D.o.F: 30/10/06
D.o.O: 17/2/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM KASARAGOD
CC.127/06
Dated this, the 17th day of February 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P RAMADEVI: MEMBER.
Siddeek.K,s/O C.Mohammed,
Kolokatta House, Cherkala, : Complainant
Chengala Po,Kasaragod.
(Adv.Subhash Bozz,Kasaragod)
1.The Manager,
Sriram Transport Finance Co., Ltd.
Regd.office 123, Angappa Naicken Street,
Chennai.600001.
2. The Branch Manager
Sriram Transport Finance Co.,
Land Mark Bldg,New Bus stand, Kasaragod : Opposite parties
3. Prejith Kumar,
Sriram Transport Finance Co.,
Land Mark Bldg,New Bus stand, Kasaragod
(Adv.B.Ramakrishna Bhat,Kasaagod)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
Complaint in brief is as follows:
Complainant is a businessman and conducting light and sound shop . Complainant purchased a minidor Bajaj Tempo bearing Reg. No.KL-14E 6082 on 17/2/06 from Ist opposite through 2nd opposite party. 3rd opposite party is the person in charge of branch office of Ist opposite party. The consideration for the sale is fixed as ` 12,0000 /- out of which ` 50,000/- paid in cash and for the remaining amount a loan having monthly instalment for repayment has been provided by opposite party. They obtained 4 blank signed cheque leaves bearing Nos. 162595,162596,162597,162598 drawn on Bank of Baroda as security. At the time of transaction opposite parties 2&3 agreed to handover the vehicular documents within 7 days from the date of agreement. They also undertake to clear the insurance and road tax due of the vehicle . But as promised they did not deliver the original documents. The vehicle was intended to supply the hire goods like tables, chairs, tarpaulin, utensils and lightings equipments for the purpose of marriage and other ceremonies. But for want of documents he could not use the vehicle and on two occasion traffic police imposed fine on him. Hence the complaint was constrained to hire taxi tempo for his business. Though he requested opposite party for the documents it was not given . Finally he sent a lawyer notice on 26/9/06 to which opposite party sent a reply stating false and frivolous contentions. Therefore he filed the complaint for an order directing the opposite parties to pay an amount of ` 50,000/- as compensation for the loss sustained to him and to deduct the interest collected for 6 months from March 2006 to Sep 2006 and to pay the cost of these proceedings and to give the vehicular documents of the complainant.
2. Opposite party No.2filed version. No version filed by Opposite parties 1&3.
According to 2nd opposite party complainant has approached the Forum by suppressing facts and it is against the terms and conditions of the hypothecation agreement entered in to by him with 2nd opposite party . Complainant availed a loan after executing hypothecation agreement dtd.15/3/2006. As per the agreement he has agreed to repay the amount by 30 monthly instalments commencing from 15/4/2006. He had only paid 6 monthly instalments, that too not on stipulated dates. In that case opposite parties have every right to repossess the vehicle . As per clause 10.14 of the agreement Forum has no jurisdiction to try the complaint and any dispute arise in out of the agreement has to be referred to arbitrator as per the provision of Arbitration & Conciliation 1996. There is no deficiency in service and hence the complaint is liable to be rejected.
3. Along with the version 2nd opposite party also filed IA 29/2008 to invoke the powers U/s 8(1) of Arbitration & Conciliation Act and direct the complainant to approach the Arbitrator as contemplated under clause 12 of the Agreement. Opposite party produced the agreement alleged to be executed between opposite party No.1 and the complainant that is subsequently marked as Ext.B1. Complainant filed counter and after hearing both sides the said IA is dismissed holding that the Forum has jurisdiction to adjudicate the matter irrespective of the clause contained in the agreement for referring the disputes to arbitration. Against the said order the opposite party filed WP( c) 22011/2008 before the Hon’ble High Court of Kerala and since the judgment in the said Writ petition was not favourable the opposite party preferred Writ appeal as WA 1698/2008. The said WA is dismissed by the Hon’ble High Court of Kerala as per order dtd 11/12/2008 holding that the order of the Forum was in consonance with the law declared by the Apex Court in the case of Skypak Couriers Ltd vs. Tata Chemicals Ltd (2000 (5) SCC 294).
