicle is described as Tractor-LMV transport.  Similarly as per Ex.B-16 the product i.e., the Tractor in question is described as commercial vehicle-Class-D. Further the complainant also not disputed such recitals of Exs.A-4/B-17 and so also Ex.B-16.  So from the recitals of Exs.A-4/B-17 and Ex.B-16 it can be presumed that the complainant purchased the Tractor in question with the loan provided by the opposite party for commercial purpose by drawing an inference against him. Therefore, we find that since the complainant purchased the Tractor in question with the finance provided by the opposite party for commercial purpose he will not come under the definition of consumer within the meaning of Sec.2(1)(d) of C.P. Act and as such the complaint is not maintainable and liable to be dismissed.  Hence, for the reasons stated above we hold that the complaint is liable to be dismissed as not maintainable. The point is answered accordingly in favour of the opposite party and against the complainant.  

 

7. Point Nos.2 and 3:- When once it is found that the very complaint filed by the complainant itself is not maintainable we find that no need is required to discuss in detail about the alleged deficiency on the part of the opposite party and so also the relief sought for by the complainant.  Hence, in view of the finding given on point No.1 we hold that the complainant is not entitled for the relief sought for by him alleging deficiency against the opposite party.  As per the complaint the only relief sought for by the complainant is to direct the opposite party to return the Mahindra Tractor with Engine No.RDG00027 and Chasis No.RDG00027 with Registration No.AP22-W-4821 in favour of the complainant and receive the loan amount in installments. Even according to the counter and the affidavit evidence filed by the opposite party, it appears that still the opposite party was always ready and willing to receive the installment dues upto date and hand over the Tractor to the complainant. In view of the said situation if the complainant is really interested in his taking back the vehicle from the opposite party he can do so accordingly by approaching the opposite party.  But not by way of the present complaint not being a consumer.  Both the points are answered accordingly in favour of the opposite party and against the complainant.    

 

8. Point No.4:- In the result, the complaint is dismissed.  No order as to the costs.  

 

        Typed to dictation, corrected and pronounced by us in the open Forum on this the 7^th day of July, 2011.    

 

    I agree                                             I agree                                                        

 

 MEMBER                                MEMBER                           PRESIDENT                      

   Appendix of evidence

      List of Witness examined

 

On behalf of Complainant:                          On behalf of Opposite Party:   

- Nil -                                                                   - Nil -

                                       

List of documents marked:-

On behalf of Complainant:-    

                        Ex.A-1: Original Receipt, dt.17.8.2010.

Ex.A-2: Specimen Notice for Full Settlement, dt.22.8.2010.  

Ex.A-3: Office copy of Legal Notice, dt.3.9.2010.

Ex.A-4: Original Certificate of Registration.  

Ex.A-5: Original HP/Lease Acknowledgment Slip, dt.6.11.2007.

Ex.A-6: Copy of Notice issued by RTO, Mahabubnagar, dt.28.9.2010.  

Ex.A-7: Original Estimate, dt.11.6.2010.  

  

On behalf of OP.:                  

Ex.B-1: Original Loan cum Hypothecation Agreement, dt.25.8.2007.

Ex.B-2: Original Promissory Note, dt.25.8.2007.

Ex.B-3: Original Receipt, dt.21.8.2007.

Ex.B-4: Original Quotation, dt.21.8.2007.

Ex.B-5: Letter issued by the complainant.

Ex.B-6: Letter issued by the complainant, dt.17.8.2010. 

Ex.B-7: Copy of Specimen Notice for Full Settlement, dt.22.8.2010. 

Ex.B-8: Original Loan Receipt, dt.24.2.2009.

Ex.B-9: Original Loan Documentation.

Ex.B-10: Personal Loan Application.

Ex.B-11: Loan Agreement.

Ex.B-12: Copy of Loan Requisition Letter, dt.23.2.2009.

Ex.B-13: SCUF Requisition Letter, dt.23.2.2009.

Ex.B-14: Copy of Letter, dt.28.2.2009.

Ex.B-15: Photostat copy of Household Card.

Ex.B-16: Photostat copy of Certificate cum Policy Schedule.

Ex.B-17: Photostat copy of Certificate of Registration.   

              

                                                                                                                                   PRESIDENT                                                                                                                                                                                    

 

Copy to:-

1. Sri V. Ramaiah, Advocate, Mahabubnagar on behalf of the complainant.

2. Sri C. Rajeev Kumar, Advocate, Mahabubnagar for the opposite party.