4. Immediately on production of Ext.B1 hypothecation agreement complainant filed an IA 31/08 to appoint an advocate commission to search the office of 2nd opposite party and to seize the RC of the vehicle bearing Reg No. KL-14/E 6082 and the entire loan file relating to the vehicle . According to complainant the Ext.B1 produced along with IA 29/08 is seen signed by one Mahesh Kumar for opposite parties 1&2 who is the present manager of 2nd opposite party but actually 3rd opposite party was the Manager of 2nd opposite party at the time when the complainant executed the agreement and there is no occasion to execute an agreement with the present manager.
5. Considering the graveness of the allegations without notice to opposite parties The said IA is allowed and an Adv. Commissioner was appointed to search and seize the RC of the vehicle bearing reg No.KL 14/E 6082 and the entire loan file relating to the loan of that vehicle . Advocate Commissioner filed his report . According to the commissioner though he made a search for the asked documents he could not find the RC and the loan file relating to KL 14/E 6082. The commissioner further reported that the respondent told him that generally the RC’s are kept in safe locker in the respondent’s bank . In this particular case the RC and other related loan documents are sent to the head office of the respondent at Kozhikode.
6 Along with IA 31/08 complainant also filed IA 32/08 to make an enquiry u/s 340 Cr.Pc into the fact of submitting Ext.B1 forging the signature of petitioner and his gurantor as they committed offences U/s 193 and 468 and 471 of IPC.
7 Subsequently complainant filed IA 57/08 to call for the following documents kept with the opposite [party.
1. Attendance Register for the month of Feb 2006
2. Salary Disbursement register relating to Prejith Kumar the Manager of 2nd opposite
party during the year 2006
3. RC, Permit, Fitness certificate, insurance certificate and tax taken of the vehicle
bearing Reg.No. KL:-14/E 6082.
8. Complainant also filed IA 58/08 seeking an order directing the petitioner/complainant to give specimen signature before the Forum so as to compare the same that of the signature in the loan cum hypothecation agreement (Ext.B1) produced by the respondent/opposite party. Opposite party filed counters IA.No. 57/08 & IA.No. 58/08. According to opposite party the documents called for as per IA 57/08 are purely privileged and private document and they are absolutely irrelevant for deciding the dispute.
In 58/08 counter statement is filed stating that the allegations made in the application is false
Seeing that the proceedings in the aforesaid applications are much time consuming and it will protract the case of long it was decided to consider the said application along with the evidence in the complaint.
9. There after complainant filed IA 99/09 and 100/09 As per this IAs complainant sought an amendment to the complaint. On the ground that duing the pedency of the complaint the opposite parties took away the vehicle forcefully from his lawful possession on 11/12/2007 from his house. To that effect he filed a complaint before the JFCM Kasaragod . He also sought an amendment in the relief portion of the complainant that for an order for the refund of ` 81500/- with interest @12% per annum from the date of the complaint. The said IA is allowed after hearing both sides and the complainant incorporated the said prayer also in the complaint. Then opposite party No.2 filed additional version.
10. The complainant filed proof affidavit in support of his case and Exts.A1 to A17 marked . On the side of opposite parties Ext.B1 marked. Report filed by the Adv.Commissioner is marked as Ext.C1. Both sides heard and documents perused.
Complainant in his affidavit has asserted that at the time of sale opposite parties have undertaken that the original vehicular documents will be handed over to him within 7 days from the date of agreement after transferring the vehicle into his name and making necessary endorsement in RC. They also undertake to pay the insurance premium and clear all the tax and other dues. But opposite party has failed to keep their promise and the vehicular documents were not handed over to him. Hence he forced to keep the vehicle off the road and hired taxi for conducting business and thereby suffered monetary loss. Hence he constrained to stop further payments towards the repayment of the loan and filed this complaint. While so on 11/12/07 during the pendency of this complaint one Mahesh Kumar, the manager of the opposite party, Ravi , Satheeshan ( the staff of opposite party) along with two persons came to his house and forcefully took away the vehicle . Against the said act he filed a criminal complaint before JFCM Kasaragod. Till date opposite party has not handed over the vehicular documents.
11. In cross examination PW1 has deposed that he is a business man and he purchased the vehicle for his own purpose and he had executed an agreement in favour of opposite party. But the agreement produced by opposite party is not executed by him. But he is bound by the terms and conditions of the agreement executed by him. At the time of taking the vehicle in auction it covered 6000 Kms and at the time of repossession it has further covered 6000 KMs.
12. On behalf of opposite parties no oral evidence or evidence by affidavit is adduced. But counsel for opposite party filed IA 89/10 to send Ext.B1 agreement to a handwriting expert on the ground of denial of signature by the complainant in Ext.B1. The counsel for complainant filed counter to the above contending that they have already filed IA 58/08 praying for the comparison of signature of the complainant and the signature contained in the agreement produced by opposite party U/s 73 of Indian Evidence Act and the opposite party filed counter opposing the same which is pending for disposal. Thereafter an additional document produced by the complainant is marked in Ext.A17. After hearing the opposite party subsequently counsel for the complainant filed a memo stating that he is not pressing the IA 58/08 since the same relief is sought by opposite in IA 89/10. Therefore IA 58/08 is dismissed as not pressed. Subsequently the counsel for opposite submitted that he is not pressing the IA 89/10 and therefore it was also dismissed as not pressed. Thereafter both sides heard and documents perused.
13. Ext.A1 is copy of the lawyer notice dtd. 26/9/06 issued by the counsel for complainant. Sri. Subah Bozz to opposite parties 1 to 3 demanding the documents of the vehicle sold by Ist opposite party through 2nd opposite party to complainant and delivered by 3rd opposite party. Ext.A2 is the acknowledgment for the receipt of Ext.A1 notice. Ext.A3 is the reply notice dtd 7/10/06 issued by the Adv. George John Plamootil . In the reply notice the sale of the vehicle is admitted by the opposite party. Ext.A4 is the telegram dtd. 12/12/07 sent to the complainant intimating him that his vehicle bearing Reg.No.KL 14/E 6082 is re-possessed for the non payment of monthly loan instalments. Ext.A5 is the notice issued by 2nd opposite party to complainant and his guarantor demanding ` 99748/-. Ext.A6 is the certified copy of the Criminal Miscellaneous Petition filed by complainant against the employees of 2nd opposite party before the Judicial First Class Magistrate Court , Kasaragod against the illegal seizure of the vehicle. Exts.A7 to A10 are the receipt for the payment of instalments made to Ist opposite party. Ext.A11 is the certified copy of the FIR in Crime No.845/06 of Kasaragod Police Station. As per that the Divisional Manager of Sriram Transport Finance Co. Ltd Hasan Mysore lodged a complaint against 3rd opposite party against the misappropriation of approximately 7 lakhs rupees obtained from the customers of opposite party. Ext.A12 is the certified copy of the complaint pertaining to FIR lodged before the Kasaragod Police. Ext.A13 is the certified copy of the memorandum of evidence and Ext.A14 is the copy of 161 statement of one C.H.Mahesh Kumar. Ext.A15 is the final report in crime No.845/06 of Kasaragod Police Station. Ext.A16 is the certified copy of power of attorney executed in favour of Mahesh Kumar by Sriram Transport Finance Co.Ltd.
The specific case of the complainant is that opposite parties failed to handover the original documents within 7 days from the date of agreement executed between him and then the manager of 2nd opposite party for and on behalf of Sriram Transport Finance Co.Ltd. The opposite party has nowhere denied this allegation in their version. Instead their case is that the complainant failed to pay monthly instalments as envisaged in the agreement.
14. When a party purchases a vehicle in auction it is the duty and obligation of the auctioneer to supply the documents if the vehicle is intended for plying on public road. As far as a law abiding citizen is concerned a vehicle without documents is equal to a vehicle without tyres. So when a vehicle is sold in auction the transaction became complete only if the necessary documents are transferred or handed over. Without performing their obligation the opposite party should not have insisted for the payment of instalments and it is quite natural that nobody would spend his hard earned money for a useless vehicle. The opposite party not only committed unfair trade practice by not supplying the vehicular documents but committed deficiency in service also by illegally repossessing the vehicle from the custody of the complainant. Thereafter when the complaint is filed opposite party tried to make obstructions each and every occasion by raising untenable contentions like the maintainability of the case on account of the arbitration clause in the agreement etc.
15. The contention of opposite parties that the purpose of the vehicle was commercial and hence the complainant is not a consumer is also not hold good in view of the decision of the Hon’ble National Commission in the case of Harsolie Motors vs. National Insurance Co.Ltd I (2005) CPJ 27(NC). In that case the Hon’ble National Commission has held that where goods purchased or services hired in an activity which is not directly intended to generate profit it would not be a commercial purpose. In this case purpose of the complainant was not generate profit by running the vehicle for hire. His definite case is that the vehicle was intended to transport materials like table,chair tarpaulin, utensils for marriage and other ceremonies and the vehicle was intended to carry the hire goods from place to place. This activity will no way come within the purview of the commercial purpose as envisaged in the CP Act. Therefore it is clear that the vehicle purchased by the complainant was not intended for any commercial purpose and hence complainant is a consumer.
16. Another case of the complainant is that Ext.B1 loan cum hypothecation agreement is not the agreement executed by him and when he executed the agreement 3rd opposite party was the person in charge of the 2nd opposite party office and it is 3rd opposite party who signed and executed the agreement on behalf of 2nd opposite party. But the signature of the lender contained in Ext.B1 which is alleged to be signed by complainant is not that of 3rd opposite party but belongs to the present manager who took charge much later. In order to prove the same though complainant sought the production of attendance register, wage register etc kept in the office of opposite party by way of IA 57/08, Opposite parties filed counter stating that those documents are not relevant to decide the case. That apart learned counsel for opposite party submitted that the opposite parties are not keeping the documents mentioned in the application. This will further prove that the opposite party is running the company violating the Companies Act and Labour Acts. The said registers are essential for the working of a company as per the said Acts.
17. From the above it is very clear that opposite parties committed very grave unfair trade practice and heinous kind of deficiency in service. They harassed the complainant to the maximum by dragging him upto High Court unnecessarly instead of settling his grievance by supplying the RC book and vehiclular documents. Therefore the complainant is entitled for the relief claimed in the complaint. He is also entitled for punitive damages.
Therefore the complaint is allowed and opposite parties are directed to refund ` 81500/- collected from the complainant with interest @12% per annum from the date of complaint together with a compensation of ` 25,000/- and a cost of ` 10,000/-. Time for compliance is limited to 30 days from the date of receipt of copy of order. Failing which the complainant is entitled to get interest @ 18% for ` 81500/- from the date of complaint till payment.
Exts;
A1- dtd. 26/9/06 -copy of the lawyer notice
A2 -acknowledgment for the receipt of Ext.A1 notice.
A3 7/10/06 reply notice
A4- 12/12/07 –telegram
A5 - notice issued by OP.2 to complainant
A6 - certified copy of the Criminal Miscellaneous Petition filed by PW1 against employees OP.2
A7 to A10- instalment receipts
A11- certified copy of the FIR
A12-certified copy of the complaint pertaining to FIR lodged before the Kasaragod Police. A13-certified copy of the memorandum of evidence
A14 -copy of 161 statement of one C.H.Mahesh Kumar.
A15-final report in crime No.845/06 of Kasaragod Police Station
A16-certified copy of power of attorney executed in favour of Mahesh Kumar by Sriram Transport Finance Co.Ltd.
A17-statement of account
B1- loan cum hypothecation Agreement
C1- Commission report
PW1-Siddeek- complainant
MEMBER PRESIDENT
eva
